Terms and conditions
Version 1.7 . May 2007
Talk Internet - Terms and conditions for .Internet
Services.
THIS AGREEMENT is made the ____ day of 200
BETWEEN:
(1) Talk Internet
[Limited] of Suite 12, Xpdia,
Crab Lane, Fernhead, Warrington, WA2 0XP (.Talk
Internet.); and
(2)
of (.Customer.)
WHEREAS:-
(A) Talk Internet provides Talk Internet services
and the Customer wishes to become a Customer of Talk Internet.
(B)
The parties
have agreed to enter into a relationship on the terms and conditions
hereinafter contained.
WHEREBY IT IS AGREED:-
1.
DEFINITIONS
In this Agreement, the following
expressions shall have the following meanings:‑
|
"Confidential Information. |
Information which is
identified as confidential or proprietary by either party or the nature of
which is clearly confidential or proprietary. |
|
"Contract Period" |
The initial term of this Agreement as specified in the
Order which may be
extended or terminated in accordance with the provisions of this Agreement. |
|
"Fees" |
The fees (including any VAT) due for the provision of
the Services as calculated in accordance with the Price List. |
|
"Inappropriate Material" |
Material that under the laws of any jurisdiction where
the material can be accessed is any of the following:- unlawful, threatening,
abusive, harmful, malicious, obscene, pornographic, malicious, profane, libellous, defamatory, infringes any Intellectual Property
Rights, constitutes or encourages a criminal offence or contains a virus,
worm, trojan horse or other harmful code. |
|
"Intellectual Property Rights" |
Copyrights, patents, domain names, database rights,
registered and unregistered design rights, topography rights, trademarks and
service marks and applications for any of the foregoing, together with all
trade secrets, know‑how, rights to confidence and other intellectual
and industrial property rights in all parts of the world. |
|
"Material" |
Text, graphics, images,
sound, video or any combination thereof. |
|
"Netiquette" |
Generally accepted standards of conduct relating to use
of the Internet including, without limitation, not sending SPAM (unsolicited
mass e-mail), not impersonating another person, and not misrepresenting
oneself to have authorisation from another person
when one does not. |
|
"Order Form" |
An order on the electronic
form provided by Talk Internet and placed with Talk Internet and completed by Customer to indicate which Services it
requires and its agreement to these terms and conditions governing such
provision. |
|
"Price List" |
A list of Talk Internet.s prices for each of the
Services as available on Talk Internet.s Website or from Talk Internet by
post or fax on request. |
|
"Relevant Legislation" |
Laws relating to data protection and any laws governing
Inappropriate Material. |
|
"Server" |
The computer server equipment operated by Talk Internet in
connection with the provision of the Services. |
|
"Services" |
The services identified on an Order Form to be provided
by Talk Internet to Customer pursuant to these terms and conditions and any
others specified by Talk Internet on such Order Form. |
|
"Software" |
Software provided by Talk Internet to the Customer in
connection with the provision of the Services. |
|
"Talk Internet.s Website" |
The Website located at www.talkinternet.co.uk |
2.
PAYMENT
AND SERVICES
2.1
In consideration for the payment of the Fees
calculated correctly in accordance with the Price List on Talk Internet.s
Website at the time of the completion of an Order Form by Customer, Talk
Internet agrees to provide the Services.
2.2
The Customer agrees to make
payment for the services by payment at the time of the order being placed.
2.3
If Customer fails to pay any
invoice which is due and payable under this Agreement, Talk Internet shall be
entitled to charge interest on a daily basis on the overdue amount and on
outstanding interest from the date of such failure until payment (both before
and after judgment) at an annual rate 4% above the base rate for the time being
in force of Barclays Bank plc.
2.4
Non‑delivery or non‑performance
of services by any third party other than Talk Internet's sub-contractors shall
not give Customer any right to delay any payment to Talk Internet or to make
any claim whatsoever against Talk Internet.
2.5
If Talk Internet does not receive payment in full
within 30 days of the date of the invoice, it may terminate this Agreement as
regards any Service without further obligation to Customer.
2.6 For the purposes of this Agreement, time of payment is of the
essence.
3.
