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Introduction:
Use of Terms and Conditions
Section 1: SoftProg Standard
Terms and Conditions
Clause 1.0 Domain Registration Terms
Clause 1.1 Definition of Terms
Clause 1.2 Provision of Service
Clause 1.3 Payment and Terms
Clause 1.4 Client’s Obligations
Clause 1.5 Warranties
Clause 1.6 Term and Termination
Clause 1.7 Consequences of Termination
Clause 1.8 Renewal
Clause 1.9 Confidentiality
Clause 1.10 Cancellations
Clause 1.11 Force Majeure
Clause 1.12 Data Protection
Clause 1.13 Liability
Clause 1.14 Data Backup
Clause 1.15 General Usage Policy
Clause 1.16 Suspension of Services
Clause 1.17 Variation
Clause 1.18 Indemnity
Clause 1.19 Waiver
Clause 1.20 Assignment
Clause 1.21 Refunds
Introduction:
Use of Terms and Conditions
The
following are the legal terms and conditions of an
agreement between you and SoftProg Net Ltd. The
Service Contract (defined below), these Terms and Conditions and the Acceptable
Use Policies (defined below) constitute and set out the entire agreement (“the
Contract”) between the Client (defined below) and SoftProg
Net Ltd. (defined below) relating to the subject matter in the Contract. If
there is any inconsistency between these documents they shall take precedence
in that priority order. The Contract supersedes and replaces all prior
communications, drafts, contracts, representations, warranties, undertakings
and agreements of whatever nature whether oral or written, between the parties
to the Contract. Use of SoftProg services by the
Client implies agreement with these Terms and Conditions and therefore these
Terms and Conditions apply even in the absence of a signed Service Order or
Service Contract.
Section
1: SoftProg Standard Terms and Conditions
Clause
1.1 Definition of Terms
1.1.1 In this Agreement the following terms shall have the following meanings:
“Act” means the Telecommunications Act 1984
“Acceptable Use Policy” means an acceptable use policy posted on
SoftProg’ website found at
http://www.softprog.net/
from time to time applicable to all aspects of services provided by
SoftProg
“Agreement” means this document, and, where the context so requires, any
Service Order, Application Form, Acceptable Use Policy, SoftProg’
Price List and / or the Service Description
“Apparatus” means any telecommunications apparatus required for the provision
of the Service and installed by or on behalf of SoftProg
(including by a `sub-contractor) at the Client’s Premises
“Business Day” means any day (other than Saturday, Sunday or English public
holiday) on which the banks in England are open for a full range of banking
transactions
"SoftProg" means SoftProg
Net Ltd. of 69 James Street, Penkhull,
Stoke-on-Trent, ST4 5HR
“SoftProg’ System” means the telecommunication and
/ or Internet system run by SoftProg and / or its
service providers
“SoftProg Website” means the website at
http://www.softprog.net/
or at such other URL as SoftProg may determine from
time to time
“Charges” means without limitation the Set-up Charge and the Service Charge and
any other applicable Charges as outlined in the SoftProg
Price List
"Client" means the person, firm, or company whose Application / Service Order
is accepted by SoftProg
“Commencement” means that point in time when the Client’s account is set-up on
SoftProg’ internal provisioning system and hosting equipment
configured to provide a Service to the Client
“Components” means all components of the system within SoftProg’
and / or any third party’s premises that provide dedicated Internet access to
the Customer and which are necessary for the supply of the Service, but
excludes the Customer’s Equipment
“Confirmation Letter” means a letter or any other form of document issued by
SoftProg confirming and accepting the Customer’s order for the
Service.
"Conditions" means the standard Terms and Conditions for the supply of Services
set out or referred to on the Application / Service Order
"Confidential Information" means all information which relates to the business
affairs, products, developments, trade secrets, know-how, personnel, clients
and suppliers of either party or information which may reasonably be regarded
as the confidential information of the disclosing party
“Connectivity” means the connection to the Internet using the dial-up telephone
number, ADSL connection, or other connection to the Internet as specified by
SoftProg and informed to the Client by SoftProg
from time to time; and
"Contract" or “Service Contract” means the related Co-Located Server Contract,
Bandwidth Contract, ADSL Contract, or any other provision of Service as stated
on the Application Form / Service Order relating to the particular Services
requested and Contracts shall be construed accordingly
“Dial-Up Platform” means the access number to be used by the Client to connect
to the Internet or to the SoftProg account as
specified by SoftProg
"Domain Name" means the domain name requested by the Client to be registered on
the Client’s behalf as outlined on the Application or any alternative domain
name offered by SoftProg
“Client’s Equipment” means the telecommunications leased line and all equipment
and facilities located at the Customer’s premises including but not limited to
Customer-owned routers (unless the Client orders a managed router service as
part of the Service).
