GENERAL TERMS OF SERVICE

Last updated: 01/11/2019

 

This General Terms of Service Agreement between
Afundi Digital Marketing Limited (the Supplier) and you (the Customer) is to address the Services that we provide to you.

 

1. DEFINITIONS

1.1. “Agreement” means the agreement between the Company and the Customer, comprising these terms and conditions.
1.2. “Agreement Price” means the total of all prices set out for the Goods and Services and Carriage set out on the Quotation as may be varied following Project Approval at the sole discretion of the Company.
1.3. “Business Day” means a normal working day excluding Saturday, Sunday or any Bank or Public Holiday in the Isle of Man.
1.1. “Company” means Afundi Digital Marketing Limited, a private company incorporated and registered in the Isle of Man, Company Number 131857C.
1.2. “Customer”, “You”, “Your”: The person, firm or company who purchases Services from the Supplier.
1.3. “DPA”: Data Processing Agreement.
1.4. “Goods and Services” means the Goods and Services set out in the Quotation, Invoice or Agreement.
1.5. “Invoice” means the final invoice delivered to the Customer by the Company at the time of delivery of the Goods ordered.
1.6. “Party”: Either Customer or Supplier; “Parties”: Both Customer and Company.
1.7. “Privacy Policy”: The policy located here as it may be updated from time to time.
1.8. “Project Approval” means the Customer’s agreement, either in writing or by email, to the goods and services supplied in proof or test website format.
1.9. “SLA”: The Service Level Agreement.
1.10. “Quotation” means the written quotation prepared by the Company which contains its proposals and costs for providing Goods and Services to the Customer.

2. AGREEMENT

2.1. A contract may be created between the Company and the Customer in certain circumstances upon a written acceptance of the Quotation by the Customer, or when the Customer has provided an official purchase order in relation to the Quotation. The Customer shall ensure that the terms of the Quotation and any specification therein are complete and accurate.
2.2. On written approval of the Quotation which references these Terms of Service, the Customer accepts that it is entering into an Agreement with the Company to provide Goods and Services as detailed in the Quotation.
2.3. Unless otherwise agreed in writing these Terms of Service shall apply to all Agreements entered into by the Company to the exclusion of any terms or conditions contained in a Customer’s order or which are referred to by the Customer in correspondence or other communications.
2.4. If you do not wish to accept these General Terms of Service please express this in writing by emailing [email protected]

3. QUOTATIONS

3.1. All quotations and estimates are valid for 30 days from issue. The Company reserves the right to charge VAT if applicable.
3.2. Quotations and estimates are based on our anticipated time and costs for the work specified and based on information provided by the Customer. Any Quotation/estimate may therefore be subject to change should the Customer’s requirements change at any time.
3.3. No work will begin until the Company has received written approval of the Quotation. On Quotations exceeding £2,500 we may request a minimum of 50% of the quoted cost as a deposit.
3.4. In some cases, for larger projects or projects that extend over a six-month period, work may be quoted in stages and will be invoiced on completion of each stage.
3.5. Any estimates given by the Company relating to the time of completion or delivery of its goods and services shall be estimates only. Timescales are dependent on the Customer providing all required information and approvals in a timely manner to meet deadlines.

4. TERMS OF PAYMENT

4.1. All invoices are payable within 15 days of the date of the Invoice unless otherwise stipulated by the Company. Where the agreement includes website development, 50% of the agreed fee will be payable as a non-refundable deposit at the time the Quotation is agreed with the remaining 50% payable within 15 days of the final Invoice. The Company may at its sole discretion require a deposit to be paid in other instances and this will be due at the time of acceptance of the Quotation (see section Quotations)
4.2. If payment is not made on the due date set out above, the Company shall be entitled to suspend or terminate the provision of Goods

5. RETAINER AGREEMENTS

5.1. Any retainer agreement will be set out in the Quotation. A deposit of the first will be required on acceptance of the Quotation.
5.2. Unless otherwise stated, the agreed monthly element of the retainer shall be payable to the Company on the last day of the month.
5.3. The Company reserves the right to vary its schedule of charges from time to time.

