ZEBRA INTERNET SERVICES
TERMS AND CONDITIONS OF BUSINESS
PART GL – GENERAL TERMS AND CONDITIONS
GL1.1 It makes things a lot easier if we define at the outset what certain words will mean when we use them in these terms and conditions. That means, for the words listed below, from this point on when you see them used in this document With Apparently Inappropriate Use of Capital Letters, the words will have the meanings you see in this section of our terms and conditions:
Additional Charges means such additional fees as may be charged at whatever rates might apply at the time and which are in addition to the Charges;
Charges means the price for the Goods and/or Services as specified in the Order;
Commencement Date means the date upon which we start to supply Services to you;
Contract means our legally-enforceable agreement with you, based on the Order and these Terms;
Goods means the goods, if any, (including instalment of the goods or any part for them) that we will supply to you in accordance with the Terms and which are specified in the Order;
Input Material means any materials of any description that you provide to us for the purposes of the assisting us to deliver the Services and/or Goods;
IPRs means all those intangible things that can be owned and controlled even though they are not physical, i.e you cannot touch them. This includes things like copyright, trademarks, domain names, database right and a host of other Intellectual Property Rights, wherever they might take effect in the world. It covers all Intellectual Property Rights, whether they are registered or not and whether they exist at the Commencement Date or come into existence some time later. This term also includes applications for registered Intellectual Property Rights that are pending as at the Commencement Date and Intellectual Property Rights whose term of protection has been renewed or extended somehow;
Order means the order that you have placed with us for our Services and/or Goods and which sets out in detail the Services that you seek to use or the Goods that you want to buy;
Output Material means materials such as designs, code, images and such like that we will generate specifically for you in delivering the Services.
Proposal means (unless the context implies to the contrary) the document that we send you following our discussions that sets out the detail of the Services and/or Goods that we are to supply to you, as amended from time to time in accordance with these Terms, and which becomes your Order once you have confirmed to us that you are happy with it in accordance with clause GL3.1.3;
Services means the services that we are to supply to you in accordance with the Terms and which are set out in more detail in on the Website or in the Proposal which we sent to you previously. If any changes occur once we get started with the Services, these changes will also fall under this definition;
Terms means the terms and conditions that you are reading now. Please bear in mind that we may change these Terms from time to time and if we do, we will let you know and the new version of the Terms will apply to the Contract we have with you from that moment onwards;
You means you the client, the person who is buying our Services and/or Goods in accordance with the Terms;
Zebra, We or Us means Zebra Electronics Ltd trading as Zebra Internet Services, Zebra Web Design, Domaincheck and Domaincheck SEO and you can find us at Adamson House, 65 Westgate Road, Newcastle Upon Tyne NE1 1SG. If at any time we move offices, you’ll be the first to know;
GL1.2 When you see the words “includes” or “including” used in these Terms, it means without limitation to what then follows, which is really an example.
GL1.3 You can take it that when we refer to legislation, we are also referring to all subordinate legislation (rules and regulations) that are set down under or pursuant to that legislation. Those references also include instances where the original legislation we refer to is replaced by new legislation that does the job of the legislation we referred to.
GL1.4 When we refer to something being “in writing” or “written”, this includes emails or other forms of electronic communication, including messages sent to your account or notifications sent to you.
GL2. Application of the Terms
GL2.1 The Terms constitute the entire agreement between us, the parties and supersede any previous agreements, representations, statements or understandings. These Terms may not be varied except in writing between us (signed by a Director of Zebra) and set out the full extent of our obligations and liabilities. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of Zebra that is not set out in the Terms. Nothing in the Terms shall be interpreted so as to rule out or limit our liability for fraud or fraudulent misrepresentation.
GL2.2 The supply of all Services and/or Goods shall be on and in accordance with the Terms and shall be in consideration of your payment of the Charges, the Additional Charges and your compliance with the Terms. All other terms, conditions, collateral contracts, undertakings and warranties, whether express or implied by statute or otherwise, in respect of the Services and/or Goods, are excluded to the fullest extent permitted by law (including any terms and conditions that you try to apply under any purchase order sent by you to us or correspondence or otherwise).
GL2.3 We have split the Terms up into modules, to make it easier to see the terms and conditions that are directly relevant to the Goods and/or Services that are to be the subject of your contract with us. However, these modules are only to help you navigate your way around the Terms and the modular structure of these Terms will not affect the way they are to be interpreted. All of the modules apply to all contracts with all of our customers, so if at any time you wish to add Goods or Services that fall under another module of these Terms, the appropriate Terms will already be in place between you and us.
GL3.1 You can place your Order with us in three different ways – (1) directly via our websites, (2) personally on the telephone, Skype, e-mail or via any other means which do not fall into the (1) and (3) categories (we’ll call these “Direct Orders”) or (3) in writing following your agreement to our Proposal.
GL3.1.1 Website Order
Ordering from our websites is really easy. Follow the instructions on the screen to place your Order, when you get to the payment screen you will see a box that you will need to tick to confirm that you have read these Terms and your Order will then be processed. A confirmation e-mail will then be sent to you making reference to these Terms that you have accepted.
GL3.1.2 Direct Orders
(a) There may be times when you wish to communicate with us directly. When you are happy with the details of the Services and/or Goods that you wish to purchase, you will be able to place your Order. In the process of placing your Order whether this be by telephone, e-mail or any other form of communication, you will be referred to these Terms, which you should confirm that you accept.
(b) When we receive your Order, we will send you an email setting out the detail of the Goods and/or Services you wish to purchase, the prices of those Goods and/or Services and a copy of these Terms. This email constitutes our offer to you to supply these Goods and/or Services and we will ask you to confirm your acceptance of this by return email.
(c) If you fail to reply to confirm your acceptance of our offer but allow us to commence the supply of the Goods or Services without indicating to the contrary, or you make payment of some or all of the charges that we make for that supply, you will be deemed to have accepted our offer.
(a) A Proposal may be a formal document or it may be contained in the form of a letter or email and you will receive a Proposal from us usually if your requirements are a little more bespoke. The Proposal will set out the Services and/or Goods that you require and give you details of the Charges and other important information.
