The terms and conditions for each of the services listed on this website are made up of these general terms listed below and includes ( any other document/terms listed here under the heading “Terms & conditions” ) which are relevant conditions on which we supply our services.
The acceptance of a quote for any of services listed on this site constitutes the sole agreement between FBC Business and the client receiving such quote. Any additional work not specified in the quote must be authorized by a written change order. All prices specified in the quote will remain valid for one (1) month after both parties acknowledges acceptance of the quote.
Copyrights to Web Pages.
Copyright to the finished assembled work of Web pages produced by FBC Business, is owned by FBC Business. Upon final payment of work invoice, the client is assigned rights to use as a Website the design, graphics, and text contained in the finished assembled Website. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the client, and remain the property of their respective owners. FBC Business retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios.
Web Site Host Service Provider.
The client understands that any Website Host Service Provider (Host) services require a separate agreement with the Host of the client’s choice. The client agrees to select a Host, which allows FBC Business full access to the Web site and/or a CGI-bin directory via FTP. The client further understands that the Host must be able to provide the required extensions and facilities in order for the client’s website to be uploaded and function properly.
Quotes and Estimates.
Any quotation issued for products or services provided by FBC Business and it divisions will remain valid until the stated expiry date, after which the quoted price is no longer applicable or enforceable and the quote is deemed to be abandoned. A new quote may be requested by the client if required.
Any failure of FBC Business to enforce at any time, or for any period of time, any of the provisions set forth herein, shall not constitute a waiver of such provisions or in any way affect the validity of these Terms and Conditions.
FBC Business and the client must work together to complete any project in a timely manner. FBC Business agrees to work expeditiously to complete the project within the time specified in the quote after contract acceptance. To avoid additional fees the client must supply FBC Business via the online project portal, with the complete information required for the project including text and images.
Refunds will only be issued at our sole discretion. Most issues or problems can typically be resolved by contacting customer support, and they may be considered after careful investigation. Refunds are typically available within 24 hours after a first payment is made by a new customer, providing the service(s) supplied have not been used, or FBC Business including any of its divisions have not incurred any cost in delivering the service. Other refund policies included in associated terms and conditions on this website applies.
It is a clients responsibility to keep track of all payments made for any service provided by FBC Business and its divisions.
FBC Business may terminate your access to any services provided, in whole or in part, without notice in the event that: (i) client fails to pay any fees due; (ii) client violates any part of Agreement; (iii) client conduct may harm FBC Business or others or cause FBC Business or others to incur liability, as determined by FBC Business in our sole discretion; or (iv) as otherwise specified in all Terms and conditions. In such event, FBC Business shall not refund to client any fees paid in advance of such termination, and client shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination. Additionally, FBC Business may charge client for all fees due for the remaining portion of the provided service in the then current term.
We reserve the right to Close a client account due to inactivity, including if a User Account has not been logged into for a continuous 6-month period.
UPON TERMINATION OF THE SERVICES OR CLOSURE OF CLIENT’S ACCOUNT USER CONTENT, USER WEBSITES, AND OTHER DATA WILL BE DELETED.
FBC Webdesign is a division of FBC Business and by placing an order to design, update, adjust or maintain your website with FBC Webdesign, you confirm that you are in an agreement with FBC Business and agree to be bound by all the terms and conditions relevant to your ordered sevice, including the design agreement terms on our website, www.fbcbusiness.com
The client named in the accepted quote is engaging FBC Webdesign, as an independent contractor for the specific web design project of developing and/or improving a web site, hereinafter referred to as “web design project” which may be installed on the client’s account on an Internet Service Provider (ISP) / Web Presence Provider (WPP) server, hereinafter refer to as “Hosting Service” If FBC Webdesign is required to perform services on the client hosting service, the client hereby authorizes FBC Webdesign to access this account and authorizes the Hosting Service to provide FBC Webdesign with “full access” to the client’s account and any other programs needed for this web design project that are included as part of the client’s service agreement/level.
All Web page packages.
The client will supply all the content for the Web pages. The final payment shall reflect and include all elements actually completed at the prices agreed in the quote/proposal. Any additions to the quote/proposal applied for after acceptance by the client will be carried out at the discretion of FBC Webdesign, and FBC Webdesign accepts no responsibility to ensure such additions are error free and reserve the right to charge for any correction to these or further additions.
Copyright and Trademarks.
The client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork delivered to FBC Webdesign for inclusion in the web design project are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend FBC Webdesign and its subcontractors from any claim or suit arising from the use of such elements furnished by the client.
