Clause 1.1 Definition of Terms
1.1.1
In this Agreement the following terms shall
have the following meanings:
"Act" means the Telecommunications Act 1984; and
"Acceptable Use Policy" means an acceptable use policy (also referred
to herein as General Usage Policy) posted on OBSIDIAN Internet's
website found at http://www.OBSIDIANinternet.net/terms from time
to time applicable to all aspects of services provided by OBSIDIAN
Internet; and
"Agreement" means this document, and, where the context so requires,
any Service Order, Application Form, Acceptable Use Policy, OBSIDIAN
Internet's Price List and/or the Service Description; and
"Apparatus" means any telecommunications apparatus required for
the provision of the Service and installed by or on behalf of OBSIDIAN
Internet (including by a `sub-contractor) at the Client's Premises;
and
"Business Builder" means OBSIDIAN Internet's E-Business Builder
(site and commerce versions) products; and
"Business Day" means any day (other than Saturday, Sunday or English
public holiday) on which the banks in England are open for a full
range of banking transactions; and
"OBSIDIAN Internet" means Jazapax Ltd. Trading as OBSIDIAN Internet
of Chantry Court, Chester, CH1 4QN; and
"OBSIDIAN Internet System" means the telecommunication and/ or Internet
system run by OBSIDIAN Internet and or its service providers; and
"OBSIDIAN Internet Equipment" means any equipment that is supplied
by or on behalf of OBSIDIAN Internet to the Client or installed
at the Client's Site for the purpose of providing the Service including
OBSIDIAN Internet's software, hardware, cables, hubs and such other
equipment supplied by OBSIDIAN Internet, its agents or its sub-contractors
for the provision of the Service which have not been purchased and
paid for by the Client; and
"OBSIDIAN Internet Software" means the installation software and/or
other software necessary to facilitate the use of the Service supplied
by OBSIDIAN Internet; and
"OBSIDIAN Internet Website" means the website at http://www.obsidianinternet.net
or at such other URL as OBSIDIAN Internet may determine from time
to time; and
"Charges" means without limitation the Set-up Charge and the Service
Charge and any other applicable Charges as outlined in the OBSIDIAN
Internet Price List; and
"Client" means the person, firm, or company whose Application /
Service Order is accepted by OBSIDIAN Internet; and
"Commencement" means that point in time when the Client's account
is set-up on OBSIDIAN Internet's internal provisioning system and
hosting equipment configured to provide a Service to the Client;
and
"Components" means all components of the system within OBSIDIAN
Internet 's and/or any third party's premises that provide dedicated
Internet access to the Customer and which are necessary for the
supply of the Service, but excludes the Customer's Equipment; and
"Confirmation Letter" means a letter or any other form of document
issued by OBSIDIAN Internet confirming and accepting the Customer's
order for the Service.
"Conditions" means the standard terms and conditions for the Supply
of Services set out or referred to on the Application / Service
Order; and
"Confidential Information" means any and all information which relates
to the business affairs, products, developments, trade secrets,
know-how, personnel, clients and suppliers of either party or information
which may reasonably be regarded as the confidential information
of the disclosing party; and
"Connectivity" means the connection to the Internet using the dial-up
telephone number, ADSL connection, or other connection to the Internet
as specified by OBSIDIAN Internet and informed to the Client by
OBSIDIAN Internet from time to time; and
"Contract" or "Service Contract" means the related FM Server Contract,
Leased Line Contract, VIP Contract, Web Development Contract, Telco
Contract or any other provision of Service as stated on the Application
Form/ Service Order relating to the particular Services requested
and Contracts shall be construed accordingly; and
"Dial-Up Platform" means the access number to be used by the Client
to connect to the Internet or to the OBSIDIAN Internet account as
specified by OBSIDIAN Internet; and
"Domain Name" means the domain name requested by the Client to be
registered on the Client's behalf as outlined on the Application
or any alternative domain name offered by OBSIDIAN Internet; and
"Client's Equipment" means the telecommunications leased line and
all equipment and facilities located at the Customer's premises
including but not limited to Customer-owned routers (unless the
Client's orders a managed router service as part of the Service).
"Client's Website" means the website belonging to the Client which
is hosted by OBSIDIAN Internet pursuant to the Contract; and
"E-Tutor" means the online guide to building a Website by using
the Software; and
"Force Majeure" means any cause affecting the performance by a party
of its obligations arising from acts, events, omissions, or happenings
beyond its reasonable control. Including (but not limited to) wars,
riots, embargoes, strikes, lockouts, acts of god, insurrection,
or civil commotion or any other causes or circumstances beyond the
parties reasonable control; and
"Input Material" means all materials, data, images, and information
necessary for the Client's use of the Service; and
"Installation Date" means the proposed installation date for the
Service as defined in the relevant Service Order/ Application Form;
and
"Intellectual Property Rights" means any current and future intellectual
property rights including copyrights, trademarks, trade names, domain
names, rights and logos and get-up, service marks, inventions, Confidential
Information, trade secrets and know-how, design rights, patents,
utility models, semiconductor topography, all rights of whatsoever
nature in computer software and data, rights in databases, privacy
rights; and all intangible rights and privileges of a nature similar,
analogous or allied to any of the above existing anywhere throughout
the world and all renewals, revivals and extensions of them and
rights of action in respect of them howsoever including the right
to sue for past infringement and the right to apply for, prosecute
and obtain patent, design right, trademark and other protection
throughout the world or any invention claimed in any patent or patent
application including the right to claim priority; and
"Internet" means the worldwide TCP/IP (Transmission Control Protocol/Internet
Protocol) network formed of an interconnection of companies, organisations
and institutions, private and public networks; and
"Keyword Selection Policy" means the guidelines for the selection
of Internet Keywords ("Keywords") as dictated to OBSIDIAN Internet
by the Registrar or the body responsible for the granting of the
Keywords; and
"Licence" means any licence required for OBSIDIAN Internet to provide
the Service or to run OBSIDIAN Internet's System; and
"Name" shall mean the name assigned to the Client in relation to
the provision of the Service including but not limited to any mailbox
and domain names; and
"Oftel" means Office of Telecommunications or the Director General
of Telecommunications; and
"Offending Material" means any material, data, images or information
(including without limitation, the Input Material) which is (1)
in breach of any law, regulation, code of practice or acceptable
use policy; or (2) abusive, indecent, defamatory, obscene or menacing
or otherwise offensive; or (3) in breach of confidence, copyright
or other intellectual property rights, privacy or any other right
of any third party; and
"Order Form" means the agreement or relevant order form or such
other appropriate form for the Service issued by OBSIDIAN Internet
that the Client completes and sends to OBSIDIAN Internet; and
"Package" means any OBSIDIAN Internet products bundled together
where the domain name is acquired and other services added free
of charge as required by the Client as defined on the Service Order;
and
"Party" means a party to the Contract and "Parties" shall be construed
accordingly; and
"Personnel" means the employees, agents or sub- contractors of the
respective Party; and
"Premises" means any sites owned or occupied by the Client at which
the Service is, or will be, provided, as specified in a Service
Order; and
"Price List" means the list of fees payable by the Client in respect
of the Services of which a copy can be requested from OBSIDIAN Internet
in writing to the address shown above; and
"Processing" means any use of messages or calls or data including
sending, receiving, uploading, downloading and posting on web-sites
or elsewhere; and
"Protocols" means the protocols and standards defined in the following
Internet documents: RFC 009, RFC 1122, RFC 1123, RFC 1250 and any
existing or future protocols and standards as appropriate; and
"Registry" means the relevant registry or naming authority responsible
for the registration of domain names that includes (without limitation)
the Nominet UK and the Network Solutions Inc.
