| Obsidian Internet Standard Terms and Conditions |
Clause 1.1 Definition of Terms1.1.1In this Agreement the following terms shall
have the following meanings: 1.1.2References to Clauses are references to clauses in the Agreement. 1.1.3Clause headings are for ease of reference and do not form part of nor shall they affect the interpretation of these Terms and Conditions. 1.1.4References to each party include their permitted assigns and successors by operation of law. 1.1.5A 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. 1.1.6Words 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. 1.1.7References 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. 1.1.8The words "include" or "including" are to be construed without limiting the generality of any preceding words. Clause 1.2 Provision of Service1.2.1OBSIDIAN Internet 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 OBSIDIAN Internet and subject to the further provisions of this Agreement. 1.2.2The Client may request OBSIDIAN Internet to supply Service to the Client by completing and forwarding an Application to OBSIDIAN Internet or by submitting an online Application via OBSIDIAN Internet's website. OBSIDIAN Internet, 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. 1.2.3OBSIDIAN Internet will endeavour to provide the Service in a timely manner but (in particular where OBSIDIAN Internet are dependent on another operator to provide the Service and/or due to technical reasons) cannot guarantee to do so, and OBSIDIAN Internet will have no liability for any failure to meet such date. 1.2.4The Client acknowledges that the fees paid for any OBSIDIAN Internet hosting package are allocated to the acquisition of the domain name as registered with the appropriate Registrar and that all other services, as delivered as part of that initial hosting package, are deemed to be provided free of charge. The Client further acknowledges that once the acquisition of this domain name has occurred as outlined on the Service Order OBSIDIAN Internet is deemed to have fully executed its contractual obligations to the Client. 1.2.5OBSIDIAN Internet possesses the right to change service providers at any time without consulting the Client and the Client empowers OBSIDIAN Internet to act as its agent and have full authority to select, change or remove sub agents when deemed necessary. 1.2.6OBSIDIAN Internet 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. 1.2.7The Client accepts that OBSIDIAN Internet reserves the right to subject the Client to a credit check and has sole discretion over whether or not the Client may utilise OBSIDIAN Internet's services based on the results of that check. The Client also accepts that if the credit check does not meet OBSIDIAN Internet's requirements, whatsoever they may be at the time, that OBSIDIAN Internet 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. 1.2.8The Client acknowledges that OBSIDIAN Internet 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 OBSIDIAN Internet as outlined on the Service Order. 1.2.9The Client shall do all things and provide all such information as is reasonably required by OBSIDIAN Internet to provide the Services in accordance with these Terms and Conditions. Clause 1.3 Payment and Term1.3.1Any agreement shall commence on the date of acceptance by OBSIDIAN Internet of the Application submitted by the Client and shall be paid on an annual basis for an initial contract period of two-years (unless otherwise specified) and annually thereafter, unless and until terminated by either party by providing 60 days written notice with no termination earlier than the end of the initial contract period or annual renewal period. 1.3.2The fees payable to OBSIDIAN Internet in respect of the Services are specified in the OBSIDIAN Internet Price List. If a credit card or debit card is on file with OBSIDIAN Internet, the Client acknowledges that OBSIDIAN Internet will automatically take payment via that device 14 days from the date of invoice. If payment is not received via this process (i.e.: credit card or debit card is no longer valid, credit card or debit card has expired, etc.) OBSIDIAN Internet will inform the Client via fax or letter and the Client acknowledges that the invoice (pro-forma or otherwise) is to be paid by other means and that OBSIDIAN Internet reserves the right to pursue any outstanding invoice (pro-forma or otherwise) through the appropriate legal channels. 1.3.3All Charges are due in advance (whether disputed or not) or within 14 days of invoice (unless specified otherwise in the application or on the invoice.) The Client acknowledges that OBSIDIAN Internet reserves the right to suspend the customer's entire account in the event of non-payment for any overdue invoice (pro-forma or otherwise.) 1.3.4The Client may be required to pay for Services by Direct Debit or Credit Card on a non-invoiced basis. OBSIDIAN Internet will notify the Client if this is the case. 1.3.5All 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. 1.3.6In the event of a material breach as described above, OBSIDIAN Internet's normal terms for collection of payment apply. If the Client chooses to pay by direct debit, and if, for any reason, the Client's direct debit fails or mandate is cancelled and OBSIDIAN Internet cannot take payment, the Client agrees to make the payment in full by an alternative method within 5 days. If payment is made within this time period, the Client can continue to pay via direct debit though, if payment is not made with in this five day period, OBSIDIAN Internet retains the right to pursue payment through its normal processes and retract the Client's right to pay by direct debit in the future. 1.3.7The Client acknowledges that he shall provide OBSIDIAN Internet with such amount in cash or by way of guarantee as OBSIDIAN Internet 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, OBSIDIAN Internet will have the right to disconnect the Service. Interest is not payable on deposits. 