Terms and Conditions
the boring but important stuff
TERMS & CONDITIONS
Thank You for choosing Element Software Ltd. These terms, which You should read carefully, set out the basis on which We will provide Our services to You.
Terms as at December 2020
PART I: DEFINITIONS AND AGREEMENT
PART II: WEBSITES AND OTHER DEVELOPMENT WORK
PART III: DIGITAL SERVICES & CONSULTANCY
PART IV: PAYMENTS & REFUNDS
PART V: GENERAL TERMS
PART I: DEFINITIONS AND AGREEMENT
PART I: DEFINITIONS, AGREEMENT AND COMMUNICATIONS & UPDATES
The words and expressions used throughout this document are defined here:
“Commencement Date” – the date of the commencement of these Terms as detailed on the Proposal Document/Proposal Agreement;
“Customer”, “You” – the party signing up with Element Software Ltd for the delivery of online services, including, but not limited to, web design and development, software development, website hosting, email services, digital marketing including but not limited to SEO, social media management, and content management;
“Element Software Ltd”, “We”, “Our”, “Us” – Element Software Ltd, its agents, associates, subcontractors, and employees;
“Go-Live” – the process of publishing the Project to the Internet, or the completion of writing a software program or web application or any sort of development work;
“Hosting Provider” – the provider Element Software Ltd will use to host the website or web application and/or email services on the internet;
“Proposal Agreement” – the document signed by You, either digitally by email confirmation/acknowledgement, or by a signature written with pen, which details the specifics of Our Services;
“Services” – the services provided by Element Software Ltd and any work carried out (paid or unpaid) by Element Software Ltd on behalf of the Customer;
“Statement of Work” – an optional statement of work agreed between Us prior to commencement of Our Services;
“Terms” – the terms of this document by which Element Software Ltd and the Customer will be bound;
“Project” – the website or web app or project or any other work product that Element Software Ltd will create.
- Agreement of Terms
Unless otherwise expressly agreed in writing by a Director of Element Software Ltd, these Terms shall apply to all Customers. Unless expressly agreed in writing, no employees, agents or partners of Element Software Ltd, other than its directors, have the authority to vary these Terms.
- Communications & Updates
3.1. As We operate from different locations and are all remotely working from home or other locations, We will communicate with You and update You on the progress of Your project via email, telephone call, or some other alternative project management and collaboration tool that We (at Our sole discretion) will select. You will be notified of this prior to commencing the Project. We will not be obliged to communicate with You using any other method. We shall not be held liable for any losses You sustain as a consequence of any inability on Your part to use the collaboration tool or method of working selected by Us.
3.2. We reserve the right to change the mode of communication due to business reasons, in which case We will provide You with reasonable notice.
3.3. We expect You to respond to all reasonable requests for information that are necessary for the effective progress needed for Your project, within seven (7) working days of a request, unless expressly agreed by both parties beforehand.
3.4. In the event that (i). We do not hear from You or (ii). You do not respond in a satisfactory manner to Our requests, as per clause 3.3 above, then the following will apply:
3.4.1. if We are able to complete the work on Your project to a reasonably satisfactory standard without Your further input, We will continue to undertake the work as per Your original brief or instructions (which will include attempting to update You on progress and seek Your comments and feedback at the agreed intervals); or,
3.4.2. if We consider that We are unable to complete the work to a satisfactory standard without Your further input, We will follow the procedure set out below:
184.108.40.206. We will send You a written notice by email, that We require further input from You. This notice will allow You up to a further thirty (30) days in which to respond (the exact deadline to be decided at Our absolute discretion);
220.127.116.11. should You not respond satisfactorily, or at all, to this notice, We will send You a further written notice by email, allowing You a further fourteen (14) days in which to respond;
18.104.22.168. should You not respond satisfactorily, or at all, to this second notice, We will send You a final written notice by email, or post if applicable, allowing You a further seven (7) days in which to respond; and,
22.214.171.124. should You not respond satisfactorily, or at all, to Our final notice, We will then have the right to terminate Your agreement with Us with immediate effect and to end the provision of Our services to You, in which case the provisions of clause 20 below will apply as if You had terminated the agreement; and,
3.4.3 We shall not be liable for any losses or damages incurred to You as a consequence of terminating Your agreement with Us as a result of Your failure to respond to Our requests;
126.96.36.199. We reserve the right to charge You Our reasonable fees for any additional work We undertake pursuant to the procedures in this clause 3.4 (including, among other things, admin costs and the cost to Us of sending You the relevant written notices).
PART II: PROJECT AND OTHER DEVELOPMENT WORK
- Design and Development Process
4.1. We may, in some circumstances negotiate and agree with You a Statement of Work, in addition to these terms.
4.2. We shall endeavour to deliver Our work as efficiently as possible. As part of the design process for a new website or web application or any other development work, We will:
4.2.1. provide You with a draft mock-up of the look and feel of the Project or other work product, if We feel it is necessary, and invite Your comments and feedback on this;
4.2.2. make updates to the mock-up in light of Your comments and feedback, and resubmit the work to You for feedback once again.
4.3. If We need to provide further design changes and additional design revisions, We reserve the right to charge additionally for Our time in this process. We will only ever do this with Your agreement prior to undertaking such work. This clause is intended to provide a reasonable and fair boundary around the time We will commit to the design stages of the Project.
- Timescales and Payments
5.1. Unless otherwise expressly agreed with You, and subject to clause 5.2 below, Our timescale for a new Project to Launch are six (6) weeks to twenty (20) weeks from the point at which You enter into these Terms. This time frame is only an estimate and is not to be considered an actual time estimate. Should this time frame vary for any reason this will be stated in Your Proposal Agreement and can vary depending on the length and complexity of the Project;
5.2. A number of factors can impact how long it will take to get the Project completed and Go-Live, and We typically find that a lack of information from Our Customers causes projects to take longer than both parties might like. When You are signing up with Us, please think about the following:
5.2.1. Content. If We are writing it for You, this is fantastic – but it is still a good idea to put thoughts to paper and get a clear image in Your mind of what You’d like Your Project content to contain. We’ll do the rest if We are writing Your content for You.
