HOSTING & DOMAIN NAMES
1 DEFINITIONS
In this Contract unless the context otherwise requires:
"THE COMPANY" means DR Media Limited;
" THE COMPANY Charges Schedule" means a schedule of charges for Service which is made available to the Customer from time to time;
"Contract" means the contract THE COMPANY and the Customer incorporating these conditions, the THE COMPANY order and configuration forms and THE COMPANY s Charges Schedule;
"Customer" or "Client" means a person with whom THE COMPANY makes this Contract including a person reasonably appearing to THE COMPANY to act with that Customers authority;
1.1 THE LAW
This Contract is subject to English Law and the exclusive jurisdiction of the English courts.
2. PROVISION OF SERVICE
2.1 THE COMPANY agrees to provide the Customer with Service the terms and conditions of this Contract which sets out the entire Contract between THE COMPANY and the Customer.
2.2 It is technically impracticable to provide Service free of faults and THE COMPANY does not undertake to do so. In the event of a fault in Service the Customer must report it by telephone, fax or electronic mail to the appropriate number specified on the THE COMPANY order form or such other number as THE COMPANY may from time to time provide to the Customer. Upon receipt of a fault report, THE COMPANY will take all proper steps without undue delay to correct the fault.
2.3 Requests made to THE COMPANY relating to the provision of Service are, unless otherwise agreed, to be made or confirmed in writing or by electronic mail.
2.4 THE COMPANY will endeavour to meet any date proposed by the Customer or THE COMPANY for the provision of Service, but any such date is to be treated as an estimate only and THE COMPANY accepts no liability for failure to meet it.
2.5 Where, at the request of the Customer any work to provide Service is done outside THE COMPANY normal working hours, the Customer will pay a charge for such work calculated at THE COMPANY applicable hourly rate.
2.6 If THE COMPANY agrees any change in Service this Contract is to be treated as varied accordingly.
3. MINIMUM PERIOD OF SERVICE
The Service shall be provided for a minimum period of Service of twelve months beginning on the day that Service is first made available.
4. THE COMPANY GENERAL POWERS
THE COMPANY may;
4.1 temporarily suspend Service for the purpose of repair, maintenance or improvement of any of THE COMPANY systems;
4.2 vary the technical specification of Service for operational reasons;
4.3 give instructions about the use of Service which THE COMPANY thinks reasonably to be necessary in the interests of safety, or of the quality of Service to THE COMPANY s, other customers and any such instructions shall whilst they are in force, be deemed to form part of this Contract; but before doing any of these things THE COMPANY will give as much on-line, written or oral notice as is reasonably practicable in the circumstances, and THE COMPANY will restore Service as soon as is reasonably practicable after temporary suspension.
5. MIS-USE
5.1 The Customer must not, nor must any other person, use Service:
5.1.1 to send or receive any material which is offensive, abusive, indecent, obscene or menacing; or in breach of confidence, copyright, privacy or any other rights;
5.1.2 to cause annoyance, inconvenience or needless anxiety; or
5.1.3 in breach of instructions THE COMPANY has given under sub-paragraph 4.3; or
5.2 The customer must not, nor must any other person use a Name such as to infringe the rights of my other person, whether in statute or common law, in a corresponding trade mark or name.
5.3 If THE COMPANY suspends Service for contravention of sub-paragraph 5.1 or 5.2 it can refuse to restore Service until it receives an acceptable assurance from the Customer that there will be no further contravention.
6. LIMITATION ON USE
Except with the written consent of THE COMPANY:
6.1 Service shall not be used by or on behalf of any person other than the Customer;
6.2 the Customer shall not receive or permit any other to receive any consideration (whether in money or money's worth, the giving or withholding of any business or benefit of any kind or description) either directly or indirectly in return for or on account of the use of Service by or on behalf of any person other than the Customer.
7. CHARGES FOR SERVICE
7.1 The Customer shall pay on demand the charges for Service which appear, or are calculated according to the rates which appear, or are otherwise mentioned, in THE COMPANY Charges Schedule. Charges are normally payable quarterly in advance. When THE COMPANY makes a change to those charges or rates THE COMPANY will give the Customer not less than 2 weeks notice of the change,
7.2 Unless this Contract provides otherwise the Customer is responsible for all charges set out in THE COMPANY Charges Schedule for Service provided for the Customer, in particular subscription charges and charges for all services and facilities provided at the Customer's request in relation to Service.
7.3 Subject to any provision of this Contract, liability for charges shall commence, unless THE COMPANY notifies the Customer to the contrary, with effect from the day on which THE COMPANY first makes Service available to the Customer.
