A) Standard Terms
1. Definitions and Interpretation
1.1 In these Terms of Service the following words shall have the following meanings:
“Company” means Wynchcote Limited.
“Customer” means any person, firm, company or any other party with whom the Company enters into a contract whether directly or indirectly.
“Contract” means the contract between the Company and the Customer which shall comprise these Terms of Service, the Order Confirmation and any Special Conditions.
“Contract Price” means the price charged for the supply of the Services in accordance with the Contract.
“Intellectual Property Rights” means any and all existing and future intellectual property rights whether capable of registration or not and whether registered or not including (without limitation) trademarks, trade names, patent rights, design rights, copyright, moral rights and know-how and (without limitation to the aforesaid) all intellectual property rights in all software, inventions, discoveries, developments, designs, processes, methodologies, concepts or techniques belonging to or developed by the Company or which the Company is authorised to use.
“Order Confirmation” means the order confirmation provided to the Customer (for example, the Company's invoice) detailing the Services and any Special Conditions.
“Services” means the products and/or services to be provided by the Company as set out in the Order Confirmation and any additional services to be provided by the Company in accordance with the Terms of Service.
“Special Conditions” means any additional terms and conditions applicable to the Contract which will be set out in or attached to the Order Confirmation.
"Template" means one Joomla!® template designed and supplied by the Company.
"Third Party Application" means any Joomla!® extension, component, package, plugin, module, template, language, library or other application not designed by the Company.
"Joomla! CMS" means one installation of the Joomla!® Content Management System.
"Joomla! CMS Bug Fix Release" means Joomla!® CMS release not accompanied by release notes which identify fixes for security issues.
"Joomla! CMS Security Release" means Joomla!® CMS release accompanied by release notes which identify fixes for security issues.
"Website" means one Joomla!® CMS as configured by the Company with or without one or more Templates and/or Third Party Applications also configured by the Company.
"Yearly" or "Annual" means every twelve calendar months.
"Quarterly" means every three calendar months.
"Monthly" means every calendar month.
"Weekly" means every seven days.
1.2 The Company reserves the right to modify these Terms of Service at any time and without notice at its sole discretion.
1.3 These Terms of Service supersede all earlier sets of terms of service and apply to every contract made between the Company and the Customer for the sale or supply of Services.
1.4 In the event of a conflict between the Standard Terms and any other terms set out in these Terms of Service then the Standard Terms of Service shall prevail.
1.5 These Terms of Service take precedence over and exclude any terms and conditions which the Customer may introduce.
1.6 In event of a conflict between these Terms of Service and any terms set out in the Order Confirmation (and any Special Conditions), the Order Confirmation (and Special Conditions) shall prevail.
1.7 These Terms of Service shall not create, nor be deemed to create, any partnership, joint venture or agency relationship between the parties.
2.1 A Contract will be created once the Customer signs and returns to the Company a duly signed Order Confirmation which has been signed by the Company or when the Company commences performance of the Services.
2.2 The Company will supply the Services in accordance with the Contract.
2.3 Any prices quoted by the Company in advance of the Order Confirmation shall be an estimate only and shall not constitute an offer to the Customer capable of being accepted.
2.4 Failure or neglect by the Company to enforce at any time any of the provisions of the Contract shall not be construed nor shall be deemed to be a waiver of the Company’s rights hereunder.
2.5 If any provision of the Contract is held by a competent court to be invalid or unenforceable in whole or in part the validity of the other provisions and the remainder of the provision in question shall not be effected and shall remain valid and enforceable.
2.6 The Contract shall constitute the whole contract between the parties and no previous negotiations, quotations, correspondence or other communication prior to the date of the issue of the Order Confirmation shall form part of the Contract.
2.7 The Company shall not be liable for any delay in performing any obligations under the Contract if such delay is due to circumstances beyond its reasonable control and the Company shall be entitled (subject to giving the Customer full particulars of the circumstances and to using its reasonable endeavours to resume full performance without avoidable delay) to a reasonable extension of time for the performance of such obligations.
