Terms and Conditions
In these conditions, unless the context requires otherwise:
”Customer” means the company, firm, body or person purchasing the Services from Clystnet.
”Contract” means a contract, subject to these conditions, for the provision of the Services between Clystnet and the Customer.
”Clystnet ” means Clystnet Ltd whose registered address is Clystlands House, Station Road, Broadclyst, Exeter, EX5 3AZ
“Order” means a purchase order in respect of the Services completed or agreed by the Customer and submitted to Clystnet, together with all documents referred to in it.
”Quotation” is an agreed piece of work (incorporating these conditions) provided by Clystnet to the Customer in respect of the Services. No contract will come into existence until Clystnet written acceptance or order form has been completed and signed on behalf of the Customer and the order acknowledgement has been signed on behalf of Clystnet.
“Services” means the subject matter of each Contract between the Customer and Clystnet, being the work and/or services or any of them to be performed by Clystnet for the Customer pursuant to the Order.
”Standard Form” means Clystnet standard form of Order.
1.1 A Quotation shall not be binding of Clystnet and a Contract will only come into being upon acceptance by Clystnet of the Order by signing or counter signing the date of the order and returning it to a customer.
1.2 The Contract will be subject to these conditions. All terms and conditions appearing or referred to in the Order or otherwise stipulated by the Customer shall have no effect, unless such Order is in the Standard Form. Any variation to the Contract must be confirmed in writing by Clystnet.
1.3 Quotations submitted by Clystnet shall remain open for acceptance by the Customer for a period of 7(seven) days from the date of the Quotation (unless in the Quotation some other period is specified) or when Clystnet withdraws the Quotation.
1.4 These conditions shall, to the extent applicable, apply to goods and products in the same way as they apply to Services.
1.5 The minimum length of any ongoing website services purchased will be 6 months.
2.1 Where the Services are sold by reference to Clystnet published price list or tariff structure, the price payable for the Services shall be the ruling price as published in the price list or tariff structure current at the date of purchase.
2.2 Quotations submitted to Clystnet shall remain open for acceptance by the Customer for a period of 7(seven) days from the date of the Quotation (unless in the Quotation some other period is specified) or when Clystnet withdraws the Quotation.
2.3 Clystnet shall (if applicable) add to the price of the Services, and the Customer shall pay, an amount equal to any VAT or other sales tax or duty applicable from time to time to sales or supply of such Services.
2.4 Any price changes will take effect from the 1st day of the month and the customer will be notified in writing 7(seven) days before any price change takes effect.
- TERMS OF PAYMENT
3.1 Subject to clause 3.2 the Customer shall, at the time of submission of an Order to Clystnet, pay to Clystnet a non-refundable deposit for the Services specified on the Order of 30% of the value shown on the Order.
3.2 In respect of web hosting and domain registration full payment is required with order.
3.3 Clystnet shall invoice on a monthly basis for all work completed during the prior month.
3.4 For support and hosting Clystnet shall invoice monthly or annually in advance of each period as agreed.
3.5 Clystnet shall invoice the Customer for all remaining Services (less any amount already invoiced) immediately on completion of the Web Site and prior to publication on the web.
3.6 Unless otherwise agreed in writing by Clystnet and without prejudice to clause 3.1, invoices shall be payable by the Customer immediately upon completion of the work to which the invoice relates.
3.7 The Customer shall make all payments due to Clystnet by telegraphic or electronic transfer direct to the company bank account or by arranged standing order (and in each case in pounds sterling) or by direct debit.
3.8 If the Customer fails to pay any amount due Clystnet under this Agreement on the relevant due date, default interest at the rate specified by the Late Payment of Commercial Debts (Interest) Act 1998 shall be added to such amount for the period from the day after the due date until the date of receipt (whether before or after judgment) together with any reasonable and proper amounts incurred by Clystnet in seeking to recover such late payment from the Customer (including, without limitation, legal fees). Furthermore, additional work will not be carried out whilst an amount due to Clystnet remains unpaid.
3.9 In respect to web hosting, support and domain registration, services will be withdrawn if a Customer fails to pay an amount due for a period exceeding 7 days.
3.10 If developing a new website and after a period of 28 days, Clystnet have not received sufficient content to complete your website design, the full remaining balance will become payable.
