Formworks Terms & Conditions
By accepting these Terms and Conditions via the Online Order Form or via an Order Form that references these Terms and Conditions, the Customer agrees to the terms and conditions.
In these Terms and Conditions the following words and expressions shall have the following meanings.
“Business Day” means a day other than a Saturday, Sunday or a public holiday in England when banks in London are open for business
“Charges” means the payments for the Services and as detailed on the Order Form/Schedule
“Company” means Digital Field Solutions Ltd. (company registered number 5644049) of 87A High Street, The Old Town, Hemel Hempstead, Hertfordshire HP1 3AH United Kingdom
“Contract” means the Customer’s Order Form and the Company’s acceptance of it, or the Customer’s acceptance of a quotation for Services from the Company
“Customer” means any person or organisation with whom the Company enters into a Contract subject to these Terms and Conditions
“Customer Data” means electronic data or information submitted by the Customer to the Service
“Deliverable” means any work, template or material created by, for or on behalf of the Customer under these Terms and Conditions or any Contract
“Downtime” means any service interruption in the availability to the Customer of the Service
“Effective Date” means the date of the Contract
“Force Majeure” means an event beyond the Company’s reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving our workforce 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 suppliers or subcontractors
“Group” means a party and each and any of its subsidiaries, any holding company and any subsidiaries of such holding company from time to time
“Intellectual Property Rights” means all rights in relation to any and all patents, trade marks, design rights, applications for any of the foregoing, copyright (including rights in computer software), topography rights, database rights, rights in know-how, trade or business names, service marks, logos, rights in designs and other similar rights or obligations, goodwill associated with the foregoing, whether registered or unregistered and all rights or forms of protection having equivalent or similar effect anywhere in the world and registered includes registrations and applications for registrations
“Order Form” means any Company supplied form, electronic or otherwise, made available to the Customer for the purposes of purchasing the Service
“Online Order Form” means the web based form available through the Company’s website for the purpose of purchasing the Service
“Password” means the alphanumeric characters chosen and used exclusively by the Customer at his own risk for the purpose of securing and maintaining the exclusivity of his access to the Company’s Service
“Self Service Support facility” means the online facility available through the Company’s website (www.digitalfieldsolutions.com) for the registering of support requests
“Server” means the computer server equipment operated by the Company or an approved Third Party in connection with the provision of the Service
“Service” means the services purchased by the Customer and provided by the Company and as detailed within the Contract.
“Spam” means sending unsolicited and/or bulk emails
“Term” means the duration for which the Customer has ordered the Service, from the receipt of payment of a subscription to the Service, or in the case of customers paying by invoice, from the date identified as the start date on the invoice and for the period specified in the Contract.
“Third-Party Applications” means software products that are provided by third parties that interoperate with the Company Services, and are identified as Third-Party Applications and “Third Party” shall be construed accordingly
“UK Business Hours” means 9.00am to 5.30pm Monday to Friday on a day that is not a public holiday in England
“Users” means individuals who are authorised by the Customer to use the Service, for whom subscriptions to the Service have been purchased, and who have been supplied user identifications and passwords for accessing the Service
“Virus” means a computer programme that copies itself or is copied to storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to files or creates a nuisance or annoyance and includes without limitation computer programs commonly referred to as worms or Trojan horses.
1.1 In these Terms and Conditions, unless the context otherwise requires or is otherwise specified:
- reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re‑enacted;
- words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa;
- any reference to a party includes a reference to its successors in title and permitted assigns;
- references to clauses and schedules are to be construed as references to the clauses of, and schedules to, these Terms and Conditions;
- a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality);
- any obligation on a person not to do something includes, without limitation, an obligation not to agree, permit or acquiesce in that thing being done;
- the headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.
1.2 In the event of any conflict (whether as to interpretation or otherwise) between the provisions of an accepted Order Form and these Terms and Conditions the following order of precedence shall apply:
- these Terms and Conditions; and
- the accepted Order Form
1.3 A third party who is not a party to the Contract has no right to enforce any term of it.
1.4 These Terms and Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referenced to, in the Order Form, acceptance of quotation or other document supplied by the Customer or implied by trade custom, practice or course of dealing.
2. Basis of Contract
2.1 The Customer’s Order Form or the Customer’s acceptance of a quotation for the Services by the Company constitutes an offer by the Customer to purchase the Services on these Terms and Conditions.