INDEMNITY
3.1 Customer
hereby agrees fully to indemnify, keep indemnified and hold harmless Talk
Internet, its officers, employees, agents, sub-contractors and affiliated
companies from and against any and all costs, claims, losses, damages and
expenses (including, but not limited to, legal fees) sustained or incurred by
Talk Internet or its any of its officers, employees, agents, sub-contractors or
affiliated companies directly or indirectly and in any jurisdiction as a result
of:-
3.2 Any breach of any of the warranties
given by the Customer in this Agreement;
3.3 Otherwise howsoever
arising out of the provision by Talk Internet of any Service hereunder unless
on account of breach of contract or negligence by Talk Internet; and/or
3.4
Any breach by Customer of any of
its obligations in this Agreement.
4.
SERVICE OBLIGATION, WARRANTIES
AND LIABILITY
Talk Internet will use all reasonable endeavors to provide a prompt and
continual service, but will not be liable for any loss of data or service
resulting from delays, non deliveries, missed deliveries, or service
interruptions caused by events beyond the control of Talk Internet, or by
errors or omissions of the Customer
4.1
Talk Internet shall not be
liable for any interruptions to the Services or outages arising directly or
indirectly from:-
i.
Interruptions to the flow of
data to or from the internet;
ii.
Changes, updates or repairs to
the network or software which it uses as a platform to provide the Services
subject to Talk Internet striving to
minimise the interruptions/outages that may be caused
by such change;
iii.
The effects
of the failure or interruption of services provided by third parties;
iv.
Factors outside of Talk
Internet.s reasonable control;
v.
Any actions or omissions of
Customer (including, without limitation, breach of Customer's obligations set
out in the agreement) or any third parties;
vi.
Problems with Customer.s
equipment and/or third party equipment;
Customer
requested interruptions to the Services.
4.2
Talk
Internet will not be liable for any indirect loss, consequential loss, loss of profit,
revenue, data or goodwill howsoever arising suffered by the Customer or for any
wasted management time, failure to make anticipated savings or liability of the
Customer to any third party arising in any way in connection with this
Agreement or otherwise whether or not such loss has been discussed by the
parties pre-contract or for any account for profit, costs or expenses arising
from such damage or loss.
4.3
Offsite Storage and Retrieval
The transmission,
storage, viewing and retrieval of data and files through the world
wide web is subject to a variety of conditions that make such
transmission, storage, viewing and retrieval potentially unreliable.
Accordingly, the Customer's use of the Customer's account and the Services is
at the Customer's sole risk. The Customer's account and the Services are
provided to the Customer on an "as is" and "as available"
basis.
4.4
Talk internet makes no representation or warranty that:
(A)
The Customer's account or the Services will meet the
Customer's needs;
(B)
Access to the Customer's account or the Services will be
timely, error-free, uninterrupted, virus-free or secure;
(C)
The data and files the Customer stores in the Customer's
account will not be lost or damaged;
(D)
The data on the Customer's desktop or server will not be
lost or damaged; or
(E)
Defects in the Services will be corrected.
4.5
The Customer acknowledges that its retrieval of any
material or data through the use of the Services is effected at the Customer's
choice and risk and that the Customer will be solely responsible for any damage
to the Customer's computer system or loss of data that results from the
retrieval of such material or data. Save as expressly stated
in this Agreement, all conditions and warranties whether express or implied,
statutory or otherwise, which relate to the condition or fitness for any
purpose of the software provided by Talk Internet or to the care or skill with
which the Services are provided are hereby expressly excluded.
4.6
None of the clauses above shall
apply so as to restrict liability for death or personal injury resulting from
the negligence of Talk Internet or its appointed agents.
4.7
No matter how many claims are
made and whatever the basis of such claims, Talk Internet.s maximum aggregate liability
to the Customer under or in connection with this Agreement or any other
agreement between the parties or any software related to this Agreement, in
respect of any direct loss (or any other loss to the extent that such loss is
not excluded by the provisions of this clauses 4 or otherwise) whether such
claim arises in contract or in tort shall not exceed a sum equal to once the
amount of the monthly fee paid by the Customer for the Services.
4.8
The Customer agrees that it is
in a better position to foresee and evaluate any loss it may suffer in
connection with this Agreement and that the Fees have been calculated on the
basis of the limitations and exclusions in this Clause 6 and that the Customer
will effect insurance as is suitable having regard to its particular
circumstances and the terms of this Clause 4.
