Terms and Conditions
All headings are provided for clarity and do not affect the legal meaning of the Terms and Conditions.
The following words have the meanings set out below unless it is obvious that they should mean something else in a particular context:
- "You", "Your" or "Yourself" means the person, business or other legal entity entering into this agreement with Us for provision of The Services;
- "Us", "Our", "Ourself" or "We" means PositiveWeb (A trading style of Clare Lauwerys)
- "Our Web Site" means the web site at http://www.positiveweb.co.uk/ ;
- "Terms and Conditions" means the terms and conditions as set out on Our Web Site;
- "The Services" means the services supplied under this agreement between You and Us, which may include without limitation advice, support and consultancy services; software programming, installation, configuration and maintenance services; web site design and creation services; email and associated services; web site hosting and associated services; file transfer services; domain name registration services; other services as described in any order acknowledgement sent by Us to You;
- "Consumer" means a private individual as defined by current consumer protection legislation in England and Wales;
- "Publish" means publication of, issue of, display of or linking to materials both directly through The Services and indirectly, for example by using The services to publicise, sell or organise the distribution of physical materials.
Acceptance of Terms
The Terms and Conditions set out the entire agreement under which We will provide You with The Services. By using The Services You accept the Terms and Conditions. All other contracts, warranties and terms and conditions are excluded to the fullest extent permitted by law unless We agree otherwise in writing.
We may revise the Terms and Conditions at any time without notice. By using The Services following any such revision, You agree to the revised Terms and Conditions. You agree to review the Terms and Conditions regularly on Our Web Site.
You warrant that You are dealing as a business or other legal entity and not as a Consumer. You acknowledge that consumer protection legislation does not apply to the agreement between You and Us.
You agree to provide complete and accurate information about Yourself as requested when placing any order for The Services and in any other correspondence between You and Us. You agree to inform Us of any changes to such information.
If the information You provide is incomplete or inaccurate or We reasonably suspect this to be the case, We may suspend provision of The Services or terminate this agreement between You and Us without notice as We see fit.
You agree to keep confidential all usernames, passwords and technical details supplied to You by Us and to share them only with the people that You authorise to use The Services.
You agree inform Us immediately if You know or reasonably suspect that a username or password has become known to someone You have not authorised to use The Services. You further agree to inform Us immediately if you know or reasonably suspect that The Services have or may be used in a way not authorised by You or in a way that breaches the Terms and Conditions.
If You forget any username or password You agree to contact Us and, subject to satisfying security checks, We will issue You with a new password.
You agree that You will neither use nor permit another to use The Services for any unlawful purpose or to publish any unlawful material, including material that is obscene, threatening, malicious, harmful, abusive, defamatory, that breaches the rights of any third party including copyright, trade secret or other intellectual property rights, that constitutes or encourages a criminal act, or that contains a virus, worm, trojan horse or other harmful software code.
You agree that You will neither use nor permit another to use The Services to publish any "Adult" or pornographic material, regardless of whether it is lawful to do so or not.
You agree the You will neither use nor permit another to use The Services to publish any material that We consider may harm Us or bring Us into disrepute. You agree that You with neither use nor permit another to use The Services to distribute unsolicited email or "Spam". You further agree that in the event of a breach of this condition, we may suspend The Services without notice, invoice You for Our reasonable costs in remedying the consequences of said breach at a rate of £86.00 per hour, and thereafter terminate this Agreement without notice.
You agree that You will neither install or run nor permit to be installed or run on The Services background programs that make unreasonable use of server or network resources, including but not limited to IRC related software such as bouncers and bots; chat server programs and talkers; email distribution programs; large cgi-based message forums; auctions; banner exchanges; any script named "formmail".
You agree that if any script that You have installed or have permitted to be installed affects the operation of The Services to the detriment of Us or other users of The Services, that we may suspend provision of The Services to You until such time as you have eliminated the problem.
