Terms and Conditions (Design)

Contract Commencement

The client’s approval for work to commence shall be deemed a contractual agreement between the client and Westray Digital Art. Important: Approval for the work to commence and payment of the advance fee indicates that the client accepts the terms and conditions outlined in this document.

Payment

A non-refundable payment of 50 per cent of the total fee is due once approval is gained for any design, unless an alternative arrangement is otherwise agreed. Whilst any payment due under the agreement remains outstanding, Westray Digital Art shall be entitled at its sole and absolute discretion to withhold provision of any goods or services it would otherwise be obliged to provide under the agreement.

Full payment is due once the underlying structure and architecture is set up and website has been uploaded to the customers server. Westray Digital Art shall not be expected to wait for items that are the client’s responsibility before payment is due.

Westray Digital Art expects payment by cheque, electronic bank transfer or cash within 30 days of the date on the invoice.

Supply of Content by the Client

It is the responsibility of the client to provide or commission content for the pages of the site including good quality pictures unless otherwise agreed. Responsibility for copyright clearance for use of all materials supplied remains with the client, and the client unconditionally agrees that they are the rightful owner or have permission to use such materials, and will hold harmless, protect and defend Westray Digital Art from any claim arising from the use of these materials. The client will retain the right to all design content and html code created by Westray Digital Art in relation to this project.

Unless otherwise specified in the project quotation, this Agreement assumes that any text will be provided by the Client in electronic format (ASCII text files delivered on CD or via e-mail or FTP) and that all photographs and other graphics will be provided physically in high quality print suitable for scanning or electronically in .gif, .jpeg, .png .ai,.psd, .pdf, or .tiff format. Although every reasonable attempt shall be made by Westray Digital Art to return to the Client any images or printed material provided for use in creation of the Client’s Web site, such return cannot be guaranteed.

During the project Westray Digital Art will require the client to provide copy and images. If content is not provided within four(4)weeks of an official request by email, then Westray Digital Art an amount of no less than 50% of the remaining project cost will become immediately due and payable. The project will then be re-scheduled for completion on receipt of necessary content. Moneys billed under the above circumstance will not be refundable.

Development Process

Westray Digital Art will provide a draft of the design on its own server during development so that the client may view and comment upon the progress. When the website meets the specifications set out in the quotation with its specifications, it will be published to the client’s server and Westray Digital Art will invoice the client for any remaining amount due.

Westray Digital Art uses its best endeavours to ensure the website and other services remain functional at all time. However, Westray Digital Art cannot guarantee or warrant that the functions and content of the website or other services will be uninterrupted or error-free. Any problems will be dealt with as speedily as is appropriate to the content and function of the website and may be chargeable at our normal rate.

Once the website and other services meet the terms of the quotation with its specifications any modifications to the design will be considered an amendment to the contract. In the absence of a maintenance agreement the time and costs involved in making such changes will be charged to the client.

In the absence of a maintenance agreement, Westray Digital Art will fix all errors notified to Westray Digital Art in writing within thirty days of the site being put live on the Internet. If errors are reported after more than thirty days the time and costs involved in making such changes will be charged to the client.

It is usual for us to transfer existing domains to our preferred host server. The client will remain the owner of the domain with Westray Digital Art acting as the registered administrator. Invoicing for domain name renewals must be settled within the terms of the invoice. Failure to do so may result in a loss of the domain name and effort required to re-instate the site will be subject to independent and additional invoicing. Domain names and any associated web space are renewed annually and invoiced in advance to the client by Westray Digital Art. We must receive payment for these services by the date stated on the invoice. Failure to do so may result in a loss of the domain name and effort required to re-instate the site will be subject to independent and additional invoicing. To cancel domain names and/or web space, we require a minimum notice of 28 days before the annual expiration date.

Search Engine Submission and Results

Westray Digital Art will submit a client’s website to the major search engines.

Further work based on keyword popularity analysis, search engine optimisation based specifically around your organisation and its ‘competition’ can be arranged but is not part of the contract unless specifically included in the quotation. Any subsequent amendments to the website as a result of professional analysis may be charged to the client. Westray Digital Art can accept no responsibility or liability if any search engine, online directory or search site chooses not to list a client’s web site.

Unforeseen and Additional Costs and Expenses

The transfer of domain names to another server can sometimes become a complex and timeconsuming matter. All administrative fees to third parties and the time taken to organise the transfer will be charged to the client irrespective of any quoted amount set out in the quotation with its specifications.

Additional costs incurred in the provision of: stock photography; electronic commerce software; online transaction processing solutions; domain name registration; security certificates; web space; Internet connection provided by third parties are non-refundable.