1.3.8If the Client is overdue with any payments hereunder, then without prejudice to OBSIDIAN Internet's other rights and remedies, the Client shall be liable to pay to OBSIDIAN Internet a flat fee of £15 for each correspondence, OBSIDIAN Internet's 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 Royal Bank of Scotland plc, which interest shall accrue on a daily basis from the date payment becomes overdue until OBSIDIAN Internet has received payment of the overdue amount together with all interest. 1.3.9Should the Client choose to pay for any ongoing fees by Direct Debit, the completed Direct Debit form must be returned to OBSIDIAN Internet within 28 days. In the event of the Client failing to return a completed direct debit mandate, OBSIDIAN Internet reserves the right to withdraw any discounts that may have been offered and invoice (pro-forma or otherwise) for the annual premium immediately. This invoice (pro-forma or otherwise) will then be payable within 14 days by other means. 1.3.10The Client accepts that if any services provided by OBSIDIAN Internet are disconnected because of non-payment or because of any breach of contract or Acceptance of Use Policies, OBSIDIAN Internet has the right to charge the Client a reconnection fee equal to one month's fees with a minimum payment of £45 plus VAT for each reconnection unless specifically stated otherwise in these terms and conditions. 1.3.11The Client acknowledges responsibility for informing OBSIDIAN Internet of all billing address changes and any changes relating to the Client's ability to be contacted and further confirms that OBSIDIAN Internet must be informed of any changes on the account including but not limited to address changes or contact person changes and that OBSIDIAN Internet possesses the right to charge a £15 administration fee per change and that OBSIDIAN Internet will not be held responsible for any disruption or lack of service which result from a lack of notification by Client to OBSIDIAN Internet regarding such changes Clause 1.4 Client's Obligations1.4.1The Client shall: 1.4.1.1supply OBSIDIAN Internet with such information as OBSIDIAN Internet or its sub-contractor may reasonably request in order to carry out any Work; and 1.4.1.2grant or procure so that OBSIDIAN Internet 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, keep, and maintain any Apparatus at the Premises; and 1.4.1.3in the case of an emergency grant or procure that OBSIDIAN Internet or its sub-contractor is granted all necessary authority to enter the Premises immediately and without notice; and 1.4.1.4provide appropriate space, ducting, suitable and safe working environment and electrical power for OBSIDIAN Internet or its subcontractor to install and maintain the Apparatus at the Premises at no cost; and 1.4.1.5not alter, adjust, or interfere with the Apparatus or allow any of Client employees or agents to do so; and 1.4.1.6ensure that the Apparatus is kept safe and not interfered with by any third party. Clause 1.5 Warranties1.5.1In performing OBSIDIAN Internet's duties under this Agreement, OBSIDIAN Internet shall, at all times use its reasonable endeavours to excercise reasonable care of a competent ISP (Internet Service Provider) or, as applicable, telecommunications operator. The Client acknowledges that neither OBSIDIAN Internet, nor any other party, has control over the Internet and service interruptions may occur due to circumstances beyond or at times within OBSIDIAN Internet's reasonable control such as internal and/or external system malfunctions or failures of third parties. The Client therefore acknowledges that OBSIDIAN Internet shall not be held liable in any way for losses as a result of such service interruptions regardless of their nature. 1.5.2The Client further acknowledges that OBSIDIAN Internet shall in no way be held liable for any service outage or disruption that occurs as a result of any of OBSIDIAN Internet's suppliers' failure to provide a service. For clarification, if any of OBSIDIAN Internet's suppliers enters administration, liquidation, is wound up or for any reason fails to provide a service to OBSIDIAN Internet that impacts the Client, OBSIDIAN Internet shall not be held liable. In the event OBSIDIAN Internet selects an alternative supplier in order to restore the service to the Client, the Client acknowledges that any increase in the costs to OBSIDIAN Internet as a result of the supplier change will be passed on to the Client. 1.5.3The Client acknowledges that OBSIDIAN Internet offers a Reseller program for Client's that purchase OBSIDIAN Internet packages on behalf of an end user. The Client further acknowledges that the Client is responsible for all domain names and packages purchased on behalf of a third party, and if not purchased through the Reseller program as offered by OBSIDIAN Internet, OBSIDIAN Internet will not be held liable for any implications resulting from OBSIDIAN Internet's effort to contact the Client at the contact details held on the account within OBSIDIAN Internet's system through domain names held on the Client's account. 1.5.4The Client acknowledges that it is not possible for OBSIDIAN Internet to provide a 100% fault-free Service. OBSIDIAN Internet 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 OBSIDIAN Internet 's control including without limitation the breakdown of transmission and telecommunication links or provisions of services by OBSIDIAN Internet's selected service providers. Sometimes OBSIDIAN Internet will need to suspend the Service for maintenance, scheduled or unscheduled. While OBSIDIAN Internet will try to maintain the Service 24 hours a day, seven days a week, OBSIDIAN Internet cannot guarantee to do so. OBSIDIAN Internet will always try to repair reported faults and/or restore the Service as soon as reasonably practical. 1.5.5The Client warrants to OBSIDIAN Internet that the Client has obtained and will maintain all such approvals, way leaves, and licences as may be necessary to perform OBSIDIAN Internet's obligations under this Agreement or to allow OBSIDIAN Internet to do so and that the Client will comply generally with all applicable laws and regulations. 