Maintenance and Hourly Rate.
Where the quote does not include Web page maintenance to regular Web pages, including updating links and making minor changes to a sentence or paragraph, the client must subscribe to FBC Webdesign maintenance services to receive assistance. If the client or an agent other than FBC Webdesign attempts updating the client’s pages, a cost will be incurred for time required to repair the Web pages, and that will be assessed at our standard hourly rate, and is not included as part of a maintenance service. Changes requested by the client beyond the limits of the maintenance service will be billed at the rate indicated in the tariff.
Changes to Submitted Text.
Time required to make substantive changes to the client submitted text after the Web pages have been constructed and the web project is published and delivered will be quoted for additionally.
Payment of Fees.
Fees and charges by FBC Business for web projects are due and payable on the following schedule: 50% upon acceptance of the quote, and 50% due upon “delivery” (hand-off or uploading of site to Web Host server). Any other payment schedule indicated in the quote will be applied as the final payment schedule. If the quoted total amount is less than £200, the full amount quoted shall become due, and is paid after the acceptance of the quote. In the event that the client has not secured Web space on a Website Host Service Provider, by the time the Web pages are completed, the Web pages may be delivered to the client on a disk. All payments will be made against invoice. If the client does not supply FBC Business complete text and graphics content for all Web pages quoted for within 20 days of the accepted quote, the entire amount of the contract becomes due and payable.
Assignment of Project.
FBC Business reserves the right to assign subcontractors to this project to ensure an on-time completion.
Copyrights and Trademarks.
The client represents to FBC Business and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to FBC Business for inclusion in Web pages are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend FBC Business and its subcontractors from any claim or suit arising from the use of such elements furnished by the client.
Laws Affecting Electronic Commerce.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend FBC Business and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the client’s exercise of Internet electronic commerce.
Payments must be made promptly. Delinquent invoices will incurr a late payment charge of £10 if payment is not received within 28 days of the due date. If an amount remains delinquent 45 days after its due date, an additional 5% penalty will be added for each month of delinquency. FBC Business reserves the right to remove Web pages from viewing on the Internet until final payment is made. In case collection proves necessary, the client agrees to pay all fees incurred by that process.
Initial Payment and Refund Policy.
This web project agreement begins with an initial payment of 50% of final project cost. If the client halts work and applies for a refund within 30 days, to FBC Business, work already completed shall be billed at the hourly rate, and deducted from the initial payment, the balance of which shall be returned to the client. If, at the time of the request for refund, work has been completed beyond the amount covered by the initial payment, the client shall be liable to pay for all work completed at the hourly rate. No portion of this initial payment will be refunded.
Delivery may be accomplished by publishing, electronic transfer, or physical media. The web site design project delivery shall be completed upon receipt of the payment associated with delivery. The client understands that FBC Webdesign may not be providing any hosting services in connection with this web design project. Hosting services may require a separate contract. The client will be solely responsible for all hosting service charges. The client assumes all responsibility for the use and functionality of the web design project.
If the Project Delivery includes publishing, FBC Webdesign will make a good faith effort to accommodate client’s requested method of publishing. In the event FBC Webdesign is not able to accommodate the request method of publishing the following statements apply. FBC Webdesign may use FTP or SFTP to publish the site. If publishing to a hosting service is not feasible the information may be delivered on USB drive or CD/DVDROM.
FBC Webdesign does not warrant that the functions contained in the web design project will be uninterrupted or error-free. The entire risk as to the quality and performance of the web design project is with the client. In no event will FBC Webdesign be liable to the client or any third party for any damages, including, but not limited to service interruptions caused by Acts of God or any other circumstances beyond our control, any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this web design project, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, your or site visitor’s computer or Internet software, even if FBC Webdesign has been advised of such information.
This Terms and Conditions (including the design agreement on our website www.fbcbusiness.com), forms your agreement with FBC Business along with any other agreements associated with your request for FBC Webdesign to supply any of its services.
FBC Hosting is a division of FBC Business and by placing an order to use any service listed on the website, you confirm that you are in agreement with FBC Business and agree to be bound by the terms and conditions below
By placing an order through our website, you warrant that:
1.1 you are legally capable of entering into binding contracts; and you are at least 18 years old.
1.2 If you are acting on behalf of a company or other business, you further warrant that you personally have the authority to bind that company or business on whose behalf you are placing an order.
