terms of business

1. Relationship of the parties

​We understand, and you accept, that this agreement does not create any kind of partnership, joint venture, or employment relationship between the parties. We will remain at all times during the Project independent and non-exclusive contractors and responsible for our own tax arrangements.

2. Confidentiality

Each party shall treat any information or work provided to the other in connection with the Project as confidential unless otherwise notified by the disclosing party, or as otherwise necessary to give effect to the intentions of this agreement.

3. Legal

We’ll carry out our work in accordance with good industry practice and at the standard expected from a suitably qualified person with relevant experience. That said, we can’t guarantee that our work will be error-free and so we can’t be liable to you or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if you’ve advised us of them. Your liability to us will also be limited to the amount of fees payable under this contract and you won’t be liable to us or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if we’ve advised you of them. Finally, if any provision of this contract shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this contract and shall not affect the validity and enforceability of any remaining provisions.

The work shall be our own original work unless and to the extent otherwise stated in the Project Specification, or as otherwise required by You. We accept full liability for any unauthorised use of third-party materials (unless specifically provided by the client, see terms below under ‘Client Intellectual Property’) in the case of an intellectual property rights dispute.

Except as set out above, we make no further warranty in respect of the work, its contents and our services, whether express or implied (including as to suitability or fitness for any particular purpose).

4. Client Intellectual Property

We accept that in providing us with any client or third party materials for the purposes of the Project, including trade marks, logos and databases, the client is not granting us any rights in such works except for the purposes of the Project itself and for honest descriptive references in our portfolio of works, including (subject to any reasonable requirements of the client) for marketing and website purposes. You warrant that You are so authorised to use or permit the use of any client or third-party material provided to us for such purposes, without infringing the rights of any third party, and we accept no liability for any use of such materials for the agreed purposes of the Project.

5. Force majeure

We shall not be liable to You for any failure, delay or omission to delivery of the work and/or our services under this agreement arising from a cause beyond our reasonable control.

6. Payments

Unless expressly requested by You, and authorised by our Managing Director, we accept payment only by bank transfer. These must be made on or before 30 calendar days after the invoice was sent, unless otherwise agreed in writing.

Payments for monthly services (including, but not limited to, website hosting, SEO support, social media management or a retainer) are taken via a direct debit that must be set up before the start of the project. Direct debit payments are collected on or around the 1st calendar day of the month.

7. Late payments

In the event an invoice is not paid on time, to the maximum extent allowable by law, We will charge a late payment fee of 2% per week on any overdue and unpaid balance not in dispute. Our acceptance of such service charges does not waive its rights to any remedies for Your breach of this Agreement. All payment obligations are non-cancelable and fees paid are non-refundable. Late payment fees, billing cycles or any payment term will not be valid for pro-bono or volunteer work, and therefore void of any financial commitment.

8. Dispute resolution

Each party agrees that it shall first attempt to resolve any dispute privately. However, the failure of either party to enforce or assert any right under this agreement for any period of time shall not be construed as a waiver of such rights. This agreement is to be governed under the laws of England and Wales, and the parties submit exclusively to the jurisdiction of the English courts.

9. Hosting

We offer a web hosting service to host the websites we have built for You. This is recommended in order to ensure ongoing quality of service and is a mandatory requirement for websites incorporating a content management system (CMS) or e-commerce system. Although the standard of our hosting packages are high, we are only able to guarantee a 99.9% uptime. We do not ever carry out any unscheduled hosting maintenance, and any sort of hosting maintenance will most likely not affect Your website. In the event that hosting maintenance must be carried out that will affect your website, the client will be informed no later than 7 calendar days before this must be completed. Maintenance will be carried out between 12:00 - 03:00 to ensure minimal downtime to the Your website (or at another agreed time, expressly requested in writing by the client).

We assure that to the best of abilities, website hosting packages will be free of errors, vulnerabilities and viruses. In the event of a material breach (due to a virus or malware) Purple Banana Creative Design will address, identify and fix any issues related to that breach free of charge.

We make no warranties or representations to any issues relating to Your own hosting packages (should they use an alternative provider), nor do we make any warranties or representations with regard to Your domain, DNS provider or any changes made by You.

10. Additional items

Unless otherwise specified, costs quoted exclude the following where relevant: print; commissioned illustration, photography or stock images; image retouching; image scanning; copywriting; postage, in-house colour print-outs and travel exceeding that allocated within the ‘standard disbursement charge’ above; web hosting (it will often be a prerequisite to host on one of our competitively priced servers, particularly if a website incorporates an e-commerce or content management system); couriers; other third-party costs incurred (such as merchant bank and payment gateway charges) etc.

It is assumed that unless otherwise stated, most copy and images will be provided by the client, although we will contribute to this (through headlines, and top-line messages etc) as a natural part of the creative process. We are able to provide a full copywriting service or copy advice, as well as illustration and photography at an additional cost if required. Purchased royalty-free stock images from our standard sources (if required) will generally be priced at between £25 and £45 per image (dependent on source, image size and quality) to cover sourcing time and image costs. Your approval is required before any stock imagery is purchased on behalf of the client.

11. Amendments

Costs provided allow for a maximum of three sets of amendments after which time additional charges may become payable, although You would be made aware of this in advance.

12. Acceptance and Project Finalisation

As per our proposals, before both the development and handover stages we will ask You to provide written or oral feedback to us. Upon receipt of each round of feedback, we will carry out a maximum of three stages (a stage refers to information provided in one oral or written conversation) of amendments free of charge. Any further amendments will be payable (as per our ‘Amendments’ clause) unless otherwise agreed in writing by Us.