“Client’s Website” means the website belonging to the Client which is hosted
"Force Majeure" means any cause affecting the
performance by a party of its obligations arising from acts, events, omissions,
or happenings beyond its reasonable control. Including (but not limited to)
wars, riots, embargoes, strikes, lockouts, acts of god, insurrection, or civil
commotion
“Input Material” means all materials, data, images, and information necessary
for the Client’s use of the Service
"Installation Date" means the proposed installation date for the Service as
defined in the relevant Service Order / Application Form
"Internet" means the worldwide TCP / IP (Transmission Control Protocol /
Internet Protocol) network formed of an interconnection of companies,
organisations and institutions, private and public networks
“Keyword Selection Policy” means the guidelines for the selection of Internet
Keywords (“Keywords”) as dictated to SoftProg by
the Registrar or the body responsible for the granting of the Keywords
“Licence” means any licence required for SoftProg to
provide the Service or to run SoftProg’ System
"Name" shall mean the name assigned to the Client in relation to the provision
of the Service including but not limited to any mailbox and domain names
“Oftel” means Office of Telecommunications or the
Director General of Telecommunications.
“Offending Material” means any material, data, images or information (including
without limitation, the Input Material) which is (1) in breach of any law,
regulation, code of practice or acceptable use policy; or (2) abusive,
indecent, defamatory, obscene or menacing or otherwise offensive; or (3) in
breach of confidence, copyright or other intellectual property rights, privacy
or any other right of any third party
“Order Form” means the agreement or relevant order form or such other
appropriate form for the Service issued by SoftProg
that the Client completes and sends to SoftProg.
“Package” means any SoftProg products bundled
together as required by the Client as defined on the Service Order
“Party” means a party to the Contract and “Parties” shall be construed
accordingly
“Personnel” means the employees, agents or sub- contractors of the respective
Party
“Premises” means any sites owned or occupied by the Client at which the Service
is, or will be, provided, as specified in a Service Order
“Processing” means any use of messages or calls or data including sending,
receiving, uploading, downloading and posting on web-sites or elsewhere
“Registry” means the relevant registry or naming authority responsible for the
registration of domain names that includes (without limitation) such as
Nominet UK and Network Solutions Inc and EURid.
“Server” means the server of certain specifications selected by the Customer in
the Order Form and confirmed by SoftProg Net Ltd.
in the Confirmation Letter.
“Services” means the SoftProg service selected by
the Client in the Service Order
“Service Charge” means the Charges for the Service set out in the applicable
Service Order, Service Description and / or in any SoftProg
price list as in force from time to time
“Service Order” means a SoftProg Service Order /
Application Form
“Set-up Charge” means SoftProg’ charge for
setting-up the Service (including any installation charge) set out in the
Service Order, Service Description and / or SoftProg
Price List as in force from time to time
“Software” means any device supplied by SoftProg to
support the usability of its services as used by the Client
“Standard Charges” means the standard charges for the Service as set out in the
Order Form or otherwise as set out on SoftProg’
Website
"Terms and Conditions" means these Terms and Conditions including any Schedules
hereto
“Work” means any work carried out by SoftProg (or
its sub-contractor) at the Premises for the purpose of installing, maintaining,
repairing, moving, replacing or removing any Apparatus in order to comply with
any of its obligations under this Agreement.1.1.2
References to Clauses are references to clauses in the Agreement.
1.1.3 Clause headings are for ease of reference and do not form
part of nor shall they affect the interpretation of these Terms and Conditions.
1.1.4 References to each party include their permitted assigns and successors
by operation of law.
1.1.5 A person who is not a party to a Contract has no rights under the
Contract (Rights of Third Parties) Act 1999 to enforce any Term of these Terms
and Conditions. 1.1.6 Words importing the singular include the plural, words
importing any gender include every gender and words importing persons include
bodies corporate and unincorporated and in each case vice versa.
1.1.7 References to any statute, statutory provision or other enactment and any
British or other standard include a reference to that statute, provision,
enactment or standard as from time to time amended, extended or re-enacted.