5.2.2. If You are writing Your own content, We need this provided in a Word (.doc or .docx) format or a Google Doc (We can invite You to a shared Google Drive folder to store all documents) spell-checked and grammar-checked to ensure You are happy for it to be used as is on Your Project. We are not responsible for grammar/spelling, etc. issues with content We have not created ourselves. If You request for Us to make amendments and/or review the content You have provided to Us, We reserve the right to charge You for this work with prior agreement.
5.3. We may (at Our sole discretion) agree with You, a payment plan that allows You to pay for Your Project, including some or all of the stages of design, development and delivery, over a period that We shall agree between Us. In that event, You acknowledge that:
5.3.1. We will incur significant costs and expenses in delivering Your Project, which We will not normally recover unless You honour the payment plan agreed in full;
5.3.2. Until such time as all costs outstanding are settled, You will at all times remain liable to Us for payment on demand of the costs and expenses incurred by Us in procuring third party products and services in order to build the Project and deliver Our service to You.
5.4. All Projects require a 50% upfront payment prior to commencement of the Project, and this is payable via bank transfer or an alternative payment method which will be agreed with You prior to commencement. Failure to make the 50% deposit will result in Your Project being pushed further back and should You, at a later date, make the deposit after the deposit payment due date, We reserve the right to re-prioritise Your Project and provide You with new timescales.
5.4.1 In very rare circumstances We may accept a less than 50% upfront payment, but this will be with prior agreement with You and only a Director of Element Software Ltd has the authority to negotiate this, else the 50% upfront payment prior to commencement as per clause 5.4 applies to all Customers and Projects.
5.4.2 If We agree for You to pay a less than 50% deposit as per clause 5.4.1, We reserve the right to ask for the remainder, up to 50% of the total Project cost, at any time and You agree that You will pay this in full if requested by Us.
5.5. Upon Go-Live there will be a 14 day period in which You can verify You are satisfied with the Project and then You will receive an invoice to pay the outstanding 50% of the Project cost. Should You be unable to make this payment within the 14 days of the invoice date, You should notify Us immediately so We can negotiate a payment plan to support You. If You fail to notify Us of Your inability to make this payment before the due date, which will be within 14 days of the invoice date, this will result in Your Project being taken down until the remaining 50% is paid in full. If You are unable to make this payment and We have not received any communication from You, We will follow the procedures as set out in clause 18.
5.6 Project completion is defined by a deadline set by Us after liaising with You. If for any reason the initial deadline is not met, You are still required to make the Project completion payment if you are issued an invoice, as per clause 17. Failure to do so will result clause 17.16.1 being triggered.
6.1. To maintain Our portfolio credentials and the integrity of any applicable copyrights, We place a “website/app by Element Software Ltd” (or something similarly-worded) link back to Our own site in the footer of all Our websites, and by entering into these Terms, You agree that We can include such a statement and link in Your Project. You agree that You will not remove any such link on completion of the Project. In some cases this link may contain Our company logo.
6.2. We are also entitled to reproduce samples of Your Project in marketing and or portfolio listings of previous work We have completed.
6.3. We may contact You from time to time about Our services, Our offers, Your Project updates, replying to queries or requests You have raised. This shall be done using appropriate communication methods. We can use SMS texts, WhatsApp, email, or phone. You always have the right to opt-out of any or all of the communication methods We use and We will make this easy to do via each channel We operate. If You prefer You can simply send an email to Us at [email protected] with the subject line OPT OUT and include Your full name, email address, phone number, and customer number, and We will happily opt You out of any of Our marketing material.
6.4. We sometimes reproduce third party logos and awards on Our website relating to companies Our directors or staff have worked with in the past. These are not necessarily clients of Element Software Ltd. Please contact Us for further information should You require a reference from one of these clients.
- Sending Material To Us
7.1. Graphics and images should be delivered to Us in an organised manner, with images named appropriately, so We understand what they are and how to use them, particularly in the case of eCommerce website projects, where product listings should be delivered in organised, clearly labelled Excel spreadsheet format. All images should be delivered to Us within the timescales agreed, and You understand that failure to do so may result in delays with Your Project and additional fees and charges by Element Software Ltd. Images or graphics can be sent using Our Shared Google Drive which You would have been sent an invite for. If You require access You can email Us at [email protected]. Alternatively You can use another suitable file transfer method that We will specify from time-to-time if Our Google Drive is not suitable for You.
7.2. Should Your images / graphics need significant work to resize / crop / adjust them for web use; We reserve the right to charge additionally for this work where appropriate. We will advise You of this before We carry out any work.
7.3. In the event of You not having access to original imagery and graphics for use on Your Project, We allow for a small number of stock and/or royalty-free images to be obtained from Pexels (or any other provider We select) as part of the design process. We reserve the right in Our absolute discretion to charge additionally for stock image purchases, in which case We will notify You and seek Your agreement prior to purchasing suitable stock images.
- Intellectual Property Rights
8.1. Where You are sending Us images / graphics / text copy / video and any other media for use on Your Project, You warrant that You either own the copyright for this content, or have obtained permission from the copyright holder and can therefore legally and reasonably use the content on Your Project. We will not attempt to verify the ownership of the images / graphics / text copy / video that You send to Us. We shall not be liable for any copyright infringement related to any content We have in good faith been provided by You, Your agents or representatives. You will hold harmless, protect and defend Us, Our agents and subcontractors against any claims arising from content delivered to Us by the Customer.
8.2. By providing content to Us for use on Your Project, You warrant that the content has either been produced by You or on Your behalf and that You have rights to use the content on Your Project. Search engines can penalise a website by de-listing it, where duplicate content appears. Should this happen, We accept no liability or responsibility for the financial consequences of this to You, and You indemnify and hold Element Software Ltd harmless in this respect.
