Terms and Conditions
This is the initial version of this document, based on templates supplied by www.simply-docs.co.uk.
Application
These Terms and Conditions, together with any and all other documents referred to herein, shall apply to the use of this website, www.beecheswebdesign.uk (“Our Site”) by our Users, and to the provision of IT Services by Beeches Web Design to our Customers.
In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Customer or otherwise), the former shall prevail unless expressly otherwise agreed by Us in writing.
Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
| “Account” | means an account required for a User to access and/or use certain areas of Our Site, as detailed in Clause 4; |
| “Content” | means any and all text, images, audio, video, scripts, code, software, databases and any other form of information capable of being stored on a computer that appears on, or forms part of, Our Site; |
| “User” | means a user of Our Site; |
| “Customer” | means the person who accepts a quotation or offer of Us for the supply of the Services, or whose order for Services is accepted by Us; |
| “Client Website” | means the website that We may host for You and refers to all parts of that website including, but not limited to, component files and related services such as email; |
| “User Content” | means any content submitted to Our Site by Users including, but not limited to, reviews, comments and testimonials; |
| “Agreement” | means an Invoice, Quotation, Order or Agreement for provision of IT Services entered into by the Customer and Us to which these Terms and Conditions apply; |
| “Business Day” | means, any day on which ordinary banks are open for their full range of normal business in London; |
| “Commencement Date” | means the commencement date for these Terms and Conditions as set out in the Agreement; |
| “Confidential Information” | means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such); |
| “We/Us/Our” | means Beeches Web Design, 50 Blakehall Road, Carshalton SM5 3EZ |
| “Services” | means the services to be provided by Us to the Customer as set out in the Agreement; |
| “Hosting Package” | means one of the website hosting packages described on Our Site and which shall refer to specific features including, but not limited to, tools, facilities, storage limits and duration of service; |
| “Hosting Service” | means, collectively, all components of Our website hosting service as provided to You in accordance with Your chosen Hosting Package; |
| “Software” | means any and all programs, applications, instructions or similar that may from time to time be installed on the Customer’s computer systems or used by Us in the provision of the Service including, but not limited to, that which may be used by You; |
| “Equipment” | means the Equipment listed in the Agreement and shall include all updated or replacement parts and any additional equipment supplied by Us; |
| “Intellectual Property Rights” | means copyright (and related rights), designs, patents, trade marks and any and all other intellectual property rights. This includes all such rights, whether they are registered or unregistered, and the rights to apply for renewals or extensions of those rights (where relevant); |
| “Fees” | means any and all sums payable by the Customer to Us arising out of the performance of Our obligations under these Terms and Conditions; and |
| “Working Hours” | means Our normal working hours which are 09:00 to 21:00. |
Unless the context otherwise requires, each reference in these Terms and Conditions to:
“writing”, and any cognate expression, includes a reference to any any electronic communication whether sent by email, text message, instant message or similar means;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
“these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
a Clause or paragraph is a reference to a Clause of these Terms and Conditions.
a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
Words imparting the singular number shall include the plural and vice versa.
References to any gender shall include the other gender.
Accounts
Certain parts of Our Site (including the ability to purchase services from Us) may require an Account in order to access them.
You may not create an Account if you are under 18 years of age. If you are under 18 years of age and wish to use the parts of Our Site that require an Account, your parent or guardian should create the Account for you and you must only use the Account with their supervision.
When creating an Account, the information you provide must be accurate and complete. If any of your information changes at a later date, it is your responsibility to ensure that your Account is kept up-to-date.
We require that you choose a strong password for your Account. It is your responsibility to keep your password safe. You must not share your Account with anyone else or use anyone else’s Account. If you believe your Account is being used without your permission, please contact Us immediately. We will not be liable for any unauthorised use of your Account.
Any personal information provided in your Account will be collected, used, and held in accordance with your rights and Our obligations under the Data Protection Act 1998, as set out in Clause 38.
If you wish to close your Account, you may do so at any time. Closing your Account will result in the removal of your information. Closing your Account will also remove access to any areas of Our Site requiring an Account for access.