7.4 Unless THE COMPANY Charges Schedule provides otherwise, all charges for Service are exclusive of Value Added Tax and other applicable taxes other than taxes on THE COMPANY income, however designated, which will be added to the Customer's bill.
7.5 THE COMPANY understands and will exercise its statutory right to claim interest and compensation for debt recovery costs under the late payment legislation if payment is not forthcoming according to agreed credit terms. Where no specific credit terms are agreed the credit period shall be 30 days.
8. PAYMENTS IN ADVANCE
THE COMPANY may ask the Customer for payment in advance not exceeding the set-up charge, and subscription for the minimum period of Service for the Service requested, before Service is provided.
9. DEFAULT
9.1 If the Customer:
9.1.1 does not pay any charge within 7 days of it falling due or breaks this Contract in any other way; or
9.1.2 is subject to bankruptcy or insolvency proceedings;
THE COMPANY can (without losing or reducing any other right or remedy) suspend Service (including partially) temporarily without notice, though the Customer remains liable to pay rental during the suspension, or terminate this Contract by immediate notice.
9.2 "Bankruptcy or insolvency proceeding" means bankruptcy proceedings or in Scotland sequestration proceedings, becoming insolvent, making any composition or arrangement with creditors or an assignment for their benefit, any execution, distress, diligence or seizure: or if the Customer is a company, being the subject of proceedings for the appointment of an administrator, going into liquidation whether voluntary or compulsory (except for the purpose of amalgamation or reconstruction) having a receiver, or administrative receiver of any assets appointed.
9.3 On termination under this paragraph the Customer shall pay THE COMPANY all charges which are due for Service, up to the end of this Contract but THE COMPANY will make allowance for any deposit paid by the Customer and make repayment where appropriate.
9.4 The Customer continues to be liable to pay all charges which are due for Service during any period in which the Customer does not comply with this Contract.
9.5 If THE COMPANY waives a breach of contract by the Customer, that waiver is limited to the particular breach. THE COMPANY delay in acting upon a breach is not to be regarded in itself as a waiver.
10. TERMINATION OF SERVICE BY NOTICE
10.1 At any time after Service has been provided this Contract or the provision of any service or facility under it may be terminated by either THE COMPANY or the Customer on giving at least 90 day's notice to the other.
10.2 If THE COMPANY gives notice the Customer shall pay subscription charges up to expiry of the notice. If the Customer gives notice, the Customer shall pay subscription charges until 90 days after the date THE COMPANY receives the notice or until expiry of the notice, whichever is later. The Customer shall pay subscription charges for the remainder of any minimum period of Service at the rate in force at termination unless the Customer has given notice because of an increase in the rate of subscription charge. The Customer's notice does not avoid any other liability for Service already provided. Whoever gives the notice, THE COMPANY will repay or credit the appropriate proportion of any subscription paid in advance (unless it is for part of the minimum period of Service) for a period ending after the Customer's liability for subscription charges ceases.
11. ARBITRATION
Any dispute arising under this Contract which does not involve a complicated issue of law, an issue of quantification or of mitigation of loss or a sum exceeding £5,000 may be referred to arbitration.
12. THE COMPANY LIABILITY
12.1 The Customer acknowledges that THE COMPANY reserves the right to edit material that may be offensive, obscene or defamatory. However, although THE COMPANY will make its best endeavours with the resources available to edit such material, it remains the responsibility of the Customer to comply with Internet guidelines and THE COMPANY will not be held liable for any actions arising from the production, receiving or transmitting of said material via the THE COMPANY System and Service by the Customer.
12.2 THE COMPANY undertakes no liability whatever whether in contract, tort (including liability for negligence) or otherwise for the acts or omissions of other providers of telecommunication and Internet services or for faults in or failures of their apparatus.
12.3 THE COMPANY is not liable in contract, tort or otherwise (including liability for negligence) for loss whether direct or indirect of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatever.
12.4 THE COMPANY liability in contract, tort or otherwise (including liability for negligence) under or in connection with this Contract is limited to the fixed monthly charges of the customer for three (3) months.
12.5 Each provision of paragraph 12 operates separately in itself and survives independently of the others.
13. INDEMNITY
The Customer shall indemnify THE COMPANY against any claims or legal proceedings arising from the Customer's use of Service which are brought or threatened against THE COMPANY by another person.
