Agreement Terms of Business

TC/01   024

Effective from   01/06/2024 Last Updated 01/06/2024 Introduction & Appointment This Agreement is entered into on the date and is between KES Marketing Ltd, 89 Station Road, Sidcup, Kent DA15 7DN, United Kingdom hereafter to be known as KES Marketing Ltd The CLIENT. The Client Agrees to appoint KES Marketing Ltd to act on my behalf and to have access to my website/s on company website/s in accordance with this agreement, and to permit KES Marketing Ltd to make alterations to the said website/s. We also agree to review advice provided by KES Marketing Ltd for web marketing method as provided by KES Marketing Ltd to help promote the website/s. I [The Client] agree to be bound by these terms and agree to pay KES Marketing Ltd for said works in accordance with invoicing terms as offered by KES Marketing Ltd. Any proposed amendments or changes to these terms must be noted here and KES Marketing Ltd reserve the right to accept or reject any such amendments or changes Definitions The following terms are used as defined below throughout this

Agreement:

1. KES Marketing Ltd or refers to KESM Ltd.

2. CLIENT refers to Client Name & Address.

3. Consultant, instructor, producer, artist, formatter, developer, designer and KESM Ltd refer to the person(s) in the employ of or under contract to KESM Ltd, who will perform the work specified by this Agreement.

4. THIRD PARTY is any individual, group, or entity in the employ of, or under contract to CLIENT, for whom CLIENT desires a participatory role in the project or provision of services described in this Agreement, but who is not in the employ of nor under contract to KESM LTD.

5. UNACCEPTABLE MATERIAL includes, but is not limited to, nudity, pornography, obscenity, defamatory materials, violations of privacy, harassing words or pictures, material advocating illegal activities, or material advocating harm to a person. CLIENT agrees that in cases of disagreement, KESM LTD makes final determination of UNACCEPTABLE MATERIAL.

6. WEB SITE refers to the text, graphics, animations, programs and data placed on the World Wide Web for the purpose of distribution of information.

7. SERVER refers to the computer and related hardware used to store and distributes the WEB SITE on the World Wide Web.

8. HOST or HOSTING PROVIDER refers to the company providing facilities for storage of the WEB SITE and connection to the Internet.

9. HTML (Hypertext Mark-up Language) PHP and other appropriate languages as determined by the KESM LTD will be used for creation of web pages.

10. FTP refers to the mechanism and software used to transfer web pages and related contents to the Internet.

AGREEMENTS KES Marketing LTD agrees to:

1. Create a WEB SITE or related web works in accordance with the specification agreed and quotation supplied as set out by CLIENT. KESM LTD, THIRD PARTY and CLIENT agree to work together to arrive at mutually agreeable copy, pictures, graphics, and links. In the case of brochure non transactional websites with values less than £3,000 we will ask the client to view layouts from theme libraries supplied by KESM Ltd. will guide the client if the chosen layout does not meet the requirements. From the chosen preferred layout our designer will personalise the chosen layout to meet the clients design expectations and requirements to ensure it meets the brief and most importantly is ‘fit for purpose’. This process saves time and ensures the client selects the preferred functionality layout with the personalisation of colour palette and imagery supplied by the client. We only provide a fully bespoke design service from scratch for contract values in excess of £3,000 net of VAT or where the client specifies, they want a bespoke design, and this is agreed and priced according and confirmed within the quotation. Our designer will create the first design and where necessary will revise or rework the original design fully once. Further revisions may incur additional charges or a complete re designs will incur additional charges.

2. Provide programs and design, databases to ensure the WEB SITE functionality as set out by CLIENT or designed by KESM LTD and agreed by the client as specified in the quotation or specification document.

3. Provide services including the following: Design and coding of the web site, design of databases and maintenance of said scripts and databases if supplied. Services may be extended, at the request of CLIENT, to encompass design work or special activities that are in addition to those outlined in this Agreement. An additional discounted charge of £60 per hour for web work and development works as determined by our latest schedule of fess obtainable from www.paymonthlysite.co.uk or from the offices at 89 Station Road, Sidcup, Kent DA15 7DN.

4. The KESM LTD agrees to seek prior approval from the CLIENT before commencement of bespoke coding works and to provide an estimate at the outset for any works that are not exactly definable in terms of time and cost

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5. Provide the CLIENT with an opportunity to review the appearance, content, and functionality of Client’s web pages in the form of static images or via a dedicated development link on our server to enable the CLIENT to review said works in the process of design and development.

