Terms and Conditions
These terms and conditions are the only terms and conditions on which "EMNET" is willing to deal with "the Customer".
1. Interpretation
1.1 In this Agreement, unless the context otherwise requires:-
"Agreement" means the contract between EMNET and the Customer incorporating these terms and conditions and the Services Schedule.
"Charges" means the charges payable by the Customer to EMNET in respect of the Services, as set out in the Services Schedule.
"Customer" means the person or organisation named on the Service Schedule.
"EMNET" means EMNET Solutions Ltd.
"the Internet" means the global data network comprising interconnected networks using TCP/IP ("Transmission Control Protocol/Internet 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 or standards as appropriate.
"Services" means the services to be provided by EMNET including Internet access, web site design and hosting, promotion and domain name registration as set out on the Service Schedule.
"the Services Schedule" means the Schedule attached to these terms and conditions setting out the particular aspects of the Services to be provided to the Customer.
"Web Site" means a site at which text, graphics, data, files and information are stored electronically and made available to third parties via the Internet.
1.2 Words in the singular shall include the plural and vice versa, and words importing the masculine shall include the feminine and vice versa.
1.3 The headings in this Agreement are for convenience only and shall not affect the construction of the Agreement.
1.4 These terms and conditions (together with the matters referred to in the Services Schedule and any specification agreed by the parties) embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications. These terms and conditions may only be modified by a variation in writing signed by a Director of EMNET. This condition shall not exclude any liability in respect of any statement made fraudulently by either party prior to the date of the Contract.
1.5 The employees and agents of EMNET are not authorised to make any representations concerning the Services unless confirmed by EMNET in writing. In entering into this Agreement the Customer acknowledges that it does not rely on any such representations, which are not so confirmed.
2. Customer pre-requisites
EMNET can only provide the Services if the Customer has:-
2.1 computer hardware and systems that comply with EMNET's minimum specification requirements as notified to the Customer from time to time;
2.2 a fixed telecommunications link or dial-up facilities via the public telecommunications network. Such telecommunication services must be arranged and paid for by the Customer and cannot be provided by EMNET;
2.3 paid the Charges;
2.4 agreed to these terms and conditions.
3. The Services
3.1 Subject to payment of the Charges, EMNET shall provide those aspects of Service indicated on the Service Schedule.
3.2 EMNET will use its reasonable endeavours to meet any date proposed by the Customer or EMNET for the provision of the Services, but such dates are estimates only and time shall not be of the essence in respect of the provision of the Services.
3.3 The Services will include the following ongoing maintenance Services:-
3.3.1 reasonable telephone support to assist in the setting up of the Services;
3.3.2 the provision of any user names and passwords necessary for the use by the Customer of the Services together with one reminder per annum if requested by the Customer;
3.3.3 reasonable telephone support to correct errors in the Services arising due to matters outside of the Customer's control.
3.4 Unless otherwise agreed the Services do not include the following:-
3.4.1 attendance at the Customer's premises by an EMNET employee;
3.4.2 the cost of any modification or alterations to the Customer's computer hardware or systems required to permit the provision of the Services;
3.4.3 any additional work required, if the Customer changes its computer hardware or systems, to permit the continued use of the Services or any part of it;
3.4.4 the correction of any errors in the Services arising as a result of alterations or modifications to or misuse of the Services by the Customer;
3.4.5 the provision of reminders of the Customer's user name and password over and above that covered by clause 3.3.2
and EMNET reserves the right to charge the Customer for any such additional Services provided at its then prevailing charge out rate.
4. Internet Access
Where the Customer contracts for Internet Access, EMNET shall, subject to payment of the Charges, provide the Customer with access to the Internet via EMNET's server and equipment.
5. Web Site Design
5.1 Where EMNET designs and develops a Web Site on behalf of the Customer, EMNET shall do so in accordance with the specification agreed with the Customer. Once agreed, the specification may only be changed with the prior written agreement of EMNET and the Customer. EMNET reserves the right to levy an additional charge in respect of extra work undertaken as a result of any requested charge to the specification.
5.1.1 All Web Sites designed and developed by EMNET will incorporate a 'Website by EMNET' hyperlink within the site footer linking to our own Web Site, unless otherwise agreed in writing with the Customer.
