Terms & Conditions

Last revised: 4th January 2021

1. Definitions and Interpretation

1.1. The following words and phrases shall have the following meanings:

1.1.1. "Guava", "We" "Our" "Us" Guava Design Ltd, provider of products and services to a Client

1.1.2. "Client", "You" "Your" any company or individual instructing Guava to work on a Project or provide a Service

1.1.3. "Project" any work agreed to by the Client, completed by Guava

1.1.4. "Website" specifically refers to a website design or development Project that is designed, programmed or overseen by Guava

1.1.5. "Service" any recurring product or service provided by Guava to the Client

1.1.6. "Hosting", "Website Hosting", "Email Hosting" relates to either website and / or email Hosting Services provided by Guava to the Client

1.1.7. "Quotation", "Quote", "Project Quotation" the scope of work estimated by Guava required to complete a Project or Website or provide a Service to the Client

1.1.8. "Intellectual Property Rights" patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

1.1.9. "Content" the text, images and videos supplied by the Client as part of a Project

1.2. Clause headings shall not affect the interpretation of this deed.

1.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.5. Unless otherwise specified, a reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts.

1.6. A reference to a statute or statutory provision shall include any subordinate legislation made from time to time under that statute or statutory provision.

1.7. The following terms and conditions apply to all products and services provided by Guava to the Client.

1.8. Guava reserves the right to amend these terms and conditions at any time and will publish the current version of these terms and conditions on our website guava.uk/terms-conditions (or guava.uk/terms-conditions from Q2 2020).

1.9. Guava shall provide confirmation, throughout the course of an ongoing Project, should there be a change to the terms and conditions

2. Acceptance

2.1. It is not necessary for any Client to have signed an acceptance of these terms and conditions for them to apply. If a Client accepts a Quote then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full.

2.2. Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.

2.3. Any continuation of a project following an amendment or variation to the terms and conditions shall be evidence of your continued acceptance of them.

3. Charges

3.1. Charges for services to be provided by Guava are defined in the Project Quotation that the Client will be sent via e-mail. Quotations are valid for a period of 30 days, from the date Guava sent the email with the quotation to the Client. Guava reserves the right to alter or decline to provide a Quotation after expiry of the 30 days. Any new amended or resent Quotation shall supersede all others previously sent.

3.2. Unless agreed otherwise with the Client, all website design services require payment in accordance with the following:

3.2.1 For projects of an estimated value of greater than £1,500.00+VAT :

3.2.1.2 twenty five (25) percent of the Project Quotation total Prior to commencement of work

3.2.1.3 fifty (50) percent of the Project Quotation total after the development stage,

3.2.1.4 the outstanding balance upon completion of the work, prior to upload to the server or release of materials.

3.2.2 For Projects of an estimated value of less than £1,500.00+VAT:

3.2.2.1 an advance payment of fifty (50) percent prior to commencement of work

3.2.2.2 the outstanding balance upon completion of the work, prior to upload to the server or release of materials.

3.3. Unless otherwise agreed in writing payment for services is due bank transfer. Bank details will be detailed on invoices sent by Guava.

3.4. Payment of default interest

3.4.1. if the Client does not pay any sum it is obliged to pay under the Project Quotation when it is due, the Client shall pay interest under this clause on that unpaid amount from time to time outstanding for the period beginning on its due date and ending on the date Guava receives it both before and after judgment. Interest shall be charged at the rate of 6% above the base rate of Barclays Bank PLC from time to time.

4. Client review

4.1. Guava will provide the Client with an opportunity to review the appearance and content of the website during the design phase and once the overall website development is completed. At the completion of the Project, such materials will be deemed to be accepted and approved unless the Client notifies Guava otherwise within ten (10) days of the date the materials are made available to the Client.

4.2. Risk of loss or damage of any kind to the Website shall pass to the Client after acceptance of the appearance and content of the Website following completion of the Project

4.3. The Client acknowledges that they will have sixty (60) days from the date the materials are made available to the Client to thoroughly test the functionality of the Website, after which Guava reserves the right to charge the Client to fix any errors or make any changes.

