The terms and conditions of the provision of Internet services provide by Webarch Co-operative Limited.
In the Conditions the following words and phrases shall, unless the context otherwise requires, have the following meanings:
2.1 For the avoidance of doubt, the terms of this Agreement are not binding on the Company unless and until the Company sends confirmation of its acceptance to the Customer in the form of the Acceptance Email.
2.2 The Company may require to change the terms of the Conditions or AUP from time to time during the Term of the Agreement. In such an event, reasonable notification will be given by the Company by the posting of any amended Conditions or AUP on the Webarchitects Website. It is the responsibility of the Customer to regularly check for any such notification. Following such notification, if the Customer does not wish to accept such change, the Customer may terminate the Agreement at any point during the Term by giving thirty days written or email notice to the Company. If the Customer continues to use the Services following any changes having taken effect, such use of the Services will be deemed to constitute acceptance of any changes and the Customer will be bound by any new terms for the remainder of the Term.
2.3 The Customer has the right to cancel Services within 7 days of the Agreement Date. Use of the Services during or following any such period of cancellation will act as a waiver of such right to cancel.
3.1 The Customer represents that it has the power and authority to enter into the Agreement and that in using the Services it will comply with this Agreement, any applicable legislation or licence and in particular, applicable data protection legislation.
3.2 The Customer is responsible in all respects for the content of the Customer Website and hereby undertakes that the pages displayed on the Customer Website do not and will not violate any applicable law, and that it shall at all times comply with the AUP. The Customer must ensure that any page on the Customer Website liable to offend or containing links to adult material must display a clearly readable warning page on any path of links from the index page of any directory to such material, so that anyone following such a path will receive a clear warning as to the nature of its contents, before the material is displayed.
3.3 The Customer undertakes and warrants to the Company that it will only use the assigned Web Space for lawful purposes. In particular, the Customer warrants that it will not, nor will it authorise or permit any other party to use the Server in violation of any law or regulation and it will not recklessly link to or transmit any material containing a virus or other potentially damaging computer programme.
3.4 The Customer shall obtain and be responsible for obtaining and complying with all necessary permissions or consents in respect of any works that it includes on the pages of the Customer Website. In addition, the Customer warrants to the Company that by using the Services and by hosting the Customer Website, neither the Customer nor the Company respectively will be infringing any third party intellectual property rights.
3.5 When submitting an Order, the Customer shall provide contact details and shall inform the Company immediately of any changes to these details, which may be necessary in order that the Company can easily notify the Customer of information concerning the Services.
3.6 Other than where, as part of the Services, the Company has agreed to provide Backup Services, the Customer is responsible for Backup of its own files. The Customer shall be responsible for maintaining any insurance cover in respect of any loss or damage to data stored on the Server.
3.7 The Customer will be responsible for keeping all identification details, password details and other confidential information relating to the Services safe and secure and will notify the Company immediately of any unauthorised use of the Services or any breach of security, loss, theft or disclosure of any identification details, password details or confidential information.
4.1 The Company shall use reasonable endeavours to perform the Services and shall, as soon as reasonably practicable following receipt of an Order, provide the Customer with a user identification, password for the Web Space and Website support details. The Company accepts no liability in respect of any loss incurred as a result of disclosure of the Customers' password.
4.2 The Company gives no warranty that access to its Server and the Customer's Website shall be uninterrupted or error-free. For the avoidance of doubt, any claims made about the availability of the Services are targets. While the Company shall use reasonable endeavours, any failure by the Company to achieve targets shall not constitute a breach of contract. The Company accepts no liability for any loss whatsoever, suffered by the Customer, in the event that the Services are interrupted, are not error-free, or if the Company fails to achieve any targets.
4.3 During the Term of the Agreement, the Company may make web statistics available to the Customer. The Company shall use reasonable endeavours to ensure that these are accurate but the Company accepts no liability for any loss whatsoever, suffered by the Customer, as a result of its reliance on the content of web statistics.
4.4 By submitting an Order the Customer provides the Company with certain personal information or data. It is the responsibility of the Customer to keep the personal data provided to the Company up to date. The Company will comply with all applicable data protection legislation. Any personal data will not be passed to third parties without the prior consent of the Customer, other than as set out below. If the Customer breaches the Agreement or otherwise jeopardises or compromises the integrity of the Company's network, the Company may take whatever steps it considers appropriate to investigate and resolve any such matter. Without limitation, the Customer authorises the Company to use the Customer's personal data and other information relating to the use of the Services in connection with any such investigation, including by disclosing it to any third party which has a legitimate interest in any such investigation or outcome.