"Server" means the server of certain specifications selected by
the Customer in the Order Form and confirmed by OBSIDIAN Internet
in the Confirmation Letter.
"Services" means the OBSIDIAN Internet service selected by the Client
in the Service Order; and
"Service Charge" means the Charges for the Service set out in the
applicable Service Order, Service Description and/or in any OBSIDIAN
Internet price list as in force from time to time; and
"Service Commencement Date" means the date on which OBSIDIAN Internet
agrees to start providing Service as set out in the Service Order;
and
"Service Description" means a OBSIDIAN Internet document as in force
from time to time which contains a description of the Service, and
which may set out additional terms and conditions; and
"Service Order" means a OBSIDIAN Internet Service Order / Application
Form; and
"Set-up Charge" means OBSIDIAN Internet's charge for setting-up
the Service (including any installation charge) set out in the Service
Order, Service Description and/or OBSIDIAN Internet Price List as
in force from time to time; and
"Software" means any device supplied by OBSIDIAN Internet to support
the usability of its services as used by the Client;
"Standard Charges" means the standard charges for the Service as
set out in the Order Form or otherwise as set out on OBSIDIAN Internet's
Website or in OBSIDIAN Internet's brochures; and
"Terms and Conditions" means these terms and conditions including
any Schedules hereto; and
"Work" means any work carried out by OBSIDIAN Internet (or its sub-contractor)
at the Premises for the purpose of installing, maintaining, repairing,
moving, replacing or removing any Apparatus in order to comply with
any of its obligations under this Agreement.
1.1.2
References to Clauses are references to clauses
in the Agreement.
1.1.3
Clause headings are for ease of reference and
do not form part of nor shall they affect the interpretation of
these Terms and Conditions.
1.1.4
References to each party include their permitted
assigns and successors by operation of law.
1.1.5
A person who is not a party to a Contract has
no rights under the Contract (Rights of Third Parties) Act 1999
to enforce any Term of these Terms and Conditions.
1.1.6
Words importing the singular include the plural,
words importing any gender include every gender and words importing
persons include bodies corporate and unincorporated and in each
case vice versa.
1.1.7
References to any statute, statutory provision
or other enactment and any British or other standard include a reference
to that statute, provision, enactment or standard as from time to
time amended, extended or re-enacted.
1.1.8
The words "include" or "including" are to be
construed without limiting the generality of any preceding words.
Clause 1.2 Provision of Service
1.2.1
OBSIDIAN Internet will provide the Service
to the Client in accordance with the provisions of this Agreement
upon a Service Order or Application having been duly signed by the
Client and returned to OBSIDIAN Internet and subject to the further
provisions of this Agreement.
1.2.2
The Client may request OBSIDIAN Internet to
supply Service to the Client by completing and forwarding an Application
to OBSIDIAN Internet or by submitting an online Application via
OBSIDIAN Internet's website. OBSIDIAN Internet, in its absolute
discretion, may accept the Client request by processing the request
including the raising of an invoice (pro-forma or otherwise) for
services.
1.2.3
OBSIDIAN Internet will endeavour to provide
the Service in a timely manner but (in particular where OBSIDIAN
Internet are dependent on another operator to provide the Service
and/or due to technical reasons) cannot guarantee to do so, and
OBSIDIAN Internet will have no liability for any failure to meet
such date.
1.2.4
The Client acknowledges that the fees paid
for any OBSIDIAN Internet hosting package are allocated to the acquisition
of the domain name as registered with the appropriate Registrar
and that all other services, as delivered as part of that initial
hosting package, are deemed to be provided free of charge. The Client
further acknowledges that once the acquisition of this domain name
has occurred as outlined on the Service Order OBSIDIAN Internet
is deemed to have fully executed its contractual obligations to
the Client.
1.2.5
OBSIDIAN Internet possesses the right to change
service providers at any time without consulting the Client and
the Client empowers OBSIDIAN Internet to act as its agent and have
full authority to select, change or remove sub agents when deemed
necessary.
1.2.6
OBSIDIAN Internet shall provide the Services
using all reasonable care and skill subject to payment by the Client
of all amounts payable hereunder on the dates specified herein or
on the Application.
1.2.7
The Client accepts that OBSIDIAN Internet reserves
the right to subject the Client to a credit check and has sole discretion
over whether or not the Client may utilise OBSIDIAN Internet's services
based on the results of that check. The Client also accepts that
if the credit check does not meet OBSIDIAN Internet's requirements,
whatsoever they may be at the time, that OBSIDIAN Internet may request
the Client to pay annual in advance or a deposit in line with the
estimated annual charges that the Client may incur by using the
service. The Client accepts that this credit check may impact their
credit rating and that this information may be shared with other
related companies or subcontractors from time to time.