You agree that You will neither use or attempt to use nor permit the use or attempted use of The Services to circumvent the user authentication or security of any host, network, or account, including but not limited to accessing data in an unauthorised manner; logging into a server or account in an unauthorised manner; password cracking; probing the security of other networks and hosts in search of weakness; circumvention or breach of any other organisation's security measures.
You agree that You will neither use or attempt to use nor permit the use or attempted use of The Services to deny service to any user, host, or network, including but not limited to denial of service attacks; mail bombing, or other deliberate attempts to overload or crash a host or network.
You agree that we may disclose details of Your use of The Services in the course of investigations of breaches of system or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal acts.
You agree that You will check all material, computer software and data that You use or permit to be used in conjunction with or publish or permit to be published through The Services for viruses, worms, trojan horses and and other harmful software code.
You agree that You are the publisher and editor of the material that You publish or disseminate through The Services. You further agree that if We become aware of a breach or potential breach of the Terms and Conditions that, as We are not the publishers of the material, We may suspend provision of The Services or terminate this agreement without notice as we see fit.
The Services will be as described on the Our Web Site and in any order acknowledgement that We may send to You.
You agree that We may change, improve, correct, temporarily suspend provision of or permanently discontinue provision of any part of The Services without notice. You further agree that we may temporarily suspend provision of all of The Services. You agree that we will not be liable to you or to any third party for any refunds, costs or damages as a consequence of such a change, improvement, correction or suspension.
If We suspend all or part of The Services temporarily, other than as a result of a breach of the Terms and Conditions by you, We will restore The Services so suspended as soon as we reasonably can.
The Services may include a data transfer allocation as described on Our Web Site. You agree that We may permit You to exceed said allocation or that we may restrict You to said allocation as We see fit. If We permit You to exceed said allocation, You agree that We may charge you for doing so. You further agree that you are responsible for monitoring and controlling your usage of said allocation and that we do not have to notify You when You incur or are about to incur such charges. If We restrict You to said allocation, you agree that The Services may be unavailable to You or to third parties until the next allocation becomes available.
We make no representations or warranties with respect to the anti-virus and anti-spam systems that We may provide as part of The Services, including warranties of merchantability and fitness for a particular purpose. We do not represent or warrant that said anti-virus and anti-spam systems will correctly identify whether or not any or all messages contain malicious or harmful software code or unsolicited email. You agree that We are not liable for any damages or legal costs arising from any failure, error, false-positive or unavailability of said anti-virus and anti-spam systems.
You agree that You are responsible for keeping copies of all materials, data and configuration information used in conjunction with The Services. You agree that We are not required to make backups of said materials, data and configuration information on your behalf. You agree that in the event of loss of materials, data or configuration infomation from The Services, whether caused by human error, software error, damage, accident, fire, theft, unauthorised use or some other event, that Our sole responsibility is to provide replacement services of a comparable standard to The Services within a reasonable period of time. You agree that any such replacement services will be configured as a new and that You are responsible for installing or restoring all materials, data and configuration information from your own backups.
You agree that We may provide The Services from any location as we see fit, including locations outside the European Union. You further agree that we may transfer to and process your personal data in any location as We see fit, including locations outside the European Union. You agree that you are responsible for the transfer and processing of any personal data that may occur through Your use of The Services and you agre to obtain the necessary consents to do so.
Unless expressly stated otherwise in the description of The Services, We will not create, manipulate or manage any material that You wish to publish, nor will We configure or operate The Services on Your behalf.
You agree that We will provide technical support entirely through the "support" section of Our Web Site. You acknowledge that Telephone and on-site support are not provided as part of The Services unless expressly stated otherwise in the description of The Services. You agree that any telephone or on-site support that we may provide at our sole discretion which is not expressly included in the description of The Services does not consitute a waiver.
We will provide technical support on a reasonable endeavours basis, Monday to Friday, 9:30am-5:30pm, excluding public holidays in England and Wales. We offer no guarantees or warranties in respect of response times or problem resolution times. You agree that We may change these support arrangements as we see fit from time to time.
