ONSITE IT - TERMS AND CONDITIONS OF SERVICE
1 Interpretation
1.1 In these Conditions:
“Client” means the person named overleaf for whom the Supplier has agreed to provide the Services in accordance with these Conditions and its servants and agents;
“Contract” means the details shown overleaf and these Conditions;
“Material” includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data;
“the Services” means the services to be provided by the Supplier for the Client set out overleaf;
“Supplier” means Onsite I.T. Limited (registered in England under number 5517034) whose registered office is at Unit 3 Hall Farm, Maldon Road, Woodham Mortimer, Maldon, Essex, CM9 6SN
“Supplier’s Charges” means the charges shown overleaf subject to any amendment in accordance with these Conditions.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation
2 Performance of the Services
2.1 The Supplier shall provide the Services to the Client subject to these Conditions. Subject to Clause
2.3 any changes or additions to these Conditions must be agreed in writing by the Supplier and the Client.
2.2 It shall be the responsibility of the Client to ensure that the description of the Services is accurate.
2.3 The Client shall supply the Supplier with all necessary Material, and all necessary data or other information necessary to perform the Services. The Client shall ensure the accuracy of all such Material.
2.4 Without prejudice to the foregoing the Supplier may correct any typographical or other errors or omissions in any Client Material relating to the provision of the Services without any liability to the Client.
2.5 The Supplier may at any time without notifying the Client make any changes to the Services or these Conditions which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
3 Charges
3.1 The Client shall pay the Supplier’s Charges and any additional sums which are agreed between the Supplier and the Client for the provision of the Services or which, in the Supplier’s sole discretion, are required as a result of the Client’s instructions or lack of instructions or as a result of clause 2.4, or the inaccuracy of any Material or any other cause attributable to the Client. All Charges are exclusive of any third party telecommunications charges.
3.2 All charges quoted to the Client for the provision of the Services are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
3.3 The Supplier’s Charges and any additional sums payable hereunder shall be paid by the Client (together with any applicable Value Added Tax, and without any set-off or other deduction) within 14 days of the date of the Supplier’s invoice.
3.4 If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 5% per month or part thereof on the total amount of the relevant invoice (or balance thereof) from the due date until the outstanding amount is paid in full.
4 Intellectual Property Rights
4.1 Subject to clauses 4.2 and 4.3 the property and any copyright design right or other intellectual property rights in any design document invention or other creation created pursuant to the Services (“the Works”) whether in written graphic machine readable or other form and whether retained in writing on disc, CD Rom or other device shall belong to the Supplier.
Web and other Design Services
4.1.1 In consideration of but subject to the payment of the Supplier’s Charges and compliance with these Conditions and clause 4.3 and an annual licence fee of £ plus VAT the Supplier hereby grants to the Client an exclusive licence to reproduce the Works solely in connection with and for the purposes of its business including the right to reproduce the Works in advertising and promotion of the Client’s products.
4.2 The Supplier hereby asserts its right to be identified as the author of the Works pursuant to section 78 of the Copyright Designs and Patents Act 1988 by endorsement of the following words on the Works: “Designed and created by Onsite I. T Limited”. The Client shall not alter or add to the said Works without the prior written consent of the Supplier.
5 Confidentiality
5.1 Any Material information or data provided by the Client shall be kept confidential by the Supplier, but the foregoing shall not apply to any Material, data or other information provided by the Client which are public knowledge at the time when they are so provided, and shall cease to apply if at any future time they become public knowledge.
5.2 The Client warrants that any Material supplied by the Client its servants or agents and its use by the Supplier for the purpose of providing the Services will not infringe the copyright or other rights of any third party, and the Client shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.
6 Domain Names
6.1 Domain names registered on the Client’s behalf are at no time the property of the Client. The Client, upon registration, merely receives the right of use of such name(s) as is provided to Client’s domain for such time as it is validly registered to the Client. This provision is subject to such rules of the duly appointed Naming Committees/ Organisations as are in force from time to time.
