In these Terms and Conditions the following words and phrases shall have the following meanings:
"Charges" means the charges payable, as set out overleaf
"Company" means Through The Line Limited
"Contract Works" means the works to be undertaken as set out overleaf
"Customer" means the person firm or company who accepts the quotation of the Company for the Contract Works or whose order for contract works is accepted by the Company
"Internet" means the world wide collection of packet-switched computer networks.
"Web Site" means those web pages containing information on the Customer's products and which may also provide access to other Internet Web Sites and may also relate to other services provided, such as POP/SMTP/IMAP email, file storage and other related services covered by the contract
"Web Space" means adequate storage for the Web Site on a system with a permanent connection to the Internet
"Domain Name" means the address which uniquely identifies the Customer's Web Site.
2.1 The Customer shall provide such information about its products and services as the Company may require to carry out the Contract Works.
2.2 The Customer shall pay the Charges in the amounts set out and on the dates set out in accordance with this contract.
2.3 The Customer hereby grants to the Company a license to use any of the Customer's intellectual property rights for the purpose of carrying out the Contract Works and creating the Web Site.
2.4 The Company shall use all reasonable endeavours to carry out the Contract Works by the date quoted but shall not be liable for any delay.
2.5 The Customer shall be entitled at any time up to 7 days prior to the installation of the Contract Works on the Internet or the hand-over in digital form of the Web Site to request in writing to the Company to modify the design of the Web Site and shall provide the Company with full particulars of such requested modifications.
2.6 Irrespective of whether the Customer elects to proceed with the modification or not, the Company shall be entitled to levy Charges in respect of the request as if the same form part of the Contract Works and where consideration of the request has caused delay in the implementation of the Contract Works the Company shall be entitled to make such extension to the timetable as it shall reasonably judge necessary.
2.7 For the avoidance of doubt, time shall not be of the essence and the Company shall incur no liability to the Customer in respect of any failure to complete the Contract Works by the date or time specified.
2.8 The Company shall construct the Web Site according to its own design standards and protocols as specified in a separate document.
2.9 If the Customer does not already have Web Space, Internet access or Domain Name the Company shall provide the same and fees and expenses relating thereto shall be payable by the Customer in addition to the Charges.
2.10 The Customer shall be wholly responsible for the approval of the content of the Web Site before it is loaded onto the Internet and shall be wholly responsible for checking of the Web Site once it is loaded onto the Internet.
2.11 Where content management is employed, the Customer remains wholly and solely responsible for content and web site availability.
2.12 It is
the Customers responsibility to ensure backups of the web site files are
made at appropriate intervals to ensure integrity of the site in the event
of a complete loss or failure of the said site.
3.1 The Company will levy invoices monthly in respect of the Charges set out in the invoice. In respect of additional charges these shall be invoiced from time to time. All invoices shall be payable within 30 days of issue unless otherwise stated overleaf.
3.2 Value Added Tax at the appropriate rate shall be payable in addition to the Charges.
3.3 The Company reserves the right to charge the Customer interest in respect of late payment of any sums due under this contract as well as before Judgement at the rate of 5% above the Base Rate for the time being of Lloyds Bank Plc from the due date therefore until payment.
3.4 In the event of any payment not being made on the due date the Company reserves the right to suspend the Contract Works until such payment is received.
3.5 Where the Company incurs fees or expenses on behalf of the Customer for amongst other things, Web Space, Domain Names or Internet Access, these shall be payable immediately upon demand, and the Company reserves the right to suspend any further Contract Works until payment is received.
3.6 Where the
Company is charging a monthly fee for Contract Works, and the fee is not
received within 14 days of the due date, the Company reserves the
right to withdraw all services without further notification, and
subsequently, remove any and all features, images, and wording that may
have been previously loaded by the Company, or the Customer. This
information may or may not be re-loaded if payment is then made up.
4. Risk and Property
4.1 Risk of damage to the Contract Works shall pass to the Customer at the time of installation on the Internet, or the handing over in digital form of the Contract Works, as the case may be.
4.2 Notwithstanding delivery and the passing of risk in the Contract Works or any other provision in this agreement the property in the Contract Works shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the Charges for the Contract Works and all other services agreed to be supplied by the Company to the Customer for which payment is then due.
4.3 Until such time as the property in the Contract Works passes to the Customer the Customer shall hold the Contract Works as the Company's fiduciary agent and bailee and shall keep the Contract Works properly protected, insured and identified as the Company's property.
4.4 Until such time as the property in the Contract Works passes to the Customer (and provided the Contract Works is still in existence) the Company shall be entitled at any time to require the Customer to deliver up the Web Site to the Company and if the Customer fails to do so forthwith to remove the Contract Works from the Internet.
4.5 The Customer shall not be entitled to pledge or in any way change by way of security for any indebtedness the Contract Works which remains the property of the Company but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
5. Computer Facilities
5.1 The Customer shall make available to the Company free of charge such use of its computer and office facilities as shall be required to enable the Company to perform its obligations.