2.2 No offer placed by the Customer shall be accepted other than:
(a) by written acknowledgement issued by the Company by email or
(b) (if earlier) by the Company starting to provide the Services,
when a contract for the supply and purchase of the Services on these Terms and Conditions will be established. The Customer’s terms and conditions (if any) attached to, enclosed with or referenced to in any purchase order or other document shall not govern the Contract.
2.3 Subject to the terms of the Contract, the Company shall provide either the Service as chosen by the Customer on the Order Form during the Term.
2.4 Any quotations given by the Company for Services shall remain valid for 30 days from the date of the quotation.
3. Users Subscriptions
3.1 Services supplied under the Contract are purchased for the number of Users detailed in the Contract and may be accessed by no more than the number purchased. New Users may replace former Users who no longer require use of the Service.
3.2 Users may be added at any time during the Subscription Term at the price advertised on the Company’s website (www.digitalfieldsolutions.com), and are effective from the Order Form date and are subject to the terms of the Contract. The Customer shall be charged the pro rated fee up to the renewal date of their existing subscription, after which subsequent invoices shall include the new User total.
3.3 If the Users are reduced during the Term of the Contract, no monies shall be refunded. The existing number of Users shall remain available until the end of the Term, at which point a new Order Form will need to be completed for the change in services and a new term shall commence for the change in Services.
4. The Service
4.1 The Company shall provide to the Customer the Service subject to these Terms and Conditions.
4.2 The Company will use reasonable endeavours to provide the Service 24 hours a day 7 days a week, except for:
(i) planned downtime of which the Company shall notify the Customer at least 24 hours in advance and where practical, shall endeavour to schedule for between Saturday 20:00 and Sunday 23:00 GMT;
(ii) unavailability due to circumstances beyond the Company’s reasonable control
4.3 The Self-Service Support facility is available 24 hours a day 7 days a week for access to the help pages and for raising new support requests. The Company’s support department monitors raised requests during standard UK Business Hours and aims to respond within 4 hours of the receipt of a raised request provided that receipt occurs within UK Business Hours and if it is not received within UK Business Hours the 4 hour period will be deemed to start at 9.00am on the following Business Day.
4.4 The Customer acknowledges that the Service may take up to 8 hours (UK Business Hours) from the date of payment until the Service is fully operational.
4.5 The Company shall provide the Service to the Customer as soon as reasonably practicable. Any date/time indicated by the Company as a date/time for the Service to be fully operational is an estimate only and may be liable to change subject to prior written notification (by email) to the Customer. Accordingly the Company will not be responsible for any delay in activating the Service beyond such a date/time.
4.6 It shall be the responsibility of the Customer to ensure that the contact, billing and other email addresses, mail address, telephone and fax numbers held by the Company are correct and up to date. Customers must ensure that email and other addresses are updated promptly. The Company will not be held liable for any failure to contact Customers via addresses held within records but not updated by Customers.
4.7 It shall be the sole responsibility of the Customer to ensure:
- Users’ compliance with these Terms and Conditions;
- the accuracy, integrity and legality of the Customer Data;
- the Service is used in the way for which it was designed;
- the Service is not sold, re-sold, rented, leased, licensed, assigned, modified, adapted or otherwise reproduced;
- Users and the Customer use reasonable endeavours to prevent unauthorised access to the Service, and inform the Company immediately if such breach occurs;
- no attempt is made to gain unauthorised access to the Service or related servers, systems and networks;
- that adequate procedures are put in place and maintained to retrieve and archive Customer data as suitable for the Customers requirements.
4.8 Customer Data will be held by the Company and available to the Customer for 30 days. During the following 30 days Customer Data will be removed.
5. Intellectual Property Rights
5.1 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or websites are issued or published for the sole purpose of giving an approximate idea of the Service described in them. They will not form part of the Contract, nor shall they be copied, reproduced or communicated to any third party without the Company’s prior written consent.
5.2 The Customer acknowledges that no Intellectual Property Rights connected with the Service or any Deliverable shall pass to the Customer and all existing and future Intellectual Property Rights in the Services or a Deliverable will remain with the Company.
5.3 The Company grants to the Customer a non-exclusive, non-transferable, royalty free, worldwide licence (for the duration of the Term) to enable the Customer to use the Deliverables and the Services in accordance with the Contract. If the Contract terminates (for whatever reason), this licence shall automatically terminate.