6. Works will be scheduled to be completed within an estimated timeline as confirmed within the quotation. Any dates or timelines implied are entirely dependent on the CLIENT providing the KESM LTD with the necessary content, source files (graphics and text), information etc. required to create the WEB SITE including merchant account facilities, product suppliers, and accounts with wholesalers etc, this also applies to logins to social media accounts which is the responsibility of the CLIENT to set up and supply. KESM LTD cannot be held accountable for delays in the development process due to the CLIENT or their AGENTS for delays in providing content or through indecisive action on behalf of the CLIENT or for any financial constraints, it is assumed that the funding is in place.

7. KESM LTD will work in a timely manner and will endeavour to complete tasks on time in accordance with the schedule as agreed between the CLIENT and KESM LTD. Every attempt will be made to meet the agreed-upon delivery dates but unforeseen or unavoidable delays not caused by the KESM Ltd.’s negligence, shall not constitute a breach of this agreement. In the event of the project over running past the scheduled timescale as detailed within the quotation by due cause of the CLIENT not supplying content, suppliers’ details, products, e-commerce merchant facilities, KESM LTD reserves the right to submit a final invoice for works completed as we will have fulfilled our obligations to design, code and create a working website.

8. The Timeline shall be deemed to have commenced from the agreed commencement date as determined by KESM LTD, agents or contractors. Failure by the client to provide the content, data in a timely manner or through indecisive action or by a change in direction or deviation from the agreed brief which results in the delay in project, beyond 14 days, then the client is at risk of losing their deposit. This is different terms to monthly paid packages. Any deviation from the agreed brief may incur additional costs and render the contract to be reviewed in terms of cost and altered timeline.

9. CLIENT to install files with technical assistance supplied by KESM LTD deliver and install the work subject to this agreement to Clients WEB SITE.

10. Maintain the WEB SITE, which includes: all scripting and databases. This does not include sections of WEB SITE developed and maintained by a THIRD PARTY.

11. KESM LTD agrees to rectify and fix any ‘bugs’ or errors in the website and/or system created by KESM LTD post launch live date at no cost to the client FOC for a period of 10 days subject to no interference with the design files code structure by third parties or client intervention. This excludes any quotation system or data supplied by a third party as a ‘feed’ or by other integrated means to the website. KESM LTD shall only be responsible for the design files / database structure / system created by KESM LTD technicians.

12. Web Hosting is offered as an invitation on KESM LTD’s server maintained by our appointed contractor and subject to their service level agreement [SLA] supplied and paid for separately to the appointed contractor. KESM LTD cannot be held responsible for any third-party hosting providers performance failure. CLIENT’s can also provide hosting solutions, ONLY for fully bespoke websites and excludes pay monthly websites. It is the CLIENT’s decision for bespoke websites to accept that the hosting provision is technically suitable for the hosting of the website, KES Marketing LTD cannot be responsible for the maintenance, back up of any data, web files, or general commercial performance of the website on any third party hosting provision this rests with the CLIENT to ensure its suitability, performance integrity, back up and up-time resilience. We strongly encourage clients to use our hosting service which we are fully familiar with and affords the client our SLA Service Level Agreement.

13. All deposits and any advance payments are non-refundable, regardless of the reason for the cancellation of the project.

14. The client will be liable for the settlement of the invoice at the full cost of the project, even if the project is not completed due to a failure on the part of the client, after a reasonable period of time, to provide final content, image or instructions.

CLIENT agrees to:

1. Supply KESM LTD with text, photographs and Client’s logo for inclusion on Client’s WEB SITE. CLIENT agrees that no text or photographs will contain UNACCEPTABLE MATERIAL.

2. Warrant that all material submitted for inclusion on WEB SITE is not copyright protected unless such copyright is held by CLIENT or CLIENT has obtained permission to use them. KESM Ltd are not responsible for any client supplied content suitability and/or copyright licences.

3. Warrant that no graphics will contain UNACCEPTABLE MATERIAL.

4. The Client is responsible for testing and ensuring that all material is accurate and to Client’s satisfaction. Any changes necessary must be reported to KESM LTD, or a later review date should be agreed within ten (10) days of CLIENT receiving the web pages, if not reported the pages will be deemed to be accepted and approved.

