1. Interpretation
1.1. In these terms and conditions the following expressions shall be given the following meanings (unless the context otherwise requires):
"Associates" means any corporation, association or other entity which, directly or indirectly, controls the Client or is controlled by the Client or is under common control with the Client or any shareholder, member, director, officer, employee or agent of any of the foregoing or of the Client where "control" means power and ability to direct the management and policies of the controlled enterprise whether through ownership of share of the controlled enterprise or by contract or otherwise;
"CDPA" means the Copyright, Designs and Patents Act 1988;
"Charges" means the charges for the services shown on the Order Confirmation and payable by the Client in accordance with the provisions of clause 7 hereof;
"Client" means the person, firm or company named in the Order Confirmation overleaf for whom THE COMPANY has agreed to provide the services in accordance with the Terms;
"Client Material" means all necessary server access, user/company accounts and passwords, any documents, plans, logos, drawings, specifications, details, picture or any other record of information in any form provided by the Client to THE COMPANY in connection with the Services;
"Contract" means the contract for the sale and purchase of the Services;
"IPR" include but are not limited to copyrights, patents, utility models, trademarks, service marks, design rights (whether registered or unregistered), database rights and proprietary information rights;
"Licence" means the licence to use the Software granted pursuant to clause 6.1;
"Licensed Materials" means the Software and Software Documentation;
"Order Confirmation" means an order confirmation from THE COMPANY accepting the Client's order;
"Quotation" means a quotation issued by THE COMPANY to the Client in Writing in response to an enquiry made by the Client which may include but without limitation details of Services and the related Charges;
"Request" means a request for registration of one or more domain names;
"Services " means the services stated in the Order Confirmation (including any instalment of the services) which THE COMPANY is to supply to the Client in accordance with these Terms and may include but without limitation either (or a combination of); web design, e-commerce, programming, internet security, content management systems, website hosting, technical support of the Software and implementation of Software;
"Software" means the software application designed, developed and implemented by THE COMPANY for the Client in (executable) form identified in the Order Confirmation;
"Software Documentation" means any instruction manuals, user/company guides and other information made available to the Client in relation to the Software;
"Terms" means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Client and THE COMPANY;
"Use" means the storage, loading, operation or displaying of the Software;
"THE COMPANY" means Paper Hat.
"THE COMPANY Material" means any documents, plans, drawings, specifications, details, data or other information provided by THE COMPANY relating to the Services;
"Writing" and any similar expression, includes electronic mail, facsimile transmission and comparable means of communication.
1.2. A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1. These Terms shall govern the sale and purchase of the Services between THE COMPANY and the Client to the exclusion of all and any other standard terms and conditions of sale or purchase of the parties hereto. No terms or conditions endorsed upon, annexed to or enclosed with any enquiry, purchase order or other document of or submitted by the Client shall govern the Contract.
2.2. No variation or addition to any of the terms of a Contract and/or these Terms shall be binding unless agreed in Writing between the authorised representatives of the Client and THE COMPANY. Unless otherwise agreed in writing such variations or additions shall only apply to the particular Contract concerned.
2.3. THE COMPANY's employees or agents are not authorised to make any representations concerning the Services unless confirmed by THE COMPANY in Writing. In entering into the Contract the Client acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4. Any advice or recommendation given by THE COMPANY or its employees or agents to the Client or its employees or agents as to the application or use of the Services and/or as to the Services which is not confirmed in Writing by THE COMPANY is followed or acted upon entirely at the Client's own risk, and accordingly THE COMPANY shall not be liable for any such advice or recommendation which is not so confirmed.
2.5. Any typographical, clerical or other error or omission in any THE COMPANY Material, Sales Literature, Quotation, Price List, and Order Confirmation, Invoice or other documentation issued by THE COMPANY shall be subject to correction without any liability on the part of THE COMPANY.
3. Order Confirmation and Specification
3.1. The Quotation submitted by THE COMPANY shall not bind THE COMPANY and such Quotation shall serve only as invitations for the Client to place an order.
