Terms and Conditions of Service

Introduction

Whenever we take on a project to provide website design, implementation and supporting services, the following basic terms and conditions will be deemed to apply, unless we explicitly agree any item to the contrary.

Overview

We will always do our best to fulfil your needs and meet your goals, but sometimes it is best to have a few simple things written down so that we both know what’s what, who should do what and what happens if things go wrong. In this agreement, we try to avoid complicated legal terms or large passages of unreadable text. We have no desire to trick you into signing something that you might later regret. We do want what’s best for the safety of both parties, now and in the future.

In Short

You (also referred to as Your or Yours) are hiring us, Web Upp Limited (WebUpp), to design, implement and support a web site (the Service or Services) for the price that we agree in our correspondence. Of course it’s a little more complicated, but we’ll get to that.

What do both parties agree to do?

As our customer, you confirm that you have the power and ability to enter into this agreement either on your own account, or on behalf of your company or organization. You agree to provide us with everything that we need to complete the project including text, images and other information as and when we need it, and in the format that we ask for. You agree to review our work, provide feedback and sign-off approval in a timely manner too. Deadlines work two ways and you will also be bound by any dates that we set together. You also agree to stick to the payment schedule set out at the end of this contract.

We have the experience and ability to perform the services you need from us and we will carry them out in a professional and timely manner. Along the way we will endeavour to meet all the deadlines set but we can’t be responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved or signed off our work on-time at any stage.

On top of this we will also maintain the confidentiality of any information that you give us.

In Detail

Design

We will create a design for the look-and-feel, layout and functionality of your web site. This work includes one main design, which will be based upon any style guidance that you give us up front, and our knowledge of best practice in this area.

We want you to be entirely happy with the end result, and we know that requirements often change during the design process. You will have the opportunity to make revisions to the design, during which process we will make every effort to revise the web site to your satisfaction.

Implementation

When we have agreement between us about the final design for the website, we implement that website (i.e. make it ‘live’ on the Internet) on an agreed schedule, and using whatever hosting arrangement we have agreed.

From this point onwards, any ongoing work, amendments or monitoring of your website will be as described in the Managed Service section below.

Hosting

We will implement your website and/or email facilities using hosting facilities provided by our chosen hosting provider. As these hosting facilities are provided by a 3rd party, we can make no warranty relating to the performance, up-time or service response that will be provided. We do however select our hosting partners on the basis of their reliability, performance and security, based upon our experience.

You should be aware that no system can guarantee 100% uptime and there will be occasions, either as a result of planned maintenance or unanticipated technical issues, when your website may be unavailable or operating at a less-than-optimum level of performance. We will always do everything within our control to minimise the impact and duration of any planned or unscheduled downtime, but we make no specific guarantees of time-to-fix. You should inform us before signing this agreement if you have specific requirements relating to time-to-fix so that we can consider the technical options and revise our quotation accordingly.

Support and Maintenance

We believe that websites are not ‘one-and-done’ pieces of work; they should be looked after, updated and maintained to ensure that they remain secure, accurate and relevant. For this reason, our service includes ongoing support and maintenance.

Technical support includes:

• Routine technical and security updates to the core components and additional extensions that power your web site;
• Routine backups of Your entire website (content, functionality and data), including off-site storage of those backups to allow for restoration of your web site following a technical issue;
• Ongoing security scans of website traffic in order to take all reasonable precautions to identify and block malicious traffic.

Non-technical support:

• We are always happy to try to help you with questions, advice and change requests that relate to your web site.

Testing

We will test all our markup and CSS in current versions of all major browsers, specifically Chrome, Firefox, Edge and Safari.

We will not test these templates in old or abandoned browsers, for example Microsoft Internet Explorer 6 or earlier Windows or Mac, or previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified. If you need to show the same or similar visual design to visitors using these older browsers, we will charge you at an agreed daily rate for any necessary additional code and its testing.

We also test your site on mobile devices e.g. tablets and mobile phones.

Search Engine Optimisation / Website visibility

Search Engine Optimisation (SEO) is a broad internet marketing term for the processes by which you ‘promote’ your website on the Internet – i.e. the techniques for which you encourage visitors to come to your site.

It is a complex area, and it is driven by a wide variety of factors – some relate to the way the website is structured and created, but many relate to wider things like offline marketing, social media presence and ‘backlinking’ from other websites.