6. Copyright and all other intellectual rights
7.1 Subject to the limitations upon its liability set out in clause 8 below the company warrants it will carry out the Contract Works with reasonable care and skill but does not guarantee the Web Site shall be accurate.
7.2 Without prejudice to the forgoing the Company does not warrant that the operation of the web site or associated services (i.e. email etc) will be uninterrupted or error free.
7.3 Subject to the forgoing all conditions warranties terms and undertakings expressed or implied statutory or otherwise in respect of the Contract Works are hereby excluded to the fullest extent permitted by law.
7.4 The Customer warrants to the Company that:
7.4.1 The Web Site shall not contain any material that is offensive, sexually explicit, pornographic, defamatory, or which infringes any intellectual property rights of any third party;
7.4.2 the Web Site shall not be used for any purpose which is in any way contrary to English civil or criminal law.
8. Limitation of Liability
8.1 The following provisions set out the Company's entire liability (including any liability for the acts and omissions of its employees) to the Customer in respect of:
8.1.1 any breach of its contractual obligations arising under this contract; and
8.1.2 any representation statement or tortious act or omission including negligence arising under or in connection with this contract
AND THE CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8.
8.2 Any act or omission on the part of the Company falling within clause 8.1 above shall for the purpose of this clause 8 be know as an "Event of Default".
8.3 The Company's liability to the Customer for death or injury resulting from its own or that of its employees negligence will not be limited.
8.4 The Company shall be under no liability for an Event of Default (or any other warranty, condition or guarantee) if the total price of the Charges has not been paid by the due date for payment.
8.5 Subject to the provisions of clause 8.3 above the Company's entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the aggregate of the Charges paid by the Customer hereunder within the last 12 month period.
8.6 Subject to clause 8.3 above the Company shall not be liable to the Customer in respect of loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
8.7 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to any one claim under this agreement.
8.8 The Customer hereby agrees to afford the Company not less than 28 days in which to remedy and Event of Default hereunder.
8.9 Nothing in this clause 8 shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.
9. Interface with other Web Sites
In the event that the Customer requires its Web Site to be linked to other Web Sites then for avoidance of doubt the terms of this contract shall apply.
10. Maintenance of the Web Site
10.1 The Company may suspend the Web Site without liability for such time and from time to time as is necessary to carry out maintenance or for any other reasonable purpose.
10.2 The Customer shall make available to the Company all login details and passwords as are necessary for the Company to obtain access to the Web Site on the Internet during the period of maintenance.
10.3 The Company shall maintain the Web Site for 12 months from the date of installation on the Internet at the rates set out. The Company reserves the right to quote for further annual maintenance of the Web Site.
11.1 The Company does not give any guarantees or warranties whether express or implied that the Web Site or associated services will be accessible at all times.
12.1 The agreement may be terminated:
12.1.1 forthwith by the Company if the Customer fails to pay any sum due hereunder within 14 days of the due date therefor;
12.1.2 forthwith by either party if the other commits any material breach of any term of this contract (other than one falling within 12.1.1 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within 28 days of a written request to remedy the same;
12.1.3 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering as result or other steps are taken for the winding up of the other party or for the making of an administrative order (otherwise than for the purpose of an amalgamation or reconstruction).
12.2 Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party maybe entitled to hereunder or at law and shall not affect any accrued rights or liabilities or either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
13. Force majeur
13.1 Neither party hereto shall be liable to the other for any delay in performing its obligations hereunder resulting from causes beyond its reasonable control and the party so delayed shall be entitled to a reasonable extension in time for performing such obligations.
14.1 The waiver by either party of a breach or default of any of the provisions in this contract by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that is has or may have hereunder operate as a waiver of any breach or default by the other party.
15.1 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within 12 hours) to the address or to the facsimile number of the other party set out in this agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by telex or facsimile transmission) upon the expiration of 12 hours after dispatch.
16. Invalidity and severability
16.1 If any provision of this agreement shall be found to be illegal, void or invalid that shall not affect the legality and validity of the other provisions.
17. Entire agreement
17.1 This agreement sets forth the entire agreement between the parties with respect to the matters covered by it and supersedes and replaces all prior communications, representations, warranties, stipulations, undertakings and agreements, whether oral or written, between the parties.
18.1 Headings shall not affect the constitution of this agreement.
This agreement shall be governed by and construed in accordance with English law.
20. Special Notices
20.1 The hosting of web sites under this agreement are contracted to a specialist third party. At time of writing this was IDAQ and Kualo. The Company reserves the right to change this hosting company / these hosting companies at any time, without prior notification to the Customer. In the event of such a transfer, the Customer will be notified within 14 days.
20.2 The Company is acting as an agent (or reseller) for the hosting company/ies named above. The Customer may approach the hosting company directly for technical support, or they may utilise the services of Through the Line who will do everything in their power to assist with any technical issues, however, due to circumstances beyond their control, the Company may be unable to action any remedy.
20.3 E-Mail forwarding, POP boxes, IMAP and SMTP mail services are also part of this contracted agreement, and the same technical support caveats apply as in 20.2 above.