TERMS OF SERVICE

Web Development Services

The following terms and conditions apply to all services, including website develop- ment and design services, (the Services) provided by The Pixelfly (A unit of TUNEUP) to the Client, in conjunction with any relevant quotation provided to the Client by TUNE UP (Terms), unless otherwise agreed in writing.

Acceptance of a quote, purchase and/or use of the Services shall be considered acceptance of the Terms.

Charges:
  • Charges for the Services are defined in the project quotation that the Client receives from TUNE UP via email. Quotations are valid for a period of 30 days. TUNE UP reserves the right to alter a quotation or decline to provide the relevant Services after expiry of the 30 days.
  • Unless agreed otherwise with the Client, all website design services require an advance payment of a minimum of fifty (50) percent of the project quotation total before the work commences.
  • A second payment of fourty (40) percent is required after the client review and design sign off stage, with the remaining percentage of the project quotation total due upon completion of the work, prior to upload to the server or release of materials.
  • The Client agrees to reimburse TUNE UP for any additional expenses necessary for the completion of the work.
  • Expenses may include (but are not limited to) purchase of graphic designing, special fonts and stock photography.

All Charges are exclusive of taxes.

Invoicing and payment:

  • TUNE UP shall submit invoices in line with the timescales above. Invoices are normally sent via email, but hard copy invoices are available on request. Payment is due on receipt of the invoice by the Client. If the Client fails to make any payment due to TUNE UP by the due date for payment, then, without limiting TUNE UP remedies under or in connection with these terms and conditions, the Client shall pay interest on the overdue amount at the rate of 4% per annum as per banks base rate from time to time.
  • Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount. Accounts unpaid thirty (30) days after the date of invoice will be considered in default. If the Client in default maintains any information or files on TUNE UP web space, TUNE UP will, at its discretion, remove all such material from its web space.
  • TUNE UP is not responsible for any loss of data incurred due to the removal of the service. Removal of such material does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client’s account.
  • Cheques returned for insufficient funds will immediately be considered to be in default until full payment is received. Clients with accounts in default agree to pay TUNE UP reasonable expenses, including legal fees and costs for collection by third party agencies, incurred by TUNE UP in enforcing these Terms.

Client Review

  • TUNE UP will provide the Client with an opportunity to review the appearance and content of the website during the design phase and once the overall website development is completed. At the completion of the project, such materials will be deemed to be accepted and approved unless the Client notifies TUNE UP otherwise within ten (10) days of the date the materials are made available to the Client.

Turnaround Time and Content Control

  • TUNE UP will install and publicly post or supply the Client’s website by the date specified in the project proposal, or at the date agreed with Client upon TUNE UP receiving initial payment, unless a delay is specifically requested by the Client and agreed by TUNE UP.
  • In return, the Client agrees to provide TUNE UP promptly with all necessary co-operation, information, materials and data, access to staff and timely decision-making which may be reasonably required by TUNE UP for the performance of the Services.
  • This shall include the Client delegating a single individual as a primary contact to aid TUNE UP with progressing the commission in a satisfactory and expedient manner.
  • During the project, TUNE UP will require the Client to provide website content; text, images, movies and sound files, along with any relevant background information.

Failure to provide required website content

  • TUNE UP is a small business, and to remain efficient we must ensure that the work we have programmed is carried out at the scheduled time. On occasions we may have to reject offers for other work and enquiries to ensure that your work is completed at the time arranged.
  • This is why we ask that the Client provides all the required information in advance. On any occasion where progress cannot be made with the Client’s website because we have not been given the required information in the agreed time f rame, and we are delayed as result, we reserve the right to impose a surcharge of up to 25% of the Charges. If the Services involve Search Engine Optimization we need the text content for the Client’s site in advance so that the SEO can be planned and completed efficiently.
  • NOTE: Text content must be delivered as a Microsoft Word, email (or similar) document with the pages in the supplied document representing the content of the relevant pages on your website. These pages must have the same titles as the agreed website pages. Contact us if you need clarification on this. Using our content management system the Client is able to keep your content up to date itself.

Web Browsers

  • TUNE UP makes every effort to ensure websites are designed to be viewed by the majority of visitors.
  • Websites are designed to work with the most popular current browsers (e.g. Firefox, Google Chrome, Microsoft Edge etc.). The Client agrees that TUNE UP cannot guarantee correct functionality with all browser software across different operating systems.
  • TUNE UP cannot accept responsibility for web pages which do not display acceptably in new versions of browsers released after the website has been designed and handed over to the Client. As such, TUNE UP reserves the right to quote for any work involved in changing the website design or website code for it to work with updated browser software.

