Terms and Conditions of Business
Document ID: V20050515020
Definitions
In this Contract unless the context otherwise requires:
- "Athenaeum"
- Athenaeum Limited, company registration number 03800266, with the
registered office at 4 Baghill Road, Tingley, Wakefield, West Yorkshire
WF3 1DE.
- "Services"
- Consultancy, advice, domain name registration, hosting, bandwidth
provision, email, Internet access and any other service or facility
provided by Athenaeum Limited to the Customer.
- "Goods"
- Items sold to the Customer by Athenaeum Limited.
- "in Writing"
- Constitutes any agreement accepted by letter, fax, email, etc. See
also clause 12.1 below.
- "Customer"
- (or "you" or the User). This is the person and/or company
entering into the contract with Athenaeum Limited.
- "User"
- (or "you" or the Customer). This is you, the Customer, or
any person who makes use of the services through you or on your behalf.
- "Director"
- This refers to a director of Athenaeum.
- "Server"
- Computer server equipment operated by Athenaeum, our service providers
or provided by you in connection with the provision of the Services.
- "Contract"
- The agreement between Athenaeum and the Customer incorporating these
conditions. References to "Agreement" shall, where the
context admits, be read as referring to the Contract.
- "Charges"
- The charges as agreed In Writing prior to provision of Goods or
Services and/or Athenaeum's current prices for the Goods or Services
in question.
- "Bandwidth"
- This is any allocated transmission capacity, measured in bits per
second, of the network connection as specified in the Contract.
- "Data Transfer"
- This covers all traffic that passes through our Servers including
specifically but not exclusively web traffic, email, FTP transfers and
any telnet session data.
- "Site"
- The premises or location at which Service is or is to be provided under
this Contract.
- "Equipment"
- Any equipment, which is supplied by or on behalf of Athenaeum to the
customer or placed at or on a Site for the purpose of providing
Services.
- "Internet"
- The global data network comprising Internet connected networks using
TCP/IP (Transmission Control Protocol/Intermit 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 and standards as appropriate.
- "Initial Contract Term"
- This is the initial minimum period of service as specified on the
invoice or in Writing in the form of an official quotation from
Athenaeum.
- "Extension Term"
- This is the period of time stated on the invoice or in Writing for a
continuation of service after the Initial Contract Term.
All Customers using Services and ordering Goods from Athenaeum accept these
Terms and Conditions. Acceptance of Goods or use of Services shall be
deemed to be an acceptance of these Terms and Conditions and if no other
written agreement exists, then these Terms and Conditions shall become the
main agreement between Athenaeum and the Customer (see clause 19 below).
Any terms sought to be imposed by a Customer, either in a document or
otherwise, that conflicts with or adds to these Terms and Conditions is not
accepted. No agent or representative of Athenaeum has the authority to
vary these terms and conditions unless accepted in Writing by a Director.
Athenaeum reserves the right to amend these Terms and Conditions at any
time in the future. The Customer is bound by the Terms and Conditions in
force at the time of accepting the Contract as said Terms and Conditions
form part of the Contract.
This Agreement is made between Athenaeum and the Customer (and Users).
1. Law
1.1. If any part of these Terms and Conditions shall be found
to be unlawful, it shall not affect the validity or enforceability of the
remainder of these conditions.
1.2. This Contract is and shall be deemed to have been made in
England and shall in all respects be governed by English law.
1.3. For the purpose of consumer sales only, these Terms and
Conditions do not affect your statutory rights.
2. Payment and Price
2.1. Athenaeum reserves the right to vary the quoted price for
goods by upward additions in accordance with market conditions that may be
present at the date of actual supply. The Customer shall be required to
pay any such difference in addition to the quoted price. Price lists do
not constitute offer of a contract.
2.2. For Services, the Customer acknowledges that some of our
Services may be provided using facilities provided to us by third parties.
Athenaeum shall have the right to increase our Charges at any time, whether
to reflect increased costs to us from such third parties or otherwise.
However, if such increase exceeds 10% of the Charge in question as it was
immediately prior to the increase you shall be entitled to terminate the
Contract by written notice to us within five days after service of our
notice of increase to you. If you do so terminate, you will remain liable
for all Charges (at the previous rate) up to the date the Contract ends.
2.3. All invoices are due for payment on the date indicated on
the invoice. Payment is to be made in pounds sterling unless agreed in
Writing by a director.
2.4. All overdue invoices will be charged interest on a daily
basis at 5% above the base rate of Barclays Bank plc at the time.
