1. Definitions
In these Terms and Conditions:
“Vitty” means Vitty – trading name of Briggs International Ltd of 75 Eastwood Road, Kimberley, Nottingham, NG16 2HX,
“Client” means the person or organisation Vitty has offered to provide any services to,
“Quote” means the initial detailed requirements of the Client in relation to the Services accepted by the Client,
“Services” means any and all services which Vitty and the Client have agreed that Vitty shall provide to the Client,
“App” means a piece of application software,
“Product” means any new website, module for incorporation into an existing website, or App to be developed or improved by Vitty for the Client as part of the Services,
“Approval Body” means the body responsible for approving an App prior to it being released for sale to the general public,
“Fees” means the fees and expenses which Vitty and the Client have agreed that Vitty shall be paid for the provision of the Services as set out in the Quote (and, where appropriate, as adjusted in accordance with Clauses 3, 5, 6, 7 and 8 of these Terms and Conditions in relation to any different or additional work provided, time expended, or failure on the clients part to abide by the terms and conditions),
2. Appointment
The Client appoints Vitty as an independent contractor to provide the Services in accordance with these Terms and Conditions, which shall apply irrespective of any other terms which might accompany or be set out on any order, and the Client will not be able to cancel this appointment without Vitty’ consent.
Vitty reserves the right to assign portions of the Project as required to third parties. Where this happens, Vitty will inform the Client prior to assignment of the portion of the Project.
3. Provision of the Services
Vitty undertakes to carry out the Services in a professional manner which reflects its experience and ability, and shall meet any reasonable timescale set out in the Quote or otherwise agreed in writing with the Client.
In turn, the Client agrees to pay Vitty in full for the Services in accordance with Clause 8. Any Services requested by the client not within the original Scope of Works shall be treated as additional chargeable Services and will incur additional fees to be agreed in writing by Vitty and the Client.
Vitty cannot be responsible for anything which is beyond its reasonable control – which includes delays which have been caused by the Client failing to:
– Provide Vitty with prompt assistance (including complete and accurate text, images and other information) as and when it needs it,
– Attend any jointly arranged meetings,
– Provide feedback and sign-off approvals in a timely manner, or
– Adhere to the payment schedule set out in the Quote.
Where the Services involves the development of a website for the Client for which Vitty is not arranging the hosting, completion of the Services shall take place by Vitty providing the Client with a package of the website for the Client to install (at no extra charge) or fully set up using the Client’s preferred host (fees will apply).
4. Domain Names
Where the Quote requires Vitty to research possible domain names for the Client, it is the Client’s responsibility to satisfy itself that any domain name suggested is appropriate to the Client’s business and does not violate any registration services’ policies, or any laws or regulations. Vitty cannot promise that any domain name it suggests will be available by the time registration is attempted. Neither can it promise that any domain name registered will not result in confusion with any other business or website.
Where the Services involves the development of a website for the Client for which Vitty is not arranging the hosting, Vitty will not be responsible for maintaining or renewing any domain name for the Client’s business.
Where the Client’s website is hosted by Vitty, Vitty is responsible for maintaining and renewing the domain name. The domain name will be renewed automatically using part of the Licence Fee.
5. Design Services
- 5.1. Product Design
Vitty will create initial designs (number to be agreed with Client) for the look-and-feel, layout and potential functionality of the Product, and will then develop whichever one of these is selected by the Client into a finished Product which complies with the requirements of the Quote.
At appropriate stages of the development of the Product, (from and including the creation of the initial design options) Vitty shall submit its work to the Client for approval. Vitty shall be entitled to assume that such work is approved (i.e. that the Client is satisfied that it meets its needs,) unless the Client informs Vitty otherwise, in writing, within seven days of receiving the request for approval.Where the Client requests changes to the work, Vitty will provide an agreed number of design iterations to respond to the Client’s comments. If further comments are then made on the revised design, any subsequent design iterations will be outside of the original Scope of Works set out in the Quote and therefore liable for a proportionate additional fee. Changes that are considered by Vitty as a notable departure from the original scope of work, or require significant redesign will be subject to an additional fee at Vitty’ discretion. Therefore the Client has the responsibility to ensure that the original Scope of Work accurately reflects their requirements and any subsequent comments provided to Vitty are comprehensive and cover all of their concerns.Where the Client is requested to choose between two or more options and fails to advise Vitty of its choice within the required period of seven days, Vitty shall be entitled to make the choice on behalf of the Client – and any subsequent changes to that choice shall be chargeable additional works.
