The following Terms and Conditions are specified for the parties involved, in accordance with the laws of England and Wales:
First Party: SIA SHEER, a company with registration number LV40103581860, trading as “Heer Digital,” and having its principal place of business at Vienibas Prospekts 13, Bulduri, LV-2010, Latvia (hereinafter referred to as “the First Party”).
Second Party: The Client (hereinafter referred to as “the Second Party”).
STANDARD TERMS AND CONDITIONS APPLICABLE TO THE AGREEMENT BETWEEN SIA SHEER (THE FIRST PARTY) AND THE CLIENT (THE SECOND PARTY) IN ACCORDANCE WITH ENGLISH AND WELSH LAW:
1.DEFINITION OF TERMS:
- Domain Name: The root address of a website, e.g. www.webaddress.com, which must be registered with the appropriate naming authority, usually for a fee.
- Downtime: The period when a website is inaccessible via the Internet due to technical failures or maintenance.
- Host: The company providing the system on which the Website resides.
- Link, Hyperlink: A clickable connection embedded in a web page, taking the form of a graphic or text.
- Search Engine: A website that contains a directory of other websites, allowing users to find them based on subject matter classification.
- Design: A file consisting of graphics illustrating the appearance and functionality of the website user interface prior to coding or building.
- Development/Build: The process of coding or constructing the website.
- Content: All text, images, sound, graphics, video, links, and other data stored by the Client on the host computers.
- Content Management System (CMS): A third-party application that enables publishing, editing, modifying content, organising, deleting, and maintaining from a central interface.
- Extension/Plugin: A third-party software component adding specific features to an existing computer application, such as a CMS.
- Website: A coded user interface combined with a CMS, extensions/plugins, and content stored on host computers.
- Figma: A tool used for displaying and commenting on an interactive visual representation (prototype) of the website’s key templates, showcasing their appearance and behaviour.
- Pastel: A tool that allows users to provide feedback directly on the visual appearance and behaviour of a website.
- Work: Website design and build tasks specified and agreed upon between the Client and SIA SHEER (the first party).
2.1 Fee Payable
A non-refundable deposit of 50% of the value under the contract is due immediately upon the signing of the contract. The outstanding balance will not exceed the remaining 50%, except where work limits defined in 4.1.1 below have been exceeded. SIA SHEER reserves the right not to commence work until the said deposit payment has been paid in full.
2.2 Maintenance Fees
Maintenance Fees will be assessed on an hourly basis or part thereof. There are no ongoing application support or maintenance hours included in this agreement.
3.1 Third Parties
SIA SHEER can take no responsibility for services provided by third parties through us or otherwise, including the Hosting of the Client’s Website, although SIA SHEER will endeavour to ensure that Website downtime is kept to a minimum.
3.2 Maintenance and Correction of Errors
SIA SHEER takes no responsibility for the functionality or maintenance (unless a maintenance contract is in place) of the Website after the work has been completed. Errors (both technical and typographical) attributable to SIA SHEER will be corrected free of charge, but SIA SHEER reserves the right to charge a reasonable fee for correction of errors for which SIA SHEER is not responsible, including, but not limited to malicious modification of the Website by a third party and typographical errors contained in materials provided to SIA SHEER by the Client.
3.3 Extent of Work (Installation)
Installation on the Internet is limited to the uploading of all necessary files to the Host, and testing of functionality. No registration of the Website with Search Engines will be undertaken unless otherwise agreed with the Client.
3.4 Consequential Loss
Under no circumstances will SIA SHEER be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its software or the software of third parties. The Client should ensure that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of software failure.
3.5 Status and Duration of Offers
Proposals and offers are valid for a period of one month from the date issued. SIA SHEER is not bound to honour offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed by both parties. This timetable must be agreed within the month that the offer is valid. If an acceptable timetable has not been approved by both parties within one month of the offer being made, the offer is deemed to have expired.