2. The order process
2.1 You can only place an order for the Services once you have successfully registered an account with us. Information that you provide while registering an account with us must be complete and accurate. You agree that we may block access to your account and the Services we supply if we reasonably believe that the information you have supplied is inaccurate. You must keep your user name and password secret at all times and not allow anyone else to use it. You must contact us immediately if you believe your user name and password has become known to someone else.
2.2 Before you submit an order (by clicking the “Submit Order” button) you will be shown your order on screen including details of the Services you have wish to order and the price payable. You will then have an opportunity to identify and correct any input errors in your order for the Services. You will only be allowed to complete an order once you have made payment unless the service is Free or a trial.
2.3 After placing an order for the Services we will give you details of the Services you have ordered. We will send the same details to you in an email, together with an invoice, to the email address you provided when you registered your account with us. You can view copies of the invoices we have sent you and details of what you have purchased from our website by logging into your account.
3. How is the contract formed between you and us
3.1 After placing an order, you will receive an e-mail from us accepting your order and, if appropriate, letting you know that the Service you have purchased has been activated (“Acceptance Confirmation”). Your order constitutes an offer to us to buy our Services and all orders are subject to acceptance by us. The contract between us (“Contract”) will only be formed when we send you the Acceptance Confirmation. We may also decline your order for the Services for any reason, in which case we will tell you so. The Contract will relate only to those Services we have confirmed in the Acceptance Confirmation. We will not be obliged to supply any other Services which may have been part of your order until such Services have been confirmed in a separate Acceptance Confirmation.
4.1 We may provide links on our site to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking that products or services you purchase from companies to whose website we have provided a link on our website will be of satisfactory quality, and any such warranties are DISCLAIMED by us absolutely. This DISCLAIMER does not affect your statutory rights against the third party seller.
5.1 If you are buying as a consumer (i.e., not within the course of your business), ordinarily, the Consumer Protection (Distance Selling) Regulations 2000 allow you to cancel the Contract at any time within fourteen (14) working days, beginning on the day after you received the Acceptance Confirmation. However, by placing your order for the Services, you agree to us starting supply of those Services before the end of the seven working day cancellation period referred to here. As such, you will not have the right to cancel the Contract under the Consumer Protection (Distance Selling) Regulations 2000.
5.2 This provision does not otherwise affect your statutory rights.
6.1 Once the Contact has been formed you may, subject to clause 6.2, only cancel the Contract in relation to the Hosting Service you have purchased (unless your Hosting Service includes the use of a dedicated hosting server or VPS/ Hybrid Server in which case you may not cancel the Contract). In such cases, you may cancel at any time within thirty (30) days, beginning on the day after you received the Acceptance Confirmation. If you do so, you will receive a refund of the price paid for the Hosting Service you have cancelled less our processing charges. No other refund will be made. Limited to one per customer.
6.2 To cancel the Contract under clause 6.1, you must inform us in writing through our support ticket system http://www.fbcoffice.uk/support before the end of the thirty (30) day period mentioned in clause 6.1. As part of our cancellation process, we will respond to you via our support ticket system to confirm your cancellation request. You must re-confirm your cancellation request via our support ticket system or we will continue to supply the Hosting Service and your cancellation under clause 6.1 will be ineffective. You will not have any right under clause 6.1 to cancel the Contract for the supply of any other Services other than that noted in clause 6.1. Therefore, the Services which may not be cancelled include (but are not limited to):
6.3.1 Hosting Services where you request a dedicated hosting server;
6.3.2 Domain Registration and Renewal Services; and
6.3.3 Use of SSL certificates and other ‘add on’ products.
7. Price and payment
7.1 The price of any Services will be as quoted on our website from time to time, except in cases of obvious error. These prices are inclusive. The total cost of your order for the Services will be set out clearly in your Shopping Basket before you submit your order for the Services. Our services are billed on a monthly subscription basis unless otherwise specified. Client will pay all charges for the first month of service in advance on the first day of the Initial Term. Client will pay all subsequent charges for Services in advance on the anniversary day of each month.
Client failure to fully pay any fees/charges/invoices within 7 days from the applicable due date is a material breach of this Agreement, justifying FBCMediaTel to suspend its performance of this Agreement and apply late payment fee’s and charges of £10 minimum, or terminate the Agreement. If FBC Hosting terminates because of Client material breach, Client will be required to pay immediately all fees and costs accrued before the termination date. Client is responsible for any costs FBC Hosting incurs in enforcing collection, including reasonable attorneys’ fees, court costs and collection agency fees. To reinstate Services after cancellation not suspension, Client must pay £25 as a reconnection fee 7 days in advance of the day such Services are reinstated and the monthly charges associated with the Services as invoiced.