Unless expressly stated otherwise in the description of The Services, the technical support that We will provide is limited to the administration and operation of The Services through the site control panel; uploading of web site materials through FTP or FrontPage and general advice on the configuration of email clients to access the email service.
For the avoidance of doubt, the technical support that We will provide does not include advice and assistance with web site design, scripting and coding, database design and administration, installation and operation of client software such as email clients, ftp clients, web browsers, web site design, management and publishing software, etc., unless expressly stated otherwise in the description of The Services.
You agree that you will not share, re-sell or transfer the benefit of The Services in whole or in part to any third party without our express consent. If we so consent you agree that these Terms and Conditions will remain in effect between You and Us, and that you will do nothing which prevents or hinders Us from enforcing any provision of these Terms and Conditions; You further agree that You will indemnify us against any claim or for loss or damage which arises as a consequence of your sharing, reselling or transferring the benefit of The Services to any third party; You further agree that you are responsible for providing all technical support and assistance to any third party making use of The Services.
We will use reasonable endeavours to register new domain names that You order and to transfer existing domain names to The Services at Your request. You agree that We are not obliged to accept any request to register or transfer a domain name or to continue to process any registration of a domain name at Our sole discretion.
Our obligations in relation to domain name registration and transfer are limited to forwarding Your request to the relevant naming authority, providing reasonable administration services in relation to Your request and notifying You of the result of your request once received by Us from from the naming authority.
We make no representations or warranties with respect to availability or likelihood of successful registration or transfer of any domain name. We make no representations or warranties that You are entitled to use any domain name that We may register on your behalf.
You agree to make Yourself aware of and comply with the terms and conditions for the registration and administration of domain names published by the relevant naming authority. You acknowledge that We are required to administer Your domain names in accordance with those terms and conditions and that We have no control over how the terms and conditions may change in the future.
In respect of your registration or renewal of .uk domain names, You agree that You are bound by current terms and conditions available at http://www.nominet.org.uk/registrants/legal/terms/.
You agree that, notwithstanding that we may inform you from time to time that domain names registered as part of The Services require renewal, that You are responsible for asking Us to renew said domain names in a timely manner, and that We are not liable for any failure to renew a domain name.
You agree that We may change the registrar that holds your domain names as We see fit and without notice.
You agree that you are entirely responsible for all liabilities arising from use of The Services provided to You, whether You authorise said use or not. You agree to indemnify us against any liabilities, damages or legal costs arising from use of The Services provided to You.
The Services are provided "as is" and "as available". We make no representations or warranties with respect to The Services, including warranties of merchantability and fitness for a particular purpose. We do not represent or warrant that The Services will meet Your requirements or that The Services will be uninterrupted, timely, secure, or error-free.
You agree that the allocation of risk in this agreement reflects the price paid for The Services. You acknowledge that it is not within Our control as to how or for what purposes You use The Services. If any exclusion in the Terms and Conditions is held to be invalid and we become liable for loss or damage that may lawfully be limited, then you agree that such liability will be limited to the amount paid by You for The Services.
You acknowledge that The Services are not suitable for use in any safety-critical environment, or in relation to any safety-critical activity.
You agree that We will not be liable for delay in performance or non-performance of our obligations under this agreement due to circumstances beyond our reasonable control, including but not limited to governmental acts, war, terrorism, riots, strikes or trade disputes (including by and with our own employees), technical failure, general availability of the Internet, power failure, communications failure, weather, flood, fire, explosion, natural or local emergency.
Payment and Price
The price payable for The Services for new orders and renewal orders will be as published on Our Web Site on the date of the order. You agree that We may vary our prices at any time and without notice.
The price payable for exceeding Your data transfer allocation will be the price published on Our Web Site on the first date that the allocation becomes available. You agree that We may aggregate such charges and invoice you at the earlier of the end of the initial contract period, the end of the renewal period or when the aggregate charges exceed £10.00.
It is of the essence of the this agreement that You will pay the price and all other amounts due by the date and in the currency specified on Our invoice, renewal notice or Our Web Site as appropsiate. Payment will be deemed received upon receipt of cleared funds. You agree to make payment in full without any abatement, set off or deduction.