6.2 All third party costs arising from the registration of a domain name shall be met by the Client and are payable to the Supplier before a formal application for registration is made.
6.3 The Supplier reserves the right to refuse to serve a domain name it is hosting if the Client exceeds the Supplier’s credit terms. This right continues until payment is received and the account is settled in full to the satisfaction of the Supplier.
7 Bandwith Usage
7.1 The Client hereby acknowledges that the Supplier operates a sliding scale of Charges for web sites it hosts based on the average number of hits per day over a period of one calendar month.
7.2 The Client has agreed to limit its use of bandwidth to the amount specified (if any) being that amount ordered by the Client.
7.3 If the Client’s average use of bandwidth exceeds the amount allotted to it under this Contract for a period of 24 hours then the Client will be liable to the Supplier for the difference between the Charges due under the level of bandwidth used and that amount allotted to it as specified in the Services.
7.4 If the Client’s continued use of excessive bandwidth necessitates the Supplier obtaining additional bandwidth with its own bandwidth suppliers, then the Supplier will charge the Client at the higher rate for the bandwidth it uses.
8 Reconnection of Web Sites
8.1 Any Client wishing to reconnect their cancelled services with the Supplier may do so subject to payment of a cancellation fee applicable from time to time and available upon request in order to cover the administration costs involved in reconnecting the Client.
9 Content of Client’s Material
9.1 The Client undertakes that the Client’s Material (whether stored or sent over the Internet shall not contain anything obscene, offensive or defamatory and will conform at all times with the Supplier’s Acceptable Use Policy. The Client will indemnify the Supplier and keep the Supplier fully and effectively indemnified against all actions, proceedings, claims, demands, damages and costs (including all legal costs on a full indemnity basis) occasioned howsoever and whatsoever to the Supplier as a result of any breach of this undertaking.
10 Acceptable Use Policy
10.1 The Supplier reserves the right to withdraw its provision of the Services at any time that it becomes aware of or is notified of the misuse, abuse or illegal use of the Services contrary to either the Acceptable Use Policy it operates (annexed hereto as Schedule A) or any statutory regulation or other law.
11 Warranties and Liability
11.1 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the description overleaf. Where the Supplier supplies in connection with the provision of the Services any goods or parts supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.
11.2 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
11.3 The Supplier shall have no liability to the Client in respect of any loss of Client’s data either at the time of or after the performance of the Services and the Client shall have total responsibility for back up and protection of its data from loss.
11.4 The Client shall indemnify keep indemnified and hold harmless the Supplier against all claims proceedings costs (including legal costs on an indemnity basis) incurred or sustained and howsoever arising directly or indirectly as a result of the breach by the Client of any of these Conditions or any warranty contained herein or as a result of any criminal or civil proceedings brought against the Supplier in respect of the provision of the Services and/or the Works created as the case may be.
11.5 The Surety hereby fully and effectually guarantees the due performance of the Client’s obligations under the Contract.
11.6 Except in respect of death or personal injury caused by the Supplier’s negligence, or as expressly provided in these Conditions, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s charges for the provision of the Services, except as expressly provided in these Conditions.
11.7 The Supplier shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Services, if the delay or failure was due to the Client or to any cause beyond the Supplier’s reasonable control. In any event time shall not be of the essence in relation to the performance of the Services.
12 Termination
12.1 The Client shall be entitled to cancel the Contract by giving not less than 7 days’ written notice to the Supplier prior to the due date for commencement of the peformance Services. In such case the Client shall have no liability to the Supplier save for the costs of any parts ordered by the Supplier in respect of the Services. Otherwise the Client shall pay the Supplier’s Charges in full.
12.2 The Supplier shall be entitled to withdraw from the Contract at any time and without giving any notice to the Client if the Client goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed over all or any part of its assets or undertaking.