2.8 The contract will be governed by and construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
3 The Services
3.1 Time for the provision of the Services by the Company shall not be of the essence and whilst the Company will use reasonable endeavours to achieve the agreed dates for the provision of the Services, the Company will not be liable for failure to achieve those dates.
3.2 The provision of the Services by the Company may lead to a loss of business operating time or other interruption to service for the Customer or any relevant third party. The Customer acknowledges that such problems cannot be identified by the Company until it has commenced the Services and therefore the Contract Price (or such proportion of the Contract Price as the Company may in its absolute discretion determine) shall still be payable in full by the Customer and the Company shall not be liable to the Customer for any loss suffered by the Customer or any third party in the event of such problems (or similar problems) arising.
3.3 Should further work become necessary or should the required Services be found to be of a substantially different nature to that initially expected, the Company reserves the right to amend the Contract Price and/or charge additional fees in accordance with "Standard Terms Clause 4.3".
3.4 The Company reserves the right to change the dates for the provision of the Services provided that prior notification is given to the Customer.
3.5 Where the Services are to be provided (in full or in part) at the premises of the Customer or a third party, the Customer undertakes to ensure that:
3.5.1 the Company’s representatives have unrestricted and safe access to the relevant premises and working space, and
3.5.2 all relevant security and health and safety rules and procedures are brought to the attention of the Company’s representatives attending the relevant premises.
3.6 Where the Services are to be provided (in full or in part) at the premises of the Customer or a third party, the Customer acknowledges that, when calculating the Contract Price, the Company has assumed that it will have access to such premises without delay or restriction. If as a result of any delay or restriction on the access to such premises, the Company incurs additional expense in providing the Services, the Company shall be entitled to increase the Contract Price in accordance with "Standard Terms Clause 4.3". If the Services cannot be completed as result of access to the premises being restricted or denied, the Contract Price (or such proportion of the Contract price as the Company may in its absolute discretion determine) shall still be payable by the Customer.
3.7 If the Customer does not permit the Company to provide the Services or fails to take all steps within its power to facilitate the provision of the Services, the Company shall be entitled to increase the Contract Price in accordance with "Standard Terms Clause 4.3" and if the Customer fails (after receipt of a written notice requiring it to do so) to permit the Company to perform the Services, the Company shall be entitled to render an invoice as if the Services had been duly completed. Payment shall become due as if the Services had been completed.
3.8 If the work is to be funded by a third party grant provider (“Grant Provider”), the Customer must provide a copy of the relevant authority from the Grant Provider before provision by the Company of the Services. For the avoidance of doubt, the Contract is between the Company and the Customer and the Customer is responsible for payment of all fees payable under the Contract by the relevant due dates and non-payment by the Grant Provider to the Customer will not justify any delay in the payment of the fees to the Company.
3.9 The Customer will indemnify the Company against:
3.9.1 any liability which it may have to any of its representatives who are engaged in providing the Services as a result of the negligence of the Customer, its staff or agents and/or as a result of the Customer’s breach of contract, and
3.9.2 (without prejudice to the generality of the foregoing) any loss or damage which the Company might suffer as a result of the Customer’s breach of "Standard Terms Clause 3".
4 Prices, Charges and Payments
4.1 Unless otherwise stated all fees charged by the Company are not subject to VAT and all estimates are given exclusive of VAT.
4.2 The Customer shall reimburse the Company for all reasonably incurred travel, accommodation and other expenses relating to the provision of the Services. Travel expenses may be waived by the Company in respect of travel incurred by the Company's representatives to and from Customer premises at the sole discretion of the Company.
4.3 The Company reserves the right to increase the Contract Price to reflect any additional costs or expenses incurred or additional services provided by the Company and in the event that the Customer does not permit the Company to commence or provide the Services (or fails to take all steps within its power to facilitate the performance of the Services);
4.4 Any increase in the Contract Price pursuant to "Standard Terms Clause 4.3" shall be notified by the Company to the Customer in writing and the amount of the increase shall be invoiced to the Customer once the additional costs or expenses giving rise to the increase have been incurred by the Company or the additional Services provided.
