Last Updated - 13/07/2012
Company No. 5606868
Vat No. 812 9734 21
All Users of services provided by Duo Design, by use of such services, accept the terms of business set out in the form of service agreement which follows, irrespective of the mode or manner of ordering employed by the User when ordering the services.
The following constitute the terms and conditions under which Duo Design trades and supplies its services and related products. These conditions, in conjunction with the details as shown on the Duo Design Quote represent the totality of the agreement and form the Contract between Duo Design and the User.
Any agreed variation or alteration to part of these terms and conditions as annexed to this Contract will not invalidate the remainder or the whole. Duo Design is entitled to suspend services if the User does not adhere to any or several conditions of this Contract.
In this Contract unless the context otherwise requires:
"Service" or "Services" means domain name registration, Virtual Server hosting, bandwidth provision, email and any other service or facility provided by us.
"Server" means the computer server equipment operated by us or provided by you in connection with the provision of the Services;
"Virtual Server" means the area on the Server allocated by us to you for use by you as a site on the Internet;
"Duo Design" or “we” means Duo Creative Services Ltd
“Duo CMS” or “software” means Duo’s content management system.
"Contract" means the agreement between Duo Design and the User incorporating these conditions, the Duo Design Quote and or Proposal and Duo Design's published charges for the provision of its services; References to "Agreement" shall, where the context admits, be read as referring to the Contract
"Charges" means the charges as agreed on the Quote or Proposal and Duo Design's latest published prices for products and services requested or incurred by you
"bandwidth" means the allocated transmission capacity, measured in bits per second, of the network connection as specified in the Contract;
"data transfer" means all traffic that passes through the Virtual Server including specifically but not exclusively web traffic, email, FTP transfers and any telnet session data;
"Site" means the premises or location at which Service is or is to be provided under this Contract;
"Internet" means the global data network comprising Internet connected networks using TCP/IP (Transmission Control Protocol/Intermit Protocol) Internet Standards means the protocols and standards defined in the following Internet documents: RFC 1009, 1122, 1123 and 1250 and any future such protocols and standards as appropriate;
"User" means you, the Customer, or any person who makes use of the services through you or on your behalf;
"Initial Contract Term" means the initial period of service as specified in clause 4;
"Extension Term" means each successive period of twelve months after the Initial Contract Term.
2. VIRTUAL SERVER HOSTING and EMAIL
2.1. We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss of or damage to any data stored on the Server.
2.2. You shall effect and maintain adequate insurance cover in respect of any loss of or damage to data stored on the Server.
2.3 You represent, undertake and warrant to us that you will use the Virtual Server allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that
2.3.1 you will not use the Virtual Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorise or permit any other person to do so;
2.3.2 you will not post, link to or transmit:
(a) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
(b) any material containing a virus or other hostile computer program;
(c) any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
Your attention is drawn to the provisions of subclause 6.3 below.
2.4 You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorised use of your account or breach of security, including loss, theft or unauthorised disclosure of your password or other security information.
2.5 You shall observe the procedures which we may from time to time prescribe and shall make no use of the Virtual Server which is detrimental to our other customers.
2.6 You shall procure that all email is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
2.7 In the case of an individual User, you warrant that you are at least 18 years of age and if the User is a company, you warrant that the Services will not be used by anyone under the age of 18 years.
2.8 Any access to other networks connected to Duo Design must comply with the rules appropriate for those other networks.
2.9 While we will use every reasonable endeavour to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers or from corruption by virus and we shall be under no liability for non-receipt or misrouting of email or for any other failure of email or damage to data or operations.
3. Duo Design SERVICE
3.1 Connection to the Duo Design Service is via a fixed telecommunications link or dial up connection. This Contract, unless specifically stated on the Quote and or Invoice, does not include the provision of telecommunications services necessary for connection to the Duo Design Service.
3.2 Requests relating to the provision of Service are, unless otherwise agreed to be made or confirmed in writing or by electronic mail.
3.3 Duo Design will use all reasonable endeavours to adhere to any dates proposed by either Duo Design or you for the provision of Service; however any such date is to be treated as an estimate only and Duo Design accepts no liability for failure to meet such dates.
