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1. Definitions

In these Terms and Conditions:
“Vitty” means Vitty – trading name of Vitty Creative Ltd of Antenna Media Centre, 9a Beck Street, Nottingham, NG1 1EQ,

“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 (Fifteen) 15 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.

Any references to “we”, “us” and “our” refer to Vitty Creative Ltd (trading as Vitty), a company registered in England and Wales with company number 10407089 and its registered office at 75 Eastwood Road, Kimberley, Nottingham, NG16 2HX

All services provided by Vitty Creative Ltd may be used for lawful purposes only. Transmission, storage or presentation of any information, data or material in violation of any United Kingdom laws or international treaties. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, or material protected by trade secret and other statute. The subscriber agrees to indemnify and hold harmless Vitty Creative Ltd from any claims resulting from the use of service which damages the subscriber or any other party.

Prohibited are sites that promote any illegal activity or present content that may be damaging to our servers, or any other server on the Internet. Links to such materials are also prohibited.

Examples of unacceptable content or links:
pirated software
hacker programs or archives
Warez sites

NOTICE: IF YOUR ACCOUNT IS FOUND TO CONTAIN ILLEGAL ACTIVITY, ILLEGAL MP3 FILES, PIRATED SOFTWARE, HACKER PROGRAMS, WAREZ PROGRAMS, OR ANY OTHER ILLEGAL FILES, YOUR ACCOUNT WILL BE SUSPENDED IMMEDIATELY. FAILURE TO REMOVE THE OFFENDING CONTENT WILL RESULT IN YOUR ACCOUNT BEING TERMINATED – NO REFUNDS WILL APPLY. ADDITIONALLY, VITTY CREATIVE LTD WILL NOTIFY THE RELEVANT AUTHORITIES OF YOUR ACTIONS.

Terms

Subject to the terms and conditions of this Agreement, Vitty will provide Website Hosting services for Client subject to the following terms:

  1. Length of Service – Client agrees to an initial one (1) month contractual term of service (“Term”) applied on a rolling monthly basis.
  2. Service Start Date – The first payment plus setup charges, if any. Service shall begin upon Company receipt of payment for such first Term of service or upon a mutually agreed upon alternate date.
  3. Renewal by Client – This Agreement will automatically renew each month 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.
Domains

We are a Nominet Registrar and as such may provide you with a domain name via Nominet. Please be aware that by registering a .uk domain name, you are bound by Nominet’s Terms and Conditions http://www.nominet.org.uk/uk-domain-names/registering-uk-domain/legal-details/terms-and-conditions-domain-name-registration

All non-UK domains are provisioned through our registrar partner OpenSRS / Tucows Domains. As such we cannot guarantee the availability of a particular domain, however any charges incurred in the registration of a domain which is subsequently found to be unavailable will be refunded in full.

Both UK and non-UK domains are provisioned through third-party registrars.  Please note that the registrars may reject a registration if invalid information is provided at the time of order.  All TLDs and ccTLDs have differing validation requirements which are also subject to change.  As such we are not responsible for the validation of such data and it is your responsibility to check that a domain registration has been completed by the receipt of a ‘domain registration confirmation’ email.  In the unlikely event a domain is rejected by the registrar, you will not receive such an email and we would need to be alerted to investigate this with the registrar directly and process the registration manually.

 

Domain Expiry

All domains are part of your hosting package and are billed as part of your monthly or yearly package. We will send out reminder emails in advance of renewal. We will send the emails to the email address on the account, it is your responsibility to make sure the contact details are up to date. We take no responsibility if your domain renewal fails due to your contact details being incorrect. If you do not wish to renew a domain please make sure you contact us a minimum of 14 days before your domain expires by emailing us at [email protected]

All domains will be billed in advance of expiry and renewed once payment is received. If you have set up an automatic payment, this will be done automatically.

If you do not renew your domain before its expiry date it will have all services we provide suspended and you will have up to 30 days (protected period) after to renew the domain name at the original renewal fee.

After 30 days your domain will be suspended and will go into a 60 day grace period which you can still renew your domain name but with an additional redemption fee of £80 + VAT. This must be requested by email before the 80th day after your domain has expired, after 90 days your domain will be cancelled and deleted from the register and made available for resale through a third party registrar. We will not guarantee the renewal of a domain name.