Termination

  • Termination of services by the Client must be requested in a written notice and will be effective on receipt of such notice. Email or telephone requests for termination of services will not be honored until and unless confirmed in writing. The Client will be invoiced for work completed (including any expenses incurred, as outlined in clause 1) to the date of first notice of cancellation for payment in full within thirty (30) days.

Indemnity

All TUNE UP services may be used for lawful purposes only. The Client agrees to indemnify and hold TUNE UP harmless against all damages, losses and expenses arising as a result of any and all actions or claims resulting from the Client’s use of TUNE UP services.

Intellectual property

  • Background IP means any IP Rights, other than Foreground IP, that is used in connection with these Terms.
  • Foreground IP means any IP Rights that arise or are obtained or developed by, or by a contractor on behalf of, either party in respect of the services and deliverables under or in connection with these Terms.
  • IP Rights means patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority f rom, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  • All Background IP, including but not limited to any IP Rights in data, files and graphic logos provided to TUNE UP by the Client, is and shall remain the exclusive property of the party owning it (or, where applicable, the third party f rom whom its right to use the Background IP has derived).
  • The Client hereby grants to TUNE UP a non-exclusive license to publish and use such material, which may be sub-licensed to any contractor acting on behalf of TUNEUP.
  • The Client must obtain permission and rights to use any information or files that are copyrighted by a third party. The Client is further responsible for granting TUNE UP permission and rights for use of the same. A contract for website design and/or placement shall be regarded as a guarantee by the Client to TUNE UP that all such permissions and authorities have been obtained. Evidence of permissions and authorities may be requested. The Client shall indemnify and hold harmless TUNE UP against all damages, losses and expenses arising as a result of any and all actions or claims that any materials provided to TUNE UP by or on behalf of the Client infringe the IP Rights of a third party.

Confidentiality

  • Each party (the Receiving Party) shall use its reasonable endeavor’s to keep confidential all information and documentation disclosed by the other party (the Disclosing Party), before or after the date of these Terms, to the Receiving Party or of which the Receiving Party becomes aware which in each case relates to any software, operations, products, processes, dealings, trade secrets or the business of the Disclosing Party (including without limitation all associated software, specifications, designs and graphics) or which is identified by the Disclosing Party as confidential (the Confidential Information) and will not use any Confidential Information for any purpose other than the performance of its obligations under these Terms. The Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party. This clause shall survive the termination of these Terms for whatever cause.
  • During the term of these Terms the Receiving Party may disclose the Confidential Information to its employees and sub-contractors (any such person being referred to as the Recipient) to the extent that it is reasonably necessary for the purposes of these Terms. The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under these Terms as if the Recipient was a party to these Terms.
  • The obligations in this clause 10 shall not apply to any Confidential Information which is: at the date of these Terms already in, or at any time after the date of these Terms comes into, the public domain other than through breach of these Terms by the Receiving Party or any Recipient; furnished to the Receiving Party or any Recipient without restriction by a third party having a bona fide right to do so; or required to be disclosed by the Receiving Party by law or regulatory requirements, provided that the Receiving Party shall give the Disclosing Party as much notice as reasonably practicable of the requirement for such disclosure.
  • All tangible forms of Confidential Information, including, without limitation, all summaries, copies, excerpts of any Confidential Information whether prepared by the Disclosing Party or not, shall be the sole property of the Disclosing Party, and shall be immediately delivered by the Receiving Party to the Disclosing Party upon the Disclosing Party’s request or the termination of these Terms (whichever is earlier). The Receiving Party shall not copy, reproduce, publish or distribute in whole or in part any Confidential Information without the prior written consent of the Disclosing Party.

Data protection

  • The Client hereby gives TUNE UP consent to engage sub-processors for processing of personal data on your behalf. We shall inform the Client before transferring any personal data processed on your behalf to a new sub-processor. Following receipt of such information you shall notify us if you object to the new sub-processor. If you do not object to the sub-processor within seven calendar days of receiving the information, you shall be deemed to have accepted the sub-processor. If you have raised a reasonable objection to the new sub processor, and the parties have failed to agree on a solution within reasonable time, the Client shall have the right to terminate these Terms with a notice period determined by the Client, with out prejudice to any other remedies available under law or contract. During the notice period, we shall not transfer any personal data processed on the Client’s behalf to the sub-processor.
  • TUNE UP shall enter into appropriate written agreements with all of its sub-processors on terms substantially similar to these Terms. We shall remain primarily liable to the Client for the performance or non-performance of the sub-processors’ obligations. Upon your request, we are obliged to provide information regarding any sub-processor, including name, address and the processing carried out by the sub-processor.
  • We will not transfer personal data processed on your behalf to a country outside India which is not recognized by Indian Government to have an adequate level of protection in accordance with Data Protection Law unless the transfer is effected by such legally enforceable mechanism(s) for transfers of personal data as may be permitted under Data Protection Laws from time to time.