In the case of domain name registration renewals, cleared fund must be received by Us no later than forty days before the expiry of the domain name registration in order for the registration to be processed. Additional administration and registrar charges may apply on a case-by-case basis for payments received after this date. In the case of non-payment or late payment, you agree that we may suspend The Services or terminate this agreement without notice as we see fit. You further agree that we may charge our reasonable costs in administering and recovering any outstanding sums under this agreement, at a rate of £86.00 per hour.
You agree that We may disclose information about You or the operation of The Services either as required by law or where We act in good faith believing that such action is necessary to comply with the law, to protect or defend Our rights and interests, or to protect the safety of the public.
Term and Termination
The initial term of this agreement will be for the period set out in the description of The Services on Our Web Site, commencing on the date that We despatch an email informing You that The Services are available for use or that the domain name registration has been processed as appropriate.
Upon expiry of the initial term and any subsequent renewal term, We may at our sole discretion extend the agreement for a renewal term as set out in the description of The Services on Our Web site at that time, in consideration of which You agree to pay Us the the then applicable price and agree to the Terms and Conditions then pubished on Our Web Site. Any renewal term will run consecutively with the preceding initial term or renewal term.
You or We may terminate this agreement forthwith at the expiry of the initial term or a subsequent renewal term.
We may terminate this agreement immediately and without notice if You fail to pay any sums due within 14 days of their due date.
We may terminate this agreement immediately if You commit a material breach of the Terms and Conditions which impairs or may impair Our ability to provide The Services to You or to Our other customers.
You or We may terminate this agreement if the other party commits a material breach of the Terms and Conditions which is not remedied within a reasonable time period following notice of the breach or if the other party commites a material breach which is not capable of remedy.
You or We may terminate this agreement immediately if the other party convenes a meeting with its creditors or if a proposal is made for a voluntary arrangement within part 1 of the Insolvency Act 1986 and any successor Acts or a proposal for any other composition, scheme or arrangement with (or the assignment for the benefit of) its creditors or if the other party is be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any successor Acts or if a trustee receiver or administrative receiver or similar officer is appointed in respect of all or any 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 a resolution or any other steps are taken for the winding up or the making of an administrative order (otherwise than for the purposes of a solvent amalgamation or reconstruction).
In the event that We are entitled to terminate this agreement, at our sole discretion We may suspend provision of The Services for a period that We may determine.
If We discontinue The Services permanently, you may terminate this agreement forthwith and receive a refund of the fees paid pro-rated in proportion to number of unexpired whole months remaining in the initial term or renewal term.
Upon termination of this agreement or expiry of the initial term or renewal term all amounts payable will become immediately due and we will be entitled to immediately cease provision of The Services and delete all materials and data that The Services may contain.
Any termination of this agreement will be without prejudice to any other rights or remedies to which You or We may be entitled to hereunder or at law and will not affect any previous rights or liabilities of You or Us 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 upon or after such termination.
Any failure or delay by You or Us in exercising any rights or remedy will not constitute a waiver.
All notices or other communications given under this agreement must be in writing or enacted through the order system on Our Web Site. Written notices must be given by first class post, email or fax to the last known postal address, email address or fax number of the relevant party to this agreement. Notices will be deemed to have been received when in the ordinary course of the means of transmission it would be received by the addressee. To prove the giving of a notice it will be sufficient to show it was despatched. A notice will have effect from the sooner of its actual or deemed receipt by the addressee.
The agreement is governed by English law and will be deemed to have occurred and been made in England and Wales. In the event of a dispute You agree that it will be exclusively resolved in the courts of England and Wales.
We do not represent that The Services are appropriate, legal or available for use in in any geographic location other than England and Wales. You agree that You use The Services is at your own initiative and that we are not responsible or liable for Your compliance with local laws or other applicable laws. You agree that you will not use The Services if prohibited by such laws.
If any provision of the Terms and Conditions is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the provision will be deemed to be severable from the remaining provisions and will not affect their validity or enforceability.