1.2.8
The Client acknowledges that OBSIDIAN Internet
cannot provide advice or technical support for any aspect of the
Client's own network and therefore the Client acknowledges that
costs may be incurred by the Client for any technical consultation
provided by a third party enabling the compatibility of the Client's
own network to work to specification with the services as provided
by OBSIDIAN Internet as outlined on the Service Order.
1.2.9
The Client shall do all things and provide
all such information as is reasonably required by OBSIDIAN Internet
to provide the Services in accordance with these Terms and Conditions.
Clause 1.3 Payment and Term
1.3.1
Any agreement shall commence on the date of
acceptance by OBSIDIAN Internet of the Application submitted by
the Client and shall be paid on an annual basis for an initial contract
period of two-years (unless otherwise specified) and annually thereafter,
unless and until terminated by either party by providing 60 days
written notice with no termination earlier than the end of the initial
contract period or annual renewal period.
1.3.2
The fees payable to OBSIDIAN Internet in respect
of the Services are specified in the OBSIDIAN Internet Price List.
If a credit card or debit card is on file with OBSIDIAN Internet,
the Client acknowledges that OBSIDIAN Internet will automatically
take payment via that device 14 days from the date of invoice. If
payment is not received via this process (i.e.: credit card or debit
card is no longer valid, credit card or debit card has expired,
etc.) OBSIDIAN Internet will inform the Client via fax or letter
and the Client acknowledges that the invoice (pro-forma or otherwise)
is to be paid by other means and that OBSIDIAN Internet reserves
the right to pursue any outstanding invoice (pro-forma or otherwise)
through the appropriate legal channels.
1.3.3
All Charges are due in advance (whether disputed
or not) or within 14 days of invoice (unless specified otherwise
in the application or on the invoice.) The Client acknowledges that
OBSIDIAN Internet reserves the right to suspend the customer's entire
account in the event of non-payment for any overdue invoice (pro-forma
or otherwise.)
1.3.4
The Client may be required to pay for Services
by Direct Debit or Credit Card on a non-invoiced basis. OBSIDIAN
Internet will notify the Client if this is the case.
1.3.5
All Charges are exclusive of VAT and any other
applicable purchase tax, import, and all other duties. Any failure
by the Client to pay any fees due under these Terms and Conditions
on the date specified shall be deemed to be a "material breach"
of these Terms and Conditions.
1.3.6
In the event of a material breach as described
above, OBSIDIAN Internet's normal terms for collection of payment
apply. If the Client chooses to pay by direct debit, and if, for
any reason, the Client's direct debit fails or mandate is cancelled
and OBSIDIAN Internet cannot take payment, the Client agrees to
make the payment in full by an alternative method within 5 days.
If payment is made within this time period, the Client can continue
to pay via direct debit though, if payment is not made with in this
five day period, OBSIDIAN Internet retains the right to pursue payment
through its normal processes and retract the Client's right to pay
by direct debit in the future.
1.3.7
The Client acknowledges that he shall provide
OBSIDIAN Internet with such amount in cash or by way of guarantee
as OBSIDIAN Internet may specify from time to time as a non-refundable
payment of Charges for the remaining balance on the Contract. If
the deposit is not provided within seven days of request, OBSIDIAN
Internet will have the right to disconnect the Service. Interest
is not payable on deposits.
1.3.8
If the Client is overdue with any payments
hereunder, then without prejudice to OBSIDIAN Internet's other rights
and remedies, the Client shall be liable to pay to OBSIDIAN Internet
a flat fee of £15 for each correspondence, OBSIDIAN Internet's solicitors
and court fees, as well as interest on the amount payable at an
annual rate of 5% above the prevailing base rate of The Royal Bank
of Scotland plc, which interest shall accrue on a daily basis from
the date payment becomes overdue until OBSIDIAN Internet has received
payment of the overdue amount together with all interest.
1.3.9
Should the Client choose to pay for any ongoing
fees by Direct Debit, the completed Direct Debit form must be returned
to OBSIDIAN Internet within 28 days. In the event of the Client
failing to return a completed direct debit mandate, OBSIDIAN Internet
reserves the right to withdraw any discounts that may have been
offered and invoice (pro-forma or otherwise) for the annual premium
immediately. This invoice (pro-forma or otherwise) will then be
payable within 14 days by other means.
1.3.10
The Client accepts that if any services provided
by OBSIDIAN Internet are disconnected because of non-payment or
because of any breach of contract or Acceptance of Use Policies,
OBSIDIAN Internet has the right to charge the Client a reconnection
fee equal to one month's fees with a minimum payment of £45 plus
VAT for each reconnection unless specifically stated otherwise in
these terms and conditions.
1.3.11
The Client acknowledges responsibility for
informing OBSIDIAN Internet of all billing address changes and any
changes relating to the Client's ability to be contacted and further
confirms that OBSIDIAN Internet must be informed of any changes
on the account including but not limited to address changes or contact
person changes and that OBSIDIAN Internet possesses the right to
charge a £15 administration fee per change and that OBSIDIAN Internet
will not be held responsible for any disruption or lack of service
which result from a lack of notification by Client to OBSIDIAN Internet
regarding such changes
Clause 1.4 Client's
Obligations
1.4.1
The Client shall: 1.4.1.1
supply OBSIDIAN Internet with such information
as OBSIDIAN Internet or its sub-contractor may reasonably request
in order to carry out any Work; and 1.4.1.2
grant or procure so that OBSIDIAN Internet
or its sub-contractor are granted all necessary authority at all
reasonable times and on reasonable notice (except in the case of
an emergency) to carry out the Work and install, keep, and maintain
any Apparatus at the Premises; and 1.4.1.3
in the case of an emergency grant or procure
that OBSIDIAN Internet or its sub-contractor is granted all necessary
authority to enter the Premises immediately and without notice;
and 1.4.1.4
provide appropriate space, ducting, suitable
and safe working environment and electrical power for OBSIDIAN Internet
or its subcontractor to install and maintain the Apparatus at the
Premises at no cost; and 1.4.1.5
not alter, adjust, or interfere with the Apparatus
or allow any of Client employees or agents to do so; and
1.4.1.6
ensure that the Apparatus is kept safe and
not interfered with by any third party.