(b) These Terms will be appended to and referenced in the Proposal, but it may also contain Special Conditions. It may be that some or all of those Special Conditions conflict with these Terms. Where that happens, the Special Conditions always take precedence.
(c) If you are happy with the Proposal, please proceed as requested (e.g. by signing a Proposal where indicated, or perhaps in lower value contracts by confirming in a reply email that you are happy with the Proposal and wish to proceed). At this point, the Proposal effectively becomes your Order, which we will then accept by counter-signing the Proposal and returning a copy to you or perhaps by responding by email to confirm that we accept your Order or perhaps by simply commencing delivery of the Goods and/or Services in question.
GL3.2 We are not intimately familiar with your business nor are we precisely aware of the basis for your requirements, so you must ensure the accuracy of the terms of any Proposal or Order and give us any necessary information relating to the Services and/or Goods within a sufficient time to enable us to provide the Services and/or Goods in accordance with the Terms. We do not warrant that the Goods or Services that we are to supply are necessarily suited for the purpose you have in mind.
GL3.3 At any time we may make any changes to the Services and/or Goods that are necessary to comply with any applicable safety or other statutory requirements, or that do not otherwise materially affect the nature or quality of the Services and/or Goods.
GL3.4 You may not cancel an Order or terminate the contract without our written consent. If consent is given, you will indemnify us against all loss (including loss of profit), damage, claims, costs (including the cost of all labour and materials used), expenses and actions arising out of such cancellation or termination unless otherwise agreed in writing. Rolling contracts shall be renewed automatically unless written notice to the contrary is received from you no less than 1 calendar month prior to the renewal date in question. In the event of cancellation or termination by you part way through any 12-month period, you will remain, at our discretion, obliged to pay for the Services for the entire 12-month period.
GL3.5 Quotations are not binding on us and do not constitute an offer and we may withdraw or revise them at any time. Any typographical, clerical or other error in any sales literature, marketing materials, quotations, pricelists or other document that we issue or publish, whether electronically or in hard copy, shall be subject to correction without any liability on our part.
GL3.6 If you wish to make changes to the Services after we have accepted your Order, you must inform us in writing. We will consider the implications of the changes you wish to make and, if making those changes would increase the resources we must dedicate to the Services (such as studio time), we will advise you in writing of the effect that making the changes will have in terms of revisions to the Charges and any changes to timescales that we may have mapped out with you. We will not commence any such changes until you have accepted our revisions in writing and we will be under no liability to you in respect of any requested changes that have not been confirmed in writing as required under this clause.
GL4. Charges and Payment
GL4.1 Unless we have confirmed a different payment method with you in writing, in these Terms the Charges shall be set out in the Order and shall be exclusive of VAT and other applicable taxes and duties, which you will pay in addition. We will usually inform you in advance of any expenses that we are likely to incur in delivering the Services and/or Goods, but whether we do or do not, any such expenses will be paid by you in addition to the agreed fee.
GL4.2 You will also pay additional sums that, in our sole discretion, are required as a result of your instructions or lack of instructions, the inaccuracy or unfinished nature of, errors or additions or amendments to any Input Material or any other fault attributable to you.
GL4.3 You will pay the Charges and any other sums due together with any applicable VAT, and without any set off or other deduction,
(a) for Orders that are the subject of a Proposal, within 30 days of our invoice; or
(b) for Orders placed via the our websites or as a Direct Order, immediately.
GL4.4 If you fail to make payment as indicated at GL4.4 we shall charge you interest on the unpaid amount (before and after judgment) at a daily rate equal to 5 per cent per annum above the base lending rate from time to time of HSBC Bank plc from the due date until payment is received.
GL4.5 If it becomes necessary for us to issue legal proceedings in respect of any breach by you of these Terms, you will reimburse us for all costs and expenses that we incur as a result of having to take that action on an indemnity basis.
GL4.6 In the event that you do not make payment as required by these Terms, we may withhold or suspend delivery of the Services and/or Goods until such payment is made and we will not be liable for any loss or damage you suffer as a result of the delay in delivery. In the case of Services, we may, where applicable, post a notice in place of the Services explaining the reason for their unavailability.
GL5. Rights in the Input Material
GL5.1 You confirm that you are the sole beneficial owner of any and all IPR in the Input Material or that you are entitled to make use of the Input Material and to grant a sub-licence of those rights to us (which licence you do hereby grant) for the purpose of the provision of the Services.
GL5.2 We acknowledge that you (or your licensors) are the owners of all IP in the Input Material and shall remain so throughout the Project. We will only use the Input Material for the purposes of providing the Services or the creation of the Goods and when we have completed the Services or delivered the Goods, we will return all original Input Material to you or, where the Input Material is in digital form, we will securely erase it. Until such times we promise we will keep the Input Material safe but you should ensure you retain copies and all original materials. We will not be liable for the loss of Input Material under any circumstances.
GL5.3 You will indemnify us in full against all liabilities, costs and expenses that we might incur as a result of using Input Materials that arises from the infringement of IP belonging to third parties.
GL5.4 We shall not gain any rights over such IPRs by virtue of its use, but we shall be entitled to use the IPRs both during and after the production and supply of the Input Material to promote and advertise our own work. In the event that we terminate the Contract because of your breach, we shall be entitled to use any Input Material that is not confidential in nature in order to commercialise any Output Material that we have completed or of which we have commenced development. Should this situation arise, it will be for you to establish that any Input Material we intend to use in the commercialisation of the Output Material post-termination and which you allege to be confidential is, in fact, confidential.
GL5.5 You warrant to us that the Input Material does not contain inappropriate material such as material that infringes any applicable laws, regulations or third party rights, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or blasphemous. You will indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Input Material consequently contains any such inappropriate material.
GL5.6 You will give us access to any data that is to be migrated as part of the Services in sufficient time to permit us to meet our obligations specified in the Order. You are entirely responsible for the accuracy and completeness of any such data.
GL5.7 We will not be liable to you for any loss or damage to information or data stored on your systems or on systems that you control during an installation or otherwise. You are the best judge of the value of your data and you are responsible for ensuring that you have adequate back-up arrangements in place for all such information, data and other files at all times.