6. DELIVERY

6.1. The Company will make every effort to achieve any quoted delivery dates and fulfil its obligations set out in the Quotation but will not be under any liability if delivery is delayed or prevented by events beyond its control such as delays by the Customer in passing on information or giving Project Approval, any third-party issues or Act of God (force majeure).
6.2. If for any reason the Customer refuses to accept delivery of the Goods, the Company reserves the right to charge for any costs incurred for storage, additional handling or transport charges.
6.3. The Company does not offer any guarantee whatsoever with regard to the Goods unless specifically agreed otherwise and stated on the Quotation.

7. CANCELLATION

7.1. If at any time the Customer cancels, any costs incurred up until the date of cancellation will be charged for at the Company’s discretion.

8. TITLE AND RISK TO GOODS

8.1. Risk passes to the Customer immediately upon delivery of the Goods and Services. However, the Goods and Services remain the property of and title remains in the Company until payment has been made in full under the Agreement

9. COMPANY OBLIGATIONS AND WARRANTIES

9.1. Each Party represents and warrants that (a) it has the power, authority, and legal right to enter into the Agreement and perform the obligations set out herein; and (b) it will comply with all laws and regulations applicable to its performance under the Agreement.
9.2. The Company warrants it will provide the Goods and Services as stipulated in the Quotation using reasonable care and skill to conform to all material respects.
9.3. The Company shall use all reasonable endeavours to meet any timelines and dates specified in the Quotation but such dates shall be estimates only and time shall not be of the essence for the provision of the Goods and Services. The Company shall not be liable for any delay in delivery of the Goods and Services caused by a Force Majeure event or the Customer’s failure to provide the Company with adequate instructions, information and materials relevant to the supply of the Goods and Services.
9.4. The Company shall have the right to make any changes to the Goods and Services which it deems necessary to comply with any applicable law.
9.5. The Company is entitled to use a third party or other sub-contractor for the provision of the Goods and Services provided always the Company shall remain liable to the Customer for the performance of the Goods and Services as if it had carried them out itself.

10. CUSTOMER’S OBLIGATIONS AND INDEMNITIES

10.1. The Customer shall provide assistance, technical information and other material as reasonably required by the Company to fulfil the Agreement. The Customer will have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants that the Customer employees have the necessary skills and authority to do so.
10.2. The Company will not be responsible for imperfect work caused by defects in or unsuitability or material and equipment supplied by the Customer, or an additional cost caused by such material or equipment.
10.3. The Customer agrees to indemnify the Company and keep it indemnified and hold the Company harmless from and against any claims, actions, proceedings, losses, liabilities, damages, costs, or expenses suffered or incurred in relation to work or services provided. The Company is not liable for any loss that may occur before, during or after the development of projects undertaken. The Company will not be held responsible for any delays, errors or losses arising from any third party other than that arising from negligence.
10.4. It is the responsibility of the Customer to ensure that deliverables comply with all laws, regulations and codes in all countries where the deliverables are used. The Customer agrees to indemnify the Company against any costs arising from the use or misuse of the deliverables.

11. LIABILITY

11.1. The Company accepts no responsibility whatsoever for any inconsequential loss or indirect damage resulting from the Agreement.

12. INTELLECTUAL PROPERTY & COPYRIGHT/LICENSING

12.1. By supplying text, images and other data to the Company for inclusion in the proposed design or development project, the Customer declares that it holds the appropriate copyright and/or trademark permissions. The ownership of such materials will remain with the Customer, or rightful copyright or trademark owner. The Customer also allows the designs to be utilised in the Company’s portfolio unless agreed otherwise.
12.2. Until payment is received in full, all designs, artwork and rights to design and artwork (whether in printed or digital formats) remain the intellectual property of the Company. Full copyright and ownership of all commissioned work will reside with the Company until full payment has been received, at which point the Company will surrender to the Customer all claims of ownership and full copyright for final work produced. All alternative designs, concepts, options, files, images or documents developed throughout the process remain the intellectual property of the Company who retain full ownership and copyright for non-exclusive future use.
12.3. The Company will never knowingly infringe any copyright or trademark. It is the Customer’s responsibility to ensure that no copyright or trademark has been infringed and to make their own application for copyright or trademark with the relevant Intellectual Property Office if required.

13. CLAIMS/COMPLAINTS

13.1. The Customer agrees to alert the Company in writing to any defects or problems in relation to work and services provided, within 15 days of the final invoice date.