Clause
1.5 Warranties
1.5.1
In performing OBSIDIAN Internet's duties under
this Agreement, OBSIDIAN Internet shall, at all times use its reasonable
endeavours to excercise reasonable care of a competent ISP (Internet
Service Provider) or, as applicable, telecommunications operator.
The Client acknowledges that neither OBSIDIAN Internet, nor any
other party, has control over the Internet and service interruptions
may occur due to circumstances beyond or at times within OBSIDIAN
Internet's reasonable control such as internal and/or external system
malfunctions or failures of third parties. The Client therefore
acknowledges that OBSIDIAN Internet shall not be held liable in
any way for losses as a result of such service interruptions regardless
of their nature.
1.5.2
The Client further acknowledges that OBSIDIAN
Internet shall in no way be held liable for any service outage or
disruption that occurs as a result of any of OBSIDIAN Internet's
suppliers' failure to provide a service. For clarification, if any
of OBSIDIAN Internet's suppliers enters administration, liquidation,
is wound up or for any reason fails to provide a service to OBSIDIAN
Internet that impacts the Client, OBSIDIAN Internet shall not be
held liable. In the event OBSIDIAN Internet selects an alternative
supplier in order to restore the service to the Client, the Client
acknowledges that any increase in the costs to OBSIDIAN Internet
as a result of the supplier change will be passed on to the Client.
1.5.3
The Client acknowledges that OBSIDIAN Internet
offers a Reseller program for Client's that purchase OBSIDIAN Internet
packages on behalf of an end user. The Client further acknowledges
that the Client is responsible for all domain names and packages
purchased on behalf of a third party, and if not purchased through
the Reseller program as offered by OBSIDIAN Internet, OBSIDIAN Internet
will not be held liable for any implications resulting from OBSIDIAN
Internet's effort to contact the Client at the contact details held
on the account within OBSIDIAN Internet's system through domain
names held on the Client's account.
1.5.4
The Client acknowledges that it is not possible
for OBSIDIAN Internet to provide a 100% fault-free Service. OBSIDIAN
Internet expressly reserves the right to disconnect availability
of Internet access for the purpose of necessary or scheduled maintenance.
Access to e-mail may also be adversely affected by conditions and
performances outside OBSIDIAN Internet 's control including without
limitation the breakdown of transmission and telecommunication links
or provisions of services by OBSIDIAN Internet's selected service
providers. Sometimes OBSIDIAN Internet will need to suspend the
Service for maintenance, scheduled or unscheduled. While OBSIDIAN
Internet will try to maintain the Service 24 hours a day, seven
days a week, OBSIDIAN Internet cannot guarantee to do so. OBSIDIAN
Internet will always try to repair reported faults and/or restore
the Service as soon as reasonably practical.
1.5.5
The Client warrants to OBSIDIAN Internet that
the Client has obtained and will maintain all such approvals, way
leaves, and licences as may be necessary to perform OBSIDIAN Internet's
obligations under this Agreement or to allow OBSIDIAN Internet to
do so and that the Client will comply generally with all applicable
laws and regulations.
1.5.6
No other warranties or representations, expressed
or implied, are given by either party under this Agreement and any
implied warranties are expressly excluded.
1.5.7
The Client warrants that it will comply with
the provisions of the end-user licence relating to all aspects of
Services in which an Application has been provisioned.
1.5.8
The Client warrants that it will comply in
every respect with the provisions of OBSIDIAN Internet 's General
Usage Policy.
Clause 1.6 Term and Termination
1.6.1
This Agreement may be terminated by either
party by providing 60 days written notice with no termination earlier
than the initial contract period or annual renewal period.
1.6.2
If the Client terminates this Agreement during
the initial period of two-years, other than because OBSIDIAN Internet
has increased its Charges or materially changed the terms of this
Agreement to the Client's detriment, or if the Agreement is terminated
by OBSIDIAN Internet under 1.6.3 below, the Client must pay OBSIDIAN
Internet the applicable Charges for the remainder of the initial
contract period.
1.6.3
Either party may terminate this Agreement or
the Service provided under it forthwith by notice to the other if:
1.6.3.1
the other party commits a material breach of
this Agreement and, in the case of a breach capable of being remedied,
fails to remedy it within a reasonable time of being given written
notice from the other party to do so; or 1.6.3.2
the other party commits a material breach of
this Agreement which cannot be remedied under any circumstances;
or 1.6.3.3
the other fails to pay any Charges when due;
or 1.6.3.4
the other party passes a resolution for winding
up (other than for the purpose of solvent amalgamation or reconstruction),
or a court makes an order to that effect; or 1.6.3.5
the other party ceases to carry on its business
or substantially the whole of its business; or 1.6.3.6
the other party is declared insolvent, or convenes
a meeting of or makes or proposes to make any arrangement or composition
with its creditors; or a liquidator, receiver, administrator, administrative
receiver, manager, trustee or similar officer is appointed over
any of its assets; or 1.6.3.7
the bandwidth used for traffic to and from
the web site is exceeded beyond OBSIDIAN Internet's considered acceptable
use and is deemed by OBSIDIAN Internet to affect the performance
of other Clients' Business Websites. Notwithstanding any other remedies
it may have under these Terms and Conditions or in law, OBSIDIAN
Internet, in the event that the acceptable bandwidth is exceeded,
may elect to charge the Client an additional monthly fee as set
out in the OBSIDIAN Internet Price List or Service Order.
1.6.4
If any of the events detailed above occur as
a result of OBSIDIAN Internet's default, OBSIDIAN Internet may by
giving notice to the Client to disconnect the Service or any part
of it without prejudice to OBSIDIAN Internet's right to terminate
this Agreement. Where the Service or any part of it is disconnected
under this paragraph, the Client must pay the Charges for the Service
until this Agreement is terminated.
1.6.5
Any rights to terminate this Agreement shall
be without prejudice to any other accrued rights.
