Standard Terms and Conditions of Business
All contracts for the provision of services and related products made by or on behalf of D&M Creative Limited are subject to the following Terms and Conditions of business.
All Clients of services provided by D&M Creative Limited, by use of such services, accept the Terms and Conditions of business set out in the form of service agreement which follows, irrespective of the mode or manner of ordering employed by the Client when ordering the services.
Any agreed variation or alteration to part of these Terms and Conditions as annexed to this Contract will not invalidate the remainder or the whole. Any alteration or addition to the supplies instructed on the order will require to be the subject of a new order. D&M Creative Limited is entitled to suspend services if the Client does not adhere to any or several conditions of this Contract.
In this Contract unless the context otherwise requires:
“Services” means domain name registration, web site design and hosting, bandwidth provision, email, Internet Access, E-Commerce solutions, training and any other service or facility provided by D&M Creative Limited to the Client;
“Server” means the computer server equipment or gateway operated by D&M Creative Limited or third parties on its behalf in connection with the provision of the Services;
“Web Site” means the area on the Server allocated by D&M Creative Limited to the Client for use by the Client as a site on the Internet;
“D&M Creative Limited” means D&M Creative Limited, incorporated in England, company number 04346336, with the registered office at Suite 209, Business First, Liverpool Road, Burnley, Lancashire. BB12 6HH.
“Contract” means the Contract between D&M Creative Limited and the Client incorporating these conditions;
“Charges” means the charges as agreed in writing and D&M Creative Limited’s latest published prices for products and services requested or incurred during the Contract period;
“bandwidth” means the allocated transmission capacity, measured in bits per second, of the network connection;
“Site” means the premises or location at which Service is or is to be provided under this Contract;
“Internet” means the global data network comprising Internet connected networks using TCP/IP (Transmission Control Protocol/Intemet Protocol) Internet Standards means the protocols and standards defined in the following Internet documents: RFC 1009, 1122, 1123 and 1250 and any future such protocols and standards as appropriate;
“Client” means a customer or any person who makes use of the services on behalf of the customer;
“minimum Contract term” means the minimum period of service as specified in clause 5;
2. DOMAIN NAME REGISTRATION
2.1 D&M Creative Limited make no representation that the domain name the Client wishes to register is capable of being registered by or for the Client or that it will be registered in the Client’s name. The Client should therefore not assume registration of the Client’s requested domain name(s) until the Client has been notified that it has or they have been registered. Any action taken by the Client before such notification is at the Client’s risk;
2.2 The registration and use of the Client’s domain name is subject to the terms and conditions of use applied by the relevant naming authority; the Client shall ensure that the Client are aware of those terms and conditions and that the Client comply with them. The Client shall have no right to bring any claim against D&M Creative Limited in respect of refusal to register a domain name or cancellation of the domain name by the relevant naming authority. Any administration charge paid by the Client to D&M Creative Limited shall be non-refundable notwithstanding refusal by the naming authority to register the Client’s desired name;
2.3 D&M Creative Limited shall have no liability in respect of the use by the Client of any domain name; any dispute between the Client and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, D&M Creative Limited shall be entitled at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. D&M Creative Limited shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute;
2.4 D&M Creative Limited give no warranty that the Client’s domain name is or will continue to be available for the Client’s use or that no domain name is or will be registered which conflicts with the Client’s domain name or which otherwise affects the Client’s use of the Client’s domain name;
2.5 D&M Creative Limited shall not release any domain to another provider unless full payment has been received by us for that domain and any other Services and Facilities provided.
