All work and services undertaken by MF Software Solutions Ltd
are subject to the client agreeing to these conditions.
MF SOFTWARE SOLUTIONS LIMITED, 367B Church Road, Frampton Cotterell, Bristol BS36 2AQ

For clarity and ease of reading, MF Software Solutions Ltd (T/A MacFactor) will hereinafter be referred to as The Producer or MFSS. The commissioning body, organisation or individual placing the order will be referred to as The Client or Customer. 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 and/or Flash movies to be made under this Agreement).

SECTION 1 - BESPOKE DEVELOPMENT

01. 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.

02. Specification (a)The Production of each 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.

03. 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.

04. 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.

05. 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).

06. 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.

07. 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.

08. 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 the use of or inability to use any elements that comprise The Site, FileMaker or browser software or any accompanying written materials or through inaccuracies in any of the data transferred into The Site from any third party (however supplied), or through corrupted or damaged files in the event of adopting or further developing an already existing system, 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 do everything reasonably possible to ensure The Site conforms to the agreed design when viewed in the latest or stipulated versions of Internet Explorer. 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.

09. 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.

10. Payment (a) Subject to clause 11 hereof, the Contract Price shall be the price agreed between The Producer and The Client on the acceptance of the written quotation through the issue of a written order (or otherwise in accordance with clause 19).
(b) Payment of the Contract Price shall be made by The Client to The Producer as follows:-
(1) one third of the Contract Price on the issue of the written order (or otherwise in accordance with clause 19).
(2) the balance including any increased costs chargeable under Clause 11 hereof within 28 days of completion of The Site or by monthly interim payments in the event that a site takes over 28 days to complete.
(3) 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 10b2 not being met.
(d) All fees chargeable are exclusive of VAT which will be charged if applicable.

11. 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.

12. 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.

13. 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).

14. 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.

15. Legal Construction The interpretation and application of these Terms and Conditions shall be in accordance with English Law.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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 site 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 a final prototype. 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).

21. 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.

SECTION 2 - ONLINE (REMOTE) & ONSITE FILEMAKER HOSTING SERVICES

01. Server use
MFSS reserves the right to suspend or cancel a Customer's use of the online hosting service when MFSS decides that the account has been inappropriately used or otherwise. MFSS reserves the right to refuse service and/or access to its servers to anyone. MFSS does not allow any of the following content to be stored on its servers: (a) Adult material - includes all pornography; erotic images; or otherwise lewd or obscene content; (b) excessive download content or non-linked content. Refusal of service based on either (a) or (b) above is entirely at the discretion of MFSS. MFSS reserves the right to move your data to a different server with no previous notice.

02. Payment policies
All accounts are set up on a prepay basis. Although MFSS reserves the right to change the monthly subscriptions at any time, all pricing is guaranteed for the period of prepayment. Payment thereafter is due on the first day of the month. Customers will be automatically invoiced again for the next prepay period unless closure notification has already been given. In situations where the standing order is declined and/or an invoice remains unpaid MFSS reserves the right to suspend access to your online/onsite FileMaker file and/or gain access to the customer's premises (in the case of an onsite server rental) to recover any equipment, until such a time as the outstanding debt is cleared. Any non-payment of a recurring invoice is subject to a £20 plus VAT administration charge. The Customer is responsible for all money owed on the account from the time it was established to the end of the notice period following the time that the Customer sends a written cancellation request. Invoices will be sent directly to Customers via email or the postal service. All payments shall be made in UK sterling, and all prices given are exclusive of VAT unless stated otherwise.

03. Payment Options
In order to streamline our accounting procedures and keep costs down MFSS requires that all prepayment services are paid by standing order to MFSS’s bank account with any additional fees being paid by cheque or BACS.

04. Cancellation and refunds MFSS reserves the right to cancel the online hosting service at any time. A refund will not be issued in the event of a cancellation. Customers may cancel their account at any time by giving 30 days notice of cancellation. Fees charged on a prepay basis are non-refundable. In addition some accounts incur set-up fees, these charges are also non-refundable. Any hardware or software purchases made by the Customer in connection with running the online hosting service (such as FileMaker Pro) are non refundable in the event of a cancellation. We will return your FileMaker database(s) to you on the condition that all outstanding invoices are paid.