3.2. No order submitted by the Client shall be deemed to be accepted by THE COMPANY unless and until confirmed in Writing by THE COMPANY through the Order Confirmation.
3.3. THE COMPANY shall supply and the Client shall purchase the Services in accordance with the Order Confirmation and subject to these Terms.
3.4. The Client warrants:
3.4.1. the accuracy and suitability of all Client Material instruction or advice submitted by the Client or by any third party on behalf of the Client in relation to the Services at any time; and
3.4.2. That it shall at its own expense:
(a) Give THE COMPANY any necessary Client Material within a sufficient time to enable THE COMPANY to perform the Contract in accordance with these Terms; and
(b) Retain duplicate copies of all Client Material and insure against its accidental loss or damage.
3.5. Subject to any specification issued by the Client and referred to in the Order Confirmation, THE COMPANY shall be entitled to exercise control as to the method of the performance of the Services.
3.6. The Client shall indemnify THE COMPANY against any loss, costs, damages, charges and expenses incurred by THE COMPANY as a result of the inaccuracy of the Client Material, instructions or advice or failure to supply the same within a sufficient time to enable THE COMPANY to perform the Contract in accordance with its terms.
3.7. Unless otherwise agreed in Writing by THE COMPANY all specifications and particulars of the Services submitted by THE COMPANY are approximate only and statements in relation to the same, samples, drawings, models, illustrations or other descriptive matter, whether contained in THE COMPANY's website, catalogues, price lists or otherwise shall be regarded as descriptions only and not binding as to detail.
3.8. If the performance of the Services requires THE COMPANY to design and/or apply or any process in accordance with a specification submitted by the Client , the Client shall indemnify THE COMPANY against all loss, damages, professional costs incurred (including VAT thereon) and expenses awarded against or incurred by THE COMPANY in connection with, or paid or agreed to be paid by THE COMPANY in settlement of, any claim for infringement of any IPR of any other person which results from THE COMPANY's use of the Client 's specification or the Client Material.
4. Hosting Services
4.1. THE COMPANY shall use reasonable endeavours to register in and/or transfer into the Client's names on behalf of the Client such domain names as may be requested in Writing by the Client and/or detailed in the Order Confirmation. Notwithstanding the foregoing, the Client acknowledges and agrees that:
4.1.1. The success or failure of domain registration depends on many factors outside THE COMPANY's control that THE COMPANY does not guarantee that success of any Request, and that THE COMPANY's only obligation in relation to each Request shall be to use its reasonable endeavour to obtain registration of the domain names requested. The fees and local administrative costs are payable by the Client notwithstanding the fact that the Client's application/Request maybe unsuccessful;
4.1.2. THE COMPANY shall be entitled to refuse to process Requests submitted by the Client and also to refuse to continue processing with any Requests previously accepted by THE COMPANY, where such processing may (in THE COMPANY's opinion) expose THE COMPANY to the risk of legal or other proceedings;
4.1.3. THE COMPANY does not guarantee that any domain names registered will be free and clear of claims by third parties (including, without limitation, rights and/or claims in relation to any IPR;
4.1.4. Any domain names registered by THE COMPANY on the Clients' behalf may subsequently be challenged and/or cancelled by persons other than THE COMPANY;
4.1.5. That THE COMPANY will be registered as the administrative contact for any domain name registered, or held on behalf of, the Client.
4.2. THE COMPANY shall endeavour to meet any dates agreed for the obtaining of the names and domains requested by the Client, but such date shall be an estimate only and THE COMPANY accepts no liability for failure to meet such date or dates. Without prejudice to the generality of the foregoing, THE COMPANY's liability to the Client for any delay in securing or failure to secure the registration or transfer of any domain names so requested or detailed shall be limited to either a refund of any registration fee provided in advance by the Client or the lodging of an application for registration of an alternative domain name.