If you close your Account, any User Content, e.g. reviews, comments etc. you have created on Our Site will be anonymised by removing your username and avatar.
Intellectual Property Rights
With the exception of User Content (see Clause 6), all Content included on Our Site and the copyright and other intellectual property rights subsisting in that Content, unless specifically labelled otherwise, belongs to or has been licensed by Us. All Content (including User Content) is protected by applicable United Kingdom and international intellectual property laws and treaties.
Subject to sub-Clauses 5.3 and 5.6 you may not reproduce, copy, distribute, sell, rent, sub-licence, store, or in any other manner re-use Content from Our Site unless given express written permission to do so by Us.
You may:
Access, view and use Our Site in a web browser (including any web browsing capability built into other types of software or app);
Download Our Site (or any part of it) for caching;
Print pages from Our Site;
Download extracts from pages on Our Site; and
Save pages from Our Site for later and/or offline viewing.
Our status as the owner and author of the Content on Our Site (or that of identified licensors, as appropriate) must always be acknowledged.
You may not use any Content saved or downloaded from Our Site for commercial purposes without first obtaining a licence from Us (or our licensors, as appropriate) to do so. This does not prohibit the normal access, viewing and use of Our Site for general information purposes whether by business users or consumers.
Nothing in these Terms and Conditions limits or excludes the provisions of Chapter III of the Copyrights, Designs and Patents Act 1988 ‘Acts Permitted in Relation to Copyright Works’, covering in particular the making of temporary copies; the making of personal copies for private use; research and private study; the making of copies for text and data analysis for non-commercial research; criticism, review, quotation and news reporting; caricature, parody or pastiche; and the incidental inclusion of copyright material.
You shall not acquire any rights in or over any Intellectual Property Rights subsisting in any materials and/or property owned by Us or by any third parties (where, for example, We are using materials under licence). Any materials owned by Us used by You in the normal course of the Hosting Service are used under a non-exclusive licence only to the extent required in order for Us to provide the Hosting Service to You.
We shall not acquire any rights in or over any Intellectual Property Rights subsisting in any materials and/or property owned by You or by any third parties (where, for example, You are using materials under licence) including, but not limited to, Your Client Website. Any such rights are used under a non-exclusive licence only to the extent required in order for Us to provide the Hosting Service to You.
You hereby agree to fully indemnify Us against all costs, expenses, liabilities, losses, damages, claims and judgments that We may incur or be subject to as a result of the infringement of any Intellectual Property Rights arising out of Your failure to obtain the necessary rights and permissions from third parties with respect to any materials used by You as hosted by Us under a Website Hosting Agreement.
User Content
User Content on Our Site includes (but is not necessarily limited to) reviews, comments and testimonials.
You agree that you will be solely responsible for your User Content. Specifically, you agree, represent and warrant that you have the right to submit the User Content and that all such User Content will comply with Our Acceptable Usage Policy, detailed below in Clause 11.
You agree that you will be liable to Us and will, to the fullest extent permissible by law, indemnify Us for any breach of the warranties given by you under sub-Clause 6.2. You will be responsible for any loss or damage suffered by Us as a result of such breach.
You (or your licensors, as appropriate) retain ownership of your User Content and all intellectual property rights subsisting therein. When you submit User Content you grant Us an unconditional, non-exclusive, fully transferrable, royalty-free, perpetual, worldwide licence to use, store, archive, syndicate, publish, transmit, adapt, edit, reproduce, distribute, prepare derivative works from, display, perform and sub-licence your User Content for the purposes of operating and promoting Our Site. In addition, you also grant Other Users the right to copy and quote your User Content within Our Site.
If you wish to remove User Content from Our Site, the User Content in question will be anonymised by removing your username and avatar. Please note, however, that caching or references to your User Content may not be made immediately unavailable (or may not be made unavailable at all where they are outside of Our reasonable control).
We may reject, reclassify, or remove any User Content from Our Site where, in Our sole opinion, it violates Our Acceptable Usage Policy, or If We receive a complaint from a third party and determine that the User Content in question should be removed as a result.
