D) Design Services
Updated 16 April 2021
This page (together with the documents referred to in it) sets out the legal terms and conditions on which the Company supplies Design Services to Customers.
1. Licence and Copyright
1.1 Joomla!® Content Management System
1.1.1 Websites installed on a web server by the Company on behalf of the Customer are powered by the Joomla! Content Management System. Joomla! is Free Software released under the GNU/GPL Licence. The Joomla!® name is used under a limited licence from Open Source Matters in the United States and other countries. Wynchcote Limited is not affiliated with or endorsed by Open Source Matters or the Joomla! Project.
1.2 Third Party Applications
1.2.1 The copyright of any one Third Party Application installed on a web server by the Company on behalf of the Customer belongs to the owner of the copyright of the Third Party Application.
1.2.2 The Customer agrees to consult the owner of the copyright of any one Third Party Application before using the Third Party Application to ensure it is not in breach of copyright requirements.
1.2.3 When the owner of the copyright of any one Third Party Application requires registration the Customer agrees that it will register with the owner of the Third Party Application prior to using the Third Party Application.
1.2.4 The Customer agrees that it shall defend, indemnify, save and hold the Company harmless from any and all demands, liabilities, costs, losses and claims arising from use by the Customer of Third Party Applications installed on a web server by the Company on behalf of the Customer.
1.3 Templates
1.3.1 The Company is the sole owner of copyright and all other rights to Templates designed and supplied by the Company. Templates designed and supplied by the Company remain the property of the Company and are licensed to the Customer. The Customer may not claim intellectual or exclusive ownership of any rights to any one Template designed and supplied by the Company modified or unmodified in full or in part. The Company reserves the right to re-develop, change, withdraw and release Templates without prior notice. The Customer agrees that the Company may include development credits and links back to its website in Templates designed and supplied by the Company.
1.3.2 The Company grants a non-exclusive limited licence to the Customer to use any one Template designed and supplied by the Company with one Joomla! CMS at any one time.
1.3.3 If the Customer wishes to use any one Template designed and supplied by the Company with more than one Joomla! CMS website at any one time then the Customer is invited to purchase additional Templates to be granted additional non-exclusive limited licences on the basis of one non-exclusive limited licence per Template.
1.3.4 Templates designed and supplied by the Company do not contain Joomla!® software. The Customer must own a fully licensed version of Joomla! software obtained separately to be able to use any one Template designed and supplied by the Company.
1.3.5 The Customer must not place any one Template designed and supplied by the Company modified or unmodified in full or in part on any diskette, CD, DVD, email, web site, site builder, server or any other medium and offer them for redistribution, lending, rental, resale, free offer, give away or redistribution of any kind without prior written consent from the Company.
1.3.6 The Customer must not sub-license, assign or transfer the non-exclusive limited licence of any one Template designed and supplied by the Company to anyone else without prior written consent from the Company.
1.3.7 The Customer may retain one additional copy of any one Template designed and supplied by the Company for archive and reference purposes only; the additional copy must not be redistributed, lent, rented or resold in any manner.
1.3.8 The Company reserves the right to reproduce any of its artwork including Template designs for promotional purposes.
2. Material
2.1 The Company reserves the right to refuse to supply and/or install on a web server one or more Websites and/or Templates and/or Third Party Applications when the Company at its sole discretion deems the Customer's website content to be unlawful or inappropriate; constitute harassment, racism, violence, obscenity, and/or any other harmful intent; be spamming; be committing a criminal offence; be infringing privacy and/or copyright. The Company reserves the right without notice to cancel, reject or refuse to work with a Customer's website without reason for such rejection or refusal.
2.2 It is the responsibility of the Customer to ensure that no copyright infringement will occur in the use of any material (text, graphics, images, audio, video and/or other type of electronic media) supplied by the Customer for use as part of a Template and/or Website.
2.3 The Customer will not hold the Company responsible for any infringement of copyright relating to material (text, graphics, images, audio, video, metadata and/or other type of electronic media) used as part of a Template and/or Website. Refunds will not be made in the event of copyright infringement.
2.4 The Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including cost of all time and materials purchased or used), damages, charges and expenses incurred by the Company as a result of any infringement of copyright relating to material (text, graphics, images, audio, video, metadata and/or other type of electronic media) used as part of a Template and/or Website designed by the Company on behalf of the Customer.
2.5 The Company will do its best to ensure that the Company's designs are original and do not infringe upon any existing trademarked design. Should this unlikely event occur then the limit of the Company's liability is the price of the Template and/or Website supplied.
3. Design Process
3.1 Design Consultation
A representative of the Company will consult with the Customer to determine the Customer's design requirements.
3.2 Design Quote
Upon request the Company will send the Customer a Design Quote outlining the:
3.2.1 proposal for any one Template and/or Website design (hereafter "Design Work"),
3.2.2 total cost of the Design Work (hereafter "Design Cost"),
3.2.3 Payment Terms, and
3.2.4 Delivery Date.
3.3 Design Process
The Design Process will comprise three stages:
3.3.1 Preparation of Design Specification.
3.3.2 Design and Development.
3.3.3 Testing and Delivery.
3.4 Payment Terms
3.4.1 The Company will invoice the Customer for the Design Cost prior to commencement of the Design Process.
3.4.2 The Customer agrees to pay for the Design Work prior to commencement of each stage of the Design Process.
3.4.3 Time for payment shall be of the essence.
3.5 Design Process Termination
3.5.1 The Design Process will terminate at the Delivery Date as specified in the Design Quote or at any time prior to the Delivery Date upon receipt by the Company of a written request from the Customer.