5.1 When submitting an Order, the Customer will select the type of Services which it requires and in particular the Customer will specify, from the available options, the level of Web Space sought. Depending on the type of Services selected and in line with the amount of Web Space required the Customer will also be subject to an appropriate Web Space Limit, Data Transfer Limit and in certain circumstances a Database Capacity Limit ("the Limits"). In the event that the Customer, during the Term, exceeds its allocated Limits, the Company will be entitled to do the following:-
5.1.1 Where the Customer is exceeding any one of the Limits by the relevant Soft Quota Amount, the Company shall inform the Customer of this by email ("Initial Email"). The Initial Email shall request that the Customer rectify the situation by either complying with the Limits or by requesting an Upgrade within a period of 14 days from the date of the Initial Email. In the event that the Customer fails to request an Upgrade and continues to exceed any one of the Limits at the end of the 14 day period, the Company may automatically apply an Upgrade to the Customer's Services. Such Upgrade will occur no sooner than 14 days following the date of the Initial Email. Once an Upgrade has been effected the Customer will be liable to pay any additional Fees to the Company as applicable.
5.1.2 Where the Customer is exceeding either the Web Space Limit or the Database Capacity Limit by the Hard Quota Amount, the Company shall be entitled to suspend the Services with immediate effect. Such suspension will be notified to the Customer by email. Following such suspension, the Customer shall contact the Company to advise whether it wishes to request an Upgrade or remedy the situation by complying with either the Web Space Limit or Database Capacity Limit. During any such period of suspension and for the remainder of the Term, the Customer will be liable to pay to the Company all Fees due.
6.1 The Customer shall pay to the Company the Fees in advance, on either a monthly or annual basis, using one of the methods as specified in the Order Form and/or in the Acceptance Email. Payment will be due on the date as specified on the invoice or in the case of payment by credit card or direct debit, such date as advised to the Customer by the Company ("Due Date").
6.2 Unless stated otherwise, all charges of the Company are exclusive of any Value Added Tax, for which the Customer shall be additionally liable at the applicable rate from time to time. For the purposes of clarity, the Company is currently below the threshold for VAT so it is not charged; if this situation changes, Customers will be informed and these Terms and Conditions amended.
6.3 If payment is not made on the Due Date, the Company shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount both before and after any judgement at an annual rate of 3 per cent above the base rate of the Royal Bank of Scotland plc from time to time and such interest shall accrue from the Due Date until the outstanding amount is paid in full.
6.4 The Company shall be entitled to review the Fees, from time to time, and shall notify the Customer of any increase in the Fees. Following such notification, the Customer shall be entitled, within 7 days of such notification, to terminate the Agreement with immediate effect. Any use of the Services by the Customer following such notification will deemed to be acceptance of the new Fees and will act as a waiver of the Customer's right to terminate.
6.5 In the event that any Additional Services are provided to the Customer, the Customer shall be obliged to pay any increased Fees which shall be applied from the date that such Additional Services are provided.
6.6 Where customers have paid for a service, and decide to terminate it in accordance with section 9 of these Terms, they shall be entitled to a refund less the cost of the number of months their service has been active, charged at the monthly rate for that service. There is no minimum period of notice required for cancellation at the point of renewal.
7.1 Notwithstanding the provisions of Clause 10.2, in the event that the Customer's Website is in breach of the AUP or the Company for whatever reason decides it is necessary or in its best interests to do so (including if the Customer is in breach of its obligations or fails to pay the Fees) the Company shall be entitled to:-
7.1.1 suspend or bar access to the Customer's Website until any breach is remedied or the Customer pays any outstanding Fees or for such reasonable period as the Company considers fit; and
7.1.2 remove all or any part of the Customer's Website from the Company's Server and/or delete all or any data, files or other information that is stored on the Server.
7.2 During the Term of the Agreement, the Company reserves the right (in its sole discretion and without prior notice) to suspend use by the Customer of any component part of the Services which may be having a detrimental effect on the Services as a whole.
8.1 The Company does not give any warranty, guarantee or other term as to the quality, fitness for purpose or otherwise of any goods or other services supplied by a third party, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods or services to the Company.
8.2 The Company shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any exercise of the Company's rights or remedies under the Agreement including without limitation:- (1) the suspension of access to the Customer's Website (2) the deletion, corruption, loss or removal of data, files or material stored on the Customer's Website (3) the removal of the Customer's Website from the Server; (4) any actions taken by the Company on instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival; or (5) any other fault of the Customer (6) loss or destruction of data from the use of email as part of the Services.
