Terms
By you or someone on your behalf emailing us at @switch.je expressly confirming that you accept a switch digital proposal form that we have provided you with (the proposal) and/or by using any switch digital systems including, but not limited to, the switch sitebuilder website content management system (the product), the individual or entity using the services of visualeye limited t/a switch digital (switch) and/or licensing the product (the client) consents to be bound by these terms.
1. Definitions
Agency means any appointed company or individual responsible for the delivery of the Website and / or any other services of Switch on behalf of the Client.
Monthly Fee means the fee payable in accordance with the Service Level Agreement (as set out in clause 12.1) during the months to which the Service Level Agreement relates.
Services means those services agreed to be provided by Switch to the Client in accordance with the Proposal which might include, but are not limited to, any of the following:
(a) completion of the tasks necessary to set up the Website using the Product;
(b) customised development of the Product to produce the Website which includes the functionality and integration specified by the Client in the Proposal;
(c) hosting of the Website; and
(d) any other services set out in the Proposal
Website means the website of the Client built by Switch using the Product in accordance with a Proposal.
2. Services
Switch shall:
(a) provide the Services with due care and skill, promptly and efficiently and shall endeavour to complete the individual tasks listed in the Proposal within the number of days set out therein in respect of such tasks and shall, at any time it has reasonable grounds to believe that the number of days set out in the Proposal in respect of each individual task will be exceeded, inform the Client at the earliest opportunity; and
(b) use suitably skilled and appropriately experienced personnel to carry out the Services.
3. License
Switch grants the Client a non-exclusive, non-transferable single website, single installation license (the Licence) to use the Product for personal or business purposes in relation to the Website in so far as that Website has been built by Switch using the Product.
4. Payment & fees
(a) A non-refundable deposit of 50% of the total sum set out in the Proposal will be invoiced to the Client or their Agency upon acceptance of the Proposal and no work will begin until payment has been received.
(b) Monthly invoices will be provided until the project, as set out in the Proposal, is completed. The initial depossit will count as credit towards any outstanding balance.
(c) The Client hereby accepts and acknowledges that any additional requests and alterations over and above those set out in the Proposal will be billed for separately.
(d) The Monthly License Fee is payable by the Client to Switch for the use of the Product as specified herein and is payable monthly in advance by standing order and is subject to annual review on each anniversary of the signing of the Proosal whereby the fee may be increased in line with the increase in the Jersey Retail Price Index in the previous 12 months as determined by the Government of the States of Jersey at the time of such review.
(e) All work, unless otherwise agreed in the Proposal, is time-tracked and billed monthly at our standard rate.
5. Undertakings
The Client undertakes to:
(a) ensure that, prior to use of the Product by it, its employees or agents, all such parties are notified of the terms of the License and these terms of service generally.
(b) include Switch’s copyright notice on all and any copies of the Product, including any partial copies of the Product or its derivative works (including, without limitation, the Website);
(c) hold all specifications, data (including object and source codes), product listings and all other information relating to the Product confidential and not at any time, during the License or after its expiry, disclose the same, whether directly or indirectly, to any third party without the express written permission of Switch.
6. Restrictions
Except as otherwise expressly permitted in these terms of service, or in another agreement to which the Client is a party including any Proposal, the Client shall not:
(a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product or Website (except to the extent that applicable laws specifically prohibit such restrictions or the source code is already available);
(b) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product or Website or Product or Website source code;
(c) publish any results of benchmark tests run on the Product or Website to a third party without Switch’s express written permission;
(d) demonstrate the Product or Website to any third party without Switch’s express written permission;
(e) modify, delete or obscure any copyright notices or labels on any page of the Website;
(f) modify the Website to function in more than one instance or location (URL, domain, sub domain, etc.) from a single set of source program files unless each location is separately licensed;
(g) brand the Product or the Website as its own creation or declare its own copyright over the Website without Switch’s express written permission;
(h) imply that Switch endorses its own work or use any titles, trademarks, labels, or logos found in the Product or the Website (which is not part of its own business) in its own titles, products names, service names, or domain names; or
(i) use the Website to tarnish Switch’s reputation or integrity or use it in regards to condoning or promoting: pornography, terrorism, religious or racial hatred, slandering an individual or organisation, sending unsolicited spam email, promoting or providing pirated software, any illegal or unethical activity, or anything Switch, acting reasonably, deems as inappropriate.
7. Commencement of agreement and license
(a) The terms of service as set out herein together with the Proposal signed by the Client constitute Switch’s agreement with the Client (the Agreement) which shall, save for the License, commence on the date that the Client signs a Proposal unless otherwise expressly agreed between Switch and the Client and the License granted hereunder shall be effective from the date on which services referred to in sub paragraphs (a) and (b) of the definition of Services above have been completed in their entirety.