1.6.6
On termination of this Agreement for any reason:
1.6.6.1
OBSIDIAN Internet shall have the right immediately
to remove any Apparatus from the Premises; and 1.6.6.2
all amounts owing for the Service shall be
due and payable in full on demand whether or not then due and Client
shall have no right to withhold or set off such amounts; and
1.6.6.3
OBSIDIAN Internet may delete all e-mail, Websites,
and other data stored on the Service by the Client and re-use the
e-mail addresses, domain names not held by the Client and subject
to Clause1.6.6.4, and Business Web-spaces. OBSIDIAN Internet shall
not exercise this right for six weeks in the case of termination
by OBSIDIAN Internet other than for breach by Client; and
1.6.6.4
OBSIDIAN Internet shall transfer any domain
names held by the Client to another ISP at a Charge as specified
in the OBSIDIAN Internet Price List.
Clause
1.7 Consequences of Termination
1.7.1
Upon the termination of any Agreement for any
reason whatsoever: 1.7.1.1
the Client shall promptly return to OBSIDIAN
Internet all copies of the Software in his possession; and
1.7.1.2
OBSIDIAN Internet may cease to host the Business
Web Site with immediate effect; and 1.7.1.3
each party shall on request promptly return
any documents or papers relating to the business of the other party
(including any of the other party's Confidential Information) which
it then has in its possession or control.
Clause
1.8 Renewal
1.8.1
OBSIDIAN Internet will automatically renew
the Client's contract each year after the initial two-year contract
period unless the Client notifies OBSIDIAN Internet in writing at
least 60 days prior to the end of the contract period instructing
OBSIDIAN Internet to do otherwise.
1.8.2
The Client acknowledges in the event OBSIDIAN
Internet is not informed at least 60 days prior to the end of the
contract period of the Client's wishes not to renew, OBSIDIAN Internet
will automatically raise and forward an Invoice (pro-forma or otherwise)
to the Client for the renewal for a further year. If a credit card
or debit card is on file with OBSIDIAN Internet, the Client acknowledges
that OBSIDIAN Internet will automatically take payment via that
device 14 days from the date of invoice.
1.8.3
If payment is not received via this process
(i.e.: credit card or debit card is no longer valid, credit card
or debit card has expired, etc.) prior to the end of the contract
period, OBSIDIAN Internet will inform the Client via fax or letter
and the Client acknowledges that the invoice (pro-forma or otherwise)
is to be paid prior to the end of the contract period and that OBSIDIAN
Internet reserves the right to pursue any outstanding invoice (pro-forma
or otherwise) through the appropriate legal channels.
1.8.4
OBSIDIAN Internet will use its reasonable endeavours
to ensure that the Domain Name, Existing Domain Name, Internet Keyword
or any other OBSIDIAN Internet product will be automatically renewed
after expiry of the initial or any subsequent two year registration
period provided always that this Agreement remains in force up to
the date of expiry of such period.
1.8.5
In consideration for renewal of the OBSIDIAN
Internet package by OBSIDIAN Internet and prior to the renewal date,
the Client shall pay to OBSIDIAN Internet the annual renewal fee
set out in the Price List.
1.8.6
Whilst OBSIDIAN Internet will use all reasonable
endeavours to ensure that the Domain Name, Existing Domain Name,
Internet Keyword or any other OBSIDIAN Internet product is renewed
at the relevant renewal date, the Client acknowledges that it is
not possible for OBSIDIAN Internet to guarantee such renewal and
that OBSIDIAN Internet shall not be liable for any failure to renew
the Domain Name or the Existing Domain Name.
1.8.7
The Client acknowledges that in the event the
Client fails to remit payment or fails to instruct OBSIDIAN Internet
not to renew the OBSIDIAN Internet package, OBSIDIAN Internet reserves
the right to renew the Domain Name or any associated Domain Names
under it own IPS tag and reserves the right to change the Admin,
Technical and Billing contacts to a OBSIDIAN Internet representative
and that OBSIDIAN Internet will, at that point, become the rightful
owner of the Domain Name.
1.8.8
The Client also acknowledges that in the event
the Client fails to remit payment or fails to instruct OBSIDIAN
Internet not to renew the OBSIDIAN Internet package, OBSIDIAN Internet
reserves the right to offer an alternative domain name to the Client
if payment is received during OBSIDIAN Internet's debt recovery
process. Clause 1.9 Confidentiality
1.9.1
The Client shall ensure that its employees,
agents, and sub-contractors shall, keep confidential and not, without
OBSIDIAN Internet's prior written consent, use or disclose to any
third party any material or information relating to the Agreement
and/or OBSIDIAN Internet's business which the Client may acquire
in the course of or in accordance with the Agreement.
1.9.2
Nothing in Clause 1.9.1 will be taken to prevent
the Client from disclosing any information: 1.9.2.1
in Client's possession (with full right to disclose) before disclosed
by OBSIDIAN Internet; or
1.9.2.2 which is or becomes public knowledge
other than by breach of this clause; or
1.9.2.3 which the Client may independently
develop or receive from a third party (with full right to
disclose)
1.9.3
OBSIDIAN Internet reserves the right
(but does not assume the obligation) to inspect any material
which the Client processes using the Service to ensure OBSIDIAN
Internet's compliance with the Agreement and any legal requirements.
1.9.4
The Client and OBSIDIAN Internet may
disclose such material if requested or required to do so by
the police or any other competent authority.
1.9.5
If requested to do so by a third party
OBSIDIAN Internet may disclose such material during the course
of an action for the infringement of their rights which OBSIDIAN
Internet reasonably believes to arise from the Client's use
of the Service. OBSIDIAN Internet may modify or remove any
material that infringes this Agreement.
1.9.6
The Client hereby agrees that OBSIDIAN
Internet may record or monitor the Client's calls to OBSIDIAN
Internet for quality and contractual purposes.
1.9.7
Where the Client uses the Service to
post material on a Web Site (including chat-rooms and other
facilities), the Client grants to OBSIDIAN Internet and its
licensors and assigns a royalty-free, irrevocable licence
to use, edit, copy, republish and distribute such material
through the Service (for any purpose.) OBSIDIAN Internet may
remove any material that appears on any page of OBSIDIAN Internet's
own Web Site.
1.9.8
All information, drawings, specification,
documents, contracts, design material and all other data,
which either party may have disclosed and may from time to
time disclose to the other party relating to its business,
Clients, prices, services, requirements, the Software, the
Web Site, the Services and these Terms and Conditions, including
any technical specifications (the "Confidential Information"),
are proprietary and confidential to the disclosing party.