Upon completion of the amendments and the User Acceptance Testing (UAT) phase, we will ask for written approval by You expressly stating satisfaction of the finished design and / or project. Once this has been given, any further changes or amendments will be payable.

13. Termination of Project

As per the ‘Dispute’ clause, we will always try to resolve any disputes or issues privately before resorting to a termination of the project. 

You shall not unreasonably withhold acceptance of, or payment for, the project. If, prior to completion of the project, You observe any non-conformance with the design plan, We must be promptly notified, allowing for necessary corrections. Rejection of the completed project prior to payment or cancellation during its execution will result in forfeiture of the deposit and the possible billing for all additional labour or expenses to date. All elements of the project must then be returned to Us if payment is withheld. Any usage by You of those design elements will result in appropriate legal action. You shall bear all costs, expenses, and reasonable legal fees in any action brought to recover payment under this contract or in which We may become a party by reason of this contract. If the inclusion of a signed non-disclosure agreement (NDA) is required for the project and is subsequent to breach by Us, the above-mentioned non-conformance shall be void and You are entitled to delivery of assets paid for to the date of the breach..

14. Termination of Monthly Services (including website hosting)

In the event that You wish to terminate a monthly service provided by Us (including, but not limited to, website hosting, SEO support, social media management or a retainer), the client must communicate this in writing (to the email address hello@purple-banana.com, or your account manager’s email) no later than 30 calendar days notice.

In the event that/of:

1. either party breaches a material provision (or a series of minor breaches) under this Agreement or;
2. ii) either party becomes insolvent;

The non-defaulting Party may terminate this Agreement immediately and require the defaulting Party to indemnify the non- defaulting Party against all reasonable damages.

15. Termination of hosting services

Our hosting service is provided by a third-party service (via Amazon Web Services), and paid via Us. In the event We become insolvent, We will transfer Your hosting package to You to manage.

In the event you wish to cancel your hosting service your website will be removed and cease functioning. Should you wish to transfer your website to an alternative hosting provider, we will provide you with the root HTML, CSS and Javascript code for your website and a .csv file containing the information from your CMS system.

16. Website Warranties

All websites designed and developed by Us come with a 3 month (90 day) warranty from the date of handover (after development). Any bugs that are brought to our attention during this period will be fixed without charge.

Our website warranty covers any defects, bugs or other service issues resulting from the development process. A ‘bug’ is considered any website feature which no longer functions as it did during the User Acceptance Testing (UAT) phase. A ‘defect’ is considered a significant issue which impedes the main functionality of your website.

 Our warranty does not cover issues caused by the following:

• Changes made to the website via yourself or any other third party;
• Issues caused directly by your web hosting provider;
• Issues caused directly by your domain name administrator;
• Issues caused by transferring your web hosting service to a new provider;
• Issues caused by your email service or provider;
• Issues caused by third party plugins or modules;
• Issues caused by any changes requested by you after the handover (after development has finished).
• Issues caused by any changes requested by you after the User Acceptance Testing phase.
  
  

17. Device Support

Your website will be tested to work on the following devices. Any bugs relating to normal operation on any of the browsers listed are covered under this warranty.

Browsers on desktop and mobile devices:

• Apple Safari 10 +
• Google Chrome 42 +
• Firefox 45 +
• Internet Explorer 11+

Exceptions regarding Microsoft Internet Explorer and the Microsoft Edge Browser

While we will test on these browsers to ensure core functionality is not impeded, due to the non-standard systems employed by these browsers we cannot guarantee all design and features will function as expected. However, if Internet Explorer or Edge are important to your business or clients we will negotiate, at our discretion, to include these browsers in this warranty. This may require additional development time and resources.

18. Mobile devices

We employ responsive design practices for all our websites – this means the elements on your website will reshuffle to fit the majority of smartphones & tablet devices.

Please note: While we make every attempt to support all major device manufacturers some devices may use non-standard web browsers which may render or display certain elements differently. If you have a particular device which is crucial to your business or clients please discuss this with us. We may, at our discretion, extend the warranty to cover a particular device which may require additional testing and development resources.

19. Project Intellectual Property

We hereby assign all rights and titles in the work with full title guarantee to the client, effective upon payment of all monies owed to us in connection with the work (including interest). Any and all moral rights in the work are hereby asserted by ourselves as authors, and shall not be waived except to the extent necessary to give effect to any other term of this agreement.

20. Design Credit

A link to Purple Banana will appear in either small type or by a small graphic at the bottom of Your website. If a graphic is used, it will be designed to fit in with the overall site design. If You request that the design credit be removed, this must be made in writing prior to the contract being signed. You also agree that the website developed for the Client may be presented in Our portfolio.

21. Variation

No variation to these terms, including the Specification and Term, shall be effective unless agreed to, and accepted in writing by both parties. This may include by exchange of emails to the notified email addresses indicated in this agreement.

22. Small Print

Neither party can transfer this contract to anyone else without the other’s permission. We both agree that we’ll adhere to all relevant laws and regulations in relation to our activities under this contract and not cause the other to breach any relevant laws or regulations. This contract stays in place and need not be renewed. If for some reason one part of this contract becomes invalid or unenforceable, the remaining parts of it remain in place.

Although the language is simple, the intentions are serious and this contract is a legal document under the exclusive jurisdiction of English and Welsh courts.