GL6.1 We will not be liable to you for any loss, damage, cost, expense or other claims for compensation arising from any Input Material or any instructions that you supply that are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or format or which arises from the late or non-arrival of such instructions or due to any other fault of yours or any delay in transit that is not caused by us.
GL6.2 Save as provided for at clause GL6.6 below, we will not be liable to you by reason of:
GL6.2.1 any misrepresentation;
GL6.2.2 breach of implied warranty, condition or other term;
GL6.2.3 breach of any duty at common law; or
GL6.2.4 breach of these Terms;
for any loss of profit, reputation, opportunity, goodwill, business or anticipated savings or any indirect, special or consequential loss, damages, costs, expenses or other claims (whether caused by our negligence or that of our servants or agents or otherwise) that arise out of or in connection with the delivery or late delivery of the Services or the nature or quality of the Goods, or the failure to provide the Goods or Services to you or any third party.
GL6.3 We will indemnify you against physical loss of or damage to your tangible property caused by our negligence or breach of contract and the aggregate sum of damages in respect of each such incident or series of connected incidents giving rise to such damage in any 12-month period shall be limited to £50,000. Save in respect of the supply of Goods (in respect of which, clause SG4.2 will apply), our liability under or in connection with the Terms for other damage or loss other than damage to or loss of your tangible property shall not exceed the amount of the Charges arising in the 12 months prior to the occurrence of the event that gives rise to that liability.
GL6.4 We will not be liable to you in respect of any defamation or breach of the British Codes of Advertising and Sales Promotion, the Data Protection Act 1998 or the Privacy and Electronic Communications (EC Directive) Regulations 2003 arising from the use of the Input Material in the provision of the Services or deliver of the Goods and you will indemnify us against any loss, damages, costs, expenses or other claims arising from any such defamation or breach.
GL6.5 You acknowledge that you are responsible for ensuring compliance under the Disability Discrimination Act 1995 and agree to indemnify us against any loss, damages, costs, expenses or other claims arising from any such breach.
GL6.6 Nothing in the Terms shall operate to exclude or limit our liability:
GL6.6.1 under Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982;
GL6.6.2 for any matter in respect of which it would be illegal for us to exclude or attempt to exclude our liability; and
GL6.6.3 for death or personal injury caused by our negligence or breach of these Terms.
GL6.7 All indemnities given by us under these Terms are provided on the basis that:
GL6.7.1 You give notice to us of the circumstances giving rise to any such indemnity as soon as you become aware of the same;
GL6.7.2 You provide us with sole conduct of the defence to any claim or action in respect of any infringement or other issue giving rise to the indemnity and you do not at any time admit liability or otherwise attempt to settle or compromise the claim or action except upon our express instructions;
GL6.7.3 You act in accordance with our reasonable instructions including providing us with whatever assistance we might reasonably require in respect of the conduct of the defence of the claim including the preparation of any court documentation or the attendance at any court hearings; and
GL6.7.4 The claim or action giving rise to the damages (including costs) awarded to or agreed with the third party in question does not arise from your breach of any part of these Terms.
GL6.8 Except in relation to Clause GL7, any liability that we may have to you shall cease two months after the completion or termination of the Services noted in the Order. We will have no liability to you under these Terms unless you have notified us of the event giving rise to the alleged liability as soon as reasonably practicable and in any event no later than 3 months from the date upon which you sustained (or started to sustain) loss or damage arising from that event.
GL6.9 Timescales and completion dates set out in the Order are estimates only and we will not be liable for any loss or damage you suffer in the event that the project is not completed in accordance with these timescales. For the purpose of the delivery date of the Output Material or Goods, time shall not be of the essence. However, we confirm that the timescales and dates cited are given in good faith and we will endeavour to achieve them.
GL7.1 Unless you agree something different with us in writing, in these Terms and subject to clause GL7.3, we will, in delivering the Services or supplying the Goods, treat all Input Material as strictly confidential and shall not disclose the same to any third party, other than third party sub-contractors who shall be bound by an obligation of confidentiality and to whom it is necessary to provide the Input Material in order for us to fulfil our obligations to you.
GL7.2 Unless you agree something different with us in writing, in these Terms and subject to clause GL7.3, you shall treat all prices and terms quoted as strictly confidential and shall not display, use or disclose the same to any third party for any reason whatsoever.
GL7.3 Clauses GL7.1 and GL7.2 shall not apply to any information:
GL7.3.1 already known to the other party or in its possession before the disclosure and free from the obligation to keep it confidential;
GL7.3.2 that is or becomes public knowledge through no wrongful act or default of the relevant party;
GL7.3.3 received from a third party without similar obligations of confidence and without breach of the Terms;
GL7.3.4 independently developed;
GL7.3.5 disclosed to a third party without similar restrictions on that third party’s rights of disclosure; or
GL7.3.6 approved for release by written authorisation to you from us.
GL7.4 Our obligations under clause GL7.1 above shall continue in respect of each element of the Input Material as long as that element in fact remains confidential (if, indeed, it ever was). We shall be entitled to disclose your confidential Input Material only as expressly provided for under these Terms.
GL8. Assignment and Sub-Contracting
GL8.1 We do not give you permission to assign any part of the contract under any circumstance.
GL8.2 There may be occasions when we need to sub-contract the delivery of the Services and/or Goods. The choice of sub-contractor is entirely at our discretion.
GL.9 Notice to be given under the Terms must be given by a prepaid first class post and shall be deemed served on the next working day between 9.00 am and 5.00 pm. Any notice sent by electronic mail shall be deemed to have been sent on the date of transmission providing the sender has a valid read receipt or other written acknowledgment.
GL10.1 We will not be liable for any failure to deliver or delay in delivering the Services caused by reasons that are beyond our reasonable control.
GL10.2 Even though we may not insist on your compliance with an obligation on you under these Terms at any given time, we may still require you to comply with that obligation in future or to correct your non-compliance.
GL10.4 We will not be liable for any breach of the DPA by any sub-contractor to whom we may lawfully pass personal data relating to the Project. You consent to the holding, processing and accessing of personal data provided to us for the purpose of the Project including the transferring of such personal data to a sub-contractor or an agent for the purposes of debt collection. If you so request, we will notify you of all sub-contractors to whom we have passed such personal data in delivering the Services.