1.1.8 The words “include” or “including” are to be construed without limiting
the generality of any preceding words.
Clause
1.2 Provision of Service
1.2.1 SoftProg will
provide the Service to the Client in accordance with the provisions of this
Agreement upon a Service Order or Application having been duly signed by the
Client and returned to SoftProg and subject to the
further provisions of this Agreement.
1.2.2 The Client may request SoftProg to supply
Service to the Client. SoftProg, in its absolute
discretion, may accept the Client request by processing the request including
the raising of an invoice (pro-forma or otherwise) for services.
1.2.3 SoftProg will endeavour to provide the
Service in a timely manner but (in particular where SoftProg
are dependent on another operator to provide the Service and
/or due to technical reasons) cannot guarantee to do so, and
SoftProg will have no liability for any failure to meet such date.
1.2.4 SoftProg possesses the right to change
service providers at any time without consulting the Client and the Client
empowers SoftProg to act as its agent and have full
authority to select, change or remove sub agents when deemed necessary.
1.2.5 SoftProg shall provide the Services using all
reasonable care and skill subject to payment by the Client of all amounts
payable hereunder on the dates specified herein or on the Application.
1.2.6 The Client accepts that SoftProg reserves the
right to subject the Client to a credit check and has sole discretion over
whether or not the Client may utilise SoftProg’
services based on the results of that check. The Client also accepts that if
the credit check does not meet SoftProg’
requirements, whatsoever they may be at the time, that SoftProg
may request the Client to pay annual in advance or a deposit in line with the
estimated annual charges that the Client may incur by using the service. The
Client accepts that this credit check may impact their credit rating and that
this information may be shared with other related companies or subcontractors
from time to time.
1.2.7 The Client acknowledges that SoftProg cannot
provide advice or technical support for any aspect of the Client’s own network
and therefore the Client acknowledges that costs may be incurred by the Client
for any technical consultation provided by a third party enabling the
compatibility of the Client’s own network to work to specification with the
services as provided by SoftProg as outlined on the
Service Order.
1.2.8 The Client shall do all things and provide all such information as is
reasonably required by SoftProg to provide the
Services in accordance with these Terms and Conditions.
Clause
1.3 Payment and Terms
1.3.1 Any agreement shall
commence on the date of acceptance by SoftProg of
the Application submitted by the Client.
1.3.2 The fees payable to SoftProg in respect of
the Services are specified in the SoftProg Price
List.
1.3.3 All Charges are due in advance unless special payment terms have been
agreed. The Client acknowledges that SoftProg reserves
the right to suspend the customer’s entire account in the event of non-payment
for any overdue invoice (pro-forma or otherwise.)
1.3.4 All Charges are exclusive of VAT and any other applicable purchase tax,
import, and all other duties. Any failure by the Client to pay any fees due
under these Terms and Conditions on the date specified shall be deemed to be a
"material breach" of these Terms and Conditions.
1.3.5 The Client acknowledges that he shall provide SoftProg
with such amount in cash or by way of guarantee as SoftProg
may specify from time to time as a non-refundable payment of Charges for the
remaining balance on the Contract. If the deposit is not provided within seven
days of request, SoftProg will have the right to
disconnect the Service. Interest is not payable on deposits.
1.3.6 If the Client is overdue with any payments hereunder, then without
prejudice to SoftProg’ other rights and remedies,
the Client shall be liable to pay to SoftProg a
flat fee of £15 for each correspondence, SoftProg’
solicitors and court fees, as well as interest on the amount payable at an
annual rate of 5% above the prevailing base rate of The Bank of England, which
interest shall accrue on a daily basis from the date payment becomes overdue
until SoftProg has received payment of the overdue
amount together with all interest.
1.3.7 The Client accepts that if any services provided by SoftProg
are disconnected because of non-payment or because of any breach of contract or
Acceptance of Use Policies, SoftProg has the right
to charge the Client a reconnection fee of £35 plus VAT for each reconnection
unless specifically stated otherwise in these Terms and Conditions.
