1.1. Definitions – In these Conditions, the following definitions apply:

Charges: all charges payable by you for the Services.

Conditions: these terms and conditions as amended from time to time.

Contract: the contract between us for the supply of Services in accordance with these Conditions.

Intellectual Property Rights: all patents, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, whether registered or unregistered and including applications, renewals or extensions of such rights, and all similar or equivalent rights in any part of the world.

Order: Your order for Services.

Our Materials: all materials, equipment, documents and other property belonging to or supplied by us.

Scope of Work: the description or quote for the Services provided in writing by us.

Services: the services to be supplied by us as set out in the Scope of Work.

We/Us: Hogtronix Limited whose registered office is 10 Lonsdale Gardens Tunbridge Wells Kent TN1 1NU (Company no. 04958077).

You: the person purchasing the Services.

1.2. A person includes a natural person, corporate or unincorporated body and a reference to a party includes its successors or permitted assigns.

1.3. In the event and to the extent only of any conflict between the clauses and the schedules, the clauses shall prevail.

1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.5. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6. References to including and include(s) mean respectively including without limitation and include(s) without limitation. A reference to writing or written includes e-mails.

1.7. References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.

2.1. The Order constitutes an offer by you to purchase the Services in accordance with the Scope of Work and these Conditions.

2.2. The Order shall only be deemed to be accepted when we issue written acceptance of the Order at which point and on which date the Contract shall come into existence (Contract Date).

2.3. If your Order is either cancelled or varied by you after the Contract Date you will be responsible to pay any reasonable costs losses or expenses we incur.

2.4. The Contract constitutes the entire agreement between us. 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 in the Contract.

2.5. Our designs, wireframes, mock ups, descriptions, illustrations and drafts are issued for the sole purpose of giving an approximate idea of the Services described in them. They do not form part of the Contract.

2.6. These Conditions apply to the Contract to the exclusion of any other terms or terms which could be implied by trade, custom, practice or course of dealing.

3.1. We shall provide the Services to you using reasonable care and skill in accordance with the Scope of Work in all material respects.

3.2. We shall use our reasonable endeavours to meet any performance dates specified in the Scope of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3. We shall have the right to make any changes to the Services which are necessary to comply with legislation or which do not materially affect the nature or quality of the Services, and we shall notify you in any such event.

4.1. If we introduce you direct to a third party supplier to provide any part of the Services, we will provide full details of that third party with whom you will contract direct (Supplier). In these circumstances you are solely responsible for ensuring that you understand and accept the Supplier’s terms and conditions and charges.

4.2. Whilst we use our reasonable endeavours to contact suitable Suppliers, you choose and contract with them and we shall have no liability for any service they provide.

5.1. You shall:

a) provide us with such information and materials we may reasonably require in order to supply the Services;

b) ensure that the terms of the Order and any information you provide are complete and accurate and do not breach any licence, permission or consent which may be required;

c) co-operate with us in all matters relating to the Services;

d) keep and maintain any of Our Materials at your premises in safe custody and in good condition, at your own risk, and not dispose of or use them other than as agreed with us;

e) ensure that none of your content or material, files, e-mails and postings is defamatory, illegal, obscene, infringes any third party’s intellectual property rights or otherwise would bring our name into disrepute;

f) use the Services in accordance with all applicable data protection and other laws, licences, international conventions, codes or regulations applicable to the Internet;

g) not create or introduce intentionally or knowingly into the Services any virus, worm, trojan horse, or other destructive or contaminating program or advise any other party how to do so;

h) use an up to date virus-scanning program on all material downloaded from the Services or uploaded to it;

i) not interfere with or breach the privacy of other users of the Services;

j) not carry out or engage in activities in your use of the Services which are illegal or may incite violence or racial hatred; may facilitate prostitution or paedophilia; or be pornographic, indecent, offensive or menacing;

k) ensure that any records provided to us are accurate and complete and compiled in accordance with data protection legislation and can be used by us to provide the Services;

l) ensure that you have full permission to grant us any access for the purposes of a social media campaign and that at all times you fully comply with the terms and conditions of the online sites, services and applications to which you provide or authorise our access and indemnify us for any breach;

m) ensure that you have a properly maintained compatible computer system and a proper, effective and appropriate connection with the internet in order to use the Service;

n) ensure that you have a maintenance contract or similar support or expertise to permit and establish full integration of our Services with your existing systems and software and set up and maintain email accounts and mailboxes. Such integration is your responsibility and must be established and maintained at your cost;

o) provide us full access to technical infrastructure required to integrate, support or allow the function of the Services;

p) you shall appoint an individual who shall be our sole point of contact, who shall liaise with us professionally and promptly and have your authority to deal with all matters under this Contract.

5.2. If we are prevented or delayed in fulfilling the Contract by your act or omission or your continued absence or refusal to provide proper instructions or your failure to perform any relevant obligation (Default):

a) we shall without limiting any other rights or remedies have the right to suspend performance of the Services, and rely on the Default to relieve us from the performance of any of our obligations until you remedy the Default; and

b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or Indirectly from any such failure or delay to perform our obligations; and

c) we shall invoice you for any additional expenses reasonably incurred by us as a result of such Default: and

d) you shall fully and effectually indemnify us against any losses costs expenses claims demands and liability sustained or incurred by us arising directly or indirectly from any Default.