Links to and from Our Site
You may link to Our Site provided that:
You do so in a fair and legal manner;
You do not do so in a manner that suggests any form of association, endorsement or approval on Our part where none exists;
You do not use any logos or trade marks displayed on Our Site without Our express written permission; and
You do not do so in a way that is calculated to damage Our reputation or to take unfair advantage of it.
You may link to any page of Our Site provided you comply with the remainder of this Clause 7.
Framing or embedding of Our Site on other websites is not permitted without Our express written permission. Please contact Us at www.beecheswebdesign.uk/contact for further information.
You may not link to Our Site from any other site the main content of which contains material that:
is obscene, deliberately offensive, hateful or otherwise inflammatory;
promotes violence;
promotes or assists in any form of unlawful activity;
discriminates against, or is in any way defamatory of, any person, group or class of persons, race, sex, religion, nationality, disability, sexual orientation, or age;
is intended or is otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
is calculated or is otherwise likely to deceive another person;
is intended or is otherwise likely to infringe (or to threaten to infringe) another person’s privacy;
misleadingly impersonates any person or otherwise misrepresents the identity or affiliation of a particular person in a way that is calculated to deceive (obvious parodies are not included in this definition provided that they do not fall within any of the other provisions of this sub-Clause 7.4);
implies any form of affiliation with Us where none exists;
infringes, or assists in the infringement of, the intellectual property rights (including, but not limited to, copyright, trade marks and database rights) of any other party; or
is made in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence.
Please note that the content criteria described under sub-Clause 7.4 apply only to content over which the owner and/or operator of the site in question has direct control. You will not, therefore, be in breach of these Terms and Conditions if, for example, other users of a site on which you establish a link to Our Site post content (such as comments) that violates the above criteria.
Links to other sites may be included on Our Site. Unless expressly stated, these sites are not under Our control. We neither assume nor accept responsibility or liability for the content of third party sites. The inclusion of a link to another site on Our Site is for information only and does not imply any endorsement of the sites themselves or of those in control of them.
Disclaimers for Our Site
Access to Our Site is provided “as is” and on an “as available” basis. We may alter, suspend or discontinue Our Site (or any part of it) at any time and without notice. We will not be liable to you in any way if Our Site (or any part of it) is unavailable at any time and for any period.
The Content on Our Site does not constitute advice on which you should rely. It is provided for general information purposes only.
We make no representation, warranty, or guarantee that Our Site will meet your requirements, that it will not infringe the rights of third parties, that it will be compatible with all software and hardware, or that it will be secure. If, as a result of Our failure to exercise reasonable care and skill, any digital content from Our Site damages your device or other digital content belonging to you, you may be entitled to certain legal remedies. For more details concerning your rights and remedies as a consumer, please contact your local Citizens Advice Bureau or Trading Standards Office.
We make reasonable efforts to ensure that the Content on Our Site is complete, accurate, and up-to-date. We do not, however, make any representations, warranties or guarantees (whether express or implied) that the Content is complete, accurate, or up-to-date. Please note that this exception does not apply to information concerning services for sale through Our Site.
Our Liability for Our Site
To the fullest extent permissible by law, We accept no liability to any User for any loss or damage, whether foreseeable or otherwise, in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the use of (or inability to use) Our Site or the use of or reliance upon any Content included on Our Site.
To the fullest extent permissible by law, We exclude all representations, warranties, and guarantees (whether express or implied) that may apply to Our Site or any Content included on Our Site.
If you are a commercial User, We accept no liability for loss of profits, sales, business or revenue; loss of business opportunity, goodwill or reputation; loss of anticipated savings; business interruption; or for any indirect or consequential loss or damage.
We exercise all reasonable skill and care to ensure that Our Site is free from viruses and other malware, however, subject to sub-Clause 8.3, We accept no liability for any loss or damage resulting from a virus or other malware, a distributed denial of service attack, or other harmful material or event that may adversely affect your hardware, software, data or other material that occurs as a result of your use of Our Site (including the downloading of any Content from it) or any other site referred to on Our Site.
We neither assume nor accept responsibility or liability arising out of any disruption or non-availability of Our Site resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, natural events, acts of war, or legal restrictions and censorship.