(b) The License granted hereunder shall remain in effect until terminated (i) in accordance with clause 8 below or (ii) without prejudice to clause 8, immediately at Switch’s discretion if the Client fails to comply with or breaches any of the restrictions in clause 6.
8. Termination
(a) Without prejudice to any other rights, either party may terminate the Agreement (which, for the avoidance of doubt, includes any License granted hereunder) by giving the other party notice in writing if that other party breaches any of these terms of service or any terms of a Proposal and, if the breach is capable of remedy, fails to remedy such breach within 14 days of receipt of a written notice from the terminating party, providing details of the breach and requiring its remedy.
(b) Either party may terminate any License granted hereunder upon 30 days written notice.
(c) Upon termination of the Agreement by Switch in accordance with clause 8(a), Switch will be entitled to retain a pro-rata proportion of the monies received from the Client, calculated on the basis of work done to the date of termination.
(d) Upon termination of this Agreement or the Licence granted hereunder Switch will take all reasonable steps to assist the Client with the migration or transfer of the content of the Website as directed by the Client including but not limited to migration or transfer of the data to an alternative website content management system.
(e) In the event that Switch ceases trading, the Client will receive a full copy of the Product and all related source code.
9. Proprietary rights
Title, ownership rights and intellectual property rights in the Product shall remain with Switch. The Client acknowledges such ownership and intellectual property rights and will not take any action to jeopardise, limit or interfere in any manner with Switch’s ownership of or rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Product is the property of the applicable content owner and is protected by applicable law. The License granted hereunder gives the Client no rights to such content save to the extent such content is the property of the Client.
10. Disclaimer
(a) Without prejudice to clause 11, the entire risk as to the content of the Website is borne by the Client. Should the Website prove defective in any respect due to the actions of the Client, the Client and not Switch or its suppliers or resellers assumes the entire cost of any service and repair. This disclaimer constitutes an essential part of the Agreement. No use of the Website or Product is authorised hereunder except under this disclaimer.
(b) Without prejudice to clause 11, Switch shall not be responsible or liable to any person including, but not limited to any Client, for the use, functionality, or any disruption caused by any third party software or product in relation to the Website or otherwise and Switch disclaims any express or implied warranty of fitness for any such software or product.
11. Limitation of liability
To the maximum extent permitted by applicable law, in no event will Switch or its suppliers or resellers be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the Website or the Product including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, Switch’s entire liability under any provision of the Agreement shall not exceed in the aggregate the sum of the fees the Client has paid Switch under the Agreement and fees for the Services thereunder and/or support of the Website or Product received by the Client under any separate support agreement (if any), with the exception of death or personal injury caused by the negligence of Switch to the extent applicable law prohibits the limitation of damages in such cases. Switch is not responsible for any liability arising out of content provided by the Client or a third party that is accessed on or through the Website and/or any material linked through such content.
12.1 Service Level Agreement (SLA)
(a) In exchange for the Monthly Fee, Switch guarantees, in the case of the Website being hosted by it, a service uptime for the Website (the Service Uptime Guarantee) of 99.9% of the time in any calendar year, excluding scheduled maintenance.
(b) If downtime outside of the Service Uptime Guarantee occurs due to the actions of Switch, the Client shall be entitled to withhold such proportion of the Monthly License Fee next due (calculated as the total subscription payment made for the given downtime).
(c) If downtime occurs due to the actions of the Client, time spent remedying errors will not be counted towards downtime, and no penalties will be payable by Switch.
(d) Should downtime occur due to the actions of the Client, the Client will be liable for charges if they require support from Switch.
(e) This Service Uptime Guarantee excludes downtime attributable to factors outside Switch‘s direct control. In these circumstances, Switch will endeavour to restore service without delay.
12.2 Product support
(a) Product Support means support that is required to enable the Client to operate the Website.
(b) The Client will be provided with training as described in the Proposal.
(c) Additional in house training of staff is the responsibility of the Client.
(d) The Client should first refer to (b) and (c) as listed above before contacting Switch for Product Support.
(e) Unless agreed in an additional support agreement, Switch shall provide the Client with Product support by email and telephone only during office hours (9am – 5pm GMT, Monday to Friday) and will respond within 24 hours of receipt of a support request.
(f) Product Support is limited to technical matters relating to the Website and Product only.
12.3 Impaired service
(a) Impaired Service means a partial or specific function of the Website being unavailable.
(b) Unless agreed in an additional support agreement, Switch shall provide the Client with technical support for Impaired Service by email and telephone only during office hours (9am – 5pm GMT, Monday to Friday) and will respond within 24 hours of receipt of a support request.