3.4 Duo Design will use all reasonable endeavours to provide reliable Service; however, it is not practicable to provide Service free of faults and Duo Design does not undertake to do so. In the event of a fault in Service, you must report the fault by telephone or electronic mail to Duo Design' at the appropriate numbers or addresses or other such numbers or addresses that Duo Design may from time to time provide. Upon receipt of the fault report, Duo Design will take all proper steps without undue delay to correct the fault. Duo Design shall not, in any event, be liable for interruptions of Service or downtime of a Server.
3.5 Duo Design may:
3.5.1 temporarily suspend for the purpose of repair, maintenance or improvement, part or all of Service, without notice. Duo Design undertakes to use reasonable endeavours to restore Service as soon as practicable after any such suspension,
3.5.2 give or update instructions regarding the use of Service which in Duo Design's reasonable opinion are necessary in the interests of safety, or to maintain or improve the quality of Service to Duo Design's customers. Any such instructions shall, whilst they are in force, be deemed to form part of this Contract,
3.5.3 vary the technical specification of Service for operational reasons.
3.6 Duo Design will use all reasonable endeavours to provide Services and site functionality that are as accessible to site users as is possible; however, it is not practicable to deliver a completely multi browser / cross platform service free of faults and Duo Design does not undertake to do so. Duo Design accepts no liability or responsibility if this is the case now or in the future.
3.7 Internet browser compatibility limitations: Duo Design deliver services that operate on the primary internet browsers which make up majority of the internet browsers used. Duo Design will endeavour to ensure that any developed/designed site or application will function correctly on the server it is initially installed on and that it will function correctly when viewed with the latest version of these browsers, Microsoft Internet Explorer, Google Chrome, Safari and Firefox browser to an acceptable level. Duo Design can offer no guarantees of correct function with all browser software. Websites are design and developed to operate with the primary internet browsers at the time of publishing.
4. COMMENCEMENT and INITIAL PERIOD OF SERVICE
The Service shall be for an initial period as specified on the Quote and or Invoice. The Service, unless otherwise agreed shall be provided for an Initial Contract Term of twelve months. The Initial Contract Term shall commence upon connection. Connection shall be deemed to be effected when the link is first live to your Site or other such point as requested by you, to the Duo Design network.
5. BANDWIDTH UTILISATION
If the bandwidth or speed of Service used by you exceeds agreed quotas in a one month minimum period an excess charge will be payable by you at current published prices.
6. CONTENT and MISUSE
6.1 You will use all reasonable endeavours to ensure that the Duo Design Service is used or includes content that conforms to the laws of this country and will not knowingly permit any illegal use or such use that will bring Duo Design into disrepute.
6.2 You must not, nor must any other person, use the Service: to send or receive any material which is offensive, abusive, indecent, obscene, pornographic or menacing, or in breach of confidence, copyright, privacy or any other rights, to cause annoyance, inconvenience or needless anxiety, or in breach of any provisions as contained within clauses 2 and 3 of this Contract, or other than in conformance with the acceptable use policies of any connected networks and the Internet standards.
6.3 Duo Design may discontinue Service immediately if the User is found to have carried out or permitted any illegal or use that is prohibited by these terms. If Duo Design suspends Service for contravention of the above conditions of this clause, Duo Design can refuse to restore Service until it receives an acceptable assurance from the User that there will be no further contravention.
7. CHARGES and PAYMENT
7.1 All payments must be in UK Pounds Sterling. If your cheque is returned by the bank as unpaid for any reason, you will be liable for a "returned cheque" charge of £57.
7.2 All Charges payable by you for the Services shall be in accordance with the scale of charges and rates published from time to time by us on our web site or on our quote and shall be due and payable within 30 days of our Service provision. Charges are exclusive of 'Value Added Tax’, which shall, if applicable, be paid additionally by you at the rate prescribed by law on submission by us of a proper VAT invoice.
7.3 You acknowledge that our Services are provided using facilities provided to us by third parties; Duo Design shall have the right, subject to 14 days prior written notice to you, to increase our Charges at any time during the Initial Contract Term or any Extension Term, whether to reflect increase costs to us from such third parties or otherwise. However, if such increase exceeds 10% of the Charge in question prior to such notice you shall be entitled to terminate the Contract by written notice to us given by you within 7 days after service of our notice of increase to you. If you do so terminate, you will remain liable for all Charges (at the previous rate) up to the date the Contract ends and for all materials and subcontract work which Duo Design has ordered or contracted for and which cannot be cancelled without cost to Duo Design.
