Terms & Conditions
(V1.4 August 2018)
1) Definitions
1.1 In these Conditions, the following expressions and words shall have the following meanings unless the context otherwise requires:-
1.1.a "Conditions" means the terms and conditions as set out in this document;
1.1.b "Content" means text, graphics, logos, photographs, images, animations, audio and all other identifiable material relating to the Web site which the Customer requires to be included in the Web site;
1.1.c "Contract" means the contract formed between the Customer and INCO for the provision of the Services as detailed on the Order Form and subject to these Conditions;
1.1.d "Customer" means the other party who has signed these Conditions and has entered into the Contract ordering Services from INCO ;
1.1.e "force majeure" means circumstances outside the control of INCO. Such events shall include (by way of example and not by way of limitation) acts of God, delay or any other matters of any nature whatsoever arising out of war, rebellion, civil strife, strikes, lock-outs and industrial disputes, fire, terrorist activity, adverse weather conditions, failure of the public electricity supply, failure or delay on the part of any sub-contractors (including INCO's internet service provider) beyond its reasonable control, the unavailability of materials, the requisitioning or other act or order made by an government department, council or other constitutional body and all such similar events.
1.1.f "INCO" means APS Digital Limited trading as INCO of Bredon House, 321 Tettenhall Road, Wolverhampton, West Midlands, WV6 0JZ. APS Digital Limited is a company registered in England and Wales with company number 10148912. VAT Registration Number: GB-239-9839-41. Registered Office: APS Digital Limited, Unit 8 Pendeford Place, Pendeford Business Park, Wolverhampton, West Midlands, England, WV9 5HD.
1.1.g "Order Form" means either; the INCO order form stating the range of services required as part of the Contract; or the "Acceptance of Proposal" form that forms part of the project proposal document and which documents the range of services specified as part of the Contract;
1.1.h "Price" means the price to be paid for the Services ordered by the Customer as stated on the Order Form;
1.1.i "Services" means the services and/or products identified on the Order Form and such other services and/or products to be provided by INCO as agreed between the parties in writing;
1.1.j "Web site" means the web site designed by INCO for the Customer pursuant to these Conditions.
1.1.k "Initial Period" means the period of 12 months, beginning on the Contract date or, if applicable, if it is later than the Contract date, the date when INCO informs The Customer that the Web site is ready for approval or the date upon which the Web site Hosting and/or other Services are provided.
2) GENERAL
2.1 These Conditions are to be governed by and construed in accordance with English law, and the Customer and INCO submit to the non-exclusive jurisdiction of the English Courts.
2.2 Any notice sent to INCO by the Customer, or by INCO to the Customer, shall be in writing and will be by registered post, by facsimile or by e-mail to the other party's address as stated in these Conditions or such other address as the respective party has notified to the other in writing. Any notice sent shall be deemed served:-
2.2.a in the case of registered post, the second business day after the day of posting;
2.2.b in the case of facsimile or e-mail transmission if sent during normal business hours (09.00 - 17.30) at the time of transmission; if sent outside normal business hours on the following business day.
2.3 Any amendments to these Conditions must be made in writing, and signed by the authorised representatives of INCO and the Customer.
2.4 Both parties acknowledge that all information, Content, drawings, specifications, documents, contracts, design material and any other data which they have imparted and may from time to time impart to the other pursuant to the Contract relating to their know-how, business, clients, prices, services, the Web site, contracts (including the Contract and these Conditions) is confidential. Both parties agree that such confidential information shall be used solely for the purposes of the Contract and that they will not at any time during or any time after completion, expiry or termination of the Contract use or disclose the same whether directly or indirectly to any third party without the other's express prior written agreement, save to the extent that such confidential information is already within the public domain or subject to clause 2.5 below.
2.5 The Customer acknowledges and agrees that INCO has the right to use the Web site as an example of its work, in the promotion of its business.
2.6 If any term, condition or provision contained in these Conditions is held to be invalid or unenforceable, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
2.7 Neither party shall be entitled to assign the Contract without the prior written consent of the other party save that either party shall be entitled to assign to any person acquiring the whole or substantial part of the party's business. Neither party shall unreasonably delay or withhold their consent to such assignment or request payment for such consent.
2.8 The headings in these Conditions are for reference purposes only and do not form part of the Conditions. They shall not affect the interpretation of these Conditions and are not deemed to be an indication of the meaning of the clause to which they relate.
2.9 Nothing in these Conditions is intended to confer on any person any right to enforce any term of these Conditions which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.
