1.1 Unless otherwise agreed in writing, these conditions apply exclusively to each transaction (“Contract”) for the supply of Services by Fhobs Solutions to a Client (“the Client”) (together “the Parties”).
1.2 Hosting Services, as defined in the Schedule, will only be provided if agreed in writing by Fhobs Solutions and the Client, and duly paid for.
1.3 The Client warrants to Fhobs Solutions that it is entering into the Contract as principal and not as agent on behalf of any person, firm or company.
1.4 The Definitions in the Schedule apply to these Conditions.
2.1 The schedule for commencement and completion of the work shall be as agreed between the Parties. Time shall not be of the essence of the Contract nor any part thereof.
2.2 Fhobs Solutions may in its absolute discretion subcontract the performance of any of its obligations under this contract. The Contract may not be assigned by the Client.
2.3 Where Fhobs Solutions takes over support of, or is required to make amendments to, an already existing system or web site, it shall be a fundamental condition of the provision of such services that Fhobs Solutions shall for the duration of the Term have exclusive access to the system code so that the system and/or web site as the case may be shall be under Fhobs Solutions’ control. The Client warrants that in providing such access no intellectual property rights of any third party shall be infringed, and the Client shall indemnify Fhobs Solutions in relation thereto in accordance with clause 4.2 hereof.
2.4 Where the Client asks Fhobs Solutions to undertake development and/or maintenance work on an existing system, developed other than by Fhobs Solutions, the Client acknowledges that best practice entails Fhobs Solutions undertaking a thorough evaluation of the existing code and system, and documenting the same before Fhobs Solutions undertakes any work on it, and that Fhobs Solutions is entitled to charge on a time and materials basis for such evaluation and documentation.
2.5 In the circumstances envisaged under clause 2.4 above, where Fhobs Solutions does not undertake such evaluation and documentation, whether at the Client’s request or otherwise, Fhobs Solutions shall not be liable whatsoever for any unforeseen consequences of its work on the system and/or code. Fhobs Solutions shall not in any event be liable (whether such evaluation and documentation has taken place or not) for any consequences that are not reasonably foreseeable, nor for any pre-existing bugs in the system/code at the point that Fhobs Solutions commences work. Fhobs Solutions reserve the right to amend any proposals or estimates as to time and/or costs of work to be undertaken as a result of unknown bugs or of unforeseen
consequences of Fhobs Solutions’ work on the system that will incur Fhobs Solutions in additional work.
2.6 All development is undertaken with then current industry browser technology in mind, but no warranty is give as to compatibility with any specific browsers unless specifically agreed. No warranty is given as to compatibility with any future evolutions of any browser technology, whether specified or not. Fhobs Solutions reserves the right not to support unofficially released or Beta versions of browser software (this includes nightly build and alpha versions).
2.7 Fhobs Solutions make all reasonable endeavours to ensure sites and systems are tested prior to release to the Client, unless otherwise agreed. However, it is the Client’s responsibility to ensure full testing of the site and/or system and/or modifications thereto to their own satisfaction.
2.8 You are required to take steps to ensure your site complies with the Disability Discrimination Act and any related provisions. This may include taking into account accessibility to the site for the visually impaired. We will advise you how to achieve this from a technical perspective, however it is not our function to give legal advice and you must satisfy yourself as to the full nature and extent of your legal obligations regarding any work we undertake on your behalf. Any liability for failing to
comply with the Act and any related provisions is yours alone.
3 Hosting Services
3.1 The Client acknowledges and accepts that Fhobs Solutions’s systems, servers and equipment may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes and that no liability attaches to Fhobs Solutions as a result thereof.
3.2 Fhobs Solutions will not be responsible for the accuracy and functionality of the materials supplied by the Client either in the form in which it is provided by the Client or as modified upon accordance with the Client’s instructions for inclusion on the web site (“Client Content”).
3.3 If Fhobs Solutions reasonably forms the view that the Client Content of any web site may be pornographic, defamatory, misleading or deceptive, otherwise in breach of any third party’s rights, or in any way unlawful Fhobs Solutions may remove that content from the web site.
3.4 The Client agrees that any works, items, materials, or information of whatever nature produced or developed by Fhobs Solutions or under Fhobs Solutions’s direction pursuant to or in the course of providing Hosting Services shall remain the sole and complete property of Fhobs Solutions, whether such property is tangible or is in the nature of intellectual property (including copyright and rights of confidential information).