3. WEB SITE DESIGN, HOSTING, EMAIL, E-COMMERCE
3.1. D&M Creative Limited make no representation and specifically exclude any warranty as to the accuracy or quality of information received by any person via the Server and D&M Creative Limited in no event will be liable for any loss or damage to any data stored on the Server;
3.2. The Client shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server;
3.3 The Client represents, undertakes and warrants to D&M Creative Limited that the Client will use the Web Site allocated to the Client only for lawful purposes. In particular, the Client represent, warrant and undertake to D&M Creative Limited that;
3.3.1 the Client will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will the Client authorise or permit any other person to do so;
3.3.2 the Client will not post, link to or transmit:
(a) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
(b) any material containing a virus or other hostile computer program;
(c) any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction;
3.3 The Client shall keep secure any identification, password and other confidential information relating to the Client’s account and shall notify D&M Creative Limited immediately of any known or suspected unauthorised use of the Client’s account or breach of security, including loss, theft or unauthorised disclosure of the Client’s password or other security information;
3.4 The Client shall observe the procedures which D&M Creative Limited may from time to time prescribe and shall make no use of the Server which is detrimental to our other customers;
3.5 The Client shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and a secure manner;
3.6 In the case of an individual Client, the Client warrants that the Client is at least 18 years of age and if the Client is a company, the Client warrants that the Services will not be used by anyone under the age of 18 years;
3.7 Any access to other networks connected to D&M Creative Limited must comply with the rules appropriate for those other networks This specifically. but not exclusively, includes NSFNET;
3.8 The Client warrants, undertakes and agrees that:
(a) all transactions within the web site will be contracts for the sale of goods and services between the Client as the merchant and the Client’s end customer;
(b) the information contained on the site complies with all applicable law, including, without limitation, any distance selling regulations, and data protection regulations from time to time in force;
3.9 While D&M Creative Limited will use every reasonable endeavour to ensure the integrity and security of the Server, D&M Creative Limited do not guarantee that the Server will be free from unauthorised users or hackers and D&M Creative Limited shall be under no liability for non-receipt or misrouting or misuse of email or using contents of email to the detriment of the client or the clients customers or for any other failure of email;
4. D&M CREATIVE LIMITED SERVICE
4.1 Connection to the D&M Creative Limited Service is via a fixed telecommunications link, cell or dial up connection. This Contract, unless specifically stated in writing, does not include the provision of telecommunications services necessary for connection to the D&M Creative Limited Service;
4.2 Requests relating to the provision of Service are, unless otherwise agreed to be made or confirmed in writing or by electronic mail;
4.3 D&M Creative Limited will use all reasonable endeavours to adhere to any dates proposed by either D&M Creative Limited or the Client for the provision of Service, however any such date is to be treated as an estimate only and D&M Creative Limited accepts no liability for failure to meet such dates;
4.4 D&M Creative Limited will use all reasonable endeavours to provide a reliable Service, however it is not practicable to provide such a Service free of faults and D&M Creative Limited does not undertake to do so. In the event of a fault in Service, the Client must report the fault by telephone telefax or electronic mail to D&M Creative Limited’s Technical Support at the appropriate numbers or addresses or other such numbers or addresses that D&M Creative Limited may from time to time provide. Upon receipt of the fault report, D&M Creative Limited will take all proper steps without undue delay to correct the fault. D&M Creative Limited shall not, in any event, be liable for interruptions of Service or down-time of a Server;
4.5 D&M Creative Limited may:
– temporarily suspend for the purpose of repair, maintenance or improvement, part or all of D&M Creative Limited’s service, generally without notice.
– give or update instructions regarding the use of the Service which in D&M Creative Limited’s reasonable opinion is necessary in the interests of safety, or to maintain or improve the quality of Service to D&M Creative Limited’s customers and any such instructions shall whilst they are in force, be deemed to form part of this Contract,
– vary the technical specification of Service for operational reasons,
D&M Creative Limited undertakes to use reasonable endeavours to restore Service as soon as practicable after any such suspension;
4.6 The client shall, at its own cost, be responsible for the installation and maintenance of any Client equipment
5. COMMENCEMENT and MINIMUM PERIOD OF SERVICE
The minimum contractual period for the provision of services by the company is 12 months from the first day that the services are made available to the Client. This agreement shall be deemed to expire only in the event that the client sends one month’s written notice no later than the 11th month after the supply of the services stating its intention to terminate this agreement otherwise the following years annual fee for the services supplied to the client shall become applicable and a liability of the Client.