2.5. Payment is accepted in the following forms:
2.5.1. Cash - sterling currency tendered in person. Please do
not post or send by carrier.
2.5.2. Postal Order - UK sterling only. Please cross with a/c
payee only.
2.5.3. Cheques - Must be drawn on an UK bank in sterling.
Athenaeum reserves the right to hold delivery of the goods until the cheque
has cleared.
2.5.4. Bank Transfer - CHAPS and BACS transfers:
Bank: The Co-operative Bank plc
Account details available on request
You must send a remittance advice in Writing and/or inform us
immediately of any payments so that our records can be updated
appropriately.
3. Availability
3.1. Athenaeum will endeavour to comply with the date named for
delivery, which is given and intended as an estimate only and is not to be
the essence of the contract. If Athenaeum is unable to supply the Goods or
Services due to non-availability or any other causes beyond it's control
then Athenaeum shall be at liberty to determine the contract or part
thereof by giving notice to the Customer in Writing.
3.2. Whilst Athenaeum makes every effort to supply Goods and
Services that correspond in every respect to the sample, specification or
description, Athenaeum is not responsible for minor variations in
specification, colour or other design features. No such minor variation
shall entitle the Customer to cancel the contract, nor can Athenaeum be the
subject of any claim by the Customer.
4. Default
4.1. Without prejudice to our other rights and remedies under
this Agreement, if any sum payable is not received on or before the due
date or you are subject to bankruptcy or insolvency proceedings Athenaeum
reserves the right to immediately withdraw, suspend or limit any Services
(but the Customer remains liable during suspension to pay the Charges for
the Services, see clause 4.3 below) or terminate the contract by immediate
notice.
4.2. Bankruptcy or insolvency proceeding means 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 the 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.
4.3. You continue to be liable to pay all charges which are due
for any Goods or Services during any period in which you do not comply with
this Contract.
4.4. The Customer will be charged interest on overdue amounts
as specified in clause 2.4 above.
4.5. If we suspend access to your Services and you wish to
resume following payment the Customer will be liable for a "reconnection"
charge.
4.6. On termination of this Agreement or suspension of Services
we shall be entitled immediately to block your access to our network and
Servers and to remove all data located on our Servers. We shall be
entitled to delete all such data but we may at our discretion hold such
data for such period as we may decide to allow you to collect it at your
expense, subject to payment in full of any amounts withstanding and payable
to us. We shall further be entitled to post such notice in respect of the
non-availability of your Internet hosting Server as we think fit.
4.7. For so long as any sum due to Athenaeum remains unpaid or
any other amount is due to or properly claimed by Athenaeum from the
Customer for Goods or Services or for any other reason, whether pursuant to
these terms or otherwise, Athenaeum shall be entitled to retain any
property owned by the Customer or lawfully in the Customer's custody or
possession and which is held by Athenaeum or by its agents until such time
as all amounts due to Athenaeum are paid and/or any issue between the
Customer and Athenaeum is determined.
4.8. If Athenaeum waives a breach of Contract by you, that
waiver is limited to the particular breach. Any delay by Athenaeum in
acting upon a breach is not to be regarded in itself as a waiver.
5. Property
5.1. Whilst amounts remain owing from the Customer to
Athenaeum, whether due or not, title to the property of any goods supplied
shall remain in Athenaeum and ownership will not pass to the Customer until
Athenaeum has received payment in full. At any time after the due date for
payment from the Customer, Athenaeum, at the Customer's expense, shall have
the right to enter the Customers premises and remove all goods which remain
the property of Athenaeum.
6. Returns
6.1. Athenaeum will not accept returned goods unless authorised
by a director in writing before hand.
6.2. Items returned will not be accepted unless accompanied by
the original packaging and in the original condition.
6.3. The Customer is responsible for all carriage, telephone,
postal, insurance and other incidental charges incurred. The onus is on
the Customer to prove safe delivery.
6.4. Athenaeum may at its discretion, charge a handling fee for
accepting returns, up to 30% of the original cost to the Customer, if the
goods returned prove to be in full working order and in original condition
including all packaging and manuals.
6.5. No credit or refund shall be allowed for goods until they
have been received complete.
7. Internet Services
7.1. The Service, unless otherwise agreed, shall be provided
for a minimum period of twelve months. The minimum period shall commence
upon connection. Connection shall be deemed to be effected when the link
is first live to your Site or other such point as requested by you, to the
Athenaeum network.