Clause 1.10 Cancellations
1.10.1
The Client understands that there is
no cancellation policy in place meaning that, from the time
the Client submits the signed Service Order to OBSIDIAN Internet,
the Client waives any right to cancel the services purchased
unless specified otherwise within this document.
Clause 1.11 Force Majeure
1.11.1
Neither party shall be liable for any
delay in performing or failure to perform its obligations
hereunder to the extent that and for so long as the delay
or failure results from any cause or circumstance whatsoever
beyond its reasonable control (an "event of force majeure"),
provided the same arises without the fault or negligence of
such party and the affected party notifies the other party
within two (2) working days of becoming aware of the same
of such event of force majeure and the manner and extent to
which its obligations are likely to be prevented or delayed,
and provided also that the occurrence of any such event of
force majeure shall not have the effect of discharging or
postponing the affected party's payment obligations hereunder.
1.11.2
If any event of force majeure occurs,
the date(s) for performance of the obligation(s) affected
shall be postponed for so long as is made necessary by the
event of force majeure provided that if any event of force
majeure continues for a period of or exceeding 60 days, the
non-affected party shall have the right to terminate any agreement
governed by these Terms and Conditions forthwith on written
notice to the affected party. Each party shall use its reasonable
endeavours to minimise the effects of any event of force majeure
Clause 1.12 Data Protection
1.12.1
Unless indicated otherwise on the relevant
Application/ Service Order form, the Client hereby agrees
to allow OBSIDIAN Internet to collect and process data and
information regarding the Client's use of the Service and
to provide this to sub-contractors and/or companies affiliated
with OBSIDIAN Internet for the purposes of marketing OBSIDIAN
Internet's (or OBSIDIAN Internet's affiliated companies')
services, or other related services, or for any other purpose
connected with the Agreement. In particular, but without limitation,
if the Service is provided to the Client following a third
party referral, the Client agrees that OBSIDIAN Internet may
provide them with such reasonable information as they request
regarding the installation of the Service and OBSIDIAN Internet's
provision of the same to the Client. OBSIDIAN Internet will
provide the Client on request with details of all such information
held by OBSIDIAN Internet, and will modify any information
that the Client advises is incorrect.
1.12.2
Subject to and in accordance with relevant
data protection legislation, the Client hereby consents to
allow OBSIDIAN Internet to collect data regarding OBSIDIAN
Internet's use of the Services and to provide such data to
any governmental or regulatory body for the purpose of OBSIDIAN
Internet's compliance with any applicable laws and regulations.
1.12.3
Each party shall for the duration of
any Agreement governed by these Terms and Conditions comply
with the provisions of the Data Protection Act 1998, (including
the data protection principles set out in that Act) and any
similar or analogous laws, regulatory requirements or codes
of practice governing the use, storage or transmission of
personal data and shall not permit anything to be done which
might cause or otherwise result in a breach by either party
of the same.
1.12.4
OBSIDIAN Internet possesses the right
to communicate with the Client regularly via, but not limited
to, electronic means.
1.12.5
OBSIDIAN Internet may, from time to time,
send Client information relating to the services of other
companies that OBSIDIAN Internet feels may be of interest
to the Client. If the Client does not want to receive such
information, it is to inform OBSIDIAN Internet in writing.
1.12.6
OBSIDIAN Internet has the right to deny
Customer Support to the Client if the Client fails to demonstrate
to the OBSIDIAN Internet representative upon receipt of a
phone call or e-mail by OBSIDIAN Internet that they are indeed
the Client and therefore authorised to request that changes
be made on the account. The Client acknowledges that it may
not always be possible for OBSIDIAN Internet to guarantee
that breaches will not occur and therefore agrees to cooperate
with OBSIDIAN Internet staff in its requests for Client authentication.
Clause 1.13 Liability
1.13.1
Nothing in this Agreement shall restrict
or exclude either party's liability for fraud, death or personal
injury.
1.13.2
The Client shall not be entitled to any
liquidated compensation or refund payments for unavailability
of or interruptions to the Service.
1.13.3
OBSIDIAN Internet shall not be liable
to the Client nor to any third party under this Agreement
in contract, tort or otherwise for any direct or indirect
loss of profit, anticipated savings, business, contracts,
revenue, time, goodwill or loss of or harm to data or other
content or for any other indirect or consequential loss.
1.13.4
OBSIDIAN Internet shall not be liable
in respect of any goods or services purchased or obtained
or any transactions entered into by the Client through the
Service with third parties. Further OBSIDIAN Internet shall
have no liability to the Client in respect of any third party
Internet criminal activity (including without limitation as
a result of computer 'hackers') or in respect of billing,
payment, or other information that passes between OBSIDIAN
Internet over the Internet (including by e-mail) in relation
to the provision of the Service.
1.13.5
The Client acknowledges that OBSIDIAN
Internet shall not be liable to the Client in respect of any
loss or damage arising from the Clients use of or reliance
upon any advice or information provided by OBSIDIAN Internet's
Client Services team.
1.13.6
Subject to the other provisions of this
Clause, any liability OBSIDIAN Internet may have to the Client
in contract, tort, or otherwise in connection with the supply
or non-supply of the Services and this Agreement shall be
limited in each calendar year to damages equal to the Charges
paid by the Client in that calendar year.
Clause 1.14 Data Backup
1.14.1
Whilst OBSIDIAN Internet shall use its
reasonable endeavours to ensure that backup copies of the
Client's Web Site and all Client data contained in the Web
Site are made at reasonable intervals, the Client shall be
solely responsible for the backup of such data and OBSIDIAN
Internet shall not be liable for any damages, loss, costs
or other expenses arising out of or in connection with any
loss of data by the Client which are due to the failure of
the Client or OBSIDIAN Internet to back up such data.