Nothing in these Terms and Conditions excludes or restricts Our liability for fraud or fraudulent misrepresentation, for death or personal injury resulting from negligence, or for any other forms of liability which cannot be excluded or restricted by law. For full details of consumers’ legal rights, including those relating to digital content, please contact your local Citizens’ Advice Bureau or Trading Standards Office.
Viruses, Malware and Security
We exercise all reasonable skill and care to ensure that Our Site is secure and free from viruses and other malware. We do not, however, guarantee that Our Site is secure or free from viruses or other malware and accept no liability in respect of the same, as detailed in sub-Clause 9.4.
You are responsible for protecting your hardware, software, data and other material from viruses, malware, and other internet security risks.
You must not deliberately introduce viruses or other malware, or any other material which is malicious or technologically harmful either to or via Our Site.
You must not attempt to gain unauthorised access to any part of Our Site, the server on which Our Site is stored, or any other server, computer, or database connected to Our Site.
You must not attack Our Site by means of a denial of service attack, a distributed denial of service attack, or by any other means.
By breaching the provisions of sub-Clauses 10.3 to 10.5 you may be committing a criminal offence under the Computer Misuse Act 1990. Any such breaches may be reported to the relevant law enforcement authorities and We will cooperate fully with those authorities by disclosing your identity to them. Your right to use Our Site will cease immediately in the event of such a breach.
Acceptable Usage Policy
You may only use Our Site in a manner that is lawful and that complies with the provisions of this Clause 11. Specifically:
you must not use Our Site in any way, or for any purpose, that is unlawful or fraudulent;
you must not use Our Site to knowingly send, upload, or in any other way transmit data that contains any form of virus or other malware, or any other code designed to adversely affect computer hardware, software, or data of any kind; and
you must not use Our Site in any way, or for any purpose, that is intended to harm any person or persons in any way.
When submitting User Content (or communicating in any other way using Our Site), you must not submit, communicate or otherwise do anything that:
is obscene, deliberately offensive, hateful or otherwise inflammatory;
promotes violence;
promotes or assists in any form of unlawful activity;
discriminates against, or is in any way defamatory of, any person, group or class of persons, race, sex, religion, nationality, disability, sexual orientation or age;
is intended or otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
is calculated or is otherwise likely to deceive;
is intended or otherwise likely to infringe (or threaten to infringe) another person’s right to privacy;
misleadingly impersonates any person or otherwise misrepresents your identity or affiliation in a way that is calculated to deceive (obvious parodies are not included within this definition provided that they do not fall within any of the other provisions of this sub-Clause 11.2);
implies any form of affiliation with Us where none exists;
infringes, or assists in the infringement of, the intellectual property rights (including, but not limited to, copyright, patents, trade marks and database rights) of any other party; or
is in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence.
We reserve the right to suspend or terminate your access to Our Site if you materially breach the provisions of this Clause 11 or any of the other provisions of these Terms and Conditions. Specifically, We may take one or more of the following actions:
suspend, whether temporarily or permanently, your Account and/or your right to access Our Site;
remove any User Content submitted by you that violates this Acceptable Usage Policy;
issue you with a written warning;
take legal proceedings against you for reimbursement of any and all relevant costs on an indemnity basis resulting from your breach;
take further legal action against you as appropriate;
disclose such information to law enforcement authorities as required or as We deem reasonably necessary; and/or
any other actions which We deem reasonably appropriate (and lawful).
We hereby exclude any and all liability arising out of any actions (including, but not limited to those set out above) that We may take in response to breaches of these Terms and Conditions.
Privacy and Cookies
Use of Our Site is also governed by our Privacy Policy, available from www.beecheswebdesign.uk/privacy. This policy is incorporated into these Terms and Conditions by this reference.
IT Service Provider’s Obligations
With effect from the Commencement Date we shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the Services expressly identified in the Agreement, or otherwise agreed under these Terms and Conditions.
We will use reasonable care and skill to perform the Services identified in the Agreement or otherwise agreed under these Terms and Conditions.