7.2. All Users of Internet access, web hosting, domain name
registration and related services provided by Athenaeum Limited, by use of
such services, accept these Terms and Conditions irrespective of the mode
or manner of ordering employed by the Customer when ordering the Services.
7.3. Pornography and sex-related merchandising are PROHIBITED
on any Athenaeum Server.
7.4. Spamming, or the sending of unsolicited email, from any
Athenaeum Server or using an email address that is maintained on a
Athenaeum Server is STRICTLY PROHIBITED.
7.5. Athenaeum Limited is entitled to suspend Services if the
User does not adhere to any or several conditions of this Contract.
7.6. You will use all reasonable endeavours to ensure that the
Athenaeum Service is used or includes content that conforms to the laws of
this country and will not knowingly permit any illegal use or such use that
will bring Athenaeum into disrepute.
7.7. You must not, nor must any other person, use the Service
to send or receive any material which is offensive, abusive, indecent,
obscene, pornographic or menacing, or in breach of confidence, copyright,
privacy or any other rights, to cause annoyance, inconvenience or needless
anxiety, or in breach of any provisions as contained within clauses 9 and
10 of this Contract, or other than in conformance with the acceptable use
policies of any connected networks and the Internet standards.
7.8. Athenaeum may discontinue Service immediately if the User
is found to have carried out or permitted any illegal or use that is
prohibited by these terms. If Athenaeum suspends Service for contravention
of the above conditions of this clause, Athenaeum can refuse to restore
Service until it receives an acceptable assurance from the User that there
will be no further contravention.
7.9. If the bandwidth or speed of Service used by you exceeds
agreed quotas in a one month minimum period excess Charges will be payable
by the Customer.
7.10. Connection to Athenaeum Internet Services is via a fixed
telecommunications link or dial up connection. This Contract, unless
specifically stated or otherwise provided, does not include the provision
of telecommunications services necessary for connection to Athenaeum
Internet Services.
7.11. Requests relating to the provision of Service are, unless
otherwise agreed to be made or confirmed in Writing.
7.12. Athenaeum will use all reasonable endeavours to provide
reliable Service. However, it is not practicable to provide Service free
of faults and Athenaeum does not undertake to do so. In the event of a
fault in Service, you must report the fault by telephone, fax or email to
Athenaeum's Technical Support at the appropriate numbers or addresses or
other such numbers or addresses that Athenaeum may from time to time
provide. Upon receipt of the fault report, Athenaeum will take all proper
steps to correct the fault. Athenaeum shall not, in any event, be liable
for interruptions of Service or downtime of a Server.
7.13. Athenaeum may:
7.13.1. temporarily suspend for the purpose of repair,
maintenance or improvement, part or all of Service, without notice.
Athenaeum undertakes to use reasonable endeavours to restore Service as
soon as practicable after any such suspension.
7.13.2. give or update instructions regarding the use of
Service which in Athenaeum's reasonable opinion are necessary in the
interests of safety, or to maintain or improve the quality of Service to
Athenaeum's customers. Any such instructions shall, whilst they are in
force, be deemed to form part of this Contract.
7.13.3. vary the technical specification of Service for
operational reasons.
8. Domain Name Registration
8.1. We make no representation that the domain name you wish to
register is capable of being registered by or for you or that it will be
registered in your name. You should therefore not assume registration of
your requested domain name(s) until you have been notified that it has or
they have been registered. Any action taken by you before such
notification is at your risk.
8.2. The registration and use of your domain name is subject to
the terms and conditions of use applied by the relevant naming authority.
You shall ensure that you are aware of those terms and conditions and that
you comply with them. You shall have no right to bring any claim against
us in respect of refusal to register a domain name or cancellation of the
domain name by the relevant naming authority. Any administration charge
paid by you to us shall be non-refundable notwithstanding refusal by the
naming authority to register your desired name.
8.3. We shall have no liability in respect of the use by you of
any domain name. Any dispute between you and any other person must be
resolved between the parties concerned in such dispute. If any such
dispute arises, we shall be entitled, at our discretion and without giving
any reason, to withhold, suspend or cancel the domain name. We shall also
be entitled to make representations to the relevant naming authority but
will not be obliged to take part in any such dispute.
8.4. We give no warranty or representation that your domain
name is or will continue to be available for your use or that no domain
name is or will be registered which conflicts with your domain name or
which otherwise affects your use of your domain name.
8.5. Athenaeum shall be entitled to withhold the release of any
domain name to another provider or "tag holder" unless full payment of all
amounts due to us at that time for whatever reason have been received by
us.