6.1. You agree to pay the Charges in consideration of the Services.

6.2. We shall invoice you for the Charges as detailed in the Scope of Work, and you shall pay the Charges set out in such invoice as stipulated. For the avoidance of doubt, access to the Service, a Site going live, Site ownership or any rights granted to you under the Service will take place until we receive full payment in cleared funds.

6.3. If you instruct us to provide artwork or other material to a printer, we shall invoice you direct for our Charges which must be paid in full immediately notwithstanding that you may not have received the finished material or on receipt it is not acceptable to you.

6.4. You shall pay the Charges when due in full in cleared funds without set-off or counterclaim in cleared funds to our nominated bank account, time for payment being of the essence.

6.5. All Charges are exclusive of value added tax which is payable on receipt of a valid VAT invoice from us.

6.6. Without limiting any other right or remedy, if you fail to make any payment due to us under the Contract by the due date for payment (Due Date), we shall have the right to charge interest on the overdue amount at the rate of 5% per annum above the then current Barclays Bank plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

6.7. All Charges are exclusive of VAT.

7.1. All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by us. Our Materials are our exclusive property.

7.2. You acknowledge that, in respect of any third party Intellectual Property Rights, your use of any such Intellectual Property Rights is conditional on us obtaining a written licence from the relevant licensor on such terms as will entitle us to license such rights to you.

8.1. Each party acknowledges that the Services may contain confidential information of the other and of third parties and they undertake (and on behalf its subsidiaries and employees) to treat as confidential and keep secret all information contained in or otherwise received from either party in connection with the Services (Confidential Information) and shall not use the same unless it relates to their use of the Service in accordance with this Contract.

8.2. No Confidential Information shall be communicated or disclosed without the other parties’ prior written consent except to those employees on a need to know basis who use the Services or to professional advisers with a legal right or duty to have access to such Confidential Information or as required by any applicable law or by the order of a court of competent jurisdiction or by a recognised stock exchange, government, department or agency or other bona fide regulatory body entitled at law to require the disclosure of such information.

8.3. Each party undertakes that prior to an authorised disclosure of Confidential Information all recipients are made aware of the confidential nature of the information and their duty of confidence to the other party.

9.1. Nothing in these Conditions shall limit or exclude our liability for:

a) death or personal injury caused by its negligence; or

b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

c) fraud; or

d) any other liability which cannot be excluded or limited under applicable law.

9.2. Whilst we make every effort to supply the Services strictly in accordance with the Contract and using reasonable care and skill we shall only be liable for losses that are foreseeable and we shall be have no liability in respect of:

a) any defect arising from wilful damage, your negligence, failure to follow our instructions (oral or in writing), misuse or alteration or use of the Service without our approval;

b) any damage to software, damage to or loss of data,; and

c) any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity or any indirect or consequential loss arising under or in connection with the Contract whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for; and

d) any damages resulting from loss of profits, business data, goodwill, contracts, revenues or anticipated savings or benefits arising out of or resulting from the Services.

9.3. Our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total amount due under the Contract.

9.4. We shall not be liable to you or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Service, if the delay or failure was due to Act of God, your act, default or omission or any cause beyond our reasonable control including your failure to properly and effectively back up your systems.

9.5. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

9.6. Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

9.7. This agreement sets out the full extent of the Supplier’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

10.1. This Contract will terminate in accordance with the provisions set out in the Scope of Work and relate to the type of Service being provided.

10.2. Without limiting other rights or remedies, if you fail to pay any amount due under this Contract on the Due Date we may cancel or suspend the Services or terminate the Contract with immediate effect by giving you written notice.

10.3. Either party may terminate this Contract by notice with immediate effect if the other materially breaches this Agreement and (if the breach is remediable) fails to remedy it within 28 days of receiving written notice requiring rectification of the breach from the injured party, or if the other ceases or disposes of its business, or threatens to do so, or if the other being a partnership, an application is made for its dissolution or it is dissolved, or if the other being a company, partnership or individual begins is party to consents to or is otherwise subject to proceedings under the law relating to bankruptcy distress receivership insolvency or the relief of creditors or enters into arrangements benefiting its Creditors.

10.4. You shall, when under monthly marketing or support retainer, agree to an initial minimum continual period of contract of at least 3 calendar months, with a rolling 30 day notice period, in writing, thereafter.

11.1. On termination of the Contract for any reason:

a) you shall forfeit any deposit paid for the Services;

b) you shall immediately pay us for any work carried out to the date of termination;

c) you shall immediately pay us all outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;

d) you shall return all of Our Materials;

e) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

f) clauses 8 and 9 and all other clauses which expressly or by implication have effect after termination shall continue in full force and effect.

12.1. Assignment and subcontracting: We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

12.2. You shall not, without our prior written consent assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract.

12.3. Notices: Any notice required or permitted to be given by either party to the other under this Contract shall be in writing addressed to that other party at the address on the Scope of Work.

12.4. Waiver: No waiver by us or any breach of the Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.

12.5. Severance: If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provision in question shall not be affected.

12.6. No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between us, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

12.7. Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

12.8. Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by us.

12.9. Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.