GL10.5 The Contract (Rights of Third Parties) Act 1999 shall not apply to the Contract. Nobody other than you or us will have the right to enforce any of these Terms. Nothing in these Terms or in the Order shall be interpreted so as to imply any partnership, joint venture, employment, franchise or agency between you and us. You may not bind or purport to bind us into any contract with any third party save with our express written permission in advance.
GL10.6 Without prejudice to any other right or remedy available to us, we may terminate the Contract or, notwithstanding any previous agreement or arrangement to the contrary, suspend any further delivery without liability to you and where the Goods have been delivered but not paid for the price shall become immediately due and payable if:
GL10.6.1 you make any voluntary arrangement with your creditors, or
GL10.6.2 (being an individual or firm) become bankrupt, or
GL10.6.3 (being a company) become subject to an administration order (whether out of court or otherwise), or go into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or an encumbrancer takes possession of or a receiver or administrator is appointed over any of your property or assets, or
GL10.6.4 you cease to trade or threaten to cease trading
GL10.7 We may terminate the Contract if you breach these Terms in a manner that cannot be put right or, if it can, thirty days after we have informed you in writing of the problem and what you need to do to correct, you haven’t put things right.
GL10.8 You will not directly or indirectly recruit any person employed or engaged by us for the purpose of delivering the Services and/or supplying the Goods (including any sub-contractor) for a period of six months following completion of the Services.
GL10.9 The Terms shall in all respects be determined and governed by English law. The parties submit to the exclusive jurisdiction of the English courts.
PART WD – WEB DESIGN
WD1.1 We will deliver the Services with reasonable skill and care but we do not promise that Output Material will operate without interruption or error-free.
WD1.2 Unless we agree with you to the contrary, Output Material will be hosted on our servers, subject to these Terms.
WD1.3 If applicable, we will provide basic training and support as specified in the Order. However, if you are not used to administering websites and the like, you may feel you need additional training. If so, please contact us so we can arrange a further training session. Any further training above and beyond that specified in the Order will be the subject of Additional Charges.
WD1.4 Third party software will be supplied in accordance with the relevant licensor’s terms and your use of that software will be subject to an end user licence agreement from that licensor. Licence fees for third party software are subject to change and you acknowledge that this is out of our hands. However, but for any changes to pricing made by the Licensor or any applicable reseller, the licence fees will be as specified in the Order.
WD1.5 We will need your help if we are to deliver the Services to your budget and timescales. Therefore, you agree that you will provide any assistance or co-operation that we need from you in a timely fashion. This includes any decisions that we need you to take as we proceed. It also means that we need your Input Material to be accurate and complete at the first time of asking, and we will provide you with a timetable specifying what Input Material (or other information, data or documentation in your possession or control) we need from you and when.
WD1.6 When we ask you to check or test Output Material, you must do so within the timeframe that we have requested. If you fail to do so, the project may be delayed and there may be Additional Charges. If you determine that there are faults in the Output Material or you have identified corrections that must be made or there is any other reason at all why you feel that the Output Material does not meet the specification set out for it in the Order, you must inform us at this time. Alternatively, if you are happy with what we have asked you to check or test, you must inform us in writing. If you fail to confirm the results of your checks and tests within 7 days of the date upon which we have requested those results, we shall be entitled to assume that you are happy with and have accepted the Output Material in question.
WD2. Rights in Output Material
WD2.1 No part of the Output Material may be copied, reproduced or modified in any form by any means without our prior written approval. We hereby grant you a licence to load, display, run, transmit, store or use the Output Material (including any software) for the sole purpose specified in the Order, subject to these Terms.
WD2.2 Until you have accepted the Output Material in accordance with clause WD1.6, you will not publish, copy or in any other way use the Output Material without our written permission. Should you do so, your use of the Output Material will be an infringement of our IPRs in respect of which we will be entitled to take action.
WD2.3 You will not
WD2.3.1 copy the whole or any part of any software that forms part of the Output Material except that you may to make back up copies of that software for security reasons only; and
WD2.3.2 decompile, reverse engineer, translate, adapt, arrange or alter the whole or any part of any software forming part of the Output Material, save as permitted under the Copyright Designs and Patents Act 1988 (as amended).
WD2.4 The Output Material is only for use in its entire form and for the purpose specified in the Order. You may not reproduce, modify, copy or redistribute any part of the Output Material in order to produce a new product or project not specified in the Order.
WD2.5 You will not make use of, copy or disclose to any third party any scripts, underlying principles or ideas in the Output Material, whether or not such script, principles or ideas were discovered through your lawful use of the Output Material.
WD2.6 You acknowledge that any and all of the IPRs, created, developed, subsisting or used in or in connection with the development of the Output Material are and shall remain our sole property unless we agree with you in writing to the contrary.
WD2.7 In the event that new inventions, designs or processes evolve in the performance of or as a result of our delivery of the Services, you acknowledge that they will be our property unless otherwise we agree with you in writing to the contrary.
WD2.8 Subject to any embargo date that we may have agreed with you, we may use the Output Material and reference the Services delivered in our own marketing as part of our portfolio.
WD2.9 The Output Material may contain technical protection measures that we may use to ensure that the Output Material is used solely for the purposes stated in the Order.
WD3. Charges and Payment
WD3.1 Unless the Order provides for payment by identified milestones or we have agreed something similar with you in writing, you shall pay 50% of the Charges on our acceptance of the Order and before work begins and the remaining balance of the charges before the Output Material is signed off and made ready by us for launch. We may invoice the Client for the charges in full in the event that the Client’s compliance with clause WD1.6 is unreasonably delayed.
WD3.2 We shall issue invoices in respect of the charges relating to the ongoing maintenance and hosting services as set out in the Order, which charges we will review annually review. We will notify you promptly of any increases.
WD3.3 Repairs that we carry out to remedy damage to the Output Material caused by you or third parties shall be charged at our standard rates, from time to time in force.
WD4.1 Save for any infringement arising from the breach by you of your obligations under any part of clause GL5 above and subject to clause GL6, we warrant that the Output Material and your use thereof will not knowingly and intentionally infringe the IPRs of any third party and we shall indemnify you against any loss, damages, cost, expenses or other claims arising from any such infringement. Save for any third party software or products that form part of the Output Material, we warrant that we have free and unencumbered title to and property in the Output Material and/or that we have right, power and authority to licence the same in accordance with the Terms.
