CONDITIONS OF BUSINESS
1. Definitions
In these conditions
- 'The Customer' shall mean the corporate entity, firm or person seeking
to purchase the Goods from the Company
- 'The Company' shall mean Corefields Limited of Macalpine Cottage,
Kerry's Gate, Hereford HR2 0AH (or such other address as the Company shall trade at from
time to time);
- 'The Contract' shall mean any contract for Goods or Services made
between the Company and the Customer;
- 'The Services' shall mean the distribution of e-mail messages and
data, the sale or use of software and other agreed services to be dealt with by the
Company on behalf of the Customer;
- 'Name' means any name specifically requested by or allocated to the
Customer for the provision of Service(s) and shall include, without limitation, any domain
name or mailbox name.
- 'The Internet' means the publicly accessible non-proprietary global
data network comprising interconnected networks using TCP/IP ("Transmission Control
Protocol/ Internet Protocol"). "IP" means Internet Protocol.
- 'Period of Notified Service Interruption' means the period of the
relevant Service Interruption starting at the Service Interruption Notification Point to
the end of the relevant Service Interruption but shall exclude any period where delays in
the company's ability to take diagnostic or remedial action are attributable to the
Customer, periods where the Customer is in default of any of its obligations contained in
this Agreement or the problems arise as a result of the act or default of a third party.
- 'Scheduled Maintenance' means maintenance affecting the Service(s) of
which the Customer has been informed in writing or by nominated e-mail address no less
than five days in advance of commencement.
- 'Service credits' means the provision of compensatory services from
the company to the customer of an equivalent amount to the period of notified service
interruption, which has occurred.
- 'Service Level Specification' has the meaning attributed to it in the
specific service level agreement.
- 'Service Interruption' means any failure to meet the Service Level
Specification which occurs otherwise than as a result of a "Period of Notified
Service Interruption" or Scheduled Maintenance.
- 'Customer information' is defined as any information the Customer
provides to the Company as part of the registration process.
- 'economic or consequential loss' will include without limitation any loss
of profits, damage to reputation or goodwill, loss of expected or future
business, damages, costs or expenses payable to any third party,loss of data
or any other indirect loss.
2. The Contract
2.1 These Conditions shall be incorporated into each and every Contract
made between the Company and the Customer and shall apply to the exclusion of any terms or
conditions put forward by or on behalf of the Customer.
2.2 No variation, nor waver of, nor addition to these conditions,
whether written or oral, shall have effect unless and until authorised in writing by a
Director of the Company.
2.3 Quotations, whether written or oral, submitted by the Company shall
be deemed to be an invitation to treat and not an offer.
2.4 If there is any conflict between these terms and conditions and the
specific service level agreement the provisions of these terms and conditions will apply.
2.5 The contract will be for the initial contract term and will continue
thereafter (if no new contract is signed) subject to either party giving to the other 3
months notice in writing to terminate the contract.
3. The Customer warrants that:
3.1 Customer information will not:
(a) Be false, inaccurate misleading or fraudulent.
(b) Be defamatory, threatening or harassing, obscene or contain pornographic material.
(c) Contain any viruses, Trojan horses, worms, time bombs or other computer programming
devices that are intended to damage or interfere with the Company's networks, servers,
operating software or other computer systems.
3.2 Should the customer (otherwise than
under special arrangements previously made in writing), be in breach of clause
3.1 he shall be liable for all loss or damage arising in connection with such
services and shall indemnify the Company against all claims, penalties, damage,
costs and expenses whatsoever arising in connection therewith and the goods may
be dealt with in such manner as the Company or any other person in whose custody
they may be at any relevant time shall think fit.
4 The Company
4.1 The Company shall be entitled at its discretion to carry out any of
its obligations or services through any subsidiary or associated companies or any third
parties it considers appropriate.
4.2 The Company may, as a result of its on-going development and
maintenance programme, from time to time change or alter the configuration of the
Service(s) and the technical functionality of the Service(s) provided. Any such
configuration or functionality change shall not in itself diminish the Service(s) provided
under the relevant agreement or result in any increased cost to the Customer (unless
agreed in writing to the contrary).
4.3 The Company may from time to time without notice change or alter the
networks to which the Customer is connected to the service but this will not change the
performance of the Service.
4.4 The Company will maintain the service level specification and will
ensure that there is not more than 100 hours per annum of "Period of Notified Service
Interruption" excluding time for "Scheduled Maintenance" and Force Majeure.
4.5 In the event that a defect, fault or impairment in the provision of
the Service(s) causes a Service Interruption then the Company shall use its best
endeavours to resolve that defect, fault or impairment as quickly as is reasonably
possible.
