These
Terms & Conditions apply to
all FileMaker development
and/or website production.
For clarity
and ease of reading, MF Software Solutions Ltd (T/A MacFactor) will
hereinafter be referred to as The Producer. The commissioning body,
organisation or individual placing the order will be referred to as
The Client. The "Site" and/or the "Production" shall
be the work and services commissioned from the Producer by the Client
(and shall include the FileMaker database(s) and/or web pages and/or
Flash movies to be made under this Agreement).
1. Copyright
(a)The ownership of the copyright (and all other intellectual property
rights) in any graphics, screen designs, audio-visual effects, text,
pictures, photographs, software and other proprietary material produced,
created or written by the Producer (or in its behalf) in relation to
the works and services undertaken (or to be undertaken) by the Producer
in relation to the Production and the Site (the "Materials")
shall remain vested in the Producer. The Producer grants to the Client
a non-exclusive, non-transferable licence to make use of the Materials
in accordance with these Terms and Conditions and solely for use in
connection with the normal operation of the Site and as set out in the
specification referred to in clause 2.
(b)The Producer reserves the right to charge a royalty calculated on
the net retail price for each copy sold of the site whether in part
or as a whole or with or without client data in-situ in the case of
the client marketing and selling copies of any items that include the
Producer’s development.
(c)Unless otherwise agreed The Client will ensure all materials provided
or supplied to The Producer, for inclusion in the site, by or on behalf
of The Client have been cleared with all copyright holders of that material,
and that The Client will be liable for any breach of copyright applying
to those materials and will indemnify the Producer on demand accordingly.
2. Specification
(a)The Production of each Site shall be based on the specification agreed
between The Producer and The Client. The Producer reserves the right
to contribute to the design with reference to consultation, teaching,
training and design requirements, but the agreed design shall not be
materially varied by The Producer without the written consent of The
Client.
(b)The Producer reserves the right to refuse to accept a new design/treatment
or to repeat a production using an original design by a third party.
3. Uses
(a)The Client shall use The Site only for the purposes stated in the
specification.
(b)The Client shall not exhibit The Site in other forms or for other
purposes without first obtaining the written consent of The Producer
and meeting any payments including those for copyright and/or any other
permissions that may be necessary as the result of such extended usage.
4. Approvals
The Producer shall obtain the approval of The Client at the stages of
production specified in The Specification for which approval shall not
be unreasonably withheld with clause 20 coming into effect on completion.
5. Changes
The Producer shall carry out such changes to The Site as The Client
requires and the cost of such changes shall be borne by the parties
as follows:-
(a)by The Client if changes are required as a result of The Client's
desire to depart materially from The Specification or other previously
agreed stages of production or if The Client has unreasonably delayed
in notifying The Producer of any changes:
(b)by The Producer if changes are required as a result of The Producer's
material departure from previously agreed stages of production; or if
The Site is of unsatisfactory technical quality (see liability).
6. Rights
(a)Subject as provided in clause 1(c) the Producer shall obtain all
such licences and permissions in respect of dramatic, literary or artistic
work including photography, photographic library material, music composition
and performances as may be necessary for The Production of The Site
and its agreed use and which are provided by the Producer.
(b)All other rights in The Site's original art work, computer programming
and in the photographed and recorded material arising out of The Production
of The Site together with the photographic and recorded masters from
which copies are made shall be the property of The Producer.
(c)The Producer shall supply to The Client the copy or copies of each
Site specified by the relevant written order on completion thereof and
provision of further copies and foreign language versions of The Site
and transfer to other media shall be commissioned only from The Producer
and shall be the subject of a separate agreement between The Client
and The Producer.
(d)Permission to use such material other than in the agreed form covered
by the contract must be requested in writing and reasonable requests
complying with The Client's original intended use of such material will
not normally be refused.
7. Indemnity
The Client hereby indemnifies The Producer against any actions (civil
or criminal) claims or demands whatsoever which may arise out of the
aural, visual, digital or intellectual content or use of The Site or
any exhibition thereof.