4.5 All sums due to the Company from the Customer under the Contract shall be paid without any set-off or counterclaim.
4.6 Unless otherwise stated in the Terms of Service or the Order Confirmation or the Company's invoice, the Contract Price shall be payable by the Customer twenty-eight (28) days from the date of the Company’s invoice (“the Due Date”). Time is of the essence.
4.7 If payment remains outstanding after the Due Date then the Company may:
4.7.1 suspend all Services in respect of this Contract or any other contract between the Company and the Customer;
4.7.2 charge the Customer interest on outstanding sums at the rate of eight per cent (8%) per annum above the base lending rate pursuant to the Late Payment of Commercial Debts Act from the Due Date until payment in full is received in cleared funds;
4.7.3 charge the Customer for all costs and expenses incurred by the Company as a result of the Customer’s non-payment and in collecting the outstanding amount due;
4.7.4 terminate the Contract in whole or in part and seek to recover damages for breach of contract.
4.8 All Services remain the property of the Company until paid for in full.
4.9 If the Customer requires any alteration to the Services ordered after the supply of the Order Confirmation by the Company, the request must be confirmed by the Company in writing and the Company shall be entitled to increase the Contract Price accordingly.
4.10 The Company undertakes to accept payment for Services by electronic Bank Transfer or by Cheque. If the Company at its sole discretion agrees to accept payment for Services by any other form of payment then the Customer agrees to indemnify the Company for all resulting fees incurred by the Company.
4.11 Should the Customer become insolvent, be unable to pay its debts as they fall due, (being an individual or partnership) commit any act of bankruptcy, or (being a company) go into liquidation, have a receiver appointed or make any voluntary arrangement with its creditors or suffer any similar action to be taken then if the Services:
4.11.1 have been completed but not paid for the Contract Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary;
4.11.2 have not been completed the Company shall have the right to determine the Contract and suspend the provision of any further Services and recover from the Customer an appropriate proportion of the Contract Price to reflect the Services provided and all costs incurred by the Company in connection with the Contract.
5 Cancellation / Postponement
5.1 The Customer may not cancel or postpone any Contract except with the written agreement of the Company and on terms that the Customer shall:
5.1.1 pay for all unpaid work to date,
5.1.2 pay such cancellation or postponement fee as the Company may at its discretion consider reasonable, and
5.1.3 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 such cancellation or postponement.
6.1 Save as expressly provided in the Contract all warranties, conditions or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law. By signing the Order Confirmation and/or requesting the commencement of the Services, the Customer acknowledges that it accepts the Terms of Service in lieu of all implied terms, conditions and warranties.
6.2 The Company warrants that the Services shall be provided with all reasonable care and skill.
6.3 The Company shall be under no liability under the warranty in "Standard Terms Clause 6.2" (or any other warranty, condition or guarantee) if the Contract Price has not been paid in accordance with the payment terms set out in "Standard Terms Clause 4 Prices, Charges and Payments".
6.4 Any claim for breach of warranty must be notified to the Company within fourteen (14) days of discovery of the relevant fault or defect by the Customer.
6.5 The benefit of the warranty contained in "Standard Terms Clause 6.2" shall ensue only for the benefit of the Customer and shall not be assigned, transferred or otherwise dealt with.
7.1 Nothing in this Agreement shall exclude or limit the liability of the Company for death or personal injury caused by the negligence of the Company or any representative of the Company.
7.2 The Company shall not be liable to the Customer (or any party represented by the Customer) in contract, tort (including negligence), breach of statutory duty or otherwise for any indirect loss or consequential loss or damage (including (without limitation) loss of profit, loss of revenue, loss of goodwill, loss of business opportunity and loss of contracts).
7.3 Whilst the Company shall comply with its obligations under "Standard Terms Clause 6.2" the Company cannot guarantee the accuracy of the information, reports and advice (“Data”) which it provides in the course of the Services and accordingly the Company cannot accept any liability to the Customer (or any party represented by the Customer) should the Data prove to be inaccurate in any respect.