05. 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 online/onsite 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 MFSS’s servers; (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 to the Customer via MFSS’s servers and (5) any content on the Customer's websites.

06. Disclaimer
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.

07. 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 online hosting 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.

08. 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.

09. 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.

10. 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.

11. Severability
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.

12. Passwords It is the Customer’s responsibility to keep any and all FileMaker Account 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.

13. Authorised users
The online/onsite hosting service is available to be accessed by only those individual employees or other representatives of the Customer who have been authorised to do so by the Customer (a “User”). The number of individuals who are entitled to access the service is limited to the maximum number of Users which the Customer has requested be allowed to access the service (the “Maximum Number”) and for whom the Customer has paid the appropriate monthly subscription fee (such fee being dependant on the Maximum Number of Users required by the Customer). It is the Customer’s responsibility to deactivate a User’s account and/or change a User’s password access to any and all FileMaker files on a User ceasing to be authorised by the Customer to be allowed to access or use one or more FileMaker files (for example, when a User ceases to be an employee of the Customer). MFSS will not accept any responsibility or liability for any losses, costs, expenses or liabilities incurred or suffered by the Customer as a result of a non-authorised User gaining access to any and all FileMaker files as a result of the Customer failing to deactivate that User’s account and/or changing that User’s password. The Customer will ensure that neither it nor any User will allow any individual who is not an authorised User to access or otherwise make use of the online/onsite hosting service and that no User password or other code necessary for a User to access the service is shared with or communicated to any other individual or third party. The Customer will ensure that all Users maintain the strict confidentiality of any individual passwords or access codes allocated to them. The Customer will also ensure that all Users are made specifically aware of the restrictions contained in these Terms and Conditions relating to limiting access to and use of the FileMaker databases hosted via the online hosting service. MFSS reserves the right to suspend and/or cancel the Customer’s use of or access to the online/onsite hosting service in the event that MFSS believes that individuals representing the Customer are accessing (or have accessed) the service in excess of the Maximum Number of Users or if it believes that User passwords or access codes are being shared or used by more than the individual Users nominated by the Customer. In such circumstances the Customer will not be entitled to any refund of fees.

14. Scheduled maintenance To guarantee optimal performance on the servers, it is necessary for MFSS to perform routine maintenance. Such maintenance may require taking the FileMaker servers off line, typically performed during off-peak hours. MFSS will endeavour to give you advance notice of maintenance requiring the servers to be taken off-line whenever possible.

15. Security MFSS makes every reasonable effort to ensure your FileMaker database security at all times. We do this through a combination of various network security policies, load balancing and redundant systems. We make every reasonable effort to ensure the integrity of data on our systems. On the rare occasions where there may be a problem with a specific FileMaker database, it is the Customer’s responsibility to notify us. We cannot guarantee to restore data and we accept no liability for the loss of any such data.

16. Ownership of data
All data created or stored by you within your FileMaker databases hosted via our online/onsite hosting service 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 via our online/onsite hosting service servers.

17. Server ownership Servers remain the property of MFSS at all times.

18. Remote backup service We utilise ‘The Rapid Backup’ service for backing your FileMaker databases. The remote backup system (Rapid Backup Centre) is located inside a secure data centre where all standard data centre facilities, including redundancy and backup power supply, 24-hour professional monitoring & surveillance and controlled access to the premises, are provided. MFSS uses a primary backup server to provide online backup services that is further backed up by an additional backup system.

19. 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 Remote Backup Service.

20. Software availability MFSS cannot be held responsible for any losses incurred by you as a result of any software on which your FileMaker database(s) and our online/onsite hosting service depend for their operation becoming unavailable for whatever reason. You subscribe to our online hosting service on the understanding that the operation and functioning of your hosted FileMaker database(s) rely entirely upon the continued support and on-going availability of licences from the software manufacturer on who’s platform FileMaker Pro and FileMaker Server products have been designed to run.