Freetimers Communications Limited
Standard Terms and Conditions December 2013
Agreement: any written or other agreement between the Customer and Freetimers to carry out Work.
Agreement Documentation: all written and electronic communications from Freetimers to the Customer setting out the Work.
Customer: the person, firm or company who purchases Work from Freetimers.
IPR: patents, copyright, trademarks, trade names, domain names, design rights, database rights, programming code, moral rights and any other intellectual property rights whether registered or unregistered in any part of the world.
Materials: the content including but not being limited to; words, text, diagrams, tables, images, designs, code and sound provided to Freetimers by the Customer for use in the Site.
Site: the Customer's website hosted by Freetimers
The Party(ies): the Customer and Freetimers
Work: work, software, code, the Site, products and/or services to be provided by Freetimers under any Agreements with the Customer.
Freetimers: Freetimers Communications Ltd, a company registered in England with Company number 4855607, Registered Office 78-90 Clarke Road, Northampton, NN1 4PW. Administrative offices at 78-90 Clarke Road, Northampton, NN1 4PW.
2 APPLICATION OF CONDITIONS
2.1 These conditions govern any Agreement between Freetimers and the Customer and prevail over any conditions contained or referred to in the Customer's documents or implied by law or course of dealing. The variation of any Agreement(s) shall be in writing and signed by or on behalf of the Parties. If any provision of any Agreement is found by any court to be invalid, unenforceable or illegal, the other provisions shall remain in force. Any Agreement is governed by English Law and the Parties agree to submit to the jurisdiction of English courts. All Agreements are made for the benefit of the parties to it and are not intended to benefit, or be enforceable by, anyone else. The Customer shall not without the prior written consent of Freetimers assign any of its rights or obligations under any Agreement. Freetimers may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under any Agreement.
2.2 In determining the Work that Freetimers agrees to carry out, only the Agreement Documentation shall be decisive. All verbal representations made by either Party shall be disregarded.
2.3 Any dispute or difference arising out of or in connection with an Agreement shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Vice President of the Chartered Institute of Arbitrators.
3 OBLIGATIONS OF THE PARTIES
3.1 Freetimers shall use reasonable efforts to manage and complete the Work, but any timescales given shall be estimates only and time shall not be of the essence.
3.2 The Customer shall co-operate with Freetimers in all matters relating to the Work and in a timely manner provide such access to the Customer's premises, marketing materials, photographs, written content and data and such information as Freetimers may reasonably request.
3.3 The Customer warrants that it owns the Materials. The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party IPR). The Customer shall be liable for infringement of a third party's rights arising out of use of the Materials and the Customer hereby indemnifies Freetimers in full in respect of losses, claims, costs, fines, damages or otherwise incurred due to such infringement. Should Freetimers discover that any Materials are being used in infringement of a third party's rights then Freetimers shall be entitled to suspend all Work until such infringement is remedied by the Customer. Freetimers reserves the right to remove content from the Site where it reasonably suspects such content is inappropriate content. Freetimers shall notify the Customer if it becomes aware of any allegation that content on the Site may be inappropriate content.
3.4 If Freetimers' performance of its obligations under an Agreement is prevented or delayed by any act or omission of the Customer or the Customer's agents, sub-contractors or employees, the Customer shall be liable to pay to Freetimers on demand Freetimers’ invoice for the Work carried out to that point.
4 ACCEPTANCE OF WORK AND/OR SITE
4.1 Freetimers may carry out such tests as it deems appropriate to commission any Work (if appropriate) and/ or the Site. Freetimers may notify the Customer when the Work and/or Site is commissioned. If the Customer uses any part of the Work and/or the Site for any revenue-earning purposes or the Site goes live on the internet upon the Customers instructions then the Work and/or Site shall be deemed accepted.
4.2 In the event it is decided and agreed by the Customer and Freetimers to make a site live, prior to full acceptance as described in 4.1, then the Customer should be aware that the warranty period described in section 8, begins on the day the site is made live (notwithstanding outstanding issues) and expires 3 months later.
4.3 If either party wishes to change the scope of the Work, it shall submit details of the requested change to the other in writing, and the Parties shall agree the change and the cost of the change. If no agreement is reached the change will not be implemented.
5 CHARGES AND PAYMENT
Freetimers will set out the price (and may set out a payment schedule) in any Agreement Documentation. Freetimers shall be entitled to recover the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred and work and products reasonably and properly provided by third parties plus VAT as anticipated by an Agreement which Freetimers shall add to its invoices at the appropriate rate. In the absence of a payment schedule the Customer shall pay each invoice submitted to it by Freetimers in full, and in cleared funds, within 7 days of receipt. Freetimers may, without prejudice to any other rights it may have, set off any liability of the Customer to Freetimers against any liability of Freetimers to the Customer. Where a Customer maintains multiple accounts with Freetimers, Freetimers may at its discretion consider all the accounts as a single account.