1.3.8 The Client acknowledges responsibility for informing SoftProg
of all billing address changes and any changes relating to the Client’s ability
to be contacted and further confirms that SoftProg must
be informed of any changes on the account including but not limited to address
changes or contact person changes and that SoftProg
will not be held responsible for any disruption or lack of service which result
from a lack of notification by Client to SoftProg regarding
such changes
13.9
Clause
1.4 Client’s Obligations
1.4.1 The Client shall:
1.4.1.1 Supply SoftProg with such information as
SoftProg or its sub-contractor may reasonably request in order to
carry out any work
1.4.1.2 Grant or procure so that SoftProg or its
sub-contractor are granted all necessary authority at all reasonable times and
on reasonable notice (except in the case of an emergency) to carry out the work
and install any Apparatus at the Premises
1.4.1.3 In the case of an emergency grant or procure that SoftProg
or its sub-contractor is granted all necessary authority to enter the Premises
immediately and without notice
1.4.1.4 Provide appropriate space, ducting, suitable and safe working
environment and electrical power for SoftProg or
its subcontractor to install the Apparatus at the Premises at no cost
1.4.1.5 Not alter, adjust, or interfere with the Apparatus or allow any of
Client employees or agents to do so
1.4.1.6 Ensure that the Apparatus is kept safe and not interfered with by any
third party.
Clause
1.5 Warranties
1.5.1 In performing
SoftProg’ duties under this Agreement, SoftProg
shall, at all times use its reasonable endeavours to exercise reasonable care
of a competent ISP (Internet Service Provider) or, as applicable,
telecommunications operator. The Client acknowledges that neither
SoftProg, nor any other party, has control over the Internet and
service interruptions may occur due to circumstances beyond or at times within
SoftProg’ reasonable control such as internal and / or external
system malfunctions or failures of third parties. The Client therefore
acknowledges that SoftProg shall not be held liable
in any way for losses as a result of such service interruptions regardless of
their nature.
1.5.2 The Client further acknowledges that SoftProg
shall in no way be held liable for any service outage or disruption that occurs
as a result of any of SoftProg’ suppliers’ failure
to provide a service. For clarification, if any of SoftProg’
suppliers enters administration, liquidation, is wound up or for any reason
fails to provide a service to SoftProg that impacts
the Client, SoftProg shall not be held liable. In
the event that SoftProg selects an alternative
supplier in order to restore the service to the Client, the Client acknowledges
that any increase in the costs to SoftProg as a
result of the supplier change will be passed on to the Client.
1.5.3 The Client acknowledges that it is not possible for SoftProg
to provide a 100% fault-free Service. SoftProg expressly
reserves the right to disconnect availability of Internet access for the
purpose of necessary or scheduled maintenance. Access to e-mail may also be
adversely affected by conditions and performances outside SoftProg'
control including without limitation the breakdown of transmission and
telecommunication links or provisions of services by SoftProg’
selected service providers. Sometimes SoftProg will
need to suspend the Service for maintenance, scheduled or unscheduled. While
SoftProg will try to maintain the Service 24 hours a day, seven days
a week, SoftProg cannot guarantee to do so.
SoftProg will always try to repair reported faults and / or restore
the Service as soon as reasonably practical.
1.5.4 The Client warrants to SoftProg that the
Client has obtained and will maintain all such approvals, way leaves, and
licences as may be necessary to perform SoftProg’
obligations under this Agreement or to allow SoftProg
to do so and that the Client will comply generally with all applicable laws and
regulations.
1.5.5 No other warranties or representations, expressed or implied, are given
by either party under this Agreement and any implied warranties are expressly
excluded.
1.5.6 The Client warrants that it will comply with the provisions of the
end-user licence relating to all aspects of Services in which an Application
has been provisioned.
1.5.7 The Client warrants that it will comply in every respect with the
provisions of SoftProg' General Usage Policy.
Clause
1.6 Term and Termination
1.6.1 Either party may
terminate this agreement by providing 60 days written notice with no
termination earlier than the initial contract period.
1.6.2 If the Client terminates this Agreement during the initial period, other
than because SoftProg has increased its Charges or
materially changed the terms of this Agreement to the Client’s detriment, or if
the Agreement is terminated by SoftProg under 1.6.3
below, the Client must pay SoftProg the applicable
Charges for the remainder of the initial contract period.