5. KESM LTD must be granted read/write access via FTP to Client’s WEB SITE directories in order to install the design on clients hosting service if accepted by KESM Ltd. Depending on the project, other resources might have to be configured on the SERVER. By signing this Agreement, CLIENT agrees to give KESM LTD or its appointed agent’s ongoing access during the agreement period, to the installed web pages. CLIENT further agrees that KESM LTD shall have the right to remove that design from public posting for failure to adhere to the terms of this Agreement, including violating any licensing agreements or failure to pay charges duly assessed as described in the payment terms below.

6. A link to Pay Monthly Site will appear in small type at the bottom of the home page on Client’s site. CLIENT agrees to KESM LTD place a link on the site noting “Site Designed by Pay Monthly Site. CLIENT also agrees to allow KESM LTD to place a link on KESM Ltd.’s site linking to Client’s site to aid organic ranking.

7. Ensure that the content of the WEB SITE conforms to all UK legislation currently in force.

8. The client must ensure they hold the access codes to any existing domain name to enable it to be used to re-point towards the new content when we are ready to upload the new website content. It remains the responsibility of the client to supply the ‘FTP’ [File Transfer Protocols, access codes] or domain access codes when we are ready to publish the design. KESM LTD cannot be held responsible for any delays and payment cannot be withheld as we expect to be paid once the design has been completed and ready for publishing as we have completed our work, coding and development.

9. Content to be supplied by the client must be completed within the specified time frame and cannot hold up the completion of the said website. KESM LTD will not be held responsible for delays arising out of content not supplied by the client and we expect payment of our works upon completion of the design, coding and development. KESM LTD reserve the right to exercise payment of outstanding invoices if the CLIENT or its agents delay in providing suitable content for publication on the site.

10. Shall defend, indemnify, save and hold harmless from any all demands, liabilities, losses, costs and claims, including all legal fees (“Liabilities”) incurred by KESM LTD, its employees, officers, agents, and the like, that may arise or result from any service provided or performed or agreed to be performed or any product sold by CLIENT, its agents, employees, or assigns. CLIENT agrees to defend, indemnify, and hold harmless KESM LTD against liabilities arising out of I) any material supplied by CLIENT infringing on the proprietary rights of a third party, ii) copyright infringement, and iii) any defective product CLIENT has sold through their WEB SITE.

11. If the client decides not to take advantage of our offer to host their website BESPOKE Only and decided to seek hosting from another provider, as this will entail a familiarisation task for KESM Ltd Technician, we will charge a fee of £150 to place the said website on the alternative server.

Limitation of liability

1. Under no circumstances and under no legal theory, tort, contract, or otherwise, shall KESM LTD be liable to the CLIENT or any other person for any indirect, special, incidental, or consequential damages of any kind including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. In no event will KESM LTD be liable for any damages.

2. KESM Ltd service is provided, where requested, on an “as is, as available” basis. The KESM Ltd gives no warranty, expressed or implied, for the services provided, including without limitation, warranty of the fitness for a particular purpose. This no warranty expressly includes any reimbursement for losses of income due to disruption of service by KESM Ltd.

3. Due to the public nature of the Internet, CLIENT agrees that all information on Client’s WEB SITE is considered publicly accessible. PROVIDER is not responsible for privacy of electronic mail or other information transferred from or to Clients WEB SITE.

4. KESM Ltd cannot guarantee the absence of service interruptions caused by Acts of God, War, Insurrection or Riots or public disorder that could cause damage to any hosting provision or other circumstances beyond its control including, but not limited to, telecommunications problems or power failure.

5. KESM Ltd does not guarantee or imply that any web design or e-commerce site, can in anyway increase sales or traffic to the said web site.

Ownership of intellectual property

10.1 Each party shall retain the intellectual property rights in and to all materials and content which, as at the commencement date of this Agreement, vest in that party.