7.4 Payment for all services shall be made by the client not later than 30 days from the date of Duo Design’s invoice and in the event of any payment not being made by the due date, Duo Design shall, without prejudice with its right to recover any monies owing to it, not be obliged to proceed with nor to deliver to the Client any further service or work. Any ongoing services ie Web and Email hosting will cease to be provided if payment is not received in full within 60 days of the invoice date, as supplied by Duo Design.
7.5 If suspension of service occurs for any reason you will be liable for a "reconnection" charge of £57.
8.1 If you do not pay the charges in accordance with the provisions of clause 7 of this Contract, or break this Contract in any other way, or are subject to bankruptcy or insolvency proceedings Duo Design can (without prejudicing, losing or reducing any other right or remedy) suspend Service, wholly or partially, without notice (but the User remains liable during the suspension to pay charges for Service), or terminate this Contract by immediate notice, without prejudice to Duo Design's pre-existing rights.
8.2 Bankruptcy or insolvency proceeding means bankruptcy proceedings or in Scotland sequestration proceedings, becoming insolvent, making any composition or arrangement with creditors or an assignment for their benefit, any execution, distress, diligence or seizure: or if the User is a company, being the subject of proceedings for the appointment of an administrator, going into liquidation whether voluntary or compulsory (except for the purpose of amalgamation or reconstruction) or having a receiver or administrative receiver of any assets appointed.
8.3 You continue to be liable to pay all charges, which are due for Service during any period in which you do not comply with this Contract.
8.4 On termination of this Agreement or suspension of the Services we shall be entitled immediately to block your Server and to remove all data located on it. We shall be entitled to delete all such data but we may at our discretion hold such data for such period as we may decide, to allow you to collect it at your expense, subject to payment in full of any amounts withstanding and payable to us. We shall further be entitled to post such notice in respect of the non-availability of your Server as we think fit.
8.5 For so long as any sum due to Duo Design hereunder is unpaid or any other amount is due to or properly claimed by Duo Design from you for services or goods supplied or for any other reason, whether pursuant to these terms or otherwise, Duo Design shall be entitled to retain any property owned by you or lawfully in your custody or possession and which is held by Duo Design or by its agents until such time as all amounts due to Duo Design are paid and/or any issue between you and Duo Design is determined.
8.6 If Duo Design waives a breach of Contract by you, that waiver is limited to the particular breach. Any delay by Duo Design in acting upon a breach is not to be regarded in itself as a waiver.
9. TERMINATION OF SERVICE
9.1 Service may be terminated by either party on giving at least 30 days notice to the other expiring on the last day of the Initial Contract Term or at any time thereafter. If Duo Design gives notice you shall pay all charges up to the expiry of the notice. If you give notice, you shall pay all charges as provided in subclause 9.5.
9.2 Duo Design reserves the right during the Initial Contract Term and at any time thereafter to terminate this Contract by giving to you not less than 30 days prior written notice of termination. This termination will be only applied as a result of breach of contract.
9.3 After the expiry of the Initial Contract Term you may terminate the Service by giving not less than 30 days prior written notice of termination, but subject to subclause 9.4.
9.4. Your notice does not avoid any other liability for Service already provided.
9.5 The Contract is a yearly contract and if you continue Service beyond your Initial Contract Term you will be liable to pay for the remainder of the then current Extension Term even though Service ends before the end of the Extension Term.
Any notice to be given by either party to the other may be sent by either email or recorded delivery to the address of the other party as appearing in this Agreement or the quote, invoice or proposal or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
11. MATTERS BEYOND DUO DESIGN'S REASONABLE CONTROL
Duo Design is not liable for any breach of this Contract or liable for any delay or failure in performance of any part of these conditions and its commitments when caused as a result of Force Majeure, war, civil disorder, industrial disputes, inclement weather, acts of local or central government or other competent authorities, and failure by other service providers.
12.1 You acknowledge that Duo Design has no control over the information transmitted via the Service and that Duo Design does not examine the use to which you put the Service or the nature of the information you are sending or receiving. Duo Design hereby excludes all liability of any kind for the transmission or reception of information of whatever nature.