- 5.2. Text content and Photographs
The Client is responsible for providing Vitty with a digital format of any content as is required for the Product and future agreed variations to the Product, unless agreed otherwise.The client will provide these images in an acceptable digital format. Formats acceptable are via Email, Google Drive, OneDrive or file transfer websites such as WeTransfer. It is not Vitty’s responsibility to ‘fetch’ these images on your behalf.The client shall also make every effort for the photographs to be an acceptable quality and resolution and taken as professionally as possible. Professional photography services are available from Vitty if required. Vitty reserve the right to reject imagery for use within its work on the grounds of poor quality.
Vitty will not intentionally upload, publish or allow to be published, any illegal, harmful, inaccurate or offensive material. Neither will it intentionally violate anyone’s intellectual property or confidentiality. The Client therefore warrants that:
– Any content supplied by the Client for uploading as part of the Product is accurate and complies with all applicable laws, rules, regulations and guidelines (including, where appropriate, the Distance Selling Regulations and the Financial Services legislation) and
– It either owns or has all of the permissions it needs to enable Vitty to publish all the information, images, graphics, designs, photographs, trademarks, and other materials which the Client provides to Vitty for use in connection with the Product.
- 5.3. Testing
Vitty will test the Product, and will test websites in current versions of all major browsers including those made by Apple, Microsoft, Mozilla, Google and Opera. For mobile sites, Vitty will test them on both IOS and Android operating systems, but cannot guarantee that the website will be fully optimised for every brand of mobile device nor every version of the operating system or browser app available on it. However, it is the Client’s responsibility to fully test the Product prior to approving it. Once an element of the Product has been approved by the Client in accordance with Clause 5 above, Vitty shall have no further responsibility for it, and any further changes to it shall be treated as additional chargeable works.
- 5.4. App Approval
Once approved by the Client, subject to Vitty having received payment of all the Fees, Vitty will then submit the App to the Approval Body for approval.Unless the App is rejected by the Approval Body due to any failure on the part of Vitty to comply with its obligations under these Terms and Conditions (in which case, Vitty shall promptly take all steps necessary to rectify such failure to comply without additional charge), any amendment or update of the App, or any re-submission of it to the Approval Body for approval shall constitute additional chargeable services for the purposes of Clause 3.
- 5.5. Social Media and Email
Upon agreement, Vitty will set up the agreed social media and email services that are set out in the Quote. However, Vitty has no responsibility for setting up desktop based email clients and unless the Client has signed up for Managed Marketing, they have no responsibility for updating social media or issuing email newsletters. Vitty also has no responsibility or liability for the information that passes through them.
- 5.6. Post-completion Support and Design
Vitty agrees to offer FREE Support to the Client. Support includes issues with website availability, inability to access emails, and error messages.Free Support does not include updating or creation of imagery or content, alterations to design or layout to the product and issues caused by misuse of the product. Such requests will be considered to be Chargeable Support.Vitty reserves the right to use discretion over what constitutes Free Support. Any changes deemed not to fall under the definition will be considered to be Chargeable. Chargeable Support will be charged on the basis of time and complexity of the Support required and will be fully quoted and agreed before it is undertaken.
- 5.7. Copyright
The Client guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork that provided to Vitty for inclusion in the Product are either in the ownership of the Client, or that the Client has permission to use them for the purposes of the Product.
Upon receipt by Vitty of the Fees in full, copyright in the various elements of the Product will automatically be dealt with as follows:– Ownership of, and copyright in, the graphics and other visual elements that Vitty have created for the client and have been used in the Product will automatically be assigned to the Client. (Ownership and copyright in any rejected designs or design elements will remain with Vitty.)
– Vitty will grant the Client a sole worldwide license to use the code and software used in the Product which has been written by or on behalf of Vitty specifically for that purpose.
– Vitty will grant the Client a non-exclusive worldwide license to use within the Product all other code and software used in designing and creating it.
– All source code shall be retained by Vitty.At the Client’s request and expense, Vitty will be prepared to sign any additional documentation necessary to evidence the above assignment/licenses.
A credit line suitable to the design of the pages will be used stating the services that are provided by Vitty. Client agrees to pay an additional fee, excluding expenses, for failure to include credit line.
