Connexxions Media & Marketing Ltd Terms and Conditions
By using the services provided by Connexxions Media & Marketing Ltd, you agree to the following terms and conditions, and any policies, guidelines or amendments. We may update the Terms in the future, and you will be able to find the most current version of this agreement at: www.odb.me/terms-and-conditions.
As used herein and throughout this Agreement.
1.0 The Company means Connexxions Media & Marketing Ltd or its associated sub-brands including: odb.me, Arthur odB Photography, Ruba Jurdi Photography, Ruba Jurdi Associates, Brand New Direction, Joyeux.
1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), together with any other Supplements designated below, schedules or attachments hereto.
1.2 Client Content means all materials, information, photography, writings and other creative content provided by The Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.K. Copyright Law.
1.4 Deliverables means the services and work product specified in the Proposal to be delivered by The Company to The Client, in the form and media specified in the Proposal.
1.5 Designer Tools means all design tools developed and/or utilised by The Company Design in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 The Client means the company or individual who has agreed to take out work with The Company.
1.7 Final Art means all creative content developed or created by The Company, or commissioned by The Company, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, video, typographic treatments and text, modifications to The Client Content, and The Company’s selection, arrangement and coordination of such elements together with The Client Content and/or Third Party Materials.
1.8 Final Deliverables means the final versions of Deliverables provided by The Company and accepted by The Client.
1.9 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by The Company and which may or may not be shown and or delivered to The Client for consideration but do not form part of the Final Art.
1.10 Project means the scope and purpose of the The Client’s identified usage of the work product as described in the Proposal.
1.11 Services means all services and the work product to be provided to The Client by The Company as described and otherwise further defined in the Proposal.
1.12 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.13 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of The Client.
The terms of the Proposal or shall be effective for 14 days after presentation to The Client. In the event this Agreement is not executed by The Client within the time identified, the Proposal, together with any quotations, related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND CHARGES.
3.1 Fees. In consideration of the Services to be performed by The Company, The Client shall pay to The Company fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Additional Costs. The Project pricing includes The Company’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, and online access or hosting fees, will be billed to The Client unless specifically otherwise provided for in the Proposal.
3.3 Invoices. All invoices are payable within 14 days of receipt. For new clients or those overseas The Company reserves the right to invoice with a payable period of 7 days. In special circumstances a deposit will be required. We understand and will exercise our statutory right to claim interest and compensation for debt recovery costs under the late payment legislation if we are not paid according to agreed credit terms. Interest is charged daily at 2% over the Bank of England base rate along with EU late payment charges. Payments will be credited first to late payment charges and next to the unpaid balance. The Client shall be responsible for all collection or legal fees necessitated by late or default in payment. The Company reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges or the costs of Changes.
3.4 Project End. All deliverables shall be deemed complete once The Client has signed off the work or indicated satisfaction either verbally, in writing, via e-mail, post or other methods. If The Client fails to communicate with The Company for a period of more than 20 days without explanation, the project shall be deemed satisfactory and complete.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, The Client shall pay additional charges for changes requested by The Client which are outside the scope of the Services on a time and materials basis, at The Company standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. The Company may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If The Client requests or instructs Changes that amount to a revision in or near excess of twenty five percent (25%) of the time required to produce the Deliverables, and or the value or scope of the Services, The Company shall be entitled to submit a new and separate Proposal to The Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by The Company.
4.3 Timing. The Company will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) Approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the The Client’s concerns, objections or corrections to The Company. The Company shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that The Company’s ability to meet any and all schedules is entirely dependent upon The Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in The Client’s performance or Changes in the Services or Deliverables requested by The Client may delay delivery of the Deliverables. Any such delay caused by The Client may result in credit-based accounts being invoiced before project completion.
4.4 Testing and Acceptance. The Company will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to The Client. The Client, within five (5) business days of receipt of each Deliverable, shall notify The Company, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments The Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and The Company will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from The Client, the Deliverable shall be deemed accepted.
5. THE CLIENT RESPONSIBILITIES.
The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) Coordination of any decision-making with parties other than The Company;
(b) Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal;
(c) Final proofreading. In the event that The Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product; The Client shall incur the cost of correcting such errors.
The Company retains the right to reproduce, publish and display the Deliverables in The Company’s portfolios and Web sites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its Web site and in other promotional materials, and, if not expressly objected to, include a link to the other party’s Web site.
7. CONFIDENTIAL INFORMATION.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (Confidential Information). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES.