3.5.2 All liabilities for errors, changes, or alterations become the responsibility of the Customer after the Delivery Date or prior date of termination.
3.6 Design Alterations
3.6.1 Converging Design Alterations
Notwithstanding 'Standard Terms Clause 4.9' the Customer may request minor design alterations without charge prior to the agreed Delivery Date providing the Customer gives clear and concise feedback and the alteration is reasonably determined by the Company in its sole discretion to result in convergence of the Design Process.
3.6.2 Diverging Design Alterations
If any design alteration requested by the Customer prior to the agreed Delivery Date is reasonably determined by the Company in its sole discretion to result in divergence of the Design Process then the Company will quote separately for any work needed to complete the requested design alterations.
3.6.3 Design Alterations after the Delivery Date
If design alterations are requested by the Customer after the Delivery Date then the Company will quote separately for any work needed to complete the requested design alterations.
4. Distribution
4.1 When the Company supplies any one Template and/or Website for installation by the Customer on a web server, then the Company will make the Template and/or Website available for download by the Customer from the Company's website after the purchase transaction has been completed.
4.2 When the Customer requests that the Company installs any one Template and/or Website on a web server, then the Company will install the Template and/or Website on the web server after the purchase transaction has been completed and the Customer has provided written confirmation that they have made an appropriate backup copy of all files and data installed on the web server.
5. Payment and Refunds when Template and/or Website is supplied to the Customer
5.1 The Company requires payment to be received in full from the Customer before supplying a Template and/or Website to the Customer.
5.2 The Company offers Templates and/or Websites as intangible irrevocable goods. Due to the digital nature of a Template and/or Website there will be no refund once a Template and/or Website has been supplied to the Customer.
5.3 If the Customer orders a Template and/or Website in error and the Template and/or Website has not yet been supplied to the Customer then the Customer may contact the Company to apply for a refund or exchange at the Company's sole discretion.
5.4 If a Template and/or Website has been supplied to the Customer then no refund will be offered by the Company. All sales are final.
6. Payment and Refunds when Template and/or Website is installed on a Web Server on behalf of the Customer
6.1 The Company requires payment to be received in full from the Customer before installing a Template and/or Website on a web server on behalf of the Customer.
6.2 The Company offers the service of installing Templates and/or Websites on a web server as an intangible irrevocable service. Due to the digital nature of the service of installing a Template and/or Website on a web server there will be no refund once a Template and/or Website has been installed on a web server by the Company on behalf of the Customer.
6.3 If the Customer purchases a Template and/or Website in error and the Template and/or Website has not yet been installed on a web server by the Company on behalf of the Customer then the Customer may contact the Company to apply for a refund or exchange at the Company's sole discretion.
6.4 If a Template and/or Website has been installed on a web server by the Company on behalf of the Customer then no refund will be offered by the Company. All sales are final.
7. Compatibility and Customisation
7.1 The Company designs Templates for and creates Websites using the latest release of any one Joomla! CMS and/or Third Party Application installed by the Company as at the date of the Company's invoice.
7.2 The Company shall make every effort to ensure that any one Template, Website and/or Third Party Application works with the latest release of the main browsers Google Chrome and Mozilla Firefox as at the date of the Company's invoice.
7.3 The Customer agrees that the Company cannot guarantee correct functionality and/or display of any one Template, Website and/or Third Party Application on any one or all browsers, operating systems and devices, and that any one or all of the following which occur after the date of the Company's invoice may thereafter affect the functionality and/or display of any one Template, Website and/or Third Party Application:
7.3.1 Joomla! content management system update to a different patch, release or version number;
7.3.2 Third Party Application update to a different patch, release or version number;
7.3.3 browser software update;
7.3.4 operating system software update;
7.3.5 mobile operating system software update;
7.3.6 change of domain name server setup;
7.3.7 web hosting platform system software update.
7.4 The Customer may change the code of any one Template designed and supplied by the Company.
7.5 The Company will quote separately for any additional work requested by the Customer to change any one Template, Website and/or Third Party Application after the date of the Company's invoice.
8. Liability and Warranty Disclaimers
8.1 The Company supplies any one Template, Website and/or Third Party Application on an "as is" basis without warranty of any kind, either expressed or implied.
8.2 The Company does not give warranty that any one Template, Website and/or Third Party Application:
8.2.1 is free of HTML, CSS, PHP, Javascript and/or MySQL error;
8.2.2 complies with legislation, W3C Web Accessibility Initiative (WAI) accessibility guidelines, browser software releases, operating system software releases and/or web standards.
8.3 The Company shall have no liability to the Customer or any third party for any damages including but not limited to, errors, claims, losses, lost profits, lost savings, or other incidental, consequential, or special damages arising from the operation of or inability to operate any one Template, Website and/or Third Party Application on any one or all browsers, operating systems and devices even if the Company has been advised of the possibility of such damages.
8.4 The Customer shall defend, indemnify, save and hold the Company harmless from any and all demands, liabilities, costs, losses and claims arising from the Customer's use of any one Template, Website and/or Third Party Application supplied by the Company.