Terms and Conditions
- Application of conditions
- Commencement and duration
- Holly Small Design's obligations
- Customer's obligations
- Third Party Materials
- In-Put Materials
- Charges and payment
- Intellectual property rights
- Domain Names
- Confidentiality and Holly Small Design's property
- Limitation of liability - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION.
- Data protection
- Force majeure
- Entire agreement
- No partnership or agency
- Rights of third parties
- Governing law and jurisdiction
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Continuing Fees: any Fees shown in the Estimate expressed to be chargeable on a weekly, monthly, quarterly or annual basis.
Contract: the contract for the supply and purchase of the Services which comes into effect between Holly Small Design and the Customer under and in accordance with condition 2.2.
Customer: the person, firm or company who purchases Services from Holly Small Design.
Deliverables: all Documents, products and materials developed by Holly Small Design or its agents, subcontractors, consultants and employees in relation to the Services in any form, including, but not limited to, computer programs, data, designs reports and specifications (including drafts).
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Estimate: the estimate for Services provided by Holly Small Design to which these Conditions are attached.
Fees: the fees in respect of the Services as set out in the Estimate.
Holly Small Design: Holly Small Design Limited incorporated in England and Wales with company registration number 06704229 and whose registered office is Elsinore House, 43 Buckingham Street, Aylesbury, Buckinghamshire, HP20 2NQ.
Holly Small Design Materials: any materials (including the Site Software and Supplied Software) developed by Holly Small Design either before or during the term of this Contract and included in the Deliverables.
In-put Material: all Documents, information and materials provided by the Customer or made available by the Customer to Holly Small Design relating to the Services including but not limited to data, reports and specifications.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by Holly Small Design relating to the Services which existed prior to the commencement of the Contract.
Services: the services to be provided by Holly Small Design under the Contract as described in the Estimate together with any other services which Holly Small Design provides, or agrees to provide, to the Customer.
Set Up Fees: those fees detailed in the Estimate or otherwise agreed by the parties that are not Continuing Fees.
Site: any website that Holly Small Design produces under the Contract.
Site Software: any software for the Site that is produced pursuant to this agreement.
Supplied Software: any software (in object code only) and any databases developed by Holly Small Design either before or after or during the term of this agreement and included in the Deliverables.
Third Party Materials: any materials owned, supplied or licensed by a third party either before or during the term of the Contract that are used in undertaking the Services and/or included in the Deliverables as agreed by the parties.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Website: the source code of the website to be created by Holly Small Design under the Contract.
|1.2||Headings in these conditions shall not affect their interpretation.|
|1.3||A person includes a natural person as well as a body corporate or an unincorporated body (whether or not having separate legal personality).|
|1.4||The schedules form part of the Contract.|
|1.5||A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.|
|1.6||A reference to writing or written includes faxes but not e-mail.|
|1.7||Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.|
|1.8||References to conditions and schedules are to the conditions and schedules of the Contract.|
2. Application of conditions
|2.1||These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
|2.2||The Customer's purchase order, or the Customer's acceptance of an estimate for Services by Holly Small Design, constitutes an offer by the Customer to purchase the Services on these Conditions. No offer placed by the Customer shall be accepted by Holly Small Design other than:
(a) by a written acknowledgement issued and executed by or on behalf of Holly Small Design; or
(b) (if earlier) by Holly Small Design starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer's standard (or other) terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
|2.3||Quotations or estimates are given by Holly Small Design on the basis that no contract shall come into existence except in accordance with condition 2.2. Any quotation or estimate is valid for a period of 6 months from its date, provided that Holly Small Design has not in the meantime withdrawn it.|
3. Commencement and duration
|3.1||The Services supplied under the Contract shall be provided by Holly Small Design to the Customer from the date of acceptance by Holly Small Design of the Customer's offer in accordance with condition 2.2.|
|3.2||The Services supplied under the Contract shall continue to be supplied until either:
(a) the Contract is terminated under condition 15.1; or
(b) Holly Small Design reasonably considers that all of the Services have been provided to the Customer.