5.2 Where the Customer designs its own Web Site:-
5.2.1 The Customer shall provide EMNET with material and data in such form as may be required by EMNET to host the Web Site. The Customer shall upload such material and data to EMNET's server using the dial-up connection provided by EMNET.
5.2.2 The Customer may access and amend its Web Site using the dial-up connection. The dial up connection to EMNET's server is provided solely to permit the Customer to access its own Web Site. The Customer shall not use the dial-up connection to access or attempt to access any other part of EMNET's server (including but not limited to any web pages of another customer). If the Customer accesses any such other part by accident or error, it shall forthwith notify EMNET.
5.2.3 It is the Customer's responsibility to keep back-up copies of its Web Site. EMNET cannot accept any liability for any costs or losses incurred by the Customer arising directly or indirectly from the loss or destruction of any Web Site in whole or part.
5.3 If the Customer's Web Site amounts to a breach of any of the terms and conditions applicable to it then EMNET may in its absolute discretion amend any part of the Web Site to remedy such breach, suspend access to the Web Site, or terminate the Services in accordance with the provisions of these terms and conditions.
5.4 The Customer hereby authorises EMNET to publish on the Internet all material supplied or authorised by the Customer for inclusion on the Customer's Web Site. The Customer grants EMNET a licence to use any trade marks of the Customer required for inclusion in the Customer's Web Site.
5.5 The copyright, patent, and other intellectual property rights (IPR) directly or indirectly in connection with the design and development by EMNET shall vest in EMNET. EMNET reserves the right to use the Customer's Web Site for promotional purposes provided that EMNET shall notify the Customer of any such use.
6. Web Site Hosting
6.1 Subject to the Customer paying the Charges, EMNET shall install the Customer's Web Site on its server and make the Web Site available to the public via a connection to the Internet.
6.2 EMNET gives no warranty that access to its server and the Customer's Web Site shall be uninterrupted or error-free.
6.3 In the event that access to the Customer's Web Site exceeds the permitted bandwidth or storage allocation (as notified by EMNET on its technical specification from time to time in force) EMNET shall be entitled, in its absolute discretion, to suspend access to the Customer's Web Site, move the Web Site to a different server and/or increase the charges.
6.4 Notwithstanding any other provision of this Agreement, EMNET shall be entitled without notice and at any time to change the bandwidth or storage allocation, or make any other change to the Services required to comply with any safety, security or other applicable legal requirements, or which do not materially affect the quality or nature of the Services.
7. Domain Names
7.1 Where the Customer contracts for domain name registration, EMNET shall endeavour to procure the registration of such domain name as the Customer requests in writing. EMNET shall not be liable in the event that the relevant domain name regulatory authority refuses to register such domain name, or suspends or revokes any registration. EMNET shall not act as agent for or on behalf of the Customer in any dealings with regulatory authorities.
7.2 EMNET shall have absolute discretion to require the Customer to select a replacement domain name and may suspend the Services if, in EMNET's opinion, there are reasonable grounds for EMNET to believe that the Customer's current choice of name is, may, or is likely to be, in breach of the provisions of these terms and conditions.
7.3 Any Internet Protocol address allocated by EMNET to the Customer shall at all times remain the sole property of EMNET and the Customer shall have a non-transferable licence to use such address for the duration of this Agreement. In the event of the termination of this Agreement for whatever reason, the Customer's licence to use the Internet Protocol address shall automatically terminate and thereafter the Customer shall not use such address.
7.4 Where the Customer requests that an Internet Protocol address be permanently allocated to it, then EMNET shall be entitled to levy an additional charge at its then prevailing rates. On the payment of such charge the Internet Protocol address so allocated shall become the property of the Customer, and Customer shall be entitled to retain it on the termination of this Agreement.
7.5 The Customer confirms and warrants that:-
7.5.1 it is the legal owner of the name supplied for use as a domain name (or has the authority of the legal owner to use the name);
7.5.2 that the use of its name does not infringe the rights of any third party;
7.5.3 that it is the owner of any trade mark in its name (or has the authority of the owner of any trade mark to use that name).
