The following expressions used in this document shall have the meanings attributed to the below;
1.1.1 “Service” & “Services” refers to the registration of a Domain Name(s) and/or provision of Hosting Plans, Web Design, Graphic Design, Coding, Custom Development and Additional Services;
1.1.2. “Company” refers to The Net Effect (WorldWide) Ltd, a company registered with Companies House, in England and Wales, company registration number; 3152068, whose registered office is 27 Nethermoor Drive, Killamarsh, Sheffield S21 1HR.
1.1.3. “Customer” refers to a person who purchases Services from the Company accepting the Agreement;
1,1.4. “Specified Service” refers to the Service ordered by the Customer;
1.1.5. “Commencement Date” refers to the date upon which the Company confirms acceptance of the Customer’s offer to pay for the Services in accordance with this Agreement;
1.1.6. “Termination Date” refers to the date upon which the Company stops provision of the Service(s) for violation of these Conditions or because the contract has expired;
1.1.7 “Duration Period” is the period from the Commencement Date to the Termination Date;
1.1.9. “Charges” refers to the charges payable by the Customer for Services provided by the Company;
1.1.10. “Additional Charges” refers to any charges payable by the Customer for Services not included in the Specified Service. These may be voluntary “opt-in” or compulsory;
1.1.11. “Credit/Debit Card” refers to a card issued by a financial institute that the Company accepts. Includes, but is not limited to; MasterCard, Visa, Switch, Delta, Solo or any card that the Company chooses to accept at any time.
1.1.12. “Agreement” refers to any contract for the provision of Services by the Company to the Customer which incorporates these Conditions;
1.1.13. “Amendment Notice” refers to any notice of variations to the Charges;
1.1.14. “Registrar” refers to Nominet UK (http://www.nominet.net/) for .uk domain names and Melbourne IT for .com, .net, .org and various other domains;
1.1.15. “ICANN” refers to Internet Corporation for Assigned Names and Numbers (http//:www.ICANN.org);
1.1.16. “Registration” refers to a request by the Customer to the Company in the acquisition of a domain name(s) with an appropriate Registrar;
1.1.17. “Initial Registration Period” refers to the period of two years for a .uk domain and one year for a .com, .net and .org domain commencing on and including the application for Registration;
1.1.18. “Renewal Period” refers to the period before payment is due on a Service or Services. This can vary from 1 month to 10 years.
1.1.19. “Intellectual Property Rights” refers to all or any registered or unregistered intellectual property rights in any part of the world, including but not limited to patents, design rights, copyrights, topographical rights, know-how, rights in inventions and ideas and rights to confidence together with any right to apply for any such intellectual property rights and the benefit of any applications for any such intellectual property rights;
1.1.20. “Act” refers to the Telecommunications Act 1984;
The headings in this agreement are for convenience only and do not affect its interpretation
In this agreement, the words “include”, “includes”, “including” and “such as” are to be construed as if they were immediately followed by the words “without limitation”.
In this agreement, unless otherwise stated;
1.4.1. reference to one gender includes all other genders;
1.4.2. reference to the singular includes the plural and vice versa;
1.4.3. reference to a clause, schedule or party is a reference to a clause of or a schedule or party to this agreement;
1.4.4. “Third Party” is a person who is not party to this agreement;
1.4.5. obligations undertaken by more than a single person or company are joint as several obligations;
1.4.6. reference to a statutory provision is a reference to that provision as modified or re-enacted or both from time to time and to any subordinate legislation made under the statutory provision;
1.4.7. reference to a document is a reference to that document as from time to time supplemented or varied;
1.4.8. references to “writing” shall include fax, e-mail and similar means of communication;
1.4.9. any reference to a person includes natural persons and partnerships, firms and other such unincorporated bodies, corporate bodies and all other legal persons of whatever kind and however constituted;
2. Terms of the Contract
2.1. Incorporation of Conditions
These Conditions shall apply to and be incorporated into any Agreement between the Company and the Customer relating to the Services.
Subject to any special conditions agreed between the Company and the Customer, these general Terms and Conditions shall apply and shall prevail over any other term of this Agreement. No variation or waiver or addition to this Agreement shall be binding on the Company, unless and until it is confirmed in writing by the Company.
