All services, as itemised in the quotation given to the customer, and forming the full extent of any order placed by the customer, form the basis of the contract between Scaffold Digital Ltd (herein referred to as Scaffold) and the customer. Placing an order implies acceptance of these terms and conditions of business herein stated in full, and these conditions are paramount to any proposed by the customer and shall be deemed to be part of the contract entered into by the customer and Scaffold.
It is not necessary for any customer to have signed an acceptance of these terms and conditions for them to apply.
Quotations, as referred to herein above, are for prompt acceptance and undeferred execution and in any case, are never valid for more than 30 days from the date of issue.
3.1. Subject to payment of the charges and the customer’s fulfilment of their obligations, Scaffold shall provide the goods and services identified in the quotation provided to the customer.
3.2. Nothing in this agreement will prevent Scaffold from supplying goods or services to any third party while carrying out works for the customer.
3.3. The customer acknowledges that Scaffold’s ability to provide the goods and services referred to in the quotation, is dependent upon the full and timely co-operation of the customer.
3.4. Scaffold shall use all reasonable endeavours to meet any deadlines or performance dates, but any such dates shall be estimates only and unless otherwise agreed in writing.
3.5. All services shall be carried out and goods supplied to the specification required
3.5.1. Once the services have been completed and/or the goods supplied, and the requirements within the order have been fulfilled, the customer must check compliance with the specification within 30 days of completion and release of the finalised goods and services by Scaffold.
3.5.2. If no issues are raised by the customer within these 7 days, it will be deemed that all completed goods and services provided are acceptable to the customer. Furthermore, it shall also be deemed as being acceptable if the customer uses the finalised product(s) for their normal business procedures.
3.5.3. It is up to the customer to notify Scaffold of any issues within this 30 day period, to allow Scaffold to carry out any necessary remedial works. The customer shall allow Scaffold a reasonable period in which to perform such remedial works.
3.6. In the case of the services including Web Hosting, the customer’s website shall be maintained and hosted at a reputable third party ISP and hosting facility. The customer acknowledges that, use of or connection to the internet provides the opportunity for unauthorised third parties to circumvent any such precautions taken by Scaffold and illegally gain access to the customer’s content, data, equipment, software or otherwise. Accordingly, Scaffold cannot and does not guarantee, and will not be liable in any way to the customer or any other party for the privacy, security or authenticity of any information transmitted over the internet. Furthermore, Scaffold makes no guarantee or warranty in respect of availability of the website, software or otherwise and in the event of non-availability of same, the customer shall immediately contact Scaffold.
3.6.1. The Client acknowledges that Scaffold’s provision of the website, software or otherwise is contingent upon compliance with the hosting facility network provider’s acceptable use policy (the Policy). In order to enable Scaffold’s continued provision of this service, the customer agrees and acknowledges that they will comply with any obligation imposed on Scaffold by the Policy, as if the customer were in place of Scaffold for the purposes of the Policy
3.7 Scaffold may suspend the provision of the services without telling the customer and without liability (provided that Scaffold shall, where practicable, give the customer reasonable prior notice) if the website, software or otherwise is being used in violation of the Policy or any other event for which Scaffold reasonably believes that the suspension of the services is necessary to protect the customer or the network, including if they are required by law or regulation to do so. The customer shall indemnify and keep indemnified Scaffold against any and all loss, liability, cost or expense (including reasonable legal expenses) howsoever incurred by Scaffold and whether directly or indirectly arising out of any breach of the Policy or a breach of a third party’s rights by the Client or its content, data or equipment.
4. CUSTOMER OBLIGATIONS
4.1. The customer hereby acknowledges that Scaffold’s ability to fulfil its obligations may be dependent upon the customer’s timely co-operation. Should Scaffold make any request to the customer, for whatever reason, the customer must respond in a timely manner.
4.2. The customer shall be solely responsible for maintaining any external procedures regarding anti-virus provision, data protection or otherwise
4.3. If Scaffold’s performance of any services is prevented or delayed by any act or omission of the customer, then Scaffold shall have the right to suspend performance of the services until any such act is remedied by the customer. In such an event, Scaffold shall not be liable for any costs or losses sustained or incurred by the customer as a direct or indirect result of Scaffold’s failure or delay to perform services
4.3.1. The customer shall however reimburse Scaffold, on any written demand to do so, for any costs or losses sustained or incurred by Scaffold arising either directly or indirectly from the customer’s default .
5. CHARGES & PAYMENT TERMS
5.1. Any goods or services provided shall be payable in accordance the provisions of the quotation given to the customer and the order subsequently made by the customer.
5.2. The Customer shall pay each invoice properly due, issued and submitted to them by Scaffold, within 30 days from the date on which said invoice was issued. Any alternative terms for payment shall be itemised in the quotation herein provided and accepted.