- 5.8. Abandonment and Cancellation of the Project
If the Client fails to respond to a written request by Vitty within 30 days, the Project will be considered to be abandoned and will be closed. Vitty will inform the Client of the closure of the Project in writing; should the Client wish to reopen the Project, this will be subject to an administrative fee.In the event of Abandonment or Cancellation of the Project, Vitty will be compensated for services performed through the date of cancellation in the amount of a prorated portion of the fees due. Upon cancellation all rights to the website revert to the Vitty and all original art must be returned, including sketches, comps, or other preliminary materials.
6. Monthly Services
- 6.1. Terms
Subject to the terms and conditions of this Agreement and as requested within the Scope of Work, Vitty will provide monthly services for the Client subject to the following terms:
a) Length of Service.
Client agrees to an initial twelve (12) month contractual term of service (“Term”). The length of contract required is based on the type of service desired by Client and shall be determined solely by Vitty.b) Service Start Date.
The first payment plus setup charges, shall be due in advance of any service provided. Service shall begin upon receipt of payment by Vitty for such first Term of service or upon a mutually agreed upon alternate date.c) Renewal by Client.
This Agreement will automatically renew for successive twelve (12) month Terms unless cancelled in writing by Client at least 30 days prior to the end of Term renewal date. Renewal prices are subject to change. Renewal of services by Client indicates agreement to any Contract revisions and price changes. Renewal fees for the following term will be automatically invoiced to Client’s account.
- 6.2. Domain names
Where indicated in the Scope of Services, Vitty is responsible for maintaining and renewing the domain name. The domain name will be renewed automatically using part of the monthly Licence Fee.
- 6.3. Web Hosting
- 6.3.1. Terms of Payment
If payment of hosting fees is not received by the due date, Vitty shall be entitled to suspend or remove the Client’s website from the hosting servers without penalty, and without liability for any resulting loss or corruption of data – meaning that the Client’s website will no longer be accessible for either the Client or others to view or modify it. The Client will be liable for any costs arising from necessary actions by Vitty to recover unpaid Fees.
- 6.3.2. Censorship
Vitty will has no responsibility or liability over the content of the information passing through the network, email or web site. However, any content which contravenes the Terms of Service or the laws of England will result in the website being suspended, contract terminated and the Client will be liable for all costs arising from any legal action.
- 6.3.3. Transfer to/from Vitty servers
When transferring the hosting of a website to or from Vitty’ servers, access to the website and any associated email accounts cannot be guaranteed. The transfer process usually takes between 24-72 hours and can be arranged at the Client’s convenience.
Any delays on incoming transfers beyond the initial 72 hours will be investigated by Vitty. Vitty specifically denies any responsibilities for any damages arising as a consequence of website or email unavailability.
- 6.3.4. Technical issues
Vitty actively monitors and maintains its servers to perform at optimum standards. It cannot guarantee that access to the Client’s website will be uninterrupted because there are many matters which are outside of its control. However, Vitty will, within 48 hours, investigate with the Hosting Company any report received from the Client indicating that its website is inaccessible. It will then work with the Hosting Company with a view to them finding a solution.
Where the Client’s inability to access its website was not due to hosting problems, Vitty shall be entitled to charge for the time spent in investigating the problems at its then current hourly rate.
- 6.3.5. Warranties
Vitty makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. Vitty also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of Client. Use of any information obtained by way of Vitty is at Client’s own risk, and Vitty specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of an end-to-end connection.Vitty does not represent guarantees of speed or availability of end-to-end connections. Vitty expressly limits its damages to Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Vitty specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
- 6.3.6. Trademarks and Copyrighted Material
Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.
- 6.4. Sponsored social media advertising and PPC campaigns
Vitty will work professionally in order to try and accomplish the desired results of ad and PPC campaigns. However results are never guaranteed and by working with Vitty, the Client understands and agrees that success is not guaranteed and Vitty cannot be held responsible for failing to meet goals and targets set by the Client. It is also understood and agreed by the Client that Vitty has no control over third party services such as Facebook, LinkedIn and Google, nor do they have any control over changes to the advertising platforms and search algorithms.
- 6.5. Cooling-off period
On signing up to the License Fee, the Client has a 30 days cooling-off period in which they may cancel the contract and be entitled to a pro-rata refund of fees paid minus fees for the domain name and set-up costs.
- 6.6. Cancellation of monthly services
Either party may cancel the Client’s hosting arrangements at any time upon 30 days’ notice in writing. If the Client cancels, it will not be entitled to a refund of any pre-paid services.