4.3. The Client warrants that it shall:
4.3.1. Use its best endeavours to co-operate with THE COMPANY in relation to the registration or transfer of any domain name and shall provide all information as may be necessary to effect such registration or transfer;
4.3.2. not submit to THE COMPANY any Requests in relation to a domain name or names which it knows, or should (after reasonable inquiry) have known, infringes or might reasonably be considered to infringe the IPR of any third party;
4.3.3. not in using the web-hosting services, use any domain name or other descriptor which is, or might reasonably considered to be, in breach of any IPR of any third party,
4.3.4. Use the web-hosting services for lawful purposes only;
4.3.5. Not use the web-hosting services:-
(a) to store, reproduce, transmit, communicate or knowingly receive any material which is offensive, abusive, indecent, defamatory, obscene, pornographic or menacing, or in breach of confidence, privacy, IPR or any other rights of any third party or contain links to such material or upload any such material onto a website hosted by THE COMPANY or by a supplier of THE COMPANY;
(b) For the sending of unsolicited bulk emails; or
(c) Any other purpose which, at the sole discretion of THE COMPANY, is deemed inappropriate for publication on the internet.
4.3.6. Not to sell to any other person (whether in money or monies worth, the giving or withholding of any business or benefit of any kind or description), either directly or indirectly, the web-hosting services.
4.4. THE COMPANY shall be the sole arbiter as to what constitutes a breach of clause 4.3 and the Client shall indemnity and hold harmless THE COMPANY against any loss, damage, liability, expenses or claims resulting from the Client's breach of clause 4.3 and THE COMPANY reserves the right to suspend or terminate the provision of hosting services due to such breach and to charge the Client a reasonable administration fee for any subsequent reinstatement of service. The Client agrees that THE COMPANY has the right to delete all data, files, or other information that is stored on the Client's account if the Client's account is terminated, for any reason, by either THE COMPANY or the Client.
4.5. Where the Order Confirmation states that the Client shall be solely responsible for affecting the registration or transfer of any domain name the Client shall affect such transfer or registration within 30 days from the date of the Order Confirmation or as stated in the Order Confirmation.
4.6. In respect of the registration or transfer of domain names and the provision of hosting products, the Client accepts that THE COMPANY is acting as a duly authorised agent for the Client and any contract shall b e between the relevant domain name registry or third party supplier and the Client. The Client shall be bound by all terms and conditions or restrictions as to use imposed by such registry or supplier and THE COMPANY shall have no liability for breach of such terms and conditions or restrictions or for breach of contract.
4.7. The Client accepts that hosting products shall be limited as to data storage and bandwidth at the levels specified from time to time in THE COMPANY's hosting charges price list. In the event that such levels are likely to be exceeded, THE COMPANY shall use reasonable endeavours to notify the Client in advance. THE COMPANY shall be entitled to invoice the Client for any usage exceeding the specified data storage and bandwidth limits either retrospectively or in aadnvce in accordance with clause 7.2. Any failure to notify the Client in advance of such limits being exceeded shall not prejudice the Client's liability for such usage.
4.8. Hosting services shall be provided for an annual period commencing from the date specified in the Order Confirmation, subject to renewal by the Client.
4.9. THE COMPANY reserves the right to vary the specification of the hosting services during the duration of the Contract to a specification of an equivalent or higher standard.
4.10. The charges for the hosting services and renewals thereof shall be invoiced in accordance with the provisions of clause 7.5. If the client does not wish to renew the hosting services invoiced by THE COMPANY, then it shall so inform THE COMPANY within 7 days of the date of THE COMPANY's invoice for such renewal, whereupon THE COMPANY shall cancel the relevant renewal invoice.
4.11. Where a hosting service has been upgraded during the Contract, THE COMPANY shall apply any upgrades to all subsequent renewals.
4.12. THE COMPANY reserves the right to make any changes in the Order Confirmation of the Services which are required to conform to any applicable statutory or E.U. requirements or, where the Services are to be supplied to THE COMPANY's Order Confirmation, which do not materially affect their quality or performance.