3.6 Search Engine Listings
SIA SHEER does not guarantee listings on Search Engines and the Client accepts that it is Search Engines and not SIA SHEER who determine whom they list and whom they will not. The Client further understands there is no guaranteed placement or rank on the Search Engines and that a new website may never even appear on Search Engines at all. SIA SHEER does not control Search Engines’ algorithms and huge shifts can appear daily, weekly and even hourly.
4. COMPLETION OF WORK AND PAYMENT
4.1 Completion of Work
SIA SHEER warrants completing The Works in accordance with its Standard Terms and Conditions to the date of completion and the work Limits agreed with the Client (see 4.1.1 Work Limits below). SIA SHEER will not charge more than the amount previously agreed unless the Client has varied the specifications of the work since the agreement. SIA SHEER will not undertake changes to the specifications of the work which would increase the cost, without prior written authorisation from the Client. SIA SHEER reserves the right to extend the completion date of The Works where the Client has varied the specifications of the work since the agreement.
4.1.1 Work Hours Limits
The work hours limit is detailed in the proposal. The maximum hours worked by SIA SHEER employees or subcontractors under this contract are specified for each work item in The Works specified within the proposal. Any additional hours beyond the limits stated in The Works will be charged as outlined in 4.1.2 below. For clarification and in case of any discrepancies with the proposal, the work limits defined in this agreement shall take precedence.
4.1.2 Additional Charges
Additional charges apply when work limits specified in 4.1.1 above are surpassed due to Client requests. Additional charges will be billed at £60 per hour for design or development, with stock image charges based on the respective library fees. SIA SHEER will inform the Client of any extra charges before conducting the work.
4.2 Supply of Materials
The Client is to supply all materials and information required for SIA SHEER to complete the work in accordance with the agreed specification. Such materials may include, but are not limited to, photographs, written-copy, logos and other printed materials. Where the Client’s failure to supply such materials leads to a delay in completion of the work, SIA SHEER has the right to extend previously agreed deadlines for the completion of the work by a reasonable amount. Where the Client’s failure to supply materials prevents progress on the work for more than 21 days, SIA SHEER has the right to invoice the Client for any part or parts of the work already completed.
4.3 Approval of Work: General
On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify SIA SHEER, in writing, of any unsatisfactory points within 7 days of receipt of such notification. Any of the work which has not been reported in writing to SIA SHEER as unsatisfactory within the 7 day review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected, and the contract will be deemed to have been completed and the remaining balance under Clause 2.1 Fee Payable will become due. The Contract will remain in effect until all obligations have been completed in terms of this Clause.
4.3.1 User Experience/User Interface Design Approval
During design, the Client must submit change requests using Figma’s commenting function. SIA SHEER may limit requests if they hinder completion within agreed work limits (as specified in 4.1.1). SIA SHEER will inform the Client of potential cost overruns due to repeated changes. Upon approval, design changes cease, and the Figma prototype will be accurately replicated as a visually similar, functioning website.
4.3.2 Built Website Approval
After completion, visual discrepancies must be documented in Pastel. Any reasonable inconsistency between the approved Figma design and the built website will be rectified within the agreed work limits (4.1.1). Requirements not documented in the approved Figma prototype will be considered out of scope and may incur additional costs. Undocumented requirements or assumptions not explicitly stated in the Proposal will not be accepted as unsatisfactory and may result in additional costs.
4.4 Rejected Work
If the Client rejects the work within the 7 (seven) day review period, or will not approve subsequent Work performed by SIA SHEER to remedy any points reported by the Client as unsatisfactory, and SIA SHEER considers that the Client is unreasonable in his repeated rejection of the work, the contract will be deemed to have expired and SIA SHEER can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
Upon completion of a 7 (seven) day review period, SIA SHEER will invoice the Client for the remaining amount (the balance of payment will not exceed 2,455.00 EUR unless work limits have been exceeded). SIA SHEER reserves the right to invoice any additional charges where work limits have been exceeded (see 4.1.1 above) or where other services have been requested. Fee Payable hereof, which, in the absence of agreement to the contrary, is to be paid by the Client within 5 days of the date that the invoice was issued.