8.1 Independent Contractor. The Company is an independent contractor, not an employee of The Client or any company affiliated with The Client. The Company shall provide the Services under the general direction of The Client, but The Company shall determine, in The Company’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. The Company and the work product or Deliverables prepared by The Company shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to The Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 The Company Agents. The Company shall be permitted to engage and/or use third party The Company or other service providers as independent contractors in connection with the Services (Design Agents). Notwithstanding, The Company shall remain fully responsible for such Design Agents compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, The Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any The Company, employee or Design Agent of The Company, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, The Client agrees that The Company shall be entitled to an agency commission to be the greater of, either (a) 25% of said person’s starting salary with The Client, or (b) 25% of fees paid to said person if engaged by The Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for The Client. The Company, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by The Company, and The Company shall be entitled to offer and provide design services to others, solicit other The Clients and otherwise advertise the services offered by The Company.
9. WARRANTIES AND REPRESENTATIONS.
9.1 The Client represents, warrants and covenants The Company that (a) The Client owns all rights, titles, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of The Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) The Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) The Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 To the best of The Company’s knowledge, the Final Art provided by The Company and The Company’s subcontractors does not infringe the rights of any party, and in connection with the Project will not violate the rights of any third parties. In the event The Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of The Company shall be void. The Client agrees to fully indemnify and hold The Company free from harm in any and all claims resulting from The Client in not having obtained all the required copyright, and/or any other necessary permission. Any artwork, images, or text supplied or designed by The Company on behalf of the customer, will remain the property of The Company and/or our suppliers unless otherwise explicitly stated.
10.1 By The Client. The Client agrees to indemnify, save and hold harmless The Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of The Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances The Company shall promptly notify The Client in writing of any claim or suit; (a) The Client has sole control of the defence and all related settlement negotiations; and (b) The Company provides The Client with commercially reasonable assistance, information and authority necessary to perform The Client’s obligations under this section. The Client will reimburse the reasonable out-of-pocket expenses incurred by The Company in providing such assistance.
10.2 By The Company. Subject to the terms, conditions, express representations and warranties provided in this Agreement, The Company agrees to indemnify, save and hold harmless The Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with The Company’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of The Client provided that (a) The Client promptly notifies The Company in writing of the claim; (b) The Company shall have sole control of the defence and all related settlement negotiations; and (c) The Client shall provide The Company with the assistance, information and authority necessary to perform The Company obligations under this section. Notwithstanding the foregoing, The Company shall have no obligation to defend or otherwise indemnify The Client for any claim or adverse finding of fact arising out of or due to The Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by The Company.
10.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF THE COMPANY ARE SOLD AS IS. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (THE COMPANY’S PARTIES), TO THE CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND THE CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF THE COMPANY. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY THE COMPANY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
11.3 In the event of termination, The Company shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by The Company or The Company’s agents as of the date of termination, whichever is greater; and The Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by The Client and upon full payment of compensation as provided herein, The Company grants to The Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by The Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
11.6 Projects that have passed 30 days without contact or further instruction from The Client are deemed to be final.
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that The Company’s invoices may include, and The Client shall pay, expenses or costs that The Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 Force Majeure. The Company shall not be deemed in breach of this Agreement if The Company is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of The Company or any local, state, federal, national or international law, governmental order or regulation or any other event beyond The Company’s control (collectively, Force Majeure Event). Upon occurrence of any Force Majeure Event, The Company shall give notice to The Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United Kingdom without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its solicitor’s fees and costs. In all other circumstances, the parties specifically consent to the local, and national courts located in the United Kingdom. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. The Client acknowledges that The Company will have no adequate remedy at law in the event The Client uses the deliverables in any way not permitted hereunder, and hereby agrees that The Company shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
13. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART.
13.1 The Client Content. The Client Content, including all pre-existing Trademarks, shall remain the sole property of The Client or its respective suppliers, and The Client or its suppliers shall be the sole owner of all rights in connection therewith. The Client hereby grants to The Company a non-exclusive, non-transferable license to use, reproduce, modify, display and publish The Client Content solely in connection with The Company’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
13.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. The Company shall inform The Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances The Company shall inform The Client of any need to license, at The Client’s expense, and unless otherwise provided for by The Client, The Company shall obtain the license(s) necessary to permit The Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event The Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of third party art, The Client hereby indemnifies, saves and holds harmless The Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of The Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
13.3 Preliminary Works. The Company retains all rights in and to all Preliminary Works. The Client shall return all Preliminary Works to The Company within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of The Company.
13.4 Original Artwork. The Company retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. The Client shall return all original artwork to The Company within thirty (30) days of completion of the Services.