7.2 Prices are liable to change at any time. We will notify you of a change in our prices at least thirty (30) days before the price increase comes into force. Any such price increase will not be effective until the Minimum Term expires. If you do not agree to such price changes, please cancel your Services. If you do not cancel you will be deemed to have accepted the new prices, and they will be charged to the credit card, debit card or other payment method registered to your account.
7.3 Our website contains the details of a number of Services and it is always possible that, despite our best efforts, some of the Services listed on our website may be incorrectly priced. Where a Service’s correct price is less than our stated price, we will charge the lower amount when accepting your order. If a Service’s correct price is higher than the price stated on our website, we will normally, at our discretion, either contact you for instructions before accepting your order, or reject your order and notify you of such rejection.
7.4 We are under no obligation to provide the Services to you at the incorrect (lower) price, even after we have sent you an Acceptance Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mis-pricing. You must register a payment method for the Services you have ordered before submitting your order. You may pay by credit or debit card using Paypal or, alternatively, you may set up a paperless direct debit against your account. We will take payment from the payment method you have registered against your account immediately upon sending you our Acceptance Confirmation or shortly thereafter, or expect you to pay your invoice immediately. If we subsequently reject your order, we will refund the payment you have made.
7.5 Please note that when purchasing a Service, you are obliged to pay for that Service for the whole of the Minimum Term that applies to it (unless you have cancelled the Service under clause 6.1) even though you may pay by monthly direct debit payments. Consequently, you must not cancel your direct debit payments without first cancelling your Services. If you do so, we will seek to recover any outstanding payments due to us by other means, including by taking appropriate legal action.
7.6 Time for payment shall be of the essence. No payment shall be deemed to have been received until we have received cleared funds. If your chosen method of payment is not authorised by your credit card provider or bank, you hereby authorise us to seek payment from any other credit card, debit card or direct debit registered against your account. Further, if your payment is still not authorised we may, at our discretion, suspend or terminate any Services we provide to you from time to time, even if payment in respect of such Services is not outstanding.
8.1 We warrant that (subject to the other provisions of these terms and conditions) any Services purchased from us through our website will be provided with reasonable care and skill.
8.2 We will not be liable for a breach of the warranty in clause 8.1 unless:
8.2.1 you give written notice of the breach to us through our support ticket system http://www.fbcoffice.uk/support ; and
8.2.2 we are given a reasonable opportunity after receiving the notice of examining our provision of the Services to you. We will not be liable for a breach of the warranty in clause 8.1 if:
8.3 the problem arises because you failed to follow our oral or written instructions as to the use of the Services (if there are any); or you alter the Services without our written consent; or the problem arises because of misuse
8.4 Subject to clause 8.2 and clause 8.3, if we are in breach of the warranty in clause 8.1 we will, at our expense, use all reasonable commercial efforts to remedy the breach promptly or refund the price of the Services at the pro rata Contract price. This constitutes your sole and exclusive remedy for any breach of the warranty set out in clause 8.1. Notwithstanding the foregoing, we do not warrant that your use of the Services will be uninterrupted or error-free.
8.5 We reserve the right to modify the Services without notice to you provided such modification does not adversely effect your access to, or use of, the Services or detract from the overall performance of the Services. Any change which may have such adverse effect on you or may detract from the overall performance of the Services will be notified to you at least sixty (60) days prior to the change taking effect. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf which is not set out on our website or otherwise confirmed in writing by us. Nothing in this clause will exclude or limit our liability to you for fraudulent misrepresentation.
9. Access to the Hosting Service
9.1 You are responsible for making all arrangements necessary for you to have access to our Hosting Services. You are also responsible for ensuring that all persons who access our Services through your Internet connection are aware of these terms and conditions (and in particular our acceptable use policy
10. Hosting Service service levels
10.1 We will use our reasonable endeavours to make our servers available to you as part of the Hosting Service you purchase for ninety-nine point nine nine (99.99) per cent of each calendar month. We do not warrant access to our servers will be uninterrupted or error free but we shall use reasonable endeavours to keep downtime to a minimum. We shall make all commercially reasonable efforts to provide you with advanced notification of all scheduled and emergency outages through the system status link on our website and through our Twitter. Service credits are not given for any form of downtime or service unavailability.
11.1 You will have no right, title or interest in any internet protocol address (“IP address”) allocated to you, and any IP address allocated to you is allocated as part of the Hosting Service you purchased and is not portable or otherwise transferable by you in any manner whatsoever.
