Terms and conditions – care and maintenance

6 August 2019

Canary Dwarf includes but is not limited to the websites canarydwarf.co.uk, my.canarydwarf.co.uk, and any other subdomains of canarydwarf.co.uk. Canary Dwarf is a trading name of Marc Hindley, 86 High Street, Forres IV36 1NX

A Canary Dwarf Account refers to a user account created with Canary Dwarf. These services (Canary Dwarf Services) include a website fixing service (Site Tasks), a backup service (Backups), a monitoring service (Monitoring) and health checks (Health Checks). Canary Dwarf Services are added on a per-site basis. Canary Dwarf Services may be changed or adjusted from time to time.

The Customer refers to a user of Canary Dwarf who utilises any Canary Dwarf Services or creates a Canary Dwarf Account. Customers include both Site Owners and Delegates (Site Contacts).

Acceptance

These terms and conditions outline the relationship between Canary Dwarf and the Customer. It contains the agreement under which both parties agree to interact and must be read prior to utilising any Canary Dwarf Services. Initiating various Canary Dwarf features, such as starting a subscription or adding backups, requires an opt-in acceptance of these terms and conditions. Acceptance of terms applies to the whole Canary Dwarf account. Agreeing to terms for one site shall imply acceptance of terms for all other sites.

Account Creation and Security

The Customer is solely responsible for the security of their own account.

The Customer is entirely liable for all activities conducted and charges incurred under the Customer’s Canary Dwarf Account. The Customer should inform Canary Dwarf immediately if they are aware of any unauthorised use of the Canary Dwarf Services or of the Canary Dwarf Account.

A Customer Account is for one individual only and cannot be transferred to another party. Canary Dwarf includes provision for the creation of additional website delegates and owners which should be used when adding additional contacts to a website. When adding a delegate or site owner the Customer understands the access they are giving, and will not hold Canary Dwarf liable for any activity undertaken by a site delegate on their Website. Site delegates are separately party to this agreement through their sign up for a Canary Dwarf Account.

If Canary Dwarf detects that a single account is being used by multiple customers it may choose to terminate this agreement and the Customer’s Canary Dwarf Account.

Under GDPR regulations the Customer has a right to request removal of all their personal data and information from our servers. This can be done by raising an enquiry through the Canary Dwarf Account under My Tasks. Note that this will immediately and irrevocably remove all the Customer’s data and backups from the Canary Dwarf servers.

For information on data security please see the separate privacy policy.

Websites

Websites can be added to the Customer’s Account. Adding a website does not give Canary Dwarf any special access to a site, but may automatically enable features such as Monitoring or Health Checks. These free Canary Dwarf Services are provided with no warranty of any kind and should be taken as-is.

Login access and data for each website can be added by submitting the data to Canary Dwarf.

The Customer warrants that they have authority to add and manage the Websites in their Account; that they either own the Website themselves and/or that they have the authority to add the Website to their Account and utilise Canary Dwarf Services on behalf of the Website owner. The Customer also warrants that any data or files provided to Canary Dwarf belong to the Customer or that they have a right to use it, and that it is legal under Scottish law. They shall obtain all necessary licenses, waivers and consents required for the use of the Canary Dwarf Services and the material provided. Breach of this clause may result in immediate suspension of the Customer account.

Multisites are two or more distinct websites that run from a single codebase or web hosting area. A Multisite may be refused at the discretion of Canary Dwarf, or required to be added as multiple websites.

Websites that share the same codebase and show the same content (e.g. aliases) are seen as one website, whereas visibly independent sites that run from the same web-space or codebase are seen as independent websites.

Websites can be individually removed from Canary Dwarf. This will end all Canary Dwarf Services for that Website and remove records of historic activity.

Website Subscription

Subscriptions are on a per-site basis. Subscriptions add Canary Dwarf Services to the corresponding website, including regular updates, the ability to create unlimited Site Tasks with no further charge, Backups, Restores and Monitoring. Exact subscription features are detailed on the Canary Dwarf website and subject to change from time to time. Subscription features may vary from website to website at the discretion of Canary Dwarf and the Customer. Further benefits and limitations of the Canary Dwarf subscriptions are detailed below.

Subscriptions are offered either on a monthly-rolling or yearly-rolling basis, in which payment is made up-front for the corresponding period. These subscriptions offer substantial discounts over one-off payments and therefore no pro-rata discounts are given when cancelling before the expiry of the full term.