13.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, The Company assigns to The Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by The Company for use by The Client as a Trademark. The Company shall cooperate with The Client and shall execute any additional documents reasonably requested by The Client to evidence such assignment. The Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. The Client hereby indemnifies, saves and holds harmless The Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of The Client’s use and/or failure to obtain rights to use or use of the Trademark.
14. RIGHTS TO FINAL ART.
14.1 Upon completion of the Services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, The Company grants to The Client the rights in the Final Art as set forth in the proposal any additional uses not identified herein or reselling of the artwork is not permitted without prior written consent.
15. SUPPORT SERVICES
15.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. Additional time shall be billed at The Company’s regular hourly rate, then in effect upon the date of the request for additional support.
15.2 Service Level. In the case of any hosted web site The Client bears all responsibility for back up of the web site unless otherwise agreed in writing. The Company will ensure the web site is available for viewing to industry standards, and does not guarantee continuous up-time.
15.3 Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, The Company will provide Support Services for the following three months (the “Maintenance Period”) for an agreed monthly fee. The parties may extend the Maintenance Period upon mutual written agreement.
15.4 During the Maintenance Period, the Client may request that the Company develop enhancements to the Deliverables, and the Company shall exercise commercially reasonable efforts to prioritize the Company’s resources to create such enhancements. The parties understand that pre-existing obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at the Company then in effect price for such services.
ADDITIONAL WARRANTIES AND REPRESENTATIONS
I 3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, The Company represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by The Company, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and The Company’s sole liability for a breach of this Section is the obligation of The Company to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by The Company, The Company’s sole obligation shall be to substitute alternative Third Party Materials.
I 3.2 The Company Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, The Company represents and warrants that, to the best of The Company’s knowledge, The Company Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
Suppliment: Hosting and Maintenance Conditions
S 1. If client has opted for software hosting and maintenance services, as specified in the deliverables, the following shall apply;
(a) Hosting Services. The Company shall provide storage for the Software, and content of Customer’s Web Site and make it available for end-users to access;
(b) Service Level Warranty. The Company guarantees that the network will be available 99.99% of the time in a given month. This service level warranty shall not apply to performance issues: (1) to the extent caused by factors outside of The Company’s reasonable control; (2) that resulted from any actions or inactions of the Client or any third parties not affiliated with The Company; (3) that resulted from The Client’s equipment and/or third party equipment; (4) that resulted from software related issues; or (5) that are scheduled by The Company for purposes of maintaining or updating the Web Site or the Software.
(c) We take the privacy of online communications and websites very seriously. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, we urge you to assume that all of online communications are insecure. We cannot take any responsibility for the security of information transmitted through our network and services.
S 2. Hosting/Maintenance Fees
(a) Fees. In consideration of the Hosting services, The Client will pay to The Company all fees due according to the prices and terms listed on the invoice. All sales are final and The Company offers no partial or full refunds of any kind on any purchase. The Company offers no partial or full refunds whatsoever on the Setup Fee, the purchase or set-up of an SSL Certificate or on any other product or service offered through The Company.
Server Management. Hosted websites on Connexxions servers are semi-managed. This means that we will be responsible for the fulfilment of the terms in line with this agreement. Beyond this, customers who have not purchased managed services can purchase support tickets to address maintenance and extraordinary technical issues. Each ticket is £30.00 for 30 minutes support during UK Office hours excluding public bank holidays. Emergency technical support tickets outside of these hours cost £60 per 30 minutes.
(b) Change in Fees. The Company may change its fee schedules on sixty (60) days notice by postal mail, electronic mail, or by posting the same on The Company’s own Web Site. Upon such notice, Customer shall have thirty (30) calendar days prior to the effective date of the fee schedule to notify The Company by email should it not agree to such rate increase and that Customer wishes to terminate this Agreement.
(c) Payment. The Company will invoice Customer once a month for hosting/maintenance, and all payments are due within fourteen (14) days after The Company submits its invoice. If a payment is returned or rejected by The Company’s bank, or incurs additional costs for The Company (e.g., bank fees) for any reason, then Customer shall pay a service fee of £35 and reimburse all such fees and costs incurred by The Company, and Customer shall be immediately deemed to be in default of this Agreement. Accounts not paid in full by the fourteenth day after The Company submits its invoice may have their service interrupted or terminated, but any interruption does not relieve Customer from the obligation to pay all fees due to The Company, including the monthly account charge. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, until fully paid. If Customer defaults, Customer agrees to pay The Company its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.
(d) All charges are shown in GBP/USD. We accept Credit card through Paypal, or payments direct to our bank.