 

Bandwidth/Disk Space Usage

Your space is allocated as agreed in your hosting package. However, this is subject to fair use and any customer using an amount of monthly bandwidth or disk space deemed excessive in comparison to the average usage by other customers on our platform may, at our discretion, be advised to upgrade to a bespoke solution and billed accordingly.

We provision very large disks for our shared platforms, but no physical or virtual server can have an “unlimited” disk size due to limitations in both hardware and software. We will not let this hinder your usage, but it will mean that if you are operating a large account we may require that your account is moved to a server where it can be more easily accommodated without affecting other customers, or that your account is split over several shared servers. We would not charge for doing so and would always provide the information and tools necessary for you to operate your service.  We reserve the right to do this at our discretion.  However, refusal to co-operate with an account move request will result in account suspension and/or termination as we must ultimately ensure platform stability and service delivery at all times.

 

Bots

We do not allow bots to be operated on our shared hosting servers.

 

Server Abuse

Any attempt to undermine or cause harm to a server or customer of Vitty Creative Ltd is strictly prohibited. As our customer you are responsible for all your accounts. Should you violate the Terms of Services outlined within, your account will be cancelled without chance of refund.

 

Refusal of Service

We reserve the right to refuse, cancel or suspend service, at our sole discretion.

All sub-networks, distributive hosting sites and dedicated servers of Vitty Creative Ltd must adhere to the above policies, with the exception of system resources in respect to dedicated servers.

 

Billing

By the Account Activation Date of each month or year, we shall deliver, via e-mail, an invoice in accordance with the applicable Service Fees for services to be rendered in the forthcoming month. When an invoice is delivered to the client, payment shall be remitted to us by no later than the specified payment due date. We shall be entitled to immediately terminate this agreement for client’s failure to make timely payments. You will be provided with an invoice on a monthly basis. We do not record or store customer credit/debit card data but you are able to set up recurring billing through our payment partners to allow us to take payment for invoices as they become due. It is your responsibility to ensure that you have sufficient funds to cover any transactions. Failure to make payment will result in up to three overdue notices being submitted to you before your account is suspended and/or terminated.  Accounts suspended for non-payment are liable for termination without notice.

Please note that we accept payment by credit/debit card or PayPal only. Other payment methods such as bank transfer or cheque are not accepted as a method of payment.

 

Money back guarantee & refund policy

We offer a 30 day money back guarantee.
Refunds: If you have agreed and paid for an annual Service, we shall not be obliged to refund any pro rated payments if you cancel during the annual term.

Please note that we reserve the right not to refund any fees incurred by us in the registration of ‘free’ domains we have provided as part of the account. Any fees not refunded or billed to you by us will not exceed the registration costs we incur.

 

Cancellation and Refunds

If you no longer wish to continue with your hosting, please submit a cancellation at least 30 days before your services are due to be renewed. Your account will only be deemed as terminated once all outstanding balances have been paid in full. Domains will only be considered for transfer once all balances have been settled, we will not charge you for transferring a domain(s) away to another registrar’s tag. The customer acknowledges that, termination of the agreement for any reason will result in us ceasing to provide the applicable services, with the consequences that flow from such cessation, including (but not limited to), deletion of data e.g. hosting account(s) and mailboxes.

We DO NOT refund partial monthly fees to accounts.
We do not fund fees incurred in the purchase of domain names where the grace period has expired.  This is 5 days for non-UK domains and 10 days for UK domains.

 

Limitation of Liability

We shall not be responsible for any claimed damages, including incidental and consequential damages, which may arise from our servers going offline or being unavailable for any reason whatsoever. Furthermore, we shall not be responsible for any claimed damages, including incidental or consequential damages, resulting from the corruption or deletion of any web site from one of our servers; loss of service or any costs incurred due to a configuration or service issue resulting from our provided services. All damages shall be limited to the immediate termination of service.

 

Data Backups

We take backups of all data related to your hosting account. However, it is your responsibility to ensure that your own data is backed-up regularly to your own computer or another service via appropriate methods. We will not be held responsible or liable for any data that cannot be retrieved in the event of deletion, failed software installations, account termination, hardware failures, staff or user error and other events which may cause data loss. If you wish to hire us to perform these services, contact us at [email protected]

 

Migration Assistance

If you are moving to us from another cPanel provider, we can assist with the migration by restoring any cPanel backups you upload to us via FTP. It is your responsibility to supply these backups. We will not log in to your old provider’s platform and perform the backups on your behalf. Any migrations from non-cPanel providers will not be performed by us and must be done by you. We provide a full guide on how to accomplish this and can assist if you have issues.

