Terms governing the use of our services.
1. DEFINITION OF PRODUCT/SERVICES
“Contract” means the contract between the Consultant and the Client, which includes these terms and conditions.
“Customer” means the organisation or individual requesting a Solution.
“Consultant” means Mr Flynn Creative.
“Electronic Media” means work in a digitised electronic form readable from a screen including CD-Rom, Website, Social Media and Database material and any links to and publication on the World Wide Web or server.
“Licence” means the exclusive and non-transferable copyright licence set out in clause 8.4 below.
“Solution” means the design work, marketing advice and analysis, provision of a concept and includes any electronic media system devised and licensed by the Designer together with any services required in order to deliver the Solution.
Acceptance of the Contract occurs upon receipt by the Consultant of the agreement of the Order whether verbally or in writing, or receipt of deposit.
3. PAYMENT OF THE CONTRACT PRICE
The Customer shall pay to the Consultant the balance of the Contract Price, as soon as the order has been completed and certainly no longer than 30 days after the date of the invoice from the Consultant. This timescale does not include the provision and supply of subsequent resource helps material or training which can follow once the order is complete. The Consultant may require a deposit of up to 50% prior to the commencement of work. The Consultant may charge interest on any overdue amount at the rate of 2% above the HSBC base rate per month or part thereof from the date upon which payment is due. The Consultant may also suspend delivery of the Solution.
3.1 Monthly support, hosting or service contracts cannot begin until a standing order or BACS payment has been set up, unless special agreement has been reached in advance.
3.2 Mr Flynn Creative has the right to charge the client up to 85% of the total project contract price such as website design, should the client cancel the agreement after the design concepts have been agreed but prior to the project going live. The scale of the charge will be dependent on what stage the project is at when the cancellation takes place.
3.3 Once the site goes live or monthly retained services agreed any early cancellation of your standing order will be deemed a break in contract. In this case you would be liable for the balance of the contract to be paid with immediate effect plus a £10 admin fee (The admin fee covers time taken to discover the cancellation, generating an invoice and sending).
3.4 Alterations to standing order mandates to reflect new or changed contracts are the sole responsibility of the client. Overpayments to Mr Flynn Creative as a result of not updating a standing order mandate will not be reimbursed to the Client.
3.5 Underpayments or missed payments, however, shall be backdated to the point at which the underpayment or missed payment was discovered or reconciled on the cancellation of a contract and the Client shall be responsible for bringing their account up to date within a reasonable period of time.
3.6 Contract lengths are normally 12 months unless agreed beforehand between the Client and Mr Flynn Creative. Mr Flynn Creative requires a minimum of 30 days notice to cancel a support, hosting or service contract.
4.1 The date of delivery of the Solution is approximate only. Unless otherwise expressly agreed in writing by the Consultant, time is not of the essence of the Contract.
4.2 Unless otherwise agreed, delivery is carried out at the risk of the Customer.
The Contract cannot be cancelled in whole or part by the Customer except on terms that will fully compensate the Consultant for any foreseeable expense or loss.
6. CONSULTANTS OBLIGATIONS
The Consultant agrees to deliver the Solution to the Customer in accordance with the instructions provided at Schedule 1 hereto.
7. THE RESPONSIBILITIES OF THE CUSTOMER
The provision of the Solution is subject to the following conditions which remain the responsibility of the Customer. The Customer agrees to;
7.1 Provide all data, information and any source material required by the Consultant for the purposes of producing the Solution.
7.2 Be responsible for fully co-operating with the Consultant.
7.3 The Customer agrees that the data, information and any source material contains nothing obscene, blasphemous, libellous or otherwise unlawful and that the exploitation of the Licence will not infringe the copyright or any other rights of any third person.
8.1 Proofing of all work may be submitted for Customer’s approval and the Consultant shall incur no liability for any errors not corrected by the Customer in proofs so submitted whether in print or online. Customer’s alterations and additional proofs necessitated thereby shall be charged extra. When style, type or layout is left to the Consultant’s judgment, changes therefrom made by the Customer shall be charged extra.
8.2 Due to difference in equipment, monitors, phones, paper, inks, etc and other conditions between colour proofing, production runs and screen settings, etc a reasonable variation in colour between colour proofs and the complete job will be deemed acceptable unless otherwise agreed.