Clause 1.15 General Usage Policy
1.15.1
The Client agrees to adhere to OBSIDIAN
Internet's General Use Policy so as to ensure a safe, functional,
and trusted environment for OBSIDIAN Internet Clients to publish
their information on the Web and will comply with all parts
of this clause as well as with the Acceptable Use Policy as
found at www.OBSIDIANinternet.net/
1.15.2
The parties acknowledge and agree that
the Client shall have full editorial control over the contents
of the Web Site and the Client warrants that the Web Site
(including where the Client engages in any form of electronic
communication through a discussion forum, via the Web Site
or otherwise with any end-user) shall not:
1.15.2.1 be in breach of the laws
of England and Wales or the country of establishment of
the Client or any end-user of the Web Site, or any international
conventions, codes or regulations applicable to the Internet
including but not limited to infringement of copyright and
other Intellectual Property Rights, defamation, theft, fraud,
drug-trafficking, money laundering and terrorism; or
1.15.2.2 include any obscene or
inflammatory language; or
1.15.2.3 include any defamatory
material; or
1.15.2.4 promote sexually explicit
materials; or
1.15.2.5 promote violence,
sadism, cruelty or incite racial hatred; or
1.15.2.6 promote discrimination
based on race, sex, religion, nationality, disability,
sexual orientation or age; or
1.15.2.7 promote illegal
activity.
1.15.3
The Client shall indemnify
and keep OBSIDIAN Internet indemnified against
all proceedings, losses, liabilities, damages
(including legal costs), Charges and expenses
of whatsoever nature arising out of or in connection
with any action or claim that the content of
the Web Site violates the provisions noted above.
1.15.4
Clients in breach of this
policy will be contacted by OBSIDIAN Internet
and given the opportunity to remove the content
in question before having services suspended.
The Client accepts that repeated infractions
may cause the cancellation of service without
refund of any fees.
1.15.5
The Client agrees to comply
with all applicable legal and regulatory requirements
and any applicable licence; and
1.15.5.1
not use the Service in
a way which could cause it to be interrupted,
damaged or otherwise impaired or which violates
OBSIDIAN Internet's rights (including intellectual
property rights) or those of any third party
(including copyright, confidence, privacy or
other rights); and
1.15.5.2
not knowingly intercept
or attempt to intercept any message that passes
over OBSIDIAN Internet's System or attempt to
access any unauthorised component of the Service;
and
1.15.5.3
only connect to OBSIDIAN
Internet's System or the Apparatus, telecommunications
equipment that is approved for use by OBSIDIAN
Internet and complies with all relevant legislation,
standards, and licence requirements; and
1.15.5.4
comply with all reasonable
instructions OBSIDIAN Internet gives the Client
relating to the use of OBSIDIAN Internet's System
or Apparatus; and
1.15.5.5
pay the applicable Charges
as set out in the Service Order or Applications
and comply with any additional obligations specified
in the Service Description, Service Order or
any applicable Acceptable Use Policy.
1.15.5.6
must comply to any fair usage policies as determined by OBSIDIAN,
wherein usage of services with OBSIDIAN do not affect other customers
services with OBSIDIAN. This may include but is not limited to Web Server
Space and Bandwidth, regardless of whether said services offer an "unlimited" option.
1.15.6
OBSIDIAN Internet does
not support unsolicited e-mail messages sent
by users of OBSIDIAN Internet's system (also
known as junk e-mail or SPAM) other than to
the Client's own Clients. Users sending unsolicited
e-mail messages from OBSIDIAN Internet's system
or posting SPAM in Usenet Newsgroups will have
all services temporarily suspended. The Client
will then be contacted by OBSIDIAN Internet
and informed of the suspension before having
services reinstated. The Client accepts that
repeated infractions may cause the cancellation
of service without refund of any fees.
1.15.7
The Client agrees to access
OBSIDIAN Internet's services using its published
fully qualified domain name (FQDN - e.g. smtp.businessserve.co.uk)
and not the underlying IP address and acknowledges
that OBSIDIAN Internet reserves the right to
change the underlying IP address of any of its
services without prior notice.
1.15.8
OBSIDIAN Internet may,
at its sole discretion, run manual or automatic
systems to check compliance with these Terms
and Conditions. The Client acknowledges that
these checks may include, but are not limited
to, scanning for open mail relays, smurf amplifiers
and insecure formmail scripts. By accessing
the Internet via OBSIDIAN Internet's services,
the Client is deemed to have granted permission
for these checks.
1.15.9
The Client is required
to accept e-mail addressed to "postmaster" at
the Client's e-mail address utilising the domain
name(s) on the Client's account. For example,
if the Client has the domain name "mybusiness.co.uk",
then the Client shall accept and read all e-mail
addressed to postmaster@mybusiness.co.uk. The
Client will be deemed to have read any and all
such postmaster-addressed e-mail. The Client
acknowledges that OBSIDIAN Internet may take
action on the basis of this assumption that
may impact the Client's account.
Clause 1.16 Intellectual Property
Rights
1.16.1
The Client agrees and acknowledges
that the copyright and any other intellectual
property rights in the Software, the E-Tutor,
and the Business Web Site shall be owned by
OBSIDIAN Internet except that the intellectual
property rights in any material proprietary
to the Client or any third party (the "Content")
which has been incorporated into the Web Site
by the Client shall be owned by the Client or
the relevant third party respectively.
1.16.2
Subject to the exceptions
set out in Clause 16.1 the Client hereby assigns
to OBSIDIAN Internet for the sum of £1 (receipt
of which is hereby acknowledged) the whole of
the Client's present and future right, title
and interest in the Intellectual Property Rights
to the Web Site.
1.16.3
Each party agrees to execute
any additional documents reasonably necessary
to effect and evidence the other party's rights
under Clauses 16.1 and 16.2 (at such other party's
request) and not to do or omit to do any act
that would or might prejudice the other party's
rights.
1.16.4
The Client warrants that
it has obtained for itself and for OBSIDIAN
Internet all necessary consents, approvals and
licences for use of the Content in the Business
Web Site.
1.16.5
In the event that the use
of the Content infringes the intellectual property
rights of any third party, the Client will immediately
replace the infringing part at its own expense
with non-infringing material.
1.16.6
The Client agrees to indemnify
and keep OBSIDIAN Internet indemnified and defend
it at its own expense from and against:
1.16.6.1
any and all claims that
the Content or any act or omission by the Client,
its employees, agents and representatives infringes
any copyright, trademark or other intellectual
property rights of any third party; and
1.16.6.2
any infringement by the
Client, its employees, agents and representatives
of OBSIDIAN Internet 's intellectual property
rights howsoever arising and shall compensate
OBSIDIAN Internet for any loss, damages and
other expenses arising out of or in connection
with such infringement.
