123-smile : Terms and Conditions

Definitions: In this agreement the terms have the following meanings:

1. “123-smile” is operated by James Carrie, his Agents and Employees.
2. “the website” is http://www.123-smile.co.uk
3. “the Client” means any person, company, pertnership, organisation or body to which, 123-smile agrees to provide Work under the terms of the Agreement.
4. “the Agreement” is the contract between 123-smile and the Client to which these conditions will apply. These Terms and Conditions, the Proposal and the Order Form together form an agreement between 123-smile and the Client.
5. the “Order Form” is the digital or printed document signed by the Client in order to enter the Agreement.
6. “Order” is the request by the Client for products and / or services to be completed in the Proposal and Order Form.
7. “Account” is the Clients order for Work provided by 123-smile.
8. “the Proposal” is a digital or printed document outlaying what Work is to be completed for the Client.
9. “the Work” means Web Site Design, Domain Name Registration, Web Hosting, Web Site Maintenance, and Graphic Design, CD-ROM design, and Presentation Design and any other service 123-smile provides the Client.
10. “theProject” means the delivery of the work being implemented by 123-smile for the Client.
11. “The Intellectual Property Rights” means any and all patents, trademarks, rights in domain names, rights in designs, copyrights and database rights (weather registered or not and any applications to register or rights to apply for registration of any of the following) rights in confidential information and all other intellectual property rights of a similar or corresponding character which may subsist now or in the future in any part of the World.
12. “Work Review” means five days from the Work being uploaded to a temporary or other site on the server of 123-smile or any other server 123-smile or the Client decides, or five days from the work being completed if it is forwarded to the Client as a PDF or MS Word document for approval by the Client.
13. “Deliverables” are the outputs of the work to be supplied under the Agreement and shall include but not be limited to, all software and written material, including programs, tapes, listings and other programming documentation.
14. “Payment” means the sum to be paid by the client to 123-smile as specified in the Proposal and Order Form, which is to be signed by the Client in consideration of the performance of the Project.

These Terms and Conditions apply to all work carried out by 123-smile on or after 23^rd Novemeber 2009. A Client accepts to be bound by these Terms and Conditions when 123-smile has been appointed in writing by receiving the Order Form and Terms and Conditions signed by the Client

1. Fees and Payment.

1.1 An upfront Payment of one-third of the total fee, is due with the Order Form, unless otherwise agreed. Whilst any Payment due under the Agreement remains outstanding, 123-smile shall be entitled at its sole and absolute discretion to withhold provision of any goods or services it would otherwise be obliged to provide under the Agreement. All Payments by cheque, bankers draft or money order must be made in pounds sterling.

1.2 Invoices will be provided by 123-smile on completion of the Work. Invoices may be sent electronically to reduce environmental impact. Invoices are due within 14 days of being issued. Accounts that remain unpaid after 30 days will be assigned a service charge of £20.00 per month.

1.3 Accounts that are still outstanding 60 days after the date of the invoice will be considered in default. If the Client maintains any information, or files on 123-smile web space, 123-smile retains the right to remove all such material from the web space. 123-smile will not be held responsible for any loss of said materials. Removal of said materials does not relieve the Client of the obligation to pay any outstanding charges against the Client’s Account. Client accounts will remain in default until full payment has been received. Clients with default accounts agree to pay 123-smile reasonable expenses, including legal fees and costs for collection by third party agencies.

1.4 On receiving the final payment of the order, 123-smile will upload the clients web site to the location agreed by 123-smile and the client. If the server location is a third party’s the Client grants 123-smile permission to upload the web site to the said third party location.

1.5 All quotations given by 123-smile are valid for 60 days. After 60 days 123-smile reserves the right to change the quotation price. If the scope of the quotation changes at any point 123-smile accept the changes with the provision that additional charges may by incurred .

1.6 After full Payment has been received 123-smile will do two updates free of charge. These updates shall together in total be no more than four hours. Any time over four hours will be subject to a fee.

2 Liability

2.1 123-smile hereby excludes themselves, its employees and or Agents immaterial weather the loss or damage results from negligence or otherwise; all and any liability for loss or damage caused by any inaccuracy; omission, delay or error, weather the result of negligence of other cause in the production of the Work; all and any liability for loss or damage to clients artwork / photos, supplied for the site.

2.2 It is the Clients responsibility to check artwork / design and to notify 123-smile of any errors.

2.3 123-smile cannot make a guarantee of Work on behalf of third parties and will not be help liable for any failure in any service provided by third parties (persons or companies).

2.4 The security of e-commerce sites is entirely at the Clients risk, regardless of the situation. 123-smile does not accept responsibility for fraudulent use of transactions, hacking, infections with viruses, denial of service attacks or any other common or uncommon activity or event affecting a clients web-based operation, whether or not it is business critical.