14. VARIATION OF TERMS AND CONDITIONS
THE COMPANY can from time to time change the terms and conditions of this Contract including the charges payable under it by a document referring expressly to this paragraph. THE COMPANY will publish details of any change (including the operative date) in each of THE COMPANY major offices as soon as possible, and in any event not less than 2 weeks before any change is to take effect, except that if the change is made to a provision of this Contract limiting or excluding THE COMPANY liability for breaches of duty to the Customer (in contract or tort) THE COMPANY will give the Customer not less than 2 weeks notice of the change.
15. MATTERS BEYOND THE COMPANY REASONABLE CONTROL
THE COMPANY is not liable for any breach of this Contract which is caused by a matter beyond its reasonable control including Acts of God, fire, lightening, explosion, war, disorder, flood, industrial disputes (whether or not involving its employees), extremely severe weather or acts of local or central Government or other competent authorities.
16. SOFTWARE
Intellectual property rights in all software supplied to the Customer remain the property of THE COMPANY or its licenser. 'The Customer agrees to comply with the terms of any agreement reasonably required by the owner of intellectual property rights in all software supplied to the Customer for the protection of that software.
17. DOMAIN NAMES
17.1 The customer shall be responsible for renewal of all domain names used on websites hosted by THE COMPANY.
17.2 Where THE COMPANY registers a domain name for the customer this is undertaken on the customer’s behalf with THE COMPANY acting as the customer’s agent. The customer will therefore be bound by the terms and conditions of the naming authority or domain name registrar from which the domain was purchased.
17.3 THE COMPANY cannot guarantee to register a chosen domain name for the customer and accepts no responsibility for failure to register any chosen domain name.
17.4 THE COMPANY accepts no liability for infringement of a Third Party's Intellectual Property Rights by the use of or registration of any given domain name by the customer.
WEB DEVELOPMENT
1.The Service:
THE COMPANY Limited will design and construct web page(s), static or dynamic, for you (the "Client") according to the Client's specifications as set forth in a Client Order, as agreed upon at a pre commencement meeting, for which a quote was issued, detailing the work to be done by THE COMPANY, the "Client Order", subject to these Terms and Conditions (this "Agreement"). Upon fulfilment of the Client Order, THE COMPANY will implement the work to a named host. Alternatively, the Client may take the option to upload Final page (s) when finished to a host of his choice or provide THE COMPANY with the host's access code. The Client may add or subtract items or pages at any time during the construction process until the product is delivered and subject to additional charges as applicable. The final payment will reflect those changes.
2. Right to Refuse Orders.
THE COMPANY will not design or construct web page(s) containing "adult content," promoting violence of any kind, including any intolerance for race, lifestyle, or faith, or that constitutes harassment, defamation, libel, slander, or promotes the commission of a crime or any unlawful conduct. THE COMPANY shall have the right to refuse any Client Order or do business with any person or entity without liability and without explanation.
3 . Delivery, Review and Additional Work.
THE COMPANY will install and publicly post the Client's pages by the date agreed upon by both Client and THE COMPANY, unless a delay is specifically requested by the Client. Unless otherwise specified by Client, the method of delivery for completed works, under this Agreement, shall be made through its upload to the hosting web server. THE COMPANY will provide the Client with an opportunity to review the appearance and content of Web site materials in a Draft Version prior to finalisation of the pages (the "Draft Pages"). The Draft Pages will be deemed to be accepted and approved unless the Client otherwise notifies THE COMPANY within (5) business days of the date the Draft Pages are made available to the Client. Upon notice of requested changes, THE COMPANY will make changes to the Draft Pages to the extent such requested changes are within the scope of the Client Order. Following any changes to the Draft Pages as requested by Client, THE COMPANY will provide Client the completed pages (the "Final Pages). THE COMPANY will not be obligated to make any changes to the Final Pages unless the Client demonstrates the Final Pages do not comply with the Client Order. When requested by Client, the parties shall in good faith negotiate Additional Client Orders, each of which upon signing, shall be deemed a part of this Agreement.
4 . Payment.
Charges for services to be provided by THE COMPANY are defined in the Client Order, which Client shall receive, execute and return to THE COMPANY. All Client Order's require an advance payment of a minimum of one third (1/3) of the project proposal total when returning this signed agreement and before the Draft Pages are prepared. Thereafter, one third (1/3) shall be paid upon release of a Draft Pages, and the remaining one third (1/3) of the Client Order total will be due upon release of the Final Pages. THE COMPANY reserves the right, subject to (30) days advance notice to the Client, to change the rates charged for any ongoing maintenance services provided to Client. THE COMPANY must receive payment prior to the final release of the Client Order.