11.2 If an IP address is re-numbered or re-allocated by us, we shall use our reasonable endeavours to avoid any disruption to you. You agree that you shall have no right, title or interest to any IP address upon expiry or termination of the Services, and that the acquisition by you of a new IP address following expiry or termination of the Services shall be solely your responsibility.
12.1 It is your responsibility to maintain appropriate and up-to-date back-up copies of any data, information or other material you upload (or permit to be uploaded) onto our servers (“Material”) as part of your use of the Hosting Services. In the event of loss of or damage to your Material, you will not be given access to the server back-up we maintain pursuant to our archiving procedure.
12.2 We will follow our archiving procedures for the data stored on our servers. In the event of any loss or damage to our servers, your sole and exclusive remedy will be for us to use reasonable commercial efforts to restore the data on our servers (including your Material) from the latest back-up we maintained in accordance with our archiving procedure. We will not be responsible for any loss, destruction, alteration or disclosure of your Material caused by you or any third party.
13.Hosting Service usage limitations
13.1Your limitations are: your Material is linked into web pages; you do not use the Hosting Service as a backup of, or repository for, your Material; you maintain good housekeeping to maintain your Material; and you comply with our acceptable use policy.
13.2 The Hosting Service package you order includes the per calendar month bandwidth allowance applicable to that hosting package as this is set out on this website at the time of your order. The Hosting Service you have ordered will be automatically suspended if this monthly bandwidth allowance is exceeded. If this happens, you have to upgrade your Hosting Service package to one which includes a higher monthly bandwidth allowance, or wait for the Hosting Service to resume at the start of the following calendar month. You can monitor your monthly bandwidth usage in the control panel http://fbcbusiness.com/site/web-hosting/control-panel/
13.3 Unless the Hosting Service package you order includes a dedicated server, you will only be allowed to use a maximum of five (5) per cent of our server’s processing capacity when using the Hosting Service package you order. At our absolute discretion, we may allow your usage to exceed this limitation, and we will speak to you about your hosting requirements if your usage has, or may have, a detrimental effect on our other customers. The Hosting Service package you order includes the number of mailboxes applicable to that hosting package as this is set out on our website at the time of your order. However, any mailboxes that have not been accessed for one hundred (100) clear days will be automatically deleted from our system.
13.4 When using the Services, you must comply with our terms of website use and our acceptable use policy as these are incorporated into the Contract by reference. Any conflict between our terms of website use and these terms and conditions, will be resolved in favour of these terms and conditions. We shall be entitled to terminate the Contract, or suspend or terminate the provision of any individual Services, if you are in breach of our terms of website use or our acceptable use policy.
13.5 You may use the Hosting Services only for lawful purposes. You may not use the Hosting Services:
- in any way that breaches any applicable local, national or international law or regulation
- in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect
for the purpose of harming or attempting to harm minors in any way
- to send, knowingly receive, upload, download, use or re-use any material which does not comply with our content standards
- to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (also known as SPAM)
- to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
14.1 If a problem has arisen with regard to the Services or your registered account, you can access support through our support ticket system http://www.fbcoffice.uk/support twenty-four (24) hours a day, seven (7) days a week. Our support team will help resolve any problems you have with the Services you are receiving. We will not provide programming support to you, but, as part of our Hosting Services, our servers are compatible with many programming languages.
15.1 Where the Contract includes our Domain Registration and Renewal Service: we will endeavour to procure the registration of the domain name you request; we will not be liable in the event that the relevant domain name registry refuses to register the domain name you request, or subsequently suspends or revokes any registration for that domain name; we shall not act as your agent or on your behalf in any dealings with domain name registry; the registration of the domain name you request and its ongoing use is subject to the relevant domain name registry’s terms and conditions of use which you should obtain and consider.
15.1.2 you are responsible for ensuring that you are aware of the terms referred to in clause 15.1. so that you can comply with them; the domain name you request will only have been successfully registered when you appear as the registrant on the appropriate “whois” database of the top level domain name registrar; we shall have the absolute discretion to require you to select a replacement domain name to the one you have requested to be registered, and may suspend or terminate our performance of the Domain Registration and Renewal Service, if, in our opinion, there are reasonable grounds for us to believe that your current choice of name is, may or is likely to be in bad faith, breach of the provisions of these terms and conditions or any legal or regulatory requirement; and
15.1.3 you confirm and warrant that you are the owner of any trade mark in any domain name (or have the authority of the owner of any trade mark to use such name) that you have requested be registered. You confirm and warrant that you are the legal owner of any domain name (or have the authority of the legal owner to use such domain name) supplied by you, or otherwise authorised by you, for use as a domain name in connection with any website in relation to which the Hosting Service supplied to you is used.