8.3. We own any photography and other images that have been sourced by Us as part of the Project, unless You have been invoiced and paid for the images used on the Project if they were stock/paid for images; this excludes any images You have provided for use on Your Project that belong to you as detailed in clause 8.1;;
8.4. You own any logos or graphics assets that We have designed for You, assuming all the costs associated with the development of said assets have been paid in full. Any assets required for content updates as part of Our monthly maintenance plans will be chargeable if We are required to create them. Once they have been paid for in full, they will then be owned by You.
8.5 We own any software that is developed for Your Project, and the cost of Your Project gives you a license to use it for an indefinite period with limitations such as: you are not allowed to make copies of, redistribute or modify, or sell such software that was created for Your Project, unless an extended license fee is paid which is dependant on the scope of Your Project. We do not provide source code unless Your Project includes this in the Proposal Document, which would have agreed prior to commencing said Project
8.5.1 With any software We develop for You, a license file will be provided which outlines the limitations of the software and what You can or can’t do with it. Generally all software We write belongs to Us (Element Software Ltd) unless otherwise specified in your license agreement and/or Proposal Document.
8.5.2 Breaching any of the terms of the license agreement will incur penalty charges and will breach this agreement where We will then take steps to demand an extended license fee, which will be calculated at the time, and is dependant on the scale and scope of said software
8.6 Features developed for You or Your Project by Us on a website, such as WordPress, or SaaS platform such as Shopify, BigCommerce, to name a few, belongs to Us, and again the terms in clauses 8.5 apply to this too
9.1. You are solely liable and responsible for the content of Your Project. You agree to indemnify and hold harmless Element Software Ltd from any financial liability, including (without limitation) losses, damages, costs, and fines, resulting from the content of the Project.
9.2. We shall not be liable to You, or to any third party, for any damages arising from the use or misuse of the Project, nor the cessation of services where You fail to meet Your obligations as documented in this agreement, and You agree to indemnify and hold harmless Element Software Ltd in this regard in respect of any financial liabilities, including (without limitation) losses, damages, costs, and fines, resulting for any reason from the use or misuse of Your Project.
9.3. We shall not be liable to You in the event that You are censored by Google or any other search engine. Regardless of whether the reason for said censure was as a result of work We had done.
9.4 In the event that as part of Our SEO work for You, a back link is established with a third party website, We are in no way to be deemed liable for the content of that third party website including any links or code that website may have.
9.5. From time to time Google and other search engines may alter their algorithm without notice. Such changes may adversely affect the performance of an SEO campaign. We are not to be held liable for any adverse performance resulting from Google or any other search engine altering their algorithm.
9.6. Whilst We shall use all best efforts to attain success for You, We do not make any guarantee that any SEO campaign run by Us will generate sales or a return on investment. We are not to be held liable for any loss sustained by You as the result of an SEO campaign being unsuccessful.
9.7. We reserve the right to refuse an order (including, without limitation, any applicable specification and/or proof / design request) which We believe is or may be of an illegal or libellous nature, or may be an infringement on the proprietary or other rights of a third party or is otherwise unsuitable for publication on the internet and/or any other medium.
- Content Updates
10.1. All of Our monthly service plans include a number of content updates which We will be happy to carry out on Your behalf to Your Project. The number of updates We will carry out for You depends on the monthly price plan You have signed up to. The information quoted below is indicative only and is not an actual commitment between Us and You. You should always contact Us for up-to-date information on Our pricing, as the following may be varied by Us (without notice) at any time:
10.1.1. Spark Plan (£200 per month) – 2 content/product updates per month (maximum 2 hours of work per month), with a 6 working day turnaround.
10.1.2. Flame Plan (£325 per month) – 4 content/product updates per month plus 30 minutes of developer time included (maximum 4 hours of work per month), with a 4 working day turnaround.
10.1.3. Lightning Plan (£450 per month) – 6 content/product updates per month plus 1 hour of developer time included (maximum 6 hours of work per month), with a 3 working day turnaround.
10.2. We may also agree to bespoke monthly price plans with some Customers, depending on their requirements. If We have made such an agreement with You outside of the price plans detailed above, We will document this clearly during sign-up and this will be specified in the Proposal Agreement. In such circumstances You agree to be bound by the terms of any such agreement as well as these terms and conditions.
10.3. We consider a content update to be an amendment to the content on an existing page of the Project such as (among other things but not limited to):
10.3.1. new images to be added / removed on the Project;
10.3.2. existing images being amended on the Project;
10.3.3. new products and / or product descriptions to be added or removed on the Project;
10.3.4. existing products and / or product descriptions to be amended on the Project;
10.3.5. adding / amending / removing blog posts on the Project;
10.3.6. any other content update that is completed on an existing Project page.
10.4. If We are required to add new pages or additional functionality to Your Project and / or update the Project structure in order to improve performance etc, We may consider this chargeable work and not include this within Your monthly update allowance. If this is the case, We will contact You prior to any work being carried out and agree an appropriate fee with You based on the work requested. For work of this ad-hoc nature We will charge a per hour fee based on Our hourly rate of £75 per hour.
10.5. Site updates do not include creating new graphics or making structural changes to the website – for example, redesigning the layout of the home page. Such changes are chargeable and will be quoted for separately.
10.6. If You provide content to Us as part of a Project update, it is Your responsibility to ensure the content is error-free (i.e. free of grammar and spelling errors, and so on) We will not be held liable for any errors grammatical or otherwise in content You provide to Us.
10.7. Where We provide content for You as part of Our Project build for You, We will take reasonable steps to ensure this content is unique, error-free and suitable for posting online. You will always have the final sign-off of content We produce for You, unless You agree with Us that You’d like Us to post content on Your behalf (for example as part of an on-going Content Marketing strategy). In the event of You reviewing content after We have posted it and You wish to make amendments to it, please get in touch with Us and We will be happy to alter the relevant items.
10.8. We submit Projects to search engines as part of the Project build process, but We cannot guarantee inclusion or accept responsibility or liability if any search engine, online directory or search site submitted to, chooses not to list a Customer’s website.
10.9. Except for when We otherwise agree to different terms, all monthly plans for updates and content are provided for a minimum term of twelve (12) months, which shall be automatically-renewable annually for further periods of twelve (12) months, unless You terminate Our agreement in accordance with clause 20.2 below.