Customer Support

All support requests must be raised via email or through the tickets system via our website.

Please note that we provide support to our direct customers only. We will not provide support via any means to your resold clients or any third-party not holding a direct account with us under any circumstances. It is your responsibility to cater for the support needs of your customers. In the event there is a hosting-related issue that you are unable to resolve, you are required to communicate this to us in detail via a support ticket and we will investigate and respond to you accordingly so you can inform your customer.

 

Violations

Violations of these policies should be referred to [email protected] All complaints will be investigated promptly. Failure to follow any term or condition will be grounds for immediate account deactivation.

 

Disclaimer

We cannot be held liable for system down time, crashes or data loss. We cannot be held liable for any predicated estimate of profits which a client would have gained if their site was functioning. While we own and operate our own enterprise-grade equipment, certain services and software provided by us are resold. Thus, certain equipment, routing, software and programming used by us are not directly owned or written by Vitty Creative Ltd (examples include cPanel management and WHMCS billing software). Moreover, we hold no responsibility for the use of our clients’ accounts. Failure to comply with any terms or conditions will result in the automatic deactivation of the account in question. We reserve the right to remove any account, without advance notice for any reason without restitution, at our discretion.

 

Account Activation

By activating your account with us, you agree to the above policies and disclaimer. Upon requesting activation of an account, you are required to accept these policies, guidelines and disclaimer.

NOTICE: If you sign up for an account and fail to comply with these terms, no refunds will be given. We will, however, advise you by e-mail or phone prior to taking any action to provide you with an opportunity to correct the problem.

 

Server Uptime Guarantee

We offer a 99.9% service uptime guarantee, which is based on a 12-month rolling average across our entire platform and multiple clouds.  In the unlikely event that we fail to meet our obligations we will provide full and thorough explanations for any downtime.

Please note that from time to time, it will be necessary for us to perform essential maintenance or upgrades to our infrastructure.  In the event of such planned maintenance, we will provide advance notice so you can make necessary arrangements to contact your customers or suspend any service monitoring you may have in place for the period of the planned outage.  Where possible, such upgrades will be carried out overnight in the UK to minimise impact on customers.  Downtime incurred as a result of planned and notified maintenance will not be included in our downtime statistics.

 

Acceptable Use Policy

As a provider of web site hosting and other Internet-related services, we offer our customers (also known as “Subscribers”) and your customers and users the means to acquire and disseminate a wealth of public, private, commercial and non-commercial information. We respect that the Internet provides a forum for free and open discussion and dissemination of information. However, when there are competing interests at issue, we reserve the right to take certain preventive or corrective actions. In order to protect these competing interests, we have developed an Acceptable Use Policy (“AUP”), which supplements and explains certain terms of each customer’s respective service agreement, and is intended as a guide to the customer’s rights and obligations when using our services. This AUP will be revised from time to time.

One important aspect of the Internet is that no one party owns or controls it. This fact accounts for much of the Internet’s openness and value, but it also places a high premium on the judgment and responsibility of those who use it, both in the information they acquire and in the information they disseminate to others. When subscribers obtain information through the Internet, they must keep in mind that we cannot monitor, verify, warrant or vouch for the accuracy and quality of the information they acquire. For this reason, the subscriber must exercise his or her best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet may be sexually explicit or otherwise offensive. Because we cannot monitor or censor the Internet, and will not attempt to do so, we cannot accept any responsibility for injury to its subscribers resulting from inaccurate, unsuitable, offensive or illegal Internet communications.

When subscribers disseminate information from the Internet, they must keep in mind that we do not review, edit, censor or take responsibility for any information its subscribers may create. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation and other harmful speech. Also, because the information created is carried over our network and may reach a large number of people, including both our subscribers and non-subscribers, subscribers’ postings to the Internet may affect other subscribers and may affect our goodwill, business, reputation or operations. For these reasons, subscribers violate our policy and these terms when they, their customers, affiliates or subsidiaries engage in the following prohibited activities:

 

Spamming

Sending unsolicited bulk and/or commercial information over the Internet. It is not only harmful because of its negative impact on consumer attitudes toward Vitty Creative Ltd, but also because it can overload our network and disrupt service to our subscribers. Also, maintaining an open SMTP relay is prohibited. When a complaint is received, we will investigate and suspend the account that is sending spam and reserve the right to keep the account suspended until such time that the account no longer sends spam.