15.2 Once the domain name has been successfully registered, it will need to be renewed periodically to ensure you retain your registration of it. We will send you renewal notices thirty (30) days and seven (7) days before the renewal date of your registered domain name. These notices will be sent to the email address then registered against your account. You hereby authorise us to automatically renew the domain name for you unless you have cancelled the Domain Registration and Renewal Service. The price for the renewal will be as set out in the renewals page of the customer administration area and will be charged against one of the payment methods then registered against your account.
16. Our liability
16.1 We do not monitor and will not have any liability for your Material or any other communication you transmit, or allow to be transmitted, by virtue of the Hosting Services.
2. Due to the public nature of the Internet, we shall not be liable for the protection of the privacy of electronic mail or any other information transferred through the Internet or via any network provider and no guarantee or representation is given that the Hosting Services will be free from hackers or unauthorised users. You shall be liable for the content of any emails transmitted by virtue of the Hosting Services, for any material you upload to, or allow to be uploaded to, our servers and for ensuring compliance at all times with all relevant legislation (including, but not limited to the Data Protection Act 1998 and all other privacy laws, regulations and guidance notes made or issued thereunder).
3. All conditions, terms, representations and warranties that are not expressly set out in these terms and conditions (or the documents referred to in them) are hereby expressly excluded.
16.4 We do not exclude or limit in any way our liability:
1. for death or personal injury caused by our negligence;
2. under section 2(3) of the Consumer Protection Act 1987
3. for fraud or fraudulent misrepresentation
4. for any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
16.5 We will not be responsible for the following types of losses (in each case whether direct, indirect or consequential) and whether they are caused by our negligence or otherwise:
1. loss of income or revenue
2. loss of business
3. loss of profits or contracts
4. loss of anticipated savings
5. loss of goodwill
6. loss of software or data
7. wasted expenditure (such as pay per click advertising costs)
8. wasted management or office time.
16.6 Subject to clause 16.4 and clause 16.5, our maximum aggregate liability under or in connection with the performance or contemplated performance of the Contract, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed one hundred and ten (110) per cent of the price you have paid to us for the Services during the twelve (12) months preceding the event giving rise to the liability in question. Accordingly, you are advised to acquire business interruption insurance, or other appropriate insurance, to protect you and your business in the event of interruption of the Services (in particular the Hosting Service).
16.7 Where you buy any product or service from a third party seller through following a link on our website to such third party’s website, the seller’s individual liability will be set out in the seller’s terms and conditions. You should consult such terms and conditions.
FBC Business Referred hereinafter as ‘FBCMediaTel’, ‘our’, ‘we’ and ‘us’; is an internet service provider. Anyone using our service by registering, purchasing streams or using the site, are subject to the terms and conditions described in this document. Under the terms of this agreement, signing up and/or using our service(s) in any form therefore declares that you have read, understood, and agree to the terms and conditions stated below. We reserve the right to make alterations to this document whenever we deem reasonable. It is the clients/user sole responsibility to check this document for updates on a regular basis.
1. Your Account
1.1 We reserve the full right to terminate your account at any time, with or without given notice. Your account WILL be terminated if you are found in violation of any of these terms.
1.2 If your account is terminated due to a violation of the Terms of Service, a refund will not be provided. If your account is terminated for some other reason, it is at our sole discretion whether a refund will be given.
1.3 In order to register and use any service on our site, you are required to have a valid unique email address.
1.4 When ordering a stream service from FBCMediaTel, you are only renting the stream service. All services remain the property of FBCMediaTel.
2. Maximum Bitrate
2.1 You may only use up to the maximum bitrate that you purchased with your service when broadcasting. All live streaming purchased from us is controlled by a bitrate (X kbps). If you choose to stream above the purchased bitrate on a any of our servers, we reserve the right to terminate your account without warning, refund or explanation. If your account is suspended because of this, we reserve the right to charge £15 admin fee to have it re-activated.
3. Licensing and Other Legal Obligations
3.1 You are responsible for meeting all the legal requirements for your radio or TV stream/station. This may include, but is not limited to, internet radio and or media licensing.