5. Cancellation of Order
5.1. No Order Confirmation which has been accepted by THE COMPANY may be cancelled or varied in any way by the Client except with the agreement in Writing of THE COMPANY and on terms that either:
5.1.1. the Client shall pay all charges due to the date of cancellation and shall indemnify THE COMPANY in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by THE COMPANY as a result of cancellation or variation; or
5.1.2. if THE COMPANY (in its sole and absolute discretion) certify in writing that it has not performed the Services with due care and skill in which case the Contract shall terminate and THE COMPANY shall repay all sums paid by the Client hereunder whereupon no party shall have any further liability to the other but without prejudice to the surviving provisions of these Terms.
5.1.3. If the Customer fails to make any payment within 31 days of it becoming due, the Supplier shall be entitled to remove all work carried out as part of the order and suspend all services until payment has been received in full.
6.
Licence
Where
the Services include or consist of Software then in addition to the other
provisions of these Terms, the following shall apply:
6.1. In consideration of the payment by the Client of the Charges in accordance with clause 7 below, THE COMPANY grants the Client a non-exclusive, non- transferable perpetual licence to Use the Software (and where appropriate the Software Documentation) and possesses and refers to the Software Documentation on the one domain name only specified in the Order Confirmation.
6.2. Acceptance of the Software shall be deemed to take place on installation of the Software.
6.3. The Client shall not use or attempt to use the Licensed Materials or any output of the Software or permit any third party to do so:
6.3.1. To provide a data processing service to any third party by way of trade or otherwise; or
6.3.2. contrary to any other restriction stated in these Terms.
6.4. The Client is entitled to make one back-up copy of the Software. Any such copy shall in all respects be subject to these Terms and shall be deemed to form part of the Software.
6.5. The Client is not entitled to copy in whole or in part the Software Documentation.
6.6. The Licensed Materials contain THE COMPANY's confidential information and those of THE COMPANY's own third party suppliers and all IPR in the Licensed Materials are THE COMPANY's exclusive property or the property of our own third party suppliers (as the case may be).
6.7. The Client shall not:
6.7.1. Save as provided in clause 6.4 above make back-up copies of the Licensed Materials;
6.7.2. Reverse compile, copy or adapt the whole or any part of the Licensed Materials for the purposes of correcting errors in the Licensed Materials;
6.7.3. save solely for the purposes expressly permitted by and in accordance with s. 296A(1) CDPA or s. 50B(2) CDPA copy adapt or reverse compile the whole or any part of the Licensed Materials;
6.7.4. assign transfer sell lease rent charge or otherwise deal in or encumber the Licensed Materials or use the Licensed Materials on behalf of any third party or make available the same to any third party; or
6.7.5. Remove or alter any copyright or other proprietary notice on any of the Licensed Materials.
6.7.6. Permit any third party access to the Software for any purpose, save as permitted by these Terms.
6.8. The Client shall:
6.8.1. keep confidential the Licensed Materials and limit access to the same to those of the Client's employees agents and sub-contractors who either have a need to know or who are engaged in the Use of the Software (including where appropriate the Software Documentation);
6.8.2. Reproduce on any copy (whether in machine readable or human readable form) of the Licensed Materials THE COMPANY's copyright and trade mark notices;
6.8.3. Maintain an up-to-date written record of the number of copies of the Licensed Materials and their location and upon request forthwith produce such record to THE COMPANY; and
6.8.4. notify THE COMPANY immediately if the Client becomes aware of any unauthorised use of the whole or any part of the Licensed Materials by any third party; and
6.8.5. Without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect THE COMPANY's confidential information and IPR (and those of our suppliers) in the Licensed Materials.
6.8.6. permit THE COMPANY to have sole control of the prosecution or defence of any claim relating to any alleged infringements of THE COMPANY's IPR or the rights of any third party relating to the Use of the Software, including conduct of any related settlement negotiations and the Client will give THE COMPANY such assistance as THE COMPANY may reasonably require in connection with the same.
6.9. The Client shall inform all relevant employees' agents', sub-contractors and Associates that the Licensed Materials constitute THE COMPANY's confidential information and that all IPR therein are THE COMPANY's property (or the property of our suppliers) and the Client shall take all such steps as shall be necessary to ensure compliance by the Client's employees' agents', sub-contractors and Associates with the provisions of this clause 6.