9. INTELLECTUAL PROPERTY
9.1 All copyright and other rights relating to the Solution including the Electronic Media , coding, source files, way of working, etc, shall be the property of the Consultant and the Customer shall have no rights thereto except for the licence to use it granted by this Contract.
9.2 The Consultant asserts to the Customer its assignees licensees and successors in title his moral right to be identified as the author of the Solution in accordance with the Copyright, Designs and Patents Act 1988 Section 77 and 78.
9.3 Subject to the terms of this Contract and in consideration of the Contract Price, The Consultant grants to the Customer an exclusive and non-transferrable licence to produce, reproduce distribute and use the Solution so licensed in the UK during the term of the licence and throughout the World.
9.4 The Customer shall not during subsistence of the Licence or at any time subsequently register or use any of the Consultant’s copyright in its own name as proprietor.
9.5 The Customer recognises the Designer’s copyright and shall not claim any right title or interest in it.
9.6 The Customer shall notify the Consultant immediately upon becoming aware of any unauthorised use or copying of the Solution.
9.7 The Consultant shall have the sole right to take action against third parties in respect of any infringement of its rights and if required to do so by the Consultant, the Customer shall co-operate fully with the Consultant in any such action which shall include if the Customer wishes being joined as a party to any such action.
9.8 The Customer shall not translate or adapt the Solution for any purpose nor arrange or create derivative works based on the Solution without the Consultant’s express written consent in each case.
9.9 The Customer shall not assign mortgage charge or otherwise deal with the benefit of the Licence or grant any sub-licence without the prior written consent of the Consultant.
9.10 The Customer shall indemnify The Consultant fully against loss, damage or expense which it may suffer or incur (including professional fees and cost of staff time on a full indemnity basis) as a result of the infringement of the copyrights, patents, trade secrets or similar rights of any third party as a result of this Contract and the customer’s exploitation of the Licence or as a result of the Consultant’s reliance on information supplied by the Customer.
10. RISK AND RETENTION OF TITLE
Until the time of full payment of any outstanding monies, the Customer shall be bailee of the Solution on behalf of the Consultant and shall keep it safely. The Consultant may withdraw permission at any time prior to full payment to use the Solution and to require its return.
11. EXEMPTIONS AND LIMITATIONS
11.1 The Customer accepts that it is responsible to select how the Solution will meet its specific requirements in relation to its communications with third parties.
11.2 Whilst the Consultant may accept liability for death or personal injury directly caused by its act or omission or for direct physical damage of Customer’s tangible property, he will not be liable for loss or damage howsoever caused (even if foreseeable) where:-
(1) Any alleged default has been corrected.
(2) The loss complained of is economic, to include, loss of profits, business, revenue or goodwill.
(3) Special, indirect or consequential loss or loss arising from third party claims.
(4) Loss caused by the Consultant acting under the instructions of the Customer, employees or agents.
(5) The loss is caused by the Customer.
(6) The loss is caused by a third party, including a supplier of services pursuant to this Contract, other than the Consultant.
(7) The loss is caused by lost or delayed delivery of the Solution or any part of it.
11.3 The Customer shall always inform the Consultant of any alleged default of this Contract and shall afford it a reasonable opportunity of correcting the alleged default.
11.4 The Consultant shall not be liable for damages in excess of the total Contract Price.
11.5 The Customer agrees to indemnify the Consultant against all actions, proceedings, claims and demands in any way connected with this Contract or the Solution save to the extent that the Consultant is liable to the Customer.
11.6 The Customer acknowledges that the Contract Price has been calculated on the basis that the Consultant excludes and/or limits its liability to the Customer in accordance with the Contract and that the exclusions and limitations contained in the Contract are fair and reasonable in all the circumstances known at the date of the Contract;
11.7 Each of the limitations and exclusions set out above is to be construed as a separate limitation or exclusion, applying where other limitations or exclusions are held inapplicable or unreasonable, and shall remain in force despite termination of the Contract.
12. RESTRICTION ON DATA TRANSMISSION
The Customer shall be responsible for complying with any law (whether applying in the United Kingdom or elsewhere and whether now in force or coming into force hereafter) restricting or affecting the transmission or processing of data and shall be responsible for obtaining any permission or licence therefore, and shall be responsible for (and shall indemnify the Consultant against) the payment of any fee, duty or transmission charges payable in relation thereto.