3.2 We claim no responsibility whatsoever for what you choose to stream with the service.
3.3 You may not use our services to distribute adult, racist or any other antisocial material. We do not actively monitor stream contents, so all content broadcast on our network is the sole responsibility of you the client, we do not provide any form of legal cover to individuals or company’s who utilise our services to distribute content with any form of copyright protection.
3.4 Under no circumstances will be responsible for the behaviour of our clients or their users when found to be broadcasting protected content. All licensing, copyright and royalty issues are the sole responsibility of the individual clients and/or their production entities.
3.5 If contacted by an authority in the event of an illegal situation regarding any of the above, we will co-operate fully with any investigations decided against clients found to be breaking the law.
4.1 FBCMediaTel.and its suppliers are not liable for any temporary delay, outages or interruptions of the Services and will not be liable for delays or failure in performance caused by acts of God, war, terrorism, strike, labour dispute, work stoppage, fire, act of government, or any other cause, whether similar or dissimilar, beyond our control.
4.2 FBCMediaTel reserves the right to restrict, alter, or modify fees, benefits, rules, regulations, special offers, membership terms and conditions or terminate services at any time and without notice.
5. Unlimited Services
5.1 In the best interest of our users, FBCMediaTel does not put a limit on the amount of listeners/viewers that may connect to the service, nor the amount of bandwidth a service may use.
5.2 With FBCMediaTel streaming services, service packages are offered to our users and these packages requires a maximum number of simultaneous listeners/viewers to be set. By default, the FBCMediaTel server will be set up with a listener/user limit. If needed, this may be increased at any time by purchasing the required numbers from the site. If you cannot find a plan, contact FBCMediaTel customer support.
5.3 The service offered on our site is intended for individual sites, home businesses, and small businesses. Large enterprises, or other stations requiring a dedicated server should contact us.
Our services are billed on a monthly subscription basis unless otherwise specified. Client will pay all charges for the first month of service in advance on the first day of the Initial Term. Client will pay all subsequent charges for Services in advance on the anniversary day of each month.
6.1 Client failure to fully pay any fees/charges/invoices within 7 days from the applicable due date is a material breach of this Agreement, justifying FBCMediaTel to suspend its performance of this Agreement and apply late payment fee’s and charges of £10 maximum to the account.
6.2 Should the account remain suspended for more than 7 days, FBCMediaTel reserves the right to terminate the Agreement, and should FBCMediaTel terminate because of Client material breach, Client will be required to immediately pay all fees and costs accrued before the termination date. Client is responsible for any costs FBCMediaTel incurs in enforcing collection, including reasonable attorneys’ fees, court costs and collection agency fees.
6.3 Should Client wish to reinstate Services terminated not suspended, Client will first notify FBCMediatel and must pay a reconnection fee of £25 no later than 7 days in advance of the day such Services are to be reinstated including the monthly charges associated with the Services as invoiced. Any charge-backs or reversed transactions made on Clients payments will result in your Client account being immediately terminated.
7.1 Refunds will only be issued at our sole discretion. Most issues or problems can typically be resolved by contacting customer support, and they may be considered after careful investigation.
7.2 Refunds are typically available within 24 hours after a first payment is made by a new customer, providing the service(s) supplied have not been used, or FBC Business including any of its divisions have not incurred any cost in delivering the service. It is the clients responsibility to keep track of all payments made.
8. Our Site/Service
8.1 While every effort has been made to keep the site and service secure, we cannot assure that the site and service is completely free from exploits or malfunction. You accept that the site and the service is provided as is with no guaranties that it will function without fault. If a user is caught exploiting any area of FBCMediaTel their account will be permanently terminated.
8.2 We reserve the right to modify any of the information and function on the site and service at any given time.
9. Our media Player
9.1 We recommend that you use the player provided with your account. The player comes with our default banner service, which helps keep our streaming charges down, that is why we are able to give you some free listeners with your FREE radio account. The user can take over the banner for a fee at anytime by making a request to email@example.com.
9.2 If a user is caught removing or changing any aspect of the player or links without authorisation, FBCMediaTel will notify the user and invoice them from the date notified a total of £150. Should the user not pay their account by return, the service will be permanently terminated. If the user removes or changes the Ad banner without authorisation, the account will be suspended with notice.
To remove the powered by link, FBCMediaTel will add £2.50 per calender month to your subscription.
10. Copyrights & Restrictions
All material on this site, including but not limited to text, images, illustrations, code, scripts and audio clips/live audio is protected by copyrights which are owned and controlled by FBCMediaTel and their owners. Material from this website may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, unless we give you the written permission to do so.