6 CONSEQUENCES OF FAILURE TO PAY
6.1 Without prejudice to any other right or remedy that Freetimers may have, if the Customer fails to pay Freetimers on a due date Freetimers may at its sole discretion:
(a) charge interest and late payment collection charges on such sums due from the presentation date of an invoice according to the government guidelines issued in The late payment of commercial debts (interest) Act 1998 on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
(b) suspend all Work until payment has been made in full; and
(c) switch off any and all Site(s) and associated services (such as email) that Freetimers hosts or provides; and
(d) cease maintenance and support for any Site Freetimers hosts; and
(e) terminate an Agreement under condition 10.1 (a); and
(f) sequester and use any Freetimers work including designs for its own benefit, for clarity this shall not include any Customer IPR, names, trade names or Materials; and
(g) if such failure occurs within the 90 day warranty period as defined in condition 8, the warranty shall be null and void.
(h) levy a reasonable charge to reinstate any services suspended under item c) above, and require receipt before reinstating the service.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 Save as described in clauses 7.2 7.3 & 7.4 below all IPR in any Work shall be owned by Freetimers. On acceptance Freetimers licenses all such rights to the Customer on a perpetual, non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Work. If Freetimers terminates an Agreement by reason of any of the conditions of clause 10.1 this license will automatically terminate and the Customer shall have no right to use the Work. The Customer retains all IPR in the Materials (if any).
7.3 Certain images provided by Freetimers may have been purchased under licence from stock image suppliers. These images are generally only licensed for use on the website being built. The licence may not permit them to be used in publicity material. If the Customer wishes to use any images from the site for other purposes Freetimers should be informed and a more appropriate license acquired.
7.4 Where Work has been undertaken or a Site constructed by Freetimers for the Customer, ownership of any graphic, screen or print design, database, code or programming and implementation of this in the Site or other Agreement carried out by Freetimers and accepted by the customer as part of that Work or Site will transfer to the customer only after payment in full has been received by Freetimers for the related Agreements. Where multiple Agreements are undertaken within a reasonably short time of each other for the Customer, Freetimers may at its option choose to view these as a single contract for determining if payment in full has been received and transfer of ownership to the client has taken place.
7.5 Freetimers’ website administration and content management system is Freetimers’ IPR. So long as the Customer website utilising the Freetimers’ system remains hosted by Freetimers, Freetimers provides the Customer with a non-exclusive free of charge licence to use it. For the avoidance of doubt the content management and website administration systems of shall not be transferred or licensed on termination. Fully paid designs graphics and bespoke programming work may be able to be transferred to the Customer on termination subject to extraction of the bespoke code from the underlying Freetimers’ system by Freetimers subject to payment of Freetimers’ reasonable costs to do so.
8.1 Freetimers does not warrant that the use of the Work and/or the Site will be uninterrupted or error-free. However, Freetimers warrants that the Work and/or the Site will conform in all material respects to the Agreement Documentation for a period of 90 days from the date of acceptance under condition 4 (Warranty Period). If, within the Warranty Period, the Customer notifies Freetimers in writing of any defect or fault in the Work and/or the Site, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Work and/or the Site, Freetimers shall, at Freetimers’ option, do one of the following:
(a) repair the Work and/or the Site; or
(b) replace the Work; or
(c) terminate the relevant Agreement immediately by notice in writing to the Customer and refund any of the charges paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Work and/or the Site to the date of termination).
9 LIMITATION OF LIABILITY
9.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from any Agreement. Nothing in these conditions excludes the liability of Freetimers for death or personal injury caused by Freetimers’ negligence; or for fraud or fraudulent misrepresentation.
9.2 Subject to condition 9.1:
(a) Freetimers shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss or for any special, indirect or consequential loss costs, damages, charges or expenses however arising.
(b) Freetimers total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of an Agreement shall be limited to a maximum of 125% of the fees paid by the Customer for the Work.
(c) Freetimers accepts no responsibility for the failure of a website to adhere to online trading laws in relation to a Customer’s business and a website built to a Customer approved specification in respect of that business.
(d) Freetimers accepts no responsibility or liability in respect of the failure of a website to generate sales, orders, enquiries, registrations or any other outcome sought or expected by the Customer.
10.1 Without prejudice to any other rights or remedies to which the Parties may be entitled, either party may terminate an Agreement without liability to the other if:
(a) the other party commits a material breach of an Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party; or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party;
(c) a receiver is appointed of any of the other party's assets or undertaking, or the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or the other party ceases, or threatens to cease, to trade.