You should therefore understand that the website design itself (our remit) is only part of the SEO story, and search engine rankings are also dependent upon factors outside our control. We are happy to advise, but for the avoidance of doubt, unless expressly agreed otherwise, we are not providing SEO services as part of this agreement beyond best practice design and on-page optimisation (we will be happy to discuss the specific meaning of these terms).

We therefore cannot make any assurances about Google rankings, or search engine results more broadly.

Managed Service

As part of your support agreement with us we include the following services:

• Regular full website and/or database backups: we will provide backup facilities that take a ‘snapshot’ of the entire website and/or its database(s) at regular intervals. The exact frequency will depend upon the level of content changes, the nature of your website and any specific agreements that we make. As a minimum, a full website backup will be taken once a month. We will provide for the backup files to be stored securely in a cloud-based storage system. In the event of a technical, security or other issue that affects the operation of your website, these backups will allow the site to be restored back to the last known good state. This does not guarantee zero data loss, as any changes made to the website since the last good backup will not be restored by the backup and would need to be re-applied.
• Routine updates to the constituent software parts of your website: the core website framework (typically the WordPress Content Management system) is regularly updated with functional changes, bug-fixes and security enhancements. Likewise, any extensions to the core software (typically themes and plugins) will routinely be updated by their authors. As part of technical support, we will routinely test and update these components of the software. Typically, but excluding any critical security updates, we will wait at least three days following the release of an update before the update is applied (thereby maximising the chance that any bugs are discovered before the update is applied).
• Bug fixes relating to the existing functionality: should any issues/bugs be discovered with the functionality that was originally delivered, we will fix/resolve those issues;
• Ongoing security scanning and access control: we will implement a software solution that routinely scans the website framework and content for any unauthorised changes to system files. It will also track all logins / attempted logins and, under certain circumstances, apply a temporary IP block against malicious login attempts (e.g. invalid usernames or repeated incorrect passwords used in brute force attacks)
• Uptime monitoring: we will implement an automated uptime monitoring solution which checks at regular intervals that the website is responding appropriately. We will be alerted to any periods of detected downtime. Our response to any periods of downtime will depend upon the nature of the issue and the hosting solution you have chosen. Where you have chosen to use 3rd party hosting, you should understand that downtime depends in part upon the hosting provider you have selected. We will use our best endeavours to assist in reporting/resolving any hosting issues with 3rd parties, but we accept no responsibility for the performance of their systems.

Please note: if you choose to make content or other updates to the website yourself, or allow a 3rd party to make such changes on your behalf, you must ensure that you/they have the appropriate skills and knowledge. With the exception of restoring the site to the last known good state via a backup, this support does not extend to fixing/repairing issues generated by you or a 3rd party authorised by you.

• Updates to existing content: at your request, we will make changes to the existing website content, including changing text, images (provided by you), page format and so on;
• New content: at your request, we will add new content (including new pages) that falls within the scope of the original website package that you purchased. For the avoidance of doubt, this means that this support would cover the addition of multiple extra pages, to the level indicated in the product descriptions on our website. For example, WebCare Base includes up to 10 pages.
• New Functionality: at your request, we will add new website functionality that falls within the scope of the original website package that you purchased. For example, if you purchased a Social Media feed, but chose not to include this in your initial website, but instead decided to add it at a later date, then this type of change would be included within this support plan. The addition of additional functionality or 3rd party integrations however, which were not included in your original package, would not be included. Of course we are always happy to upgrade your service by adding incremental features at the additional fees published on our pricing page or otherwise mutually agreed. We can also upgrade you to other packages published on our website for the corresponding increase in monthly fees.

Please note: we will respectfully ask you to ensure that all requested content changes are well considered and fully thought through, and your requirements are expressed with sufficient clarity and accuracy to allow us to perform the work. We reserve the right to request all changes be made in writing, to minimise the need for rework due to incomplete/inaccurate change requirements.