8. Promotion
Where the Customer contracts for promotional Services:-
8.1 EMNET shall use its reasonable endeavours to promote the Customer's Web Site, including but not limited to notifying such Internet search engines as EMNET sees fit of the Internet address and content of the Customer's Web Site; and
8.2 EMNET shall review and keep under review the Customer's Web Site and provide such updates and alteration as it sees fit or as requested by the Customer from time to time.
9. Improper Use
9.1 The Customer acknowledges that it may only use the Services for lawful purposes. The Customer shall not use the Services knowingly or recklessly:-
9.1.1 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;
9.1.2 to cause annoyance, inconvenience or needless anxiety;
9.1.3 in breach of instructions EMNET has given under sub-clause 12.3;
9.1.4 to transmit any electronic material (including viruses) which may or is likely to cause detriment or harm to computer systems owned by EMNET or other Internet users; or
9.1.5 other than in conformance with the acceptable use policies of any connected networks and the Internet Standards.
9.2 The Services are provided to the Customer for the exclusive use of the Customer and its lawful employees and agents. The Customer shall not permit any other person to use the Services.
9.3 Any breach of this clause by the Customer shall entitle EMNET to terminate the Services under clause 10.4.
10. Term and Termination
10.1 The Services shall be provided to the Customer by EMNET from the date when EMNET advise the Customer that the Services are ready until such time as the Services are terminated as set out in this Agreement.
10.2 Where the Customer opts for an annual term, the Customer shall subscribe for a minimum period of twelve months.
10.3 Following the expiry of any minimum term, and in any other case, either party may terminate the Services on giving one months prior written notice to the other.
10.4 If the Customer:-
10.4.1 does not pay any Charge within 28 days of it falling due; or
10.4.2 breaches this Agreement in any other way and (in the case of a breach capable of remedy) fails to remedy the breach within 30 days of receipt of a written notice from EMNET to do so; or
10.4.3 is subject to 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 Customer is a company, being the subject of proceedings for this 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; or
10.4.4 provides EMNET with any false, inaccurate or misleading information for the purpose of obtaining the Services and/or the EMNET Equipment; or
10.4.5 is suspected, in EMNET's reasonable opinion, of involvement with fraud or attempted fraud or any other criminal offence in connection with the use of Services;
then EMNET shall be entitled, in its absolute discretion either to terminate this Agreement forthwith on giving notice to the Customer, or (without losing or reducing any other right or remedy) to suspend the Services (or any part of them) temporarily.
10.5 If the Customer gives notice of termination, then the Customer shall remain liable for 1) A termination charge of £100.00 ; 2) the Charges due until 30 days after the date when EMNET receives the notice, or the expiry of the notice, whichever is the later, provided that where any notice is served prior to the expiry of any minimum period of the Services the Customer shall remain liable for the Charges due until the end of that period. In any event, Charges due in respect of the Services provided prior to termination shall remain due and payable. If the Customer has paid to EMNET any amount in excess of amounts due in respect of Charges, EMNET shall refund any such sums to the Customer within 30 days from the date when the Services actually terminate.
10.6 The Customer continues to be liable to pay all Charges which are due for the Services during any period in which the Customer does not comply with this Agreement.
10.7 If EMNET waives a breach of contract by the Customer, that waiver is limited to the particular breach. EMNET's delay in acting upon a breach is not to be regarded in itself as a waiver.
11. Charges
11.1 The Charges for the Services are as set out on the Services Schedule. The Customer shall pay the Charges on the due dates as shown on the Services Schedule.
11.2 If EMNET, at the request of the Customer, provides Services to the Customer over and above those provided for in the Services Schedule, then EMNET reserves the right to charge the Customer for those additional Services at EMNET's then prevailing charge out rate.
11.3 Subject to any provision of this Agreement, liability for Charges shall commence, unless EMNET notifies the Customer to the contrary, with effect from the day on which EMNET first makes the Services available to the Customer.
11.4 EMNET may charge interest on any and all outstanding amounts until it receives payment in full at a rate equal to 4 per cent per annum above the base lending rate of the National Westminster Bank Plc, whether before or after judgement. Interest shall continue to accrue notwithstanding termination of this Agreement for any reason whatsoever. EMNET reserves the right to withdraw any discount given for payment in advance or payment by particular means (e.g. direct debit) if payments are not honoured on presentation.