(c) Resolution will be carried out as quickly as possible ensuring minimal loss of service. The Client will be notified immediately before repairs commence whenever possible, and on completion of repairs.
12.4 Critical faults
(a) Critical Fault means the entire Website being unavailable.
(b) Switch will provide 24/7 telephone support with immediate action. The Client will be notified immediately after repairs are complete.
(c) For Critical Fault escalation, the persons as set out in the Proposal should be contacted, in the order set out in the Proposal.
12.5 Scheduled maintenance
Scheduled downtime will be notified to the Client no less than five days before the scheduled downtime, except in the case where critical updates are required, which will be applied at Switch’s discretion.
13. Confidential information
(a) Switch and the Client each propose to disclose certain confidential and proprietary information (the Confidential Information) to the other. Confidential Information shall include all data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, and other information disclosed or submitted orally, in writing, or by any other media, by Switch or the Client (referred to below as the Disclosing Party) to the other (referred to below as the Recipient).
(b) The Recipient agrees that the Confidential Information is to be considered confidential and proprietary to the Disclosing Party and the Recipient shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with the Disclosing Party, and shall disclose it only to its directors or employees with a specific need to know. The Recipient will not disclose, publish or otherwise reveal any of the Confidential Information received from the Disclosing Party to any other party whatsoever without the Disclosing Party’s prior written consent.
(c) The provisions of subparagraph (b) above shall not apply to information already in the public domain or information which comes into the public domain other than as a result of a breach of these terms or which the Recipient is required to disclose pursuant to any statute, regulation or order of any court or regulatory authority.
14. Jurisdiction
The Agreement shall be governed by and construed in accordance with the laws of Jersey, and each of the parties submits to the exclusive jurisdiction of the courts of Jersey.
15. Data protection
For the purposes of this clause:
(a) the Law means the Data Protection (Jersey) Law 2018 and any subsequent amendments thereto or re-enactments thereof; and
(b) the following terms shall have the meanings ascribed to them within the Law: Data Controller, Data Processor, Data Subject and Personal Data.
(c) The parties acknowledge that:
(i) the Agreement will require the processing of Personal Data by Switch on behalf of the Client;
(ii) the Client alone shall determine the purposes for which and the manner in which Personal Data will be processed by Switch on behalf of the Client under the Agreement; and
(iii) the Client shall be the Data Controller and Switch shall be the Data Processor in respect of all such Personal Data.
(d) Where, in connection with the Agreement, Switch processes Personal Data on behalf of the Client, Switch shall:
(i) process such Personal Data only on the written instructions of the Client and to the extent reasonably necessary for the performance by Switch of its obligations under the Agreement;
(ii) not disclose such Personal Data to any person except as required or permitted by the Agreement or with the Client’s written consent;
(iii) implement appropriate technical and organisational measures to protect such Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and against all other unlawful forms of processing.
(e) Switch agrees that it will comply with any applicable legislation, regulation or order relating to the obtaining, processing and storing of Personal Data to which Switch has access pursuant to the Agreement and hereby indemnifies the Client in respect of any loss, damage or expenses suffered by the Client (including those arising from claims brought or fines imposed by third parties) as a result of the Licensor’s breach of this sub-clause.
(f) In relation to any Personal Data to which Switch has access pursuant to the Agreement, Switch shall, at its own cost, co-operate fully with the Client to enable the Client to adequately discharge its responsibility as a Data Controller under the Law (including, without limitation, assisting the Client with Data Subject access requests).
(g) The Client reserves the right to audit Switch’s compliance with its obligations under this clause and Switch will provide all information and access to enable it to do so.
16. Miscellaneous
(a) Neither party may assign, transfer, charge or deal in any manner with the Agreement or any of its rights under the same, subcontract or delegate any or all of its obligations under the Agreement without the prior written consent of the other, which shall not be unreasonably withheld.
(b) Any failure by either party to enforce at any time any term or condition of the Agreement shall not be considered a waiver of that party’s rights thereafter to enforce each and every term and condition of the Agreement. Any waiver must be in writing, clearly stated to be a waiver and signed on behalf of the party giving the waiver.
(c) Notices served pursuant to the Agreement shall be in writing and shall be sent to the registered office of the recipient party at the time. Any such notice may be delivered by hand or by prepaid special or recorded delivery postal service and shall be deemed received immediately if delivered by hand, and at the time of signature evidencing receipt if delivered by special or recorded delivery postal service.
(d) The following clauses of these terms of service shall survive termination of the Agreement: clauses 8 (d), 9, 10, 11, 13, 14, 15 and this clause 16(d).