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TERMS AND CONDITIONS
1. DEFINITIONS
1.1 In these Conditions, the following words and expressions shall have the meaning set out below:
Agreement means these Conditions read in conjunction with the Specification and Letter of Engagement.
Client means the individual or business named on the Specification attached.
DigiRyte is a trading name of DigiRyte limited (Company No:10189433).
Project means described by the Specification and governed by this Agreement.
Specification means the Project details in or annexed to the Letter of Engagement.
1.2 The construction, validity and performance of these Conditions and this order shall be governed by the laws of England and Wales.
1.3 All services provided by DigiRyte to the Client shall be governed by these Conditions not withstanding other terms stipulated at the point of order.
1.4 If there is any conflict between these Conditions and any other agreement made between DigiRyte and the Client, these Conditions shall prevail.
2. PROJECTS DEAL AND DEVELOPMENT
2.1 All specifications and conditions are drafted in the Letter of Engagement with respect to the assigned project.
2.2 Prices are stated in the Letter of Engagement provided by DigiRyte are valid for 30 days of the date specified in the drafted agreement. DigiRyte reserve the right to withdraw the terms prior to approval by the Client.
2.3 Projects' will only be developed, based on the client's specfications defined in the Letter of Engagement
2.4 Terms will not be deemed accepted until DigiRyte receive the Letter of Engagement and the Specification signed by the Client.
2.5 Subject to payment of the Fees and the provision of client content by the Client, DigiRyte agrees to design and implement the Project using reasonable endeavours and in accordance with the Specification, the Letter of Engagement and the other provisions of this Agreement.
2.6 DigiRyte shall notify the Client when the Project or any agreed part is available for approval testing. The Client shall advise DigiRyte of any errors in that version of the Project within 5 working days of notification by e-mail. DigiRyte will use reasonable endeavours to correct such errors.
2.7 If the Client notifies DigiRyte of any amendments to the original specification, the provisions of clause 3 shall apply.
2.8 If the Client does not notify DigiRyte of any errors within 5 working days of the Project being available for acceptance testing, the Project will be deemed to have been completed to a satisfactory standard and payment will be due in accordance with clause 4.
2.9 DigiRyte reserve the right to assign subcontractors to complete part or the whole of the Project.
3. IMPROVISED SPECIFICATION
3.1 Any improvisations to the Specification must be sent to DigiRyte by the Client in writing by e-mail. DigiRyte will assess the amendments required and discuss with the client an improvised Specification.
3.2 DigiRyte reserves the right to charge for any additional work and will provide the Client with an additional quotation as part of the improvised Specification. DigiRyte also reserve the right to request payment for amendments to the original Specification before continuing work.
3.3 The Client will be required to agree the improvised Specification in writing by email before work on the amendments can commence.
3.4 If the Client does not return the signed improvised Specification to DigiRyte within 5 working days, the Client shall be allowed not to require such amendments and the Project shall be assumed, complete with payment due in accordance with clause 4.
4. PAYMENT
4.1 The Client shall pay a deposit as requested by DigiRyte in the Letter of Engagement. DigiRyte will not commence any work on the Project until deposit monies are received by DigiRyte.
4.2 The balance of the price shall become due at the completion of the Project (or deemed completion in accordance with clauses 2 or 3).
4.3 All invoices must be settled within 30 days of the invoice date. Payment may be made by cash, cheque (made payable to DigiRyte Ltd) or bank transfer.
4.4 All prices quoted for work are subject to taxable charges at the prevailing rate.
4.5 Returned cheques will incur an additional fee of £50 per returned cheque. DigiRyte reserves the right to consider an account in default in the event of a returned cheque.
4.6 Payment can also be made through DigiRyte's Payment gateway portal.
5. OUTSTANDING PAYMENTS
5.1 DigiRyte reserves the right to refuse to undertake any further work for the Client if an invoice remains outstanding.
5.2 DigiRyte reserves the right to remove any work done for a Project from any computer systems and the internet if invoice payments are not received within 30 days of the invoice date.
5.3 If payment is not received within 30 days of the invoice date, interest will be charged at 8% above the base rate of the Bank of England and will continue to be charged on a daily basis until payment is received in full.