6.1 Charges for the Service shall be paid by the Customer to the Company monthly in advance unless otherwise agreed by Company and the methods of payment are specified on the Order Form unless any other payment method has been agreed in writing between the Company and the Customer.
6.2 The Company reserves the right to vary from time to time all Charges with one months’ notice to the Customer by email. The Customer has the right to terminate in accordance with clause 12 if the increase is unacceptable.
6.3 If this Contract/Order Form is upgraded to provide a higher level of Service, then a new Order Form will need to be completed. The charges will be as varied within the new Order Form.
6.4 Any Service upgrade Charges detailed in any of the Company’s published tariffs and as appearing on the Company’s website shall be paid by the Customer to the Company in advance, covering the period to the next payment date for the Term and thereafter simultaneously with the original Service payment.
6.5 All payments shall be due to the Company on presentation of invoice unless otherwise specified on the invoice. The Customer shall pay each invoice submitted to it by the Company within 30 days of receipt to a bank account nominated by the Company and as detailed in the Order Form.
6.6 Interest payable on demand whether before or after judgement shall accrue from day to day on overdue amounts at the rate of 5% above the Bank of England base rate, accruing on a daily basis together with VAT if applicable.
6.7 Customers who make duplicate payments for services or who overpay invoices will be refunded the difference subject to an administration charge of £25 (+VAT) being deducted from the refund. If the refund amount is less than £25 (+VAT) then no refund will be made.
7.1 The Customer hereby agrees to refrain from uploading to the Service, or transferring to or from other users of the Service, or transferring to any other Third Party through the Service, any illegal material (including but not limited to material which may be deemed to be offensive, abusive, hateful, sexually explicit, inflammatory, indecent, defamatory, obscene, menacing, violent, discriminatory (based on race, sex, religion, nationality, disability, sexual orientation or age) or in breach of copyright, database right, trademark, privacy or other rights) or promote any illegal activity, or which is threatening, abusive or which invades another’s privacy or which causes annoyance, inconvenience or needless anxiety.
7.2 The Customer hereby agrees not to send any material through the Service which gives the impression it has emanated from the Company if this is not the case.
7.3 The Customer hereby agrees to refrain from sending deceitful, menacing, offensive, abusive or annoying messages (including, but not exclusively, ‘Spam’ or Unsolicited Commercial Email ‘UCE’), through the Service or whilst using the Service.
7.4 The Customer hereby agrees to not divulge their Passwords to any third party and use all reasonable endeavours to keep the same confidential and inaccessible to third parties.
7.5 The Customer hereby agrees to immediately cease to use the Service on termination of the Contract.
7.6 The Customer hereby agrees not to use or permit the usage of the Service in an unlawful manner or in contradiction of published legislation and regulations governing the Internet.
7.7 The Company reserves the right to restrict or block access to the Service in the event of a failure to abide by these Terms and Conditions. This may include, but not exclusively, the transmission of unsolicited email.
7.8 The Company reserves the right to make an administrative charge as a result of abuse of these Terms and Conditions and the Contract.
7.9 The Company does not tolerate abusive behaviour from anyone and reserves the right to terminate the Contract and the Services of any Customer or User who demonstrates abusive, intolerant, violent, verbally abusive or threatening behaviour towards Digital Field Solutions Ltd., its staff, contractors, customers or other users without further notice or refund. The Company reserves the right to disclose any such information to law enforcement authorities as it feels is necessary.
7.10 Users are required to use the Service considerately and appropriately so that it does not affect the shared system capacity. If the Company believes a Customer or User is not using the service appropriately and this is unfairly affecting other Customers use, the Company will in the first instance manage the Customer or Users share of the system capacity. If the Customer or User continues to use the service inappropriately the Company reserve the right to terminate the Contract.
7.11 The Customer confirms that any material sent through the Service will apply with the applicable law in the UK and any country from which it is sent.
8. Data Protection
8.1 The Company recognises that it has a responsibility to protect and maintain the privacy of personal data that the Customer shares with us and is committed to take reasonable security measures to try to prevent against unauthorised access to this data.
8.2 If the Company receives any personal data from a Customer, it will use it only for the purposes of fulfilling its obligations under the Contract.
8.3 The personal data that the Company collects from the Customer may be transferred to and stored at, a destination outside the European Economic Area (“EEA”). It may also be processed by staff operating outside the EEA who work for the Company (or one if its suppliers) who may be engaged with the processing of your personal details and provision or support services.