11. Remote DJ service
Every effort is made to ensure that connection to the host station is maintained, due to some instabilities with the Internet, some DJs may loose connection with their host. FBCMediaTel will not take responsibility if a DJ looses such connection. The conditions of the service dictates that the DJs and their host station are fully responsible for maintaining a reliable connection. FBCMediaTel will apply a service charge £5 should the DJs request more than the set number of reconnection in any given month.
If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable then that provision shall be deemed severable from this Terms and shall not affect the validity and enforceability of any remaining provisions. This is the entire Terms and Agreement between the parties relating to the matters contained herein. We may at any time revise these Terms and Conditions by updating this posting. All users are bound by any such revisions and should therefore periodically visit this page to review the then current Terms and Conditions to which they are bound.
The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND CHARGES
3.1 Fees. In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses. Client shall pay Designer’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Designer’s standard markup of 30%, and, if applicable, a mileage reimbursement at $Cost Per Mile per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Designer with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes Designer’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.4 Invoices. All invoices are payable within 15 days of receipt. A monthly service charge of 1.5% [or the greatest amount allowed by state law] is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Designer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Designer’s standard hourly rate of Designer’s Hourly Rate per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Designer.
4.3 Timing. Designer will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer. The Designer shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Designer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Designer’s obligations under this Agreement.
4.4 Testing and Acceptance. Designer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Designer will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Designer;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Designer’s name in the form, size and location as incorporated by Designer in the Deliverables, or as otherwise directed by Designer. Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. Designer shall provide the Services under the general direction of Client, but Designer shall determine, in Designer’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 Designer Agents. Designer shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Designer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Designer, employee or Design Agent of Designer, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Designer shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Designer, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Designer that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Designer
(a) Designer hereby represents, warrants and covenants to Client that Designer will provide the Services identified in the Agreement in
a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Designer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Designer, Designer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Designer’s knowledge, the Final Art provided by Designer and Designer’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void.
(c) Except for the express representations and warranties stated in this agreement, designer makes no warranties whatsoever. Designer explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
10.1 By Client. Client agrees to indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Designer shall promptly notify Client in writing of any claim or suit;
(a) Client has sole control of the defense and all related settlement negotiations; and
(b) Designer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Designer in providing such assistance.
10.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that
(a) Client promptly notifies Designer in writing of the claim;
(b) Designer shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Designer.
10.3 Limitation of Liability. The services and the work product of designer are sold “as is.” In all circumstances, the maximum liability of designer, its directors, officers, employees, design agents and affiliates (“Designer Parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of designer. In no event shall designer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by designer, even if designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
11.3 In the event of termination, Designer shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Designer or Designer’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Designer grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Designer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 Force Majeure. Designer shall not be deemed in breach of this Agreement if Designer is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Designer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Designer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Designer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Name of State without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Name of State. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A and Schedule B below.
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
Schedule A: Intellectual Property Provisions
1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Designer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
1.3 Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.
1.4 Original Artwork. Designer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within 30 days of completion of the Services.
1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Designer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer for use by Client as a Trademark. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
1.6 Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer. Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Designer.
2. RIGHTS TO FINAL ART
Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
Schedule B: Interactive-specific Terms and Conditions
1. SUPPORT SERVICES
1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first Months covered by Warranty months following expiration of this Agreement (“Warranty Period”), if any, Designer shall provide up to Hours covered by Warranty hours of Support Services at no additional cost to Client. Additional time shall be billed at Designer’s regular hourly rate, then in effect upon the date of the request for additional support.
1.2 Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, Designer will provide Support Services for the following Months covered by Maintenance months (the “Maintenance Period”) for
Choose Monthly Maintenance Fee or Hourly Fee and delete the other option below
a monthly fee of $Monthly Maintanance Fee OR Designer’s hourly fees of $ Designer’s Hourly Rate per hour. The parties may extend the Maintenance Period beyond one year upon mutual written agreement.
During the Maintenance Period, Client may request that Designer develop enhancements to the Deliverables, and Designer shall exercise commercially reasonable efforts to prioritize Designer’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Designer’s then in effect price for such services.
3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Designer represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by Designer, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Designer’s sole liability for a breach of this Section is the obligation of Designer to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Designer, Designers sole obligation shall be to substitute alternative Third Party Materials.
3.2 Designer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Designer represents and warrants that, to the best of Designer’s knowledge, the Designer Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
4. COMPLIANCE WITH LAWS
Designer shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.