- Additional Services
11.1. The creation or editing of additional documents for use on Your website, such as PDF brochures for example, is not included in Our regular monthly service plans, and We reserve the right to charge additionally for Our time delivering these services where appropriate.
11.2. Management of Your Project, including assistance and support with technical fixes, help and advice, and other Project management tasks – these services can be offered on an ad-hoc or retainer basis, and You should contact Us for a quotation and terms.
11.2.1 Except for when We otherwise agree to different terms, these monthly management packages are provided for a minimum term of twelve (12) months, which shall be automatically-renewable annually for further periods of twelve (12) months, unless You terminate Our agreement in accordance with clauses 20.2 and 20.8 below. The provisions of clause 5.3 above shall also apply to this service;
- Testing and Delivery
12.2. You are ultimately responsible for checking the content and appearance of the site before You give Us permission to make the site publicly available. This includes testing contact forms to ensure enquiries are processed by the Project and delivered to Your selected email address. We ensure We test all of Our work to a high standard and We identify and fix most bugs during the development stages of the Project build. We then perform ‘smoke’ tests before delivering the Project to You to ensure the Project can be as error-free as possible. We do expect a reasonable effort from You to also test functionality across the website to ensure it is satisfactory and as expected. We shall not be held liable for any losses You incur as a result of You failing to identify errors or test Your site effectively prior to launch.
12.2.1 Should You identify any errors after Go-Live, We will assess the severity of the error(s) and the root cause – if the root cause is deemed to be a technical error and something that could have been identified during the development process, We will endeavour to fix this bug within a reasonable period of time that We will inform You of;
12.2.2 If the error(s) You identified are deemed to be caused by misuse of the Project or any tampering with the Project, We reserve the right to charge You to fix these error(s) in accordance with clause 30.7 of this agreement;
12.2.3 any error(s) that are identified after Go-Live that cause You any damage or losses, You agree to indemnify and hold harmless Element Software Ltd in this regard
12.3. When You agree that the Project can be made publicly available, You are agreeing that the design and development of the Project has satisfied all of Your requirements, and any payment terms related to Go-Live shall then be triggered and invoiced in accordance with Our agreed terms.
- Hosting & Backups
13.1. We host all Our Projects with IONOS on a shared platform. This means Your Project exists alongside other websites We host for other Customers. Dedicated server platforms, such as Amazon Web Services or Google Cloud Platform are available upon request and will be used depending on the scale and complexity of Your Project. This service would incur additional setup and monthly charges which vary depending on the Project and these will be outlined in the Proposal Agreement.
13.2. We have selected a reputable award-winning website hosting partner and We review this choice of partner from time to time to ensure We deliver the best value and quality mix of website hosting for Our Customers. We are under no obligation to notify Our Customers or website Hosting Provider changes unless that Hosting Provider change would result in Us hosting Customer data outside of the EU.
13.3. Whilst We shall endeavour to ensure Your website is live and protected 100% of the time, due to the open public nature of the web, this is not something We can guarantee. From time to time hacking attempts can mean website servers go offline, or indeed Our hosting partner can experience technical difficulties which results in a loss of service for Our Customers. We will work hard to ensure We communicate any such issues to Our Customers as and when they occur, and work even harder to ensure service is restored in a timely manner.
13.4. We shall not be responsible for any loss of business, loss of profits, any loss of digital data or any other damages related to website downtime / loss of website service or website security attacks or breaches.
13.5. We shall not be responsible for any loss of business; loss of profits or any other damages related to payment gateway outages where We provide eCommerce facilities for Our Customers.
13.6. We backup all Our websites weekly or daily and are able to restore backups if necessary. By default We take WordPress file backups weekly, and database backups daily; this can vary depending on the complexity of Your Project. For eCommerce websites the backup intervals can be shorter, and for portfolio websites where content is updated less often, the backup intervals are longer. For software projects, backup methods can vary depending on the technology used for the Project. Backups include core files and user created files, but again this can vary depending on the Project.
13.7. All of Our websites are hosted either on a secure shared platform or on a dedicated server, and this is dependant on the scale of the project and requirement for either hosting platform; in this manner, We can ensure quality of service is maintained, backups are carried out effectively and Our Customer’s websites remain protected and managed.
13.8. If We are contracted to build a website for You, and it will be hosted on a platform other than Our own, We shall not be responsible for backups, maintenance, warranties, failures or any other issue with the website once We have delivered the completed Project to You and the Project has been placed live on the web.
13.8.1 if we experience issues with the platform You choose that is not Our own, it is Your responsibility to ensure it is suitable for the purposes of the Project; we can not guarantee that Your chosen platform or provider will be adequate for any Project;
13.8.2 if Your platform needs repairing or maintenance, we reserve the right to charge for this work; you also hold Element Software Ltd harmless and indemnify us from any liability or damages caused as a result of Your chosen platform or hosting malfunction, errors, or any other problems arising;
13.9. We allow a two (2) week grace period from the point of Go-Live to deal with any issues You may have with Your Project when it is hosted on another platform. If the issues experienced are platform-related, We reserve the right to charge a fee to provide assistance and manage the issues where appropriate.
13.10. If We have not built a website for You and it is not hosted on Our platform, but We are contracted to provide maintenance services in the form of content updates, We will perform those updates in accordance with Our agreement. We will not, however, be responsible for backups, technical maintenance, software upgrades or any other “non-content update” type work. We shall also not be responsible for hacking / security measures or any other items that We would normally cover should the website be hosted on Our own platform.
13.11. Except for when We otherwise agree to different terms, hosting services are provided for a minimum term of twelve (12) months, which shall be automatically-renewable annually for further periods of twelve (12) months unless You terminate Our agreement in accordance with clause 20.2 below.
PART III: DIGITAL SERVICES AND CONSULTANCY
- Email Services
14.1. We provide robust professional email services using IONOS mail. By default we include 1 basic email address, which has a 2GB inbox limit, with any Project; you can choose to upgrade this to a Business Mail account for £60 per year (payable annually) which gives you a 50GB inbox limit, anti-spam and antivirus protection; All Our email accounts can be set up to deliver email to any device.