We will, subject to Clause 14, use reasonable endeavours to maintain the functionality of any Software which may be installed or otherwise operative on the Customer’s Equipment and undertake to re-install any Software which may have been corrupted or otherwise made unavailable due to hardware failure and to render such technical assistance as may be necessary to secure the satisfactory operation of the Equipment and Software.
Upon receipt of the Customer’s request for support or rectification of a defect, We shall (subject to our then current commitments) carry out all Services as specified in the Agreement during Working Hours until all required work is completed to the reasonable satisfaction of the Customer.
We will not guarantee the performance of any Software which we have undertaken to re-install under sub-Clause 13.3.
We shall use all reasonable endeavours to complete our obligations under the Agreement. The Parties agree that time will not be of the essence in the performance of these obligations.
IT Services Customer’s Obligations
The Customer shall:
allow Us access to the Equipment and all relevant Software for investigation purposes;
provide adequate working space and facilities for Our staff; and
co-operate with them in the diagnosis of any defect or malfunction in the Equipment or Software.
The Customer shall allow Us the use of any Equipment, computer systems, peripherals or other hardware necessary to enable us to provide the Services and shall be responsible for procuring, installing and maintaining all communications media not supplied by Us.
The Customer will not allow any changes or modifications to the Software to be made by any party other than those authorised by Us. If such changes or modifications are carried out without authorisation or appropriate notification, we reserve the right to review these Terms and Conditions and make adjustments accordingly.
The Customer will make freely available to Us all documentation associated with the Equipment, working documents, original Software installation media, current data backups, Equipment and any other relevant hardware for the efficient maintenance of the Equipment and the Software.
The Customer shall create regular data backups in such a manner as to minimise any potential data loss and to ensure that these are made available to Us as required.
The Customer shall take all reasonable precautions to ensure the safety and health of Our personnel while such personnel are at the Customer’s premises.
Liability for Provision of IT Services
The Customer shall indemnify Us against all damages, costs, claims and expenses suffered by Us arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agents or employees.
Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
We shall not be liable to the Customer or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of Our obligations if the delay or failure was due to any cause beyond Our reasonable control.
If We fail to perform the Services with care and skill we will carry out remedial action at no extra cost to the Customer.
Website Hosting Service
Provision of the Hosting Service shall commence on the date specified in the Agreement.
We are under no obligation to provide any services that do not form a part of Your chosen Hosting Package unless You upgrade Your Hosting Package, where available, or unless both Parties enter into a separate written agreement for the provision of additional services.
We may, at Our sole discretion, alter, improve or otherwise modify the Hosting Service provided that any such change will not alter the Hosting Service received by You to Your material disadvantage (which would include, but not be limited to, the removal of features from Hosting Packages). You will be notified no later than seven Business Days in advance of any planned changes and shall receive full details of any action required on Your part. No alterations to the Service will affect the Fee payable by You.
Notwithstanding the provisions of sub-Clause 16.3 We may take any action necessary to diagnose and/or rectify faults in the Hosting Software without any prior notice to You. If such diagnosis or rectification results in an interruption to the provision of the Service, You will be notified in accordance with the provisions of Clause 17.
Availability of Website Hosting Service
We will use reasonable endeavours to ensure that the Hosting Service is provided to You on a constant, uninterrupted basis throughout the duration of Your chosen Hosting Package.
Notwithstanding sub-Clause 17.1, We shall not be liable for downtime or interruptions to the Hosting Service where such downtime or interruptions last for no more than 24 hours.
Where the Hosting Service is unavailable for more than 24 hours We will contact You and shall provide details of the interruption including, but not limited to the cause. If this is not possible due to an undiagnosed problem, We will, at a minimum, inform You that the problem is being investigated.
Where Hosting Service interruption cannot be remedied within 48 hours We will transfer Your Client Website to alternative Hosting in order to restore the provision of the Hosting Service or, where this is not possible, notwithstanding sub-Clause 18.1.1, from the end of the initial 24 hour period of Hosting Service interruption, keep a record of the number of whole days of Service interruption. Upon restoration of the Service, any partial days shall be rounded up and We will reimburse You for the interrupted period. Such reimbursement shall be calculated on a pro-rata basis and shall be paid to You within 30 days. We acknowledge that this is an appropriate remedy in view of Your legitimate commercial interest in Hosting Service interruption being avoided or minimised.