WD4.2 We give no warranty in respect of the quality or fitness for purpose of any third party software supplied or any related services to be delivered by a third party.
WD4.3 You acknowledge that the need for routine maintenance and error correction may result in downtime for which we will not be liable. Likewise, your failure to procure appropriate levels of support for the Output Material may result in longer periods of downtime and possibly damage to the Output Material for which we will not be liable.
PART SE – SEARCH ENGINE OPTIMISATION (“SEO”) & SOCIAL MEDIA
SE1.1 We will use reasonable care and skill in providing the Services with the objective of improving your online visibility as described in the Proposal.
SE1.2 Although we will provide the Services to the standard that may be expected from a competent online marketing services agency, you acknowledge that the nature of SEO is such that we cannot guarantee any definitive levels of success or specific outcomes. In particular, you acknowledge that if you make changes to a website in respect of which we are providing Services, this may affect the results achieved.
SE1.3 Since it takes at least 3 months to see a return on SEO Services in terms of greater visibility and a more marketable status, you agree to retain us for a minimum Initial Period of 3 months. During the Initial Period, the specification of the Services that we are to deliver may not be reduced or downgraded.
SE1.4 After the Initial Period, you may continue specify a further fixed term for the continued delivery of the Services. If you do not, the Contract will continue on a rolling monthly basis. You may terminate at any time by giving 30 days’ notice, which termination must take effect on the final day of the month in question. No refunds will be given.
SE1.5 In managing your online advertising activity, we will obtain your written consent prior to going live with any campaign or commencing any contract on your behalf. Where we are required to contract on your behalf but in our name, we will endeavour to transfer that contract to you when the Services come to an end.
SE1.6 Where the Services include copywriting or the creation of infographics, we warrant that the Output Material produced will be of our own authorship or that we are otherwise entitled to licence that Output Material to you under these Terms. When we complete the Output Material in question, we will provide it to you so that you may check it and request any corrections. If you do not respond with any changes that you would like to make to the drafts within 7 days, you will be deemed to have accepted the Output Material in its current form. You may not make use of any such Output Material unless you have accepted it expressly or you have been deemed to have accepted it under this clause SE1.6.
SE2. Charges and Payment
SE2.1 All Charges are made in advance and you will pay the Charges made in respect of the Initial Period is at the Commencement Date. Services delivered beyond the Initial Period shall be invoiced monthly in advance.
SE2.2 We will review the Charges annually and will notify you of any increases, which will take effect at the end of the calendar month following the month in which we give you notification.
SE2.3 If you wish to increase the specification of the Services that we are to supply, increased Charges will apply, which we will confirm in writing before commencing the revised Services. Where the change in specification is to take effect during a period for which an invoice has already been raised, a pro rata charge will be invoiced immediately with payment due in accordance with these Terms.
SE2.4 We may ask you to provide us with funds to hold on account of expenses that we are to incur in managing your online advertising activity. When this happens, we will hold those funds on trust for you in a separate account and draw down on them as and when the expenses are incurred, issuing you with a receipted invoice documenting the transactions at such intervals as we feel to be appropriate.
SE2.5 Alternatively, if we are not holding funds on account of our expenses, we may invoice for those expenses at immediately before the expenses concerned
SE3.1 You warrant that all information that you supply to us (including keywords and social media account log-in details) are accurate and current in all respects. You also warrant that you are entitled to make use of the keywords that you wish us to use in the delivery of the Services and that our use of social media accounts on your behalf and any advertising materials that we are to manage on your behalf will not infringe the IPRs of any third party.
SE3.2 You will indemnify us (including our officers and employees) against all damage, claims, expenses, loss and costs (including legal fees) that we suffer as a result of your breach of the warranties you have given at clause SE3.1.
SE3.3 Should we so request, you will produce evidence to our reasonable satisfaction that you are entitled to make use of the keywords, social media accounts and advertising materials that we are to use in delivering the Services and that these things will not infringe any third party IPRs or breach any laws or regulations in any applicable jurisdiction.
SE3.4 Should we reach the reasonable conclusion that any advertising materials, social media accounts or keywords you ask us to manage contains content that is illegal, unlawful or generally objectionable in any way, we may suspend or terminate delivery of the Services immediately and without notice. Should we suspend or terminate delivery in this way, you will not be entitled to any refund.
SE3.5 We do not warrant that Output Material will comply with advertising codes of practice for any media for which that Output Material has been produced. In the event that you provide Input Material for us to implement in the course of managing your advertising activities, just because we proceed to publish that material does not mean that we confirm that its use conforms with any such codes of practice or other regulations or laws. It is for you to seek independent advice on these compliance issues, should they arise.
PART DN – DOMAIN NAME REGISTRATIONS
DN1.1 Registering domain names can be a complicated process. We will handle your application to register a domain name for you, but it is ultimately the “Registry” for the domain concerned that takes the decision on whether you can or cannot have the domain name you desire. The Registries have their own rules and regulations that govern the registration of the domain names they control. So, for your application to succeed, you must comply not only with our terms but with the rules and regulations of the Registry that controls the domain in which you wish to register a domain name. You can find more about the applicable “Registry Rules” here.
DN1.2 We will use reasonable endeavours to complete your domain name registration, which will be tailored to your specification. Any Services that we are to supply relating to the domain name will commence at the point that your application is submitted to the Registry.
DN1.3 We manage domain name portfolios for clients all over the world but part of our work involves weeding out the many fraudulent attempts at domain name registration that we receive, most of which originate from overseas. This means we will have to carry out an anti-fraud check before processing your application.
DN1.4 Many Registries are open to applications from around the world, so it is always possible that in the moments between you finding that the domain name you want is free and your application being submitted, somebody else may have got in there first. It may also be that the search you carried out was based on a database that was out of date. Whatever the root cause might be, if your application fails because the domain name in question is registered to a third party, we will refund the Charges.
DN2. Your Obligations & Warranties
DN2.1 You warrant that you will not use any domain name that we register for you to communicate, reproduce, transmit, store or knowingly receive any material that is unlawful, illegal, defamatory or which infringes the IPRs or right to privacy of any third party or which breaches any obligation of confidence owed to a third party.