3.5 All hosting services are provided for a minimum twelve month rolling period and are payable in full in advance. If hosting is provided for a new site, hosting charges must be paid in full before the site is deployed to a live environment. The Client may terminate the hosting services contract and/or notify Fhobs Solutions of the Client’s intention to move to an alternative host by giving not less than two months written notice to expire at the end of such a twelve month period. Where the Client purports to terminate earlier than permitted by this clause fees for the full twelve month period remain due and payable whether or not invoiced at the time.
3.6 If the system and/or website is hosted other than by or on behalf of Fhobs Solutions the Client acknowledges that Fhobs Solutions will not have control of the files and system environment and will not know if any code has been altered. Accordingly, if Fhobs Solutions is required to fix any issues that arise, or perform any work of whatever nature on the externally hosted systems, Fhobs Solutions will charge for such work on a time and materials basis.
3.7 The Client acknowledges that the provision by Fhobs Solutions of hosting services entitles Fhobs Solutions to move its site between servers and/or third party hosting providers as Fhobs Solutions shall see fit.
3.8 The Client acknowledges that unless it has contracted and paid for the provision of a dedicated host server, it shall only be entitled to reasonable and fair use of the facilities of the shared host server. If in Fhobs Solutions’ sole opinion the Client exceeds such use, Fhobs Solutions shall be entitled to require the Client to move their site or system to another server (whether hosted by Fhobs Solutions or otherwise) and to charge accordingly. In such circumstances, Fhobs Solutions shall be under no obligation to maintain the Client’s site and/or system on the new hosting environment.
4 The Client’s Obligations
4.1 The Client shall afford Fhobs Solutions and its personnel such access to the site and records, information and other material of the Client as Fhobs Solutions may reasonably require to provide the Services. Further, the Client shall:
4.1.1 make available such working space, facilities and accommodation as Fhobs Solutions and its personnel may reasonably require. Such working space, facilities and accommodation shall be at least comparable to those afforded by the Client to its own personnel or similar status;
4.1.2 make available appropriate personnel to liaise with Fhobs Solutions.
4.2 The Client warrants that input material will not infringe the copyright or other intellectual property rights of any third party and the Client will indemnify and hold harmless Fhobs Solutions against any and all loss, damage, costs, expenses or other claims of whatever nature and howsoever arising from any such infringement.
5 Fees and Payment
5.1 The price of the Services is Fhobs Solutions’s quoted price and is exclusive of VAT, insurance and disbursements. Proposals will be valid for 2 calendar months from issue although Fhobs Solutions reserves the right to change any Proposal including as to the Price if the Services are more complex than anticipated or instructions from the Client change. Fhobs Solutions is only bound by orders which it has accepted in writing. An accepted order can only be cancelled or varied with Fhobs Solutions’s consent.
5.2 Unless Fhobs Solutions agrees otherwise, the Client will pay the Price, VAT, insurance and disbursements without deduction or set off (whether formally demanded or not) within 30 days (subject to the following) of receipt of an invoice. Fhobs Solutions reserves the right to render interim invoices as the Project progresses such invoices to be payable within 14 days and otherwise in accordance with this clause 5. If payment of any interim invoice is delayed or not made in full and without prejudice to Fhobs Solutions’s other rights and remedies hereunder Fhobs Solutions reserves the right to suspend working on the Contract until payment is received in full.
5.3 If the Client fails to make any payment when it is due then, without affecting any of Fhobs Solutions’s other rights or remedies, Fhobs Solutions is entitled to: cancel the Contract or suspend the performance of the Contract which may include at Fhobs Solutions’s option taking down a site whether the subject site of the unpaid or partly paid invoice or otherwise; charge the Client interest at 5% a year above HSBC Bank’s base rate at the time on all unpaid amounts; withdraw all credit facilities extended to the Client and require immediate payment of all outstanding invoices whether or not these are due for payment; and/or cancel and withdraw any trade or other discount allowed on the price.