All payments are due on the Account Statement Date, which is defined by your chosen billing cycle and is usually the anniversary of the date to account was activated.
(e) Customers not paying by credit card agree to make payment of their balance due within ten (10) days of the Account Statement Date. Accounts that are seven (7) days past due will be automatically suspended.
(f) All past due and unpaid balances may be subject to collection. In the event of collection, you will be liable for costs of collection including attorney’s fees, court costs, and collection agency fees, invoices will be passed to a debt collection agency once they are 30 days overdue.
(g) If an account is not paid by its due date. A late fee of 5% is automatically added to the invoice.
(h) In order to insure uninterrupted service to your website, all services will automatically renew at the end of their Billing Cycle. Renewal charges are based on the prevailing rate on the date of renewal according to the service selected. Services are renewed for the same billing cycle as originally purchased. If you wish to cancel a service before it’s renewal, please refer to the Cancellations section below.
(i) It is the clients responsibility to cancel any PayPal subscriptions if you no longer wish to make subscription payments to us. Over payments or duplicate payments will not be refunded however they will automatically add as credit to your account to use on all future invoices so the payment is not lost.
(j) STATEMENTS: We do not post paper invoices or statements. Invoices are automatically emailed to your account email address, and can be viewed along with any statements using our online portal system.
(k) HOSTING PLAN CHANGES: Customers electing to change to a lower priced hosting plan on the same platform will be charged a £25 downgrade fee. There is no upgrade fee for upgrading to a higher priced plan, however, you will be charged any difference between the set-up fee applicable to your new and former plans.
(l) BILLING / PRICE CHANGES: Our policies and prices are subject to change with full notice. Any price changes become effective in the next billing cycle, we will notify you via email of this price change prior to the cost being edited.
S 3. Sublicense
Customer may not sublicense or resell any of The Company’s Software or Hosting Services to any third parties without the prior written permission of The Company. As an example, Customer may not provide Web Hosting services to any third party without The Company’s prior written permission. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.
S 4. Term and Termination
(a) Term. The term of this Hosting Services Agreement shall begin on the Effective Date for the duration of the term purchased.
(c) Cancelling Hosting Subscriptions. To cancel your monthly hosting subscription, you must submit your request through email at firstname.lastname@example.org. To ensure that you are not billed for another month of service, you must cancel your subscription 48 days before your next billing cycle begins. All properly-submitted cancellation requests are processed within three business days of submission (recurring billing is terminated on the date of request submission). No prorated refunds are offered for subscriptions cancelled mid-cycle.
S 5. Fair Usage
Website Hosting plans that come with unlimited bandwidth maybe asked to upgrade to an alternative Plan if your website is deemed to have too much traffic which causes slow speeds for other users. This will likely only effect websites causing performance issues to our servers.
S 6. Security and content protection
(a) Customer acknowledges that the Internet is not a secure or completely reliable system and that the purpose of the Hosting Services is to allow end users easy access to Customer’s Content. The Company will take those precautions The Company deems reasonable in its sole discretion to secure Customer’s Web Site from attack, but The Company makes no warranty that there will be no outages or interruptions of service, or that Customer’s Content will be secure against attack of any form by end users or other third parties.
(b) Protection of Content. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although The Company provides data backup services, Customer is advised that The Company in no way is responsible for any damages resulting from the loss of Customer’s Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving Customer’s Content.
S 7. Credit Card Guidelines
Customer assumes all liability for their actions and the inherent risk associated with viewing credit card information. The Company will not be responsible for any such risk or liability regardless of the security settings.
Further, if a merchant chooses to view credit card information, they are certifying that they understand and are following all guidelines for viewing credit card information. These guidelines can be found at Visa’s website.
If a merchant does not follow all of the guidelines when viewing credit card information, that merchant is in breach of its contract with The Company and possibly Visa/Mastercard/Discover/American Express.
Regardless of viewing credit card information merchants must comply with the PCI DSS and assume liability applicable to PCI DSS. In addition per guidelines stores must use a strong security protocol such as SSL to safeguard sensitive cardholder data over networks.
At its discretion, The Company reserves the right to change the security settings of any merchant at any time with or without warning.
S 8. Prohibited Practices
The Company shall have no duty or obligation to monitor Customer’s Content or any other Content provided or distributed by others, and The Company shall not edit or otherwise exercise any control over Customer’s Content. Nevertheless, The Company may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer’s Content or other Content that The Company deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state/province where the server resides; illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer’s billing practices; or (iii) Customer’s noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement.; or (iv) claims made by third parties against The Company that Customer or any of its end users has engaged in one or more of the above practices.