Important conditions:

• Content updates are delivered under our “Fair Usage” policy below rather than a strict hourly limit. We recognise that your needs change with circumstances. It is also expected that more updates may be required in the period immediately following go-live and that the “Fair Usage” content update limits may be reasonably exceeded in the first 3 months following go-live.
• Work requests will only be considered as received if they are ‘actionable’ – i.e. they contain sufficient detail to allow us to action the request.
• Work requests should be submitted in writing (by email) to support@webupp.com 

This managed service does not cover:

• work that essentially constitutes a complete redesign of the website
• Adding e-commerce functionality
• custom code development
• content copywriting
• ongoing Search Engine Optimisation (unless expressly agreed otherwise in writing)
• work that is not directly related to the operation of the website
• general consultancy or IT support

“Fair Usage”

Please note that all of our services are subject to a “fair usage” condition, which allows us to ensure that support can be provided on a commercially viable basis. In particular, this condition means that:

• We will make changes to the content of your website that fall within the scope of the original website package that you purchased. We will not add pages/content/functionality that would effectively render the website a larger or more complex site that would have fallen into a higher package. Likewise, we will not add the more complex e-commerce functionality unless you purchased an e-commerce package.
• Substantial changes to the website, such as might amount to effectively rewriting or redesigning the site are not covered.
• We will expect that all change requests are properly and thoroughly considered, and are expressed with sufficient detail and clarity to allow us to understand the requirement. If you have a number of change requirements, we would ask you to combine them into a single request wherever possible to allow us to manage those changes in the most efficient way.
• If you have decided to maintain the content of your own website, or entrust that to a 3rd party, support does not cover fixing/repairing issues created by you during that process, other than restoring the entire website back to the last known good backup.
• We reserve the right to limit content updates where reasonable usage by You regularly exceeds the indicative hours per month shown below. In this event we will inform you in writing that we are applying a monthly limit to content update hours. We may also offer a custom commercial arrangement to facilitate additional content update time if preferred. Your Maintenance tier is based upon the modules purchased and contained in your confirmed estimate.
  
  Indicative hours per month by maintenance tier:
  • Bronze tier – 1 (one) hour per month
  • Silver tier – 2 (two) hours per month
  • Gold tier – 3 (three) hours per month
  • Platinum tier – 4 (four) hours per month

• In the case of custom commercial arrangements being required, work will be charged at an hourly rate, or for a fixed fee that we will agree with you. We advise an indicative rate of £50 per hour.
• Managed services will not be provided if your monthly payments fall into arrears.

Legal Stuff

If any provision of this agreement shall be deemed to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

Damages

We can’t guarantee that the functions contained in any web page templates or in a completed web site will always be error-free and so we can’t be liable to you 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 this web site and any other web pages, even if you have advised us of the possibilities of such damages.

Copyrights

You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the web site are either owned by You, or that you have permission to use them. Accordingly, we shall not be liable for any claims for breach of intellectual property rights relating to media provided by You, and You agree to indemnify Us against any such claims.

Upon termination of the Agreement and following the final payment, copyright is automatically assigned as follows:

• You own the graphics and other visual elements that we create for you for this project. We will give you a copy of all files upon request and you should store them really safely as we are not required to keep them or provide any native source files that we used in making them.
• You also own text content, photographs and other data you provided, unless someone else owns them. We own the HTML/XHTML markup, CSS and other code or software and we license it to you for use on only this project.

Design Credit and Marketing

We love to show off our work and share what we have learned with other people, so we also reserve the right to display and link to your completed project as part of our portfolio and to write about the project on web sites, in magazine articles and in books about web design.

Unless specifically agreed with you to the contrary, we also reserve the right to include a small, unobtrusive link on your web site to Ours to show that we are proud to be associated with our work and your web site.

Payments

We are sure you understand how important it is as a small business that you pay the invoices that we send you promptly. As we’re also sure you’ll want to stay friends, you agree to stick tight to the payment schedule that we agree with you.

• Payment terms are 7 days from your invoice date, unless we specifically agree otherwise.
• Ongoing support and hosting charges must be paid by stored Debit or Credit card or by Direct Debit, and are due each calendar month.
• All deposits, if applicable, are non-refundable.

We hope the need never arises, but we will take steps to recover unpaid invoices, including suspension of website services without notice and/or legal recovery actions.

Duration / Minimum Term

This Agreement shall commence on the date at which the website goes live on our hosting service and shall continue for an initial eighteen month period and thereafter from month to month unless terminated in accordance with the Termination clause below.

On some occasions upon your request, we may agree to transfer and host your existing website while we design your new website. In this case the minimum term above, will commence only when your new website goes live.