4. Holly Small Design's obligations
|4.1||Holly Small Design shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Estimate or other specification agreed by the parties.|
|4.2||Holly Small Design shall use reasonable endeavours to meet any performance dates or periods specified in the Estimate or otherwise agreed by the parties in writing but any such dates or periods shall be estimates only and time shall not be of the essence for performance of the Services.|
5. Customer's obligations
|5.1||The Customer acknowledges that Holly Small Design’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any In-Put Materials the Customer provides to Holly Small Design. Accordingly, the Customer shall:
(a) co-operate with Holly Small Design in all matters relating to the Services;
(b) provide to Holly Small Design, in a timely manner, such In-Put Materials, and other information as Holly Small Design may reasonably require and ensure that it is accurate in all material respects;
(c) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of Holly Small Design's Materials, the use of In-Put Materials in relation to Holly Small Design's Materials in all cases before the date on which the Services are to start; and
(d) ensure that the Deliverables are accurate in all material respects.
|5.2||The Customer warrants that:-
(a) it, or its licensors, is the owner of any Intellectual Property Rights in the In-Put Materials;
(b) Holly Small Design’s use of the In-Put Materials in accordance with the Contract will not infringe any third party Intellectual Property Rights;
(c) the In-Put Materials are accurate in all material respects and contain no errors.
|5.3||If Holly Small Design's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, contractors, sub-contractors, consultants or employees, Holly Small Design shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.|
|5.4||The Customer shall be liable to pay to Holly Small Design, on demand, all reasonable costs, charges or losses sustained or incurred by Holly Small Design (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Holly Small Design confirming such costs, charges and losses to the Customer in writing.|
6. Third Party Materials
|6.1||Holly Small Design is responsible for establishing that any Third Party Materials are suitable for use in undertaking the Services and/or within the Deliverables.|
|6.2||Holly Small Design is responsible for obtaining all licences to use the Third Party Materials, unless the Third Party Materials are provided by the Customer when the Customer shall be responsible for obtaining all licences to use the Third Party Materials.|
|6.3||The Customer shall comply with any terms and conditions relating to any Third Party Materials which are known, or made known by Holly Small Design, to the Customer and the Customer shall not (except to the extent necessary to make proper use of the Deliverables and/or to support and adapt the Deliverables):
(a) alter, adapt reverse engineer or decompile the Third Party Materials except as permitted by law;
(b) reproduce or deal in the Third Party Materials (in whole or in part) in any way;
(c) make copies of the Third Party Materials except to the extent reasonably necessary for back up purposes or for other purposes permitted by the Contract;
(d) make the Deliverables available to any third party without Holly Small Design’s prior written consent and on such terms (including payment of further charges) as Holly Small Design may determine; or
(e) remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notices, on or in the Deliverables and agrees to incorporate any such proprietary markings in any copies it takes of the Deliverables.
|6.4||The Customer acknowledges that the relevant owners, suppliers or licensors of Third Party Materials are the owners of all Intellectual Property Rights in the Third Party Materials and that nothing in the Contract shall result in the Customer owning any Intellectual Property Rights in the Third Party Materials.|
7. In-Put Materials
|7.1||Holly Small Design shall update the Site with In-Put materials provided from time to time by the Customer.|
|7.2||The Customer shall ensure that the In-Put Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).|
|7.3||Holly Small Design shall include only In-Put Materials on the Site. The Customer acknowledges that Holly Small Design has no control over any content placed on the Site by visitors to the Site and does not purport to monitor the content of the Site. Holly Small Design reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Holly Small Design shall notify the Customer promptly if it reasonably suspects, or becomes aware of any allegation, that any content on the Site may be Inappropriate Content.|
|7.4||Holly Small Design may include the statement “Web design by Holly Small Design” on the home page of the Site in a form to be agreed.|
8. Charges and payment
|8.1||In consideration of the provision of the Services by Holly Small Design, the Customer shall pay the charges as set out in the Estimate, which shall specify whether they shall be on a time basis, a fixed price basis or a combination of both. Condition 8.2 shall apply only if Holly Small Design provides Services on a time basis. Conditions 8.3 and 8.4 shall apply only if Holly Small Design provides Services for a fixed price. The remainder of this condition 8 shall apply in either case.|
|8.2||Where Services are provided on a time basis:
(a) the charges payable for the Services shall be calculated in accordance with Holly Small Design's standard hourly/quarter-hourly fee rates, as set out in the Estimate and as amended from time to time in accordance with condition 8.9;
(b) all charges quoted to the Customer shall be exclusive of VAT, which Holly Small Design shall add to its invoices at the appropriate rate; and
(c) Holly Small Design shall invoice the Customer on completion (to be decided in the absolute discretion of Holly Small Design) of the Services for its charges for time and expenses (together with VAT where appropriate), calculated as provided for in this condition 8.2.