5.4 DigiRyte's removal of Project material does not relieve the Client of its obligation to pay the due amount. Clients whose accounts are in default agree to pay DigiRyte Ltd’s reasonable legal expenses and third party collection agency fees in the enforcement of these Conditions.
6. CLIENT OBLIGATIONS
The Client complies with the following conditions :
6.1 DigiRyte will not be liable for the Client’s failure to comply with any laws or taxes affecting e-commerce.
6.2 The resale or distribution of the Project in full or part is forbidden unless prior written agreement is made between the Client and DigiRyte.
6.3 DigiRyte may include developmental credits and links within any code, designs, builds or amends.
6.4 DigiRyte may include any work done for the Client within their portfolio of work.
6.5 Client has to provide any information or content required by DigiRyte, promptly. Failure to provide required information or content within 5 working days of request will result in payment being due for the work done in accordance with clause 4 and DigiRyte will not be liable for any failure to subsequently meet targeted dates for completion of any related task.
6.6 If a problem with the design or code arises which does not allow the original Specification to be met, DigiRyte may apply the nearest available alternative solution.
6.7 Client has to keep all passwords confidential at all times.
6.8 Clients are responsible for providing and maintaining suitable equipment telecommunications and support services to facilitate access to the Project.
6.9 If a choice of design is presented by the Client, only one solution is deemed to be given by DigiRyte as fulfilling the Project.
7. WARRANTIES
7.1 The Client warrants that it has the authority to enter into and perform this Agreement and has not entered into any other agreement which conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement.
7.2 The Client warrants that it has obtained and will maintain all necessary licences, authorisations and consents which are necessary for the Project, content and domain name.
8. COPYRIGHT AND OWNERSHIP
8.1 All design and development work carried out by DigiRyte for the client will become the property of the client on completion of the project and payment of all outstanding invoices.
8.2 Data which is gathered as a consequence of the operation of the website shall belong to and be the responsibility of the Client.
8.3 Where the Client terminates the Project before completion, all work done towards the Project remains in the Ownership of DigiRyte.
8.4 Publication and/or release of the graphic design within the Project may not take place before cleared funds have been received by DigiRyte Ltd.
8.5 The Client may request, in writing, DigiRyte's permission to use Project material (for which DigiRyte hold the copyright) in forms other than for which it was originally supplied. DigiRyte may, in its absolute discretion, grant this and may charge for the provision of the same.
8.5 If the client supplies material to DigiRyte, it is the responsibility of the client to obtain all necessary copyrights for its use and DigiRyte will assume this has been done. In this situation, the copyright shall be retained by the client.
8.7 Should the Client supply material to DigiRyte believing it to be copyright and royalty free, which subsequently emerges to have copyright and royalty limitations, the Client agrees to permit DigiRyte to remove and/or replace the file at the Client’s expense to be assessed on a quantum meruit basis. In this situation, the client indemnifies DigiRyte from any claim which arises regarding the use of material supplied to DigiRyte.
8.8 The Client agrees that DigiRyte hold no responsibility for any amendments made by a third party before or after a design is published.
8.9 DigiRyte reserve the right to use any artwork or printing they produce for the purposes of promoting their services.
9. AGREEMENT
9.1 The Agreement shall commence upon the date of signature on the Letter of Engagement and shall continue until receipt of invoice payment, unless terminated in accordance with clause 14.
9.2 Termination shall be without prejudice to any rights acquired by the parties during the term of the contract.
10. COMPENSATIONS
10.1 The Client agrees to keep DigiRyte fully indemnified on demand against any liability, damage, expense, claim or cost (including legal costs and expenses) suffered by DigiRyte as a result of the Client’s breach of any clause of this Agreement.
10.2 The Client agrees that DigiRyte is not liable for any claims, losses, costs incurred or damages due to any failure to carry out services within a given delivery timescale.
10.3 The Client agrees that DigiRyte is not liable for absence of service as a result of illness or holiday.
10.4 The Client agrees that DigiRyte shall not be liable for the website content, hosting and choice of domain name.
10.5 The Client agrees that DigiRyte shall not be liable for any infringement of copyright or proprietary rights, misinformation or delivery of defective products or services.