3. Supply of Service
3.1. The Company agree to supply the Services to the Customer on the following conditions, though please note that these conditions are not an offer to provide service but merely a statement of the terms on which we could provide them.
a) the Company shall (subject to Clause 4.1) supply the Services to the Customer as soon as reasonably practicable and in any event no later than 30 days from the Commencement Date of the Agreement;
b) the Company shall inform the Customer of any delay in the delivery of the Services as soon as reasonably practicable (delivery will normally be within 24 hour of successful payment for digital products such as Hosting, Domain Names, etc or within a period agreed with the Customer for all other services);
c) the Company shall provide a full refund of the Charges (subject to Clause 4.1) to the Customer if it is unable to supply the Services within 30 days from and including the Commencement Date of the Agreement;
4. Domain Names
4.1. Domains are registered on a first come first serve basis. There is a delay between when the Customer places an order for a domain and when the domain becomes publicly unavailable. The client is not liable for any charges if Registration is unsuccessful. If a domain name is to be ordered using a Third Party company to ‘back order’ a domain, then any charges incurred by The Company will be passed to the Customer. The Company does not accept responsibility for any liability to Third Party for breach of their Intellectual Property Rights in relation to the Registration request by the Customer.
4.2. Upon successful Registration the Company will host the Customer’s domain name(s) for the Initial Registration Period and for such time as it remains validly registered to the Customer subject to such rules of the respective Naming Organisation as may be in force from time to time and which can be accessed through http://www.nic.uk/terms.html and http://www.icann.org
4.3. Notwithstanding Clause 4.2, the Company reserves the right to suspend or cancel any application for Registration or refuse to host a domain name(s) in the circumstances set out in Clause 6.2 of this Agreement.
4.4. The Company agrees that for the Duration Period of this Agreement and in consideration of the payment of the Charges by the Customer it will renew the registration of domain name(s), Hosting fees, Additional services for the Renewal Period.
4.5. The Customer acknowledges that any disputes arising out of the use of its domain name(s) requested by the Customer will be resolved for .uk domains in accordance with the Nominet UK Dispute Resolution Service which can be accessed http://www.nic.uk/ref/drs.html and for .com, .net and .org domains in accordance with the UDRP which can be accessed http://www.icann.org/udrp/udrp.htm which may impose restrictions on the termination or transfer of a domain name(s) with its current host during or pending the settlement of such a dispute. The Company agrees to act as mediator for the Customer.
4.6. The Customer shall be permitted to transfer his domain name(s) to another host other than the Company upon termination of this Agreement in accordance with Clause 8.
5.1. All accounts are payable on demand. In the absence of demand, payment in full for the goods supplied shall be made by the Buyer to the Seller on or before the fourteenth day following the date of the invoice. The Seller shall also be entitled to charge such reasonable costs as it may incur in recovering any overdue balances.
5.2. The Company shall be entitled to issue an invoice for the Charges on the Commencement Date or as soon thereafter as is reasonably practicable. The invoice shall be entered into the Customer’s administration menu and the Customer shall be responsible for checking receipt. The Company will if required provide invoices through the postal system but subject to payment of the Company’s Additional Charges that are in force from time to time.
5.3. The Customer agrees to pay for Hosting Services up to 12 months in advance, .com/.net/.org/.biz/.info domains 12 months in advance, .co.uk/.org.uk/.me.uk domains 12 months in advance.
5.4. Payment of the Charges can only be made by BACS, Cheque, or a valid Credit/Debit Card if paid using PayPal and the Customer shall provide details of the same when he makes an Order for the Services. Credit is only given after a full credit check has been carried out.
5.5. The Company shall be entitled to vary the Charges from time to time with effect from the date specified in the Amendment Notice. The Company shall issue an Amendment Notice no later than 6 weeks prior to the date that any variation of the Charges shall come into force.
5.6. The Customer shall no later than 6 weeks from the date of deemed receipt of the Amendment Notice send a counter notice to the Company accepting or rejecting the terms of the Amendment Notice. In the event that the Customer specifies in the counter notice acceptance of the terms of the Amendment Notice or fails to send a counter notice within the specified period then the terms of the Amendment Notice shall apply as from and including the date specified in the Amendment Notice and this agreement for Services shall be deemed to be varied accordingly. In the event that the counter notice rejects the terms of the Amendment Notice then until such date as this Agreement has been terminated in accordance with this clause the Customer will be charged the Charges as varied from and including the date in the Amendment Notice. Upon receipt of the Amendment Notice the Customer has the right to terminate this Agreement with effect from the date in the Amendment Notice, such notice of termination to be received by the Company no later than 14 days before the date in the Amendment Notice.