- WEB SITE (CMS) DESIGN
4.1 The client unconditionally guarantees that any element of text, graphics photographs or other artwork furnished to Clystnet for inclusion in the web design project are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend Clystnet and its subcontractors from any claim or suit arising from the use of such elements furnished by the client.
4.2 All creation files remain the intellectual property of Clystnet on completion of a web design project.
4.3 Clystnet shall be free to reproduce, use, disclose, display, exhibit, transmit, perform, create derivatives works, and distribute any item from the client’s web pages unless specifically agreed to do otherwise. Further, Clystnet shall be free to use any ideas, concepts, know how or techniques acquired in the construction of web sites for any purpose whatsoever including but not limited to developing, manufacturing and marketing products and any other items incorporating such information unless specifically agreed otherwise.
- SEARCH ENGINE OPTIMISATION (SEO)
5.1 Whilst Clystnet will try to improve the position of your website in Search Engine results in response to a search request, we do not warrant that this effort is in any way guaranteed.
5.2 Clystnet cannot be held responsible for any changes to the position of your Web Site in the Search Engine results in response to a particular search.
5.3 If deemed necessary by Clystnet you may be asked to make changes to your website. If your website has been built and is hosted by Clystnet, these changes will be made by us. If however, your website has been built or is hosted by another company, it is your responsibility to arrange any changes Clystnet may request and cover any costs associated with these changes.
5.4 Clystnet will not guarantee a page 1 listing on any search engine.
- DOMAIN NAME SERVICES
6.1 Clystnet are registered Reseller Partners for domain name registration, website hosting and mailboxes through 1&1, Heart Internet or 123 Domains. The registration of a domain name, hosting of a website or registering of mailboxes on behalf of the client is subject to the terms and conditions of these businesses on their individual websites.
6.2 Clystnet will accept no liability for any financial loss resulting from a domain not being renewed.
6.3 Clystnet shall have no liability arising from any financial loss arising from any registered mailbox not being available.
6.4 A charge of £25 will be charged for any domain transfer. A domain will only be transferred if this has been paid as well as any other outstanding balance owed to Clystnet
- E COMMERCE CMS WEBSITES
7.1 The client is subject to the terms and conditions of this business on their individual websites.
7.2 Clystnet will accept no liability for any financial loss resulting from the use of any E Commerce website.
7.3 Clystnet reserve the right to use any services from third party sources if deemed to be necessary.
- CRM AND CMS DEVELOPMENT
8.1 Where the development of Application Software forms part of the Services (unless provided in the Proposal to the contrary):
8.1.1 Clystnet will liaise with The Customer to assist in refining and defining the technical, business, functional and non-functional requirements which constitute the basis of the Specification and will develop the Application Software to the Specification;
8.1.2 Where performance issues are identified Clystnet will highlight these to The Customer at the earliest opportunity.
8.1.3 Clystnet will system test the Application Software prior to releasing it into User Acceptance Testing ("UAT").
8.1.4 Clystnet will at The Customer election and cost provide on-site personnel to assist The Customer in the installation and configuration of the Application Software into production.
8.1.5 Where the Application Software comprises enhancements to a pre-existing application Clystnet will (where possible) ensure that the Application Software adheres to the existing look and feel of the system, to include without limitation, the presentation of information, the naming conventions for fields, buttons.
8.1.6 Where Clystnet is responsible for the integration of Third Party Software into the Application Software Clystnet will escalate any issues arising to The Customer.
- SUPPORT AND MAINTENANCE
9.1 The Customer must provide adequate information and documentation to enable Clystnet to identify and / or recreate the issue. Clystnet may notify the Customer that the issue could not be recreated, located or identified, if such is the case. Clystnet will notify the Customer that the issue cannot be resolved and will provide a reason for this decision. Clystnet reserves the right to charge the Customer for the time it has spent investigating and / or resolving the issue by way of service points on an Emergency Consultancy basis which shall be charged at the rates set out in our support documentation. Notwithstanding the provisions of this Agreement, and with the knowledge that reasonable efforts will be made to diagnose and resolve faults that occur, Clystnet makes no warranties that the Support Services provided hereunder will be successful in resolving all difficulties or issues or in diagnosing all faults that arise within the Customer’s CRM or CMS environment.