2.5 After site completion, a Client or a third party of their choosing may wish to edit their web-site code themselves to make updates. However, the Client agrees that in so doing they assume full responsibility for any issues which occur as a result of changing the code themselves. If the Client or a third party of their choosing edits the web site code and this results in functionality errors, or the page displaying incorrectly, then 123-smile reserve the right to quote for Work to repair the web site.

2.5 Whilst every effort will be made to ensure that the website and any scripts, codes or programs are free from errors, 123-smile cannot accept any responsibility for any losses incurred due to the malfunction of the website or any part of it. This clause does not apply to legal liability for personal injury.

2.6 The Client agrees that 123-smile is permitted to connect such computing and electronic equipment as 123-smile deem fit to the network, computers or electronic equipment of the Client. The Client accepts full responsibility for the Clients equipment and its protection against viruses, bugs or other mal-ware, or any other failure in the Clients equipment attributed to the equipment or software of 123-smile.

3 Delivery

3.1 On completion of work, the deliverables will be uploaded to the Client area on the 123-server for approval under the Terms and Conditions. Upon written approval by the Client, the deliverables will be uploaded. Where the Client site is being hosted by a third party, 123-smile reserve the right to delay uploading of deliverables until full payment has been received.

3.2 The Client has five days in which to confirm that the Work that has been done is satisfactory. This must be done with written confirmation.

3.3 The Client is expected to test fully any application or programme relating to a site developed by 123-smile before it is made available for general use. In the event that errors, bugs of viruses or other issues are found after the site is live, 123-smile will use all reasonable endeavours (but is not obliged to) correct these issues to meet the standards of function outlined in the Proposal and Order Form.

3.4 Project timings are subject to change depending on the status of the project, approval by the client or additional factors affecting the normal course of action of such projects. Such timings may alter due to third parties.

3.5 123-smile will not be liable for costs incurred, compensation or loss of earnings die to the failure to meets agreed deadlines.

3.6 If hosting for a web site is not to be provided by 123-smile to the Client and the Client wants to upload the web site to their own / third party web space, 123-smile will deliver the whole web site to the Client via the post, recorded delivery.

4 Cancellations

4.1 No cancellation can be accepted unless received in writing. The cancellation of an Order must be received by 123-smile within 10 days of the order being placed, otherwise 13-smile reserves the right to the full purchase price or portion of the price at 123-smiles discretion.

5 Copyright

5.1 Any work provided by the Client will retain copyright of the client and grants 123-smile permission to publish and use such materials. The Client must obtain permission and right to use any information or files that are copyrighted by a third party.

5.2 123-smile accept no responsibility for any copyright infringements caused by materials submitted by the client. 123-smile reserves the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material.

5.3 Any work created by 123-smile carries a copyright, and cannot be reproduced without written consent. The placing of an order by the Client constitutes a guarantee that all necessary authorities and permissions have been obtained in respect of the artwork, design and photographs, for use in any Work to be provided to the Client. The Client hereby indemnifies 123-smile in respect of all actions; proceedings; costs demands and claims arising from any such breech.

5.4 All intellectual property rights reserved unless otherwise specified in writing prior to Project commencement. It is the responsibility of the Client to indemnify 123-smile against breech of all intellectual Property / Copyright. 123-smile cannot accept responsibility in cases of unintended breach, irrespective of the circumstances.

5.5 All Work remains the property of 123-smile until the Project fee has been paid in full. Once payment has been received in full copyright of the work will remain the property of 123-smile, unless otherwise agreed. Full copyright can be bought by the Client from 123-smile at a set fee.

5.6 123-smile reserves the right not to publish on the web any content which seems to be indecent, obscene or offensive to others.

5.7 A link to the website will appear in either a small image or small text at the bottom of the Clients web site.

6 Web hosting

6.1 The Client must be aware that 123-smile uses third party hosting services, and 123-smile reserves the right to change the hosting to provide to the Client the most reliable and cost-effective hosting service.

6.2 The annual hosting fee is for the small business and individuals. A larger business, which requires more bandwidth, through the use of multimedia or otherwise, is not eligible for renewal and 123-smile reserves the right to withdraw negotiations for hosting service with any Client.

6.3 123-smile does not allow its hosting services to be used for illegal or immoral web sites. The client agrees that any content introduced to the site will be inspected by 123-smile and may be withdrawn by 123-smile at its sole discretion concerning content.

6.4 If the Client requires 123-smile to upload the web site to third party hosting, this is subject to an additional charge.