1.6.3 Either party may terminate this Agreement or the Service provided under
it forthwith by notice to the other if:
1.6.3.1 the other party commits a material breach of this Agreement and, in the
case of a breach capable of being remedied, fails to remedy it within a
reasonable time of being given written notice from the other party to do so; or
1.6.3.2 the other party commits a material breach of this Agreement which
cannot be remedied under any circumstances; or
1.6.3.3 the other fails to pay any Charges when due; or
1.6.3.4 the other party passes a resolution for winding up (other than for the
purpose of solvent amalgamation or reconstruction), or a court makes an order
to that effect; or
1.6.3.5 the other party ceases to carry on its business or substantially the
whole of its business; or
1.6.3.6 the other party is declared insolvent, or convenes a meeting of or
makes or proposes to make any arrangement or composition with its creditors; or
a liquidator, receiver, administrator, administrative receiver, manager,
trustee or similar officer is appointed over any of its assets; or
1.6.3.7 the bandwidth used for traffic to and from the web site is exceeded
beyond SoftProg’ considered acceptable use and is
deemed by SoftProg to affect the performance of
other Clients' Business Websites. Notwithstanding any other remedies it may
have under these Terms and Conditions or in law, SoftProg,
in the event that the acceptable bandwidth is exceeded, may elect to charge the
Client an additional monthly fee as set out in the SoftProg
Price List or Service Order.
1.6.4 If any of the events detailed above occur as a result of
SoftProg’ default, SoftProg may by
giving notice to the Client to disconnect the Service or any part of it without
prejudice to SoftProg’ right to terminate this
Agreement. Where the Service or any part of it is disconnected under this
paragraph, the Client must pay the Charges for the Service until this Agreement
is terminated.
1.6.5 Any rights to terminate this Agreement shall be without prejudice to any
other accrued rights.
1.6.6 On termination of this Agreement for any reason:
1.6.6.1 SoftProg shall have the right immediately
to remove any Apparatus from the Premises; and
1.6.6.2 all amounts owing for the Service shall be due and payable in full on
demand whether or not then due and Client shall have no right to withhold or
set off such amounts; and
1.6.6.3 SoftProg may delete all e-mail, Websites,
and other data stored on the Service by the Client and re-use the e-mail
addresses, domain names not held by the Client and Business Web-spaces.
SoftProg shall not exercise this right for six weeks in the case of
termination by SoftProg other than for breach by
Client.
Clause
1.7 Consequences of Termination
1.7.1 Upon the termination of any Agreement for any
reason whatsoever:
1.7.1.1 the Client shall promptly return to SoftProg
all copies of the Software in his possession; and
1.7.1.2 SoftProg may cease to host the Business Web
Site with immediate effect; and
1.7.1.3 each party shall on request promptly return any documents or papers
relating to the business of the other party (including any of the other party's
Confidential Information) which it then has in its possession or control.
Clause
1.8 Renewal
1.8.1 SoftProg will
automatically renew the Client’s contract each year after the initial one-year
contract period unless the Client notifies SoftProg
in writing at least 60 days prior to the end of the contract period instructing
SoftProg to do otherwise.
1.8.2 Whilst SoftProg will use all reasonable
endeavours to ensure that the Domain Name, Existing Domain Name, Internet
Keyword or any other SoftProg product is renewed at
the relevant renewal date, the Client acknowledges that it is not possible for
SoftProg to guarantee such renewal and that SoftProg
shall not be liable for any failure to renew the Domain Name or the Existing
Domain Name.
1.8.3 The Client acknowledges that in the event the Client fails to remit
payment or fails to instruct SoftProg not to renew
the SoftProg package, SoftProg
reserves the right to renew the Domain Name or any associated Domain Names
under it own IPS tag and reserves the right to change the Admin, Technical and
Billing contacts to a SoftProg representative and
that SoftProg will, at that point, become the
rightful owner of the Domain Name.
1.8.4 The Client also acknowledges that in the event the Client fails to remit
payment or fails to instruct SoftProg not to renew
the SoftProg package, SoftProg
reserves the right to offer an alternative domain name to the Client if payment
is received during SoftProg’ debt recovery process.
Clause
1.9 Confidentiality
1.9.1 The Client shall ensure that its employees,
agents, and sub-contractors shall, keep confidential and not, without
SoftProg’ prior written consent, use or disclose to any third party
any material or information relating to the Agreement and/or SoftProg’
business which the Client may acquire in the course of or in accordance with
the Agreement.
1.9.2 Nothing in Clause 1.9.1 will be taken to prevent the Client from
disclosing any information:
1.9.2.1 in Client’s possession (with full right to disclose) before disclosed
by SoftProg’; or
1.9.2.2 which is or becomes public knowledge other than by breach of this
clause; or
1.9.2.3 which the Client may independently develop or receive from a third
party (with full right to disclose)
1.9.3 SoftProg reserves the right (but does not
assume the obligation) to inspect any material which the Client processes using
the Service to ensure SoftProg’ compliance with the
Agreement and any legal requirements.