14. CONFIDENTIALITY

14.1. The parties acknowledge that in the course of performing this Agreement that they may receive or otherwise become aware of information relating to the other party, its business, technical or commercial knowledge, specifications, processes or initiatives which are proprietary and confidential to the other party (“Confidential Information”). Each party agrees to keep the other party’s Confidential Information confidential at all times (both during and after the term of this Agreement) and undertakes not to use or disclose such Confidential Information other than to fulfil its obligations under Agreement or if required by any statutory body.

15. CUSTOMER DATA & DATA PROTECTION

15.1. Both the Company and Customer shall comply with the obligations imposed on it by General Data Protection Regulation and all local laws or regulations on data protection. The Company’s Data Protection policies and procedures are outlined in the Company’s Privacy Policy and DPA.

16. GENERAL MARKETING SERVICES

16.1. Costs provided allow for a sensible amount of time to handle two sets of Customer amends after which time additional charges may become payable. Any additional author’s corrections requested after the second proof is submitted will be charged at our normal rate as quoted at the start of the project. After approval the Customer shall have no claim against the Company for errors in the exemplar as approved by them.
16.2. At the end of each stage of the process (including – but not limited to – before sending an item to print or publishing a website etc.) the Customer will need to give Project Approval in writing.
16.3. The Company recommends, but does not demand, the Customer use its preferred suppliers for print to benefit from competitive quotations and ensure a high quality service is maintained through to delivery. If a Customer prefers to use their own print supplier, the Company will simply provide artwork directly to the Customer to manage and forward, and will be unable to monitor, advise or take any responsibility for the process or final output.
16.4. Customer should be aware that due to a variety of factors there will often be variance in colours shown between in-house proofs, colours on screen, printer’s proofs, and final printed items. As a result of this the Company is unable to guarantee 100% consistency and accuracy of colour on all items.

17. DIGITAL MEDIA

17.1. Development
17.1.1. The Company can only develop sites to be as secure as reasonably possible at the time of delivery and cannot offer indemnity against future threats
17.1.2. Once the Company has deemed a project to be complete, any amendments will be charged at the Company’s hourly rate as agreed at the commencement of the project.

17.2. Ownership
17.2.1. Ownership of all code used in processing web pages shall remain with the Company and it is expressly agreed that the use of such code in processing the web pages does not confer any passing of title from the Company to the Customer.

17.3. Testing
17.3.1. When a test link is provided, it is the responsibility of the Customer to test the functionality, read and check all copy, as well as approve the design and images used before approval is given to go-live.
17.3.2. Once the Customer receives the test link the Customer will have a stipulated timeframe in which to provide feedback. If the Customer delays the go-live process for more than 30 days the Company reserves the right to bill for all completed work and will host the website for a maximum of 90 days before insisting it is moved to another environment or is taken live.

17.4. Website Hosting
17.4.1. Please refer to our Hosting Terms of Service Agreement further details.

17.5. Legal Content
17.5.1. The Company can assist with legal disclaimers and privacy policies; but it is the responsibility of the Customer to confirm with their own legal advisers that these meet their individual requirements, as The Company accepts no responsibility for their accuracy, relevance or currency.

17.6. Snagging
17.6.1. Once a website or makeover has been approved to “go live” and has been published, the Customer must report any “snags” (defects to be corrected) within seven Business Days of this first publishing date. Such snags must still fall inside of the scope of the Quotation and be agreed by the Company to be fair and reasonable.

18. MISCELLANEOUS

18.1.1. These terms, the Quotation and any other document specifically referred to in any of those documents shall constitute the entire agreement between the parties and supersede any previous agreement or understanding. The Customer’s statutory rights are not affected by agreeing to these terms.
18.1.2. Any notice required to be given to either party shall be addressed in writing to the Company at its registered office appearing above and to the Customer at the address details given on the Quotation.
18.1.3. No failure or delay by the Company in exercising any of its rights under these Terms shall be deemed a waiver of that right. No waiver by the Company of any breach shall be considered a waiver of any subsequent breach.
18.1.4. The Company may amend errors or omission within quotations or promotional literature without liability to the Customer.
18.1.5. If any provisions of these Terms are unenforceable, such provision shall be severed from the agreement and the remainder of the provisions shall remain in full force and effect.
18.1.6. These Terms shall be construed in accordance with Isle of Man Law and the parties submit to the jurisdiction of the Manx Courts.
18.1.7. The Company may assign its rights and obligations under these Terms and in particular may use the services of Associates, but the Customer may not assign its rights or obligations under this agreement without the express written consent of the Company.