S 9. Customer’s Indemnification
Customer shall indemnify and hold harmless The Company from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable legal fees, arising from or relating to Customer’s provision, or an end user’s use, of Customer’s Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law.
S 10. Notices of Trademark and Copyright Infringement
To cover the increasing cost of processing trademark, and copyright infringement claims, The Company reserves the right to charge a £150 processing fee for each instance of notification received from a legitimate copyright holder. The Company reserves the right to close any store that, upon notification, fails to comply with a legitimate infringement claim within the specified time.
S 11. Email Policies
Spam – also known as Unsolicited Commercial Email (UCE).
The Company has a zero tolerance spam policy. The Company does not permit spam being sent using The Company mail servers.
All email sent via The Company servers must meet the following criteria:
- The recipient of your email has made a purchase, requested information, responded to a questionnaire or a survey, or had offline contact with you.
- Marketing/Newsletter emails must provide a working link for users to unsubscribe.
- All requested to unsubscribe must be processed within 10 days.
- Email “from address” must contain the domain name of your The Company store.
- Email subject lines must not contain misleading information.
The Company actively monitors our mail servers for abuse. Any customer found to be using The Company mail servers to send spam will be immediately cut-off from use of The Company services.
Use of any mass email programs in conjunction with The Company SMTP servers is strictly prohibited.
S 12. Miscellaneous
In order to maintain our system integrity and resources we expect our customers to act responsibly. When you use any The Company. services, in any form, you automatically agree to the following Conditions.
We reserve the right to suspend or cancel a customer’s access to any or all services we provided when we decide that the account has been inappropriately used. In short:
- No adult content (Pornography)
- No online gambling
- No Spam, No unsolicited e-mailing
- No Warez, cracks, copyright infringement
- No Server abuse -Any attempt to undermine or cause harm to a server, or customer of us is strictly prohibited.
- No Unauthorized use of other people’s accounts or computers
- No IRC Chat Rooms – We do not allow clients to install their own chat rooms of any kind, without approving it with the Support Team.
- Background Running Programs – Prior approval required for any programs to run continually in the background. NO IRC chat will be approved, FlashChat and MyPHPChat are two chatapps that have been approved.
- No IRC – We do not allow IRC or IRC bots to be operated on our servers.
- Payment Policies – All accounts are set up on a pre-pay basis. Setup fees are charged for all new accounts and major account changes. All pricing is guaranteed for the term of pre-payment. We reserve the right to change prices at any time, unless other terms have been agreed upon. The customer is responsible for all money owed on the account from the time it was established to the time that the customer submits an official cancellation request form.
- Cancellation Policy -We reserve the right to cancel service at any time. Any violation of policies which results in extra costs will be billed to the customer (i.e. transfer, space etc.)
- Domain Registration fees are not refundable at all.
- Lawful Purposes – We reserve the right to refuse service to anyone. Customers may only use our servers for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited.
- Indemnification – Customer agrees that it shall defend, indemnify, save and hold us harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against us, our agents, our customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, it’s agents, employees or assigns. Customer agrees to defend, indemnify and hold us harmless against liabilities arising out of;
- any injury to person or property caused by any products sold or otherwise distributed in connection with our servers;
- any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party;
- copyright infringement and
- any defective products sold to customer from our servers.
- Disclaimer: We will not be responsible for any damages your business may suffer. We make no warranties of any kind, expressed or implied for services we provide. We disclaim any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by our Web hosting service and our employees. We reserve the right to revise the policies at any time.
- All end-users, resellers and dedicated servers of ours must adhere to the above policies.
- Use of any mass email programs in conjunction with The Company SMTP servers is strictly prohibited.
- Use of any additional applications or executables on The Company servers is strictly prohibited
- Use of MSAccess data files on The Company Servers is strictly prohibited.
- Failure to follow any term or condition will be grounds for immediate account deactivation.
- We offer billing via credit card, paypal or pre-authorized debit only.
- All initial fees must be paid prior to service setup. These fees include:
- Service setup fees
- 1st month service charge
- Our billing cycle begins on the first day of every month, and is due on that day each month thereafter.
- All accounts not paid within 14 days after your due date will be suspended. Suspended accounts will not be allowed any access to their servers.
- The Company attempts to automatically charge credit card on file for any past due invoice for current, suspended and cancelled accounts.
- Accounts suspended and reactivated must pay all past due and current amounts and are subject to a £50 reactivation fee
- Accounts past due over 30 days cannot be reactivated. You must sign up for new service and pay the full setup fees associated with the server option you choose.