7.4 Save as provided in "Standard Terms Clause 7.1", in no circumstances shall the Company’s liability to the Customer exceed the amount paid by the Customer in respect of the Services.
7.5 Further and without prejudice to the foregoing the Company shall in no circumstances be liable for any loss or damage covered by insurance or which would normally be covered by insurance or for any loss or damage in excess of the Contract Price paid for the Services and the above limitations shall apply even in the case of a fundamental breach of a fundamental term or repudiation by the Company and even if further performance of the Contract is frustrated.
7.6 The Customer acknowledges that it does not rely on, and waives any claim for, breach of any representations or warranties which have not been confirmed in writing and that advice given by the Company regarding the Services which is not confirmed in writing is followed entirely at the Customer’s own risk.
7.7 The Company shall have no liability to the Customer or any third parties for any failure to carry out Services for reasons beyond it's control including but not limited to acts of God, telecommunication problems, software failure, hardware failure, third party interference, Government, emergency on major scale or any social disturbance of extreme nature such as industrial strike, riot, terrorism and war or any act or omission of any third party services.
7.8 Where the Customer purchases any product or service from a Third Party seller through following a link on the Company's website to such Third Party's website, the Third Party seller's individual liability will be set out in the Third Party seller's terms and conditions. The Customer should consult such terms and conditions.
8 Intellectual Property Rights
8.1 Nothing in this Contract shall be construed as assigning to the Customer or granting the Customer any interest in any Intellectual Property Rights in the Services and the Customer shall not at any time in any way question or dispute the ownership by the Company or any other party of the Intellectual Property Rights.
8.2 The Intellectual Property Rights in any material produced in the conduct of the Services are the exclusive property of the Company and the Customer shall not acquire any right, title or interest in such Intellectual Property Rights.
8.3 Any Intellectual Property Rights which are created or contributed to by the Company in the course of providing the Services belong to the Company and the Customer acknowledges that it shall have no right or interest in such Intellectual Property Rights and the Customer shall not be entitled to use it in any other form or in any other media without the Company’s prior written consent.
8.4 Without prejudice to the general rights of the Company under this "Standard Terms Clause 8", any software used or written by the Company during the provision of the Services shall be and shall remain the absolute property of the Company.
8.5 The Company shall retain copyright in all documentation, reports and other material which the Company creates. The Customer will not acquire any intellectual property rights in that publication or material and the Customer will not be entitled to use it in any other form or in any other media without the Company’s prior written consent.
8.6 It is acknowledged by the Customer that there is no warranty either express or implied on the part of the Company that the Customer can make use of the Services free from any infringement of the intellectual property rights of third parties.
9.1 Any notice required to be given under the Contract shall be delivered by hand or prepaid first class recorded delivery post to the address of the relevant party set out in the Order Confirmation. A notice delivered by hand shall be deemed served at the time of delivery and a notice served by pre-paid first class recorded delivery post will be deemed served on the second working day following the date of posting (provided that Saturday, Sunday and English Bank Holidays shall not be working days).
10. Age of Majority
10.1 The Customer, or the individual who executes this Contract on behalf of the Customer hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Contract, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Contract.
10.2 The Customer represents and warrants that the Customer is eighteen (18) years of age or older.
10.3 The Customer agrees to supply the Company with a current and truthful full name, email address, postal address, and telephone number. The Customer agrees to keep this information current and to inform the Company whenever any of this information changes.
11. Geographic Location
11.1 The Company restricts its offer of Services to residents of the United Kingdom (UK).
11.2 The Company will therefore not accept any order placed from an IP address located outside the United Kingdom.
11.3 When an order is received from an IP address located outside the United Kingdom (UK) the Company will without notice cancel the order, cancel any resulting invoice and close any resulting account.
12 Law and Jurisdiction
12.1 These Terms of Service are governed by and shall be construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.