8.6. If payment is not received for any domain name Athenaeum
may delete or retain the domain for further sale.
9. Hosting and Email Services
9.1. We make no representation and give no warranty as to the
accuracy or quality of information received by any person via the Server
and we shall have no liability for any loss of or damage to any data stored
on the Server.
9.2. You shall effect and maintain adequate insurance cover in
respect of any loss of or damage to data stored on the Server.
9.3. You represent, undertake and warrant to us that you will
use the Server and associated services allocated to you only for lawful
purposes. In particular, you represent, warrant and undertake to us that:
9.3.1. You will not use the Server in any manner which
infringes any law or regulation or which infringes the rights of any third
party, nor will you authorise or permit any other person to do so.
9.3.2. You will not post, link to or transmit:
(a) Any material which is unlawful, threatening, abusive,
malicious, defamatory, obscene, pornographic, blasphemous, profane or
otherwise objectionable in any way.
(b) Any material containing a virus or other hostile computer
program.
(c) Any material which constitutes, or encourages the
commission of, a criminal offence or which infringes any patent, trade
mark, design right, copyright or any other intellectual property right or
similar rights of any person which may subsist under the laws of any
jurisdiction.
Your attention is drawn to the provisions of clause 7.8 above.
9.4. You shall keep secure any identification, password and
other confidential information relating to your account and shall notify us
immediately of any known or suspected unauthorised use of your account or
breach of security, including loss, theft or unauthorised disclosure of
your password or other security information.
9.5. You shall observe the procedures which we may from time to
time prescribe and shall make no use of the Server which is detrimental to
our other customers.
9.6. You shall procure that all email is sent in accordance
with applicable legislation (including data protection legislation) and in
a secure manner.
9.7. In the case of an individual User, you warrant that you
are at least 18 years of age and if the User is a company, you warrant that
the Services will not be used by anyone under the age of 18 years.
9.8. Any access to other networks connected to Athenaeum must
comply with the rules appropriate for those other networks.
9.9. While we will use every reasonable endeavour to ensure the
integrity and security of the Server, we do not guarantee that the Server
will be free from unauthorised users or hackers or from corruption by virus
and we shall be under no liability for non-receipt or misrouting of email
or for any other failure of email or damage to date or operations.
10. Reselling
10.1. If you are or become a reseller of our Services you will
continue to be bound by these Terms and Conditions. You will be
responsible for ensuring that your customers are bound by terms and
conditions that adequately reflect and give effect to these Terms and
Conditions.
10.2. You shall not incur or purport to incur on our behalf any
liability nor in any way pledge or purport to pledge our credit or to make
any contract binding on us.
10.3. You may resell the Athenaeum Service provided that you
have paid our Charges and that you do so based on your own technical and
legal responsibility and never sell bandwidth or speed of service greater
than that of the Service you have contracted for with Athenaeum.
Furthermore you must not purport or claim that the resale is a resale of
the Athenaeum Service. You will hold Athenaeum indemnified against any
claims from a party to whom you have resold and will ensure that your own
terms and conditions in any resale contract include and comply with these
Terms and Conditions. If Athenaeum agrees any change in Service this
Contract is to be treated as varied accordingly.
10.4. No default by your customers shall in any way affect,
modify or limit your obligations under the Contract.
10.5. We do not permit reselling of Internet access services
under any circumstances. This specifically, but not exclusively, includes
dial-up access accounts, wireless access provided to the Athenaeum network
and broadband service access.
11. Termination of Services
11.1. Either party may terminate Service by giving at least 30
days notice to the other expiring on the last day of the Initial Contract
Term or at any time thereafter. If Athenaeum gives notice you shall pay all
charges up to the expiry of the notice. If you give notice, you shall pay
all charges as provided in clause 11.4 below. Your notice does not avoid
any other liability for Service already provided.
11.2. Athenaeum reserves the right during the Initial Contract
Term and at any time thereafter to terminate this Contract by giving to you
not less than 30 days prior written notice of termination.
11.3. After the expiry of the minimum period you may terminate
the Service by giving not less than 30 days prior written notice of
termination, but subject to clause 11.4 below.
11.4. If you continue Service beyond the Initial Contract Term
you will be liable to pay for the remainder of any Extension Term even
though Service ends before the end of the Extension Term.
12. Notices
12.1. Any notice to be given by either party to the other may
be sent by either email, fax or recorded delivery to the address of the
other party as may from time to time have been communicated to the other in
writing, and if sent by email shall unless the contrary is proved be deemed
to be received on the day it was sent or if sent by fax shall be deemed to
be served on receipt of an error free transmission report, or if sent by
recorded delivery shall be deemed to be served two days following the date
of posting.
