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Terms and Conditions of Supply of Services
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to writing or written includes faxes but not e-mail.
1.7 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.9 References to conditions and schedules are to the conditions and schedules of the Contract.
2. Application of conditions
2.1 These Conditions shall:
2.2 No offer for services in the Service Request Form placed by the Customer shall be accepted by the Supplier other than by an Acceptance Email, when a contract for the supply of those Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any Service Request Form or any other Document shall not govern the Contract.
3. Commencement and duration
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date on which the Supplier sends an Acceptance Email.
3.2 The Services supplied under the Contract shall continue to be supplied for a period of 90 days from acceptance unless specified in the Acceptance Email and after that, shall continue to be supplied unless the Contract is terminated in accordance with condition 13.
4. Supplier's obligations
4.1 The Supplier shall endeavour to provide the Services so long as the Customer complies with its obligations under these Conditions, or until the Contract is terminated whether by expiry in accordance with clause 3.2 or in accordance with clause 13.
4.2 The Supplier shall endeavour that the Website will perform substantially in accordance with the site specification, which is 1% permitted downtime per period of 90 days from acceptance, unless specified in the Acceptance Email. If the Website does not so perform, the Supplier shall, for no additional charge, carry out any work necessary in order to ensure that the Website substantially complies with the Site Specification.
4.3 The obligations set out in clause 4.3 shall not apply to the extent that any failure of the Website to perform substantially in accordance with the site specification is caused by the Customers website software or any of the Customer's materials.
4.4 This Contract sets out the full extent of the Supplier's obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
5. Customer's obligations
5.1 The Customer shall:
5.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.4 The Customer shall not use the Website:
5.5 The Customer acknowledges that the Supplier has no control over any content placed on the Website by visitors and does not purport to monitor the content of the Website. The Supplier reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer if it becomes aware of any allegation that content on the Website may be Inappropriate Content.
5.6 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the materials or any other material posted to, or linked to, the Website constitutes Inappropriate Content.
6. Service Request Form
6.1 Any request for the provision of Services by the Customer shall, unless otherwise agreed, be through the submission of a Service Request Form to the Supplier.
6.2 No Service Request Form will be deemed accepted until the Supplier has sent an Acceptance Email is in receipt of the Price in cleared funds, if payable.
6.3 The Service Request Form must be submitted in accordance with clause 22.
7. Charges and payment
7.1 The Customer may be permitted to place advertisements on the Website without payment subject to these Conditions. If the Customer request Prioritised Listing a Price will be payable in accordance with these Conditions.
7.2 If the Customer requests a Prioritised Listing the total Price payable to the Supplier in respect of the Services shall be the amount set out in the Acceptance Email. The total Price shall be paid in accordance with this clause 7 and the Supplier shall invoice the Customer for the charges that are then payable in the Acceptance Email, together with expenses and VAT, where appropriate, calculated as provided in condition 7.3.
7.3 Any fixed Price contained in Schedule 1 includes VAT, = which the Supplier shall add to its invoices at the appropriate rate.
7.4 The Customer shall pay the daily Price for the Prioritised Listing, in full and in cleared funds at 12:05am each day on which the Services are provided
7.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
7.6 Time for payment shall be of the essence of the Contract.
7.7 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 7.7 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.8 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
8. Consumer rights
8.1 If you are contracting as a Consumer (as defined in the Unfair Contract Terms Act 1977, the Unfair Terms in Consumer Contracts Regulations 1999 and Consumer Protection (Distance Selling) Regulations 2000), you may cancel the Contract at any time within seven working days, beginning on the day after you first start to receive the Services. In this case, you will receive a full refund of the Price paid for the Service, if any
8.2 To cancel the Contract, you must inform us in writing.
8.3 No provision of these terms and conditions will adversely affect the rights of any Consumer (as defined in the Unfair Contract Terms Act 1977, the Unfair Terms in Consumer Contracts Regulations 1999 and Consumer Protection (Distance Selling) Regulations 2000).
9. Intellectual property rights
As between the Customer and the Supplier, all Intellectual Property Rights shall be owned by the Supplier. The Supplier does not purport to licence, sell or assign such rights in anyway.
10. Confidentiality and the Supplier's property
10.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, Intellectual Property Rights or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or sub-contractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
10.2 This condition 10 shall survive termination of the Contract, however arising.
11. Limitation of liability - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
11.1 This condition 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.2 The material displayed on the Website is provided without any guarantees, conditions or warranties as to its accuracy. To the extent permitted by law, the Supplier, hereby expressly excludes:
11.3 This does not affect the Supplier's liability for death or personal injury arising from the Supplier's negligence, nor the Supplier's liability for fraudulent misrepresentation or misrepresentation as to a fundamental matter, nor any other liability which cannot be excluded or limited under applicable law.
12. Data protection
13.1 Without prejudice to any other rights or remedies which the parties may have, the Supplier may terminate the Contract without notice and without liability to the Customer if, in particular, but without limitation:
13.2 On termination of the Contract for any reason the accrued rights of the Supplier as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
14. Force majeure
The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
No variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
16.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
17.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
17.3 The parties agree, in the circumstances referred to in condition 17.1 and if condition 17.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the parties under any invalid or unenforceable provision of the Contract shall be suspended while an attempt at such substitution is made.
18. Status of pre-contractual statements
Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
19.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
19.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20. No partnership or agency
Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. Rights of third parties
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
22.1 All notices between the parties about the Contract shall be in writing and delivered by hand, email or sent by pre-paid first class post:
22.2 Communications shall be deemed to have been received:
23. Governing law and jurisdiction
23.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
23.2 The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.
This agreement has been entered into on the date stated at the beginning of it.
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