Additional features to websites, including extra database services, specific hosting requirements, animations that are not included in the quotation are subject to surcharge. In the event a feature is required which has not been included in the quotation Westray Digital Art will give notice prior to implementation and seek acceptance of the surcharge. The cost will be added to the final invoice unless the amount exceeds £500 in which case an interim half payment will be invoiced before implementation and the remainder will be added to the final invoice.

Design Standards

Westray Digital Art makes every effort to design pages to current web standards and thus display well in the most popular current browsers, but cannot accept responsibility for pages which do not display acceptably in new versions of non-web standard browsers.

All sites designed by Westray Digital Art will adhere to W3C standards where possible.

Website Hosting Services

Westray Digital Art offers hosting and if required will issue an additional set of Terms and Conditions.

Billing for registration of domains and Web space will occur once they are set up and must be settled within 30 days.

Ethical Issues

We reserve the right to refuse to provide services for a website or associated services which does not accord with our ethical policy or that we judge to be unfit due to content or otherwise. This includes, but is not limited by, sites containing adult oriented material such as pornography, sites which promote hatred towards persons belonging to any ethnic group, religion or sexual orientation and sites which infringe copyright or are contrary to UK or other relevant national or local laws or regulations.

Website Maintenance

Where Westray Digital Art undertakes to maintain or update a client’s website a system of communication will be established that meets the needs of both the client and of Westray Digital Art to carry out the maintenance to a service level agreed.

Westray Digital Art agrees that it shall use its reasonable endeavours to respond to any request received by the Customer for the Maintenance Services within certain designated timescales, Westray Digital Art and the Customer agreeing on the level of urgency of each request made to Westray Digital Art by the Customer under this Agreement.

The timescales shall be as follows:

  • for non-urgent requests within 120 hours
  • for normal requests within 72 hours
  • for urgent requests within 48 hours
  • for critical requests within 24 hours

Payment for maintenance is usually by monthly or yearly fees to be paid in advance and is reviewed and renewable annually.

Unused time cannot be carried over to the next month or year but may count towards a discount for the following years maintenance.

Maintenance Cancelation and outstanding hours

Where the client cancels a maintenance contract and has outstanding hours at the end of any term no refund will be given towards any unused time left in the maintenance time period.

Westray Digital Art will no longer be responsible for the site upon completion unless an alternative agreement has been reached.

Data Protection

Where the operation of the website or other services provided by Westray Digital Art involves the collection and administration of personal data the client is deemed to be the Data Controller and as such is responsible for notification under the terms of the Data Protection Acts and related regulations.

The client shall indemnify Westray Digital Art against any actions, costs and liabilities arising from the use in good faith by Westray Digital Art of personal data provided by the client or through the client’s website.

Where your website involves e-commerce functionality, the client must ensure that suitable arrangements are in place to maximise security levels with regard to financial and personal information relating to the users of the website and other services. This may necessitate the use of secure electronic protocols, authentication certificates, encryption et cetera and may require the provision of secure server facilities and/or the use of a credit card clearing service.

Where a service is provided relating to e-commerce whereby visitors to the client’s website can order goods or services through the website – whether through direct or indirect payment the client undertakes to ensure that all transactions are carried out legally and fairly, that the security of personal information and of financial information is maintained and that the collection and control of that data meets the requirements of the Data Protection Acts and regulations.

The client is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to the website or any other services contemplated, and will hold harmless, protect, and defend Westray Digital Art and its sub-contractors from any claim, suit, penalty, tax, fine, or tariff arising from the website or other services provided.

Communication and Site Visits

Westray Digital Art preferred method of communication is by email. Invoices will be sent by email and shall form a legal document just as if sent by traditional post.

Extensive site visits should not be necessary and the majority of design approval will be undertaken using the Internet, electronic files or other means. Site Visits requested by the client beyond that which Westray Digital Art considers reasonable will be charged at £30 per hour (excluding local, within Orkney, travelling time) plus reasonable travel expenses not less than the actual costs incurred.

The design process will be undertaken by telephone conferencing, sample Internet design publication on Westray Digital Art ‘s website, file design submission on computer disk, or other method as appropriate to the client’s particular circumstances.

Quotations and Tenders

Tenders and Quotations are valid for thirty days from the date on the tender or quotation. All prices quoted may be subject to change after this period.

Advice and Consultancy

Any advice given in respect of software, hardware, programming, design, purchasing, hosting, training, upgrading, installing or any other advice, suggestion, recommendation or otherwise of any product or service provided by us or by a third party, whether introduced by us directly or indirectly is accepted by you as an opinion and as such you agree that prior to acting on any of the aforementioned that you will first obtain professional advice. You further agree to indemnify us of all liability with regard to any decision or action performed by you that may or may not be a direct or indirect result of any contact or dealing with us.