|8.3||Where Services are provided on a Fixed Price Basis, the total price for the Services shall be the amount set out in the Estimate, being the Set Up Fees (payable in accordance with condition 8.4) and the Continuing Fees (payable in accordance with condition 8.5).|
|8.4||Subject always to the provisions of condition 8.7, the Set Up Fees shall be paid to Holly Small Design (without deduction or set-off) as set out in the Estimate. On completion by Holly Small Design of the Services in respect of which Set Up fees are payable, Holly Small Design shall invoice the Customer for the Set Up Fees that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in condition 8.6.|
|8.5||The Continuing Fees shall be paid to Holly Small Design (without deduction or set-off) as set out in the Estimate. Holly Small Design shall invoice the Customer for the Continuing Fees periodically in advance.|
|8.6||Holly Small Design reserves the right not to perform any of the Services (or, as the case may be, any further Services) until the Customer has paid any initial deposit shown in the Estimate. Where Continuing Fees are payable, Holly Small Design reserves the right not to perform any of the Services (or, as the case may be, any further Services) until the fees for the following period have been paid.|
|8.7||Holly Small Design also reserves the right to demand other payments to be made on account by the Customer as work progresses. Any failure to pay such payments on account may cause delays to performance of the Services or lead to the termination of the Contract.|
|8.8||Any fee rate or fixed price contained in the Estimate excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Holly Small Design engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by Holly Small Design for the supply of the Services. Such expenses, materials and third party services shall be invoiced by Holly Small Design at cost; and
(b) VAT, which Holly Small Design shall add to its invoices at the appropriate rate.
|8.9||The parties agree that Holly Small Design may review and increase its standard hourly fee rates and the Continuing Fees, provided that such charges cannot be increased more than once in any 12 month period. Holly Small Design will give the Customer written notice of any such increase not less than 5 working days before the proposed date of the increase. If such increase is not acceptable to the Customer, it may, within 10 working days of such notice being received or deemed to have been received in accordance with condition 24, terminate the Contract by giving three months’ written notice to Holly Small Design.|
|8.10||The Customer shall pay each invoice or payment on account demand submitted to it by Holly Small Design, in full and in cleared funds, within 7 days of receipt to a bank account nominated in writing by Holly Small Design.|
|8.11||Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Holly Small Design any sum which is payable to Holly Small Design on or before the due date for payment, Holly Small Design may:
(a) charge interest on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. Alternatively, Holly Small Design may at its option charge interest and/or compensation under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended); and/or
(b) suspend all Services until payment has been made in full.
|8.12||Time for payment of any amount due to Holly Small Design under the Contract shall be of the essence of the Contract.|
|8.13||All sums payable to Holly Small Design under the Contract shall become due immediately on its termination, despite any other provision. This condition 8.13 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.|
|8.14||Holly Small Design may, without prejudice to any other rights it may have, set off any liability of the Customer to Holly Small Design against any liability of Holly Small Design to the Customer.|
|8.15||If there is an overpayment made to Holly Small Design by the customer, Holly Small Design reserves the right to delay a refund by 28 working days and request written evidence from the customer's bank that the payment is cleared funds.|
9. Intellectual property rights
|9.1||As between the Customer and Holly Small Design, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by Holly Small Design. Subject to condition 9.2, Holly Small Design licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract terminates, this licence shall automatically terminate.|
|9.2||The Customer acknowledges that, where Holly Small Design does not own any Pre-existing Materials, the Customer's use of rights in Pre-existing Materials is conditional on Holly Small Design obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Holly Small Design to license such rights to the Customer.|
|9.3||The Customer grants to Holly Small Design a non-exclusive non-transferable, worldwide licence for the term of the Contract to use the In-Put Materials in accordance with the Customer’s instructions solely for the performance of its obligations under the Contract.|
10. Domain Names
|10.1||If Holly Small Design acquires any domain names on behalf of the Customer, Holly Small Design agrees that:
(a) the domain names shall be the property of the Customer and Holly Small Design shall use the domain names solely in accordance with the Contract;
(b) it shall properly register the domain names and shall procure that all administration, invoicing and any other communications relating to the domain names are sent directly to the Customer, unless otherwise agreed with the Customer, and
(c) it shall provide the Customer with all reasonable assistance as may be required in the transferring the administration of the domain names to the Customer.
|10.2||Holly Small Design does not guarantee the availability of any domain name (or underlying IP address).|
11. Confidentiality and Holly Small Design's property
|11.1||The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Holly Small Design, its employees, agents, consultants or subcontractors and any other confidential information concerning Holly Small Design's business or its products which the Customer may obtain.|
|11.2||The Customer may disclose such confidential information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer's obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
|11.3||The Customer shall ensure that its employees, officers, representatives, advisers, agents, contractors or subcontractors to whom it discloses such information comply with this condition 11.|
|11.4||The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.|
|11.5||All materials, equipment and tools, drawings, specifications and data supplied by Holly Small Design to the Customer (including Pre-existing Materials and Holly Small Design's equipment) shall, at all times, be and remain the exclusive property of Holly Small Design, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Holly Small Design, and shall not be disposed of or used other than in accordance with Holly Small Design's written instructions or authorisation.|