5.3. Should any additional works be required, in the provision of the goods or services within the order, Scaffold reserves the right to charge additional fees in relation to same and will notify the customer in writing of any such further and necessary charging no less than 5 working days in advance. If the customer does not accept these additional charges, it must notify Scaffold in writing, within 5 further working days of notice being given to them.
5.4. If any invoice remains overdue, following the expiration of the 30 day time limit, Scaffold reserves the right to suspend all website, email and hosting accounts until payment is made in full to them by the customer.
5.5. If any sum payable is in arrears for more than seven (7) days from the due date of payment, then Scaffold shall be entitled to charge interest on a day-to-day basis on any such arrears as from the invoice date at the rate permitted from time to time under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.
5.6. Scaffold cannot predict changes and modifications to how third party organisations (e.g. Google, Facebook, YouTube etc.) operate or provide data. Therefore, any re-configuration of your website or otherwise to accommodate such changes are chargeable at additional cost.
6. INTELLECTUAL PROPERTY AND CONTENT
6.1. Scaffold reserves all rights in relation to general design works, logos, or base software, which may be deployed by them as part of the provision of the customer’s services.
6.1.1. Subject to the customer paying all sums due to Scaffold under any issues invoices and under these terms and conditions, Scaffold shall grant unto the customer, a non-exclusive, non-assignable and non-transferrable licence the use any base software provided, in connection with the customer’s systems.
6.1.2. The customer shall not attempt to duplicate, modify or distribute any portion of any base software provided.
6.1.3. All bespoke designs, logos or software provided, shall, to the fullest extent permitted by law, belong to, vest in and be the absolute sole and unencumbered property of the customer, once all sums due and owning by the customer have been paid in full to Scaffold.
7. LIMITATION OF LIABILITY
7.1. Scaffold shall not be liable to the customer for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the supply of any goods or services, as part of the customer’s order and under these terms and conditions and whether arising from the use, application or support of such goods and services, or otherwise, except to the extent to which it is unlawful to exclude such liability.
7.2. Notwithstanding the generality of clause 7.1 above, Scaffold expressly excludes liability in contract, tort or in relation to breach of statutory duty or otherwise for any special, incidental, indirect or consequential loss, damage, corruption or destruction of data or of other software or otherwise, whether belonging to the customer or any other third party; or for loss of profit, business, revenue, goodwill, anticipated savings or any other form of economic loss. Furthermore, liability is expressly excluded for any loss of use or downtime or for any loss arising from the use of any software for any purpose other than the purpose envisaged under the terms of the order made by the customer and these Terms & Conditions.
7.3. Subject to clause 7.2 above, the aggregate liability (whether in contract, tort (including negligence), breach of statutory duty or any other legal theory) of Scaffold in respect of any loss or damage suffered by the customer in relation to the services provided, shall not exceed an amount equal to 100% of the total charges paid by the customer for provision of any goods and services agreed under the terms of the customer’s order, from the date of the order being received, to the point in time that such liability is incurred and the customer shall act at all times to mitigate any such loss or damage.
7.4. Scaffold does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of Scaffold, its employees, agents or authorised representatives.
7.5. The customer agrees to indemnify and save harmless and defend at its own expense Scaffold from and against any and all claims of infringement of copyright, patents, trademarks, industrial designs, or other intellectual property rights arising from any content or specifications provided by the customer in respect of the supply of the goods and services under the terms of the order and these Terms & Conditions
7.6. In relation to any third party host facility provider or party licensing software, it is accepted that Scaffold excludes all liability to the maximum extent permitted by applicable law for any loss whatsoever incurred by the customer as a result of any act or omission of any Third Party, or of the failure, suspension and/or termination of any facility, software or service provided by any Third Party, or the breach by any Third Party of any relevant Third Party licence (each such act, omission, failure, suspension or termination a Third Party Breach); and any Third Party Breach shall not constitute a breach by Scaffold of the provisions of the order or of these Terms & Conditions.
7.7. The customer agrees that it has accepted the terms and conditions herein with the knowledge that Scaffold’s liability is limited.
7.8. Each provision of this clause 7 shall be construed separately and shall continue and survive even if for any reason one or other of those provisions is held invalid or unenforceable in any circumstances.
