Please note that this document has been updated in November 3rd 2020.
In these terms & conditions:
1.1 the following expressions have the following meanings:
‘We’ refers to Toast Design Consultancy or a trading name thereof;
‘the Client’ means the customer entering into the Contract with Toast;
‘you’ means the customer entering into the Contract with Toast;
‘Conditions’ means the Terms and Conditions set out in this document and any special conditions set out in writing by Toast;
‘the Contract’ means the contract between Toast and the Client to which the Conditions apply;
‘the Due Date’ means one month before an annual period of provision of Services and/or Website hosting or one week before a monthly period of provision of Services and/or Website hosting;
‘Materials’ means images, text, graphics, photographs, sound, video, music, code or any other data, information or software that may form part of the online project;
‘Hosting’ means the physical provision of space on a server. Please note that we have specific terms relating standard hosting and WordPress hosting;
‘Server’ means the computer server equipment operated by Toast or Toasts’ subcontractors in order to provide the Services;
‘Services’ means hosting, email and/or other related services;
‘Project’ means a website (or other element) where a proposal and costs have been provided against a fixed list of requirements and deliverables.
‘Toast Support’, ‘Support’ means actioning requests from clients in regard to completed projects.
‘Toast’ means Toast Design Consultancy Limited;
‘Online’ means any activity or resource which is accessed through the internet including, but not limited to, WordPress websites, the HubSpot all-in-one-marketing platform and HTML emails.
2.1 These Conditions shall apply to all Contracts between Toast and the Client in relation to Software and Plugins provided by Toast to the Client to the exclusion of all other terms and conditions including the terms and conditions of the Client.
2.2 Any variation to the Conditions is inapplicable unless agreed in writing by Toast.
4.1 Toast and the Client (‘the Parties’) shall keep confidential:
4.1.1 the terms of the Contract; and
4.1.2 any and all confidential information that it may acquire in relation to the business or affairs of the other Party including information learnt about the other Party’s business and commercial affairs, technical information, eg manufacturing know-how, provided by one Party to the other and information developed under the Contract by either Party
Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations under the Contract. Each Party shall ensure that its officers and employees comply with the provisions of this Clause 4.
4.2 The obligations on a Party set out in Clause 4.1 shall not apply to any information which:
4.2.1 is publicly available or becomes publicly available through no act or omission of that Party; or
4.2.2 a Party is required to disclose by order of a court of competent jurisdiction.
4.3 The provisions of this Clause 4 shall survive any termination of the Contract for a period of five years from termination.
6.1 Toast exclude any warranty as to the accuracy or quality of information received by any person via the Server and in no event will Toast be liable for any loss or damage to any data stored on the Server. The Client is responsible for their website(s) in respect of any loss or damage to data stored on the Server. Toast will use reasonable endeavours to provide continuing availability of the Server and the Services and/or Website hosting but Toast are not liable for any Service and/or Website hosting interruptions or downtime of the Server, however caused.
6.2 The Client warrants that they will only use their plugin(s) for lawful purposes. In particular, the Client warrants and undertakes to Toast that:
6.2.1 they will not, nor will they authorise or permit any other party to, use the Server in violation of any law, regulation or any other purpose;
6.2.2.1 any Material that is unlawful, threatening, abusive, harmful, malicious, libellous, defamatory, obscene, pornographic, profane or otherwise objectionable in any way; or
6.2.2.2 any Material containing a virus or other hostile computer program; and
6.7 Toast does not guarantee that all plugins will work on your site. In most cases, if the free version of a plugin is compatible with your site, the premium version will also be. We recommending installing the free version before any plugin purchase.
6.8 Terms Specific to the use of WordPress and the hosting of WordPress-based websites
6.8.2 Whilst Toast suggest and use the WordPress application to manage sites we build, we can take no responsibility for errors in this third-party software. We supply and install WordPress on an as-is basis and you agree to the usage of the software as supplied. Any errors in the software that result in issues such as (but not limited by) data corruption, data loss, file loss, software corruption or website downtime are not the responsibility of Toast and and repairs or fixes are not deemed to be covered by hosting charges.
6.8.5 Toast can take no responsibility for errors or issues with WordPress websites.
6.8.9 Any alterations to the site code (including, but not limited to HTML, PHP and CSS) by third parties are the responsibility of the site owner. Toast has no obligation to correct any effects of the code altered by a third party. Toast shall have no responsibility under any contract to remediate any issues caused by third-party access to the site.