4.4. Following completion of the Project, the Client shall be responsible for editing and updating the Website. Guava shall have no responsibility for the same unless specifically instructed (and having specifically accepted the instruction in writing). The Client accepts that Guava shall levy such additional charges for the further instruction as it shall deem appropriate at that time.

5. Turnaround time and content control

5.1. Guava will install and publicly post or supply the Client's website by the date specified in the Project Quotation, or at date agreed with Client upon Guava receiving the balance of any outstanding payment due for the Project. This shall not delay the date for receipt of the outstanding balance by Guava.

5.2. In return, the Client agrees to delegate a single individual as a primary contact to aid Guava with progressing the commission in a satisfactory and expedient manner. The Client acknowledges that if they wish to request a specific completion date this date must be agreed and formally accepted in writing by Guava.

5.3. During the project, Guava will require the Client to provide website content; text, images, illustrations, logos, videos and sound files.

6. Content provided by the Client

6.1. Guava must ensure that scheduled work is carried out at the agreed time. On occasions We may have to reject offers for other Projects and enquiries to ensure that your Project is completed at the time arranged.

6.2. Guava requires Content not less than seven (7) days prior to work commencing. The media form for the content to be provided will be notified by Guava to You at the appropriate time. On any occasion where progress cannot be made with a Project because We have not been given the required information by the Client in the agreed time frame, and are delayed as result, Guava reserves the right to impose a charge of up to £1,500.00+VAT, based upon the estimated loss of business suffered by Guava, being a week of time Guava has put aside for the Project and other work that has been turned down as a result.

6.3. If You agree to provide Guava with the required information and subsequently fail to do so at least seven (7) days prior of Project commencement Guava reserves the right to close the Project and the balance remaining becomes payable immediately. Simply put, all the above condition says is do not give Guava the go ahead to start until you (the Client) are ready to do so.

6.4. Where Guava has undertaken the work in accordance with the Project but publication is delayed due to insufficient or incomplete content being provided by the Client, Guava reserves the right to invoice the Client for the outstanding Project balance immediately. The Client agrees to pay this balance by the invoice due date and acknowledges that work on the Project will resume once the content has been correctly provided, at a time to be determined by Guava's schedule of work and resources. Additional cost may also be levied.

6.5. NOTE: Text content should be delivered as a Microsoft Word, email (or similar) document with the pages in the supplied document representing the content of the relevant pages on your website. These pages should have the same titles as the agreed website pages. Contact Guava if you need clarification on this.

6.6. Using our content management system or similar open source content management system provided by Guava you are able to keep your content up to date yourself.

7. Payment

7.1. Invoices will be provided by Guava upon completion but before publishing the Project. Invoices are normally sent via email; however, the Client can request to receive hard copy invoices sent via standard postal services. Invoices are due upon receipt. Accounts that remain unpaid thirty (30) days after the date of the invoice will be assessed a service charge in the amount of the higher of one and one-half percent (1.5%) or £30.00+VAT per month of the total amount due.

7.2. if the Client does not pay any sum it is obliged to pay under the Project Quotation when it is due, the Client shall pay interest under this clause on that unpaid amount from time to time outstanding for the period beginning on its due date and ending on the date Guava receives it both before and after judgment. Interest shall be charged at the rate of 6% above the base rate of Barclays Bank PLC from time to time.

7.3. Payments shall only be made electronically via BACS, PayPal or using an online payment facility provided by Stripe.com. Cheques are no longer accepted unless Guava has agreed that the Client can pay using this method. Please reference your account number or invoice number as the payment reference.

8. Default

8.1. Accounts unpaid thirty (30) days after the date of invoice will be considered in default. If the Client in default maintains any information or files on Guava's Hosting, Guava will, at its discretion, remove all such material from its Website or Email Hosting. Guava is not responsible for any loss of data incurred or any other loss or costs suffered by the Client due to the removal of the service. Removal of such material does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client's account. Cheques returned due to insufficient funds will be subject to a return charge of £25.00 and the Client's account will immediately be considered to be in default until full payment is received. Clients with accounts in default agree to pay Guava reasonable expenses, including legal fees and costs for collection by third-party agencies, incurred by Guava in enforcing these Terms and Conditions. Guava reserves the right to charge annual statutory interest (charged daily) according to the "late commercial payments: charging interest and debt recovery" guidance on gov.uk for accounts in default.