8.1. Both Scaffold and the customer warrant to each other that they have full power and authority to enter into and perform the requirements under these Terms & Conditions
8.2. Scaffold warrants to the customer that it shall perform the services with reasonable skill and care and further warrants that any Software provided in the provision of the services will perform substantially in accordance with the relevant Specification at the date of delivery. Notwithstanding this, Scaffold shall not be liable if a failure to meet their warranty it is caused by: –
8.2.1. computer equipment or computer software, other than the Software delivered by Scaffold; or
8.2.2. modifications or customisation made by or on behalf of the customer to the Software, without the authorisation of Scaffold; or
8.2.3. Misuse use of the Software; or,
8.2.4. Force Majeure,
8.3. In the event that the customer’s use of the Software is held by a court of competent jurisdiction to infringe intellectual property rights of any third party, Scaffold shall have the option, acting at all times reasonably and in good faith, as soon as reasonably practicable to modify or amend the Software or the infringing part(s) thereof in order to avoid any further infringement, to procure for the customer the right to continue using the Software or infringing part(s) thereof, to substitute the Software or infringing part(s) thereof with other software or documentation suitable for the provision of the Software in accordance with the requirements of the customer. This shall be Scaffold’s sole liability, and the customer’s sole remedy, for infringement of intellectual property rights of any third party.
9.1. Both during the period of retainer between Scaffold and the customer and after its termination, the parties shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper provision of the services required to fulfil the order, use or disclose to any person, firm or company, any Confidential Information belonging to the other party or its Customers, suppliers or customers, nor permit its use or disclosure.
9.2. The provisions of clause 9.1 shall not apply where Confidential Information is divulged to:
9.2.1. either party’s own employees and then only to those employees who need to know the same;
9.2.2. either party’s auditors, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.
9.3. Both parties undertake to ensure that persons and bodies referred to in clause are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.
9.4. Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
9.5. The provisions of this clause shall survive the termination of the retaining contract but the restrictions contained in clause 9.1 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.
9.6. Nothing in this clause 9 shall prevent Scaffold from exploiting any inventions or software that it develops during the term of this retaining contract.
10.1. The Agreement, the basis of which being these Terms & Conditions and theOrder made by the customer, shall continue until completion of the works and services to be provided under the terms of the Order, unless either party gives to the other not less than 90 days’ prior written notice of termination or unless the Agreement is terminated in accordance with any of the provisions of this clause 10 or any other clause of this Agreement.
10.2. Either party shall be entitled to terminate this Agreement forthwith at any time by written notice to the other party if: –
10.2.1. the other party commits a breach of any of the terms of this Agreement (and if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing to do so; or
10.2.2. the other party becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the other party’s property or assets; the other party enters into an arrangement or composition with its creditors, ceases or threatens to cease to carry on business, becomes insolvent, or ceases to be able to pay its debts as they fall due.
10.3. Forthwith upon the termination of this Agreement, Scaffold shall return to the customer any materials and documentation and any Confidential Information belonging to the customer and all copies of the whole or any part thereof or, if requested by the customer, shall destroy the same and certify in writing to the customer that it has been destroyed.
10.4. Any termination of the licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
10.5. In the event of termination of this Agreement the customer shall pay to Scaffold any outstanding monies owing or invoices raised and presented, in relation to works and services provided and supplied to the point of termination and shall also pay for any works or services not invoiced at the point of termination but are capable of being so. Scaffold shall, in such circumstance, submit a further invoice to the customer. Any such monies are payable immediately.
11. ASSIGNMENT & SUBCONTRACTING
11.1. The customer shall not, without the prior written consent of Scaffold, assign or pass any of its rights or obligations under the order made or these Terms & Conditions, to any other person, organisation or company. Any assignment in violation of this provision shall be void and shall be considered a material breach of the Terms & Conditions herein appearing.
11.2. Scaffold may sub-contract the performance of services imposed by the customer, in satisfying the terms of the customer’s order.
During the term of the working relationship between the customer and Scaffold and for one year following the termination of said working relationship, the customer shall not, under any circumstances, except with the prior written consent of Scaffold, directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of Scaffold, any employee or agent of the Scaffold who is employed or engaged in the provision of any of the goods and services identified in the quotation provided to the customer.
13.1. The contents of the order placed by the customer and these Terms & Conditions supersede all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of the order and these Terms & Conditions. However, the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this relationship on the basis of any representation that is not expressly incorporated in the quotation, customer order, or these Terms & Conditions.
13.2. Nothing in these Terms & Conditions shall be construed as creating a partnership, joint venture or contract of employment of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever.
13.3. This Agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
13.4. In the event that a court or any other competent authority finds that any provision within these Terms & Conditions (or part of any provision) is invalid, illegal or unenforceable, either that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of these Terms & Conditions shall not be affected; or if any invalid, unenforceable or illegal provision of these Terms & Conditions would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.5. Any dispute or claim arising out of or in connection with these Terms & Conditions or their subject matter or formation shall be governed by, and construed in accordance with, Northern Irish law and shall be enforced in the Courts of Northern Ireland.