4.6 Remedies for Overdue Payment
If payment has not been received by the due date, SIA SHEER has the right to suspend ongoing work for the Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 3 days after the due date, SIA SHEER has the right to replace, modify or remove the Website and revoke the Client’s licence of the work until full payment has been received. By revoking the Client’s licence of the work or removing the web site or design from the Internet, SIA SHEER does not remove the Client’s obligation to pay any outstanding monies owing.
5. INTELLECTUAL PROPERTY
5.1 Offers and Proposals
Offers and proposals made by SIA SHEER to potential clients should be treated as trade secrets and remain the property of SIA SHEER. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorisation from SIA SHEER. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
5.2 Warranty by Client as to Ownership of Intellectual Property Rights
The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks or any other material it supplies to SIA SHEER for inclusion on the Website. The conclusion of a contract between SIA SHEER and the Client shall be regarded as a guarantee by the Client to SIA SHEER that all such permissions and authorities have been obtained and that the inclusion of such material on the Website would not constitute a criminal offence or civil derelict. By agreeing to these terms and conditions, the Client removes the legal responsibility of SIA SHEER and indemnifies the same from any claims or legal actions however related to the content of the Client’s site.
5.3 Domain Name
Any Domain Name obtained will belong to the Client. The Client agrees to indemnify SIA SHEER, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.
5.4 Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which SIA SHEER or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from SIA SHEER. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which SIA SHEER or their suppliers owns the copyright. SIA SHEER acknowledges the intellectual property rights of the Client. Information not freely available in the public domain which is passed on from the Client in written form to SIA SHEER will not be published or made available to third parties without the prior written consent of the Client for a period of two (2) years from completion of the agreement.
Only when SIA SHEER has received full payment of all outstanding invoices and the work has been approved by the Client in accordance with Clause 4.3 hereof, the Client will be granted full ownership of all intellectual property rights including the new website design, photographs, the CMS and all website content, and any other work carried out on behalf of the client. Where the work comprises design effort only, SIA SHEER will supply the Client with all related design files. The Client acknowledges that SIA SHEER will only transfer copyright for designs and intellectual property rights for software generated and owned and controlled by SIA SHEER under this agreement. This excludes any copyright and intellectual property rights of third parties including but not limited to stock photography, icons, stock graphics, third party software and plugins.
6.RIGHTS AND RESPONSIBILITIES
6.1 Right to Terminate
SIA SHEER reserves the right to refuse or terminate a contract without prior notice, if it is believed that the Client, their Website, or any material is illegal, immoral or unethical as defined by the Institute of Business Ethics https://www.ibe.org.uk code of business ethics framework.
6.2 Events Beyond the Control of SIA SHEER
SIA SHEER will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of SIA SHEER.
6.3 Supply and Pricing of Services
SIA SHEER reserves the right to use whoever it feels appropriate at the time for third party software and services.
6.4 Solicitation of Employees
During the Term and for 12 (twelve) months after termination of this Agreement, neither party shall, without the written consent of the other, solicit, entice, employ or engage (either directly or indirectly) or attempt to solicit or entice or employ or engage (or authorise the taking of such action by any other person) any person who is employed by the other or has been employed by the other during the preceding 12 (twelve) months, and who has been involved with the Services under this Agreement, to terminate their employment with the other party.
6.5 Employee Expenses
If any employee, servant or agent of SIA SHEER is required by the nature of the assignment, or instructions from the Client to travel, all expenses incurred for such transportation, bills and accommodation will be billed at cost.
6.6 Electronic Communications (Soft Opt-in)
By agreeing to these terms and conditions the Client gives SIA SHEER consent to send e-mail communications to the Clients employees where their e-mail addresses have become apparent in the course of negotiations or concluding a sale. In this regard, any communications sent by SIA SHEER will only relate to similar products and services offered by SIA SHEER and its partners. In the event that the client does not offer said consent, the client is offered the right to refuse this by way of a simple e-mail notification to SIA SHEER.
7. LAWS AFFECTING WEBSITES AND ELECTRONIC COMMERCE
7.1 In performing its obligations under this Agreement, each party shall comply with the requirements of all legislation in force from time to time including, without limitation, the Data Protection Act 2018.