5.7. The Customer acknowledges that the Charges are exclusive of any telecommunication charges. All telecommunication charges incurred by the Customer in connection with the use of the Services remain solely at all times the responsibility of the Customer. The Company does not accept liability or responsibility for any such charges.
5.8. If the Charges are not paid in accordance with the Company’s invoice, the Company shall be entitled so far as is permitted by law and without prejudice to any other rights it may have to charge interest on the outstanding amount (both before and after judgment) at the rate of 6% above the base rate from time to time of NatWest plc, London EC2M 3UR from and including the due date but excluding the date the outstanding amount is paid in full.
5.9. Neither the Company or the Customer shall be entitled to set off a credit against any amount owed to it by the other under the terms of this Agreement or under any other agreement prior to completion of this Agreement.
5.10. Upon termination of this Agreement the Customer shall be bound to pay any outstanding amount of the Charges in respect of the Services received up to and including the date of termination and the Company agrees to refund in full the difference between the Charges for the Services received up to the date of termination and the amount actually received by the Company from the Customer. The Customer acknowledges that invoices relating to domain name registrations, shipping & handling of software and additional traffic are non-refundable.
5.11. VAT will be applied (where applicable) at the standard rate.
5.12. Internal domain transfers will incur the same charges as domain registrations.
5.13. Customer accounts that are not settled by 20 days after due date will be passed to a debt recovery agency and will incur an administration fee of £15.00.
6. Customers Obligations
6.1. The Customer shall:-
6.1.1. Keep backups of the Customer’s files, programs, settings and e-mail with reasonable frequency as required by best computing practice.
6.1.2. Obtain the consent of individuals whose personal data are to be held on the register of the Naming Organisation and promptly notify the Company of any changes to the Customer’s registered details including (but not limited to):- (a) name and address of the Customer; (b) name, postal address, e-mail address, telephone and fax number of the technical partner and administrative partner of the Customer’s domain name(s) and in any event provide such information within 15 days of a request for such information from the Company.
6.1.3. Check incoming news from its Email Accounts, IMAP/POP3 Box on a regular basis and in any event not less than every four weeks. The Company reserves the right to send incoming personal messages for the Customer back to the sender if such messages exceed the capacity limit allowed under the Specified Service.
6.1.4. Keep confidential all passwords received from the Company for the purpose of the Services and notify the Company immediately upon becoming aware that a password has become known to an unauthorised Third party.
6.1.5. Only make use of the Services for a legitimate and lawful purpose.
6.1.6. Complete its own tests for computer viruses in accordance with best computing practice prior to each and every operational use of the Services.
6.1.7. Allow the Company to access the Customer’s home page to check for any infringements of the Customer’s obligations under this Agreement.
6.1.8. Ensure that it complies at all times with all relevant laws and obligations including but not limited to any licence under the Act which is applicable to the Customer and all related laws in any territory in which the Customer is situated or in which the Customer’s Website may be accessed or made available. The Company will have no liability under this Agreement for failure to comply with its obligations in any case where the Customer does not comply with any such relevant laws or obligations or does not obtain such consents or approvals.
6.2 The Customer shall NOT:-
6.2.1. send, transmit, make available, copy, retransmit, broadcast or publish (whether directly or indirectly) in whatever form any data, information or contractual rights, material or statement which infringes the Intellectual Property Rights or contractual or statutory rights of any person or legal entity or the laws or statutory regulations relating to defamation, contempt, blasphemy, infringement of privacy or personal data rights and any equivalent or related laws in any territory in which they are or may be accessed or made available;
6.2.3. make use of the Services to send or cause to be sent or forwarded electronic mail without the express or assumed agreement of the respective recipient. This shall include but not be limited to not sending large numbers of electronic mails with the same content which is commonly referred to as “spamming”;
6.2.4. use the Services to obtain or offer or permit to be offered for profit or otherwise any material, images, displays or services which are erotic or pornographic including but not limited to any other material, images, displays or services which are offensive, illegal or immoral or which is in breach of any legal obligation;
6.2.5. arrange its home or any web page(s) in a way that leads to a risk of or causes an excessive load on the server provided by the Company in connection with the Services;
6.2.6. exceed the relevant data transfer volume applicable to the Specified Service unless the Customer has agreed with the Company to pay Additional Charges as may vary from time to time for the data transfer volume exceeding the agreed level in the Specified Service.