1.5.6No other warranties or representations, expressed or implied, are given by either party under this Agreement and any implied warranties are expressly excluded. 1.5.7The 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. 1.5.8The Client warrants that it will comply in every respect with the provisions of OBSIDIAN Internet 's General Usage Policy. Clause 1.6 Term and Termination1.6.1This Agreement may be terminated by either party by providing 60 days written notice with no termination earlier than the initial contract period or annual renewal period. 1.6.2If the Client terminates this Agreement during the initial period of two-years, other than because OBSIDIAN Internet has increased its Charges or materially changed the terms of this Agreement to the Client's detriment, or if the Agreement is terminated by OBSIDIAN Internet under 1.6.3 below, the Client must pay OBSIDIAN Internet the applicable Charges for the remainder of the initial contract period. 1.6.3Either party may terminate this Agreement or the Service provided under it forthwith by notice to the other if: 1.6.3.1the 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 1.6.3.2the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or 1.6.3.3the other fails to pay any Charges when due; or 1.6.3.4the 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 1.6.3.5the other party ceases to carry on its business or substantially the whole of its business; or 1.6.3.6the 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 1.6.3.7the bandwidth used for traffic to and from the web site is exceeded beyond OBSIDIAN Internet's considered acceptable use and is deemed by OBSIDIAN Internet to affect the performance of other Clients' Business Websites. Notwithstanding any other remedies it may have under these Terms and Conditions or in law, OBSIDIAN Internet, in the event that the acceptable bandwidth is exceeded, may elect to charge the Client an additional monthly fee as set out in the OBSIDIAN Internet Price List or Service Order. 1.6.4If any of the events detailed above occur as a result of OBSIDIAN Internet's default, OBSIDIAN Internet may by giving notice to the Client to disconnect the Service or any part of it without prejudice to OBSIDIAN Internet's 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. 1.6.5Any rights to terminate this Agreement shall be without prejudice to any other accrued rights. 1.6.6On termination of this Agreement for any reason: 1.6.6.1OBSIDIAN Internet shall have the right immediately to remove any Apparatus from the Premises; and 1.6.6.2all 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 1.6.6.3OBSIDIAN Internet 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 subject to Clause1.6.6.4, and Business Web-spaces. OBSIDIAN Internet shall not exercise this right for six weeks in the case of termination by OBSIDIAN Internet other than for breach by Client; and 1.6.6.4OBSIDIAN Internet shall transfer any domain names held by the Client to another ISP at a Charge as specified in the OBSIDIAN Internet Price List. Clause 1.7 Consequences of Termination1.7.1Upon the termination of any Agreement for any reason whatsoever: 1.7.1.1the Client shall promptly return to OBSIDIAN Internet all copies of the Software in his possession; and 1.7.1.2OBSIDIAN Internet may cease to host the Business Web Site with immediate effect; and 1.7.1.3each 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 Renewal1.8.1OBSIDIAN Internet will automatically renew the Client's contract each year after the initial two-year contract period unless the Client notifies OBSIDIAN Internet in writing at least 60 days prior to the end of the contract period instructing OBSIDIAN Internet to do otherwise. 1.8.2The Client acknowledges in the event OBSIDIAN Internet is not informed at least 60 days prior to the end of the contract period of the Client's wishes not to renew, OBSIDIAN Internet will automatically raise and forward an Invoice (pro-forma or otherwise) to the Client for the renewal for a further year. If a credit card or debit card is on file with OBSIDIAN Internet, the Client acknowledges that OBSIDIAN Internet will automatically take payment via that device 14 days from the date of invoice. 1.8.3If payment is not received via this process (i.e.: credit card or debit card is no longer valid, credit card or debit card has expired, etc.) prior to the end of the contract period, OBSIDIAN Internet will inform the Client via fax or letter and the Client acknowledges that the invoice (pro-forma or otherwise) is to be paid prior to the end of the contract period and that OBSIDIAN Internet reserves the right to pursue any outstanding invoice (pro-forma or otherwise) through the appropriate legal channels. 1.8.4OBSIDIAN Internet will use its reasonable endeavours to ensure that the Domain Name, Existing Domain Name, Internet Keyword or any other OBSIDIAN Internet product will be automatically renewed after expiry of the initial or any subsequent two year registration period provided always that this Agreement remains in force up to the date of expiry of such period. 