14.1.1 We charge £60 per additional individual user email account You would like created. This charge may be subject to variation from time-to-time, so please check pricing with Us before arranging this service.
14.1.2 We do not offer an email setup service for certain email clients such as Outlook, Thunderbird and MacMail. Please check with Us on the availability of Our service for Your application software prior to the set-up process.
14.1.3 Where Google Workspace is not the email provider, You should not use Our email services to send unusually high volumes of emails or for campaigns based on bulk or unsolicited email. If, in Our reasonable judgement, You do so, We reserve the right to charge You an additional fee on an hourly basis to remediate any disruption caused to Our systems or other websites hosted on Our server. Our current rate is £75 per hour.
14.1.4 We do not provide an email backup service for these email addresses; We can only provide a password reset service;
14.2. We also offer Google Workspace migration and/or setup; Google Workspace delivers a range of features and benefits that makes it an excellent service to use in business today. We will then configure Google Workspace to work with Your domain so Your email address would be of the format – [email protected], giving you a professional looking email address with the additional benefits of Google’s security and infrastructure; Our charge for setup of Google Workspace is £75 to configure it, and £50 per additional email address/user; you would then pay Google directly for your monthly usage – please see Google Workspace pricing and other information;
14.2.1 We accept no liability for any issues you may experience with Google Workspace, and we accept no responsibility for any losses or damages caused due to a malfunction or error with Google Workspace after We have set it up for You; You must agree to Google Workspace’s terms and conditions prior to setting up;
14.2.2 We do not charge a management fee for email services on an ongoing basis and We do not support email via Google Workspace on an ongoing basis. We will always aim to help where We can, but Our responsibility stops when the email address(es) has(ve) been set up online and is working correctly for You.
14.2.3 During the set-up process, We require Your credit or debit card details in order to enter these into Google’s invoicing system, so that You are charged for Google’s services. Google will then bill Your bank card directly for its ongoing monthly service fees, which are in addition to Our fees. While We shall always ensure that We keep payment details secure, We cannot be held liable for any losses incurred as a result of Google failing to keep such information secure.
15.1. We offer consultancy and ongoing services in Digital Marketing, Digital PR, Social Media, Content Marketing and Search Engine Optimisation. These services are offered on either a recurring basis, at an agreed monthly rate to be negotiated between Us, or on an ad hoc basis, at a fee to be agreed between Us.
15.2. Our services in clause 15.1 above are subject to a minimum term of twelve (12) months, which (except for when We expressly agree with You otherwise in writing) shall be automatically-renewable annually for further periods of twelve (12) months, unless terminated in accordance with clause 20.2 below.
15.3. We shall use Our experience of digital marketing to deliver Your marketing objectives with reasonable care and skill, taking into account the Service plan You have signed up for, market conditions, competitor analysis and overall marketing strategy timelines.
15.4. We shall act as a strategic consultant in respect of the management of online affairs for Your Project(s) as agreed and within the agreed remit of Our work.
15.5. We assume We shall have access to manage and update any relevant online account(s) for Your Project(s) and that You shall grant Us administration rights to those management tools We need in order to carry out Our duties on Your behalf.
15.6. Due to the nature of online marketing, time shall not be of the essence in the performance of Our Services and in carrying out Our activities on Your behalf.
15.7. We shall have the right to make any changes necessary to the Services We offer within Our Online Marketing price plans from time-to-time to ensure optimum performance for the budget allocated. Search engine technology and priorities alter frequently and We aim to ensure Our work is providing the best return for Our customer’s investment. With this in mind, We sometimes need to change the nature of services We offer within a certain price plan. We will always provide You with reasonable notice of this where applicable.
15.8. If You make changes to Your own website and this materially impacts Our ability to achieve Your online marketing objectives, We reserve the right to reverse what has been changed and may charge an additional fee for this work, depending on the remedial time requirement. The onus is on You to ascertain with Us whether a certain alteration to Your Project will impact the online marketing work We do for You.
15.9. Element Software Ltd is a software development company and may rely on subcontractors for such services should the need arise. Element Software Ltd is not responsible for the performance of such services by third parties.
15.10. In order for Us to do Our job and deliver upon Your Online Marketing objectives, We need You to agree the following:
15.10.1. You shall cooperate with Us in all matters relating to the provision of Our Online Marketing services, where We need Your support. This shall include (among other things) ,sharing Your login details and access codes with Us, Google address verification and some other information in order to move forward.
15.10.2. You shall provide Us with information and materials We may need or request from time-to-time in order to reasonably carry out the delivery of services for You.
15.11. In the event You do not comply with clause 15.10 above, then the procedures set out in clauses 3.3 and 3.4 above will apply.
15.12. Except for when We otherwise agree to different terms, all monthly plans for SEO, PPC & Social Media are provided for a minimum term of twelve (12) months, which shall be automatically-renewable annually for further periods of twelve (12) months, unless You terminate Our agreement three months (90-days) before the contract renewal date.
16.1. We will also write creative content for Your Project, or post content that You have written. Our fees for this will be chargeable on an hourly basis, at a rate We will agree with You beforehand, but We can also offer fixed rates for ad hoc tasks and projects.
16.2. Where We write the content for You, We will send You a draft for review and feedback prior to posting the content. It is Your responsibility to check this content for accuracy. We will not be liable for errors in the content, whether orthographical, grammatical, syntactical or relating to the content or otherwise.
16.3. We assume 2-3 drafting rounds, which is usually sufficient for Our Customers. If We need to provide further and additional drafts over and above this, then We reserve the right to charge additionally for Our time for doing so. We will only ever do this with Your agreement. This clause is designed to provide a reasonable and fair boundary regarding the time We will commit to the drafting of content.
16.4. Should You not respond to Us as per clause 16.2 or clause 16.3 above, then the procedures set out in clauses 3.3 and 3.4 above will apply.