6.2.7. use the Services in a manner which infringes a third party’s copyright or other intellectual property rights of whatsoever nature.
6.3. Without prejudice to any other rights of the Company arising from this Agreement or otherwise, the Customer will indemnify the Company against all claims, losses, liabilities, expenses, fines and penalties of whatsoever nature made, incurred or imposed as a result of a breach by the Customer of the terms of this clause.
7.1. To the extent permitted by law, the Company shall not be liable to the Customer save as expressly provided for in this Agreement and shall have no other obligations, duties or liabilities whatsoever in contract, tort or otherwise to the Customer.
7.2. Neither party shall have any liability to the other in respect of any breach of this Agreement for loss of revenue, business, anticipated savings or profits or any loss of use or value of any equipment or for any indirect or consequential loss howsoever arising, save as set out in Clause 7.3, 7.4 and 7.5 below.
7.3. Nothing in this Agreement shall:- (a) exclude or restrict the Company for liability in respect of the death or personal injury or fraud resulting from the negligence of the Company, its employees or agents; (b) exclude the conditions and warranties implied by Section 12 of the Sale of Goods Act 1979 and where the Customer deals as a consumer, the conditions implied by sections 13 to 15 inclusive of the said Act and by sections 3 and 4 of the Supply of Goods and Services Act 1982; or (c) where the Customer deals as a consumer, affect the Customer’s statutory rights.
7.4. The Customer will indemnify the Company for all loss of revenue, business profits, costs and expenses arising from any failure by the Customer to use the Services in accordance with this Agreement and against any fines or penalties imposed by any regulatory, advertising or trading body or authority in connection with the use of the site by the Customer.
7.5. The Company disclaims all liabilities in connection with the following : loss of material uploaded, incompatibility of the site with any of the Customer’s equipment, software or telecommunications links, technical problems including errors or interruptions of the site unsuitability, unreliability or inaccuracy of the site.
7.6. The Company will indemnify the Customer for claims made against the Customer by third parties for breach of their Intellectual Property Rights if such breach has been caused by the act, omission or otherwise of the Company, its employees or agents.
7.7. Nothing in this Agreement shall prevent the Company from pursuing payment of a debt against the Customer.
7.8. Where the Customer accesses this site from locations outside the United Kingdom, the Customer does so on the Customer’s own initiative and is responsible for compliance with local laws.
8.1. Either party may at any time by giving notice in writing summarily terminate this Agreement without compensation to the other party if the other party shall become bankrupt, or if a body corporate pass a resolution or the court shall make an order that one party be wound up, otherwise than by way of amalgamation or reconstruction, or if a receiver or manager on behalf of a creditor shall be appointed, or if circumstances shall arise which entitles the court to make a winding up order.
8.2. The Company shall have the right to terminate this Agreement without reason upon giving 14 days written notice to the Customer and termination shall occur at the expiry of the notice period. The Customer shall have the right to terminate this Agreement any time giving written notice to the Company. Termination shall occur at the reception time of the notice.
8.3. Termination or expiry of this Agreement for whatever reason shall not prejudice or affect any right of action or remedy which shall have occurred or shall accrue thereafter to either of the parties.
8.4 The Company reserves the right to terminate this Agreement without notice upon any of the following events:- (a) the Charges and/or Additional Charges are outstanding for more than 10 calendar days; (b) the Customer is in breach of his obligations as set out in Clause 6.1.4, 6.1.5, 6.1.7, 6.1.9, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.6 and 12; (c) the Customer fails, despite prior warning to remedy a breach of Clause 6.2.6.
8.5. Should the Customer not receive email confirmation of their termination within 14 days of their request date the Customer is responsible for contacting the company to ensure the termination has been received.
9. Effect of Termination
9.1. On termination or expiry of this Agreement for whatever reason the following provisions shall apply:-
(a) the Customer shall pay immediately all Charges and/or Additional Charges outstanding under this Agreement to the Company within 14 Working Days.