12.3 The Supplier shall be entitled to terminate the Services at any time forthwith by notice in writing in the event that the Client commits a breach of these Conditions (and if capable of remedy the Client fails to remedy the breach within 48 hours of receiving notice to do so) PROVIDED ALWAYS that if the Client is in breach of the Acceptable Use Policy or Clause 9 hereof the Supplier shall not be obliged to continue the Services notwithstanding any action the Client takes to remedy the breach.
12.4 Termination of the Services shall be without prejudice to the rights of the Supplier in respect of any antecedent breach.
13 General
13.1 The Contract constitutes the entire agreement between the parties and supersedes any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
13.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.3 No failure or delay by the Supplier in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by the Supplier of any breach of these Conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
13.5 English law shall apply to these Conditions, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.
SCHEDULE A ACCEPTABLE USE POLICY
Please read this Policy for use of the Services provided by the Supplier carefully. The Supplier operates this Policy in order to conduct its business in a responsible manner to enable it to as uninterrupted and seamless a service to its Clients as is reasonably possible. The Supplier reserves the right to suspend or terminate the Services upon receiving notice of the Client’s contravention of any one or more of the following:
General
1. The Client shall use the Services provided under the terms of this Contract with the Supplier for the purposes of gaining access to the Internet and the services thereon.
2. The Client shall use the Services for its internal business purposes and shall not make the use of the Services available to any party nor use it on behalf of or for the benefit of any third party except with the prior written consent of the Supplier and where such use is within the knowledge of the Client and is subject to the Conditions of the Contract between the Client and the Supplier.
3. The Client shall not send, transmit, make available, copy, disseminate, retransmit, broadcast or publish (whether directly or indirectly) in whatever form any data, information, material or statement which infringes the intellectual property rights of any person or legal entity or the laws or statutory regulations or contractual rights or laws relating to defamation, contempt, blasphemy, infringement of privacy or personal data rights and any equivalent or related laws in any territory in which the data may be accessed or made available.
4. The Client shall not make use of the Services provided to it under the terms of this Contract for the purposes of attempting or establishing unauthorised access to or of facilitating a breach in the security devices of machines, resources or networks without prior unequivocal consent of the lawful owner of that machine, resource or network.
5. The Client shall not make use of the Services to facilitate and further the publication and distribution of chain letters, unsolicited commercial or bulk email.
6. The Client shall not make use of the Services to send or cause to be sent or forwarded either large numbers of and/or large messages and/or a message irrespective of size at such frequency as causes the recipient annoyance and/or causes the recipient’s mailbox to become unable to cope with the volume of email traffic directed at it and disables said mailbox.
7. The Client shall not make use of the Services to send or forward malicious messages and/or viruses to cause annoyance and/or disrupt the use and enjoyment of another user’s services whether a customer of the Supplier or some other service or online provider.
8. The Client shall not cause another user of a service provided by either the Supplier or some other online provider to be subscribed to a mailing list or some other service without their prior written permission for that purpose.
9. The Client shall not occasion the forging or creation or use of a header and/or address to show that a message originates from a machine or network other than that on which it does originate or that replies to a message are directed to a machine at which the Client which has neither a right or permission to cause replies to be directed.
Webspace
10. The Client shall not use its own personal and/or corporate website for the publication a distribution of spamming software, lists of personal or corporate email addresses (except where each and every addressee has given their express permission) or any personal data except where such data is in strict accordance with the Data Protection Act 1984 or other, regulations made pursuant to the Act or subsequent legislation.
11. The Client shall not use unsolicited email messages or cause such to be used in order to bring attention to, promote or otherwise advertise its website.
12. The Client shall not publish, hold or cause to be held or accessed via its website material of an illegal nature and/or contrary to the terms of the Supplier’s Acceptable Use Policy in force from time to time.
Domains
13. The Client must accept and readily facilitate the acceptance of mail to postmaster @ <Client’s domain>.
14. Where the Client’s domain includes a website, the Client must accept and readily facilitate the acceptance of mail to hostmaster @ <Client’s domain>.