10.2 Subject to Clauses 10.1 and 10.3, any and all content and materials and associated intellectual property rights created or produced pursuant to this Agreement by KESM LTD shall be assigned by the KESM LTD to the CLIENT once the CLIENT has paid to KESM LTD all sums due and payable by the CLIENT under or in connection with this Agreement and shall, once transferred, be the property of the CLIENT. Such content and materials include but are not necessarily limited to: web design, graphical images, textual content and any other materials created pursuant to this Agreement. Upon receipt of full and final payment by KESM LTD from CLIENT, CLIENT shall assume full title and ownership of and all rights and responsibilities for all content and materials produced by KESM LTD pursuant to this Agreement. Until such time as payment in full is made by the CLIENT to KESM LTD, title in and ownership of all work performed pursuant to this Agreement shall vest in the KESM LTD. 10.3 Without prejudice to the provisions of Clause 10.1, the parties agree that title in and ownership of all object and source code (together the “CODE”) in the back office and financial transactional elements and functionality of the WEB SITE shall vest in the KESM LTD and/or its licensors. KESM LTD and its authorised designees shall have sole access to the CODE and the CLIENT shall not be entitled to access the CODE without the express prior written consent of the KESM LTD, except where expressly required under and in accordance with applicable law. KESM LTD shall license the use of the CODE, and shall in respect of any third party code comprised in the CODE, take reasonable steps to ensure that the use of that third party code is licensed, to the CLIENT on a limited, royalty free, worldwide basis for the sole purposes of the CLIENT being able to use the WEB SITE and to give effect to its rights under this Agreement, and the CLIENT undertakes to the KESM LTD that it shall: (a)Only use the CODE in respect of a single website of connected documents hosted on a single server; and (b) not distribute, modify, access, sub-license or otherwise deal with the CODE without the express prior written consent of the KESM LTD 10.4 KESM LTD represents that it is either the sole author or valid licensee of the intellectual property rights in the works and materials created for the CLIENT pursuant to this Agreement and that it is able to comply with its obligations set out in this Clause 10. To the extent that the KESM LTD assigns any intellectual property rights to the CLIENT under this Clause 10 the KESM LTD waives absolutely any and all moral rights arising under Chapter 4 of the Copyright, Designs and Patents Act 1988 and, so far as is legally possible, any broadly equivalent rights the KESM LTD (or its representatives) may have in any territory of the world in respect of those intellectual property rights.

Confidentiality

In the event CLIENT discloses information to KESM LTD that CLIENT considers being confidential or proprietary and so notifies KESM LTD, agrees to hold such proprietary information in confidence and to treat the proprietary information with at least the same degree of care and safeguards that KESM LTD takes with it’s own proprietary information. Proprietary information shall be used by KESM LTD only in connection with services rendered under this Agreement. Proprietary information shall not be deemed to include information that (a) is in or becomes in the public domain without violation of this Agreement by KESM LTD, or (b) is already in the possession of KESM LTD, as evidenced by written documents, prior to the disclosure thereof by CLIENT, or c) is rightfully received from a third entity having no obligation to CLIENT and without violation of this Agreement by KESM LTD.

Payment terms

1. The above mentioned services are provided for the contract price as agreed in writing prior to commencement of works or liable to the fee of £60 per hour for web work and development works, or as determined on our latest scale of fees as supplied by the CLIENT and available upon request from KESM LTD offices.

2. KESM LTD will provide CLIENT with an invoice and progress report for projects expected to exceed 6 weeks, all projects in excess of £4,000 in value will be project managed with mile stones, all projects with a value of £8,000 plus will be closely managed with the production of a wire frame at the outset if deemed necessary by KESM Ltd.’s developers / agents or contractors.

3. CLIENT will pay KESM LTD within 10 working days of the date of the invoice for invoices issued for on-going projects where stage payments are agreed. Failure to do so can result in temporary suspension of work by KESM LTD until payment is received.

4. CLIENT will pay KESM LTD any balance payment due PRIOR to the publication of live site date and before the release of the new works to clients hosting account. No web site will ‘go live’ without full balance payment. This also applies to client’s web works hosted on KESM LTD hosting services. KESM LTD reserves the right to permit publication of new works to client’s domain with a period of full balance payment not exceeding 30 days provided this is on hosting controlled and managed by KESM LTD this concession is subject to KESM LTD concession consent.

5. Payment shall be by cash, by bank transfer, in pounds Sterling, made payable to KESM Ltd. We do not accept payment by Cheque.

6. Maintenance of the WEB SITE (other than any maintenance provisions in this document and subject to WEB SUPPORT PACKAGES or SERVICE LEVEL AGREEMENT [SLA] as offered by KESM LTD after completion of the work specified shall be charged at the hourly rate of £60 or a portion thereof, for minor maintenance.