2.10 Save for specific amendments made under clause 2.3 above, INCO may update and/or amend these Conditions for operational reasons at any time. INCO's current Conditions will be published on-line at www.inco-digital.com. Amendments to INCO's Conditions will be deemed to take effect 7 (seven) working days after the amended Conditions are posted to www.inco-digital.com.
2.11 Search Engine Optimisation (SEO) services are subject to the “SEO Supplemental Terms and Conditions” which are also available on www.inco-digital.com.
3) SERVICES
3.1 INCO shall provide the Services to the Customer for the Price.
3.2 INCO may use contractors or other third-parties to construct and/or support the Web site or provide any part of the Services.
3.3 The Customer shall provide INCO with the Content and any other information in any format and on any media that INCO may reasonably require for the purposes of providing the Services.
3.4 Any copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Web site (including without limitation the Content and all software and source codes) shall remain the property of INCO save to the extent that such property was originally supplied by the Customer or is the property of a third party.
3.5 INCO shall notify the Customer when the Web site is ready for approval and shall invite the Customer to inspect the Web site and ensure that the Content is to the Customer's satisfaction. The Customer shall confirm its acceptance of the Web site in writing and shall not unreasonably withhold its acceptance. INCO reserves the right not to make The Web site available "live" on the Internet until such written acceptance is received by INCO.
4) PAYMENT
4.1 The Price is exclusive of VAT, which shall be due at the rate ruling on the date of INCO's invoice.
4.2 Unless expressly agreed in writing to the contrary, INCO shall invoice the Customer at the following stages for provision of the Services:-
4.2.a Development Services will be invoiced in full upon receipt of the Order Form;
4.2.b All other Services will be invoiced in full upon receipt of the Order and on subsequent renewal dates where applicable.
4.3 Additional charges for any changes or additional services agreed to the Services between the parties in writing shall be invoiced at such intervals as the parties agree. Payment of such invoices shall be in accordance with the provisions contained in this clause.
4.4 Payment of the Price and VAT shall be due by the Customer within 7 days of the date of the invoice.
4.5 We understand and will exercise our statutory right to interest under the Late Payment of Commercial Debts (Interest) Act 1998 if we are not paid according to agreed credit terms.
5) TERM
5.1 This Agreement shall come into effect on the Contract date and shall continue in full force and effect for the Initial Period and thereafter for successive 12 month periods unless and until terminated in accordance with Clause 6 of these Conditions or such other Clause as may be applicable in the circumstances.
6) TERMINATION
6.1 INCO shall be entitled at any time to terminate the Contract in its entirety without incurring any penalty, charge or liability whatsoever, in any of the following circumstances:-
6.1.a with immediate effect on the Customer breaching any term, condition or provision contained in these Conditions and (if capable of remedy) the Customer fails to remedy the breach within 28 days of being required to do so in writing;
6.1.b with immediate effect on giving notice in writing to the Customer on the Customer becoming bankrupt or insolvent or being unable or unwilling to pay its debts as they fall due or suspending or ceasing or threatening to cease to carry on any business relevant to these Conditions;
6.1.c with immediate effect on the Customer providing INCO with Content which is unacceptable to INCO as described in clause 7.5 below;
6.1.d on INCO giving the Customer notice in writing which shall take effect 28 days after the date of the notice.
6.1.e with immediate effect if the Customer fails to provide sufficient Content to allow production of the Web site within 6 months of the date of the Contract.
6.2 The Customer shall be entitled to terminate the Contract with immediate effect within 14 days of the date of the Contract by giving INCO notice in writing.
6.3 Upon termination of the Contract for any reason:-
6.3.a INCO shall invoice the Customer for all work carried out at the date of termination of the contract. Such invoice shall be subject to the provisions contained in Clause 4 of these Conditions;
6.3.b INCO shall retain 50% of the Price or the total amount based upon (6.3.a + 6.33.c), whichever is the greater;
6.3.c INCO shall invoice the Customer for all costs paid by INCO pursuant to the Contract i.e. costs including but not limited to the domain name registration fee.
6.4 The Customer may cancel services with Annual charges (including, but not limited to, hosting and domain name fees) by providing notice in writing one month in advance of the renewal date.
6.5 The exercise of rights under this clause by either party shall not affect the rights and obligations of the parties which have accrued or are in existence prior to the party exercising those rights.
7) WEB SITE & CONTENT
7.1 INCO will use its reasonable endeavours to ensure that the Web site will be completed and available within 28 days of receipt of all Content to be supplied by the Customer, unless otherwise stated on the Order Form. Amendments requested after initial receipt by INCO of the Content will be handled at INCO's discretion, and may be subject to additional charge and some delay in completing the Web site or providing the Services.