8.3 Nothing in this Agreement shall exclude or limit liability for:- (1) death or personal injury resulting from the negligence of either party or their servants, agents or employees; or (2) fraud.
8.4 Except as expressly provided in the Agreement, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), any implied warranty, condition or other term, any duty at common law or under the express terms of any contract, for any:- (1) economic loss (including without limitation, loss of profit, revenue, contracts, business or anticipated savings); (2) any loss of goodwill or reputation; or (3) 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 Services hereunder or their use by the Customer. The entire liability of the Company under these Conditions shall not exceed the proportionate amount of the Fees paid during the initial period of twelve months from the Agreement Date. Such amount shall be the maximum limit in respect of the aggregate of all claims made during the initial period of twelve months from the Agreement Date or during any subsequent twelve month period thereafter.
9.1 The Agreement shall continue in force for the Term provided that the Customer shall be entitled to terminate the Agreement at any time after the minimum period of twelve months of the Term by giving to the Company not less than thirty days written notice of termination.
9.2 Notwithstanding the provisions of clause 9.1, either party shall be entitled forthwith to terminate this Agreement by written notice to the other if :-
9.2.1 that other party commits any breach of any of the provisions of the Agreement and, in the case of a breach capable of remedy, fails to remedy the same within thirty days after receipt of a written notice giving particulars of the breach requiring to be remedied; or
9.2.2 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party; that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; that other party goes into liquidation or becomes bankrupt; the other party ceases or threatens to cease to carry on business or anything analogous to the foregoing under the law of any applicable jurisdiction in relation to that other party.
9.3 Upon termination of the Agreement for whatever reason, the Company may delete the Customer's Website from its Server without any liability whatsoever.
9.4 Termination of the Agreement shall be without prejudice to any other rights or remedies a party may be entitled to thereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision on or after such termination.
9.5 Upon termination of the Agreement for whatever reason all due or outstanding Fees and expenses owed by the Customer to the Company shall forthwith become due and payable. For the avoidance of doubt, if the Customer terminates the Agreement prior to the end of the initial period of twelve months from the Agreement Date, the Customer shall be required to pay all Fees due until the end of such twelve month period.
10.1 This Agreement constitutes the entire agreement between the parties as to the subject matter of the Agreement and supersedes all prior oral or written agreements, understandings or arrangements between them relating to the provision of the Services.
10.2 The Company shall not be liable to the Customer for any loss arising from or in connection with any representations or undertakings made prior to the Agreement Date, unless fraudulent.
10.3 If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
10.4 The Customer shall not be entitled to sell, lease, sub-licence, assign or transfer the Agreement nor all or any of its rights and obligations hereunder without the prior written consent of the Company.
10.5 The Company reserves the right to assign or sub-contract any or all of its rights and obligations under this Agreement without the customer's consent.
10.6 The waiver by either party of a breach or default of any of the provisions of the Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
10.7 In the event of there being a conflict between the terms of these Conditions and the terms of the AUP, the AUP shall take precedence. Where an Order has been submitted online, in the event of a conflict between the terms of the Acceptance Email and the terms of the Order Form, the Order Form shall take precedence.
10.8 The Agreement does not and is not intended to create any right or benefit enforceable by any person not a party to it (within the meaning of the Contracts (Rights of Third Parties) Act 1999) except that a person who is a permitted successor or assignee of the rights or benefits of a party may enforce such rights or benefits.
All communications with respect to the Agreement shall be in English and in the case of a notice addressed to the Company, shall be delivered by hand or sent by post to the Company at its registered office address. In the case of a notice addressed to the Customer, it shall be delivered to such address as notified to the Company in terms of Clause 3.5, by post or by electronic mail. Communications shall be deemed to have been received within two business days (if sent by first-class post) and on the day on which electronic mail is sent or on the date of service in respect of a notice delivered by hand.
The Customer hereby undertakes that it will, without prejudice to any other right of action which the Company may have, at all times keep the Company fully and effectively indemnified against any liability (which liability shall include, without limitation, all losses, costs, claims, expenses, demands, actions, damages, legal and other fees and expenses on a full indemnity basis) which the Company may suffer or incur as a result of, or by reason of:- (1) any breach or non-fulfilment of any of the Customers obligations under the Agreement; (2) any breach of third party intellectual property rights by the Customer; or (3) the Customer's use of the Services.
The Agreement shall be governed by and construed in accordance with the laws of England. The Parties hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts.