AGB ONLINE SOLUTIONS LTD
WEBSITE TERMS AND CONDITIONS
These conditions (defined below) will govern the Contract (defined below). We expect you to read through them carefully. If you do not agree with these Conditions, you will not be entitled to enter into a contract.
1.1. In these Terms and Conditions the following words shall have the meanings set opposite:-
means the document we will send to the Client detailing the objectives and Project development, areas of the Website, key features, cost outline, timeline, standard payment terms of Services to be provided by Us to the Client;
means the fee payable in respect of the Additional Services as further detailed in Clause 5;
means any Services requested by the Client which is in addition to the Basic Specification;
means the renewal charge paid by the Client to Us for annual subscription services, including but not limited to domain name registration and Hosting Fees;
means the fee payable in consideration of the Project in accordance with the Action Plan;
means the description relating to the basic content and functionality requirements of the Project as detailed in the Action Plan;
means the Charges to be paid by the Client to Us as agreed in writing in the Action Plan, including but not limited to the Hosting Fee, Basic Fee and Additional Fee, along with Our latest published prices for products and Services requested or incurred during the Term;
means the latter of the date upon which We receive a signed copy of the Conditions and/or the date upon which funds received from the Client for the deposit of the Basic Fee clears in Our bank account;
means these Terms and Conditions;
means any cause affecting the performance of this Agreement rising from or attributable to acts, events, omissions or accidents beyond the reasonable control of either party and without limiting the generality thereof shall include the following: strikes, lock outs or other industrial action; civil commotion, riot, invasion, war threat or preparation for war; fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster; impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
“Intellectual Property Rights”
means the patents, copyright, registered designs, unregistered designs, trade marks (whether registered or unregistered), technical information, confidential information, know-how, inventions, semi-conductor topography rights, database rights, all software, source codes and object codes and any other industrial or intellectual property rights whether existing in the United Kingdom and/or elsewhere in any and all applications for any of the foregoing and any and all rights to apply for any of the foregoing.
means the date, after completion of the Project and full payment is received, upon which the Services will begin between us and the Client;
“Minimum Contract Term”
means the minimum period of service as specified in Clause 2;
means the period of the Contract beginning after the end of the Minimum Contract Term, as set out in Clause 2.2;
means the information resource created on behalf of the Client and which is to be made available via the Internet by Us.
2. COMMENCEMENT and MINIMUM CONTRACT TERM
2.1. The contract for Services shall commence on the Commencement Date. The Services will be provided for a Minimum Contract Term of 12 months.
2.2. Unless the Contract is terminated in accordance with Clause 13, the Term shall automatically continue for one or more consecutive period(s) of twelve (12) months.
In consideration of payment of the Charges to us by the Client, We shall:-
3.1. provide the Client with the Basic Specification;
3.2. use the reasonable endeavours to develop the Project in accordance with the Basic Specification;
3.3. use reasonable endeavours to build the Project in accordance with the Basic Specification;
3.4. where possible, provide any Additional Services in accordance with the instructions of the Client and the procedures set out in, and subject to the terms of Clauses 4, 5 and 6 of this Agreement.
4. DESIGN OF THE PROJECT
4.1. Where applicable and requested by us, the Client shall timeously provide the Client’s Material to us in order that they may be included within the contents of the Project.
4.2. The Client shall provide us with all necessary access to the Client’s Materials. Any delay in the provision of access will result in a corresponding delay in the delivery of the Project.
4.3. In the event the Client requires Additional Services, the Client shall be responsible for providing us with the Client’s Requirements outlining the functions the client requires for the Project. We shall have no responsibility for the appropriateness or accuracy of the Client’s Requirements.
4.4. Based on the Client’s Requirements, We shall use reasonable endeavours to prepare an Additional Specification for the Client as soon as practicable following submission of the Client’s Requirements.
4.5. In the event that the Client requires amendments to the Project which are in our reasonable opinion beyond the scope of Additional Specification, the Client shall agree with us in writing the actual change or addition required, all additional charges for implementing the change and the timescale within which it can be implemented (including amendment of the Launch Date where required by Us).
4.6. In the event that, prior to completion of the design and build of the Project, any change to the Project is required by the terms of any primary or secondary legislation or relevant European legislation or other legal requirement and in so far as such legislation or other legal requirement shall impact on the provision of the Services in terms of this Agreement, We shall (at the Clients expense) give effect to such change as soon as possible and shall agree with the Client any amendment to the Launch Date which is necessary as a result of such change to legislation or other legal requirement.
4.7. Any design (whether proposed or finalised) provided to the Client is provided as a basis for the development of the Project and We do not accept any liability for the consequences of the Client’s use of the design with any third party or for any third party’s use of the design.
5. BUILDING OF THE PROJECT
5.1. We shall commence building the Project as detailed in this Clause 5 on the Commencement Date, subject to approval of any Additional Specification as detailed in Clause 4.
5.2. Upon completion, the Client shall have a period of fourteen days in which to test the Website. If during this period the Client identifies that the Website fails to comply in any material respect with the Basic Specification and any Additional Specification agreed between the parties, the Client shall specify such failures in writing to us.
5.3. In the event that failures are notified in terms of Clause 5.2 and are accepted by us (acting reasonably as being failures to comply in a material respect with the Basic Specification and/or Additional Specification, We shall use reasonable endeavours to rectify any such failures.
5.4. In the event that we are unable to rectify any failures in the Website referred to in Clause 5.3, then either party shall be entitled to terminate the Contract without liability to the other. For the avoidance of doubt, notwithstanding termination, we shall remain entitled to receive payment of 25% of the Additional Fee, where applicable.
5.5. In the event that no failures are notified to us within the time period specified in Clause 5.2, the Client will be deemed to have accepted the Website.
5.6. Upon completion of the building of the Project in accordance with this Clause 5, W e shall work with the client to agree a Launch Date and the final balance for the project will be due and paid in full and cleared funds by the client prior to going live.
5.7. All projects will have recognition of AGB Online Solutions Ltd.
6.1. Any amendments or changes initiated by the Client after the Cilent has approved the Project in terms of Clause 5 shall be in terms of this Clause 6.
6.2. Both parties will agree in writing the actual change(s) and/or addition(s) required together with any impact and consequential amendment that may be necessary to any Charges and/or timescales referred to in the Conditions as well as the costs involved in implementing said changes and the time spent considering the impact of said changes and whether they are possible.
7.1. The Client represents, undertakes and warrants that:-
7.1.1. the Client will use the Services allocated to the Client only for lawful purposes.
7.1.2. the Client will not use the Server in any manner which infringes any law or regulation of which infringes the rights of any third party, nor will the client authorise or permit any other person to do so;
7.1.3. the Client will not use the Website to post, link to or transmit:-
any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
any material containing virus, Trojan horse or other hostile computer programme;
any material which constitutes, or encourages the commission of, a criminal offence of which infringes any Intellectual Property Rights or similar rights of any person which may subsist under the laws of any jurisdiction;
any activity contrary to the Computer Misuse Act 1990; and
the distribution of unsolicited email.
7.1.4. The client shall keep secure any identification, password and other confidential information relating to the Client’s account and shall notify us immediately of any unknown or suspected unauthorised use of the Client’s account or breach of security information, including loss, theft or unauthorised disclosure of the Client’s password or other security information.
7.1.5. The Client shall observe any procedures which we may from time to time prescribe and shall make no use of the Server which is detrimental to our other clients.
7.2. The client undertakes to provide all assistance to us as we may reasonably require for the purposes of performing obligations under the Contract.
7.3. Where a client continued to permit such illegal or disreputable use, we will serve a warning notice, either by email or letter to the affect that the Services will be discontinued if the Client does not rectify the situation within 24 hours of receipt of the email or three days within the receipt of the letter. Where we suspend Services for contravention of this Clause, We can refuse to restore Services until We receive an acceptable assurance from the Client that there will be no further contravention.
8. CHARGES AND PAYMENT
8.1. All payments will be in UK Pounds Sterling.
8.2. All charges payable by the Client for the Services shall be in accordance with the Action Plan and shall be due and payable on receipt of invoice except for Project Invoices where the full balance is due for the project to go live.
8.3. Annual renewal invoices are due 7 days after invoice which are invoiced at least 30 days before the date of actual renewal and are due in advance of the service being provided. Failure to renew annual services will result in suspension of service and loss of domain name.
8.4. The Charges and any other sums due hereunder are exclusive of value added tax which is payable by the Client in addition thereto.
8.5. Where a Client fails to make payment of the Charges in the due date, we shall be entitled without limiting any other right we may have, to charge interest on the outstanding amount (both before and after any judgement) at the rate of 5% above the base rate from time to time of Royal Bank of Scotland PLC from the due date until the outstanding amount is paid.
8.6. The Client acknowledges that Services are provided using facilities provided to us by third parties. We shall have the right, subject to fourteen (14) days prior written notice to the Client, to increase our charges at any time during the Minimum Contract Term or the Contract period, whether to reflect increase costs to us from such third parties or otherwise. Where such increase exceeds 10% of the Charge in question prior to such notice the Client shall be entitled to terminate the Contract by written notice to us given by the Client within 7 days after service of our notice of increase to the Client. If the Client terminates under this Clause 8.6, the Client will remain liable for all Charges (at the previous rate) up to the date the contract ends.
8.7. Without prejudice to our other rights and remedies under the Conditions, if any sum payable not paid on or before the due date, We shall be entitled forthwith to suspend the provision of services to the Client;
9.1. Where the Client:
9.1.1. fails to pay the Charges in accordance with the provisions of Clause 8 of the Conditions; or
9.1.2. breaches the Contract in any other way; or
9.1.3. is subject to bankruptcy or insolvency proceedings;
We shall be entitled to (without prejudicing, losing or reducing any other right or remedy) suspend services, including partially, temporarily without notice, during which the Client will remain liable to pay the Charges during the suspension, or terminate the Contract in accordance with Clause 9 of the Conditions.
9.2. The Client will continue to be liable to pay any and all Charges which are due for Services during any period which the Client does not comply with the Contract.
9.3. On suspension of the Services or termination of the Contract We shall be entitled to immediately withhold any domain name We may have registered on the Client’s behalf; withhold access to any and all system, usernames, passwords and email addresses and data of all and any type relating to Services; to block the Website and to remove all data located on it. We shall be entitled to delete all such data but may, at our discretion, hold such data for such period as We may decide to allow the Client to collect it at the Client’s expense, subject to payment in full of any mounts withstanding and payable to Us.
9.4. Where we waive a breach of the Contract by the Client, that waiver is limited to the particular breach only. Any delay by us is acting upon a breach is not to be regarded in itself as a waiver.
10.1.The Contract may be terminated by either party on giving at least thirty (30) days’ notice to the other expiring on the last day of the Minimum Contract Term. Where written notice is given by us, the Client shall pay all Charges up to the expiry of the notice. In the event that the Client gives notice, the Cilent shall pay all Charges until thirty (30) days after the date we receive the notice or until the expiry of the notice, whichever is later. The Client’s notice does not avoid any other liability on the Client’s part for the Services already provided.
10.2.We shall be entitled to terminate the Contract or suspend the Hosting Services immediately on giving written notice to the Client if the Client does anything or allows anything to be done which affects the performance or availability of the Hosting Services or any network to which the Client is connected or if the Client is in material breach of any of its obligations hereunder and has no remedied such breach within thirty (30) days of written notice in specifying the breach.
10.3.Following termination of the Contract for any reason:
10.3.1. each party will be on request by the other return or supply to the other all documents, discs and other material in its possession containing any Confidential Information or Intellectual Property Rights of the other;
10.3.2. subject to Clause 13, each party will immediately cease using the other party’s Intellectual Property Rights including the other party’s trade marks.
10.4. Termination of this Agreement for any reason shall not bring to an end:
10.4.1. Clauses 8,9, 11, 12, 13, 15 and 19 of this Agreement;
10.4.2. The Client’s obligations to pay Charges and/or other sums due to us hereunder.
11.1.We shall provide the Services in good faith, however, due to the nature of the Services, we do not warrant that the Services shall be uninterrupted or error free and no warranty, either express or implied, is given in relation to the Services.
11.2.The Client acknowledges that we have no control over the information transmitted by the Client via the Service and that we do not examine the use to which the Client puts the Service or the nature of the information the Client sends or receives. We hereby exclude all liability of any kind for the transmission or reception of information of whatever nature.
11.3.We do not accept any liability whatsoever for the acts or omissions of other providers of telecommunication service or for faults in or failures of their apparatus.
11.4.With respect to the Hosting Services, We do not accept any liability for any third party acts or omissions or any delay or failure to meet obligations under the Contract that result from delay or failure on the part of a third party supplier. In the event that we are unable to supply the Hosting Services to the Client due to any failure on the part of any third party supplier, then we shall be entitled to a period of 14 days in which to find an alternative third party supplier. Where we are unable to find an alternative third party supplier, either party shall be entitled to terminate the Contract without liability on giving written notice to the other.
11.5.Our liability shall not in any event include loss whether direct or indirect of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of date for any indirect or total consequential loss whatsoever.
11.6.We make no warranty as regards to our Services or Sever and will not be responsible for any damage allegedly suffered or claimed by the Client for any reason including but not limited to loss of data, wrong or non deliveries and service interruptions.
11.7.All conditions, terms, 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 are hereby excluded.
11.8.Nothing in these Conditions shall exclude our liability for death or personal injury resulting from our negligence;
11.9.Our total aggregate liability to the Client for any claim in contract, delict, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the Charges paid by the Client in respect of the Services which are the subject of any such claim;
11.10. Our liability in respect to losses to the Client shall not exceed £10,000;
11.11. In any event no claim shall be brought unless the Client has notified Us of the claim within three months of it arising;
The Client hereby agrees to indemnify and keep indemnified Us, Our employees, officers, agents and contractors and hold Us, Our employees, officers, agents and contractors from and against any breach or non-observance by the Client of these Conditions and any claim brought against Us by a third party resulting from the provision of Services by Us to the Client, the Client’s use of the Services and the Server and the Client’s Materials placed on the Website including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by Us as a consequence of such breach or non-observance.
13. INTELLECTUAL PROPERTY RIGHTS
13.1.All Intellectual Property Rights in pre-existing scripts, objects, routines, sub routines, programme utilities, file structures, coding and other materials provided by and/or used by us in supplying the Services will remain Our property.
13.2.Any and all Intellectual Property Rights arising from the creation by us of the Project (including design, graphics and content software) and any and all Intellectual Property Rights in and to the Source Code shall belong to Us.
13.3.We shall upon receipt from the Client of all Charges:-
13.3.1. in respect of all Intellectual Property Rights relating to any bespoke design, graphics and content generated by us solely and directly from the provision of the Services, grant to the Client an exclusive, worldwide, royalty-free, non-transferable licence to use such Intellectual Property Rights in connection with the use of the Services;
13.3.2. in respect of all Intellectual Property Rights in the software code or other parts of the Services, including but not limited to the Hosting Services (subject to receipt of the Hosting Fee) and the Website which are generic (including for the avoidance of doubt all Source Code driving the Website), grant to the Client a non-exclusive, worldwide, royalty-free, non-transferable licence to such Intellectual Property Rights used for the purposes of edit, amendment and upload in connection with the use of the Website; and
13.3.3. In the event that the Contract and/or Services are terminated for any reason, the Client’s licence granted under Clauses 13.3.1 and 13.3.2 shall also be terminated.
13.4. The Client shall upon agreement of the Contract grant Us a non-exclusive, wordwide, royalty-free, non-transferable licence to use the Client’s Materials in connection with the Services under the Contract.
13.5. The client shall take full responsibility for and shall obtain any and all necessary consents and clearances to enable the Client lawfully to make use of all and any Intellectual Property Rights through the Services, including without limitation, clearance and/or consents in respect of the Client’s proposed domain name(s) and in respect of the Content provided to Us for Services, including, where applicable, design of the Website.
14.1. If you are unhappy with initial response, please email email@example.com
15.1. The client may assign all or part of the Contract to any other party only with our prior written agreement.
15.2. We reserve the right to assign all or part of the Contract at any time to any of our subsidiary or associate companies.
16. FORCE MAJEURE
We are not liable for any breach of the Contract or liable for any delay or failure in performance of any part of these conditions and its commitments when arising from or attributable to acts, events, omissions, accidents beyond the reasonable control of Us to perform and without limiting the generality thereof, shall include strikes; lock outs or other industrial action; civil commotion; riot; invasion; war; threat or preparation for war; fire; explosion; storm; flood; earthquake; subsidence; epidemic or other natural physical disaster, the possibility of the railways, shipping, aircraft, motor transport or other means of public or private transport, political interference with Our normal operations.
Any notices required to be given under the Contract by either party to the other shall be in writing, whether by letter sent recorded delivery, fax or email to the address of the other party as given in this Contract or the Action Plan or such other addresses as such party may from time to time have communicated to the other in writing. Any notice server by email shall, unless the contrary is proved, be deemed to be received on the day it was sent. Any fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
Headings are included in the Conditions are for the convenience only and shall not affect the construction or interpretation of the Conditions.
19. ENTIRE AGREEMENT
The Contract represents the entire understanding between the Client and Us relating to the Services. The Contract supersedes all previous communications between the Client and Us (whether written or oral) relating to the Services. Nothing in the Contract removes or overrides any right of action by any party in respect of fraudulent misrepresentation, fraudulent concealment or other fraudulent actions.
The Contract shall be governed by and construed in accordance with Scots law and the Client hereby submits to the exclusive jurisdiction of the Scottish Courts.