6.10. The Licensed Materials are licensed to the Client on an "as is" basis and THE COMPANY shall only provide technical support and/or maintenance for the Software if stated in the Order Confirmation or as an additional service at THE COMPANY's standard charges from time to time in force.
7. Terms of payment
7.1. The Client shall pay the charges to THE COMPANY at the time or times and in the manner as specified in the Order Confirmation.
7.2. The Client shall pay to THE COMPANY any additional sums which are agreed between THE COMPANY and the Client for the provision of the Services, or, which, in the sole discretion of THE COMPANY are required, including but without limitation, as a result of:-
7.2.1. Significant increase in the costs of labour, materials or other costs of design;
7.2.2. Any change in delivery dates, designs or specifications for the Services which is requested by the Client;
7.2.3. or any delay caused by any instructions of the Client or failure of the Client to give THE COMPANY adequate information or instructions;
7.2.4. Unexpected or unforeseen complications arising;
7.2.5. The inaccuracy of any Client Material or any other cause attributable to the Client.
7.3. The additional charges referred to in clause 7.2 shall be THE COMPANY's standard charges based from time to time on its hourly rate, or such other charges as may be agreed or specified by THE COMPANY in writing.
7.4. The Client shall pay to THE COMPANY all reasonable and applicable expenses incurred by THE COMPANY in relation to the Services including but without limitation, third party computer software, computer hardware, travelling expenses, outsourcing services, search engine fees and domain name
Registration fees.
7.5. The Client accepts that the prices of hosting services and any upgrades thereto are liable to variation from time to time and the Client shall be charged THE COMPANY's standard Charges for the hosting services or upgrades at the date of the order. Hosting services may be subject to one offset up charges in addition to the Charges stated on the Order Confirmation and upgrades are charged annually, with the first year of the update backdated to the commencement of the performance of the services.
7.6. The Charges, additional sums and expenses are exclusive of any applicable value added tax, which the Client shall be additionally liable to pay to THE COMPANY at the prevailing rate from time to time.
7.7. Subject to the provisions of the Order Confirmation, THE COMPANY shall in its sole and absolute discretion be entitled to invoice the Client for Charges and any additional sums (if applicable) on an interim monthly basis or at the conclusion of the Services.
7.8. Subject to the provisions of the Order Confirmation, the Charges and any additional sums payable shall be paid by the Client (without any reduction, deduction or set-off) in pounds sterling (GBP) within 14 days of the date of each of THE COMPANY's invoices. THE COMPANY shall be entitled to recover the charges and any additional sums, notwithstanding that performance of the Services may not have taken place. The time of payment of the Charges and any additional sums shall be of the essence of the Contract and the Client shall in no event be entitled to suspend any obligation of payment to THE COMPANY. Receipts for payment will be issued only upon request.
7.9. If at any time THE COMPANY should have reasonable cause to doubt the Client's credit worthiness, THE COMPANY may, either before or during its performance of the Contract, require the Client to make payment in advance of the whole or part of the price of the Services or, at THE COMPANY's discretion, to provide reliable security to the value of such sum or sums as are owed or will become payable by THE COMPANY under or by virtue of the Contract.
7.10. If payment of any invoice issued by THE COMPANY is not made on the due date, THE COMPANY shall be entitled, without limiting any other right or remedy available to THE COMPANY:
7.10.1. to suspend performance of Services until payment in full is made and THE COMPANY shall have no liability to the Client in respect of the suspension, nor in respect of any loss or damage caused to the Client as a result of it; and/or
7.10.2. to charge the Client interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above the base rate from time to time of Lloyds Bank plc (a part of a month being treated as a full month for the purpose of calculating interest) from the due date until the outstanding amount is paid in full; and/or
7.10.3. To charge the Client all legal costs and expenses (together with VAT thereon) incurred by THE COMPANY in the enforcement of its rights; and/or
7.10.4. To terminate the Licence; and/or
7.10.5. To demand all the charges payable under the Contract which shall immediately become due and payable
8. Intellectual Property Rights
8.1. Subject to clause 8.2.2, the provisions of these Terms and unless otherwise agreed in writing by THE COMPANY, the property and IPR in all designs, images, prose, scripting and other content created or developed by THE COMPANY for the Client and delivered or transmitted to the Client shall remain and/or vest in THE COMPANY until THE COMPANY has received in cash or cleared funds payment in full of all sums due to THE COMPANY under the Contract. THE COMPANY shall assign to the Client all such property and IPR at the time of receipt of such sums.