Where the provision of the Hosting Service is interrupted through the fault of any third party, We shall bear no responsibility or liability.
Limitation of Our Liability for Website Hosting Services
Subject to the provisions of sub-Clause 17.4 and the remainder of this Clause 18, and to the fullest extent permitted by law, We shall not be liable to You or to any third party, whether in contract or tort (including negligence) for any loss or damage, direct or indirect, whether foreseeable or otherwise (including any indirect, consequential, special or exemplary damages) arising from:
interruptions or downtime to the Hosting Service;
any damage, loss or corruption of data (including, but not limited to, Your Client Website or any part thereof);
any incompatibility, whether of the Hosting Software or Your Client Website with any of Your own equipment (or that of any third party);
any inability, on Your part, to use the Hosting Service (including, but not limited to, failure to follow reasonable instructions provided by Us);
the loss of confidentiality caused by the storage of information on the internet (this does not refer to the mutual confidentiality obligations of the Parties under Clause 28).
Nothing in these Terms and Conditions shall exclude Our liability for death or personal injury resulting from Our negligence or that of Our employees or agents.
Nothing in these Terms and Conditions shall exclude Our liability for fraud or fraudulent misrepresentation.
Nothing in these Terms and Conditions excludes or restricts Our liability for any loss resulting from Our failure to use reasonable skill and care, from Our gross negligence, or from Our wilful misconduct.
Your Obligations and Undertakings for Website Hosting Services
You may not use the Hosting Service (including, but not limited to, the Hosting Software) for any unlawful or otherwise inappropriate purposes. This includes, but is not limited to:
Distribution of computer viruses, malware, spyware or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent;
Distribution of pirated material including, but not limited to, software, videos, music and written works; and
Distribution of illegal material including that which is abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities.
You may not use Your Client Website to link to any other websites or systems hosting any material described above in sub-Clause 19.1.
You undertake to monitor and supervise any and all third party activity on Your Client Website (including, but not limited to, the submission of material by users and the use of communication systems such as forums). Any third party activity that may fall within the provisions of sub-Clause 7.1 must be stopped or removed, as appropriate.
You undertake to ensure that any and all personal information collected through Your Client Website is gathered, processed and held in accordance with the relevant provisions of the Data Protection Act 1998.
You undertake to ensure that any and all e-commerce conducted through Your Client Website complies with all relevant laws in force at the relevant time including, but not limited to, the Distance Selling Regulations 2000 and the EU E-Commerce Directive 2000.
You shall be responsible for all activity relating to Your Client Website.
You must use reasonable endeavours to ensure that We are furnished with any information reasonably required to provide the Service in a timely manner.
Your Use of Hosting Software and Licence
Your use of any and all Hosting Software that We may from time to time provide including, but not limited to, the control panel, content management system, plugins, apps, webmail, booking and eCommerce systems, is under a non-exclusive licence and may be used only in accordance with these Terms and Conditions and only for the duration of the Service. You shall not gain any form of ownership rights over any Hosting Software or the Intellectual Property Rights therein.
Where We provide access to third party software (which, for the purposes of these Terms and Conditions, falls within the definition of “Hosting Software”) You agree to be bound by any licence agreements relating to such software upon Your first use of that software.
You may not under any circumstances:
attempt to copy any Hosting Software;
attempt to reverse-engineer, decompile, disassemble or in any other manner derive source code from any Hosting Software;
write or otherwise create any derivative software that is based in whole or in part on any Hosting Software; or
sell, lease, transfer, sub-licence, or in any other way treat any Hosting Software as Your property.
Warranty Disclaimer
Subject to the provisions of these Terms and Conditions, We give no further warranty, express or implied, in connection with the Hosting Service as to fitness for purpose, quality, non-infringement or merchantability.
Your Indemnity
You shall fully indemnify Us against all costs, expenses, liabilities, losses, damages and judgments that We may incur or be subject to as a result of any of the following:
Your misuse of the Hosting Service;
Your breach of these Terms and Conditions;
Your negligence or other act of default;
The activities of third parties conducted on or through Your Client Website.