5.4 All invoices by Fhobs Solutions to the Client will be in pounds Sterling.
5.5 A deposit for the project cost as set out in the proposal is payable before any development work is undertaken. Following commencement of work, invoices will be raised fortnightly for work undertaken at the agreed daily rate, up to and including 90% of the Price, and such invoices shall be payable as interim invoices under the terms of clause 5.2 above.
5.6 Sign Off
5.6.1 When Fhobs Solutions believes it has completed the Services it will notify the Client accordingly, send the Client the final invoice (typically for ten per cent of the Price) and give the Client 30 days to assess the Services (“the Sign Off Period”). The Client must raise any issues it has in relation to the Services within the Sign Off Period as soon as reasonably possible.
5.6.2 Any issues raised by the Client under 5.6.1 shall:
126.96.36.199 be remedied by Fhobs Solutions at no additional charge within the Sign Off Period where possible to the extent that such issues are in Fhobs Solutions’s sole opinion part of the Contract; and/or
188.8.131.52 where in Fhobs Solutions’ sole opinion such issues fall outside the scope of the Contract (and the Client is specifically referred to clause 6 in this regard) the raising of such issues shall not delay payment of the final invoice but shall constitute the subject matter of a separate contract between the parties to be charged and paid for at Fhobs Solutions’s then prevailing rates and otherwise in accordance with these Conditions.
5.6.3 The Client shall not unreasonably withhold or delay either acceptance of the work or notification of any issues arising.
5.6.4 If no issues are raised or such issues fall to be dealt with under 184.108.40.206 the Client shall be deemed to have accepted the Services and the final invoice shall become immediately due and payable on expiry of the Sign Off Period.
5.6.5 Any issues raised under 220.127.116.11 that are concluded within the Sign Off Period shall not affect the expiry of such period nor the Client’s deemed acceptance of the Services at that time unless otherwise expressly agreed by Fhobs Solutions. If such issues are still being concluded at a time when the Sign Off Period would otherwise have expired Fhobs Solutions reserves the right to reconsider its decision to treat them as falling under 18.104.22.168 and at its option to treat them as falling to be dealt with under 22.214.171.124 thereafter. In such circumstances payment of the final invoice shall immediately become due and
5.6.6 Following payment in full of the final invoice and of any such further sums as may be due as a result of issues raised under 126.96.36.199 the site shall be put live.
5.7 Where the Client is populating its own site with content, Fhobs Solutions shall, without prejudice to the provisions of clause 5.6, be entitled to invoice all remaining development costs for the project (save only as to any specific deployment costs) at the point in time that the site is made available to the Client for population.
5.8 Where blocks of hours are purchased in advance, these are valid for 12 months from the date of purchase. Any such hours unused by the Client at the expiry of the twelve month period are lost and may not be carried forward to any subsequent period.
5.9 If Fhobs Solutions shall be asked to supply any equipment or software to the Client the Client must pay that element of the Price in full with the order or purchase order as the case may be, and Fhobs Solutions shall be under no obligation to procure or supply any such item until payment therefor is received in full.
5.10 Where Fhobs Solutions either buys or renews on behalf of a Client a domain name, an invoice for the price thereof shall be sent to the Client two months in advance of the expiry of the name. No purchase or renewal will be made until payment therefor is received in full and the Client expressly agrees and understands that any delay on its part in making such a payment may prejudice its chance to purchase or renew the name, and that Fhobs Solutions shall not be liable to the Client as a result thereof.
- Additional costs
6.1 The Client must, on request, pay any additional cost to Fhobs Solutions for supplying the Services caused by: any breach, default, delay or variation (in Fhobs Solutions’s sole opinion) by the Client of its requirements or obligations under the Contract or these Conditions; any requirement by the Client that Fhobs Solutions provide its Services in a manner (including as to the order in which Fhobs Solutions implements the elements of the Contract) that is other than Fhobs Solutions’s usual workflow arrangement; any factor beyond Fhobs Solutions’s reasonable control; any change in the dates of the supply of the Services which the Client requires; or any delay caused by the Client’s instructions or the Client’s failure to give Fhobs Solutions adequate information or
instructions when the order has been accepted or at any other time including in particular and without prejudice to the generality of the foregoing, any charges for the use of stock photographs or imagery.
6.2 Without prejudice to 6.1 Fhobs Solutions specifically reserves the right to amend the Price if the time spent on the contract as a whole or on any part thereof that was costed as a separate item or development stage in the Proposal exceeds by at least ten per cent the time either forecast to be spent or actually spent by Fhobs Solutions thereon.