8. Liability
In no event will The Producer, its parent or subsidiaries or any of
the licensors, directors, officers, employees or affiliates of any of
the foregoing be liable to The Client for any consequential, incidental,
indirect or special damages whatsoever (including, without limitation,
damages for loss of business profits, business interruption, loss of
business information and the like), whether foreseeable or unforeseeable,
arising out of the use of or inability to use any elements that comprise
The Site, FileMaker or browser software or any accompanying written
materials or through inaccuracies in any of the data transferred into
The Site from any third party (however supplied), or through corrupted
or damaged files in the event of adopting or further developing an already
existing system, regardless of the basis of the claim and even if The
Producer or the Producer’s representative had been advised of the
possibility of such damage. The Producer will do everything reasonably
possible to ensure The Site conforms to the agreed design when viewed
in the latest or stipulated versions of Internet Explorer. The Producer
will not be responsible for the way the Site appears in other browsers
unless stipulated by the Client and tested in those browsers by The
Producer as part of the specification. It is the Client’s responsibility
to backup the files that make up the Site and as such the Producer cannot
accept responsibility for lost, damaged or corrupted files once installed
onto the Client’s computer(s). Notwithstanding the above and in
any event, the maximum liability of The Producer in relation to all
and any claims which may be made against it in relation to the work
and/or services undertaken (or not undertaken as the case may be) pursuant
to this Agreement shall be the Contract Price relating to the part or
parts of the Site which are alleged to be at fault.
9. Delay or Non-execution
Delay or non-execution in the production of The Site by The Producer
due to war, fire, strike, lock-out, industrial action, tempest, accident,
illness, death or any other cause whatsoever beyond the Producer’s
control shall not give rise to any claim whatsoever against The Producer.
In the event of unreasonable delay due to the above causes The Client
shall be entitled to terminate The Production subject to payment of
all costs incurred and commitments undertaken by The Producer to the
date of termination (inclusive of overheads) plus such amount as may
be agreed to cover the loss of The Producer's reasonably expected profit
in relation to the Production.
10. Payment (non agency contracts)
(a) Subject to clause 11 hereof, the Contract Price shall be the price
agreed between The Producer and The Client on the acceptance of the
written quotation through the issue of a written order (or otherwise
in accordance with clause 19).
(b) Payment of the Contract Price shall be made by The Client to The
Producer as follows:-
(1) one third of the Contract Price on the issue of the written order
(or otherwise in accordance with clause 19).
(2) the balance including any increased costs chargeable under Clause
11 hereof within 28 days of completion of The Site or by monthly interim
payments in the event that a site takes over 28 days to complete.
(3) The Site shall be deemed to be completed upon receipt by The Client
of written notice of completion from The Producer.
(c) All fees chargeable are exclusive of VAT which will be charged if
applicable.
11. Increased Costs
(a)The agreed price of The Production as estimated shall be increased
by the additional cost that The Producer incurs on account of changes
by The Client within the terms of Clause 5(a), increases in the cost
of labour and/or materials or services delays due to circumstances outside
The Producer's control and/or failure by The Client to provide facilities
or information at the time(s) and/or places(s) and/or manner agreed
between The Client and The Producer.
(b)Such increase in the Contract Price shall only be payable by The
Client where the claim for such increase has been notified in writing
to The Client by The Producer as soon as practicable after the occurrences
giving rise to it.
12. Insurance
The Client shall insure all materials including hardware and software
entrusted to The Producer as all such material is received and such
material shall be held solely at the risk of The Client. Where The Client's
premises are used by The Producer for production purposes, The Client
will accept full responsibility for all third party and public liability
cover.
13. Termination
13.1 If at any time The Client wishes to abandon The Production of The
Site. The Client may by notice in writing to The Producer forthwith
terminate The Site. Upon receipt of such notice:-
(a) The Producer shall be asked to take immediate steps to bring to
an end all expenditure or commitments relating to The Production of
The Site and to deliver to The Client as soon as possible detailed statements
of the expenditure (including overheads) in respect of The Production
of The Site.
(b) The Client shall reimburse The Producer such expenditure and pay
the full amount of the profit which would have been due to The Producer
had The Site been completed.
(c) On receipt of the amount specified in Clause 13(b) hereof The Producer
shall transfer to The Client all documents and materials produced to
the date of termination in connection with The Production of The Site
which would normally be handed over to The Client but any subsequent
use of the materials and documents by The Client shall form the basis
of a further agreement between the parties hereto.
13.2 The Producer may cease work upon the Production or the Site (without
any liability on its part) and/or terminate this Agreement by giving
written notice to that effect to the Client in the event that the Client
is in breach of any of the terms of this Agreement (including, without
prejudice to the generality of the foregoing, where any monies due to
be paid by it to the Producer are overdue for payment).