12.2 Duo Design undertakes no liability whatsoever for the acts or omissions of other providers of telecommunication service or for faults in or failures of their apparatus.
12.3 Duo Design is not in any way liable in contract or otherwise for loss whether direct or indirect of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatsoever.
12.4 Duo Design makes no warranty as regards to its Services or equipment and will not be responsible for any damage allegedly suffered or claimed by you for any reason including but not limited to loss of data, wrong or non deliveries and Service interruptions.
12.5 All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to subclause 12.6.
12.6 Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
12.7 Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim.
12.8 In any event no claim shall be brought unless you have notified us of the claim within one year of it arising.
You shall indemnify us and keep us indemnified and hold us harmless from and against any breach by you of these terms of business and any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Services and the Server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by us in consequences of your breach or non-observance of this Agreement.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 You shall obtain any and all necessary consents and clearances to enable you lawfully to make use of all and any intellectual property rights through the Services, including without limitation, clearance and/or consents in respect of your proposed domain name.
14.2 The copyright in any design, together with any other intellectual property rights arising out of any work executed by Duo Design, shall vest in Duo Design, until such time as Duo Design has been paid in full for all of the services which the parties have agreed Duo Design will provide. Upon full payment being made, all intellectual property rights shall be assigned to the Client by Duo Design and the client shall be free to register any such rights at its cost with the exception of any product or service supplied under licence.
14.3 Duo CMS websites rely on a technology developed by Duo Design. By contracting with Duo Design to produce your cms site, you are in effect buying a licence to this software and to the ‘plug-in’ features you have chosen to purchase. The intellectual property of all the ‘server side code’ remains that of Duo Design’s. However Duo Design grants to you a non-exclusive license to access Duo Design’s content management system (Duo CMS) and related code on a single domain from the Duo Design website, for your internal use, to administer the content of one Internet domain, subject to the terms and conditions of this Agreement. If you have purchased a license for more than one Internet domain (I.e. for three domains), you may use the Software for the number of domains licensed.
14.4 You are permitted to adapt and modify those portions of the Software that are provided to you in source code format (your templates), to enable you to achieve interoperability of the Software with your Internet domain and to create customised interfaces as part of further development of your site.
14.5 Any attempt to circumvent access controls of Duo Design’s content management system (Duo CMS) is deemed to be a material breach of this Agreement, resulting in automatic termination of your right to use the software.
14.6 Should Duo Design release any updates, upgrades or new versions of the Software or supplemental code or supporting materials for the Software (“Additional Software Releases ”), all such Additional Software Releases shall be considered part of the Software and subject to the terms and conditions of this Agreement and any additional terms and conditions that accompany the Additional Software Releases.
14.7 You are not permitted, and may not: translate, reverse engineer or disassemble the Software or any part of the Software which is provided to you, except to the extent this restriction is not permitted by the laws of your jurisdiction; or modify or adapt or create derivative works based on the Software or any part of the Software (except as permitted under the “License” provision above), or merge the Software or any part of the Software with any other software program; or, separate the component parts of the Software for use on more than one computer or server. You may not provide the source code for the Software or any Improvements to any party (including your customers).
14.8 The websites using Duo Design’s content management system need to be hosted on our web servers that have been specifically set-up for this task. In order to protect our copyright over the server side code we reserve the right to only offer our editing system as a ‘Hosted Solution’.
You may assign all or part of this Contract to any other party only with the prior written agreement of Duo Design. Such written agreement will not unreasonably be withheld. Duo Design reserves the right to assign all or part of this Contract at any time to any subsidiary or associate company of Duo Design.
This Agreement shall be governed by and construed in accordance with English law and you hereby submit to the non-exclusive jurisdiction of the English courts.
Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
18. ENTIRE AGREEMENT
18.1 These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation, which has not been made expressly in this Agreement.
18.2 These terms and conditions are the sole terms and conditions governing contract between Duo Design and the Client, and may not be amended, substituted or added to without Duo Designs written agreement. Any purchase order issued by the client shall be only for the Client’s administrative convenience and Duo Design shall not be bound by any terms and conditions contained in any such order or other form of acceptance of Duo Design’s offer to perform services. Where the parties to this contract cannot agree on any issue, each party agrees to submit to binding arbitration. Any such arbitration shall be carried out in accordance with English Law by a member of the Charterted Institute of Arbitrators.