9.1 The Company shall not be liable under these Terms and Conditions or the Contract for the following to the extent permitted by the applicable law:
- Whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any direct or indirect loss of profits, business revenue, goodwill or any economic loss or any indirect or consequential loss arising under or in connection with the Contract
- any claim made against the Customer by another third party that does not follow a breach of these Conditions by the Company
- any loss or damage to the Customer caused by or arising from any act or omission of the Customer or any act caused as a result of Force Majeure or beyond the Company’s control
- in respect of any damage, loss or disruption to the Customer’s or any other person’s Computer System caused by any Computer Virus.
- in respect of any damage, loss or disruption to the Customer’s or any other person’s Computer System caused by any Third Party Application.
9.2 The Company’s total liability for any loss or damage suffered by the Customer shall not exceed the aggregate of all Charges paid by the Customer for the Service supplied in the last three calendar months.
9.3 Neither party excludes or limits its liability to the other for:
(a) death or personal injury resulting from the proven negligence of either party, its employees or agents;
(b) fraud or fraudulent misrepresentation
9.4 Except as set out in these Terms and Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.5 This clause 9 shall survive termination of the Contract.
10. Changes to the Service
10.1 The Company shall be entitled to discontinue, alter, modify, expand, improve, maintain, repair, suspend, disconnect or otherwise change the Services from time to time as necessary.
11.1 The Service may be temporarily suspended or part suspended by the Company without notice and without prejudice to the Company’s rights of termination under clause 12 in the event of the following:
- Failure by the Customer to make any payment to be made to the Company on its due date for payment.
- If the Customer does or suffers anything to be done which jeopardises the Service or any network to which the Customer is from time to time connected.
- If the Customer’s credit limit has been exceeded or if the Customer is otherwise in breach of these Conditions.
- In the case of system failure, maintenance or repair, compliance with safety or statutory requirements
11.2 No such suspension shall affect the liability of the Customer to pay Charges and other amounts to the Company, and without limitation, the monthly subscription charge will continue to accrue. During suspension the Company reserves the right to refuse to release the Customer Data.
12.1 The Contract shall remain in force for the duration of the Term, including any and all renewals. Termination can be effected as follows:
12.2 By the Customer
The Customer may terminate the Contract upon one months’ written notice without any liability to the Company:
(a) at the end of the Term.
(b) at any time and without notice if the Company commits any breach of the Contract
12.3 By the Company
The Company may terminate the Contract upon one months’ written notice without any liability to the Customer:
12.3.1 At any time and without notice if the Customer commits any breach of the Contract including, but without limitation, non-payment of any subscription Charges
12.3.2 Or by at least 30 days’ written notice to the customer
12.3.3 Or with immediate effect if bankruptcy or insolvency proceedings are brought against the Customer, or an arrangement with creditors is made, or a receiver or administrator is appointed over any of the Customer’s assets, or the Customer goes into liquidation
12.4 The Company reserves the right to delete the Customer Data following termination of the Contract.
12.5 With the exception of termination under 12.3.2 above no refund of subscription Charges will be made to the Customer upon termination of the Contract. If the Company terminates the Contract under 12.3.2 the Customer will be credited the amount unused at the date on which the termination comes into effect. All refunds are at the discretion of the Company.
12.6 The Company has the right to terminate the Contract immediately if the Customer or any of its employees or agents engage in any conduct that is prejudicial to the Company or in the event of non-payment of the Charges by the Customer within fourteen (14) days of the due date for payment.
12.7 Upon receipt by the Company of notice of termination, all invoices, including the termination invoice, will become due for immediate payment.
12.8 Upon termination, the provision of the Services shall immediately cease and the Customer shall:
- pay all outstanding Charges due under the Contract;
- within fourteen (14) days export at the Customer’s own cost any Customer Data from the Service using the provided functionality;
- return to the Company any materials and Confidential Information belonging to the Company.
13. Rights on Termination
13.1 Termination of the Contract shall not affect any pre-existing liability of the Customer or affect any right of the Company to recover damages or pursue any other remedy in respect of any breach by the Customer of the Contract or these Terms and Conditions and the continuation of any provision expressly stated to survive or implicitly surviving termination.