1.8.5In consideration for renewal of the OBSIDIAN Internet package by OBSIDIAN Internet and prior to the renewal date, the Client shall pay to OBSIDIAN Internet the annual renewal fee set out in the Price List. 1.8.6Whilst OBSIDIAN Internet will use all reasonable endeavours to ensure that the Domain Name, Existing Domain Name, Internet Keyword or any other OBSIDIAN Internet product is renewed at the relevant renewal date, the Client acknowledges that it is not possible for OBSIDIAN Internet to guarantee such renewal and that OBSIDIAN Internet shall not be liable for any failure to renew the Domain Name or the Existing Domain Name. 1.8.7The Client acknowledges that in the event the Client fails to remit payment or fails to instruct OBSIDIAN Internet not to renew the OBSIDIAN Internet package, OBSIDIAN Internet 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 OBSIDIAN Internet representative and that OBSIDIAN Internet will, at that point, become the rightful owner of the Domain Name. 1.8.8The Client also acknowledges that in the event the Client fails to remit payment or fails to instruct OBSIDIAN Internet not to renew the OBSIDIAN Internet package, OBSIDIAN Internet reserves the right to offer an alternative domain name to the Client if payment is received during OBSIDIAN Internet's debt recovery process. Clause 1.9 Confidentiality1.9.1The Client shall ensure that its employees, agents, and sub-contractors shall, keep confidential and not, without OBSIDIAN Internet's prior written consent, use or disclose to any third party any material or information relating to the Agreement and/or OBSIDIAN Internet's business which the Client may acquire in the course of or in accordance with the Agreement. 1.9.2Nothing in Clause 1.9.1 will be taken to prevent the Client from disclosing any information: 1.9.2.1in Client's possession (with full right to disclose) before disclosed by OBSIDIAN Internet; or 1.9.2.2which is or becomes public knowledge other than by breach of this clause; or 1.9.2.3which the Client may independently develop or receive from a third party (with full right to disclose) 1.9.3OBSIDIAN Internet reserves the right (but does not assume the obligation) to inspect any material which the Client processes using the Service to ensure OBSIDIAN Internet's compliance with the Agreement and any legal requirements. 1.9.4The Client and OBSIDIAN Internet may disclose such material if requested or required to do so by the police or any other competent authority. 1.9.5If requested to do so by a third party OBSIDIAN Internet may disclose such material during the course of an action for the infringement of their rights which OBSIDIAN Internet reasonably believes to arise from the Client's use of the Service. OBSIDIAN Internet may modify or remove any material that infringes this Agreement. 1.9.6The Client hereby agrees that OBSIDIAN Internet may record or monitor the Client's calls to OBSIDIAN Internet for quality and contractual purposes. 1.9.7Where the Client uses the Service to post material on a Web Site (including chat-rooms and other facilities), the Client grants to OBSIDIAN Internet 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.) OBSIDIAN Internet may remove any material that appears on any page of OBSIDIAN Internet's own Web Site. 1.9.8All 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 Cancellations1.10.1The Client understands that there is no cancellation policy in place meaning that, from the time the Client submits the signed Service Order to OBSIDIAN Internet, the Client waives any right to cancel the services purchased unless specified otherwise within this document. Clause 1.11 Force Majeure1.11.1Neither 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. 1.11.2If 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 Protection1.12.1Unless indicated otherwise on the relevant Application/ Service Order form, the Client hereby agrees to allow OBSIDIAN Internet 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 OBSIDIAN Internet for the purposes of marketing OBSIDIAN Internet's (or OBSIDIAN Internet's 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 OBSIDIAN Internet may provide them with such reasonable information as they request regarding the installation of the Service and OBSIDIAN Internet's provision of the same to the Client. OBSIDIAN Internet will provide the Client on request with details of all such information held by OBSIDIAN Internet, and will modify any information that the Client advises is incorrect. 1.12.2Subject to and in accordance with relevant data protection legislation, the Client hereby consents to allow OBSIDIAN Internet to collect data regarding OBSIDIAN Internet's use of the Services and to provide such data to any governmental or regulatory body for the purpose of OBSIDIAN Internet's compliance with any applicable laws and regulations. 1.12.3Each 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. 1.12.4OBSIDIAN Internet possesses the right to communicate with the Client regularly via, but not limited to, electronic means. 1.12.5OBSIDIAN Internet may, from time to time, send Client information relating to the services of other companies that OBSIDIAN Internet feels may be of interest to the Client. If the Client does not want to receive such information, it is to inform OBSIDIAN Internet in writing. 1.12.6OBSIDIAN Internet has the right to deny Customer Support to the Client if the Client fails to demonstrate to the OBSIDIAN Internet representative upon receipt of a phone call or e-mail by OBSIDIAN Internet 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 OBSIDIAN Internet to guarantee that breaches will not occur and therefore agrees to cooperate with OBSIDIAN Internet staff in its requests for Client authentication. Clause 1.13 Liability1.13.1Nothing in this Agreement shall restrict or exclude either party's liability for fraud, death or personal injury. 1.13.2The Client shall not be entitled to any liquidated compensation or refund payments for unavailability of or interruptions to the Service. 1.13.3OBSIDIAN Internet 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. 1.13.4OBSIDIAN Internet 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 OBSIDIAN Internet 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 OBSIDIAN Internet over the Internet (including by e-mail) in relation to the provision of the Service. 