For clarity and ease of reading, MF Software Solutions Ltd (T/A MacFactor) will hereinafter be referred to as The Producer, MFSS, us or we. The commissioning body, contractor, organisation or individual placing the order will be referred to as The Client, Customer, you or your. The “Site” and/or the “Production” shall be the work and services commissioned from the Producer or MFSS by the Client (and shall include the FileMaker database(s) and/or web pages to be made under this Agreement).
The term ‘contractor’ refers to any organisation to whom we sub contract our services.
The term ‘CHP’ (cloud hosting provider) refers to the third party that is hosting your FileMaker solution.
SECTION 1 – BESPOKE DEVELOPMENT
- 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.
- Specification (a) The Production of each stage of the 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.
- 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.
- Approval 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.
- 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).
- 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.
- 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.
- 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:
(a) the use of or inability to use any elements that comprise The Site, FileMaker or browser software or any accompanying written materials and/or
(b) errors derived from erroneous/inaccurate coding/algorithms/calculations and/or
(c) inaccuracies in any of the data transferred into The Site from any third party (however supplied) and/or
(d) corrupted or damaged files that may arise through normal usage and/or
(e) adopting or further developing an already existing Site and/or
(f) adopting or further developing a FileMaker file/site that has been recovered [in direct contravention of the ‘Recovery’ section of ‘FileMaker management best practices’] and/or
(g) sharing development of the Site with The Client and/or The Client’s nominated developers
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 adhere to FileMaker best practices and undertake to run consistency and recovery tests on copies of the site at regular intervals and report any anomalies to the Client.
The Producer will do everything reasonably possible to ensure that The Site conforms to the agreed design when viewed in the latest or stipulated versions of FileMaker Pro, Go or supported browsers [when viewed via WebDirect] as stipulated in the client’s specification. 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.
- 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.
- Payment (a) All Sites are broken down into Stages with the Contract Price for each Stage constituting a range of costs agreed between The Producer and The Client on the acceptance of the written estimate through the issue of a written order (or otherwise in accordance with clause 19).
(b) Payment of the Contract Price for each Stage shall be made by The Client to The Producer as follows:-
(1) Within 28 days of completion of an agreed Stage (to include any increased costs chargeable under Clause 11).
(2) The Site shall be deemed to be completed upon receipt by The Client of written notice of completion from The Producer.
(c) MFSS reserves the right to suspend access to the site in the event of Clause 10b1 not being met.
(d) All fees chargeable are exclusive of VAT which will be charged if applicable.
- 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.
- 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.
- 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).
- 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.
- Legal Construction The interpretation and application of these Terms and Conditions shall be in accordance with English Law.
- 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.
- 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.
- 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.
- 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.
- 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 Stage 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 the final Stage. 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 and server on which those files are hosted via a broadband connection)
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).
- 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.
- GDPR (General Data Protection Regulation) The Client is understood to be both ‘controller’ and ‘processor’ of any and all data stored within The Site and is therefore wholly responsible for complying with the GDPR Act.
It is The Client’s responsibility to notify The Producer of any specific GDPR requirements that should be implemented to The Site.
‘Information Commissioner’s Office | Preparing for the General Data Protection Regulation’
SECTION 2 – HOSTING YOUR FILEMAKER SOLUTION IN THE CLOUD (FIXED-FEE SETUP SERVICE)
- The term ‘CHP’ (Cloud Hosting Provider)
Refers to the third party that is hosting your FileMaker solution.
- What is included in the fixed-fee setup service
The service is limited to a) advising you and b) migrating your existing solution to your chosen CHP and does not include any modifications that may be required to ensure file compatibility by the CHP for online access. Any such modifications will be subject to a separate estimate and cost.
- Server use
This is subject to your CHP’s own Terms & Conditions that you would have agreed to on creating your CHP Account.
- Payment policies
Your CHP’s monthly hosting fees are charged directly to your credit card. Any and all invoices raised by MFSS are subject to 28 day payment terms from invoice date. Any non-payment of a recurring invoice is subject to a £20 plus VAT administration charge. All payments shall be made in UK sterling, and all prices given are exclusive of VAT unless stated otherwise.
- Payment Options
In order to streamline our accounting procedures we ask that all payments of MFSS invoices be made by electronic transfer directly into our Bank Account using the details included on all our invoices.
- Cancellation and refunds Cancellation of your CHP hosting agreement in subject to your CHP’s own Terms & Conditions that you would have agreed to on creating your CHP Account. Any FileMaker Licence software purchases made by the Customer are non refundable in the event of a cancellation.