7. All unpaid invoices shall begin to accrue 15% annual interest, 1.25% per month, 30 days after the date of the invoice which remains unpaid or part thereof.

Late Payment Penalties ?

8. Delays in progressing the work directly caused by the Clients inability to provide funds in line with the terms agreed. Will result in financial penalties being imposed upon the client in the form of a 5% financial penalty of the total outstanding being added to the contract value and being applied for each and every 30 days the project is delayed or pro rata for subsequent 30 day periods after the first 30 day period. This late payment penalty is at the sole discretion of KESM LTD and the client will be advised of the penalty period commencement when the client confirms to KESM LTD of any financial difficulties they are experiencing and their inability to meet their obligations of the contract terms.

9. Delays caused by the client where KESM LTD are waiting for content or approval of works completed by KESM LTD or content from the client which may in the form of suitable imagery of acceptable quality and resolution as accepted by the KESM LTD, choice of imagery, textural content, product information, technical specifications, videos, any content that is due to be published on the site and without which KESM LTD are unable to progress the project. KESM LTD will advise the client that the Late Payment Penalty will be imposed and a reasonable deadline will be offered to the client of not less than 30 days to supply said content after which time the late penalty payment period will commence.

10 KESM Ltd reserves the right to sell on bad debts or seek redress via the courts and CCJ

11) Charges & Monthly Subscriptions All Charges shall be payable by the Customer to KESM Ltd, by the due date stated on each invoice.
11.1 Monthly fees are paid via our nominated payment provider [STRIPE] payment will be taken automatically on the agreed due date from clients credit or debit card.
11.2 Upon signing up for our pay monthly web subscription service you agree to make the one off set up fee and the specified package monthly fee.
11.3 The client agrees to be bound by the terms and minimum payment period for each package.
11.4 Unless agreed otherwise agreed in writing, the set-up payment fee as detailed in the package is nonrefundable you must be sure you are ready to proceed. No works will commence until the package sign up process is fully completed and the initial set up fee paid.
11.5 If payment is not made when due, the system will attempt to take the monthly fee again you will be notified if payment fails. Should the payment attempt are not successful KESM Ltd will apply a late payment charge of £15. An additional late payment charge of £15 will be added to each invoice for every month that it remains unpaid. Unpaid charges will continue to accrue even if the Terms of Business is terminated.
11.6 If payment of the Charges/Subscription is not made when due, without prejudice to any other rights, KESM Ltd shall no longer be obliged, as from such date, to provide Services until such amounts are fully paid by the Customer. This will result in suspension of service and the website temporarily removed until all payments brought up to date.
11.7 Late payment charges will continue to be added until this amount is paid by the customer in full. On this occasion we also reserve the right to suspend any websites held under any of the customer’s accounts.
Cancellations and termination
1. Notwithstanding any other provisions of this Agreement, either party may terminate this agreement immediately at any time by the other party by giving 30 days written notice to the other party.
2. CLIENT will be invoiced for the work completed to the date of first notice of cancellation for payment in full within TEN (10) working days.
3. Content works, web marketing, Social Media marketing must be paid in accordance with the specific terms of the invoice depending upon the type of works.
4. Client’s obligation to pay accrued charges and fees shall survive any termination of this Agreement.
5. In the unlikely event of termination, the KESM LTD agrees to hand over all the work paid for by the CLIENT up to the date of termination to the CLIENT.
6. All deposits paid are non-refundable.
7. KESM Ltd reserves the right to close any website for which proper and agreed payments have not been received, within a reasonable period of time.
8. KESM Ltd reserves the right close out a project, if the CLIENT has failed to provide the required content, images or other required media, within 1 month of the work being commissioned.
Acceptance of terms and conditions
This agreement represents the complete agreement between KESM LTD and CLIENT in conjunction with the quotation and specification, brief if supplied, and supersedes any other written or oral agreement. The terms of this agreement may only be changed in writing and any changes must be signed by both KESM LTD and CLIENT to be effective. Requesting work for development under the terms of this contract with KESM LTD will be regarded as an acceptance of all the above terms and conditions. Unless otherwise terminated as provided herein, this Agreement shall continue in force until the services provided for in this agreement have been fully and completely performed. This Agreement is subject to the laws of England and Wales and the parties to this Agreement agree to any court hearing to be heard in the borough of Greater London.