1.13.5The Client acknowledges that OBSIDIAN Internet shall not be liable to the Client in respect of any loss or damage arising from the Clients use of or reliance upon any advice or information provided by OBSIDIAN Internet's Client Services team. 1.13.6Subject to the other provisions of this Clause, any liability OBSIDIAN Internet may have to the Client in contract, tort, or otherwise in connection with the supply or non-supply of the Services and this Agreement shall be limited in each calendar year to damages equal to the Charges paid by the Client in that calendar year. Clause 1.14 Data Backup1.14.1Whilst OBSIDIAN Internet 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 OBSIDIAN Internet 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 OBSIDIAN Internet to back up such data. Clause 1.15 General Usage Policy1.15.1The Client agrees to adhere to OBSIDIAN Internet's General Use Policy so as to ensure a safe, functional, and trusted environment for OBSIDIAN Internet 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.OBSIDIANinternet.net/ 1.15.2The 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: 1.15.2.1be 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 1.15.2.2include any obscene or inflammatory language; or 1.15.2.3include any defamatory material; or 1.15.2.4promote sexually explicit materials; or 1.15.2.5promote violence, sadism, cruelty or incite racial hatred; or 1.15.2.6promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; or 1.15.2.7promote illegal activity. 1.15.3The Client shall indemnify and keep OBSIDIAN Internet 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. 1.15.4Clients in breach of this policy will be contacted by OBSIDIAN Internet 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. 1.15.5The Client agrees to comply with all applicable legal and regulatory requirements and any applicable licence; and 1.15.5.1not use the Service in a way which could cause it to be interrupted, damaged or otherwise impaired or which violates OBSIDIAN Internet's rights (including intellectual property rights) or those of any third party (including copyright, confidence, privacy or other rights); and 1.15.5.2not knowingly intercept or attempt to intercept any message that passes over OBSIDIAN Internet's System or attempt to access any unauthorised component of the Service; and 1.15.5.3only connect to OBSIDIAN Internet's System or the Apparatus, telecommunications equipment that is approved for use by OBSIDIAN Internet and complies with all relevant legislation, standards, and licence requirements; and 1.15.5.4comply with all reasonable instructions OBSIDIAN Internet gives the Client relating to the use of OBSIDIAN Internet's System or Apparatus; and 1.15.5.5pay 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. 1.15.5.6must comply to any fair usage policies as determined by OBSIDIAN, wherein usage of services with OBSIDIAN do not affect other customers services with OBSIDIAN. This may include but is not limited to Web Server Space and Bandwidth, regardless of whether said services offer an "unlimited" option. 1.15.6OBSIDIAN Internet does not support unsolicited e-mail messages sent by users of OBSIDIAN Internet's system (also known as junk e-mail or SPAM) other than to the Client's own Clients. Users sending unsolicited e-mail messages from OBSIDIAN Internet's system or posting SPAM in Usenet Newsgroups will have all services temporarily suspended. The Client will then be contacted by OBSIDIAN Internet 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. 1.15.7The Client agrees to access OBSIDIAN Internet's services using its published fully qualified domain name (FQDN - e.g. smtp.businessserve.co.uk) and not the underlying IP address and acknowledges that OBSIDIAN Internet reserves the right to change the underlying IP address of any of its services without prior notice. 1.15.8OBSIDIAN Internet 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 OBSIDIAN Internet's services, the Client is deemed to have granted permission for these checks. 1.15.9The 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@mybusiness.co.uk. The Client will be deemed to have read any and all such postmaster-addressed e-mail. The Client acknowledges that OBSIDIAN Internet may take action on the basis of this assumption that may impact the Client's account. Clause 1.16 Intellectual Property Rights1.16.1The Client agrees and acknowledges that the copyright and any other intellectual property rights in the Software, the E-Tutor, and the Business Web Site shall be owned by OBSIDIAN Internet except that the intellectual property rights in any material proprietary to the Client or any third party (the "Content") which has been incorporated into the Web Site by the Client shall be owned by the Client or the relevant third party respectively. 1.16.2Subject to the exceptions set out in Clause 16.1 the Client hereby assigns to OBSIDIAN Internet for the sum of £1 (receipt of which is hereby acknowledged) the whole of the Client's present and future right, title and interest in the Intellectual Property Rights to the Web Site. 1.16.3Each party agrees to execute any additional documents reasonably necessary to effect and evidence the other party's rights under Clauses 16.1 and 16.2 (at such other party's request) and not to do or omit to do any act that would or might prejudice the other party's rights. 1.16.4The Client warrants that it has obtained for itself and for OBSIDIAN Internet all necessary consents, approvals and licences for use of the Content in the Business Web Site. 1.16.5In the event that the use of the Content infringes the intellectual property rights of any third party, the Client will immediately replace the infringing part at its own expense with non-infringing material. 