If the customer ceases to pay its debts in the ordinary course of business or cannot pay its debts as they become due or being a company is deemed to be unable to pay its debts or has a winding-up petition issued against it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against it, the Consultant without prejudice to other remedies shall (i) have the right not to proceed further with the contract or any other work for the customer and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the customer, such charge to be an immediate debt due to Mr Flynn Creative, and (ii) in respect of all unpaid debts due from the customer have a general lien on all goods and property in the Consultant’s possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property in such manner and at such price as the Consultant thinks fit and to apply the proceeds towards such debts.
The Consultant shall exercise all reasonable care in keeping information supplied by the Customer confidential and preventing access thereto by unauthorised persons, but shall have no liability for any failure in this connection.
15. DATA PROTECTION
By placing an order with the Consultant, the customer consents to its details being used for accounting and marketing purposes. The details will be kept by the Consultant even after the customer’s trading relationship has terminated. The Consultant may use the customer’s personal data to let customers know about goods and services similar to the goods or services provided to the customer previously and any others matters that the Consultant considers may be of interest to customers.
16. WAIVER / AMENDMENT
16.1 The terms of the Contract cannot be amended, changed, waived, discharged or terminated verbally, but only by a statement in writing signed by the respective duly authorised representatives of the Consultant and the Customer.
16.2 The Consultant’s failure at any time to require strict performance by the Customer of any provision of the contract shall not waive or diminish the Consultant’s rights subsequently to demand strict performance of that provision or of any other provision.
17. UNENFORCEABLE PROVISIONS
Any term, condition, stipulation, provision, covenant or undertaking in the Contract which is legal, void, prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent it is unenforceable without invalidating the remaining provisions hereof, and any such illegality, voidness, prohibition or unenforceability in any jurisdiction shall not invalidate or render illegal, void prohibited or unenforceable any such term, condition, stipulation, provision, covenant or undertaking in any other jurisdiction.
18. FORCE MAJEURE
Neither the Consultant nor the Customer shall be liable for any loss or damage caused by delay or failure to fulfil its obligations under this agreement where such delay or failure is due to any cause beyond the control of the Consultant or the Customer, as the case may be, including (without limitation) acts of God, war or warlike action, civil disorder, insurrections or riots, fire, storm, flood, explosions, earthquakes, epidemics or quarantine restrictions, sabotage, government disorders, priorities or regulations affecting materials or facilities, court orders, strikes actual or threatened, labour troubles causing cessation, slowdown or interruption of work, inability to obtain necessary governmental or regulatory authority approval, delay or cancellation of any commercial air service, or any cause to the extent it is beyond the parties’ reasonable control. If the Consultant is prevented from fulfilling all or part of the Contract due to force majeure, the Customer may make alternative arrangements and will not be liable to pay for what is not provided. The Customer must make all payments due before or after the event of force majeure.
19. WHOLE AGREEMENT
19.1 The Contract and the documents referred to in it including the Schedule, contain the whole agreement between the parties relating to the transactions contemplated by the Contract and supersede all previous agreements between the parties relating to these transactions. 19.2 The Customer acknowledges that in agreeing to enter into this agreement it has not relied on any representation, warranty or other assurance except those set out in the contract and the documents referred to in it.
20. APPLICABLE LAW
The Contract shall be subject to the laws of England and the Customer irrevocably submits to the exclusive jurisdiction of the English Courts.
Web hosting service level agreement
Service Level Agreement
This agreement describes the standard level of service that all website hosting customers can expect from Mr Flynn Creative. It attempts to quantify the levels of service that all hosting customers can expect, and the remedies we offer if we fail to provide service at those levels.
Mr Flynn Creative provide a reactive hosting service for all websites and offer a 99% uptime. We do not constantly check the websites we host to ensure they are functioning correctly as routine use, maintenance and software updates can affect website functions. It is therefore the responsibility of the client to ensure their website is operating as it should. ‘Always on’ and ‘managed hosting services’ support can be provided and can be quoted on on a case-by-case basis.
99.9% Network and Servers Uptime
Mr Flynn Creative guarantees that the customer’s website, which is hosted on our licensed network and Servers, will be available 99.9% of the time, excluding maintenance, as defined below. Network downtime is defined as the customer’s hosted website being unable to be viewed or accessed through the Internet, caused by failure of network equipment managed and owned by Mr Flynn Creative Cloud hosting providers, excluding scheduled or emergency maintenance.