1.9.4 The Client and SoftProg may disclose such
material if requested or required to do so by the police or any other competent
authority.
1.9.5 If requested to do so by a third party SoftProg
may disclose such material during the course of an action for the infringement
of their rights which SoftProg reasonably believes
to arise from the Client’s use of the Service. SoftProg
may modify or remove any material that infringes this Agreement.
1.9.6 The Client hereby agrees that SoftProg may
record or monitor the Client’s calls to SoftProg for
quality and contractual purposes.
1.9.7 Where the Client uses the Service to post material on a Web Site
(including chat-rooms and other facilities), the Client grants to
SoftProg and its licensors and assigns a royalty-free, irrevocable
licence to use, edit, copy, republish and distribute such material through the
Service (for any purpose.) SoftProg may remove any
material that appears on any page of SoftProg’ own
Web Site.
1.9.8 All information, drawings, specification, documents, contracts, design
material and all other data, which either party may have disclosed and may from
time to time disclose to the other party relating to its business, Clients,
prices, services, requirements, the Software, the Web Site, the Services and
these Terms and Conditions, including any technical specifications (the
"Confidential Information"), are proprietary and confidential to the disclosing
party.
Clause
1.10 Cancellations
1.10.1 SoftProg reserves
the right to cancel the service at any time. In this event customers will be
entitled to a pro-rata refund based on the remaining period of membership. If a
customer contravenes SoftProg’ terms of service a
refund will not be issued in the event of a cancellation. Customers may cancel
their account at any time. Fees charged on a prepay basis are non-refundable.
Clause
1.11 Force Majeure
1.11.1 Neither party shall be liable for any delay in
performing or failure to perform its obligations hereunder to the extent that
and for so long as the delay or failure results from any cause or circumstance
whatsoever beyond its reasonable control (an "event of force majeure"),
provided the same arises without the fault or negligence of such party and the
affected party notifies the other party within two (2) working days of becoming
aware of the same of such event of force majeure and
the manner and extent to which its obligations are likely to be prevented or
delayed, and provided also that the occurrence of any such event of force
majeure shall not have the effect of discharging or postponing the
affected party's payment obligations hereunder.
1.11.2 If any event of force majeure occurs, the
date(s) for performance of the obligation(s) affected shall be postponed for so
long as is made necessary by the event of force majeure
provided that if any event of force majeure continues
for a period of or exceeding 60 days, the non-affected party shall have the
right to terminate any agreement governed by these Terms and Conditions
forthwith on written notice to the affected party. Each party shall use its
reasonable endeavours to minimise the effects of any event of force
majeure
Clause
1.12 Data Protection
1.12.1 Unless indicated otherwise on the relevant
Application/ Service Order form, the Client hereby agrees to allow
SoftProg to collect and process data and information regarding the
Client’s use of the Service and to provide this to sub-contractors and/or
companies affiliated with SoftProg for the purposes
of marketing SoftProg’ (or SoftProg’
affiliated companies’) services, or other related services, or for any other
purpose connected with the Agreement. In particular, but without limitation, if
the Service is provided to the Client following a third party referral, the
Client agrees that SoftProg may provide them with
such reasonable information as they request regarding the installation of the
Service and SoftProg’ provision of the same to the
Client. SoftProg will provide the Client on request
with details of all such information held by SoftProg,
and will modify any information that the Client advises is incorrect.
1.12.2 Subject to and in accordance with relevant data protection legislation,
the Client hereby consents to allow SoftProg to
collect data regarding SoftProg’ use of the
Services and to provide such data to any governmental or regulatory body for
the purpose of SoftProg’ compliance with any
applicable laws and regulations.
1.12.3 Each party shall for the duration of any Agreement governed by these
Terms and Conditions comply with the provisions of the Data Protection Act
1998, (including the data protection principles set out in that Act) and any
similar or analogous laws, regulatory requirements or codes of practice
governing the use, storage or transmission of personal data and shall not
permit anything to be done which might cause or otherwise result in a breach by
either party of the same.
1.12.4 SoftProg possesses the right to communicate
with the Client regularly via, but not limited to, electronic means.
1.12.5 SoftProg may, from time to time, send Client
information relating to the services of other companies that SoftProg
feels may be of interest to the Client. If the Client does not want to receive
such information, it is to inform SoftProg in
writing.