DN2.2 You warrant that all information you provide in support of your application to register a domain name is accurate, true and correct and that you will keep that information up to date whilst we are providing the Services. If you do not, we may be unable to make contact with you about renewals and your registration may lapse.
DN2.3 You warrant that you have checked the restrictions imposed by the Registry that administers the domain within which the domain name that you wish to register falls. You understand also that the information about those restrictions that we have provided is subject to change and that, although we will try to keep it up to date, it might not be 100% accurate at any given time.
DN2.4 You warrant that neither the registration of the domain name nor the manner in which it is used will infringe the IPRs of any third party. You warrant that you have satisfied yourself that the domain name you wish to register is suitable for your purposes and will not infringe any third party IPRs. You are aware that if the domain name does infringe third party IPRs, you could face legal, regulatory action or even prosecution.
DN3.1 Domain name registrations are normally completed in about 24 hours but it can take longer in some instances, depending on the Registry concerned. We will have no liability above and beyond our obligation to use reasonable endeavours to process your application and we will not be liable for any delay caused by third parties or systems that are beyond our control.
DN3.2 We reserve the right to cancel, reverse, suspend or refuse the Services where the delivery of those Services would place us in breach of statutory obligations, terms of a Court Order, Registry Rules or the laws of England or any other applicable jurisdiction. We may cancel, reverse, suspect or refuse to provide Services where we consider the domain name in question to be illegal, unlawful, defamatory, an infringement of the IPRs of a third party or offensive in any other way. In the event that Services are cancelled, reversed, suspended or refused under this clause DN3.2, we will be under no obligation to provide a refund of the Charges.
DN3.3 Subject to the promises you have given under these Terms, what you do with your domain name once it is registered is up to you. Our role in providing domain name registration Services is effectively a mechanical one. We will not be liable for any infringement of third party IPRs or any other legal or regulatory action brought or sanction imposed or commenced by a third party as a result of your registration of the domain name and you indemnify us for any loss, damage or costs that we may incur or sustain as a result of your actions.
DN3.4 You will not be entitled to a refund of the Charges under any circumstances in respect of any domain name registration or application to register a domain name save as expressly set out in these Terms.
DN4.1 We will send domain renewal notices by email to the address that you provide and/or by such other electronic means as we may arrange with you from time to time. Renewal notices will be sent at our discretion and you should renew as early as you can.
DN4.2 We will not be liable for any failure to remind you about a renewal of a registration (including any loss or damage you suffer as a result of losing your registration following a failure to renew in time), whether that failure arises because the contact information is out of date or whether it occurs as a result of any kind of systems error. The responsibility to note and action a renewal is yours alone. You should NOT leave it until the last minute to renew a domain name. We recommend that you renew your registrations at least a week in advance of the renewal date.
DN5.1 A Transfer is the transfer of a domain name registration from us to another Registrar, a Registrar being a company like us that handles domain name applications on behalf of its clients.
DN5.2 You may not Transfer a domain name registration to another Registrar within sixty days of the date your domain registration takes effect
DN5.3 Some Transfers are subject to Additional Charges and we will let you know if this is the case for you. If it is, you must settle the Additional Charges before we will carry out our end of the Transfer. We reserve the right to refuse Transfer requests unless and until we receive full payment of Additional Charges due.
DN5.4 Once we have carried out our side of the Transfer, we will have no further liability under any circumstances in respect of the domain name registration in question. If you experience any issues in completing the Transfer, you will have to take this up with your new Registrar.
DN5.5 Likewise, where you wish to Transfer domain name registrations to us from other Registrars, we will not be liable for any failure on the part of the other Registrar to execute the Transfer properly, punctually or at all and you will have to take up any such failure with the Registrar in question.
PART DC – DATA CENTRE SERVICES
DC1.1 In this Part, we will be using some more defined terms, so when you see the following, they will have the meaning we set out here.
AUP means our Acceptable Use Policy, which we will update from time to time. You can find a copy on our website.
Initial Period means a period noted in the Order during which you may not serve notice of termination in accordance with clause DC6.3.
Equipment means the hardware that you install (or which is installed for you) at the Premises.
Premises means the site specified in the Order.
Rack means a standard 19” computer cabinet with a Half Rack and a Quarter Rack being spaces allocated within a Rack.
SLA means any service level agreement to which our delivery of the Services may be subject, as detailed in the Order.
DC2.1 We will use reasonable care and skill in providing the Services for the duration of the Contract in accordance with these Terms, the Order and the SLA and we will make sure that the Premises are kept in a manner consistent with industry standard for facilities of their type.
DC.2 From time to time, it may be necessary for us to make changes to the Services in order to comply with safety, security or other requirements. Where these changes do not materially affect the nature or quality of the Services we deliver to you, we may proceed with them immediately and notify you as soon as reasonably practicable after they have been made.
DC2.3 Additional Charges will apply to any further services you request beyond those specified in the Order and this will include fees relating to excess bandwidth or power usage. We may also invoice as Additional Charges any additional costs or expenses that we incur as a result of your instructions or lack thereof, including delays and mistakes and changes in specification or requirements.
DC2.4 We may require you to relocate Equipment within the Premises and if so, we will notify you and consult with you over how this is to take place. We will use reasonable endeavours to make sure that any disruption to your business is kept to a minimum.
DC2.5 We give you contractual permission to use our Premises and facilities for the purposes specified in the Order for the duration of the Contract only. You will not acquire any right of occupation or any other rights regarding the Premises as a result of the Contract or in any other way.
DC2.6 If you are the target of a network attack, we may take any action that we reasonably deem to be necessary to return server or network operation to normal. This may include a temporary suspension of your account. You acknowledge that in such an eventuality, we must safeguard the security of our other clients.
DC2.7 If we are informed of an alleged infringement of the intellectual property rights of a third party that involve your use of the Services and if it is lawful for us to do so, we will attempt to notify you of those allegations and hear your response. However, we may, at our discretion, remove, suspend or terminate the Services that are alleged to give rise to the alleged infringement in question and if we do, we will not be liable for any loss or damage that you suffer as a result nor shall you be entitled to any refund on any Charges paid or payable for any period during which the Services are interrupted. Any data or information transmitted or stored via the Services in any form shall be interpreted as Input Material for the purposes of clauses GL5.1, GL5.3 and GL5.5.