(b) the Customer shall pay all amounts (if any) as and when such amounts shall fall due under the indemnity given in Clause 7.4;
(c) the Customer shall be responsible for renewing the Registration of his domain name(s) and finding a new host for the respective domain name(s);
(d) the Company shall without prior notice cease hosting a domain name(s) 30 days from and including the expiry date of notice to terminate given under Clause 8.2 or 30 days from the date of termination if earlier notwithstanding that the Customer has not found an alternative host for the respective domain name(s).
10. Intellectual Property (IP) Rights
10.1. All Intellectual Property Rights of the Company shall at all times for the Duration Period of this Agreement remain vested in the Company.
11. Data Protection
11.1. All information, mail messages and other data stored on the Company’s computer system will be treated as private and solely the property of the Customer at all times and will not be duplicated, copied, reproduced or viewed publicly in any way except with express or implied permission of the Customer and/or for the purpose of the Company’s back up services and/or providing the Customer with the Services and/or for the Company’s own internal purposes such as market research.
11.2. The Company expressly points out to the Customer that by entering into this Agreement the Customer acknowledges and agrees that once the Customer’s unencrypted data passes onto the Internet, it is not secure and is open to unscrupulous use. The Company cannot accept responsibility or liability for any data or information that becomes available by such means against the wishes of the Customer and the Company recommends the use of encryption for transfer of sensitive data or information.
11.3. The Customer accepts that the Company will put its name on its mailing list for receipt of product information and other advertising material from the Company unless it informs the Company in writing that it does not wish to receive such material.
11.4. The Customer accepts that the register of the Naming Organisation will include the Customer’s name and address, administrative partner and technical partner and other details relating to them. This information (if it refers to individuals) is personal data for the purposes of the Data Protection Act 1984. The Customer accepts that the Naming Organisation may allow other organisations and members of the public to access the data for the purpose of obtaining information about the registration of the domain name(s) or any other related purpose.
12. Force Majeure
12.1. The Company shall not be liable for any failure to perform its obligations under this Agreement by any cause beyond our reasonable control as the case may be, including but not restricted to, strikes, fuel shortages, war, civil disorder and natural disasters.
Neither this Agreement or any rights or obligations hereunder may be assigned or transferred or sub-contracted by the Customer in part or in whole to a third party, without the prior consent of the Company and such consent not to be unreasonably withheld. The Company may on providing notice to the Customer assign this Agreement in part or in whole to any third party.
14. Third Party Rights
Nothing in this Agreement shall be taken as granting any rights expressly or implied whether contractual or statutory to persons other than the Company and the Customer, whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
15.1 No delay, neglect or forbearance on the part of either party in enforcing against the other party any terms or conditions of this Agreement shall either be or be deemed to be a waiver in or in any way prejudice any right of that party under this Agreement, unless such waiver shall be in writing.
15.2 Any notice, invoice or other document which may be given by either party under this Agreement shall be deemed to have been duly given if sent by first class post, or where the parties expressly agree by electronic mail or facsimile transmission, to such person and such address as either party shall nominate for this purpose from time to time.
15.3 This Agreement shall be construed and governed in all respects in accordance with the Law of England and Wales and the English Courts shall have exclusive jurisdiction in respect of any disputes arising hereunder.
15.4 Each party shall treat as confidential all information received by it from the other party relating to the other party’s business, customers, strategies and plans, and such information may only be used for the purpose of this Agreement and may only be disclosed in strict confidence to its professional advisers or any person to whom disclosure is required by law, to its employees or subcontractors where reasonably necessary for the purposes envisaged by this Agreement, and where otherwise specifically permitted by this Agreement.
16. Special Terms and Conditions
16.1 In addition to these terms and conditions you may also be subject to special terms and conditions if you are supplied with a copy of Special Terms and Conditions marked with code TNE101. These apply in addition to these terms and conditions.
16.2 Where there is a conflict the special terms and conditions in document TNE101 take precedence.
The Company warrants to the Customer that the Services will be provided using reasonable care and skill but at all times this will be subject to downtime caused by routine or emergency maintenance by the Customer or occasional Third Person parties. The Company will not be liable to the Customer or any Third Person party for any looses whatsoever caused by such downtime.