Fees
The Customer agrees to pay the Fees in accordance with Clause 24 and the Agreement.
We are free, at any time, to change the price of Our services (including, but not limited to, any Hosting Package chosen by You). You will not be subject to any additional charges during a period of Service Provision for which You have already paid resulting from a price increase, nor to any refunds resulting from a price decrease. Any changes in Fees due shall be reflected in subsequent renewals only. We reserve the right to continue charging old prices for renewals.
We shall be entitled to recover from the Customer our reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
The Customer shall pay Us for any additional services provided by Us that are not specified in the Agreement in accordance with Our hourly rate in effect at the time of the performance or such other rate as may be agreed. Any such charge for additional services shall be invoiced separately from any Fees due under the Agreement.
All sums payable by either Party pursuant to these Terms and Conditions are exclusive of any value added or other tax or other taxes on profit, for which that Party shall be additionally liable.
Payment
All payments required to be made pursuant to these Terms and Conditions by either Party shall be made within 30 days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
The time of payment shall be of the essence of these terms and conditions. If the Customer fails to make any payment on the due date in respect of any sum due under these Terms and Conditions then We shall have the right to charge the Customer reasonable interest on any sum outstanding from the due date for payment until the date on which the payment is received.
Variation and Amendments
If the Customer wishes to vary any details of the Agreement it must notify Us in writing as soon as is reasonably possible. We shall use all reasonable endeavours to make any required changes and any additional costs thereby incurred shall be separately invoiced to the Customer.
If, due to circumstances beyond the Our control, we have to make any change in the arrangements relating to the provision of the Services we shall notify the Customer forthwith. We shall endeavour to keep such changes to a minimum and shall seek to offer the Customer arrangements as close to the original arrangements as is reasonably possible in the circumstances.
Termination
We may terminate the Agreement forthwith if:
the Customer is in breach of any of its obligations hereunder;
the Customer has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets;
the Customer has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986;
the Customer ceases or threatens to cease to carry on business; or
any circumstances whatsoever beyond Our reasonable control necessitate and justify the Termination of the Services.
In the event of Termination under clause 26.1 we shall retain any sums already paid to Us by the Customer without prejudice to any other rights may have whether at law or otherwise.
The initial period of Hosting Service provision shall commence on the date that Your Order is submitted and all Fees due under Clause 23 are paid. This period shall last for the duration specified in Your chosen Hosting Package, subject to any provisions in these Terms and Conditions to the contrary (including, but not limited to, this Clause 26).
Subsequent periods of Hosting Service provision shall last for the duration specified in Your chosen Hosting Package and shall follow on from a previous period, without interruption, subject to Your fulfilment of the payment obligations set out in Clause 23. All subsequent periods of Service provision shall remain subject to these Terms and Conditions unless expressly stated otherwise.
Either Party may immediately terminate the Hosting Agreement by giving written notice to the other Party if:
any sum owing to that Party by the other Party under these Terms and Conditions is not paid within 30 Business Days of the due date for payment;
the other Party commits any other breach of any of these Terms and Conditions and, if the breach is capable of remedy, fails to remedy it within 7 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under these Terms and Conditions);
anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
that other Party ceases, or threatens to cease, to carry on business; or
control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of the Contract. For the purposes of this Clause 26, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
For the purposes of sub-Clause 26.5.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
You shall have the additional right to request the early cancellation and termination of the Hosting Service and of the Agreement (i.e. before a period of Hosting Service provision is complete) by written notice of 1 month. Such notice should include Your username and email address. The following shall apply to such early termination:
The issuing of refunds is at Our sole discretion.
If You wish to terminate during the course of a period of Hosting Service provision, the Hosting Service shall end 1 month after We receive Your notice. Refunds shall be proportionate to the remainder of the period of Hosting Service provision active at the time. Refunds shall be issued within 30 days.