9. Additional expenses

9.1. The Client agrees to reimburse Guava for any additional expenses necessary for the completion of the work. Examples would be purchase of "web" or "desktop" fonts, stock photography, etc.

10. Website browsing software

10.1. Websites are designed to work with the most popular current browsers (e.g. Firefox, Internet Explorer 11+, Edge, Safari, Google Chrome, etc.). Client agrees that Guava cannot guarantee correct functionality with all browser software across different operating systems. Client accepts that experiences in older browser software will vary for end users who may be presented with a significantly simplified website design and layout. Guava shall not be responsible for any loss of functionality, look or feel of the Website, and shall have no responsibility to third parties.

10.2. Guava does not accept responsibility for web pages which do not display acceptably in new versions of browsers released after the website has been designed and handed over to the Client. As such, Guava reserves the right to Quote for any work involved in changing the website design or website code for it to work with updated browser software.

11. Termination

11.1. Termination of services by the Client must be requested in a written notice and will be effective on receipt of such notice. Telephone requests for termination of services will not be accepted until confirmed in writing. The Client will be invoiced for design work completed, and any expenses incurred to the date of first notice of cancellation for payment in full within thirty (30) days.

11.2. For the avoidance of doubt, email and fax does not constitute written notice for the purpose of this clause 11.

12. Indemnity

12.1. All Guava services may be used for lawful purposes only. You agree to indemnify and hold Guava harmless from any claims resulting from your use of our service that damages you or any other party.

13. Intellectual property rights

13.1. All Intellectual Property Rights in the Website (including in the content of the Site and the Site Software) arising in connection with this agreement shall be the property of Guava, and Guava hereby grants the Client a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Website.

13.2. The Client shall indemnify Guava against all damages, losses and expenses arising as a result of any action or claim that the Website or materials used therein infringe the Intellectual Property Rights of a third party.

13.3. Where requested to do so, Guava shall update the Website with content provided from time to time by the Client. The Client shall ensure that the content does not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).

13.4. Guava shall grant the Client access to the Server if requested in order to update information held on the Website. Guava reserve the right to only accept network connections to the Server from static IP addresses if the Client wishes to connect to the Server using FTP software

13.5. The Client acknowledges that Guava has no control over any content placed on the Site by third party users and does not purport to monitor the content of the Website. Guava reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Content. Guava shall notify the Client promptly if it becomes aware of any allegation that any content on the Website may be Inappropriate Content.

13.6. The Client shall indemnify Guava against all damages, losses and expenses arising as a result of any action or claim that the content constitutes Inappropriate Content.

13.7. The indemnities in this clause 13 are subject to the following conditions:

(a) the indemnified party promptly notifies the indemnifier in writing of the claim;

(b) the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;

(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and

(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.

14. Content delivery

14.1. Unless otherwise specified in the Project Quotation, any text shall be provided by the Client in electronic format (ASCII text files delivered on USB flash drive or CD-ROM or DVD-ROM or via e-mail or FTP) and all photographs and other graphics will be provided physically in high quality print suitable for scanning or electronically in .gif, .jpeg, .png, .pdf, .eps, .ai, .psd or .tiff format.

14.2. The Client warrants that they have correct legal permission and or licenses to use the supplied content. Guava accepts no responsibility for infringement of copyright relating to content supplied by the Client for any aspect of a project or service and the Client shall indemnify Guava against all costs damages and losses incurred as a result.

14.3. Although every reasonable attempt shall be made by Guava to return to the Client any images or printed material provided for use in creation of the Client's website, such return cannot be guaranteed.

15. Design credit

15.1. Guava reserves the right to place a link to Guava in either small type or by a small graphic at the bottom of the Client's website. If a graphic is used, it will be designed to fit in with the overall site design.

15.2. If a client requests that the design credit be removed, Guava reserve the right to charge a nominal fee of 10% of the total development charges. When total development charges are less than £5,000.00+VAT, a fixed fee of £500.00+VAT will be applied.

15.3. The Client also agrees that the website developed for the Client may be presented in Guava's portfolio and must notify Guava in writing 7 days before publication of the Project if they would prefer for this not to happen.