- Indemnification The Customer agrees that it shall defend, indemnify, save and hold MFSS harmless from any and all demands, liabilities, losses, costs and claims, including legal fees asserted against MFSS, its agents, its customers, officers and employees, that it or they may suffer or incur or which may be made or brought against any of them and which arises or results from any use made by the Customer of the CHP hosting service or any services provided or performed or agreed to be performed or any product sold by the Customer, its agents, employees or assigns. The Customer further agrees to defend, indemnify and hold harmless MFSS against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with your CHP; (2) any material supplied by the Customer which infringes or allegedly infringes the proprietary rights of a third party; (3) copyright infringement; (4) any defective products sold by the Customer via your CHP’s servers and (5) any content on the Customer’s websites hosted via FileMaker WebViewer.
MFSS will not be responsible for any damages your business may suffer. MFSS makes no warranties of any kind, expressed or implied for services we provide. MFSS may, as a part of the services that we offer you, back up your data/website and whilst every reasonable attempt will be made to avoid lost data, in the unlikely event of any corruption or hardware failure MFSS cannot guarantee to be able to replace lost data. MFSS disclaims any warranty of merchantable quality or fitness for a particular purpose insofar as it is legally able to do so. This includes loss of data resulting from delays, non deliveries, wrong delivery, and any and all service interruptions caused by MFSS and its employees.
- Entire terms of service Unless otherwise agreed by means of a written document signed by both you and an authorised representative of MFSS these Terms and Conditions constitute the entire Terms and Conditions between MFSS and the Customer in relation to the CHP hosting setup service and software and accordingly the Customer accepts that MFSS gives no representations or warranties (whether express or implied, statutory or otherwise) save as may be required by law and that there are no agreements collateral hereto than as expressly set or referred to herein.
- Amendment in writing These Terms and Conditions may not be amended or modified by The Customer except by means of a written document signed by both you and an authorised representative of MFSS.
- Relationship of the parties Nothing in these Terms and Conditions shall be construed as creating an agency or employment relationship, partnership or joint venture between the parties.
- No third party beneficiaries
These Terms and Conditions do not provide and shall not be constructed to provide any third parties, with any remedy, claim, cause of action or privilege as against MFSS.
In the event that any provision of these Terms and Conditions shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such un enforceability or invalidity shall not render these Terms and Conditions unenforceable or invalid as a whole. MFSS will amend or replace any such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of MFSS as reflected in the original provision.
- Passwords It is the Customer’s responsibility to keep any and all FileMaker Account passwords and AES FileMaker File Encryption Passwords confidential, and to change these passwords on a regular basis. MFSS is not responsible for any data losses or security issues due to mislaid, stolen or misused passwords. MFSS recommends that you use passwords that contain numbers and symbols in order to prevent unauthorised users from guessing commonly-used choices (for example Customers should avoid using “12345”, “password”, etc.). It is the Customer’s responsibility to ensure that all of its employees or other representatives who are allowed access to any and all hosted FileMaker files maintain the strict confidentiality of passwords at all times.
- Scheduled maintenance MFSS do not actively monitor the client’s CHP instance (server) or the client’s FileMaker files running on your CHP’s instances (servers) and are in no way responsible for its ongoing functionality or for the data and files that the client stores with its CHP. It is the client’s responsibility to request assistance from MFSS or another qualified FBA (FileMaker Business Alliance) member as and when required. All ad-hoc support requests made of MFSS are charged on an on-going basis which are invoiced to the client on an ongoing monthly basis.
- Security This is managed entirely by your CHP. MFSS cannot guarantee to restore data and do not accept liability for the loss of any such data following catastrophic hardware failure of your CHP’s instance(s) (server(s)) on which the client’s data is stored.
- Ownership of data
All data created or stored by you within your FileMaker databases hosted with your CHP during the period for which you subscribe to the service is your property. MFSS shall allow access to such data by only authorised MFSS personnel. MFSS makes no claim of ownership to any Customer content contained within your FileMaker files hosted with your CHP.
- Server ownership This is subject to your CHP’s own Terms & Conditions that you would have agreed to on creating your CHP Account.
- Backup service This is managed entirely by your CHP and is subject to the CHP’s own Terms & Conditions that you would have agreed to on creating your CHP Account.
- Backup liability MFSS shall under no circumstances be liable to the customer for any loss (whether direct or indirect) of revenue, loss of profits or any consequential loss whatsoever from the provision of the Backup Service provided by your CHP.
- Software availability MFSS cannot be held responsible for any losses incurred by you as a result of any hardware or software on which your FileMaker database(s) depend for their operation becoming unavailable for whatever reason.
- GDPR (General Data Protection Regulation) The Client is understood to be both ‘controller’ and ‘processor’ of any and all data stored with your CHP and as such are understood to be wholly responsible for complying with the GDPR Act.
It is The Client’s responsibility to check that the method/service employed to host/serve data stored with your CHP meets the security requirements imposed by GDPR.
Furthermore, The Client is also responsible for monitoring the relevant control panels made available by the CHP and acting on any notifications received from your CHP with regards security patches and possible security breaches.