DC2.8 We may temporarily suspend part of all of the Services for the purpose of repair, maintenance or improvement. We will try to inform you of any such Service interruptions but you acknowledge that occasionally this may not be practicable. In such instances, we will do everything we can to get the Services back up and running as quickly as possible and such interruptions shall be regarded as Planned Outages or Planned Maintenance for the purposes of the SLA.
DC3. Your Obligations
DC3.1 You will provide us with all the information, materials and other assistance we may need from you to enable us to deliver the Services or is otherwise reasonably required in connection with the Services. You will ensure that any such information is accurate and all assistance we request from you is delivered in a timely manner.
DC3.2 You will comply with the any rules relating to the use of the Premises or other facilities. You will comply with the AUP as it applies from time to time. We may revise the AUP at any point and if we do, we will notify you of the changes and of the date upon which the revised AUP will come into force. You will also comply with all applicable laws and regulations that relate in any material way to the Services such as the Computer Misuse Act 1990 and the Data Protection Act 1998. You and only you are responsible for ensuring the activities you carry on or that you permit to be carried on via the Services are lawful in any applicable jurisdiction. If you are ensure of the implications of this, we encourage you to seek expert legal advice immediately. You will be responsible for the actions of any third party whom you allow to use the Services, such as a customer accessing your website or a contractor accessing your network.
DC3.3 Even though you may have discussed your needs and requirements with us, you hereby acknowledge that we are not in a position to assess any loss you may suffer as a result of the failure of the Services, the Equipment or any other default on our part. It would be impractical and uneconomic for us to insure against those losses. You will ensure that you have adequate insurance to cover loss or damage to yourself or your customers as a result of the failure of the Equipment or the Services. Likewise, you will insure against loss or damage that might be caused to us or our other clients as a result of your breach of these Terms, your negligence or any malfunctioning Equipment that you have installed at the Premises.
DC3.4 You will not:
DC3.4.1 use any part of the Premises for any purposes other than the purposes specified in the Order in pursuit of your lawful business;
DC3.4.2 do anything at the Premises that breaches health and safety, security or any other regulations or laws or other rules that we may have set down nor will you do anything that would put us in breach of any covenants or insurance conditions that we have notified you of from time to time;
DC3.4.3 exceed the specified maximum limit of electrical power usage to each Rack nor allow or do anything that would cause an interruption in power at the Premises or to the Services;
DC3.4.4 do anything that may be dangerous, a nuisance or cause any inconvenience or other disturbance to us or our other clients;
DC3.4.5 make any use of the Services that would constitute any form of alarm, nuisance or abuse to others via the internet, including the distribution of unsolicited commercial email, the launch of denial-of-service attacks or any other general nastiness to which we, at our discretion, take exception.
DC4 Our Obligations
DC4.1 In addition to delivering the Services, we will allow your representatives to access the Premises at any time in accordance with the entry requirements notified to you from time to time save for emergencies or where we have notified you that the Premises are unavailable for access for some reason.
DC4.2 We will make sure that the area that we have allotted to you within the Premises for the storage and operation of the Equipment has sufficient air conditioning, a climate of static humidity, a fire suppression system and appropriate security and electrical supplies in accordance with any applicable SLA or in the absence of an SLA, as is reasonable in the circumstances.
DC4.3 We will do whatever we can within reason to ensure the privacy of your email services, the use of your network and the contents of your user directories. However, you acknowledge that we will disclose any and all such information where we are so required by law or under the terms of a court order. Such instances are very rare and when it happens, we will often be prohibited from informing you of such developments. However, if we are not so prohibited, we will use reasonable endeavours to alert you to the issue so you may seek urgent legal advice.
DC5. Fees and Payment
DC5.1 We will invoice you at the intervals indicated in the Order. You will settle our invoices as provided under these Terms and your payments will be in cleared funds and shall not be subject to any set-off or deduction. We may ask you to settle our invoices by direct debit and where this is the case, you will complete and return to us as soon as reasonably practicable any form that we provide to enable us to make the requisite arrangements.
DC5.2 We may review our prices at any time but any increases we impose will be no more than is reflected by any increase in the UK Retail Prices Index over the period since the previous review.
DC6.1 The provisions of this clause DC6 are without prejudice to our right to terminate the Contract under clauses GL10.6 and GL10.7.
DC6.2 The Contract will start on the Commencement Date and will continue from month to month until it is terminated by either you or us in accordance with the Terms
DC6.3 You may not be entitled to give notice of termination until the expiry of the Initial Period (if any).
DC6.4 Subject to clause DC6.3, either party may terminate this Contract on three month’s written notice.
DC6.5 We will cease delivery of the Services immediately on termination. You will pay all outstanding Charges (and Additional Charges) due in respect of the delivery of the Services for the duration of the Contract (or Charges that would have been due in respect of the delivery of the Services should the Contract be terminated for any reason prior to the expiry of the Initial Period. You will also remove all of your Equipment from the Premises and return to us any materials or confidential information in your possession as soon as practicable following the date the Contract terminates.
DC6.6 We may remove your Equipment from the Premises if you have failed to remove it within 4 weeks if the date on which the Contract terminates.
DC6.7 We may exercise a lien over your Equipment in respect of any unpaid Charges still outstanding 4 weeks after termination and we shall be entitled to sell that Equipment in the event that in remains on the Premises or otherwise in our possession and the said unpaid Charges remain outstanding 8 weeks from the date upon which the Contract terminates in order to recoup those Charges. We shall account to you for any balance remaining following settlement of the Charges. However, for a period of 4 weeks from the date that the Contract terminates, providing all Charges and Additional Charges have been settled, we will not gain any interest in your Equipment or anything stored thereon, whether by lien or otherwise, and we will not remove or deface any markings from your Equipment indicative of your ownership thereof.
DC6.8 We will all you to enter our premises for the purpose of recovering possession of your Equipment following termination of the Contract although we may reserve you entry in the event that any Charges or Additional Charges remain unpaid.