16. Access requirements

16.1. If the Client's website is to be installed on a third-party server, Guava must be, and the Client shall procure that Guava is granted temporary read/write access to the Client's storage directories which must be accessible via FTP or SSH.

16.2. Depending on the specific nature of the Project, other resources might also need to be configured on the server.

17. Post-placement alterations

17.1. Guava does not accept responsibility for any alterations to the Client's Website once completed, which are caused by third parties. Such alterations include, but are not limited to additions, modifications, deletions or software updates / upgrades.

17.2. If the Client requires alterations to a published Website Guava reserves the right to provide a Quotation for the additional work if the alterations are deemed to be outside the agreed scope of works outlined in the initial Project Quotation.

18. Domain names

18.1. Guava may purchase domain names on behalf of the Client. Guava will ensure that the domain name is legally registered to and owned by the Client with the relevant governing body (for example Nominet). The Client must inform Guava prior to registration regarding to whom the legal registrant of the domain name shall be including their address.

18.1.1. Guava may also require proof of identity from the Client which we will be required to store a digital copy of for the duration of your domain name registration with Guava.

18.1.2. During the purchase of a domain name, should Guava be unable to verify domain registrant details (such as name and address) it will be the responsibility of the Client to provide sufficient evidence to support the registration within 30 days (such as photo identification such as passport or driving license for personal domain registration, a copy of your company registration document or a copy of a recent bank statement or utility bill showing the business address). Failure to do so will result in the domain being locked and therefore unusable until such a time when the registrant details can be verified.

18.2. Domain names purchased or renewed by Guava on behalf of the Client is the ultimate responsibility of the Client. Guava will contact the Client by email a minimum of 14 days and a maximum of 90 days (dependent on renewal date) to confirm that the domain is required and the cost of domain renewal with the Client. The loss, cancellation or otherwise of the domain brought about by non or late payment or lack of renewal confirmation by the Client is not the responsibility of Guava.

18.3. By agreeing that Guava may purchase a domain name on their behalf, the Client must review and independently agree to Guava's domain registry partner company terms and conditions available on their websites: Nominet, CloudFlare

18.4. The cost for Guava to purchase or renew a domain name on behalf of the Client is £25.00+VAT for a 2 year period for standard domain names (.uk, .com, .net). Other domain name types (such as .uk.com, .london, .wales etc) are priced separately. Please contact Guava for an estimate.

18.5 In the event that the Client no longer requires Guava to manage domain name renewal(s) and would like to move their domain name(s) to a new domain name registration provider, Guava reserves the right to charge a transfer fee of £15.00+VAT per domain.

18.6. Guava will require administrative access to your domain name if it has been purchased through a third party to facilitate DNS and Nameserver changes if Guava is providing Website and/or Email Hosting services to the Client. The Client agrees to provide sufficient access for Guava to make DNS and Nameserver changes on their behalf (usually login credentials to the website where you registered the domain name).

18.7. It is the Client's responsibility to keep a record of the due dates for payments to a third party to ensure that payment is made in good time.

19. Website & email hosting

19.1. Website Hosting provided by Guava is offered through our Hosting partners CWCS Managed Hosting or Guru and is subject to their terms and conditions.

19.2. Email Hosting is offered through and governed by our Hosting partners Guru, Microsoft, intY or Giacom.

19.3. To use Guava's Website and Email Hosting services the Client must review and independently agree to Guava's Hosting partner company terms and conditions available on their websites: Giacom, Guru, Microsoft, intY

19.4. Guava does not offer any uptime guarantee or service level agreement to the Client for our Hosting services. The Client accepts that an outage may not be the responsibility of Guava to fix (for example a fault with the Client's Internet Service Provider, or an outage with a third party peering provider of one of our Hosting partners).

19.5. Guava reserves the right to temporarily suspend any Website or Email Hosting which may be deemed insecure following a security breach.

19.6. Website & Email Hosting is invoiced annually in advance unless otherwise agreed with the Client in writing.

20. Password security

20.1. The Client may be given login credentials for Website and Email Hosting, which is for personal use only by the Client. The Client must not divulge their password to any other people. The Client shall take reasonable precautions to ensure that it is not discovered by other people. Guava reserves the right to change the password in the event of any suspected security breach.