4.9
None of the clauses above shall
apply so as to restrict liability for death or personal injury resulting from
the negligence of Talk Internet or its appointed agents.
4.10
Talk Internet excludes any warranty
as to the quality or accuracy of information received through the Services.
5.
SERVICE LEVEL AGREEMENT
5.1
Subject to Clauses 4.1 and 4.2
above, Talk Internet guarantees in respect of each Services a service
level of 99.7% uptime measured on average over a 12 month period. This
guarantee includes: 24 x 7 network monitoring, 1 hour engineer response and
Talk Internet's undertaking to use Talk Internet's reasonable endeavors to
provide fix solutions within 4 hours of notification. In the event of Talk Internet's
failure to provide a minimum of 99.7% uptime as measured above, the End-User can
claim compensation on a pro rata basis at the rate of one day's rental refund
per hour of downtime, with a maximum of 30 pro-rata days in any calendar year.
Claims must be submitted in writing to Talk Internet within 5 working days of
the event (not including bank holidays or public holidays). All DSL services
are excluded from this
5.2
Talk Internet may, without
liability, elect to suspend the Services immediately on breach of any of the
terms and conditions of this agreement, including without limitation late or
non-payment of sums due.
5.3
From time to time the whole or
part of the network may be closed down for routine repair or maintenance
work. Talk Internet shall give as much
notice as possible in the circumstances, and shall endeavour to carry out such works
during the scheduled maintenance periods as published from time to time. Loss
of service due to down time for maintenance after notice has been given (minimum
of 24 hours) will not form part of the guaranteed 99.7% uptime calculation.
5.4
In the event of suspension of
the Services pursuant to Clause 5.2 and the subsequent re-connection of the
Services to the Customer, Talk Internet shall be entitled to charge the
Customer a sum equal to 20% of the most recently levied annual fee for the
provision of the Services.
5.5
Talk Internet's right to
suspend the Services shall be without notice and without any liability
whatsoever on the part of Talk Internet and without prejudice to the Customer's
obligation to pay for the Services in their entirety.
5.6
Network Bandwidth Policy
Whilst Talk Internet uses its best endeavors to
provide a fast and reliable service for all users. the Customer should note that it is a
"contended" service and resources are shared between many users.
Traffic shaping is performed during busy periods to ensure all users have fair
access to resources. Talk Internet requires all users not to make unreasonable
demands on its network. If the Customer is found, in Talk Internet's reasonable
discretion, to be making excessive use of the Services, Talk Internet may
without any liability to the Customer restrict or suspend the Services.
6.
ACCEPTABLE AND IMPROPER USE
6.1
The Customer acknowledges that it
may only use the Services for lawful purposes.
The Customer warrants that:-
b.
it shall not knowingly use the
Services to receive or transmit material that is obscene, threatening,
menacing, offensive, defamatory, in breach of confidence, in breach of any
Intellectual Property Right, or otherwise unlawful or in breach of Netiquette.
c.
its account is to be used by a
single user only (unless otherwise agreed) and that it will not allow
simultaneous access using the same login;
d.
the registered user of the
account will keep the username and password secure and not let them become
public knowledge and that the password will not be stored anywhere on a
computer in plain text;
e.
if the password becomes known to any other unauthorised
user the registered user will inform Talk Internet immediately.
6.2
Any breach of these warranties
or obligations shall entitle Talk Internet immediately to terminate the
Services to the Customer.
6.3
The Customer hereby indemnifies
and agrees to keep Talk Internet fully and effectually indemnified from and
against any and all losses, costs, actions, proceedings, claims, damages,
expenses, including reasonable legal costs and expenses, or liabilities
whatsoever suffered or incurred directly by Talk Internet in consequence of the
Customer.s breach or non-observance of these terms and conditions.
6.4
The Customer shall defend and
pay all costs, damages, awards, fees (including any reasonable legal fees) and
judgments, awarded against Talk Internet arising from the above claims and
shall provide Talk Internet with notice of such claims, full authority to
defend compromise or settle such claims and reasonable assistance necessary to
defend such claim, at the Customer.s sole expense.