5 . Changes in Pricing.
THE COMPANY reserves the right to change prices without notice. However, price changes, other than those relating to on-going maintenance service, shall not be changed with respect to previously executed Client Orders.
6. Termination.
(a) During the construction process and not after the Final Pages are released (with the exception of the Client's failure to make payment), the Client Order will terminate automatically upon either party providing written notice to the other indicating that the notifying party wishes to terminate the Client Order.
(b) If THE COMPANY initiates termination, with the exception of the Client's failure to make any payments owed thereunder, THE COMPANY agrees to reimburse the Client in full by cheque within thirty (30) days of termination and THE COMPANY shall have no further obligations to Client nor any obligation to provide Client work that had been commenced or completed prior to termination.
(c) Termination of the Client Order by Client must be sent in writing to THE COMPANY. If the Client terminates the Client Order within forty eight (48) hours after signing of contract, THE COMPANY shall refund twenty five (25%) percent of the total down payment received. If the Client terminates the Client Order at any time following commencement of work thereunder but prior to release of the Final Pages, THE COMPANY has a right to charge Client for design work performed prior to the date of first notice of cancellation based (at THE COMPANY's discretion) upon either the hours worked up to the date of termination or for all accepted milestones and a prorated amount for partially completed deliverables. The Client may not terminate this Agreement after release of the Final Pages.
7 . Non-Payment or Late Payment.
THE COMPANY will not commence work with respect to any Client Order or, if work has commenced, will not continue any work on the Client Order, if it is unable to receive payment from the Client within (7) business days after THE COMPANY notifies of non-payment. If the Client Order has been completed, THE COMPANY will not release the Final Pages or if the Final Pages have already been released, will remove the Client's page(s) off of the server until payment is received. THE COMPANY will reinstate all pages after payment in full has been received. If THE COMPANY found a server for Client, and the Client has not paid THE COMPANY before termination and before THE COMPANY found the server, the Client's server account will also be deleted. If THE COMPANY releases the Final Pages but Client fails to make all payments due under the Client Order, THE COMPANY also has the right to keep all payments the Client has made at any time and to pursue all collection efforts and legal remedies for unpaid work under the Client Order.
THE COMPANY will impose a interest charge of 1.5% per month and a £10.00 per month late fee for each month that Client has not paid any outstanding balances owed under the Client Order. Clients with accounts in default agree to pay THE COMPANY reasonable expenses, including legal fees and costs for collection by third-party agencies, incurred by THE COMPANY.
8. Copyright.
Client retains the copyright to data, files and graphic logos provided by the Client, and grants THE COMPANY the rights to publish and use such material in fulfilment of the Client Order. Artwork and graphic logos designed by THE COMPANY for use in the Client's Web presentation will remain the property of THE COMPANY; and at its discretion and under separate agreement, THE COMPANY will grant the Customer rights to use such material in formats other than Web presentations. Client must obtain permission and rights to use any information or files that are copyrighted by a third party and for THE COMPANY to include such materials in fulfilment of the Client Order. Client agrees to indemnify and hold harmless THE COMPANY from any and all claims resulting from the Client's negligence, intentional failure or inability to obtain proper copyright permissions. Client represents and warrants to THE COMPANY that all such permissions have been obtained, and evidence of all necessary permissions may be requested from Client.
9. Standard Media Delivery.
Unless otherwise specified in the Client Order, this Agreement assumes that all text will be provided by the Customer in electronic format (ASCII text files delivered on CD, via e-mail or FTP) and that all photographs and other graphics will be provided physically in high quality print suitable for scanning or electronically in .gif, .jpeg or .tiff format. Additional expenses may be incurred and will be invoiced accordingly for corrective work, conversion of media or outside facility charges. Although a reasonable attempt shall be made by THE COMPANY to return to the Client any images or printed material provided for use in creation of the Client's Web site, such return cannot be guaranteed.
10. Access Issues.
(a) If Client's Web site is to be installed on a third-party server, THE COMPANY must be granted the necessary access to the Client's storage directories, and those directories must be accessible via FTP. Depending on the specific nature of the project, other resources might also need to be configured on the server.
(b) Client agrees that THE COMPANY shall have the right to remove from Client's Web Site any web pages THE COMPANY has designed which upon or following posting fail to adhere to the terms of these Web Design Terms and Conditions, including violation of any licensing agreements or failure to pay fees duly assessed.