PART IV: PAYMENTS & REFUNDS
17.1. We do not currently have a method of recurring payments but You can set up a standing order for recurring payments; You will be invoiced each month on a fixed date, and recurring invoices payment are always due within seven (7) days of the date of the invoice;
17.2. One-off payments can be made by bank transfer (ensuring You use the invoice number as a reference).
17.3. Upon making payment of Your initial payment to Element Software Ltd, You are accepting to be bound by Our future payment terms.
17.4. Our invoices are issued only by email and to the email address You specify upon signing up with Us, or can be posted to You via 1st class signed-for post if you prefer paper copies. It is Your responsibility to ensure invoices are settled within Our payment terms to enable Us to continue service delivery.
17.5. Payments are due at the date they are invoiced and shall be made no later than fourteen (14) days from the invoice date;
17.6. We reserve the right to increase Our monthly service fees by a sum which reflects reasonable increases in the costs We incur to deliver services to Our Customers, in line with changes to the UK Retail Price index. We shall not increase costs any more than once in any twelve (12) month period, nor at all in the first year of Your agreement with Us. In any event, the increase in monthly service fees shall not exceed twenty percent (20%). If We do this We will notify Our Customers by email and contact You to update Your monthly recurring cost and Your standing order (if applicable) with Us where appropriate.
17.7. For some projects where a set-up fee is involved, We will agree with You the payment terms for that set-up fee. Our standard payment terms for all Projects are 50% upon sign up and 50% upon Go-Live of the Project. If We agree something different with You, this will be documented clearly on Our agreement email and/or Proposal Document, and also upon Your first invoice. If a Project completion invoice is required to be paid before completion of a Project, due to a missed deadline for which the reasons are beyond the control of Us, please refer to clause 17.16 in this document. If Your Project does not involve the build of a Project, but does involve a set-up fee, the set-up fee will depend on the complexity of said Project.
17.8. Where appropriate, and at Our absolute discretion, We offer instalment payment options which can be spread over a period of up to twelve (12) months, the payment schedule to be agreed between Us prior to commencing work. This is also subject to payment by You of a minimum upfront instalment of a sum equal to fifty percent (50%) of the agreed total fee for the Project.
17.9. We offer pay-per-month Projects, at rates to be agreed between Us. This includes some support hours per month (defined on a job-by-job basis), as well as hosting, CMS training, domain and email setup. To obtain further details on this would require Us producing a quote for You and outlining the complexity of the Project and total cost, then dividing the cost into a maximum of twelve (12) monthly payments; this can vary depending on the Project;
17.10. Where We are asked to undertake custom or bespoke development or digital work, We may agree to invoice You on an hourly, weekly or monthly hire basis, as appropriate. For custom jobs, We appreciate You will need to understand how long the work is likely to take, so that You can plan and budget accordingly, and so We will give You Our best estimate on the timeframe required to complete the work, however We cannot be held to this as delays can occur due to changes in Your specification. If You ask for changes or new features, or similar, or there is a delay in You providing Us with feedback, the work can be delayed. If this happens, We will continue to periodically invoice You according to the agreed terms until such time as the work is completed or You cancel the Project in accordance with clause 20 below.
17.11. All amounts payable by You under these Terms are exclusive of Value Added Tax (‘VAT’) for the time being, as We are not currently VAT registered.
17.12. You shall pay all amounts due under these Terms in full without any deduction or withholding except as required by law and You shall not be entitled to assert any credit, set-off or counterclaim against Element Software Ltd in order to justify withholding payment of any such amount in whole or in part. We may, without limiting Our other rights or remedies, set off any amount You owe Us against any amount payable by Us to You.
17.13. Acceptance: By agreeing with Element Software Ltd to Go-Live with Your Project, You accept that the brief has been met and that all future changes must under-go a formal change control request from You and may incur additional charges, unless otherwise agreed between both parties.
17.14. We will support any issues with previously specified Project functionality or design for up to fourteen (14) days after the Project Go-Live date, after which time all changes, must under-go a formal change control request and may incur additional charges OR those changes form part of a Project service plan if that has been agreed as part of Your contract with Us.
17.15. When a Project is live on the internet We deem it to have “Gone Live” which means the final Go-Live payment of any agreed set-up fee is then due for invoicing and payment.
17.16. Failure to provide Us with information does not permit You to delay or cease payment, unless specifically agreed with Us. Unless otherwise agreed, You will continue to be invoiced until the Project is live and will receive no refunds for a delay in getting the Project live where that delay is not within Our control and is outside of what We consider fair and reasonable timescales for the delivery of the website.
17.16.1 In the event that the Project deadline, which will have been agreed with You either on the Proposal Document, via email, or verbally, is not met for any reason(s) beyond Our control, You will still be required to pay any outstanding invoices in full before the Project can be completed. Further work cannot be completed until invoices are settled in full and final. This clause (17.16) supersedes any other term(s) in any other documents provided to You, relating to payments for Project completion.
17.16.2 We will fulfil Project completion once any outstanding invoices have been settled in full. A new deadline will have been agreed with You and the invoice will be dated for this date, payable in full within 14 days. Should you fail to pay this invoice within the given 14 day period, we will attempt to contact you to resolve the matter. Should you fail to make this payment or fail to communicate with Us, we will then follow the steps in clause 18 in this agreement.
- Late Payments
18.1. Without limiting any other right or remedy of Element Software Ltd, if You fail to make any payment due to Us under these Terms by the due date for payment, We shall have the right to charge interest on the overdue amount at the rate of five percent (5%) per annum above the current Bank of England base lending rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
18.2. Without limiting any other right or remedy of Element Software Ltd, if You fail to make any payment due to Us under these Terms by the due date for payment, We shall have the right to suspend all services being provided by Us until such payment has been made and cleared in full.
18.3. If at any time You default on Your payment agreement with Us, We will make every effort to contact You to inform You that You are behind with Your payments. If We have contacted You and You have not rectified the situation within what We consider to be a reasonable period of Our initial notification, We reserve the right to commence Our debt recovery process, in which case We shall pursue You for:
18.3.1. all outstanding fees and costs (including those that accrue during debt recovery); and,
18.3.2. any other outgoings and expenses We have incurred in providing Our service, where these exceed the fees and costs that would otherwise be recoverable from You.