7.2 If the Customer fails to supply all Content to be provided by the Customer within 28 days of the date of the Contract, INCO reserves the right to build the Web site using whatever Content has been provided by the Customer and any additional Content it sees fit.
7.3 INCO encourages submission of Content by electronic media including, without limitation text documents and scanned images. Whilst INCO will use its reasonable endeavours to return original artwork or other materials submitted, INCO cannot guarantee return or accept liability should any materials be lost.
7.4 The Customer must ensure that any Content submitted for inclusion in the Web site is owned by the Customer or licensed from the third party owner.
7.5 The Customer will be asked to sign a 'Permission to Use' form covering the Content. The Customer shall remain solely responsible for the Content and the Web site. INCO may refuse to include Content if:
7.5.a INCO is not satisfied that the Customer does own copyright in, or has obtained permission from the copyright owner to use any part of the Content;
7.5.b INCO is not satisfied that the Customer has obtained permission to use any trade marks to be used in the Content;
7.5.c INCO believes that any material could be construed as offensive in any way, for example (but not limited to) material of a sexual or racial nature;
7.5.d INCO believes that any material could be construed as illegal in any way under English law, or the law of any other relevant country.
7.6 INCO may promote the Web site in its on-line directory and in any other on-line or off-line media INCO deems appropriate.
7.7 Content, scripts and other programmes provided by INCO for inclusion in the Customer Web site remains the property of INCO and its licensors at all times unless otherwise assigned in writing, and signed by the authorised representatives of INCO and the Customer.
8) HOSTING
8.1 INCO may, as part of the Services, either (directly or through a third-party):
8.1.a Register a domain name chosen by the Customer
8.1.b Host the Web site
8.1.c Provide Internet access
8.1.d Provide e-mail services
8.2 The Customer agrees to comply with our "Acceptable Use Policy" ("AUP") which is published on-line at www.inco-digital.com and acknowledges that INCO and/or its sub-contractors are entitled at any time and without notice to remove the Web site from the server and/or bar access to the same in the event of any violation or alleged or suspected violation of the AUP or this clause or if otherwise authorised so to do by a competent law enforcement agency. In particular, INCO reserves the right on behalf of itself and/or its sub-contractor to suspend the Services should the Customer's usage be detrimental to the other Customer's usage. This may include (by way of example only and not by way of limitation) distribution of large files by email or download or send excessive volumes of email and intentionally using the Web site or email facility to propagate computer viruses.
8.3 The Customer undertakes that any material contained in or linked to its Web site and (if applicable) contained in its discussion group, chat room or bulletin board must comply with the following basic standards:
8.3.a all information and activities must be legal, decent and honest in accordance with English law;
8.3.b data protection legislation within English law must be adhered to in order that the collection of personal information is not traded or disclosed illegally;
8.3.c distance selling requirements as relate to on-line activities must be complied with as laid down in English law;
8.3.d other applicable trading standards and laws and regulations as the same are created from time to time under English law.
8.4 The Customer undertakes to comply with generally accepted principles of internet usage (whether governed by the laws of any jurisdiction or not) including:
8.4.a refraining from sending "spam" mail (unsolicited mass communications, UCE, UBE)
8.4.b never sending mail bombs, trojan horses, viruses or other disruptive programs or devices;
8.4.c never pirating or otherwise illegally occupying software or other proprietary material;
8.4.d never violating the security of any Web site or engaging in unauthorised decryption of protected material.
8.5 The Customer is solely responsible for the accuracy, legality, currency and compliance of its own Web site and will be solely liable for false, misleading, inaccurate, infringing or other actionable material contained or referred to therein.
8.6 INCO and/or its sub-contractors may suspend service as necessary for purposes of repair, maintenance, or upgrade. While this will whenever possible be done at times to minimize disruption, it may be done at any time, at our (or our agent's) absolute discretion.
8.7 INCO does not warrant that the hosting services or the server will be continuously available 24x7x365 but will use its reasonable endeavors to keep downtime to a minimum.
8.8 The Customer accepts the hosting service and server "as is" with any faults or failings and without any representation, warranty or guarantee whatsoever, express or implied, including without limitation any implied warranty of accuracy, completeness, quality, continuity of service, connectivity, merchantability, fitness for a particular purpose or non-infringement.
8.9 The Customer may be issued with a password to control access to certain e-mail and other functions. It is the Customer's sole responsibility to protect knowledge of this password and to ensure it is not used to use INCO services except by the Customer. If the password does become known to any other person, the Customer will change the password immediately.
8.10 Internet Access services may be provided for a single user on multiple machines, multiple users on a single machine or multiple users on multiple machines. Use outside of each service's described purpose is not supported.