Audio/Video Streaming

Audio/Video Streaming is not hosting friendly. As such, we do not allow any streaming of audio or video content where the core files are hosted on our platform. Offending accounts will be suspended without noticed or terminated.

File Storage / Online Backups

We do not permit the use of our shared hosting platforms for the storage of backup or archival data including large amounts of plugin cache data (we operate server-side caching as standard), mirror sites, storage of game data including flash games, personal multimedia content such as movies, music, photos or other media.  Your account and any sub-accounts may be used for genuine web hosting purposes only.  Any such content is not permitted and will be removed and any offending accounts suspended.

Services such as OwnCloud are not permitted on our shared hosting and accounts found to be utilising web space for such services will have their data removed and services suspended.

We don’t limit your disk space providing the majority of your space is used for web hosting. We do not permit the use of our shared hosting as an e-mail archival system and you may be asked to remove e-mail, archive e-mail to your computer or upgrade to a VPS solution if it is determined your account is being used as such.

Free Hosting

We do not permit the use of our platform to provide free hosting to your customers.  Providing free hosting encourages spamming and other abuses of the platform and as such this is explicitly disallowed.

File Sharing Websites or Peer-to-peer media (including files) sharing or streaming

We do not permit the use of our platform for file sharing of any kind. This includes but is not limited to peer-to-peer file or media sharing, BitTorrent, Tor or other such forms of data transmission.

Obscene Speech or Materials

Using our network to advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material is prohibited. We are required by law to notify law enforcement agencies if we become aware of the presence of child pornography on or being transmitted through our network.

Defamatory or Abusive Language

Using our network as a means to transmit or post negative, defamatory, harassing, abusive or threatening language.

Forging of Headers

Forging or misrepresenting message headers, whether in whole or in part, to mask the originator of the message.

Illegal or Unauthorised Access to Other Computers or Networks

Using our network to access, illegally or without authorisation, computers, accounts or networks belonging to another party, or attempting to penetrate security measures of another individual’s system (often known as “hacking”). Also, any activity that may be used as a precursor to an attempted system penetration (i.e., port scan, stealth scan or other information-gathering activity).

Distribution of Internet Viruses, Worms, Trojan Horses or Engaging in Other Destructive Activities

Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mail bombing or denial of service (DDOS) attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service or equipment.

Destructive activities include inviting, either directly or indirectly, an attack (such as a DDOS) against our platform. Such invitations include inviting third parties to attempt to compromise the security of our platform or knowingly participating in an external attack (such as a DDOS) which results in retaliatory action from a third-party.

Facilitation a Violation of this AUP

Advertising, transmitting or otherwise making available any software, program, product or service that is designed to violate this AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mail bombing, denial of service attacks and piracy of software.

Usenet Groups

We reserve the right not to accept postings from newsgroups where we have actual knowledge that the content of the newsgroup violates the AUP.

Phishing

We do not permit the hosting of any sites engaging in phishing, impersonating public institutions or private companies in an attempt to defraud members of the public. Any sites found in breach of this will be suspended or terminated without notice.

Other Illegal Activities

Engaging in activities that are determined to be illegal, including, but not limited to, advertising, transmitting or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, publishing or threatening to publish private data and pirating software.

Other Activities

Engaging in activities, whether lawful or unlawful, that we determine to be harmful to our subscribers, operations, reputation, goodwill or customer relations.

As we have pointed out, the responsibility for avoiding harmful activities just described rests primarily with the subscriber. We will not, as an ordinary practice, monitor the communications of our subscribers to ensure that they comply with our policy or applicable law. However, when we become aware of harmful activities, it may take any action to stop the harmful activity, including, but not limited to, suspension or termination of hosting services, removal of information, shutting down a web site, implementing screening software designed to block offending transmissions, denying access to the Internet, or any other action we deem appropriate.