Upon change from one package tier, to another (e.g. from WebCare Base to WebCare Plus, or from WebCare Plus to WebCare Max), or other change or add-on (e.g. the addition of E-Commerce or another type of application), which requires significant implementation, the initial eighteen month period will begin again.

Content

Both parties will use reasonable endeavours to ensure that the content of the website for You and any material relating thereto will not include any information or material that infringes the rights of any third party or which is illegal, or the accessing, holding, transmitting or supplying of which would be a criminal offence or otherwise unlawful.

Data protection

For the purposes of this clause, Data Protection Law means the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018, any other data protection and/or privacy laws applicable to WebUpp, and any applicable laws replacing, amending, extending, re-enacting or consolidating the above from time to time.

Both parties will comply with all applicable requirements of Data Protection Law. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Law.

You will comply with Data Protection Law in connection with the collection, storage and processing of personal data (which shall include you providing all the required fair processing information to, and obtaining all necessary consent from, data subjects), and the exercise and performance of your respective rights and obligations under these terms and conditions, including all instructions given by You to WebUpp and maintaining all relevant regulatory registrations and notifications as required under Data Protection Law.

The parties acknowledge that if WebUpp processes any personal data on Your behalf when performing its obligations under this agreement, You are the controller and WebUpp is the processor for the purposes of Data Protection Law.

The scope, nature and purpose of processing by WebUpp, the duration of the processing and the types of personal data and categories of data subject are set out in our Privacy Notice and the project quotation.

In relation to the processing of personal data under these terms and conditions, WebUpp shall:

• process personal data on Your behalf only on and in accordance with Your documented instructions as set out in this clause 11 (as updated from time to time by agreement between the parties), unless required to do so by applicable law; in such a case, we shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
• ensure that persons authorised to process personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
• implement and maintain appropriate technical and organisational measures in relation to the processing of personal data; you hereby acknowledge that you are satisfied that our processing operations and technical and organisational measures are suitable for the purposes for which you propose to use our services and engage us to process the personal data;
• promptly refer all data subject requests we receive to you and, taking into account the nature of the processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR;
• assist you in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of processing and the information available to us and only in the event that you cannot reasonably be expected to comply with the requirements of Articles 32 to 36 without our information and/or assistance (e.g. you do not possess or otherwise have access to the information requested). We may charge our reasonable costs on a time and materials basis in providing you with such assistance;
• retain personal data in accordance with the retention periods set out in our Privacy Notice;
• make available to you all information necessary to demonstrate compliance with the obligations laid down in Article 28(3) and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you provided: (i) you give us at least 7 days prior notice of an audit or inspection being required; (ii) you give us a reasonable period of time to comply with any information request; (iii) ensuring that all information obtained or generated by you or your auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential; (iv) ensuring that such audit or inspection is undertaken during normal business hours, with minimal disruption to our business; (v) no more than one audit and one information request is permitted per calendar year; and (vi) paying our reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits;
• take reasonable steps to ensure the reliability of anyone who we allow to have access to personal data, ensuring that in each case access is limited to those individuals who need to know or access the relevant personal data, as necessary for the purposes of the Terms; and
• notify You without delay (and if possible within 24 hours) upon us or any sub-processor becoming aware of a personal data breach affecting personal data processed on Your behalf, providing You with sufficient information to allow you to meet any obligations to report or inform data subjects of the personal data breach.

You hereby gives WebUpp consent to engage sub-processors for processing of personal data on your behalf. We shall inform You before transferring any personal data processed on your behalf to a new sub-processor. Following receipt of such information you shall notify us if you object to the new sub-processor. If you do not object to the sub-processor within seven calendar days of receiving the information, you shall be deemed to have accepted the sub-processor. If you have raised a reasonable objection to the new sub-processor, and the parties have failed to agree on a solution within reasonable time, You shall have the right to terminate these Terms with a notice period determined by You, without prejudice to any other remedies available under law or contract. During the notice period, we shall not transfer any personal data processed on Your behalf to the sub-processor.

WebUpp shall enter into appropriate written agreements with all of its sub-processors on terms substantially similar to these Terms. We shall remain primarily liable to You for the performance or non-performance of the sub-processors’ obligations. Upon your request, we are obliged to provide information regarding any sub-processor, including name, address and the processing carried out by the sub-processor.