8.2. The property and other IPR in:
8.2.1. Any Client Material shall (subject to the rights of any third party) belong to the Client;
8.2.2. anything produced or used by THE COMPANY during the provision of the Services, including but without limitation, the THE COMPANY Material, hardware, software, source codes, computer programming and scripting objects, work files, development techniques, designs, the Quotation and any documents referred to in it, these Terms, the Order Confirmation or any reports shall vest solely with THE COMPANY and may not be reproduced except with the express written consent of THE COMPANY.
8.3. The client warrants that:
8.3.1. all domain names registered or transferred and/or any Client Material and its use by THE COMPANY for the purposes of providing the Services will not infringe the IPR or other rights of any third party; and
8.3.2. It shall not amend, modify or adopt any part of the final Services in any way whatsoever.
And the Client shall indemnify THE COMPANY against any loss, damages, costs (including legal and other professional costs and VAT on them) expenses or other claims arising from any such infringement of this clause 8.3.
8.4. Subject to the provisions of clause 8.3, in the event of any claim or action against THE COMPANY on grounds that the Services infringe the IPR of any person, firm or company THE COMPANY may if necessary replace or modify the Services concerned or cancel the Contract or part of the Contract without liability.
8.5. The Client shall promptly notify THE COMPANY of any claim or action by a third party concerning infringement of IPR in relation to the Services. In the event of such claim or action THE COMPANY shall subject to the provisions of clause 8.3 be entitled to dispute such claim or defend such action, or to take legal action against that third party, or to agree an out of court settlement with that third party and shall be entitled to exercise such powers on behalf of the Client subject as may otherwise be agreed by THE COMPANY in Writing, the Client shall refrain from taking any such action and in all cases the Client shall give THE COMPANY its full co-operation.
8.6. The Client grants to THE COMPANY a non-exclusive, worldwide perpetual licence to copy, distribute, display, publish, modify and otherwise use the property and IPR in any materials assigned to the Client in accordance with clause 8.1 for promotional purposes.
9. Warranties and Liability
9.1. Subject to the provisions of clause 9.2 THE COMPANY hereby warrants that:-
9.1.1. The Services shall be performed by THE COMPANY with reasonable care and skill;
9.1.2. The Services shall be performed as far as reasonably possible at the intervals and within the times referred to in the Order Confirmation but THE COMPANY shall not be liable for any delay in the performance of the Services howsoever caused and time for delivery shall not be of the essence of the Contract unless expressly specified in the Order Confirmation.
9.1.3. THE COMPANY has the right to licence the Use of the Licensed Materials;
9.1.4. The Software will for a period of 30 days from the date of transmission or application to the Client's website is free from defects in design and workmanship. If the Software fails to conform to this warranty, the Client may, as the Client's sole and exclusive remedy, require THE COMPANY to remedy any defects during the warranty period;
9.1.5. The Software will materially conform to the Software Documentation.
9.2. The warranties in clause 9.1 are given by THE COMPANY subject to the following conditions:
9.2.1. where THE COMPANY supplies in connection with the provision of the Services and products or services supplied to it by a third party (whether whole or in part), THE COMPANY does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, and shall have no liability to the Client for any defects in such products or services. THE COMPANY shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the said third party;
9.2.2. Without prejudice to the generality of clause 9.1.2, for web hosting services THE COMPANY cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted or received or stored on its system. THE COMPANY shall not be liable to the Client or any of its customers for any claims for damages which may be suffered by the Client or its customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access the internet, or inability to transmit or receive information, caused by, or resulting from delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of THE COMPANY;
9.2.3. THE COMPANY shall have no liability under clause 9.1 to the Client:
(a) for any loss, damage, costs, expenses or other claims for compensation arising from any Client Material or instruction supplied by the Client which is incomplete, incorrect, inaccurate, illegible, out of date, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
(b) In respect of any defect arising from wilful damage, negligence, failure to follow THE COMPANY's instructions (whether oral or in Writing), misuse or alteration of the Services without THE COMPANY's approval;
(c) If the Charges or any other sum due from the Client to THE COMPANY has not been paid by the due date for payment; or
(d) For any typographical or other inaccuracies in the Services where the Client has signed a THE COMPANY acceptance form duly approving the content of the Services performed.