12. Limitation of liability - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION.
|12.1||This condition 12 sets out the entire financial liability of Holly Small Design (including any liability for the acts or omissions of its employees, agents, consultants, contractors and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
|12.2||All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.|
|12.3||Nothing in these Conditions limits or excludes the liability of Holly Small Design:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Holly Small Design; or
(c) for any liability incurred by the Customer as a result of any breach by Holly Small Design of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
|12.4||Subject to condition 12.2 and condition 12.3:
(a) Holly Small Design shall not be liable for:
(i) loss of profits or anticipated profits; or
(ii) loss of business or business opportunity; or
(iii) depletion or loss of goodwill and/or similar losses; or
(iv) loss of contract; or
(v) loss of use; or
(vi) any damage to software; or
(vii) damage to loss of corruption of data or information; or
(viii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
Holly Small Design's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
|12.5||Holly Small Design shall not be responsible for the accuracy of the In-Put Materials. It is the responsibility of the Customer to check the In-Put Materials.|
13. Data protection
|The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Holly Small Design in connection with the Services.|
|14.1||The Customer shall indemnify and hold harmless Holly Small Design from all damages costs and expenses finally awarded after appeals, if any, against Holly Small Design arising directly or indirectly as a result of or in connection with any claim that the In-Put Materials, or any of them, infringe any Intellectual Property Rights of any third party or are libellous, defamatory or obscene or otherwise give rise to liability to a third party.|
|14.2||Holly Small Design shall indemnify and hold harmless the Customer from all damages costs and expenses finally awarded after appeals, if any, against the Customer arising directly or indirectly as a result of or in connection with any claim that Holly Small Design’s Materials, or any of them, infringe any Intellectual Property Rights of any third party or are libellous, defamatory or obscene or otherwise give rise to liability to a third party.|
|15.1||Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice in writing to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default for not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or:
(i) being a company, is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(ii) being a natural person, is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
(iii) being a partnership has any partner to whom any of the foregoing apply; or
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(j) a creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 15.1(d) to condition 15.1(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(m) there is a change of control (as defined in section 574 of the Capital Allowances Act 2001).of the other party.
|15.2||On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Holly Small Design all of Holly Small Design's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Holly Small Design may submit an invoice after termination for work done before termination, which shall be payable immediately on receipt;
(b) the Customer shall within a reasonable time return all of Holly Small Design's Materials, equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then Holly Small Design may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provisions expressly stated to survive or implicitly surviving termination, shall not be affected.
|15.3||On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
(a) condition 9;
(b) condition 11;
(c) condition 12;
(d) conditions 14.1 and 14.2; and
(e) condition 25.
16. Force majeure
|Holly Small Design shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Holly Small Design or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Holly Small Design’s contractors or subcontractors.|
|17.1||Holly Small Design may, from time to time and without notice, change the Services in order to comply with any applicable statutory or regulatory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If Holly Small Design requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.|
|17.2||Notwithstanding condition 17.1, Holly Small Design may at any time during the Contract at its discretion transfer any hosting provision or email provision being provided to the Customer as part of the Services from one third party server provider to a different server provider of Holly Small Design’s choice.|
|17.3||Subject to conditions 17.1 and 17.2, no variation of the Contract or these Conditions (or of any of the documents referred to in them) shall be valid unless it has been agreed in writing by both parties.|
|18.1||A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.|
|18.2||Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.|
|19.1||If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.|
|19.2||If a provision of the Contract (or part of any provision) is found to be illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.|
20. Entire agreement
|20.1||The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.|
|20.2||Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).|
|20.3||Nothing in this condition shall limit or exclude any liability for fraud.|
|21.1||The Customer shall not, without the prior written consent of Holly Small Design, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.|
|21.2||Holly Small Design may at any time assign, transfer, charge, mortgage, 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.|
|21.3||Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.|
22. No partnership or agency
|Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, 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.|
23. Rights of third parties
|A person who is not a party to the Contract shall not have any rights under or in connection with it.|
|24.1||Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party.|
|24.2||The address for service for Holly Small Design shall be 4 Hillside Close, Abbots Langley, Watford, Hertfordshire, WD5 0LE or such other address as Holly Small Design shall notify the Customer.|
|24.3||The Customer shall notify Holly Small Design of their preferred address for service as soon as practicable after the establishment of the Contract under condition 2.2. If no such notification is received by Holly Small Design the Customer’s address for service shall be the registered office of the Customer or, if the Customer is not a company, the address to which the Estimate was sent.|
|24.4||Any notice shall be deemed to have been duly received if delivered personally, when left at the address in conditions 24.2 or 24.3 (as applicable), if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.|
|24.5||This condition 24 shall not apply to the service of any proceedings or other documents in any legal action.|
25. Governing law and jurisdiction
|25.1||The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of England and Wales.|
|25.2||The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.|