10.2 Freetimers may terminate any and all services to the Customer on 30 days written notice, at Freetimers’ discretion.
11 FORCE MAJEURE
Freetimers shall have no liability to the Customer under an Agreement if it is prevented from, or delayed in, performing its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
12 POACHING OF EMPLOYEES
The Customer shall not, without the prior written consent of Freetimers, at any time from the date of an Agreement to the expiry of twelve months after the completion of the Work or the Termination of any agreement or relationship with Freetimers, solicit or entice away from Freetimers or employ any person who is, or has been, engaged as an employee of Freetimers. Any consent given by Freetimers shall be subject to the Customer paying to Freetimers a sum equivalent to 20% of the then current or most recent annual remuneration of the Freetimers’ employee.
13.1 Hosting Agreements shall commence on the date Freetimers commences hosting the Site (whether it be live on the Internet or not) and shall continue for a minimum period of 12 months provided that the Customer pays the invoices as and when the invoice falls due for payment, otherwise the hosting shall cease immediately and without notice. At 12 months and provided the Customer has paid up to date Freetimers shall renew the hosting for a further 12 month period and the Customer shall pay for that next 12 month period unless the Customer in writing notifies Freetimers otherwise prior to the start of the next 12 month period.
13.2 On expiry or termination of a hosting Agreement provided that the Customer shall have paid all outstanding charges of Freetimers up to date, if requested, Freetimers shall transfer to the Customer the Site and all Materials, and shall provide to the Customer an electronic copy of the Site and provide such assistance as is reasonably requested by the Customer to transfer the hosting of the Site to the Customer or another service provider, subject to payment of Freetimers’ expenses reasonably incurred, calculated on the basis of Freetimers’ current hourly charge out rates. For the avoidance of doubt the content management and website administration systems of Freetimers is Freetimers’ IPR and shall not be transferred or licensed on such termination. Fully paid bespoke programming work may be able to be transferred to the Customer on termination subject to extraction of the bespoke code from the underlying Freetimers’ system by Freetimers subject to payment of Freetimers’ reasonable costs to do so.
14 DOMAIN NAMES
14.1 All domain name purchase, renewal or transfer Agreements between Freetimers and the Customer are subject to the rules imposed by the issuing Registrar for the specific domain name type, as well as to Freetimers’ Terms and Conditions as defined herein and which take priority in terms of charges, payment and invoicing requirements.
Purchase and renewal prices for Top Level and other domain names are detailed on the Freetimers main website, at www.freetimers.com/domainpri.php, but can be varied from these at Freetimers’ option by agreement. Other terms and conditions pertaining to Top Level Domains will be governed by the Tucows ‘Exhibit A’ agreement as linked to on the aforementioned domain name prices website page.
14.2 Freetimers accepts no liability of any kind, consequential, direct or indirect, in respect of domain names being lost because of a failure to renew, or in respect of any downtime of an associated website and business or other work lost or delayed resulting from this.
14.3 The Customer should be aware that if Freetimers receives monies for domain name renewal later than 7 days prior to the renewal date, domain renewals may be delayed or lost and this could have serious commercial consequences. Top Level Domain names in particular (.com, .net etc), once expired, may be able to be recovered, but often only after paying considerable costs to the Issuing Registrar, and potentially requiring considerable time by Freetimers’ management and staff, which would only be undertaken on advance agreement with the Customer to make good the costs of the Registrar and Freetimers prior to Freetimers undertaking the work. In undertaking such work Freetimers would use reasonable endeavours but would not accept any liability to the Customer or otherwise should the process fail.
15 MAINTENANCE, SUPPORT AND INTERNET MARKETING SERVICES
15.1 If the Customer has contracted Freetimers to provide maintenance and support then Freetimers shall do so on the basis of the Agreement Documentation.
15.2 If the Customer has contracted Freetimers to provide internet marketing services then Freetimers shall do so on the basis of the Agreement Documentation.
16 PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES
16.1 If the Customer has contracted Freetimers to provide a service from a third party provider, such as for Broadband or Email Spam Filtering as examples only, Freetimers shall not be liable for any disruption to the service or any costs or losses of any kind, and the terms and conditions for the provision of that service from the provider shall pertain to the contract as if it had been provided to the Customer directly.
17 NOTICES AND AMENDMENTS TO THESE STANDARD TERMS AND CONDITIONS
17.1 Notices to the Customer from Freetimers will be deemed to have been served on the date of sending where such has been delivered in writing to the latest contact details provided to or evidentially used successfully by Freetimers, whether by email, fax or first class or registered post.
17.2 These Standard Terms and Conditions may be altered by Freetimers at any time at its sole discretion, with changes coming into effect 30 days from Notice being given as defined under 17.1 above.