Our consultancy service and general advice is, by its nature, subjective. It is up to you whether you decide to follow our ideas and suggestions. It is not possible and we do not guarantee that any of those ideas and suggestions will increase traffic to your site, improve your ratings with search engines or boost sales.

Right to Assign

This Agreement is personal to you and you may not assign it without our prior express written consent. Should you transfer ownership of the website as part of a transfer of ownership of a business then the new owners will need to come to a new agreement with Westray Digital Art.

Cancellation and Termination

Westray Digital Art may, by written notice, terminate the Agreement between us immediately upon the happening of any of the following events:

You fail to pay any invoice which has become due;

You commit a material breach of any of the terms of the Agreement between us;

You enter into or propose a voluntary arrangement or composition with your creditors or reconstruction of your debts or your directors make a declaration of solvency for the purpose of a members’ voluntary winding up,

or if notice is given of a creditors’ meeting in connection with a creditors’ winding up,

or if a special resolution is passed that you be wound up by the court, or if an administrative or other receiver is appointed,

or if the court makes and administration order or order that you be wound up by the court, or if you cease to carry on business

or are unable to pay your debts within the meaning of the Insolvency Act 1986 Section 123.

Should Westray Digital Art decide to terminate the agreement between us immediately upon the occurrence of one of the above circumstances, we reserve the right to exercise any other rights which we may have against you.

We reserve the right to remove from the Internet any website or other service which we display on your behalf upon the occurrence of one of the above circumstances. Should we terminate the Agreement upon the occurrence of one of the above circumstances, we will not refund to you any monies paid by you to us.

If at any point during the development a client wishes to cancel, they may do so but will be invoiced up to the full amount quoted based on the degree to which the work has been completed and on the extent to which time has been allocated to the project that cannot be effectively used to generate revenue that would be otherwise lost.

Limitations of Liability.

Where Clients use a third party product or service (e.g. Macromedia Contribute for website editing or Worldpay for e-commerce) then their relationship is exclusively with the supplier of that product. Though Westray Digital Art may introduce these products and services, it is entirely up to the Client to inform themselves both as to benefits and risks and to correct usage.

The Client should note that the internet is operated by many companies not under Westray Digital Art control, and that it is therefore not possible for Westray Digital Art to guarantee quality of service beyond using reasonable endeavours to solve Client issues.

Westray Digital Art can in no circumstances be liable for any consequential loss on the part of the Client howsoever caused.

Westray Digital Art shall not be liable for the loss or delay of any email directed to or from an email address supplied under the Westray Digital Art service. Clients are advised that it is their responsibility to perform regular checks that their Westray Digital Art email is fully operational.

Westray Digital Art shall not be liable for breaks in service or availability of the Client’s website, except insofar as it will extend the hosting period paid for proportionately to any such break in service.

Westray Digital Art shall not be liable for the misuse of data of any kind associated with the website and obtained in a fraudulent or illicit manner by third parties.

Waiver and Interpretation

Should Westray Digital Art waive any of these terms on an individual basis, this shall not affect the validity of remaining clauses or commit Westray Digital Art to waive the same clause on any other occasion.

These terms and conditions shall prevail over all terms and conditions of your customary practice or any previous course of dealing between us and you. Any variation to these terms and conditions shall be inapplicable unless agreed between ourselves before we commence any work on your behalf. Work, services or products are only supplied in strict accordance with these terms and conditions.

The provision of work, services or products by us is only undertaken on the understanding that you have read and accept these terms and conditions in full.

By agreeing to these terms and conditions your statutory rights are not affected.

These terms constitute the entire agreement between Westray Digital Art and the Client, notwithstanding any previous agreement be it written or oral or in any other form. Headings are indicative only, and should not be used to further define any clause. Any variation to these terms are valid only if agreed in writing and signed by a P Hellewell proprietor of Westray Digital Art.

Amendments

Westray Digital Art reserves the right to update and amend these terms and conditions at any time without notice.

Testimonial, Reference and Links

Westray Digital Art retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios.

Westray Digital Art retains the right to refer other prospective clients to your website as testimonial or reference material.

Westray Digital Art reserves the right to a reasonable credit on the website with a hyperlink to its own website. This would normally be a footer or some other none obtrusive text or graphic.

Trading Name

Westray Digital Art is the trading name used by sole proprietor Phillip Hellewell trading as Westray Digital Art at Links House, Westray, Orkney, KW17 2DN, United Kingdom.