4.6 The copyright in any material produced by the Company pursuant to
this agreement will belong to the Company. The Copyright in any material supplied by the
Customer will belong to the Customer.
4.7 The Company and
Customer will ensure any Confidential Information exchanged is dealt with in
confidence and not disclosed to third parties.
5. Limitation of
Liability
5.1 The Customer acknowledges that its sole and exclusive remedy in
respect of Service Interruptions and Notified Service Interruption shall be the provision
of service credits from the Company except where notified service interruption:
(a) Exceeds 75 hours when the customer shall give the Company a written warning of the
Company failing to meet required standards and the need to improve its service.
(b) Exceeds 100 hours when the Customer, if having complied with 3.2(a) above and the
service continues to be of a poor standard, shall be entitled to cancel the agreement by
giving 28 days notice in writing.
If the Company is in breach of clause 5.1(a)-(b) above the maximum amount of the Customers
claim against the Company will be the total amounts paid by the Customer in the Billing
Period when such event (or the first event in any series of connected events) occurs.
5.2 If for any reason a Court of competent jurisdiction should determine
that clause 5.1 above is not valid, then the maximum amount that can be recovered from the
Company for any loss will be the amount for which it is insured under any insurance
policies it may have in place from time to time.
5.3 Nothing in these conditions shall exclude or limit the liability of
the Company for death or personal injury resulting from its negligence insofar as the same
is excluded by United Kingdom Statute.
5.4 Under no circumstances will the Customer be able to recover any
claim for economic or consequential loss against the Company.
5.5 The Company and customer agree that this contract is not intended to
provide any rights to third parties and The Contracts (Rights of Third Parties) Act 1999
is hereby excluded.
6. Payment
6.1 The Customer shall make payment in full within 14 days from the date
of the delivery of the invoice. Interest on all overdue accounts will be charged at 8%
over Barclays base rate (from time to time) under the provisions of the Late Payment of
Commercial Debts (Interest) Act 1998 from the day the monies should have been paid until
the actual date payment occurs. All invoices are subject to VAT at the prevailing rate.
6.2 At the Company's discretion the Company may require a payment on
account under any contract.
6.3 Any delay or default by the Customer in making payment in accordance
with Clause 6.1 or 6.2 shall render all sums owing to the Company on any account
whatsoever due and payable forthwith without requirement for any notice to be given to the
Customer.
7.
Termination and Suspension
7.1 Without prejudice to any rights and remedies available to it,
whether under the Contract or otherwise and until all moneys outstanding to the Company
are paid in full, the Company shall be entitled in its absolute discretion, and upon
giving written notice to the Customer of its intention to do so,
(a) to terminate wholly or in part the Contract and/or any other contract with the
Customer; or
(b) to withhold, vary or suspend performance of all of its obligations under the Contract
or any other Contract; or
(c) to claim a lien on any goods in its possession if one or more of the following events
occurs:
(i) if any sum
owing to the Company from the Customer on any account whatsoever shall be unpaid
after the due date for payment;
(ii) if the Customer is in serious or persistent breach of this agreement;
(iii) if the Company has reasonable doubt as to the solvency of the Customer, or winding
up or bankruptcy proceedings are commenced against the Customer, or the Customer takes
steps to enter into a formal voluntary arrangement with its/his creditors under the
provisions of the Insolvency Act 1986 (or any subsequent legislation).
8.
Disputes and set off
8.1 Any liability of the Company under the Contract shall be subject to
and conditional upon the due performance and observance by the Customer of all its
obligations under these Conditions, and subject to these Conditions, the Customer shall
not be entitled to withhold or delay payment or exercise any right of set off whatsoever
and howsoever arising which might otherwise be available to it.
8.2 Any claim by the Customer against the Company arising in respect of
any service provided for the Customer (or which the Company has undertaken to provide)
shall be made in writing and notified to the Company within 14 days of the event or
occurrence alleged to give rise to such claim. Any claim not made and notified shall be
deemed to be waived and absolutely barred, except where the Customer can show that it was
impossible for him to comply with this time limit and that he has made the claim as soon
as it was reasonably possible for him to do so.
9. Force majeure
The Company shall have no liability whatsoever for any failure to perform, or for any
delay in the performance of any of its obligations under the Contract arising wholly or in
part by reason of any factor beyond its direct control. A non-exhaustive list of examples
would be flood, fire, strikes, lock-outs, failure of third party electronic connections
with the customer, illness of Company staff.
10. Notices
Any notice required to be given in writing under the Contract shall be given either by
facsimile transmission, e-mail, first class post, or courier delivery to the Registered
Office or last known trading address of the party for which it is intended.
11. Governing law
The Contract shall be governed by the Law of England and
determined in the English Courts.