The following terms of business apply to any or all of the design, development, domain name registration, web site hosting, email and Secure Commerce System services (together "Services" and individually "Service") to be provided by us to you from time to time. "Server" means the computer server equipment operated by us in connection with the provision of the Services. "Web Site" means the area on the Server allocated by us to you for use by you as a site on the Internet. "Secure Commerce System" means the online shopping system operated and located on the Server which generates an online shopping area. "Online Store" means the online shopping area operated by you and generated by the Secure Commerce System.
DOMAIN NAME REGISTRATION
1) We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
2) The registration of the domain name and its ongoing use is subject to the relevant naming authority's terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by you to us shall be non-refundable in any event.
3) We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.
WEB SITE HOSTING/EMAIL/SECURE COMMERCE SYSTEM
4) We specifically exclude any warranty as to the accuracy or quality of information received by any person via the Server and in no event will we be liable for any loss or damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any loss or damage to data stored on the Server.
5) You warrant to us that you will only use your assigned Web Site for lawful purposes. In particular, you further warrant and undertake to us that:
a) you will not, nor will you authorise or permit any other party to, use the Server in violation of any law or regulation;
b) you will not knowingly or recklessly post, link to or transmit:
i) any material that is unlawful, threatening, abusive, harmful, malicious, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable in any way; or
ii) any material containing a virus or other hostile computer program;
iii) you will not post, link to or transmit any material that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person, firm or company under the laws of any jurisdiction; and
iv) you will conform to the standards made available by us from time to time and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other customers.
6) You are responsible for sending email mail in accordance with any relevant legislation (including data protection legislation) and for sending the same in a secure manner. We will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or misrouting or any other failure of email.
7) Email storage: Our email hosting software automatically removes emails which are stored on the file system which are over six months old. Any emails older than this time are automatically removed and cannot be recovered. Email clients should use POP protocol to ensure that all emails are downloaded and stored on the users computers to avoid any server side deletions. Email clients using IMAP protocol will be required to make local backups of both incoming and sent emails.
8) You warrant, undertake and agree that:
a) all transactions within the Online Store will be contracts for the sale of goods between you as the merchant and your end-user customer and you agree that we may include an exclusion of our liability in respect of such purchases and transactions in such form as we deem appropriate;
b) the information contained within the Online Store complies with all applicable law, including, without limitation, any distance selling regulations and data protection regulations from time to time in force;
c) you will keep secure any identification, password and other confidential information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information.
d) you understand that for the security of our customers and clients, certain file types are automatically removed from email passing through our mail systems, these may include the following file types: .exe, .bat, .pif, .scr files.
e) in order to reduce the levels of unwanted (spam) emails passing into and out of our email servers, we have a filtering system in place based on several industry standard email filtering processes, user accounts are limited to sending one thousand (1000) email messages per twenty four hours. This limit can be increased on an account by account basis if required.
9) Whilst we shall use reasonable endeavours to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers.
GENERAL TERMS AND CONDITIONS
10) We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server.
INTELLECTUAL PROPERTY RIGHTS AND OTHER CONSENTS
11) You are solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisation's in respect of the Services, including without limitation, clearance and/or consents in respect of your proposed domain name and merchant services agreements between you and the relevant banks in respect of your operation of an Online Store
12) You agree to indemnify and keep indemnified and hold us on demand harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Server, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms of business.
13) We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due.
14) We may terminate this agreement upon written notice if you breach any of these terms and conditions, or if the use of your website compromises the integrity of our servers., or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.
15) On termination of the agreement we shall be entitled immediately to block your Web Site and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it at your expense, failing which we shall be entitled to delete all such data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we think fit.
16) All charges payable by you to us for the Services shall be in accordance with the relevant scale of charges and rates published from time to time by us on our web site and shall be due and payable within ten 10 days of receipt of our invoice therefore.
17) The provision by us of the Services is contingent upon our having received payment in full from you in respect of the relevant Services. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, forthwith and at our sole discretion, to suspend the provision of Services to you.
18) Domain name renewal and registration fees. If we (Apexweb LTD) register a domain name on behalf of a client, all domain renewal fees shall be payable within ten (10) days of our invoice date. If any domain name renewal fee is not cleared within this period your domain name will not be renewed and will automatically lapse and after a set period will become available for any third party to register for their own use. The loss of your domain name will result in the complete loss of both your website and email services for your domain name. Please ensure prompt payment to ensure the continued service of your domain name.
LIMITATION OF LIABILITY
19) We hereby exclude all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Services supplied under this agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose.
20) Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
21) Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.
22) In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
RESELLER TERMS AND CONDITIONS
23) If you are or become a reseller of our Services you must ensure that you continue to comply with these terms and conditions by making your customers bound to no less comprehensive and protective terms and conditions than these.
24) You agree that in your capacity as reseller of our services you will not incur any liability on our part or in any way pledge or purport to pledge our credit or purport to make any contract binding on us.
25) We do not accept the liability or default of your own customers as affecting or limiting your obligations under this agreement and we suggest that you require your customers to sign a form of this agreement.
ATLAS CONTENT MANAGEMENT SYSTEMS OR OTHER CMS SYSTEMS
26) The Atlas Content Management System (Atlas CMS) is provided as part of your website hosting package(s) with Apexweb LTD and all copyright and rights of the code contained within Atlas CMS and related code and DLL files remains the property of Apexweb LTD and is not transferable to a third party or other website hosting companies. In the event of a website using the Atlas CMS system being transferred to a third party host we will provide all front end pages and customer supplied content excluding any proprietary code and associated data.
Any notice to be given by either party to the other may be sent by either email or postal delivery to the address of the other party as appearing in this agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by postal delivery shall be deemed to be served two days following the date of posting.
These terms and conditions shall be governed by and construed in accordance with English law and you hereby submit to the non-exclusive jurisdiction of the English Courts.
These terms and conditions together with any document expressly referred to in them, contain the entire agreement between us relating to the subject matter covered and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions.
You confirm that, in agreeing to these terms and conditions, you have not relied on any representation save insofar as the same has expressly in these terms and conditions been made a representation and you agree that you shall have no remedy in respect of any misrepresentation (other than a fraudulent misrepresentation) which has not become a term of this agreement.