We are also aware that many of our subscribers are themselves providers of Internet services, and that information reaching our facilities from those subscribers may have originated from a customer of the subscriber or from another third party. We do not require our subscribers who offer Internet services to monitor or censor transmissions or web sites created by customers of our subscribers. We reserve the right to directly take action against a customer of our subscribers. Also, we may take action against the our subscriber because of activities of a customer of the subscriber, even though the action may affect other customers of the subscriber. Similarly, we anticipate that subscribers who offer Internet services will cooperate with us in any corrective or preventive action that we deem necessary. Failure to cooperate with such corrective or preventive measures is a violation of our policy.

We will not intentionally monitor private electronic mail messages sent or receive by our subscribers, unless required to do so by law, governmental authority or when public safety is at stake. We may, however, monitor its service electronically to determine that its facilities are operating satisfactorily. Also, we may disclose information, including, but not limited to, information concerning a subscriber, a transmission made using our network, or a web site, in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or governmental request subject to Data Protection and other UK legislation. We assume no obligation to inform the subscriber that subscriber information has been provided and, in some cases, may be prohibited by law from giving such notice. Finally, we may disclose subscriber information or information transmitted over our network where necessary to protect us and others from harm, or where such disclosure is necessary to the proper operation of the system. However, we will never sell information to other services or outside companies.

We expect that our subscribers who provide Internet services to others will comply fully with all applicable laws concerning the privacy of online communications. A subscriber’s failure to comply with those laws will violate our policy. Finally, we wish to emphasise that, in accepting these terms and placing an order, subscribers indemnify Vitty Creative Ltd for any violation of the Service Agreement, law or Vitty Creative Ltd policy resulting in loss to Vitty Creative Ltd or the bringing of any claim against Vitty Creative Ltd by any third party. This means that, if we are sued because of a subscriber’s or customer of a subscriber’s activity, the subscriber will be responsible for payment of any damages awarded against us, plus costs and reasonable legal and solicitors’ fees.

We hope this AUP is helpful in clarifying the obligations of Internet users, including Vitty Creative Ltd and its subscribers, as responsible members of the Internet. Any complaints about a subscriber’s violation of this AUP should be sent to [email protected]

 

Complaints

We like to think we get it right all the time, every time but the truth of it is everyone gets it wrong from time to time. We can only improve on our services with valid feedback from you, our customers. If you wish to make a complaint about a service you have received, please submit an email to us at [email protected], including as much detail from the issue you have. We will acknowledge your complaint within 1 business day and aim to resolve any issues within 5 business days.

If you’re not happy with the initial outcome of your complaint where it involves a .uk domain, than please feel free to escalate your issue to Nominet (the .uk registry) by visiting http://www.nominet.org.uk/disputes/complaining-about-registrar/complaints-procedure.

 

Notification of Changes

We reserve the right to change these conditions from time to time as it sees fit and your continued use of the site and our hosting services will signify your acceptance of any adjustment to these terms. If there are any changes to our privacy policy, we will announce that these changes have been made via relevant channels. If there are any changes in how we use our site customers’ Personally Identifiable Information, notification by e-mail or postal mail will be made to those affected by this change. Any changes to our privacy policy will be posted on our web site 30 days prior to these changes taking place. You are therefore advised to re-read this statement on a regular basis

These terms and conditions form part of the Agreement between the Client and ourselves. Your accessing of this website and/or subscribing for any of our services indicates your understanding, agreement to and acceptance of the Disclaimer Notice and the full Terms and Conditions contained herein. Your statutory Consumer Rights are unaffected.

 

  1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday)

Campaign: the creation, installation, management, development and employment of a PPC advertising network strategy as set out in the PPC Brief.

Charges: the charges payable by the Client for the supply of the Services in accordance with clause 6, including the Initial Fee and the Monthly Charge.

Client: the person or firm who purchases Services from Vitty.

Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.

Contract: the contract between Vitty and the Client for the supply of Services in accordance with these Conditions.

Proposal Form: the order form issued by Vitty to the Client.

Conversion Tracking Codes: the Google conversion tracking codes or other conversion tracking codes installed on the Website.

Deliverables: any amendments or other work carried out to the Website, including the design or development of any additional Website Pages, by Vitty as part of the Services.

Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

Initial Fee: Vitty’s fee for setting up the Campaign.

Input Material: has the meaning set out in clause 4.1(c).

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Initial Term: has the meaning set out in clause 3.2.

Monthly Charge: the monthly fee for the Services.

PPC: Pay-per-click advertising.

PPC Advertising Networks: the PPC advertising networks that Vitty agrees to provide the Services in connection with as set out in the PPC Brief.

Pre-existing Materials: all Documents, information and materials provided by Vitty relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports, graphics and specifications.

Proposal: Vitty’s initial quote for the provision of the Services.

Resources: the resources that Vitty may use or employ in order to provide the Services, including Third Party Resources.

Search Engines: the search engines that Vitty agrees to provide the Services in connection with as set out in the PPC Brief.

Vitty: Vitty Limited registered in England and Wales with company number 10407089.

Services: the PPC services supplied by Vitty to the Client as set out in the PPC Brief, together with any additional services that Vitty agrees to provide to the Client.

Third Party Resources: PPC Advertising Networks, Search Engines, web analytics software, PPC programs, directories or third-party websites or any other third-party resources that Vitty may use or employ in order to provide the Services.

Website: any website, intranet or extranet of the Client that Vitty is to provide PPC services on as part of the Services.

Website Pages: pages on the Website, including any additional pages created by Vitty as part of the Services.

 

 

1.2 Construction. In these Conditions, the following rules apply:

  • a personincludes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  • a reference to a party includes its personal representatives, successors or permitted assigns;
  • a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
  • any phrase introduced by the terms including, include, in particularor any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
  • a reference to writingor written includes faxes and e-mails.

 

  1. Basis of Contract

2.1 The Client shall sign the Proposal Form and return it to Vitty. This constitutes an offer by the Client to purchase Services in accordance with these Conditions.

2.2 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Vitty which is not set out in the Contract.

2.3 Any samples, drawings, descriptive matter or advertising issued by Vitty, and any descriptions or illustrations contained in Vitty’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given by Vitty shall not constitute an offer, and, unless otherwise agreed, is subject to amendment at any time to meet any rise or fall in Vitty’s costs.

 

  1. Supply of Services

3.1 Vitty shall supply the Services to the Client in accordance with the Proposal Form.

3.2 The Services shall be supplied for the term (Initial Term) set out in the Proposal Form and, after that, shall continue to be supplied unless the Contract is terminated by one of the parties giving the other at least one months’ notice. The Contract shall terminate on the last day of the Month following the Month after which the notice is given. The earliest date at which notice can be given is during the penultimate month of the Initial Term.

3.3 Vitty shall use all reasonable endeavours to meet any performance dates specified in Proposal Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.4 Vitty warrants to the Client that the Services will be provided using reasonable care and skill.

3.5 Vitty will not commence performance of the Services until it has received the Initial Fee.

3.6 Vitty shall be entitled to refuse to accept or use any Input Material in the provision of the Services:

  • which may be deemed offensive, illegal or in any way controversial;
  • for which the Client has not obtained an appropriate licence, permission or consent pursuant to clause 4.1(f).
  • If the Client or any third party makes any changes to the Website which overwrite the Deliverables, Vitty will not be responsible for reinstating the Deliverables and if the Client does require Vitty to reinstate them then the Client is liable to pay to Vitty additional charges to cover the cost of reinstating the Deliverables.
  • Vitty shall be entitled for the duration of the Contract to approve or disapprove any design strategies, existing code or other techniques requested or currently used by the Client which in the sole opinion of Vitty are detrimental to the Campaign or other Services to be provided by Vitty.

 

  1. Client’s Obligations

4.1 The Client shall:

  • ensure that the terms of the Proposal Form are complete and accurate;
  • co-operate with Vitty in all matters relating to the Services;
  • provide Vitty with such Documents, information and materials as Vitty may reasonably require in order to supply the Services (Input Material) including additional relevant text content for the Website for the purpose of creating additional Website Pages where Vitty considers that the text content of the Website is too low, and ensure that such information is accurate in all material respects;
  • provide Vitty with such administrator rights to any Third-Party Resources as are necessary for Vitty to supply the Services;
  • ensure that the Conversion Tracking Codes are installed properly and are working; and
  • obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start and provide Vitty with evidence of such licence, permission or consent when requested by Vitty.

4.2 If Vitty’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

  • Vitty shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Vitty’s performance of any of its obligations;
  • Vitty shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Vitty’s failure or delay performing any of its obligations as set out in this clause 4. For the avoidance of doubt, the Client shall continue to be liable for the Monthly Charge during any period that Vitty suspends performance of the Services; and
  • the Client shall reimburse Vitty on written demand for any costs or losses sustained or incurred by Vitty arising directly or indirectly from the Client Default.

 

  1. Amendments

5.1 If the Client wishes to change the scope or execution of the Services, it shall submit details of the requested change to Vitty in writing.

5.2 If the Client requests a change to the scope or execution of the Services, Vitty shall, within a reasonable time, provide a written estimate to the Client of:

  • the likely time required to implement the change;
  • any necessary variations to the Charges arising from the change; and
  • any other impact of the change on this agreement.
  • If the Client wishes Vitty to proceed with the change, Vitty has no obligation to do so unless and until the parties have agreed the necessary variations to the Charges, the Services and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 8.
  • Vitty may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.

 

  1. Charges and Payment

6.1 The Charges for the Services shall be as set out in the Proposal Form.

6.2 The Initial Fee shall be payable to Vitty before it commences provision of the Services. The Monthly Charges shall be paid by the Client in accordance with the payment terms set out in the Proposal Form in full and in cleared funds to a bank account nominated in writing by Vitty.

6.3 Time for payment shall be of the essence of the Contract.

6.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Vitty to the Client, the Client shall, on receipt of a valid VAT invoice from Vitty, pay to Vitty such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.5 Without limiting any other right or remedy of Vitty, if the Client fails to make any payment due to Vitty under the Contract by the due date for payment (Due Date), Vitty shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

6.6 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Vitty in order to justify withholding payment of any such amount in whole or in part. Vitty may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Vitty to the Client.

6.7 The Client shall be responsible for the fees of any Third-Party Resources and shall maintain such adequate funds in any third-party accounts as are required to maintain inclusion in such resources. The Proposal sets out an estimate of the fees that the Client will incur for the inclusion of keywords and other listings in the Third-Party Resources.

 

  1. Intellectual Property Rights

7.1 The Client hereby authorises Vitty to use any Intellectual Property Rights of the Client that are on the Website for the purpose of providing the Services.

7.2 Subject to clause 7.3 all Intellectual Property Rights arising out of the Deliverables, including any graphics or programming code, shall be owned by Vitty until the Client has paid the Charges in full. Once the Client has paid the charges in full all such Intellectual Property Rights shall automatically be transferred to the Client.

7.3 The Client acknowledges that, where Vitty does not own any Pre-existing Materials, Vitty licences all such rights to the Client on a royalty-fee non-exclusive worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and that such licence and the Client’s use of any Intellectual Property Rights in the Pre-Existing Materials is conditional on Vitty obtaining a written licence from the relevant licensor on such terms as will entitle Vitty to license such rights to the Client.

7.4 As between the Client and Vitty the Input Material shall be owned by the Client. The Client licences all Intellectual Property Rights and other rights in the Input Material to Vitty on a royalty-fee non-exclusive worldwide basis to such an extent as is necessary to enable Vitty to provide the Services.

7.5 The Client undertakes that they have all necessary licences and consents to allow Vitty to use the Input Material for the purposes of providing the Services.

7.6 The Client hereby authorises Vitty to annotate and insert onto the Website Vitty’s identification as the author of the specific code it provides as part of the Services providing that Vitty only inserts such identification where it is the legal owner of such code.

 

  1. Indemnities

8.1 The Client shall keep Vitty indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred

or paid by Vitty as a result of or in connection with any claim made against Vitty:

  • for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Input Material;
  • for death or personal injury or damage to property arising out of, or in connection with any defective goods, products or services sold via the Campaign.

8.2 Vitty shall keep the Client indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Client as a result of or in connection with:

  • any disruption to any third party services used by the Client, including merchant accounts, shopping carts, shipping, hosting, real-time credit card processing, arising out of the provision of the Services; or
  • any claim made against the Client for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the insertion of Vitty’s identification on the Website as the author of the specific code it provides as part of the Services.

 

  1. Confidentiality

A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 9 shall survive termination of the Contract.

 

  1. Results

10.1 The Client acknowledges and accepts the following in connection with the Services:

  • Vitty is not responsible for the policies of Third Party Resources. The Website or any content on it may be excluded or banned from the Third Party Resources at any time.
  • Many of the Third Party Resources are competitive in nature. Accordingly, Vitty does not guarantee the position of any PPC keyword, phrase or search term.
  • Vitty’s previous performance in the provision of the Services or services similar to the Services is not indicative of any future results that Vitty may achieve on behalf of the Client.
  • Vitty must thoroughly stress that there is no guarantee to our services. We do not have the ability to offer an ironclad guarantee on the rank or results that our customers will receive. We also cannot calculate or even estimate the amount of increased traffic that will occur as a result of our optimisation and PPC services.
  • PPC advertising may be subject to the individual PPC Advertising Network’s policies and procedures. Each edit or change made to such policies and procedures may affect the Campaign and the Client acknowledges that this is outside the control of Vitty. Vitty will endeavour to rectify any negative affects on the Campaign arising from an edit or change to these policies and procedures.
  • A Search Engine or PPC Advertising Network may drop a listing for no apparent or predictable reason. If the listing does not reappear in the Search Engine or PPC Advertising Network within a reasonable period of time Vitty will re-submit the Resources based on the current policies of the Search Engine or PPC Advertising Network.
  • Unless otherwise agreed in the PPC Brief, Vitty does not guarantee the placement of the Client’s advertising, its availability or availability related to the fund’s in the Client’s account with the Search Engine or PPC Advertising Network.
  • Vitty will use all reasonable endeavours to keep the Client informed of any changes to Third Party Resources, industry practice or any other changes that Vitty is made aware of which may impact the Campaign and the provision of the Services. However, Vitty may not become aware of such changes.

 

  1. LIMITATION OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
  • Nothing in these Conditions shall limit or exclude Vitty’s liability for:
  • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  • fraud or fraudulent misrepresentation; or
  • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
  • Subject to clause 11.1:
  • Vitty shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise:
  • for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, or arising from their late or non-arrival, or any failure of the Client to comply with its obligations in clause 4.1 or any other fault of the Client or the Client’s agents or sub-contractors;
  • for any loss, damage, costs, expenses or other claims for compensation arising from the use of Third Party Resources;
  • for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
  • Vitty’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges.
  • Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
  • This clause 11 shall survive termination of the Contract.

 

  1. Termination

12.1 Without limiting its other rights or remedies, Vitty may terminate the Contract with immediate effect by giving written notice to the Client if:

  • if the Client fails to pay any amount due under the Contract on the due date for payment;
  • the Client commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach;
  • the Client suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  • the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
  • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
  • the Client (being an individual) is the subject of a bankruptcy petition or order;
  • a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
  • an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client (being a company);
  • a floating charge holder over the assets of the Client (being a company) has become entitled to appoint or has appointed an administrative receiver;
  • a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;
  • any event occurs, or proceeding is taken with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(c) to clause 12.1(j)

(inclusive);

  • the Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
  • the Client (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

12.2 Without limiting its other rights or remedies, Vitty shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and Vitty if the Client becomes subject to any of the events listed in clause 12.1(c)) to clause 12.1(m), or Vitty reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.

 

  1. Consequences of Termination

13.1 On termination of the Contract for any reason:

  • the Client shall immediately pay to Vitty all of Vitty’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Vitty shall submit an invoice, which shall be payable by the Client immediately on receipt;
  • subject to the Client’s compliance with clause 13.1(a), Vitty shall return to the Client all Input Materials and all information and materials relating to the Campaign and any other Services which are reasonably necessary for the Client or its agents or suppliers to continue to provide similar services to those to be provided under the Contract, except that Vitty shall not be required to disclose any of confidential information relating to its business or systems, including any technical and commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature;
  • the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
  • clauses which expressly or by implication have effect after termination shall continue in full force and effect.

 

  1. Data Protection

14.1 Any personal data processed by and on behalf of the Vitty in connection with the Services will be processed in accordance with Vitty’s Privacy Policy, a copy of which can be obtained from Vitty on request.

 

  1. General

15.1 Force majeure:

  • For the purposes of this Contract, Force Majeure Eventmeans an event beyond the reasonable control of Vitty including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Vitty or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
  • Vitty shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
  • If the Force Majeure Event prevents Vitty from providing any of the Services for more than 6 weeks, Vitty shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.

15.2 Assignment and subcontracting:

  • Vitty may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
  • The Client shall not, without the prior written consent of Vitty, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

15.3 Notices:

  • Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business or sent by fax to the other party’s main fax number.
  • Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
  • This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

15.4 Waiver:

  • A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
  • Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

15.5 Severance:

  • If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
  • If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
  • No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
  • Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
  • Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Vitty.
  • Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

 

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