1.12.6 SoftProg has the right to deny Customer
Support to the Client if the Client fails to demonstrate to the
SoftProg representative upon receipt of a phone call or e-mail by
SoftProg that they are indeed the Client and therefore authorised to
request that changes be made on the account. The Client acknowledges that it
may not always be possible for SoftProg to
guarantee that breaches will not occur and therefore agrees to cooperate with
SoftProg staff in its requests for Client authentication.
Clause 1.13 Liability
1.13.1 Nothing in this Agreement shall restrict or
exclude either party’s liability for fraud, death or personal injury.
1.13.2 The Client shall not be entitled to any liquidated compensation or
refund payments for unavailability of or interruptions to the Service.
1.13.3 SoftProg shall not be liable to the Client
nor to any third party under this Agreement in contract, tort or otherwise for
any direct or indirect loss of profit, anticipated savings, business,
contracts, revenue, time, goodwill or loss of or harm to data or other content
or for any other indirect or consequential loss.
1.13.4 SoftProg shall not be liable in respect of
any goods or services purchased or obtained or any transactions entered into by
the Client through the Service with third parties. Further SoftProg
shall have no liability to the Client in respect of any third party Internet
criminal activity (including without limitation as a result of computer
‘hackers’) or in respect of billing, payment, or other information that passes
between SoftProg over the Internet (including by
e-mail) in relation to the provision of the Service.
Clause
1.14 Data Backup
1.14.1
Whilst SoftProg shall use its reasonable endeavours
to ensure that backup copies of the Client’s Web Site and all Client data
contained in the Web Site are made at reasonable intervals, the Client shall be
solely responsible for the backup of such data and SoftProg
shall not be liable for any damages, loss, costs or other expenses arising out
of or in connection with any loss of data by the Client which are due to the
failure of the Client or SoftProg to back up such
data. If the Client requests a restore for reasons other than an error by
SoftProg, then SoftProg reserves the
right to charge for this service.
Clause
1.15 General Usage Policy
1.15.1 The Client agrees to adhere to
SoftProg’ General Use Policy so as to ensure a safe, functional, and
trusted environment for SoftProg Clients to publish
their information on the Web and will comply with all parts of this clause as
well as with the Acceptable Use Policy as found at
www.softprog.net
1.15.2 The parties acknowledge and agree that the
Client shall have full editorial control over the contents of the Web Site and
the Client warrants that the Web Site (including where the Client engages in
any form of electronic communication through a discussion forum, via the Web
Site or otherwise with any end-user) shall not:
1.15.2.1 be in breach of the laws of England and Wales or the country of
establishment of the Client or any end-user of the Web Site, or any
international conventions, codes or regulations applicable to the Internet
including but not limited to infringement of copyright and other Intellectual
Property Rights, defamation, theft, fraud, drug-trafficking, money laundering
and terrorism; or
1.15.2.2 include any obscene or inflammatory language; or
1.15.2.3 include any defamatory material; or
1.15.2.4 promote sexually explicit materials; or
1.15.2.5 promote violence, sadism, cruelty or incite racial hatred; or
1.15.2.6 promote discrimination based on race, sex, religion, nationality,
disability, sexual orientation or age; or
1.15.2.7 promote illegal activity.
1.15.3 The Client shall indemnify and keep SoftProg
indemnified against all proceedings, losses, liabilities, damages (including
legal costs), Charges and expenses of whatsoever nature arising out of or in
connection with any action or claim that the content of the Web Site violates
the provisions noted above.
1.15.4 Clients in breach of this policy will be contacted by SoftProg
and given the opportunity to remove the content in question before having
services suspended. The Client accepts that repeated infractions may cause the
cancellation of service without refund of any fees.
1.15.5 The Client agrees to comply with all applicable legal and regulatory
requirements and any applicable licence; and
1.15.5.1 not use the Service in a way which could cause it to be interrupted,
damaged or otherwise impaired or which violates SoftProg’
rights (including intellectual property rights) or those of any third party
(including copyright, confidence, privacy or other rights); and
1.15.5.2 not knowingly intercept or attempt to intercept any message that
passes over SoftProg’ System or attempt to access
any unauthorised component of the Service; and
1.15.5.3 only connect to SoftProg’ System or the
Apparatus, telecommunications equipment that is approved for use by
SoftProg and complies with all relevant legislation, standards, and
licence requirements; and
1.15.5.4 comply with all reasonable instructions SoftProg
gives the Client relating to the use of SoftProg’
System or Apparatus; and
1.15.5.5 pay the applicable Charges as set out in the Service Order or
Applications and comply with any additional obligations specified in the
Service Description, Service Order or any applicable Acceptable Use Policy.