21. Improper use

21.1. Guava's Hosting may only be used for lawful purposes by the Client. Any improper use shall be deemed a material breach of this contract and shall entitle Guava to terminate the contract without notice and with immediate effect whether or not the client is aware of the content of any material.

21.2. Guava does not allow adult content, illegal file sharing sites or crawler / scraper Websites.

21.3. The Client may not store more data in their account than their allotted quota.

21.4. The Client may not run unsolicited server processes from their Hosting.

21.5. The Client must not participate in any form of unsolicited bulk e-mailing or spam.

21.6. Any breach of the above provisions will result in an immediate withdrawal of service provided by Guava, without prior notice.

22. General

22.1. These Terms and Conditions supersede all previous representations, understandings or agreements. Neither party shall be entitled to rely upon any representation understanding or agreement not expressly set out herein. The Client's signature below or payment of an advance fee constitutes agreement to and acceptance of these Terms and Conditions. Payment online is an acceptance of our terms and conditions.

23. Governing law

23.1. This Agreement shall be governed by English Law.

23.2. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England.

24. Liability

24.1. Guava hereby excludes itself, its Employees and or Agents from all and any liability from:

24.2. Loss or damage caused by any inaccuracy

24.3. Loss or damage caused by omission

24.4. Loss or damage caused by delay or error, whether the result of negligence or other cause in the production of the web site

24.5. Loss or damage to the Client's content supplied for a Project, immaterial whether the loss or damage results from negligence or otherwise

24.6. Loss or damage caused by downtime of Website or Email Hosting services

24.7. Loss or damage caused by a Website, Website Hosting or Email Hosting security breach

24.8. The entire liability of Guava to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Project under this Agreement in respect of which the breach has arisen.

25. Severability

25.1. In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid.

25.2. Guava reserves the right to terminate any contract or service with immediate effect if offensive or abusive communications are received from the Client.

26. The Project

26.1. In consideration of the payment of the fees (see Charges below) by the Client and subject to these terms and conditions, Guava shall undertake the Project in accordance with the Project Quotation (as amended).

26.2. Amendments to the Project may be requested by Guava or the Client, in writing, and agreed by the parties in writing. Where an amendment is made, the Project shall be delivered by Guava in accordance with such amendment and may be subject to a change in fees and amendment to the Project Quotation.

27. Notices

27.1. A notice given to a party under or in connection with these terms and conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, recorded delivery or special delivery in each case to that party's registered office, or sent by fax to that party's main fax number (or to such other address or fax number as that party may notify to the other party in accordance with this agreement).

27.2. Delivery of a notice is deemed to have taken effect if delivered by hand, at the time the notice is left at the address, or if sent by fax, at the time of transmission, or if sent by post on the second Business Day after posting, unless such deemed receipt would occur outside business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), in which case deemed receipt will occur when business next starts in the place of receipt (and all references to time are to local time in the place of receipt).

27.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

28. Waiver

28.1. A waiver of any right or remedy under these terms and conditions or by law is only effective if it is given in writing and is signed by the person waiving such right or remedy. Any such waiver shall apply only to the circumstances for which it is given and shall not be deemed a waiver of any subsequent breach or default.

28.2. A failure or delay by any person to exercise any right or remedy provided under these terms and conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.

28.3. No single or partial exercise of any right or remedy provided under these terms and conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.

29. Contractual rights of third parties

No term of this deed shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.

30. Customer service, complaints & abuse

30.1. Our customer service level commitment is to endeavour to respond to emergency technical support issues (Domain name or Website and Email Hosting outages) within 4 hours (Monday to Friday 09:00 to 17:00).

30.2. For general enquiries, accounts and non-urgent requests, we will endeavour to respond within 5 working days.

30.2. Complaints should be submitted electronically and emailed to helloyou@guava.uk , addressed to Rich Milns. We will acknowledge complaints within 3 working days from receipt.

30.3. Reports of abuse relating to services provided by Guava should be submitted electronically and emailed to helloyou@guava.uk , addressed to Rich Milns. We will acknowledge complaints within 3 working days from receipt.