7. Client Data and Information
Both Vitty and the Client shall take all reasonable steps to protect the Client’s data, including maintaining up-to-date anti-virus and other protection systems. However, the effectiveness of these systems cannot always be guaranteed, and so Vitty cannot guarantee that any files it provides or maintains will either be or remain uncorrupted and free of malicious code.
The Client must ensure that its data (including website content) is backed up at appropriately regular intervals, including immediately before any changes are made.
Vitty will not, without the Client’s consent, disclose or use (other than as necessary in order to create and publish the Client’s website/App and arranging hosting,) any of the Client’s information which Vitty understands to be commercially sensitive.
Vitty cannot be held responsible for matters outside of its reasonable control including (but not limited to) the actions of third party suppliers used by the Client; the actions of hackers; or the malfunctioning of any websites or other services due to problems with web browsers, the Client’s I.T. infrastructure, third party platforms or third party interference.
8. Charges and Payments
The Client shall pay the Fees in accordance with the schedule set out in the Quote. Payments can be made by cash, cheque or bank transfer – payee details available on the Quote or on request – or Direct Debit (in the case of reoccurring fees).
If Vitty has to spend longer providing the Services than it expected to when the Quote was accepted by the Client – because the Client requests an alteration or extension to the scope of the work set out in the quote, or because the Client does not comply (either at all or on time) with its obligations under these Terms and Conditions – then Vitty shall be entitled to charge the Client for its additional time at its then standard hourly rate.
Payment is due (Thirty) 30 days from the date of invoice, and in the event of any delay in payment, Vitty shall be entitled to withhold providing any remaining Services (without penalty) until such time as payment is made, and any timescales for delivery of the Services agreed with the Client shall then be adjusted accordingly.
Vitty will not make the Client’s Product live and viewable by the public until all invoices relating to its design and development have been paid in full. The Client will be liable for any costs arising from necessary actions by Vitty to recover unpaid Fees.
Interest at 8% above the then current Bank of England base lending rate shall accrue on any unpaid Fees from the date when the relevant invoice becomes due until the date of payment.
9. Transfer of Agreement
The Client may not assign or transfer this Agreement, in whole or in part without the prior written consent of Vitty. In the event that Client contemplates whole or partial sale of its business, ownership change, or change in jurisdiction, Client shall notify Vitty in writing no less than 30 days prior to the effective date of the event.
10. Termination
Vitty may terminate this Agreement at its sole discretion upon the occurrence of one or more of the following events:
1) Failure to comply with any provisions of the Agreement upon receipt of written notice from Vitty of said failure,
2) Appointment of Receiver or upon the filing of any application by Client seeking relief from creditors,
3) Upon mutual agreement in writing of Vitty and Client.
11. Disputes
If legal proceedings are commenced to resolve a dispute arising out of, or relating to, this Agreement, the prevailing party shall be entitled to recover all costs, legal fees, and expert witness fees as well as any costs or legal fees in connection with any appeals.
12. Liability
Vitty cannot guarantee that its work is entirely error free; therefore Vitty is not liable to the Client or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate the Product.
The Client will also indemnify Vitty against all losses, costs, claims and expenses it incurs due to the Client’s negligence or the Client’s failure to comply with its obligations under these Terms and Conditions.
Vitty will use all reasonable commercial endeavours to fulfil its obligations under these Terms and Conditions but to the fullest extent permitted by English Law, limits its liability to the Client to the Fees actually received from the Client.
If the Client fails to comply with its obligations under these Terms and Conditions, and fails to put things right within 10 days of being given written notice requesting it to do so, then Vitty shall be entitled, without penalty, to permanently cease providing the Services and, unless and until payment of the balance of the Fees is paid in full, it shall have no obligation to assign or grant any licenses to the Client in respect of any copyrighted material.
Client shall indemnify and hold Vitty harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against Vitty directly or indirectly arising from or in connection with Client’s marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by Client.
13. These Terms and Conditions
These Terms and Conditions, together with the Quote, constitute the entire understanding between the parties relating to the Services and supersede all prior discussions, understandings and arrangements, between the parties relating to them.
Any delay or failure to enforce a right in respect of the other party’s negligence or breach of these Terms and Conditions cannot be interpreted to mean that any other or subsequent breach or default, whether of the same or any other provision, has also been waived.
These Terms and Conditions shall be interpreted in accordance with English Law and the parties shall submit to the jurisdiction of the English Courts. If any provision of it is determined unlawful, void, or for any reason unenforceable, the remaining parts shall be unaffected, and the problematic provision will be replaced with an alternative which achieves the originally intended effect.