1.15.6 SoftProg does not support
unsolicited e-mail messages sent by users of SoftProg’
system (also known as junk e-mail or SPAM) other than to the Client’s own
Clients. Users sending unsolicited e-mail messages from
SoftProg’ system or posting SPAM in Usenet Newsgroups will have all
services temporarily suspended. The Client will then be contacted by
SoftProg and informed of the suspension before having services
reinstated. The Client accepts that repeated infractions may cause the
cancellation of service without refund of any fees.
1.15.7 The Client agrees to access SoftProg’
services using its published fully qualified domain name (FQDN - e.g.
popmail.softprog.net or www.yourcompanyname.com) and not the underlying IP
address and acknowledges that SoftProg reserves the
right to change the underlying IP address of any of its services without prior
notice.
1.15.8 SoftProg may, at its sole discretion, run
manual or automatic systems to check compliance with these Terms and
Conditions. The Client acknowledges that these checks may include, but are not
limited to, scanning for open mail relays, smurf amplifiers
and insecure formmail scripts. By accessing the
Internet via SoftProg’ services, the Client is
deemed to have granted permission for these checks.
1.15.9 The Client is required to accept e-mail addressed to "postmaster" at the
Client’s e-mail address utilising the domain name(s) on the Client’s account.
For example, if the Client has the domain name "mybusiness.co.uk", then the
Client shall accept and read all e-mail addressed to
postmaster@yourcompanyname.co.uk. The Client will be deemed to have read any
and all such postmaster-addressed e-mail. The Client acknowledges that
SoftProg may take action on the basis of this assumption that may
impact the Client’s account.
Clause
1.16 Suspension of Services
1.16.1 SoftProg may
disconnect the provision of Service without liability on its part, and with as
much prior notice as reasonably possible (except in the case of paragraph (a)
below in which case SoftProg may do so without
prior notice:)
(a) if necessary for operational reasons or for the
purposes of carrying out Work at the Premises or maintaining or upgrading the
Service or SoftProg’ System; or
(b) if obliged to comply with an order, instruction, or request of an emergency
service organisation or a governmental or other competent authority.
Clause 1.17 Variation
1.17.1 Except as explicitly stated in this
Agreement, the terms of the Agreement may only be changed or modified by
SoftProg on behalf of both parties. SoftProg
may change the technical specification of the Service at any time, provided
this does not detrimentally affect its performance.
1.17.2 SoftProg may amend this Agreement at any
time, with immediate effect, in order to comply with any law, regulation or
ruling of Oftel or any other Governmental or
regulatory body.
Clause 1.18 Indemnity
1.18.1 Client shall indemnify SoftProg against all
third party claims and losses, liabilities, costs and expenses (including
without limitation reasonable legal expenses) that SoftProg
may incur as a result of any breach of SoftProg’
obligations under this Agreement or misuse of the Services (whether by Client
or not) provided that this indemnity shall not apply to the extent that any
claim or part of a Claim directly results from any wrongful or negligent acts
or omissions by SoftProg.
Clause 1.19 Waiver
1.19.1
Failure or delay by either party to enforce any of its rights under this
Agreement shall not be deemed to be a waiver of any such right nor prevent that
party from exercising or enforcing that same right or any other right on a
later occasion.
Clause
1.20 Assignment
1.20.1 SoftProg may assign
or otherwise transfer this Agreement at any time. The Client
may not assign or otherwise transfer this Agreement or any part of it without
SoftProg’ written consent.
Clause
1.21 Refunds
1.21.1
The right to a refund following cancellation of service by the customer is
dependant on the type of service, A service where we need to purchase from a
third parry, as is the case with domain name, ADSL or leased line registrations
no refund will be due. If a domain name is registered for 2 years, it will
remain registered for 2 years weather the customer uses the domain or not.
If any website or email service is purchased with this domain name then
this can be cancelled giving 1 months notice.
If the website or email subscription is taken up for 1 year the user will be
able to cancel this giving at least 60 days notice.
For ADSL connections we have a minimum contract of 3 months.
For leased lines we have minimum contract of 1 year.
All refunds due will be paid taking account of the order date, less time
elapsed on service including any notice periods.
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