13. Matters Beyond Athenaeum's Reasonable Control
13.1. Athenaeum is not liable for any breach of this Contract
or liable for any delay or failure in performance of any part of these
conditions and its commitments when caused as a result of Force Majeure,
war, civil disorder, industrial disputes, inclement weather, acts of local
or central government or other competent authorities, and failure by other
service providers.
14. Liability
14.1. No liability for any claim for damage or
non-functionality of Goods shall be accepted unless Athenaeum is notified
in Writing within five working days of delivery or completion of contract.
14.2. No liability for any claim for missing items such as
manuals etc. shall be accepted unless the Customer notifies Athenaeum in
Writing within five working days of delivery.
14.3. No liability for any claim will be accepted in the case
of goods differing in quantity or descriptions from the particulars given
on the delivery note/invoice unless the Customer notifies Athenaeum in
writing within five working days of delivery. The onus is on the Customer
to prove non-receipt/shortage.
14.4. Where a manufacturer operates direct product support and
returns procedures, the Customer accepts an obligation to process their
claim directly with the manufacturer.
14.5. Athenaeum makes no warranty as regards to its Services or
equipment and will not be responsible for any damage allegedly suffered or
claimed by you for any reason including but not limited to loss of data,
wrong or non deliveries and Service interruptions.
14.6. You acknowledge that Athenaeum has no control over the
information transmitted via the Service and that Athenaeum does not examine
the use to which you put the Service or the nature of the information you
are sending or receiving. Athenaeum hereby excludes all liability of any
kind for the transmission or reception of information of whatever nature.
14.7. Athenaeum undertakes no liability whatsoever for the acts
or omissions of other providers of telecommunication service or for faults
in or failures of their apparatus.
14.8. All conditions, terms, representations and warranties
relating to the Services supplied under this Agreement, whether imposed by
statute or operation of law or otherwise, that are not expressly stated in
these Terms and Conditions including, without limitation, the implied
warranty of satisfactory quality and fitness for a particular purpose are
hereby excluded, subject always to clause 14.9.
14.9. Nothing in these terms and conditions shall exclude our
liability for death or personal injury resulting from our negligence.
14.10. Our total aggregate liability to you for any claim in
contract, tort, negligence or otherwise arising out of or in connection
with the provision of Goods or Services shall be limited to the charges
paid by the Customer in respect of the Goods or Services which are the
subject of any such claim.
14.11. Athenaeum shall under no circumstances whatsoever be
liable to the Customer in respect of any loss or damage whether suffered by
the Customer or any other party and whether direct, indirect,
consequential, or however else arising.
14.12. In any event, no claim shall be brought unless we have
been notified of the claim within one year of it arising.
15. Indemnity
15.1. You shall indemnify us and keep us indemnified and hold
us harmless from and against any breach by you of these Terms and
Conditions and any claim brought against us by a third party resulting from
the provision of Services by Athenaeum to you and your use of the Services
and the Server including, without limitation, all claims, actions,
proceedings, losses, liabilities, damages, costs, expenses (including
reasonable legal costs and expenses), howsoever suffered or incurred by us
in consequences of your breach or non-observance of this Agreement.
16. Intellectual Property Rights
16.1. You shall obtain any and all necessary consents and
clearances to enable you lawfully to make use of all and any intellectual
property rights through the Services, including without limitation,
clearance and/or consents in respect of your proposed domain name.
17. Assignment
17.1. You may assign all or part of this Contract to any other
party only with the prior written agreement of Athenaeum. Athenaeum
reserves the right to assign all or part of this Contract at any time to
any subsidiary or associate company of Athenaeum.
18. Headings
18.1. Headings are included in this Agreement for convenience
only and shall not affect the construction or interpretation of this
Agreement.
19. Entire Agreement
19.1. These Terms and Conditions together with any documents
expressly referred to in them, contain the entire Agreement between us
relating to the subject matter covered and supersede any previous
Agreements, arrangements, undertakings or proposals, written or oral:
between us in relation to such matters.
19.2. No oral explanation or oral information given by any
party shall alter the interpretation of these Terms and Conditions.
19.3. In agreeing to these Terms and Conditions, you have not
relied on any representation other than those expressly stated herein and
you agree that you shall have no remedy in respect of any misrepresentation
which has not been made expressly in this Agreement.
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