Standard Media Delivery

  • Unless otherwise specified in the project quotation, this Agreement assumes that any text will be provided by the Client in electronic format (Word or Google Docs delivered via USB drive, e-mail or FTP) and that all photographs and other graphics will be electronically in .gif, .jpeg, .png or .tiff format. Although every reasonable attempt shall be made by TUNE UP to return to the Client any images or printed material provided for use in creation of the Client’s website, such return cannot be guaranteed.

Design Credit and Marketing

  • A link to TUNE UP will appear in either small type or by a small graphic at the bottom of the Client’s website. If a graphic is used, it will be designed to fit in with the overall site design. If a client requests that the design credit be removed, a nominal fee of 15% of the total development charges will be applied. The Client agrees that the website developed for the Client may be presented in TUNE UP portfolio, and hereby grants TUNE UP a worldwide, perpetual, non-exclusive license to use its name, logo and branding for advertising, marketing and promotional activities.  Also a link will be posted on our website so as to drive potential customers to your business.

Third Party Servers

  • If the Client’s website is to be installed on a third-party server, TUNE UP must be granted temporary read/write access to the Client’s storage directories which must be accessible via FTP. Depending on the specific nature of the project, other resources might also need to be configured on the server.

Post-Placement Alterations

  • In the event that the Client wishes to make alterations to the website once installed, the Client agrees to give TUNE UP the opportunity to quote to provide such alterations. There is no obligation on the Client to accept the quote provided by us. TUNE UP cannot accept responsibility for any alterations caused by the Client or a third party occurring to the website once installed. Such alterations include, but are not limited to additions, modifications or deletions.

Domain Names

  • TUNE UP may or may not purchase domain names on behalf of the Client depending on the project quotation. Payment in relation to, and renewal of, those domain names is the responsibility of the Client. The loss, cancellation or otherwise of the domain brought about by non or late payment is not the responsibility of TUNE UP. The Client should keep a record of the due dates for payment to ensure that payment is received in good time.

Third Party Products

  • Any third party software which TUNE UP agrees to provide shall be supplied in accordance with the relevant licensor’s standard terms. The one-off license fee for such third party software is included in the Charges payable pursuant to clause 1.

General

  • These Terms constitute the entire agreement between the parties and supersedes all previous representations, promises, assurances, warranties, understandings and agreements between them, whether written or oral, relating to their subject matter.
  • A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorized representatives). A notice given to a party under or in connection with these Terms shall be in writing and in English, by email or next working day delivery service. Notices to the Client shall be sent to the email address or address last notified to TUNE UP.

Digital Marketing

  • TUNE UP will honor the components of your chosen digital marketing scope of work, providing an agreement to a minimum 3 months contract is served and monthly payments are received in advance. In the event that payment is not received on time, we regret that further work will be halted until this is rectified.

Liability

Nothing in these Terms shall operate to exclude or limit either party’s liability for:

  1. death or personal injury caused by its negligence;
  2. fraud; or
  3. any other liability which cannot be excluded or limited under applicable law.

TUNE UP shall not be liable under or in connection with these Terms or any collateral contract for any:

  1. loss of revenue;
  2. loss of actual or anticipated profits;
  3. loss of contracts;
  4. loss of business;
  5. loss of opportunity;
  6. loss of goodwill or reputation;
  7. loss of, damage to or corruption of data;
  8. any indirect or consequential loss;
  9. loss or damage caused by any inaccuracy, omission, delay or error. whether as a result of negligence or other cause in  the production  of the website;
  10. loss  or damage to the Client’s artwork/photos supplied for the website, whether as a result of negligence or otherwise.

    The entire liability  of TUNE UP  to  the  Client  in  respect  of any  claim  whatsoever or breach  of this Agreement, whether or not arising out of negligence, shall  be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.

Severability

In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining  provisions of this Agreement shall  be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision  shall be replaced  by a mutually acceptable valid, legal and enforceable provision, which  comes closest to the intention of the parties underlying the original  provision.

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