9.3. THE COMPANY shall not be liable under the warranties given at clauses 9.1.3, 9.1.4 and 9.1.5 above if the Software fails to operate in accordance with the said warranties as a result of any modification, variation or addition to the Software not performed by THE COMPANY or caused by any abuse, corruption or incorrect use of the Software including but without limitation use of the Software with equipment or other software which is incompatible.
9.4. Without prejudice to the foregoing, THE COMPANY does not warrant that the Use of the Software will meet the Client's requirements or that the operation of the Software (including where in machine- readable form the Software Documentation) will be uninterrupted or error free.
9.5. A claim by the Client which is based on any failure to comply with the warranty in clause 9.1 shall be notified to THE COMPANY within 7 days from the date of completion of performance of the relevant Services or (where the defect or failure was not apparent on reasonable inspection) within 1 month from the date of performance. If performance is accepted and the Client does not notify THE COMPANY accordingly, the Client shall not be entitled to reject the Services and THE COMPANY shall have no liability for such defect or failure, and the Client shall be bound to pay the Charges as if the Services had been performed in accordance with the Contract.
9.6. The Client is solely responsible for satisfying himself as to the suitability of the Services for any particular purpose and the Client relies solely on his own skill and judgement and not the Seller's skill and judgement in determining such suitability.
9.7. Where a valid claim in respect of any of the Services which is based on a defect in the quality or condition of the Services or their failure to meet the specification provided for in the Order Confirmation or which is based on any defect in the Services is notified to THE COMPANY in accordance with these Terms, THE COMPANY may at its sole discretion:
9.7.1. Modify the Services and/or make good the defect in Services free of charge; or
9.7.2. Refund to the Client the Charges (or a proportionate part of the Charges); in which case THE COMPANY shall have no further liability to the Client.
9.8. The Client acknowledges that THE COMPANY cannot be held responsible for the performance of the networks, nor the Services being transmitted (if applicable) directly or without interruptions.
9.9. Save as set out in these Terms and subject to the Unfair Contract Terms Act 1977, all other warranties, terms and conditions implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.
9.10. Except in respect of death or personal injury caused by THE COMPANY negligence, or as expressly provided in these Terms, THE COMPANY shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of these Terms, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of THE COMPANY, its servants or agents or otherwise) which arise out of or in connection with the provision or non-provision of the Services or their use by the Client.
9.11. THE COMPANY's liability for any direct loss as a result of a failure by THE COMPANY to renew a domain name registration pursuant to clause 4.10 which is not excluded pursuant to clause 9.10 shall be limited to the domain name renewal fee.
9.12. THE COMPANY's liability to the Client for loss or corruption of the Client's data under these Terms is limited to the Charges paid by the Client. THE COMPANY are not liable to the Client for the cost or restoring or rectifying the data itself.
9.13. IN ANY EVENT THE LIABILITY OF THE COMPANY FOR ANY BREACH OR THE AGGREGATE LIABILITY FOR ANY SERIES OF BREACHES UNDER OR IN CONNECTION WITH THE CONTRACT (SAVE IN RESPECT OF DEATH OR PERSONAL INJURY) SHALL NOT EXCEED THE AMOUNT RECOVERED FROM ITS INSURERS.