11.5 EMNET reserves the right to vary any Charges or rates on giving not less than 30 days notice in writing to the Customer.
11.6 All Charges are exclusive of value added tax or any similar taxes, levies or duties, which will be added to or charged on invoices at the appropriate rates.
12. EMNET's General Powers
EMNET may:-
12.1 temporarily suspend the Services for the purpose of repair, maintenance or improvement of any of EMNET's facilities that are necessary to provide the Services;
12.2 vary the technical specification of the Services for operational reasons;
12.3 give instructions about the use of the Services which EMNET thinks reasonably to be necessary in the interests of safety, or of the quality of the Services to EMNET's other customers and any such instructions shall whilst they are in force, be deemed to form part of the Agreement, subject to EMNET giving the Customer as much on-line, written or oral notice as is reasonably practicable in the circumstances, and restoring the Services as soon as is reasonably practicable after temporary suspension.
13. Access to Services
13.1 EMNET shall not be held responsible for the Customer's inability to access the Services due to incompatibility between the Customer's terminal equipment and any EMNET Equipment.
13.2 The Customer shall remain liable for any and all Charges for the Services notwithstanding that the Customer is unable to access the Services for any period of time unless the reason that the Customer is unable to access the Services is wholly attributable to EMNET's negligence or wilful default or omission.
13.3 EMNET shall not be liable for any inability to access the Services due to faults in any telecommunications network.
13.4 The Customer's access to the Services may occasionally be restricted to allow implementation of new facilities and to allow data archival.
14. Liability
14.1 EMNET does not exclude or limit liability for death or personal injury caused by its negligence.
14.2 In performing its obligations under these terms and conditions, EMNET warrants that it will exercise the reasonable skill of a competent Internet Services Provider.
14.3 The Customer acknowledges that EMNET has no control over the information and/or software transmitted via the Services and that EMNET does not examine the use to which the Customer puts the Services or the nature of the information and/or software it is sending or receiving. EMNET hereby excludes all liability of any kind for the transmission or the reception of or the failure to transmit or receive any information and/or software of whatever nature and all liability for the accuracy or inaccuracy of any such information and/or software.
14.4 EMNET accepts no liability whatsoever whether in contract, tort (including liability for negligence) or otherwise for the acts or omissions of other providers of telecommunications or Internet Services or for faults in or failures of their apparatus.
14.5 EMNET shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under these terms and conditions, for any loss of business, revenue, profits, anticipated savings, wasted expenditure, corruption or destruction of data or for any other direct or indirect, special or consequential loss (whether caused by EMNET or otherwise). The entire liability of EMNET under these terms and conditions shall not exceed the amount of EMNET's Charges for the provision of the Services.
14.6 If, notwithstanding the provision of these terms and conditions, EMNET is found liable for any loss or damage suffered by the Customer, that liability shall in no event exceed [£25,000] for any event or related series of events and [£50,000] for all events in any period of 12 months.
14.7 The Customer shall indemnify and keep indemnified EMNET against any costs, claims or legal proceedings arising from the Customer's use of the Services which are brought or threatened against EMNET by any other person.
15. Variation of Terms and Conditions
15.1 EMNET reserves the right to amend or vary any of the terms and conditions of this Agreement on giving 30 days written notice to the Customer.
16. Assignment
16.1 The Customer may only assign this Agreement with the prior written agreement of EMNET which shall not be unreasonably withheld. EMNET reserves the right to assign all or part of this Agreement at any time to any company or person.
17. Notice
Notices given under this Agreement shall be delivered by hand or sent by prepaid first class post or electronic mail as follows:-
17.1 EMNET : the address shown on EMNET's order form or on the last bill or any alternative address which EMNET notifies to the Customer at any time;
17.2 the Customer : the address to which from time to time the Customer asks EMNET to send bills, the address of the Customer's premises or, if the Customer is a limited company, its registered office.
18. Force Majeure
18.1 Neither party is liable for any breach of this Agreement which is caused by a matter beyond its reasonable control including Acts of God, fire, lightening, explosion, war, disorder, flood, industrial disputes, extremely severe weather or acts of local or central Government or other competent authorities.
19. Law
19.1 This Agreement is subject to English law and the parties submit to the exclusive jurisdiction of the English courts.