18.4. Our debt recovery process involves a number of steps; some of the steps may not be relevant to You as they are dependent on the services We provide You with.
18.4.1. Hosting Only – if We host a Project for You and You have failed to make a payment for the hosting service for two (2) consecutive months, We may issue You with a fourteen (14) day Project suspension notice.
18.4.2. Monthly Maintenance – if You have signed up to one of Our monthly maintenance plans where We maintain Your Project for a monthly fee, and You fail to make two (2) or more consecutive monthly payments, We may issue You with a Project suspension notice.
18.4.3. Project – if We have built a Project for You for a one-off fee and no further monthly charges are due, and You have failed to make full or partial payment for the Project, We retain ownership and copyright of the website work until all monies due as part of the Project have been paid to Us. At that point all copyright and ownership of designs / logos and content shall pass to the Customer.
18.5. If We issue You with a Project suspension notice, this means You will have fourteen (14) working days to rectify an adverse payment situation with Us or We will disable Your Project and remove it from public view on the web. We will only reinstate Your Project once payment has been made in full and has cleared to Our bank account. We will also charge an administration fee to cover the cost of removing and then reinstating Your Project. This is currently £250, though We reserve the right to vary this amount at any time.
18.6. Following Our issuing of a Project suspension notice, We will keep Your Project on Our Hosting Provider for thirty (30) days, after which time We reserve the right to delete the Project from Our Hosting Provider. You will not receive a copy of the Project; we will refuse to take on any new or outstanding work from You and you will be declined Our Services; We shall not be liable for any claims for any losses, material or implied, of any kind, from a situation where We have removed Your Project from the internet for reasons of non-payment of monies owed to Us, and You agree to indemnify and hold harmless Element Software Ltd in this regard.
19.1. If We buy a domain name on Your behalf, then We own that domain, until You have paid the cost of this domain name plus Our administration charge. We charge for the cost of the domain name from a reputable online marketplace and a £20 + VAT administration fee to cover Our costs in processing this order, though We reserve the right to vary Our fees at any time. You are free to purchase Your own domain name, but You then need to provide Us with access to the DNS control panel when We need it in order to make Your website live OR You undertake to update Your DNS control panel yourself using the IP address information that We will provide. We shall not be liable any damages related to loss of website or email services that result from incorrectly applied DNS updates.
19.2. If You ask Us to purchase a domain on Your behalf and request to be invoiced, You also agree to accept and be bound by subsequent invoices when the domain renewal is due. In order to ensure continuity of service, We will not notify You in advance of domain name renewal invoices being issued and make the assumption that You wish to have the domain name renewed unless We have been given notice in writing of Your intention to not renew the domain name.
19.3. In all cases, where You have paid for a domain for a specific period, You own the title to the domain and You are free to transfer it away from Us at any time. We may at Our discretion charge an administration fee for the domain transfer service (currently £50), depending on the circumstances and work required to affect the transfer. This domain transfer fee shall not be unreasonable and shall be to cover Our administration costs in carrying out this process.
19.4. If We renew a domain on Your behalf and You subsequently fail to pay the domain renewal fee by the due date, We will then take ownership of the domain.
19.5. If You have purchased Your own domain name and We do not manage it for You within Our Hosting Provider, You are responsible for the renewal of the domain in a timely manner to ensure Your website service remains unaffected at renewal time.
19.5.1 Should you fail to renew Your domain in time, and this results in your Project going offline, we reserve the right to charge a fee to reinstate the Project and to get it back online; if this is the case We will agree a price with you and set out a statement of work;
- Termination and Refunds
20.1. We reserve the right to terminate Our agreement with You and Our services to You at any time on reasonable notice, without explanation. Should We do so, We shall (at Our discretion) discuss and seek Your agreement to arrangements for a handover of services and, if the terms of Our agreement allow, a refund to You of fees and expenses paid for products or services not yet delivered.
20.2. If You would like to terminate Your agreement with Us pursuant to these Terms, You are required to give Us a minimum of ninety (90) days’ notice, in writing by email to [email protected]. A termination email should come from an email address You have previously registered/used when contacting Us, and You must request and obtain from Us an automated or non-automated receipt, and be able to produce this on request, as confirmation of delivery. Where clause 5.1, 10.11, 11.2, 13.11, 14.3 or clause 15.2 above applies, the period of notice shall be a minimum of ninety (90) days, to expire at the end of the current term.
20.3. Any invoices that are issued or due to be issued within the notice period shall still be valid and due for payment in the normal way. We will confirm the date upon which We will cease Your services upon receipt of Your written notice to Us.
20.4. We do not offer refunds on services that have already been commenced (and for the avoidance of doubt, ‘commenced’ shall include any initial planning sessions, campaign strategy meetings, conferences or telephone meetings and similar). If You have paid for an item in advance and then later wish to cancel the delivery of that service before it is delivered, and assuming We have not expended time-related to Your work, We will consider an application for a refund in a fair and reasonable manner. Where a refund is agreed, We will also endeavour to deliver a refund to You within a reasonable timeframe. Any refunds We may agree to pay will be less any costs or administration charges We may incur during the process (including, but not limited to, admin fees, direct debit processing fees and / or other bank charges).
20.5. If You need Our help moving Your website over to another provider, We reserve the right to charge for Our time in facilitating this process (Our current hourly rate is £75). We shall not under any circumstances be obligated to move a website onto a hosting platform that We do not manage or control, and this service will be provided in Our absolute discretion (unless We have agreed to do so as part of Your project).
20.6. If You move Your website to a hosting platform that We do not manage or control, even if We agreed to carry out the move and installation for You, We shall not be responsible for the management of that server, backups of the website, and any anti-hacking security services, nor shall We be able to assist with any hosting or performance-related issues for websites on platforms that We do not manage. All responsibility for the management and security of any customer data held on Your website, then passes to You and Your new provider.