9.2 Clystnet accepts no responsibility or liability for hardware problems nor the software applications where they have been subject to improper use, neglect, or any modification by the Customer.
9.3 If a customer is providing their own hosting, it shall be the Customer’s sole responsibility to ensure that all aspects of the server and client computer systems relating to the CRM application are kept up-to-date with recommended patches and updates. Clystnet shall have no responsibility for the support of these patches and updates.
9.4 Implementations and upgrades to new versions (e.g. future versions of vTiger CRM) are not included in the support services under this Agreement. These upgrades will be made available to the Customer, subject to availability and for the then-current price and on the standard licencing arrangements.
9.5 Once an upgrade has been applied, the upgraded version of the CRM or CMS will be covered and supported under the terms of this Agreement.
9.6 Clystnet shall have no responsibility for system availability, server issues or the Customer’s own network performance.
9.7 Unauthorised changes or modifications to the products or applications will not be supported under this Agreement. Where such changes have taken place, Clystnet is relieved of its responsibilities and liabilities for this element of the system.
9.8 Where an incident is reported by the Customer that is caused by an identified bug in a third party application, including mySQL Server and other non-Clystnet provided applications, Clystnet will make full use of the Publisher’s resources to identify the resolution for the known bug via the Publisher’s knowledge platform / resources. This time will be charged at the standard Emergency Consultancy rates.
9.9 Where an incident is reported by the Customer that is caused by an unidentified bug in a third party application, Clystnet will notify the Publisher of the software and seek assistance to provide a resolution. The Customer shall be liable to pay any resulting sums incurred by Clystnet. As well as seeking assistance from the Publisher of the software, Clystnet will also make reasonable effort s to use its own resources to find a resolution.
9.10 On-site consultation, if requested by the Customer, and subject to the availability of Clystnet’s technical staff, except where covered by this Agreement, will be provided at Clystnet’s then current standard rates, which are available on the Clystnet’s website.
10.1 Where Hosting forms part of the Services to be provided, Clystnet will provide hosting services to the extent specified in the Proposal document. Clystnet shall remedy any disruption to the hosting service ('Downtime') as soon as reasonably practicable.
10.2 Unless specified to the contrary, Clystnet does not monitor and will have no liability for the content of any Website hosted by it as part of the Services.
10.3 The Customer shall not distribute on the Website any material or other information which:
10.3.1 infringes the Intellectual Property rights of any third party;
10.3.2 is in breach of any law, statute or regulation;
10.3.3 is obscene, pornographic or indecent; or
10.3.4 contains any virus or other computer programs intended to cause interruption and/or damage and The Customer will indemnify Clystnet for any breach of this clause 10.3.
10.4 Where an IP address is allocated as part of the Services:
10.4.1 The Customer acknowledges that it has no right, title or interest in such IP address;
10.4.2 The IP address is not portable or transferable;
10.4.3 Clystnet may change the IP address at any time and The Customer shall relinquish any IP addresses upon expiry of the Term or termination of this Agreement (whichever is earlier) for any reason.
- WARRANTY AND LIMIT OF RESPONSIBILITY
11.1 Clystnet acknowledges and agrees that it shall perform the Services:
11.1.1 with reasonable skill and care; and
11.1.2 in accordance with good industry practice.
11.2 The Customer acknowledges and agrees that Clystnet shall have no liability to the Customer in respect of the positioning of the Customer’s Web Site.
11.3 The Customer’s remedies in respect of any claim under the foregoing express warranty or any condition or warranty implied by law or any other claim in respect of the Services or Web Site or any workmanship in relation to them (whether or not involving negligence on the part of Clystnet) shall, in all cases, be limited to re-performance of the Services or refund of the relevant purchase price.
11.4 Clystnet shall not in any circumstances be liable to the Customer for any indirect or consequential losses or any loss of profits purported to have been suffered by the Customer.
11.5 Clystnet shall not be liable for any failure in the performance of any of its obligations under the agreement caused by factors outside its control.
- DELIVERY AND COMPLETION DATES
12.1 Clystnet undertakes to use its reasonable endeavours to provide completed Services to the Customer within 30 days of the date on which Clystnet receives a signed Order from the Customer.
12.2 The dates for carrying out the Services and delivery of any resultant Web Site are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery or performance.