10.6 The Client will indemnify DigiRyte in relation to any liability arising in respect of the matters at 10.2, 10.4 and 10.5.
11. LIMITATION OF LIABILITY
11.1 Notwithstanding anything contained in these Conditions or the Specification, DigiRyte's liability to the Client in respect of the Project, in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the price for the Project specified in the Letter of Engagement.
11.2 Notwithstanding anything contained in these Conditions or the Specification, in no circumstances shall DigiRyte be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof (i) for any loss of profit, business, contracts, revenues or anticipated savings, or (ii) for any special indirect or consequential damage of any nature whatsoever.
12. FORCE MAJEURE
12.1 DigiRyte shall not be under any liability for any failure to perform any of its obligations under the order due to ‘Force Majeure’. Following notification by DigiRyte to the Client of such cause, DigiRyte shall be allowed a reasonable extension of time for the performance of its obligations.
12.2 For the purposes of this condition, ‘Force Majeure’ means fire, explosion, flood, lightening, Act of God, act of terrorism, war, rebellion, riot, sabotage, telecommunication problems, software failure, hardware failure, third party interference, official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the party affected thereby.
13. CONFIDENTIAL TERMS
13.1 The Client is responsible for keeping the password and username that may be assigned on registration confidential. The Client is fully responsible for all action and activities that take place under the Client account.
13.2 If the Client believes there has been unauthorised use of the account or suspects that confidentiality has been compromised, the Client must contact DigiRyte immediately.
13.3 In the event of termination or expiration of this Agreement, each party shall return or, if requested, destroy the confidential information of that party.
13.4 Each party will comply with its obligations pursuant to the Data Protection Act 1998.
13.5 DigiRyte and any third party associates agree that it will not disclose any confidential information relating to the Client without the Client’s express permission.
13.6 The Client agrees that it will not disclose any confidential information relating to DigiRyte.
13.7 DigiRyte shall use information provided by the Client: (a) to identify the Client in communication by phone, email, whatsapp or Skype; and (b) to contact the Client from time to time to offer them services or products which may be of interest to or benefit the Client.
14. TERMINATION
14.1 The Client may request in writing that DigiRyte cancel a Project. DigiRyte will only accept this request for termination if work on the Project has not yet begun. If work has already begun on the Project, DigiRyte will invoice the Client for the work carried out.
14.2 DigiRyte reserves the right not to work with any Client who has a site which it deems is unlawful or inappropriate, contains a virus or hostile program, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, contains adult content, commits a criminal offence, infringes privacy or copyright or any other questionable media at its own discretion.
14.3 DigiRyte reserves the right without notice to cancel, reject, refuse sale to or work with a Client without reason for such rejection or refusal.
14.4 DigiRyte reserve the right to cancel the Client’s email access: (a) if DigiRyte receive excessive spam complaints about the Client (b) it is suspected the Client is using the email account to send spam (c) DigiRyte suspect the Client is using the service to send pornographic, offensive or inappropriate material (d) Invoice payment is not made in accordance with these terms.
14.5 Should the Client go into compulsory or involuntary liquidation or cannot pay its debts in the normal course of business, DigiRyte reserves the right terminate the Project.
14.6 DigiRyte reserves the right to terminate a Project with the Client at any time without prior notification if it deems the Client to be in breach of any clause of this agreement. DigiRyte shall be the sole arbiter in deciding what constitutes a breach. The Client shall not be entitled to refunds of any payments made to DigiRyte.
14.7 If the Project is terminated by either party then DigiRyte will be entitled to payment for work done to that date. The invoice for such work must be paid by the Client within 30 days of receipt failing which DigiRyte shall be entitled to payment of the full price of the Project forthwith.
15. WEB AND MOBILE APPLICATION - DESIGN AND DEVELOPMENT
15.1 The web or mobile designs offered by DigiRyte can be used only on one domain. The Client is not permitted to use a design on more than one web or mobile application applicable without prior written agreement from DigiRyte.