Clause 1.17 Suspension of
Services
1.17.1
OBSIDIAN Internet may disconnect
the provision of Service without liability on
its part, and with as much prior notice as reasonably
possible (except in the case of paragraph (a)
below in which case OBSIDIAN Internet may do
so without prior notice:) (a) if necessary for
operational reasons or for the purposes of carrying
out Work at the Premises or maintaining or upgrading
the Service or OBSIDIAN Internet's System; or
(b) if obliged to comply with an order, instruction,
or request of an emergency service organisation
or a governmental or other competent authority.
Clause 1.18 Notices
1.18.1
Except as expressly stated
herein to the contrary, all notices and other
communications required or permitted to be given
under these terms and conditions shall be in
writing and shall be delivered or transmitted
to the intended recipient's address as specified
above or such other address as either party
may notify to the other for this purpose from
time to time. Any notice shall be treated as
having been served on delivery if delivered
by hand, two working days after posting if sent
by pre-paid registered mail, on delivery if
sent by courier and on confirmation of transmission
if sent by facsimile. For the avoidance of doubt,
notice under these Terms and Conditions shall
not be validly served if sent by E-mail. This
clause does not affect the responsibility of
the Client to regularly review OBSIDIAN Internet's
website for any alterations/amendments to the
terms and conditions which would be binding
on the client
Clause 1.19 Variation
1.19.1
Except as explicitly stated
in this Agreement, the terms of the Agreement
may only be changed or modified by OBSIDIAN
Internet on behalf of both parties. OBSIDIAN
Internet may change the technical specification
of the Service at any time, provided this does
not detrimentally affect its performance.
1.19.2
The Client accepts the
obligation to review these terms and conditions
every two weeks and, unless OBSIDIAN Internet
is informed in writing otherwise, the Client
accepts that as part of the Agreement, the revised
terms and conditions will indeed supersede,
in whole or in part thereof, the previous terms
and conditions deeming the revised terms and
conditions to be in force until the end the
contract period.
1.19.3
OBSIDIAN Internet may amend
this Agreement at any time, with immediate effect,
in order to comply with any law, regulation
or ruling of Oftel or any other Governmental
or regulatory body.
Clause 1.20 Indemnity
1.20.1
Client shall indemnify
OBSIDIAN Internet against all third party claims
and losses, liabilities, costs and expenses
(including without limitation reasonable legal
expenses) that OBSIDIAN Internet may incur as
a result of any breach of OBSIDIAN Internet's
obligations under this Agreement or misuse of
the Services (whether by Client or not) provided
that this indemnity shall not apply to the extent
that any claim or part of a Claim directly results
from any wrongful or negligent acts or omissions
by OBSIDIAN Internet.
Clause 1.21 Rights of Third
Parties
1.21.1
Except as expressly provided
to the contrary, a person ("third party") who
is not a party to this Agreement has no right
under the Contracts (Rights of Third Parties)
Act 1999 to enforce any provision of this Agreement
notwithstanding that any such provision may
purport to confer or may be construed as conferring
a benefit on such third party. This does not
affect any right or remedy of any such third
party that exists or is available apart from
that Act.
1.21.2
For the avoidance of doubt,
OBSIDIAN Internet may and shall, as it deems
fit, sub-contract part or all of its obligations
under these Terms and Conditions.
Clause 1.22 Severability
1.22.1
Should any provision of
this Agreement be held by any competent court
or authority to be invalid or unenforceable
such provision shall (without prejudice to the
remaining provisions) have no effect but the
parties shall use all reasonable endeavours
to replace the invalid or unenforceable provision
by a valid provision, the effect of which shall
be as close as possible to the intended effect
of the invalid or unenforceable provision.
Clause 1.23 Waiver
1.23.1
Failure or delay by either
party to enforce any of its rights under this
Agreement shall not be deemed to be a waiver
of any such right nor prevent that party from
exercising or enforcing that same right or any
other right on a later occasion.
Clause 1.24 General
1.24.1
These Terms and Conditions
contain all the terms agreed between the parties
regarding its subject matter and supersede any
prior agreement, understanding or arrangement
between the parties, whether oral or in writing.
No representation, undertaking or promise shall
be taken to have been given or be implied from
anything said or written in negotiations between
the parties prior to any agreement governed
by these Terms and Conditions except as expressly
stated in these Terms and Conditions. Neither
party shall have any remedy in respect of any
untrue statement made by the other upon which
that party relied in entering into any Agreement
(unless such untrue statement was made fraudulently)
and that party's only remedies shall be for
breach of contract as provided in these Terms
and Conditions.
1.24.2
Provisions of these Terms
and Conditions that either are expressed to
survive its termination or from their nature
or context it is contemplated that they are
to survive such termination, shall remain in
full force and effect notwithstanding such termination.
1.24.3
The relationship of the
parties is that of independent contractors dealing
at arm's length. Except as otherwise stated
in these Terms and Conditions, nothing in these
Terms and Conditions shall constitute the parties
as partners, joint ventures or co-owners, or
constitute either party as the agent, employee
or representative of the other, or empower either
party to act for, bind or otherwise create or
assume any obligation on behalf of the other,
and neither party shall hold itself out as having
authority to do the same.
1.24.4
The parties shall at the
requesting party's reasonable expense do and
execute all such further acts and things as
are reasonably required to give full effect
to the rights given and the transactions contemplated
by these Terms and Conditions.
1.24.5
OBSIDIAN Internet may make
alterations to these Terms and Conditions at
any time without warning to the Client.
Clause 1.25 Assignment
1.25.1
OBSIDIAN Internet may assign
or otherwise transfer this Agreement at any
time. Client may not assign or otherwise transfer
this Agreement or any part of it without OBSIDIAN
Internet's written consent.
Clause 1.26 Law and Jurisdiction
1.26.1
The construction, validity,
and performance of these Terms and Conditions
shall be governed by English law, and the parties
submit to the exclusive jurisdiction of the
English courts to resolve any dispute between
them.
Clause 1.27 Entire Document
1.27.1
This Agreement and any
documents referred to herein contain the entire
understanding of the parties relating to the
subject matter of this Agreement.
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