9.14. THE COMPANY shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of THE COMPANY's obligations in relation to the Services, if the delay or failure was due to any cause wholly or partly beyond THE COMPANY's reasonable control, including but not limited to fire, flood, acts of god, war, terrorism, government control, failure of computer software or hardware, loss of data or any other losses resulting from delays, non-deliveries or service interruptions caused by network failure, industrial dispute or failure by the Client to fulfil any of its obligations under the Contract or any breach by the Client of the terms of the Contract.
9.15. Nothing in this clause shall confer any right or remedy upon the Client to which the Client would not otherwise be legally entitled.
9.16. The Software is not designed or intended for use in the context of hazardous environments or applications or for safety critical systems. The Client undertake not to use the Software for any such purpose and to indemnify THE COMPANY from all and any liabilities losses costs claims and expenses incurred or sustained by THE COMPANY in relation to the use or application of any Software for any such purpose.
10. Risk and Title
10.1. Risk in the Licensed Materials will pass to the Client upon transmission or insertion of the relevant application on the Client's website. If subsequently the Licensed Materials are (in whole or in part) destroyed damaged or lost THE COMPANY will upon request replace the same subject to the Client paying all THE COMPANY's current charges.
10.2. Anything produced by THE COMPANY including but without limitation images, prose, scripting or other content created or developed by THE COMPANY shall be at the sole risk of the Client from the time of delivery or transmission to the Client.
10.3. Notwithstanding delivery and the passing of risk in the Licensed Materials, or any other provisions of these Terms, the property in the Licensed Materials shall not pass to the Client until THE COMPANY has received in cash or in cleared funds payment in full for the Charges for the Licensed Materials and all other Charges due from the Client to THE COMPANY.
11. Termination
11.1. THE COMPANY may terminate the Contract forthwith on the happening of any of the following events:
11.1.1. if the Client is in breach of any of its obligations under these Terms and, where that breach is capable of remedy, does not remedy the breach within 14 days of a Written request from THE COMPANY to do so; or
11.1.2. If the Client goes into liquidation; or
11.1.3. if the Client convenes a meeting o f its creditors or if a proposal is made for a voluntary arrangement within Part I of the Insolvency Act 1986, or a proposal for any other composition scheme of arrangement with (or assignment for the benefit of) its creditors; or
11.1.4. If the Client shall be unable to pay its debts as they fall due within the meaning of section 123 Insolvency Act 1986; or
11.1.5. If a trustee, receiver, administrator, administrative receiver or other similar officer is appointed in respect of all or any part of the undertaking of the Client.
11.2. The rights to terminate the Contract given by this clause shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
11.3. Upon the termination of the Contract for any reason, subject as otherwise provided in these Terms and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under the Contract.
11.4. All deposit payments are final and indicate agreement of contract and are none refundable.
11.5. Upon terminiation or account all costs and works completed will be the responsibility of the client, domains and any material remain the property of THE COMPANY until any outstanding amounts cleared in full.
12. Confidentiality
12.1. THE COMPANY and the Client each undertakes with the other throughout the duration of this Agreement and for a period of five years after its termination that they shall not (except in the performance of the Services) use or disclose any trade secrets, confidential information or any information gained about the other, and will make known the confidential nature of that information to its employees and other persons to whom such information is properly disclosed in the course of the Contract. This obligation does not apply to any information that (1) is publicly known (2) is given by a party who is not obliged to maintain confidentiality or (3) is required to be disclosed by any applicable law
13. General
13.1. THE COMPANY shall be entitled to assign or sub-contract to any third party its rights and/or obligations (as the case may be) arising from any Contract. The Client may not assign its rights under the Contract except with the prior written consent of THE COMPANY.
13.2. A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed t o that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.3. No waiver by THE COMPANY of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4. If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
13.5. The
Contracts (Rights of Third Parties) Act 1999 shall not apply in relation to the
Contract.
13.6. The Contract shall be
governed by the laws of England, and the Client agrees to submit to the
exclusive jurisdiction of the English courts.
Arrange a FREE informal meeting today
If you`d like to discuss your project with us, we`d love to bring some ideas to the table. To arrange a short meeting please complete the short form below or if you would prefer, you can call us directly on 0800 0470 705
Its completely free, what do you have to lose ?