20.7. Where We provide eCommerce functionality for Your website and provide an SSL certificate upon which security of the data transfer between the website and Our server is encrypted and You wish to move Your eCommerce store to another platform, You shall then be responsible for the purchase and installation of an alternative SSL certificate for use to encrypt the data moving between Your new servers and the customer’s computer as they view the website.
20.8. Where You are a customer of Our monthly website service plans, We will then turn off the Project for You on the agreed future date and, (subject to payment by You of additional fees that may accrue under clauses 20.5 and 20.6 above).
PART V: GENERAL TERMS
- Law and Jurisdiction
These Terms shall be subject to English law and, subject to clause 22 below, the parties to these Terms submit to the exclusive jurisdiction of the courts of England & Wales.
- Dispute Resolution
22.1. The parties shall attempt to resolve any disagreement, dispute or controversy arising out of or relating to this contract through informal negotiation, between the principals of the parties who have authority to settle the same.
22.2. If the matter is not resolved by negotiation within thirty (30) days of receipt of a written ‘invitation to negotiate’, the parties will hold a dispute resolution meeting at an agreed location, or remotely via video call, in a good faith effort to resolve the matter.
22.3. If the matter is still not resolved within a further thirty (30) days of the meeting in clause 22.2 above, then the parties will attempt to resolve the dispute in good faith through an agreed non-binding form of Alternative Dispute Resolution (ADR), or in default of agreement, through a non-binding ADR procedure as recommended to the parties by the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators.
22.3. If the matter has not been resolved by a non-binding ADR procedure within sixty (60) days of the initiation of that procedure, or if any party will not participate in an ADR procedure, the dispute may be referred to arbitration by any party, the outcome of which shall be binding (save in the case of manifest error). The seat of the arbitration shall be England and Wales. The arbitration shall be governed by both the Arbitration Act 1996 and Rules as agreed between the parties.
22.4. Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, then clause 22.3 above shall not apply.
22.5. Nothing in this clause shall be construed as prohibiting:
22.5.1. a party or its affiliate from applying to a court for interim injunctive relief; and,
22.5.2. the use of litigation for the recovery of fees owed to Us by You, which We may pursue without recourse to the dispute resolution procedure in this clause 22.
- Changes to Terms
These Terms are regularly reviewed and for that reason may be updated from time-to-time. In the event of any changes, Customers will be notified by email to the email address provided when You sign-up with Us. We will deem notification by email “delivered” at the point We send an email to Your registered email address, irrespective of whether the email is received, You will be deemed to have been served notice of the changes to these Terms contained therein.
- No Waiver
No failure or delay by any party in exercising its rights under these Terms shall be deemed to be a waiver of any of those rights.
If any provision of these Terms is deemed unlawful, void or for any reason unenforceable then that provision shall be deemed severable from these Terms, but the parties agree that this shall not affect the validity of the other Terms and the other Terms shall not be considered void or invalid as a result.
- Force Majeure
Neither party is liable to the other for failure to perform their obligations if the failure is due to unforeseen circumstances, beyond reasonable control. Some examples of unforeseen circumstances (but not an exhaustive list) are war, riot, explosion, abnormal weather, an act of God, fire, flood, strikes, lock-out, government action or regulation (UK or otherwise) or accidents. In such circumstances We shall be entitled to suspend or cancel the service without prejudice to any rights which have accrued to Us prior to termination.
- Estimated Delivery Times
Any timescale indicated by Us for the delivery of all or any of the goods and/or performance of all or any of the services is an estimate only and shall be treated as such, and time shall not be of the essence. We shall not be liable for any failure to meet any such estimate, nor any loss, of whatever nature, resulting directly or indirectly from such failure.
28.1. We may in Our absolute discretion use agents and subcontractors under Our reasonable supervision for any or all work from time-to-time or in the entirety of the project.
28.2. We operate a flexible ‘home-working’ policy, which means staff and contractors are free to work from either Our office or their own location. You acknowledge and agree that We and Our staff may work in this way when carrying out work for You.
- Data Protection
29.1. All Our website data is hosted within the EU unless otherwise specified.
29.2. The hosting services We use may hold Customer personal data outside of the EU and therefore this data is not subject to only EU data protection laws and regulations.
29.3. Your personal data is used to contact You with regards to Your Project and may occasionally be used to contact You for marketing purposes.
29.4. If You would like to see a copy of the data We hold about You at any time, please make Your request in writing to the Data Controller by sending an email to [email protected]. We reserve the right to charge an administration fee where appropriate, which shall not exceed the sum of FIFTY POUNDS (£50.00).
- Security Considerations
30.1. In order to help protect against hacking, spoofing and spam, We use multiple levels of authentication to access Our websites and applications in order to perform edits and content updates. This includes the use of a firewall and/or a CDN such as CloudFlare which is a reverse proxy and Web Application Firewall. We are happy to provide You with access to Your Project so You can edit it within the Content Management System (CMS), where appropriate.
30.2. If We provide You with credentials to gain access to Your Project, it is Your responsibility to ensure these credentials are kept safe and secure. If You feel at any point that these details have been compromised, please let Us know immediately by emailing Us at [email protected].
30.3. You should ensure that You maintain secure passwords for the systems We provide to You. We reserve the right to charge for Project reinstatement from backups should a successful hacking attempt on Your Project be traced back to use of either an insecure password and / or ineffective website security procedures on the part of the Customer.
30.4. To ensure secure passwords are used to access Your Project, We recommend You use “Random Password Generator” (http://www.random.org/passwords/), set to a minimum of 10 characters. We also recommend using a password manager such as 1Password (https://1password.com).
30.5. Under no circumstances should You give Your credentials to a third party. Doing so breaches Our Terms.
30.6. If You need to enable access to Your Project to a third party, (such as an SEO contractor or another member of Your team) please request an additional user to be set-up on Your Project by contacting [email protected] and outlining Your request, the details of the third party and why You would like to enable access for them.
30.7. If You or a third party You have caused damage to Your Project by applying an update or change and We subsequently need to repair the Project, We reserve the right to charge You for this work.
30.8. We will at all times maintain the confidentiality of Your source materials, technical and marketing plans, and all other sensitive information, whether they are sent to Us by You or a third party on Your behalf.