1.16.6The Client agrees to indemnify and keep OBSIDIAN Internet indemnified and defend it at its own expense from and against: 1.16.6.1any and all claims that the Content or any act or omission by the Client, its employees, agents and representatives infringes any copyright, trademark or other intellectual property rights of any third party; and 1.16.6.2any infringement by the Client, its employees, agents and representatives of OBSIDIAN Internet 's intellectual property rights howsoever arising and shall compensate OBSIDIAN Internet for any loss, damages and other expenses arising out of or in connection with such infringement. Clause 1.17 Suspension of Services1.17.1OBSIDIAN Internet 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 OBSIDIAN Internet 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 OBSIDIAN Internet's 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 1.18 Notices1.18.1Except as expressly stated herein to the contrary, all notices and other communications required or permitted to be given under these terms and conditions shall be in writing and shall be delivered or transmitted to the intended recipient's address as specified above or such other address as either party may notify to the other for this purpose from time to time. Any notice shall be treated as having been served on delivery if delivered by hand, two working days after posting if sent by pre-paid registered mail, on delivery if sent by courier and on confirmation of transmission if sent by facsimile. For the avoidance of doubt, notice under these Terms and Conditions shall not be validly served if sent by E-mail. This clause does not affect the responsibility of the Client to regularly review OBSIDIAN Internet's website for any alterations/amendments to the terms and conditions which would be binding on the client Clause 1.19 Variation1.19.1Except as explicitly stated in this Agreement, the terms of the Agreement may only be changed or modified by OBSIDIAN Internet on behalf of both parties. OBSIDIAN Internet may change the technical specification of the Service at any time, provided this does not detrimentally affect its performance. 1.19.2The Client accepts the obligation to review these terms and conditions every two weeks and, unless OBSIDIAN Internet is informed in writing otherwise, the Client accepts that as part of the Agreement, the revised terms and conditions will indeed supersede, in whole or in part thereof, the previous terms and conditions deeming the revised terms and conditions to be in force until the end the contract period. 1.19.3OBSIDIAN Internet 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 1.20 Indemnity1.20.1Client shall indemnify OBSIDIAN Internet against all third party claims and losses, liabilities, costs and expenses (including without limitation reasonable legal expenses) that OBSIDIAN Internet may incur as a result of any breach of OBSIDIAN Internet's 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 OBSIDIAN Internet. Clause 1.21 Rights of Third Parties1.21.1Except as expressly provided to the contrary, a person ("third party") who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement notwithstanding that any such provision may purport to confer or may be construed as conferring a benefit on such third party. This does not affect any right or remedy of any such third party that exists or is available apart from that Act. 1.21.2For the avoidance of doubt, OBSIDIAN Internet may and shall, as it deems fit, sub-contract part or all of its obligations under these Terms and Conditions. Clause 1.22 Severability1.22.1Should any provision of this Agreement be held by any competent court or authority to be invalid or unenforceable such provision shall (without prejudice to the remaining provisions) have no effect but the parties shall use all reasonable endeavours to replace the invalid or unenforceable provision by a valid provision, the effect of which shall be as close as possible to the intended effect of the invalid or unenforceable provision. Clause 1.23 Waiver1.23.1Failure 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 1.24 General1.24.1These Terms and Conditions contain all the terms agreed between the parties regarding its subject matter and supersede any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to any agreement governed by these Terms and Conditions except as expressly stated in these Terms and Conditions. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into any Agreement (unless such untrue statement was made fraudulently) and that party's only remedies shall be for breach of contract as provided in these Terms and Conditions. 1.24.2Provisions of these Terms and Conditions that either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination. 1.24.3The relationship of the parties is that of independent contractors dealing at arm's length. Except as otherwise stated in these Terms and Conditions, nothing in these Terms and Conditions shall constitute the parties as partners, joint ventures or co-owners, or constitute either party as the agent, employee or representative of the other, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither party shall hold itself out as having authority to do the same. 1.24.4The parties shall at the requesting party's reasonable expense do and execute all such further acts and things as are reasonably required to give full effect to the rights given and the transactions contemplated by these Terms and Conditions. 1.24.5OBSIDIAN Internet may make alterations to these Terms and Conditions at any time without warning to the Client. Clause 1.25 Assignment1.25.1OBSIDIAN Internet may assign or otherwise transfer this Agreement at any time. Client may not assign or otherwise transfer this Agreement or any part of it without OBSIDIAN Internet's written consent. Clause 1.26 Law and Jurisdiction1.26.1The construction, validity, and performance of these Terms and Conditions shall be governed by English law, and the parties submit to the exclusive jurisdiction of the English courts to resolve any dispute between them. Clause 1.27 Entire Document1.27.1This Agreement and any documents referred to herein contain the entire understanding of the parties relating to the subject matter of this Agreement. |
| Section 2. Connectivity Terms and Conditions |