6.5
Use by others: The Customer
acknowledges that Talk Internet is unable to exercise control over the material
sent via the Services and that Talk Internet hereby excludes liability of any
kind for the reception by the Customer of viruses, offensive, threatening or
obscene material.
6.6
The Services may be used by the
Customer to link into other networks worldwide, and the Customer agrees to
conform to the acceptable use policies of such networks.
7.
ASSIGNMENT, AGENCY, SUB-LEASING
AND RESELLING
7.1
The rights granted to the
Customer pursuant hereto are personal and the Customer undertakes that it will
not assign the Agreement, sub-lease in any other way, transfer the Services, or Software without prior written agreement from a
director of Talk Internet. Actual or
attempted contravention of this restriction in any way, whether successful or
not, will result in the Services being terminated by Talk Internet without
notice and without any liability whatsoever on the part of Talk Internet and
without prejudice to the Customer's obligation to pay for the Services in their
entirety.
7.2
Talk Internet shall be entitled
to assign this Agreement either in whole or in part. This Agreement shall be personal to the
Customer who shall not be entitled to assign this Agreement in whole or part.
8.
DATA PROTECTION, RELEVANT
LEGISLATION AND INDUSTRY REGULATIONS
8.1
Talk Internet reserves the
right to put the names and other information from the registration form
relating to the Customer into a computerised
directory for internal use only, unless specific written instructions are
received from the Customer.
8.2
In the event of an acquisition
of Talk Internet or of a liquidator, administrator or receiver being appointed
over Talk Internet or all or
any part of Talk Internet's assets,
the Customer's information will only be passed to the acquiring or appointed
third party of the business providing that such third party undertakes to use
the Customer's information for the same purposes as set out in this Agreement.
The Customer's information will not be disclosed to government or local
authorities or other government institutions save as required by law or other
binding regulations.
8.3
Talk Internet will use the
Customer's information for the purpose of fulfilling orders placed by the
Customer, processing any other transactions authorised
or made by the Customer with Talk Internet, informing the Customer of new
products, updates, offers and providing other marketing information to the
Customer which Talk Internet thinks the Customer may find of interest or for
the purposes of undertaking Customer research.
8.4
The Customer warrants that it
complies and will remain throughout the course of the Agreement compliant with
Relevant Legislation as well as relevant industry regulations, including
without limitation those issued by OFCOM and OFTEL.
9.
SOFTWARE AGREEMENT
9.1
Customer.s right to use the
Software and the documentation provided with the Agreement, both of which are
protected by copyright laws, is limited to the terms and conditions described
below.
9.2
The Customer may use the Software
as per the license agreement of the manufacturer and will confirm acceptance of
such terms by clicking the associated box on the Website. The Customer may not
(a) distribute copies of the Software or associated documentation to others,
(b) rent, lease, sub-license or otherwise grant any rights to the Software, (c)
except to the extent dictated in the associated documentation or instructions
for use or as permitted by law translate, reverse engineer, de-compile or
disassemble, or otherwise alter the Software or associated documentation
without the prior written consent of Talk Internet or the software
manufacturer; or (d) ship or transmit (directly or indirectly) any copies of
the Software, or any technical data in the Software or its media, or any direct
product thereof, to any entity or place.
9.3
The Customer's license to use
the Software remains in effect until terminated. The Customer's license will
terminate without notice if the Customer fails to comply with any of Talk
Internet terms and conditions, and or breaches the software manufacturer.s
license. Upon any termination, the
Customer must remove all copies of the Software in any form from its systems,
and this is without prejudice to the Customer's obligation to pay for the
Software in its entirety.
9.4
Limited Warranty
Talk Internet warrants the
media on which the Software is provided will be free from defects in materials
and workmanship under normal user for a period of thirty (30) days after
purchase. Defective media may be returned,
with proof of purchase, for replacement without charge during the thirty (30)
day warranty period. Neither Talk
Internet nor any other provider of the Software warrants that the Software is
error-free, will operate without interruption or is compatible with all
equipment and software configurations.
In addition, the security mechanism implemented by the Software has
inherent limitations and the Customer must determine that the Software meets
the Customer's needs. This warranty does not cover any Software that has been
subjected to damage or abuse or which has been altered or changed in any
way. Talk internet is not responsible
for problems caused by computer hardware, computer operation systems or the use
of the Software in conjunction with non-Talk Internet software.