7.2 The Client agrees that The Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend The Agency and its subcontractors from any claim, suit, penalty, tax, or tariff arising from The Client’s use of Internet electronic commerce.
7.3 Data Processing Agreement
7.3.1 This Data Processing Agreement (the “Agreement”) is entered into between The Agency (the “Processor”) and The Client Name], and The Client (the “Controller”).
7.3.2 Purpose. This Agreement sets forth the terms and conditions under which the Processor will provide WordPress core and plugin updates, offsite back-ups, server monitoring, SSL monitoring, and malware detection services to the Controller.
7.3 Scope of Services. The Processor agrees to perform design and build of websites, e-commerce stores and web applications.
7.4 Data Processing. The Processor agrees to process personal data only as instructed by the Controller and in accordance with the terms of this Agreement. The Processor shall implement appropriate technical and organizational measures to ensure the confidentiality, integrity, and availability of the personal data processed on behalf of the Controller.
7.5 Sub-processors. The Processor may engage sub-processors to perform some or all of the services under this Agreement, provided that the Processor shall remain fully responsible for ensuring that the sub-processors comply with the terms of this Agreement.
8.ESSENTIAL PROVISIONS AND LIMITATIONS FOR PARTIES
8.1 Nature of Relationship between Parties:
No partnership or employer-employee relationship is created or implied between the parties under this Agreement.
The Agency reserves the right to subcontract any of its obligations under this Agreement.
8.3 Assignment and Transfer:
Neither party is permitted to assign or transfer its rights or obligations under this Agreement without prior written consent from the other party.
8.4 Third Party Rights:
No third party shall have the right to enforce any terms of this Agreement under the Contracts (Rights of Third Parties) Act 1999.
8.5 Limitation of Liability:
The Agency’s total liability arising from this Agreement, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, or otherwise, is limited to the total amount received by The Agency from The Client under this Agreement.
The Client shall indemnify and hold The Agency harmless against all claims, demands, losses, damages, costs, or expenses resulting from a breach by the Client of any provision of this Agreement, law or regulation, or any third-party legal action or threatened action relating to Intellectual Property Rights infringement, regardless of the cause.
8.7 Exclusions and Limitations of Liability:
Nothing in this Agreement shall exclude or limit the Service Provider’s liability for:
(a) death or personal injury resulting from its negligence; or
(b) liability arising from fraud, fraudulent misrepresentation, or fraudulent concealment, except for misrepresentation caused by malicious third-party fraud under the Computer Misuse Act 1990 or the Fraud Act 2006; or
(c) any other liability that cannot be excluded or limited under applicable law.
This Agreement shall be governed by the laws of England and Wales, which shall claim venue and jurisdiction for any legal action or claim arising from the contract between SIA SHEER and the Client. To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement, nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
9.2 Force Majeure
Both the Client and SIA SHEER will be released from their respective obligations in the event of an act of God, insurrection, riot, fire, explosion, flood, storm, national emergency, war, prohibitive governmental regulations, acts or threatened acts of terrorism or if any other cause beyond the reasonable control of the parties renders performance of any contract between them impossible. All monies due according to the work completed prior to the force majeure events shall be immediately payable by the Client.
Either party may terminate this Agreement at any time with written notice to the other party. Upon termination, the Processor shall delete or return all personal data in its possession or control, except as required by applicable law.
9.4 Survival of Contract
Where one or more terms of the contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.
9.5 Entire Agreement
This agreement constitutes the entire agreement between the parties in relation to its subject matter and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings or collateral contracts of any nature made by the parties, whether oral or written, in relation to such subject matter.
This Agreement may be amended only by written agreement between the parties.
9.7 Change of Terms and Conditions
The Client will be informed of changes to SIA SHEER Standard Terms and Conditions as and when they are issued and relevant. Changes subsequent to the agreed SIA SHEER Standard Terms and Conditions only apply to new agreements and are not within the bounds of this contract.
V1.0 28th April 2023