8.11 You may not assign, sublease, resell or transfer your INCO connection in any way.
8.12 The Customer acknowledges and agrees that INCO and/or its sub-contractors may be required by a law enforcement agency to monitor the Web site Content, e-mail and other traffic and if necessary give evidence of the same together with use of the password to support or defend any dispute or actionable cause or matter which arises in relation to the same.
8.13 Where domain names are registered by INCO on behalf of The Customer, The Customer agrees that:
8.13.a INCO is acting as an agent for and on behalf of The Customer.
8.13.b Domain registrations will be made by INCO in The Customer's name.
8.13.c The Customer is entering into a contract, arranged on The Customer's behalf by INCO, between The Customer and the domain registrar.
8.13.d The Customer is bound by the domain registrar's Terms and Conditions as displayed on, or linked to from, INCO's Web site.
8.13.e INCO cannot guarantee that the domain name(s) requested by The Customer will be available for registration. The Customer cannot assume that domain name(s) have been registered until INCO receives formal confirmation from the domain registrar.
8.13.f The Customer is solely responsible for the accuracy, legality, currency and compliance of their requested domain name(s) and will be solely liable for false, misleading, inaccurate, infringing or other actionable domain name(s), whether used or implied.
8.14 INCO-CMS Hosting
8.14.a Payment of INCO-CMS Hosting charges grants the Customer a non-transferable, non-exclusive, licence to utilise the INCO-CMS software to maintain the Web site for the duration of the Contract.
8.14.b INCO-CMS remains the property of INCO and its licensors at all times.
8.15 INCO-CMS Support and Upgrades
8.15.a INCO-CMS support & software maintenance agreements include software fixes and security upgrades for the current major version of the system. Upgrades to new major versions of the software, or alternative software, are not included.
8.16 Managed Services - Where INCO provides managed services to The Customer on an “X hours per month basis”:
8.16.a Unused hours do not roll-over to the following month.
8.16.b Hours cannot not be “used in advance” from following months without INCO's express, written, consent.
8.16.c Unless agreed otherwise in writing by INCO, Monthly Managed Services must be paid by Direct Debit or Standing Order.
9) LIABILITY & INDEMNITY
9.1 INCO will not be liable to the Customer for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Services, the Web site, its server, the connectivity to the Internet, the hosting, any software, its use application support or otherwise except to the extent that such liability may not lawfully be excluded.
9.2 Notwithstanding the generality of the above, INCO expressly excludes liability for indirect, special, incidental or consequential loss or damage which may arise in respect of the Services, the Web site, its server, the connectivity to the internet, the hosting, the software, its use application, support or otherwise or in respect of other equipment or property, for loss of profit, business, revenue, goodwill or anticipated savings.
9.3 In the event that any exclusion contained in these Conditions shall be held to be invalid for any reason and INCO becomes liable for loss or damages that it may otherwise have been lawful to limit, such liability shall be limited to the Price.
9.4 The Customer agrees to indemnify and save harmless and defend at its own expense INCO from and against any and all claims of infringement of copyright, patents, trade marks, registered or unregistered designs or other intellectual property rights issued and/or subsisting under the laws of any country affecting the Web site and based upon the Content and/or any information supplied by the Customer to INCO and/or and domain name(s) chosen by The Customer. INCO undertakes that the Customer shall be given notice of any such claim and the Customer shall have the right to defend any such claim and make settlements thereof at its own discretion and INCO shall give such assistance as the Customer may require and at the Customer's expense to settle or oppose any such claims.
9.5 INCO does not exclude liability for death or personal injury to the extent only that the same arises as a result of INCO's negligence or that of its employees, agents or authorised representatives.
9.6 The Customer agrees to indemnify and keep indemnified INCO and each of their respective directors, officers, employees and agents from and against any and all liability, damages, losses, claims (including reasonable legal fees) resulting in any way from its use of and from any material posted on the Web site, to its discussion groups or from any other matter on the Web site from discussion groups or from The Customer's domain name(s) or arising from any introduction or collaboration resulting from or otherwise arising from the Web site.
9.7 INCO will not be liable for any action, or failure to act, by any other provider of software, services, telecommunications equipment or other hardware.
9.8 INCO shall be excused performance of its obligations contained in these Conditions where circumstances amounting to "force majeure" occur for as long as such circumstances last and affect contractual performance. INCO will not be responsible in any way whatsoever for destruction, damage, delay or any other matters of that nature whatsoever arising out of circumstances outside the control of INCO.
Version Control
Terms & Conditions Version 1.4, published August 2018.