11. Indemnity.
Client agrees to indemnify and hold harmless THE COMPANY, its employees, directors, shareholders, members, officers, agents, subsidiaries and affiliates from any and all claims, losses, damages, liabilities and expenses (including legal fees) related to or arising out of the services provided by THE COMPANY to Client, including without limitation claims made by third parties (including customers of Client) related to any false advertising claims, liability claims for products or services sold by Client, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided hereunder, or for any content submitted by Client, but excluding those related to the gross negligence or intentional misconduct of THE COMPANY.
12. Disclaimer.
(a) All services provided by THE COMPANY (including web design) are provided on an "as is" basis, without warranties of any kind, either express or implied, including but not limited to warranties as to accuracy of information, warranties of title or implied warranties of merchantability or fitness for a particular purpose or otherwise, other than those warranties which are implied by and incapable of exclusion, restriction, or modification under the laws applicable to these services.
(b) Neither THE COMPANY nor anyone else involved in creating, producing, or delivering any of THE COMPANY services shall be liable for any direct, indirect, incidental, special or consequential damages arising in connection with fulfillment or non-fulfillment of a client order or with respect to any other services offered by THE COMPANY or out of any breach of any warranty, and you hereby waive any claims with respect thereto, whether based on contractual, tort or other grounds, even if THE COMPANY or any such licensor or service provider has been advised of the possibility of damages. The entire liability of THE COMPANY and its licensors and service providers and your exclusive remedy in connection with the web design service or any other THE COMPANY service or any breach of this agreement are limited to the amount actually paid by you to THE COMPANY during the prior twelve month period. You hereby release THE COMPANY and each of its licensors and service providers from any and all obligations, liabilities and claims in excess of this limitation.
(c) THE COMPANY does not represent that its services will be uninterrupted or error free and neither THE COMPANY nor any of its licensors or service providers shall be held responsible in any way or by any means, either directly or indirectly, for any communications difficulties which could lead to the interruption and or delivery of any of the services offered by THE COMPANY; nor does THE COMPANY or any of its licensors, employees or agents make any warranty as to the results to be obtained from use of any of the services (including, but not limited to, web design) offered by THE COMPANY.
(d) THE COMPANY shall not be responsible for any alterations, modifications, deletions and the like to the client's pages following installation. In no event shall THE COMPANY (or its owner, directors, officers, agents, affiliates and employees) be liable for any word or image produced for the client, or associated with the client or the client's business.
(e) You specifically agree that THE COMPANY shall not be responsible for unauthorised access to or alteration of your transmissions or data, any material or data sent or received or not sent or received, or any transactions entered into through any THE COMPANY service. You specifically agree that THE COMPANY is not responsible or liable for any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another's rights, including intellectual property rights. You specifically agree that THE COMPANY is not responsible for any content sent by any third party.
13. Confidentiality.
In connection with the Client Order, each party may receive or have access to commercially or personally valuable technical and non-technical confidential or proprietary information ("Confidential Information") of the other party. Confidential Information includes all information, whether oral or written, relating to the business of a party that is not generally known or available to others, including, without limitation, source code and documentation for software, trade secrets, customer lists, pricing strategies, marketing and business plans, information concerning a party's vendors, and a party's contemplated plans, strategies and prospects. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law.
14. Notice.
Any notice, approval, request, authorisation, direction or other communication in connection with this Agreement and the Client ("Notice") must be made in writing to THE COMPANY. All Notice to Client by THE COMPANY shall be deemed to have been delivered and given for all purposes if sent to the email address provided by Client on the Client Order, unless a different email address is provided in writing to THE COMPANY.
15. Force Majeure.
Neither party shall be deemed in default of this Agreement or the Client Order to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within ten (10) business days of such event or occurrence.
16. Miscellaneous.
(a) In the event that any provision of this Agreement or the Client conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. (b) The failure of THE COMPANY to insist upon or enforce strict performance by Client, of any provision of this Agreement or the Client Order, or to exercise any right under this Agreement or the Client Order, shall not be construed as a waiver or relinquishment of its right to enforce any such provision or right in any other instance. (c) You may not assign or transfer this Agreement or the Client Order or any rights hereunder, and any attempt to the contrary is void. (d) This Agreement may be modified by THE COMPANY at any time by publication through its website (www.drmediagroup.com/terms.htm) or by sending each Client an email to the address listed on the Client Order, except that such changes shall not effect Client Orders that have already been accepted. (e) This Agreement and the Client Order may be executed in counterparts, each of which shall be deemed an original and both of which when taken together shall be deemed to constitute the same instrument.
17. Entire Agreement.
This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties as to the subject matter of this Agreement.