6.3 Any amount due under this clause may be invoiced as an interim invoice due and payable within 14 days.
7.1 The parties acknowledge that the Contract does not have the effect of transferring the ownership of any intellectual property rights.
7.2 Any intellectual property owned by either party and required for the performance by the other party of its obligations under this Contract shall be licensed to that other party on a non-exclusive, royaltyfree basis for the purpose of fulfilling that party’s obligations under this Contract and for the Term but not further or otherwise.
7.3 Subject to Clause 7.1, the Client acknowledges and agrees that Fhobs Solutions will own all intellectual property in connection with Fhobs Solutions’s materials and that all other intellectual property in materials produced or created by Fhobs Solutions or on its behalf or provided by Fhobs Solutions will remain permanently with Fhobs Solutions regardless of whether such material is in its original form or in a form modified for the Client’s use. 7.4 Subject to the Client not being in breach of this Contract, Fhobs Solutions grants to the Client a non-exclusive royalty-free licence to use the materials for the Term.
7.5 The Client may not modify Fhobs Solutions’s materials for any purpose without the prior written consent of Fhobs Solutions save only in relation to modification of software licensed to the Client by Fhobs Solutions to the extent that such modification cannot be precluded by Section 296A of the Copyright Designs and Patents Act 1988.
7.6 The Client will procure for Fhobs Solutions a licence on a non-exclusive, royalty-free basis, to use any existing intellectual property owned by a third party and required for the performance by Fhobs Solutions of its obligations under this Contract and for the period during which the use of those rights by Fhobs Solutions pursuant to this Contract is required.
7.7 Fhobs Solutions shall be entitled to include in the code of, and to display on, any site that it designs and/or develops a reference crediting Fhobs Solutions’s involvement with the site’s creation and maintenance (as appropriate) and where relevant this shall include a link to Fhobs Solutions’s site.
8.1 Fhobs Solutions is not liable to the Client because of any representation (unless fraudulent), or any warranty (express or implied), condition or other term, or any duty at common law, or under the express terms of the Contract, for:
8.1.1 any loss of profit, business, contracts, opportunity, goodwill, revenues, anticipated savings, expenses, costs or similar loss; and/or
8.1.2 any indirect, special or consequential loss or damage (whether for loss of profit or otherwise); whether caused by the negligence, breach of contract, tort, breach of statutory duty of Fhobs Solutions, its employees or agents or otherwise arising out of or in connection with the Contract.
8.2 Any other liability of Fhobs Solutions to the Client in contract, tort, breach of statutory duty or otherwise arising out of or in connection with the Contract, is limited to the value of the contract.
8.3 Fhobs Solutions has no liability whatsoever under the warranty given in Condition 8.2 unless the price for the Services has been received by Fhobs Solutions in full.
9.1 Each party may use the confidential information of a disclosing party only for the purposes of this Contract and must keep confidential all confidential information of each disclosing party except to the extent (if any) the recipient of any confidential information is required by law to disclose the confidential information.
9.2 Either party may disclose confidential information of the other party to those of its employees and agents who have a need to know the confidential information for the purposes of this Contract but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
9.3 All documents and other materials containing confidential information of either party will be returned to that party immediately upon completion of the Services.
9.4 The parties’ obligations to keep information confidential will survive the termination of this Contract.
10.1 Fhobs Solutions warrants that the Services will be performed with reasonable skill and care. All other warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.2 Fhobs Solutions will have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any input material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
10.3 Where any valid warranty claim is made in respect of any Services, Fhobs Solutions can choose either to reperform the Services to the extent necessary to make good any defect free of charge or to grant credit to or refund to the Client the price (or a proportionate part of the price) at Fhobs Solutions’s absolute discretion, but Fhobs Solutions will have no further liability to the Client under the warranty.
10.4 Any hardware, equipment or software sourced from a third party on your behalf is provided subject to the manufacturer’s or producer’s own licence terms and warranty provisions, to which your attention is specifically drawn. Fhobs Solutions offers no direct warranty in respect of such items. In the event of such a warranty claim, Fhobs Solutions may at its discretion direct you to return the item direct to the manufacturer for repair or replacement, which shall be by the manufacturer at its option and in accordance with its terms.