6.9.1 As your data processor, we will only act on your written (email is acceptable) instructions to process your data unless required to do so by law (GDPR Article 29). Such instruction must be issued by your data controller.
6.9.2 Toast staff are trained correctly in regard to safeguarding your data. Most data we process via websites is machine-processed and not manually processed by staff. Only staff with authorised login details to your website will have access to data stored on your website.
6.9.3 We provide security of your data at hosting level. However, all data stored on your site is available to persons with authorised access to your website, in this regard, we strongly suggest you use strong passwords to secure your site (minimum of 12 characters including upper and lower case, number and symbols (GDPR Article 32).
6.9.4 We do not engage sub-processors without written consent from you. Should a sub-processor be required, we will seek your content prior to any processing (GDPR Article 28.2). Should you engage your own third-party processors, such as (but not limited to) HubSpot or SalesForce then these third-parties are also your Data Processors.6.9.5 We will assit you to provide access to any data requested by a data subject (please note fees will apply to carry out any such requests) and record all processing activity (this information is stored on your website, should you delete such information, we will be unable to provide records) (GDPR Article 30.2)
6.9.6 We will assist you in ensuring your website and any forms are GDPR compliant and that your hosting is secure (please note that fees will apply).
6.9.7 We will notify you of any known data breaches via your hosting with Toast (GDPR Article 33)
6.9.8 We have a designated DPO (GDPR Article 37).
6.9.9 We will delete from your site any data that you instruct us to delete unless required not to do so by law. Any data you ask us to delete will be irretrievable once deleted.
6.9.91 We will make your hosting available for audits to ensure we meet the obligations of Article 28 of the GDPR.
7.7.1 Unless otherwise stated, all programing language used in the build of a plugin (or similar online application) created by Toast will be compatible with all modern browsers. It should be noted that we do not guarantee compatibility with the following outdated internet browsers:
Toast provide online support for all premium plugins.
8.1 All requests for support (for non-support clients and those on support contracts) must be submitted to [email protected]. Support requests outside of this system may not get actioned as they cannot be effectively tracked and responded to.
8.2 Toast are not entitled to reply to support requests.
9.1 The Client is solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisations in respect of the Online projects, including without limitation, clearance and/or consents in respect of the Client’s proposed domain name and (where applicable) merchant services agreements between the Client and the relevant banks in respect of the Client’s operation of an online store.
9.2 The Client warrants that they are the owner of any trademark or other intellectual property required to be used in the client website, HubSpot portal or domain name.
10.1 The Client agrees to fully indemnify and hold harmless Toast against any claims, actions, demands or allegations brought against Toast by a third party resulting from the provision of plugins and software by Toast to the Client and the Client’s use of the Server.
10.2 The Client will indemnify Toast against all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by Toast in consequence of the Client’s breach or non-observance of these Conditions.
14.1 Toast offers a 28 Day money-back guarantee. In the event of this being processed, Toast reserves the right to revoke access to the License key in respect of the purchase and any software in relation.
14.2 Toast may keep user & purchase details after the refund has been processed for future records.
15.1 All charges payable by the Client to Toast for the software shall be in accordance with the relevant scale of charges and rates published from time to time by Toast on the Toast Website.
15.2 Toast reserves the right to review these charges however all charging is guaranteed for the period of any prepayment.
17.1 Toast hereby exclude all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Services, Website hosting and/or HubSpot portal and/or domain name registration supplied under this agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these Conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose.
17.2 Nothing in these Conditions shall exclude Toast’s liability for death or personal injury resulting from Toast’s negligence.
17.3 Toast’s total aggregate liability to the Client for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the services, software and/or plugins shall be limited to the charges paid by the Client in respect of the service, software and/or plugin which are the subject of any such claim and provided that the Client notify Toast of any such claim within one year of it arising.
17.4 In no event shall Toast be liable to the Client for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
17.5 Toast is not liable for the Client’s inability to access the Services and/or Website and/or HubSpot due to any incompatibility between the Client’s equipment and the Servers.
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in the Contract or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
These Conditions and all other express terms of the Contract shall be governed and construed in accordance with the laws of England and Wales.
Last updated December 2019.