14. Arbitration
Either party to the Agreement shall be entitled to terminate the Agreement
forthwith by written notice to the other party if that other party shall
become bankrupt or have a receiving order made against him/her or shall
present his/her petition in bankruptcy or shall make an arrangement
with his/her creditors or shall have an execution levied on his/her
goods or (being a corporation) shall go into liquidation (other than
in connection with a scheme of reconstruction or amalgamation) or have
a resolution passed for its winding up or have a receiver or administrator
appointed and thereon the provision of Clause 13 hereof shall apply.
(a) Any dispute or difference arising hereunder shall be referred to
a single arbitrator to be agreed between the parties or failing agreement
to be nominated on the application of either party by the President
for the time being of the Law Society. Any such arbitration shall be
in accordance with the provisions of the Arbitration Act 1996 or any
statutory modification or re-enactment thereof for the time being in
force.
15. Legal Construction
The interpretation and application of these Terms and Conditions shall
be in accordance with English Law.
16. Acknowledgements
(a) The Producer reserves the right to include a production and copyright
ownership acknowledgement to MF Software Solutions (and/or MacFactor)
in The Production's credits and a link to The Producer's own web-site.
(b) Under the terms of the software agreement for MacroMedia Director,
QuickTime and other Software used in the production of The Site the
Production must acknowledge those software producers whose licensing
terms insist on acknowledgement by the inclusion of those companies
Logos and/or credits in The Production environment or Production credits.
17. Software availability
The Producer cannot be held responsible for any losses incurred by the
Client as a result of FileMaker or any other software on which this
Site and/or development depends for its operation becoming unavailable
for whatever reason. This Agreement is entered into by the Client on
the understanding that the operation and functioning of the Site relies
entirely on the continued support and on-going availability of licences
from the software manufacturer on who’s platform the Site is written.
18. Year 2000 compliance
Whilst every effort is made by The Producer to employ year 2000 compliant
software The Producer cannot be held responsible for any losses incurred
by the Client through unforeseen year 2000 compliancy issues overlooked
by the manufacturer of any software employed in the creation of the
site.
19. Commencement of Agreement
The Agreement shall have effect from the date when the quotation for
The Production of The Site is accepted by The Client either by way of
written confirmation and/or an official purchase order and/or an advance
payment.
20. Installation, warranty & on-going support
By the very nature of its complexity, software is sometimes prone to errors and/or corruption during its normal use. The Producer will undertake to fix faulty code that is unearthed during the testing of a development stage (as described below) but reserves the right to charge for repairing files, scripts and coding that are damaged from that point onwards. To this end all Site development is undertaken on the following basis and on the understanding that the Client is prepared to set aside a yearly ‘support’ budget for that support:
1) prototype of the completed site is presented to The Client to test (and to suggest any amendments which the Client may require). Save where agreed as part of the specification the costs for this and subsequent prototype presentations are not included within the Contract Price.
2) Any amendments are then implemented and returned to The Client for approval through prototype stages. Amendments are not charged as long as they are within the remit of the original specification.
3) Installation of The Site is undertaken following The Client’s approval of a final prototype. Save where agreed as part of the specification the cost of data transfer, installation and tuition is not included within the Contract price.
4) The Client then has twenty eight working days from time of installation to test the approved Site across his/her LAN network and/or browser.
This is not an approval stage and is strictly in place for debugging any scripting errors that are unearthed through The Site’s 'live' use (such bugs are corrected free of charge on the proviso that The Producer is able to gain access to the files remotely either by way of a direct telephone link such as an analogue fax line or internet access via The Client’s Firewall.)
5) On the twenty ninth day and thereafter, any further tuition/support is charged at a support rate specified by The Producer. This is summarised for The Client and invoiced on an on-going weekly or monthly basis (to be agreed).
Support is usually offered on the basis that a remote link be established with a suitable workstation connected to the server that stores and shares the files within the Client’s workplace or Client’s ISP (Internet Service Provider).
21. Working with existing FileMaker files supplied by The Client
The Producer reserves the right to alter the master password access
to any FileMaker files supplied by The Client for inclusion into The
Site by either changing an existing password or entering in a new password.
This temporary password is not disclosed to The Client until such a
time as all outstanding payments are received from The Client.