Subscriptions are renewed automatically and charged to the payment source added on file in the Canary Dwarf Account. Subscriptions have no notice period and may be cancelled at any time in the Canary Dwarf Account, leading up to 11.59pm on the day before renewal. Once a subscription renews, the Customer can cancel the renewal within 14 days of the renewal date and will be entitled to receive a full refund. After such 14-day period, the transaction is not reversible.

Except where permitted by our money-back guarantee, Canary Dwarf does not offer subscription refunds.

One-off Charges

In lieu of a subscription, individual Canary Dwarf Services may be paid for on an ad-hoc basis. For example, payment for a one-off Site Task or Backup Restore. Ad Hoc payment is priced at a premium to Canary Dwarf Subscriptions. Pricing can be found on the Canary Dwarf sales website and is subject to change from time to time.

Payment must be made in advance of service being provided. If a Site Task is refused or cancelled before work commences, a full refund shall be made to the payment source. Whether a Site Task has or has not been completed is at the discretion of Canary Dwarf.

Payment Providers

Canary Dwarf does not store payment information. A third party payment provider securely stores all card data and provides Canary Dwarf with a token. Canary Dwarf can automatically charge against this token under the Continuous Payment Authority (CPA) in accordance with the terms of the Customer’s subscription. Canary Dwarf shall notify the Customer when the payment will be taken, the subscription period if applicable, and the amount to be taken.

The Customer can manage payment methods in their Canary Dwarf Account. The Customer accepts that removing card details may result in their Services not renewing and being terminated in the event that a renewal payment is not made. The Customer may change their account currency if permitted by Canary Dwarf. Conversions are handled at a rate set by Canary Dwarf.

Credit

Canary Dwarf may offer Account Credit or Vouchers to customers. This is entirely at the discretion of Canary Dwarf. Account credit can be used as a voucher to discount the price of Canary Dwarf Services. Account Credit has no monetary value and cannot be refunded, withdrawn, transferred to another user, or redeemed for cash. Account Credit will automatically be used for the payment of any services including renewals, in advance of a payment method being charged.

If a payment due is higher than the Account Credit balance, a payment method shall be charged for the remainder. Invoices shall not be marked as settled and resulting work will not commence until fully paid.

Chargebacks

Chargebacks occur when a card issuer is informed that a transaction was fraudulent or disputed. This forces a refund to the Customer card and a charge to the merchant (Canary Dwarf). A chargeback will result in immediate suspension of the corresponding Canary Dwarf Services and may result in suspension or termination of the entire Canary Dwarf Account, at the sole discretion of Canary Dwarf. Canary Dwarf will require repayment of any charged back invoices and will issue an additional chargeback fee of £50 ($80), regardless of whether the Customer remains a client of Canary Dwarf.

Website Maintenance & Fixing Services

Site Tasks are offered either on a one-off basis or as part of a subscription. Tasks that Canary Dwarf offers are categorised. This category must be selected when adding a task (a Site Task Request). This category listing is subject to change at the discretion of Canary Dwarf. If Canary Dwarf deems a Site Task Request to be incorrectly categorised, Canary Dwarf may adjust the category accordingly or refuse the Site Task Request.

A Site Task Request may specify a custom task or enquiry. Custom Task Requests may be accepted or declined at the discretion of Canary Dwarf. When judging whether Canary Dwarf can or cannot perform a Custom Task Request, Canary Dwarf will follow the guidelines outlined in the Canary Dwarf Service Commitment, which is subject to change at the discretion of Canary Dwarf. In general, Site Tasks are those which might feasibly be performed by an in-house IT team, rather than a contracted website development and design agency.

Canary Dwarf alone has the ultimate say in whether or not a Site Task Request, both custom or categorised, is accepted or declined. Canary Dwarf reserves the right to refuse a Customer’s request and will provide written reasons for doing so on request by the Customer.

Each individual Canary Dwarf Task Request must be submitted as a separate task and categorised accordingly. Canary Dwarf Tasks Requests should not be duplicated. Multiple Canary Dwarf Tasks Requests may be added at once, though Canary Dwarf may put some on hold to avoid conflicts and/or duplication.

Site Tasks must correspond to the website under which they are created.

Before using any Canary Dwarf services the Customer should ensure that they have backups of their website. Canary Dwarf will attempt to backup every website before a Site Task is attempted but Canary Dwarf cannot guarantee that they have sufficient access or that this backup will be successful. The Customer should always keep their own local backups as a fallback.

The Customer is aware that there are sometimes tasks it would impossible for anyone to fix. For example, sometimes a site may be irretrievably broken, some features may simply be incompatible with either other features or the hosting environment, the website may be encoded, or Canary Dwarf may not have sufficient access in order to enact a fix. Therefore, Canary Dwarf may offer advice or alternative solutions rather than providing a direct fix.