12.3 Clystnet will not be liable in any circumstances for the consequences of any delay in delivery or performance or failure to deliver or perform save where the same is as a result of the negligence of Clystnet
12.4 No delay (unless material) shall entitle the Customer to reject any delivery or performance or any other Order from the Customer or to repudiate the Contract or the Order.
- RESONSIBILITY FOR APPROVING CRM OR CMS
13.1 The Customer acknowledges and agrees that Clystnet shall produce the CRM/CMS based on information provided for it by the Customer.
13.2 Notwithstanding clause 13.1, it shall be the responsibility of the Customer (and not Clystnet) to review and approve the content of the CRM/CMS (including, without limitation, the spelling of names and addresses and the accuracy of telephone numbers) at the time of the completion of such Web Site by Clystnet to the Customer for approval by the Customer.
13.3 Clystnet shall have no liability to the Customer for any inaccuracies in the CRM/CMS if and to the extent that the Customer has failed to review and/or approve (or require amendment (as the case may be)) provided to the Customer by Clystnet pursuant to this Agreement.
14.1 Clystnet may terminate the Contract immediately in the event that the Customer is in breach of its obligations under the Contract and/or the Customer suffers any event of insolvency or is or becomes unable to pay its debts as they fall due.
14.2 Clystnet may at its discretion suspend or terminate the supply of any goods and services if the Customer fails to make any payment when due or otherwise defaults in any of its obligations under the contract or any other agreement with Clystnet or becomes insolvent, has an administrative receiver appointed of its business or is compulsorily or voluntarily wound up or Clystnet bona fide believes that any of those events may occur and in any case of termination may forfeit any monies paid.
14.3 Clystnet may by written notice terminate the Agreement immediately and without liability for compensation or damages except as mentioned in this agreement if the Customer fails to make payment as specified above.
14.4 Clystnet may by written notice terminate the Agreement immediately and without liability for compensation or damages except as mentioned in this agreement if it is deemed no longer financially viable to continue.
14.5 Any contract cancelled by the customer during the first six (6) months will incur a penalty charge of £150 (one hundred & fifty pounds).
- THIRD PARTY CLAIMS
The Customer shall indemnify Clystnet and keep Clystnet indemnified from and against any and all actions, costs (including, without limitation, the cost of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement or alleged infringement by a third party of any patent, registered design, unregistered design, design right, copyright, trade mark or other industrial or intellectual property rights resulting from compliance by Clystnet with the Customer’s instructions, whether express or implied.
- ASSIGNMENT AND SUBCONTRACTING
16.1 None of the rights or obligations of the Customer under the Contract may be assigned or transferred in whole or in part without the prior written consent of Clystnet
16.2 The Web Site shall be for the sole use of the Customer and shall not be capable of assignment to a third party by the Customer.
16.3 Clystnet shall be entitled to sub-contract any work relating to the Contract without obtaining the consent of, or giving notice to, the Customer.
17.1 Any notice or other communication to be given under these conditions must be in writing and may be delivered or sent by first class letter post or facsimile transmission.
17.2 Any notice or document shall be deemed served: if delivered, at the time of delivery; if posted, 48 hours after posting; and if sent by facsimile transmission, at the time of transmission.
The invalidity, illegality or un-enforceability of any provision of these conditions should not affect the other conditions.
- THIRD PARTY RIGHTS
A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
- DATA PROTECTION
20.1 We undertake that we shall and shall procure that our employees shall:-
20.1.1 observe the provisions of the Data Protection Act 1998 in the provision of the Services;
20.1.2 comply with any reasonable request or direction given by you in connection with the requirements of that Act.
20.2 You undertake that you shall and shall procure that your employees shall observe the provisions of the Data Protection Act 1998 in your use of the data that has been processed by
- SUBJECT TO CHANGE
Please read these terms and conditions carefully. By signing a purchase order you agree to be bound by the terms and conditions contained in this document. These terms and conditions are subject to change without notice, from time to time at our sole discretion. We will notify you of amendments to these terms and conditions by posting them to www.clystnet.com
22 LAW AND JURISDICTION
The Contract shall be governed by and construed in all respects in accordance with English and Scottish law and the parties hereby submit to the exclusive jurisdiction of the English and Scottish courts.