7 Force Majeure

7.1 Neither party shall be liable to the other for any failure under the Agreement if and to the extent that such failure is due to force majeure which shall mean in relation to either party and circumstance beyond the reasonable control of the party concerned, including but not limited to war, acts of God, riot, terrorism, earthquake, fire, floods, abnormal weather conditions, any act or omission of Government or other agencies, failure of electrical or technical facilities not within such parties reasonable control, failure or shortage of fuel, power or materials, industrial action or trade disputes (except where such relates to Employees or Agents of the relevant party) or delay by suppliers.

7.2 The party affected by such a force majeure event shall as soon as reasonably practical notify the other party in writing. In the event that the force majeure event so notified continues so as to prevent the performance of the Agreement for a period of two months or more after such notice then either party shall have the right to terminate the Agreement without liability for breach of contract and the clauses of the Agreement relating to the consequences of termination shall thereupon take effect.

8 Confidentiality

1.1 Not withstanding clause, each party shall keep any information relating to the private business affairs of the other party confidential and shall keep all such information secure and protected against theft, damage, loss or unauthorised access and will not disclose any such information to any other person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority. Each party undertakes to ensure that its Employees and Agents are aware of and are bound by the provisions of this clause, and the obligations of this clause shall survive the variation, renewal or termination of the Agreement; but shall cease to apply to any information which has come into the public domain through no fault of the recipient.

1.2 The Client hereby gives permission to 123-smile to use its name and logo for the sole purpose of inclusion in 13-smiles marketing materials and related documents.

1.3 123-smile may contact the client via e-mail or telephone from time to time to update the Client about functionality changes and new services on offer. The Client can opt out of these communications by e-mailing 123-smile.

9 Severability

1.1 If any clause of these terms, or any part of a clause, is found by any court of competent jurisdiction to be illegal, invalid or unenforceable, and the clause (or part thereof) is not of fundamental nature to these terms as a whole, the legality, validity and enforceability of the remainder of these terms (including the remainder of the clause which contained the relevant provision) shall not be affected.

10 Changes to the Agreement

10.1 123-smile reserves the right to amend, modify or vary these Terms and Conditions from time to time. Notice of any such amendments shall be given to the Client by the publication of modified Terms and Conditions on the Website

11 Acceptance of Conditions

11.1 A copy of these Terms and Conditions must be signed by all new clients when sending 123-smile the Order Form. This indicates agreement to and acceptance of these Terms and Conditions.

12 General

12.1 Clients are to provide 123-smile with all contents for the web site. 123-smile does not supply content for any web site created for Clients. Failure to provide 123-smile with the required web site content could be subject to rejection fo other work. The content of a web site is as important as signing off design concepts, everything is time based and could result in a delay if the information has not been provided as agreed.

12.2 Domain name registration is preferred to be carried out by 123-smile. The Client should keep a record of the renewal dates to ensure that the renewal is made on time. Domain names registered by 123-smile will be put into the Clients name.

13. Preliminary Informal Complaints Procedure

13.1 Anyone experiencing a problem with their web service provided by 123-smile agrees to raise the issue directly with 123-smile, via e-mail giving all the necessary information to locate any material that needs to be rectified, and clearly outlining the complaint.

13.2 123-smile will respond to the complaint within 10 working days of receipt of the complaint with a view to resolving the matter to the satisfaction of the client.

14 Formal Complaints Procedure.

14.1 The formal complaints procedure should only be used where the client feels that the complaint is too serious to be dealt with informally and wishes their complaint to be recorded. The formal complaints procedure may also be used after following the informal complaints procedure and has not received a satisfactory conclusion from following this procedure.

14.2 Formal complaints should be made in writing to 123-smile, who will acknowledge receipt and ensure that the matter is thoroughly investigated as soon as is reasonably practicable.

14.3 123-smile will endeavour to give an initial response within 7 days of its receipt; a full and considered response to the complaint should be completed within 20 working days and any subsequent remedy executed with the minimum delay.

15 Law

15.1 The Agreement shall in all respects be governed by and construed with the laws of England and Wales and the parties hereby submit to the exclusive juristriction of the courts of those countries in respect of any matter arising from or in connection with the Agreement.

Notes.

Should 123-smile waive any of these terms on an individual basis, this shall not affect the validity of the remaining clauses or commit 123-smile to waive the same clause on any other separate occasion.

123-smile reserve the right to change these Terms and Conditions at any time. Should you require clarification of any of the Terms above please don’t hesitate to contact us.

Contact details:

James Carrie T/as

123-smile

Laurel Cottage

Upham Street

Upham

Southampton

SO32 1JA

T: 01489 860109

M: 07810 106417

E: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

W: www.123-smile.co.uk