Best Effort Service

All Canary Dwarf Services are a best effort service. Canary Dwarf cannot guarantee that any Canary Dwarf Service will be error free.

Canary Dwarf Services will always be provided with reasonable care and skill. However, Canary Dwarf gives no warranty that the Canary Dwarf Services will meet the Customer’s requirements, or that they will be complete, current, to the Customer’s expectation, or provided in an error-free way.

Canary Dwarf will use best efforts to provide the Canary Dwarf Services within an agreed or expected timescale. However, Canary Dwarf will not be liable to the Customer where a timescale is not met.

Canary Dwarf is not responsible for work done by third parties or for software or plugins. Canary Dwarf has no control over third parties including website hosts, software and plugin developers, web browsers, email clients, domain name registrars or search engines.

Indemnification

The Customer acknowledges that Canary Dwarf has no obligation to:

  • Train the Customer or the Customer’s employee, agent or subcontractor on use of the Services;
  • Manipulate in any way any material which the Customer wishes to and/or does post on any web site or other system or any communication it wishes to send via or in relation to the Services; or
  • Validate, vet or edit such material for usability, legality, content or correctness.

Each party shall fully indemnify and hold Canary Dwarf and the other party, its associated companies, employees, officers, agents and partners harmless from and against any action, demand, cost (on a full indemnity basis) losses, penalty, damage, liability claim or expense (including reasonable legal fees) whatsoever incurred by the indemnified party and arising from the indemnifying party’s breach of the Agreement, negligence or other default; The Customer’s indemnity shall also include; the operation or break down or any IT system owned or used by the Customer; or the Customer’s use of misuse of the Services.

Liability

This clause outlines the entire liability of Canary Dwarf (including any liability for the acts of employees, consultants, contractors and authorised representatives) to the Customer in relation to the agreement.

This does not exclude Canary Dwarf’s liability for death or personal injury caused by the negligence of Canary Dwarf, fraud, or a breach of section 12 of the Sale of Goods Act 1979.

Canary Dwarf is not responsible for loss of profits or loss of use, or for any special, indirect, incidental, punitive or consequential losses (of revenue, profit, goodwill, opportunity, or business), damages or costs.

If the Customer is unsatisfied with the service they have received, they may be able to request a refund under the Canary Dwarf Money Back Guarantee which is subject to change from time to time.

The maximum aggregate liability of Canary Dwarf shall not exceed one and a quarter times the amount paid relating to that website to Canary Dwarf by that Customer in the 12 month period preceding the incident giving rise to the claim.

The Customer accepts that the allocation of risk under the Agreement is a fair reflection of the nature of the Services and the level of the Fees charged for the Services.

Termination

Canary Dwarf may at any point terminate the contract. If the contract is terminated partway through the month, Canary Dwarf will refund the pro-rata remainder to the Customer’s payment method within 30 days.

The Customer acknowledges and accepts that it will not own or acquire any Intellectual Property Rights in or relating to the Services or created in performing the Services and that it will have no rights in or to the Services other than the rights expressly granted in the Agreement.

The Customer will indemnify and keep Canary Dwarf indemnified from and against all reasonable costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, reasonable legal costs and judgments which Canary Dwarf incurs or suffers as a consequence of infringement of any Intellectual Property Right of any third party arising directly or indirectly from the provision by Canary Dwarf of Services making use of information or specifications supplied by the Customer; the Customer’s failure to procure all necessary rights from third parties which are from time to time required in order for Canary Dwarf to be able legally to provide the Services; or the use by Canary Dwarf in connection with the Agreement of the Customer System and the Customer Materials.

Miscellaneous

The illegality, invalidity or unenforceability of any provision of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such provision is found by any court or competent authority to be illegal, invalid or unenforceable, the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.

No variation or amendment to the Agreement (including any Order Confirmation) is effective unless confirmed in writing between parties.

The Agreement shall be construed in accordance with and governed by Scottish Law. The Scottish courts shall have exclusive jurisdiction over any disputes arising out of or related to the Agreement.

Assignment

The Customer may not assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to its Associated Company) without the prior written consent of Canary Dwarf. Any consent provided by Canary Dwarf under this clause is given on condition that the assignee or licensee, as the case may be, agrees to comply with the terms of the Agreement as if they were the Customer and that the Customer guarantees the assignee’s or licensee’s performance as applicable. Canary Dwarf may sub-contract or assign any or all of its rights under the Agreement.

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