15.2 Once client received designs from DigiRyte, client will have 10 days to respond and request changes. If a request or response is not received within this time period, the design shall be considered approved and DigiRyte shall proceed to the integration stage following receipt of any payments due. The same 10 day rule applies after each update following an amendment request.
15.3 Once integration is complete, the client will have 10 days to respond and request further changes. If a request or response is not received within this time period, the project will be considered complete and DigiRyte shall proceed to the Go Live process following receipt of any payments due at this stage. The same 10 day rule applies after each update following an amendment request. If details required by DigiRyte to publish the site/app to the web have not been provided by the client at this stage, the entire code of the web/mobile application will be made available to the client for download and the project will be considered delivered. The client will have a further 10 days from this point to download their copy of the code before the download links are removed.
15.4 DigiRyte cannot guarantee the working of web/mobile applications on all versions of browsers, all versions of operating systems, all screen sizes, all versions of web or mobile application development platforms, frameworks and libraries.
15.5 The Client agrees that all web/mobile applications will be hosted by DigiRyte unless otherwise agreed in the Specification and client also agrees that any third party paid or unpaid packages and middlewares used to develop the web and mobile applications may stop working any time during the development and post development. Client also acknowledges that these impacts are not within Digiryts’s control and considered as out of scope.
15.6 DigiRyte may from time to time recommend to the Client that updates are needed to their web/mobile applications to comply with, but not limited to, the following: new legislation, software releases, frameworks or library package version upgrades. DigiRyte reserves the right to charge for these updates as additional work.
15.7 The Client agrees that no liability will be attributable to DigiRyte in the event of web/mobile application downtime or the inability to operate the web/mobile applications due to any error in the code or others.
15.8 Should the Client supply material to DigiRyte believing it to be copyright and royalty free, which subsequently emerges to have copyright and royalty limitations, the Client agrees to permit DigiRyte to remove and/or replace the file at the Client’s expense to be assessed on a quantum meruit basis.
16. HOSTING, MAINTENANCE AND SUPPORT
16.1 The Client agrees that DigiRyte is not liable for any bugs, performance issues or failure of their code in any environment such as development, testing, staging, pre-production or production.
16.2 The Client agrees that no liability will be attributable to DigiRyte in the event of web/mobile application downtime or the inability to operate the web/mobile applications due to any error in the code or others.
16.3 The Client agrees that DigiRyte or its agents will not be liable if they fail to register such domain names as requested by the Client. DigiRyte and its agents will use its reasonable endeavours to ensure such registration.
16.4 DigiRyte will quote for any work involved in changing the web/mobile application design or code in order for it to work with updated browsers, domain name, hosting, version changes of operating systems, programming languages and its supporting frameworks or libraries.
16.5 DigiRyte will charge the client for any additional effort or cost involved in development due to upgrades of software, framework, librarie, server maintenance, hosting, spec upgrade and any other changes as such.
17. RELATIONSHIP
17.1 Nothing in this Agreement shall be deemed to create a partnership or joint venture or contract of employment of any kind between the parties.
18. ENTIRE AGREEMENT
18.1 Each party agrees that this Agreement sets out the entire agreement between the parties and supersedes all previous agreements.
19. WAIVER
The failure by DigiRyte to enforce any of these Conditions at any time or for any period will not release or exonerate or in any way affect the liability of the Client or be a waiver of:
19.1 the right of DigiRyte at any time afterwards to enforce each and every clause of these Conditions; or
19.2 any penalty attached to their performance.
20. AGREEMENT SEVERENCE
20.1 If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.
21. TIME
21.1 Throughout the Project, time shall not be of the essence, except where it is expressly stated to apply.
22. THIRD PARTY RIGHTS
22.1 Pursuant to s 1(2)(a) of the Contracts (Rights of Third Parties) Act 1999 the parties intend that no term of this agreement may be enforced by any person who is not a party to this agreement.
23. ASSIGNMENT
23.1 This Agreement shall be binding upon the parties and their respective successors and permitted assignees, and references to a party in this agreement shall include its successors and permitted assignees.
24. GOVERNING LAW
24.1 This Agreement shall be governed by and interpreted in accordance with English law and the English courts shall have jurisdiction to resolve any disputes between the parties.
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