9.3
Except as provided in this
Clause 9, Talk Internet gives no other warranties, express or implied, with
respect to the Software, its merchantability or fitness for a particular
purpose.
9.4 Limitation of Liability regarding the Software
Clause 9.5 and 9.6 are without prejudice to the general application of
Clause 4
9.5 Repair,
replacement or refund at the option of Talk Internet is the exclusive remedy if
there is an inherent defect. In no event
shall Talk Internet or the manufacturer of the Software or the Software
providers be liable for any
indirect loss, consequential loss, loss of profit, revenue, data or goodwill
howsoever arising suffered by the Customer or for any wasted management time,
failure to make anticipated savings or liability of the Customer to any third
party arising in any way in connection with this Agreement or otherwise whether
or not such loss has been discussed by the parties pre-contract or for any
account for profit, costs or expenses arising from such damage or loss.
9.5
In no event shall the liability
of Talk Internet or the provider or manufacturer of the Software provider
exceed the amount paid by the Customer for the Software at issue. The Customer shall not use the Software in any
case where damage or injury to person, property or business may occur if any
error occurs. The Customer expressly
assumes all risk for such use.
10.
TERM AND TERMINATION
10.1
This Agreement to provide the
Services will continue for the Contract Period and thereafter unless terminated
by either party giving at least 30 days' written notice to the other party,
such notice not to expire prior to the end of the Contract Period or any
anniversary thereof.
10.2
Either party may terminate this
Agreement immediately by written notice to the other in the event that any of
the following occur:-
a.
the other fails to pay any
amount due hereunder within 30 days of its due date or breaches any term of
this Agreement and such breach is incapable of remedy or continues for a period
of 30 days after notice requiring the same to be remedied has been given by the
terminating party to the other party; or
b.
an order is made or a resolution
is passed for the winding up of the other party, or if a provisional liquidator
is appointed in respect of the other party, or if an administration order is
made in respect of the other, or if a receiver is appointed in respect of the
other or all or any of its assets or if the other is unable to pay any of its
debts within the meaning of Section 123 of the Insolvency Act 1986, or if any
voluntary arrangement is proposed under Part 1 of the Insolvency Act 1986 in
respect of the other.
10.3
Upon termination of this Agreement for whatever reason all
due or outstanding fees and expenses owed by the Customer to Talk Internet shall
forthwith become due and payable.
11. GENERAL
11.1 Subject to
Clause 11.2, this written Agreement together with any schedules, constitutes
the entire agreement between the parties hereto relating to the subject matter
hereof and neither relied on any representation made by the other party unless
such representation is expressly included herein. Nothing in this Clause 11.1
shall relieve either party of liability for fraudulent misrepresentations and
neither party shall be entitled to any remedy for either any negligent or
innocent misrepresentation except to the extent (if any) that a court or
arbitrator may allow reliance on the same as being fair and reasonable.
11.2 No change,
alteration or modification to this Agreement shall be valid unless in writing
and signed by duly authorised representatives of both
parties.
11.3 If any provision of this Agreement or part
thereof shall be void for whatever reason, it shall be deemed deleted and the
remaining provisions shall continue in full force and effect.
11.4 Any notice
given pursuant hereto may be served personally or sent by pre-paid registered
letter or recorded delivery to the addresses given here above. Such notice shall be deemed to have been duly
served upon and received by the addressee, when served personally, at the time
of such service or, when posted, 48 hours after the same shall have been put
into the post correctly addressed and pre-paid.
11.5 Neither
party shall be liable for any loss suffered by the other party or be deemed to
be in default for any delays or failures in performance hereunder (other than
in relation to payment) resulting from acts or causes beyond its reasonable
control or from any acts of God, acts or regulations of any governmental or
supra-national authority.
11.6 Any delay
or forbearance by either party in enforcing any provisions of this Agreement or
any of its rights hereunder shall not be construed as a waiver of such
provision or right thereafter to enforce the same.
11.7 This
Agreement shall be governed by the laws of
IN
WITNESS WHEREOF the parties by their
duly authorised representatives have executed this
Agreement as of the date first above written
Talk Internet [Limited]
Signature
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Position
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Date
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Customer
Signature
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Name (please print)
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