Clause 2.1 Dial-up2.1.1The Client agrees to access the Client's account via the designated OBSIDIAN Internet dial-up number as specified by OBSIDIAN Internet that is subject to change at OBSIDIAN Internet's discretion. 2.1.2Any updates and/or amendments to the Web Site or retrieval of e-mail shall be made by the Client using the Software by accessing the Web Site on OBSIDIAN Internet 's website server via the Dial-Up Connection. In the event that the Web Site is accessed, updated or amended, or retrieval of e-mail facilitated in any other way than via the Dial-Up Connection the Client shall pay to OBSIDIAN Internet the fee specified in the OBSIDIAN Internet Price List. Clause 2.3 ADSL, DDL, Leased Lines,2.3.1The client acknowledges that there are no cancellations once an order has been received and accepted by OBSIDIAN Internet . 2.3.2The full cost of any additional work that has been specifically incurred for the Service by the time of cancellation will be recovered in addition to the cancellation charge. In the event OBSIDIAN Internet fails to meet the Service Commencement Date and the Client decides to cancel the Service, a charge will not be raised. OBSIDIAN Internet will use all reasonable endeavours to install the Service in accordance with the Installation Date but any such date is provisional and maybe subject to alteration. If the Client requests amendments to the Service Commencement Date and subsequently cancels the Service, the cancellation charge will be amended so as to cover the full extent of OBSIDIAN Internet 's losses. 2.3.3Further miscellaneous Charges may be applied in connection with the provision of the Service and/or repair of the Client's data paths as follows: 2.3.3.1where an internal shift of the Clients line is required, a charge of £75.00 will be imposed; or 2.3.3.2where an external shift of the Client's line is requested, this will be charged as a new connection; or 2.3.3.3a visit charge applies where OBSIDIAN Internet or OBSIDIAN Internet's sub-contractor visits the Client's premises during normal working hours in connection with the Service, and a charge for the particular product or service has not been included in the price of the Service. If more than one visit is required, a single charge is made for each person visiting on each occasion. A visit charge will not apply where a visit is made for the purpose of removing rented Apparatus; or 2.3.3.4an abortive visit charge of £150.00 (per attendance) where, (i) OBSIDIAN Internet or its sub-contractor attends an incorrect address provided by the Client, (ii) the Premises for installation does not meet the criteria defined by OBSIDIAN Internet or its sub-contractor as requirements for installing the Service e.g. minimum space, availability of power etc., (iii) the Client has not agreed to take Service at the appointed time as agreed between OBSIDIAN Internet and the Client, or (iv) the Client has not agreed to or is unavailable for a maintenance or other agreed visit at the appointed time agreed between the Client and OBSIDIAN Internet ; or 2.3.3.5a reworking charge where an engineer at the Client's Premises has to make good any existing non-BT installed wiring to make it fit for installation. Such work will only be undertaken with the Client's consent and where undertaken by OBSIDIAN Internet 's sub-contractor, the sub-contractor's timescale rates will apply. Where undertaken by OBSIDIAN Internet, the Client will be notified of OBSIDIAN Internet 's rates. 2.3.4The Client acknowledges that the provision of ADSL, DDL, Leased Lines, services per this Service Order is for one-year and the Client further confirms that other aspects of OBSIDIAN Internet 's provision (such as but not limited to hosting etc.) are per the contract terms as outlined earlier within these terms and conditions and that the Client shall pay all charges, the VAT, and any additional taxes as set out on the Service Order/ Invoice (pro-forma or otherwise) and agrees to all guidelines of payment as set out in Clause 1.3. The Client also acknowledges that all Leased Line service cancellations must be made in writing and served via Registered Post to OBSIDIAN Internet at least 90 days prior to the date of cessation as requested by the Client with no cancellation earlier than the initial 12 month contract period. 2.3.5The Client acknowledges that all quotes provided by OBSIDIAN Internet are subject to available capacity as defined by OBSIDIAN Internet 's chosen supplier and that an additional fee may be levied to the customer based on additional capacity upgrades that may be required. 2.3.6The Client acknowledges that any move between premises will need to be notified to OBSIDIAN Internet and the Client acknowledges that, given the nature of broadband connections, a simple swap from one premises to another without down time or additional cost is not possible and that the current connection may need to be ceased and that a new connection at the new premises may be needed on a new 12 month contract. 2.3.7Where order details received from the Client are illegible, materially incomplete, or incorrect, OBSIDIAN Internet reserves the right to charge the Client an administration charge comprising a minimum charge of £46.00 plus a charge of £23.00 for each subsequent hour or part thereof. 2.3.8A 'Breaking through walls' Charge will apply for the provision of broadband services access links for each of the broadband products. OBSIDIAN Internet may re-wire or disconnect incorrectly wired connections without liability on its part. (The following are not suitable for ADSL: ISDN, PBX lines, RedCare, BT Video Stream, BT DataStream, PCM facilities, coin box operation). The Client acknowledges that ADSL may impact other services terminating on the line such as security systems. These services should be tested once the installation is complete. Such Charges will be notified to the Client in advance if applicable. 2.3.9The Client acknowledges that additional duct charges may apply for the provision of broadband services access link for EACH of the broadband products and that the Client will be advised by OBSIDIAN Internet of these charges on a case by case basis. 2.3.10The Client understands that the Service comprises a telecommunication service to access the Internet and such other Services as the Client has ordered in the Service Order. Maximum 'burst' rates for the Service will be provided upon request. The Client acknowledges that the burst rates for the Service may be reduced by contention at peak usage times within OBSIDIAN Internet 's System. 