We will not transfer personal data processed on your behalf to a country outside the United Kingdom which is not recognised by the European Commission to have an adequate level of protection in accordance with Data Protection Law unless the transfer is effected by such legally enforceable mechanism(s) for transfers of personal data as may be permitted under Data Protection Laws from time to time.

Limitation of Liability

• Neither party shall be liable to the other in contract, tort (including negligence) or otherwise for any special loss or indirect loss of profits, business or anticipated savings, or for any indirect or consequential loss or damage suffered by the other.
• Neither party excludes or restricts liability for death or personal injury resulting from negligence.
• WebUpp will not be liable for any material or financial impact on Your business or sales from the implementation of a website for You, and will not be liable for any material changes in appearance or placement or ranking within search engine listings.

Force Majeure

• WebUpp will not be considered in default or liable under this Agreement if it fails to perform any of its duties as a result of an act of God, act of government or state, civil commotion, embargo, epidemic, fire, flood, insurrection, war, disablement or disruption to the telecommunications network or any other reason beyond WebUpp’s control (“Force Majeure”).
• In the event of Force Majeure, WebUpp will use reasonable endeavours to overcome such delays.
• If the Force Majeure circumstance continues for a consecutive period of 4 weeks or more, either party may give notice to the other to forthwith terminate this Agreement.

Confidentiality

• Each party shall keep secret and treat as confidential all information obtained from the other and shall not disclose such information to any person other than its employees, agents, sub-contractors and professional advisers where such disclosure is required for the performance of the party’s obligations or any dispute arising under this Agreement. This clause shall not extend to information which was already in the lawful possession of a party prior to this Agreement which is already public knowledge or becomes so subsequently (other than as a result of a breach of this clause) or which is trivial or obvious. The obligations of confidentiality under this clause shall survive any termination of this Agreement.
• Each party agrees that it will not issue any news release or other communication about this Agreement and the WebUpp service without the prior approval of the other party, such approval not to be unreasonably withheld or delayed.

Domain Names

Where we provide a .uk or .com domain name for you as part of your Service, this domain will be registered for at least as long as you use our service. If you no longer wish to use our service then we are happy to transfer the domain name to another hosting business as you wish.

Existing Domain Names

Where a domain name has already been purchased by You or Your agent, we will offer to transfer that domain name into the Domain Name Registrar of our choice in order that we can provide full support for your Service.

Where your package includes domain name renewal, we will not cover the cost of renewal of your domain name unless it is transferred to our chosen Domain Name Registrar.

Should You decide not to transfer that domain name to the Registrar chosen by WebUpp as part of your Service, it is crucial that we are given full access to the domain name control panel. This enables WebUpp to direct your domain name at the appropriate server and to make the appropriate domain name server changes that may be required.

Termination

• Either party shall be entitled to terminate this Agreement effective at the end of the initial 18 month period by one months written notice to the other party for any reason but also if that other party commits any material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy it within 21 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
• Either party shall be entitled to terminate this Agreement forthwith by notice in writing to the other in the event that the other is involved in legal proceedings concerning its solvency, or ceases or threatens to cease trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of a solvent amalgamation or reconstruction, or makes any arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or equivalent circumstances occur in any jurisdictio
• Upon termination of the Agreement WebUpp shall, if required, return to You all records or other such materials relating to the business or operation of Yours, which are in the possession of WebUpp.

Third Parties

A person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

Intellectual Property Right Indemnity

• Each party shall indemnify the other against all liabilities and expenses (including reasonable legal costs) incurred by the other in relation to a claim that the use by that other of any material prepared by the first knowingly infringes the intellectual property rights of any person.
• The intellectual property of any generic content (sourced from WebUpp or WebUpp’s technologies or content), and the full functionality design and content of WebUpp’s technologies, either created by or provided by WebUpp, is solely retained by WebUpp. You waive all rights to any claims to these.
• The intellectual property of the design, structure, aesthetic, functionality, images and any other content provided by You to WebUpp, or uploaded by You to WebUpp’s technologies, as part of the bespoke website and any data contained within the website, shall be solely retained by You. WebUpp waives all rights to any claims to these.

Governing Law

This Agreement shall be governed by English Law and the parties agree that the English Courts shall have exclusive jurisdiction to settle any dispute arising out of or in connection with the Agreement.

End