6. BANDWIDTH UTILISATION
D&M Creative Limited reserves the right to monitor the Client’s bandwidth usage. If the bandwidth or speed of Service used by the Client exceeds 80% over a one week minimum period in regular samples an excess charge will be payable by the Client at current published prices unless the Client instruct D&M Creative Limited to upgrade the bandwidth to the next level as shown on the current price list. Any upgrade will be subject to current terms and conditions;
7. CONTENT and MISUSE
7.1 The Client will use all reasonable endeavours to ensure that the D&M Creative Limited Service is used or includes content that conforms to the laws of the this country and will not knowingly permit any illegal use or such use that will bring D&M Creative Limited into disrepute;
7.2 The Client must not, nor must any other person, use the Service:
to send or receive any material which is offensive, abusive, indecent, obscene or menacing; or in breach of confidence, copyright, privacy or any other rights; to cause annoyance, inconvenience or needless anxiety; or in breach of any provisions as contained within clauses 3 and 4 of this Contract; or other than in conformance with the acceptable use policies of any connected networks and the Internet standards;
7.3 D&M Creative Limited may discontinue Service if after due warning the Client continues to permit such illegal or disreputable use. If D&M Creative Limited suspends service for contravention of the above conditions of this clause, D&M Creative Limited can refuse to restore Service until it receives an acceptable assurance from the Client that there will be no further contravention;
7.4 D&M Creative Limited is not responsible for any delay malfunction non performance and/or other degradation of performance of any of the Client’s Internet Solutions caused by or resulting from any alteration and/or modifications and/or amendments due to changes and specifications requested or implemented by the Client whether or not beyond the Internet Solutions already supplied. D&M Creative Limited reserves the right to raise additional charges for any work arising out of the provisions of this clause.
8. CHARGES and PAYMENT
8.1 All payments must be in UK Pounds Sterling. If the Client’s cheque is returned by the bank as unpaid for any reason, the Client will be liable for a “returned cheque” administration charge of £25;
8.2 All Charges payable by the Client for the Services shall be in accordance with the scale of charges and rates published from time to time by D&M Creative Limited on our web site or on the Order Form or on the submitted proposal and shall be due and payable in advance of our service provision. Charges are exclusive of ‘Value Added Tax’ which shall, if applicable, be paid additionally by the Client at the rate prescribed by law on submission by D&M Creative Limited of a proper VAT invoice;
8.3 The Client acknowledge that our Services are provided using facilities provided to D&M Creative Limited by third parties; D&M Creative Limited shall have the right, subject to 14 days prior written notice to the Client, to increase our Charges at any time during the minimum Contract term or the continuation of the Contract, whether to reflect increase costs to D&M Creative Limited from such third parties or otherwise. However, if such increase exceeds 10% of the Charge in question prior to such notice the Client shall be entitled to terminate this Contract by written notice to D&M Creative Limited given by the Client within 7 days after service of our notice of increase to the Client. If the Client do so terminate, the Client will remain liable for all Charges (at the previous rate) up to the date this Contract ends;
8.4 If payment is not made on the due date D&M Creative Limited shall be entitled without limiting any other rights it may have to charge administrative fees on the outstanding amount (both before and after any judgement) at the rate of 5% above the base rate from time to time of Lloyds Bank PLC from the due date until the outstanding amount is paid.
8.5 In respect of Domain Name Registration D&M Creative Limited will raise an invoice for payment to the appropriate naming authority and for the hosting of that name specifying the date by which payment by the Client must be made. Failure for any reason by the Client to make payment before the specified date will entitle D&M Creative Limited to release the Client’s Domain Name without any liability for loss suffered by the client howsoever arising.
8.6 Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, D&M Creative Limited shall be entitled forthwith to suspend the provision of Services to the Client;
9.1 If the Client:does not pay the charges in accordance with the provisions of clause 8 of this Contract, or breaks this Contract in any other way; or is subject to bankruptcy or insolvency proceedings;
D&M Creative Limited can (without prejudicing, losing or reducing any other right or remedy) suspend service, including partially, temporarily without notice, albeit the Client remains liable to pay rental during the suspension, or terminate this Contract by immediate notice, without prejudice to D&M Creative Limited’s pre-existing rights;
9.2 Bankruptcy or insolvency proceeding means bankruptcy proceedings or in Scotland sequestration proceedings, becoming insolvent, making any composition or arrangement with creditors or an assignment for their benefit, any execution, distress, diligence or seizure: or if the Client is a company, being the subject of proceedings for the appointment of an administrator, going into liquidation whether voluntary or compulsory (except for the purpose of amalgamation or reconstruction) or having a receiver or administrative receiver of any assets appointed;
9.3 The Client continue to be liable to pay all charges which are due for Service during any period in which the Client do not comply with this Contract;
9.4 On termination of this Agreement or suspension of the Services D&M Creative Limited shall be entitled immediately to block the Client’s Web Site and to remove all data located on it. D&M Creative Limited shall be entitled to delete all such data but D&M Creative Limited may, at our discretion, hold such data for such period as D&M Creative Limited may decide to allow the Client to collect it at the Client’s expense, subject to payment in full of any amounts withstanding and payable to us.