If You send Us a termination notice under sub-Clause 26.5 in error or change Your mind, We must be informed of this within 7 days of that notice that You wish that Your Account be reinstated. Any notification outside of this period shall require a new Account to be set up and You shall be required to pay for a full period of Hosting Service provision, as specified in Your chosen Hosting Package. The reinstatement of Accounts requires the payment of a reactivation fee of £10 in addition to the repayment of any Fees that were refunded to You by Us when completing your early cancellation.
The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
Effects of Termination
Upon the termination of the Agreement for any reason:
We shall ensure the complete and secure removal of Your Client Website and all related material;
any sum owing by either Party to the other under these Terms and Conditions shall become immediately due and payable;
all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain In full force and effect;
termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of these Terms and Conditions which exist at or before the date of termination;
subject as provided in this Clause 27 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
each Party shall (except to the extent referred to in Clause 28) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
Confidentiality
During the term of the Agreement, the following obligations shall apply to the Party disclosing Confidential Information (‘the Disclosing Party’) to the other Party (‘the Receiving Party’).
Subject to sub-Clause 28.3, the Receiving Party:
may not use any Confidential Information for any purpose other than the performance of his obligations under these Terms and Conditions;may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and
shall make every effort to prevent the use or disclosure of the Confidential Information.
The obligations of confidence referred to in the provisions of this Clause shall not apply to any Confidential Information that:
is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain before its receipt by the Receiving Party;
is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
is required to be disclosed by any applicable law or regulation;
is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other Party to these Terms and Conditions in respect of it and who imposes no obligations of confidence upon the Receiving Party.
Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled.
The obligations of the Parties under the provisions of this clause shall survive the expiry or the termination of the Agreement for whatever reason.
Sub-Contracting and Assignment
We may sub-contract to third parties all or any part of the work to be performed hereunder.
The Customer shall not assign to a third party any or all of its rights or obligations under these Terms and Conditions without Our prior written consent.
Force Majeure
Neither Party to these Terms and Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
In the event that either Party cannot perform their obligations thereunder as a result of force majeure for a continuous period of 48 hours, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Service provision up to the date of termination or, where payment has been made in advance, a fair and reasonable reimbursement for Service provision not received.
Waiver
No waiver by Us of any breach of these Terms and Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given.
No failure or delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
Relationship of the Parties
Nothing in these Terms and Conditions shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in these Terms and Conditions.
Third Party Rights
No part of these Terms and Conditions is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply.
Subject to this Clause 33 the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
Severance
If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
Notices
All notices under these Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address or e-mail address notified to the other Party.
Service of any document for the purposes of any legal proceedings concerning or arising out of these Terms and Conditions shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.
Changes to these Terms and Conditions
We may alter these Terms and Conditions at any time. If We do so, details of the changes will be highlighted at the top of this page. Any such changes will become binding on you upon your first use of Our Site after the changes have been implemented. You are therefore advised to check this page from time to time.
In the event of any conflict between the current version of these Terms and Conditions and any previous version(s), the provisions current and in effect shall prevail unless it is expressly stated otherwise.
Communications from Us
If We have your contact details, We may from time to time send you important notices by email. Such notices may relate to matters including, but not limited to, service changes and changes to these Terms and Conditions.
We will never send you marketing emails of any kind without your express consent. If you do give such consent, you may opt out at any time. Any and all marketing emails sent by Us include an unsubscribe link. If you opt out of receiving emails from Us at any time, it may take up to two business days for your new preferences to take effect.
For questions or complaints about communications from Us (including, but not limited to marketing emails), please contact Us at www.beecheswebdesign.uk/contact.
Data Protection
Any and all personal information that We may collect will be collected, used and held in accordance with the provisions of the Data Protection Act 1998 and your rights and Our obligations under that Act.
We may use your personal information to:
Reply to any communications you send to Us;
Send you important notices, as detailed in Clause 35;
Remind you that an Agreement is due to expire or requires action;
Inform you about Service interruptions or problems; or
Send you newsletters, updates or other information you have opted-in to;
We will not pass on your personal information to any third parties.
Law and Jurisdiction
These Terms and Conditions shall be governed by the laws of England and Wales.
Any dispute between the Parties relating to these Terms and Conditions shall fall within the jurisdiction of the courts of England and Wales.