11.1 Fhobs Solutions may terminate the Contract in the event that:
11.1.1 the Client fails to pay any amount to Fhobs Solutions due under this Contract and does not make that payment within 28 days after receiving notice requiring the Client to do so;
11.1.2 the Client fails to perform any of the obligations on its part to be observed or performed pursuant to this Contract and such failure is not remedied by the Client within 28 days after receipt by it of a notice in writing requiring the default to be remedied; or
11.1.3 the Client fails to perform any of the obligations on its part to be observed or performed pursuant to the on-line conduct policy and such failure is not remedied by the Client within 28 days after receipt by it of a notice in writing requiring the default to be remedied; or
11.1.4 any of the warranties or representations made by the Client contained in this Contract are in Fhobs Solutions’s reasonable opinion false or inaccurate in any material way.
11.2 Either party shall be entitled to terminate this Contract forthwith by notice in writing to the other if the other party shall:
11.2.1 commit any material breach of any of its obligations under this Contract which (in the case of a breach capable of being remedied) shall not have been remedied within 28 days after receipt of a written request so to do;
11.2.2 pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect;
11.2.3 make any voluntary arrangement with its creditors or become subject to an administration order;
11.2.4 have a receiver or administrative receiver appointed;
11.2.5 cease or threaten to cease to carry on business.
12 Insolvency of Client
12.1 Fhobs Solutions may upon written notice to the Client end the Contract: if the Client is an individual and he dies; or he has a receiving order made against him, or commits an act of bankruptcy or makes any arrangement with his creditors; if the Client is a company if it calls a meeting of its creditors; or it goes into any liquidation; or it has a receiver appointed over any of its assets or has an administration order made against it; or it makes any arrangement with its creditors; or if Fhobs Solutions has reasonable grounds for suspecting that the Client is about to undergo any of the above events. In addition, any price or part of the price in respect of Services already performed will immediately become due and payable.
13 Force Majeure
13.1 Fhobs Solutions is not liable to the Client for any failure or delay in performance of its obligations under the Contract which is beyond its reasonable control including any labour disputes between Fhobs Solutions and its employees..
14.1 Each Contract for the Services is for the Term set out in Fhobs Solutions’s Proposal (or as otherwise agreed in writing). If no period is provided for, then either party may terminate the Contract at any time by giving not less than one months’ written notice to the other.
15.1 The Client covenants not directly or indirectly to solicit or entice away from or offer employment to any of Fhobs Solutions’s employees who were engaged on performing the Services or with whom the client had contact during the Term and for a period of one year after the completion of the Contract.
16.1 Any notice required by this Contract to be given by either party to the other shall be in writing and shall be served personally or by sending it by pre-paid post to the address of the other party or to such other address as that party shall notify in writing to the other party as their address for service. Notices may not be served validly by facsimile or e-mail.
17.1 Any waiver by Fhobs Solutions of any breach of these Conditions or a Contract by the Client will not be treated as waiving any subsequent breach of the same or any other provision.
18 Entire Agreement
18.1 These conditions and the documents referred to in them, set out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to the subject matter of these conditions. The Client acknowledges that in entering into these conditions, it has not relied on any representation, warranty, agreement or statement not set out in these conditions and that (in the absence of fraud) it will not have any right or remedy arising out of any such representation, warranty, agreement or statement and that its only remedy for breach of these conditions is for
breach of contract under the terms of these conditions.
18.2 Fhobs Solutions reserves the right to amend these terms and conditions at any time without notice.
Hosting Services the internet hosting services to be supplied by Fhobs Solutions (if appropriate) as agreed in writing between the Parties
Price the price to be paid by the Client to Fhobs Solutions for the Services in accordance with clause 5
Proposal the document or documents howsoever they shall be described produced by Fhobs Solutions setting out Fhobs Solutions’s proposals for meeting the Client’s objectives
Services the services to be supplied by Fhobs Solutions as detailed in the Proposal
Fhobs Solutions IT Limited Company RC: 1098537 whose registered office is at Suite FF04, Plot 4 Sokode Crescent, Wuse Zone 5, Abuja
Term the period between the commencement of the Services and the conclusion of this
Contract whether under clause 5 or otherwise in accordance with these conditions