14.1 Any notices under or in connection with these Terms and Conditions or the Contract shall be in writing and shall be delivered by post to the relevant address given in the Order Form or to such address as the recipient may have notified to the other party via e-mail for that purpose.
15. Expenses of the Company
15.1 The Customer shall pay to the Company all costs and expenses (so that any legal fees shall be based on an indemnity basis) incurred by the Company in enforcing any of these Terms and Conditions, or exercising any of its other rights and remedies under the Contract, including (without prejudice to the generality) all costs incurred in tracing the Customer in the event that legal processes cannot be enforced at the address last notified to the Company.
16.1 The allowance of time to pay or any other indulgence by the Company in respect of payments due to it shall in no manner affect or prejudice its right to payment together with interest provided under these Conditions.
17.1 If these Terms and Conditions or the Contract or any part thereof shall be adjudged for any reason to be void, unenforceable or ineffective but would be adjudged to be valid effective and enforceable if part of the wording were deleted or a provision were reduced in scope these Terms and Conditions and the Contract shall continue with such modifications as may be necessary to make its provisions (or if such be the case its remaining provisions) valid effective and enforceable.
18.1 Each party hereto undertakes to the other that it shall keep, and shall procure that its directors and employees shall keep secret and confidential and shall not use or disclose to any other person any information or material of a technical or business nature relating in any manner to the business, products or services of the other party which the first party may receive or obtain in connection with or incidental to performance of the Contract (“Confidential Information”), provided that:
- the first party shall not be prevented from using any general knowledge, experience and skills not treated by the other party as confidential or which do not properly belong to the other party and which the first party may have acquired or developed at any time during the Contract;
- the first party shall not be prevented from using the information or material referred to above to the extent such information or material comes into the public domain otherwise than through the default or negligence of the second party; and
- notwithstanding the above, either party shall have the right to communicate any information concerning the other party to any Government department or body or other authority established by statute or under subordinate legislation, where such information is required by law.
19.1 Neither party shall assign or transfer any of its rights or obligations under a Contract save that the Company may assign to a member of its Group.
20.1 The Company and the Customer acknowledge and agree that these Terms and Conditions or the Contract shall not establish or constitute any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party will have the power to bind the other without the other’s prior written consent.
20.2 Any typographical, clerical or other error in any sales literature, marketing materials, quotation, price list or other document issued by the company or contained on any page of the Company website shall be subject to correction without any liability on the part of the Company. For the avoidance of doubt, the Company brochure and other sales literature or marketing materials (either appearing on the Company website or in printed form) are not incorporated into and do not form part of the Contract.
20.3 The Customer agrees that the Company may refer to the Customer (with relevant description of the Customer’s business) in any of the Company’s marketing materials or on the Company website. The Customer hereby grants the Company a limited licence to use any Customer trade names and trademarks solely in connection with such marketing.
20.4 Except as expressly provided, the parties do not intend any term of these Terms and Conditions or the Contract to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
20.5 The failure or delay of the Company to enforce any part of the these Terms and Conditions or the Contract shall not affect or waive the Company’s rights to enforce it at a later date.
21.1 The Company reserves the right to vary these Terms Conditions as it sees fit from time to time or as a result of changes required by its insurers, new legislation, statutory instruments, Government regulations or licences.
22. Law and Arbitration
22.1 These Terms and Conditions and the Contract is subject to the laws of England.
22.2 These Terms and Conditions and the Contract incorporates the provisions for arbitration if any are available. Any dispute which may arise between the parties concerning these Terms and Conditions and the Contract shall be determined either in accordance with such arbitration procedure, if any, or by the courts of England and the parties hereby submit to the exclusive jurisdiction of that court for such purpose.
23. Other Printed or Standard Conditions
23.1 The Customer acknowledges that the Customer has not relied on and shall not be entitled to rescind the Contract or to claim damages or any other remedy on the basis of any representation, warranty, undertaking or statement which is not set out in these Terms and Conditions or the Contract, including any representation made by or on behalf of the Company in relation to the Service which has induced the Customer to enter into the Contract with the Company.
24.1 Questions, comments and requests regarding these Terms and Conditions and/or the Services should be addressed to: the Company Secretary, at the Company’s registered address.
25. Changes to our terms and conditions
25.1 Any changes we make to our Terms and Conditions in the future will be posted on this page and where appropriate, notified to you in email.
Digital Field Solutions Ltd., March 2016
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