9.5 D&M Creative Limited shall be entitled to post such notice in respect of the non-availability of the Client’s Web Site as D&M Creative Limited think fit;
9.6 D&M Creative Limited shall further be entitled to release the Client’s Domain Name or transfer the Domain Name to a Third Party without any liability for loss suffered by the client howsoever arising.
9.7 If D&M Creative Limited waives a breach of Contract by the Client, that waiver is limited to the particular breach. Any delay by D&M Creative Limited in acting upon a breach is not to be regarded in itself as a waiver.
10. TERMINATION OF SERVICE
10.1 This Contract may be terminated by either party on giving at least 30 days notice to the other expiring on the last day of the minimum Contract term or at any time thereafter. If D&M Creative Limited gives notice the Client shall pay all charges up to the expiry of the notice. If the Client give notice, the Client shall pay all charges until 30 days after the date D&M Creative Limited receives the notice or until expiry of the notice, whichever is the latter. The Client’s notice does not avoid any other liability for Service already provided.
10.2 D&M Creative Limited reserves the right during the minimum Contract term to terminate this Contract by giving to the Client not less than 30 days prior written notice of termination.
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or the Order Form or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting;
12. MATTERS BEYOND D&M CREATIVE LIMITED’S REASONABLE CONTROL
D&M Creative Limited is not liable for any breach of this Contract or liable for any delay or failure in performance of any part of these conditions and its commitments when caused as a result of Force Majeur, war, civil disorder, industrial disputes, inclement weather, acts of local or central government or other competent authorities, and failure by other service providers.
13.1 The Client acknowledge that D&M Creative Limited has no control over the information transmitted via the Service and that D&M Creative Limited does not examine the use to which the Client put the service or the nature of the information the Client are sending or receiving. D&M Creative Limited hereby excludes all liability of any kind for the transmission or reception of information of whatever nature;
13.2 D&M Creative Limited undertakes no liability whatsoever for the acts or omissions of other providers of telecommunication service or for faults in or failures of their apparatus;
13.3 D&M Creative Limited is not in any way liable in Contract or otherwise for loss whether direct or indirect of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or total consequential loss whatsoever.
13.4 D&M Creative Limited makes no warranty as regards to its services or equipment and will not be responsible for any damage allegedly suffered or claimed by the Client for any reason including but not limited to loss of data, wrong or non deliveries and service interruptions.
13.5 All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to subclause 13.6;
13.6 Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence;
13.7 Our total aggregate liability to the Client for any claim in Contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by the Client in respect of the Services which are the subject of any such claim;
13.8 In any event no claim shall be brought unless the Client has notified D&M Creative Limited of the claim within one year of it arising;
The Client shall indemnify D&M Creative Limited and keep D&M Creative Limited indemnified and hold D&M Creative Limited harmless from and against any breach by the Client of these terms of business and any claim brought against D&M Creative Limited by a third party resulting from the provision of Services by D&M Creative Limited to the Client and the Client’s use of the Services and the Server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by D&M Creative Limited in consequences of the Client’s breach or non-observance of this Agreement;
15. INTELLECTUAL PROPERTY RIGHTS
The Client shall take full responsibility for and shall obtain any and all necessary consents and clearances to enable the Client lawfully to make use of all and any intellectual property rights through the Services, including without limitation, clearance and/or consents in respect of the Client’s proposed domain name(s) and in respect of the Content provided to D&M Creative Limited for Web Site Design services.
D&M Creative Limited shall retain the intellectual property rights to the creative design and technical solutions developed for any Client.
The Client may assign all or part of this Contract to any other party only with the prior written agreement of D&M Creative Limited. D&M Creative Limited reserves the right to assign all or part of this Contract at any time to any subsidiary or associate company of D&M Creative Limited.
This Agreement shall be governed by and construed in accordance with English law and the Client hereby submit to the non-exclusive jurisdiction of the English courts.
Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
19. ENTIRE AGREEMENT
These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between D&M Creative Limited relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between D&M Creative Limited in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, the Client have not relied on any representation other than those expressly stated in these terms and conditions and the Client agree that the Client shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.
NOTE: Pornography and sex-related merchandising are PROHIBITED on any D&M Creative Limited server.
NOTE: Spamming, or the sending of unsolicited email, from an D&M Creative Limited server or using an email address that is maintained on an D&M Creative Limited machine is STRICTLY PROHIBITED.