Maintenance means scheduled maintenance or emergency maintenance. Scheduled Maintenance means any maintenance in the Mr Flynn Creative network/servers of which the customer is notified at least 5 days in advance. Emergency maintenance means any maintenance in the Mr Flynn Creative network/servers that: (a) in Mr Flynn Creative’s sole discretion, is necessary to avoid an immediate threat to the Mr Flynn Creative networks/servers or customer’s server and (b) of which customer is notified.
Support, unless noted otherwise in a supplementary service level agreement, technical support is provided by Mr Flynn Creative on a first-come, first-served “best effort” basis. We aim to at least acknowledge, if not fully answer, all emails to our advertised support address (email@example.com) within 4 working hours. We aim to answer the phones during working hours, but under times of high demand or staff sickness, may defer to an answering service where we promise to return all messages as soon as possible.
WordPress and Joomla
For those websites hosted by Mr Flynn Creative which have been built (or part-built) upon the WordPress or Joomla platform, please be aware that WordPress (and sometime Joomla depending upon how it’s set up) irregularly makes updates which means that Mr Flynn Creative may need to make updates to your site so that your website continues to work upon our licensed servers. It is not known how many times per annum that WordPress or Joomla makes updates, however, we estimate between 4 – 8 updates per year. The more functionality a WordPress or Joomla site has the more time needed to make updates to that website. Mr Flynn Creative works reactively for such updates – we respond should we be informed of a critical change (by WordPress or Joomla) or should the client point out an error in functionality. Please note, Mr Flynn Creative cannot be held responsible for any functionality failure caused directly by an update to WordPress or Joomla or a plug-in of which we were not made aware. Mr Flynn Creative will charge a minimum of £250 per annum for these updates. This cost will be invoiced at the same time as the hosting fee which is yearly in advance or during or after any work in this regard requested by the client. Please note, WordPress and Joomla updates are not considered to be maintenance of a website.
On occasion, when budget, time or requested functionality limits the opportunity for a bespoke build, an off-the-shelf solution in the form of a third party plug-in may be implemented.
Premium plug-ins may in some cases, require a subscription based or one-off licensing fee. Whilst Mr Flynn Creative will make every effort to minimise ongoing maintenance costs, premium plug-ins will need to be updated outside of our update agreement, with any additional costs agreed by and passed onto the client.
Website hosting runs annually, paid in advance. An invoice will be sent automatically at the time of renewal. Should a client not wish for Mr Flynn Creative to renew the hosting service, we request a notice period of one month in advance of cessation along with details to where you would like the web files sent. Mr Flynn Creative will charge a minimum of £85 for the collation and transfer of these files. If we do not hear such a request, it will be assumed that you do wish the web hosting to be renewed and are in agreement with the terms for the following year.
Should Mr Flynn Creative be informed after this months notice period, Mr Flynn Creative cannot be held liable for any delays caused in the transfer of hosting of your website to another server.
The Service level agreement runs in conjunction with Mr Flynn Creative’s standard terms and conditions.
The customer shall not be entitled to any credit hereunder if the network downtime is caused by: (i) actions of the customer or others authorised by the customer to use the service under the Agreement; (ii) customer application, software, or customer’s operating system failure, (iii) the result of network maintenance activity, (iv) denial of service attack, hacker activity, or other malicious event or code targeted against Mr Flynn Creative, our service provider or a Mr Flynn Creative customer, or (v) failure of any network or Internet Infrastructure not owned or managed by Mr Flynn Creative. (vi) If customer has more than one website hosted on Mr Flynn Creative networks or servers, then a claim may be accepted for one hosted website.
1. “Mr Flynn”, “we”, “us”, “our” means Mr Flynn Creative a Digital Agency.
2. “Service” means any hosting or connectivity service offered by Mr Flynn Creative, including but not limited to Hosting Services or Dedicated Hosts, Support and Maintenance Agreements.
3. “Customer”, “you”, “your” means you, the person or persons in whose name(s) a service is maintained by.
4. “Technical contact” means a person or persons nominated by the Customer with whom Mr Flynn Creative can discuss all matters of a technical nature relating to the Service.
5. “Working hours” means 9.30am to 5.30pm, Monday to Friday, excluding English bank holidays.
Mr Flynn Creative reserves the right to add, delete, or modify any provision of these Terms and Conditions at any time without notice. Failure to receive notification of a change does not make those changes invalid. These Terms and Conditions will always be available to download or print from our website.