DC6.9 You may require assistance with the rearrangement of your network architecture following the termination of the Contract. We will provide you with any expert assistance you require for a period of 6 months from the date upon which the Contract terminates. Any such assistance will be provided subject to these Terms (even though the Contract may be regarded as having terminated by then) and shall be subject to your payment (in advance, should we so require) of Additional Charges at such published rates as may apply at the time.
DC6.10 We may suspend your account in the event that:
DC6.10.1 you exceed account limits on the volume of Disk Space (the amount of data) that you are using on a shared hosting solution;
DC6.10.2 you exceed account limits on the volume of Traffic (the data transferred in MB) your use of any hosted solution is generating;
DC6.10.3 you fail to settle immediately any Additional Charges due in respect of the use you are making of the Services.
DC6.11 In the event that you upgrade your account to a package with greater allowances for Traffic or Disk Space, any suspension that we have imposed will be lifted automatically.
PART SG – PRODUCT SALES
SG1.1 In consideration of your payment of the Charges, we will supply the Goods to you. We will use reasonable endeavours to ensure that the Goods correspond with any samples, prototypes or descriptions referred to in the Order or previous batches of Goods supplied, but you accept that it may be necessary for us to substitute Goods where the product specified in the Order has been discontinued, revised or updated provided that the replacements are capable of performing to the standards of the Goods replaced.
SG1.2 Third party software is supplied subject to an end user licence agreement. Where software is delivered by download, you may be required to accept that licence agreement before commencing the download or at the outset of the installation.
SG1.3 The Charges shall exclude VAT, carriage and insurance save where expressly stated to the contrary.
SG2. Delivery and Acceptance
SG2.1 We will arrange delivery of the Goods to your address on the date specified but we will not be liable for delays in transit caused by the carrier or weather conditions, etc. You should make sure that there is somebody on hand to accept delivery of the Goods when they arrive. For software that is to be delivered by download, you are responsible for the stability of your internet connection but if something goes wrong, please contact us so that we can make arrangements for the completion of your download.
SG2.2 Any dates that we specify for delivery of the Goods are intended to be an estimate and time for delivery shall not be made not be made of the essence by notice. If no date for delivery is specified in the Order, we will deliver the Goods within a reasonable time of our acceptance of the Order.
SG2.3 If for any reason you fail to accept delivery of any or all of the Goods when they are ready for delivery:
SG2.3.1 risk in the Goods (including risk of loss or damage caused by our negligence) shall pass to you with immediate effect;
SG2.3.2 the Goods shall be deemed to have been delivered; and
SG2.3.3 we may store the Goods until delivery, whereupon you will be liable for all related costs and expenses (including, without limitation, storage and insurance).
SG2.4 We may make delivery by separate instalments, in which case each separate instalment may, at our discretion, be individually invoiced and paid for by you in accordance with these Terms.
SG2.5 You shall be deemed to have accepted the Goods and we shall not be liable for any damage to or shortage in or other defect in the Goods unless you have notified us of that damage, shortage or defect within 7 days of the date upon which you discovered or ought to have discovered the damage, shortage or defect in question.
SG3. Title and Risk
SG3.1 The Goods are at your risk from the time of delivery (or the deemed time of delivery in accordance with clause SG2.3).
SG3.2 Ownership of the Goods shall not pass to you until we have received in full all sums due to us in respect of the Goods and all other sums that are or that become due to us from you on any account.
SG3.3 Until ownership of the Goods has passed to you, you shall:
SG3.3.1 hold the Goods on a fiduciary basis as our bailee;
SG3.3.2 store the Goods (at no cost to us) separately from all other goods (whether belonging to you or to any third party) in such a way that they remain readily identifiable as our property;
SG3.3.3 not destroy, deface or obscure any identifying marks or packaging on or relating to the Goods; and
SG3.3.4 maintain the Goods in a satisfactory condition and keep them insured on our behalf for their full price against all risks to our reasonable satisfaction. We may ask you to produce a copy of the insurance policy and if we do, you will provide it to us as soon as reasonably practicable.
SG4.1 We do not warrant that the use of any software will be without interruption or error-free.
SG4.2 Subject to clause SG4.1 and save in respect of defects that would have been apparent to you were you to have carried out a reasonably diligent inspection at the time of delivery, we warrant that the Goods will conform to the specification set out in the Order and/or any sample provided you and that for a period of six months from the date of delivery or deemed deliver, the Goods shall be free from defects in workmanship and materials.
SG4.3 In the event of our breach of the warranties given at clause SG4.2, we may, at our discretion, replace or repair the Goods found not to comply with the specification cited in the Order or to be defective in some way. You accept and acknowledge that our repair or replacement of the Goods will be your sole remedy in the respect of the breach of those warranties, subject at all times to clause GL6.6.
SG5.1 Where Goods are supplied to conform with your specifications in respect of design and components as set out in the Order, we shall have no liability to you for the quality, safety or suitability of the Goods and we provide no warranty in respect thereof and you will indemnify us against any loss, damages, costs, expenses or other claims arising in respect of the quality, safety or suitability of the Goods.
SG5.2 Our liability to you in respect of the supply of the Goods, whether for breach of contract, negligence or otherwise, shall not exceed the price of the Goods as specified in the Order.
SG5.3 We will not be liable for and damage to or defects in Goods caused by their improper use (including storage, commissioning, use or maintenance contrary to any operating instructions provided, whether the same are provided orally or in writing) or use outside their normal application or where you have failed to inform us of damage or defects to the Goods in accordance with clause SG2.5 or where you have not paid for the Goods in full.
SG5.4 Save for the conditions implied by section 12 of the Sale of Goods Act 1979 and always subject to clause GL6.6, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, are excluded.
SG5.5 Save where delivery is not possible due to an event of force majeure, any liability we may have arising from the non-delivery of Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note against any invoice (or part thereof) raised for the non-delivered goods in question.
SG5.6 Where you have rejected any Goods you shall have no further rights whatsoever in respect of the supply of those Goods or our failure to supply Goods that conform to the specification provided in the Order.
SG5.7 Where you accept or have been deemed to have accepted any Goods then we shall have no liability whatsoever to you in respect of those Goods save where specified in these Terms to the contrary.