2.3.11OBSIDIAN Internet will only be able to provide the Service where the Client's existing telecommunications supplier and/ or OBSIDIAN Internet 's partners support it (including for the purposes of this Agreement an obligation that the Client has and maintains a contract for the use of a BT provided an analogue direct exchange line which terminates on a master network forming part of the BT network). The Client further acknowledges that the installation of the Service may cause some disruption to the Client's telecommunication services. 2.3.12Where it is necessary for OBSIDIAN Internet to install or maintain the Service, the Client warrants that all approvals have been granted for the installation (for example, that all approvals are granted in connection with fitting equipment including receptor dishes for Clients on buildings or premises not directly controlled by the Client) and will provide OBSIDIAN Internet with such access as it is reasonably required and any technical or personnel assistance reasonably necessary for the installation and maintenance of the Service including electricity supply and suitable accommodation and environmental conditions to accommodate the OBSIDIAN Internet Equipment. 2.3.13The Customer shall be responsible for any OBSIDIAN Internet Equipment located at the Site and the Client will only use the OBSIDIAN Internet Equipment and associated software in accordance with instructions and/or software licenses that OBSIDIAN Internet provides to the Customer from time to time. The Client undertakes not to modify, tamper or in any way interfere with OBSIDIAN Internet 's Equipment and OBSIDIAN Internet will not be liable for any repairs to the OBSIDIAN Internet Equipment other than those arising as a result of natural and proper use of it and: 2.3.13.1the Client will insure any OBSIDIAN Internet Equipment located at the Site against loss or damage from all risks for an amount equal to the full replacement value of the OBSIDIAN Internet Equipment; and 2.3.13.2the OBSIDIAN Internet Equipment shall be and remains the property of OBSIDIAN Internet at all times and must be surrendered in re-saleable condition, together with all manuals and packaging upon termination. Where the Client fails to surrender the OBSIDIAN Internet Equipment, OBSIDIAN Internet reserves the right to retrieve the OBSIDIAN Internet Equipment directly from the Site; and 2.3.13.3the Client will be liable to OBSIDIAN Internet for any loss or damage to the OBSIDIAN Internet Equipment except in so far as any such loss or damage is attributable to the negligent or wilful act or omission of OBSIDIAN Internet. 2.3.14OBSIDIAN Internet hereby grants to the Client and the Client hereby accepts a non-exclusive and non-transferable license to use any software provided by OBSIDIAN Internet to access the Internet, for the sole purpose of enabling the Client to use the Service. The Client hereby acknowledges that the title to all software is and shall remain with OBSIDIAN Internet or OBSIDIAN Internet's third party licensors. The Client hereby undertakes to use its reasonable endeavours to protect and keep confidential all OBSIDIAN Internet software used by it, and shall make no attempt to examine, copy, alter, reverse engineer, disassemble or tamper with such software. 2.3.15Use of the Service by the Client is deemed acceptance of any and all licences relating to the Service. 2.3.16The Service is provided for the Client's use only and the Client undertakes not to resell, hire, lease or allow use of the Service by any third party without the prior written consent of OBSIDIAN Internet and: 2.3.16.1the Client shall use the Service for lawful purposes only in compliance with all current and future statutes in force from time to time; and 2.3.16.2the Client agrees not use the Service: (i) to send or receive materials or data which is in violation of any law or regulation or which is defamatory, offensive, abusive, indecent, obscene or in breach of confidence, privacy, trade secrets or in breach of any third party Intellectual property rights (including copyright) or in breach of any other rights; (ii) in a manner which constitutes a violation or infringement of the rights of any person or a violation or infringement of any statutory duty or obligation in contract tort or otherwise, to any third person; (iii) in breach of instructions that OBSIDIAN Internet have provided to the Client in respect of the use of the Service; or (iv) other than in conformance with OBSIDIAN Internet's standard acceptable use policies and the Internet Protocols as published from time to time; and 2.3.16.3the Client acknowledges that no broadband connection provided by OBSIDIAN Internet can be segmented or resold for further provision to beneficiaries other than the Client as known by OBSIDIAN Internet and shall not be in breach of the terms and conditions as set out by our broadband supplier; and 2.3.16.4the Client acknowledges that OBSIDIAN Internet may be required by current or future law or regulation to access, store and/or take copies of the Client's data stored on or transmitted by the Service. OBSIDIAN Internet reserves the right to terminate the Service with immediate effect and without further obligation or liability to the Client as required by any law enforcement organisation or by the Courts; and 2.3.16.5the Client agrees that he will not use a Name so as to infringe the rights of any other person or company under statute or common law in a corresponding trademark or name. The Client also agrees to comply with the terms and conditions of any third party through which OBSIDIAN Internet has supplied the Name to the Client; and 2.3.16.6The Client acknowledges that OBSIDIAN Internet will be in no way liable for any dial-up charges incurred by the Client in the event the Client's primary or back-up connectivity devices are used and the Client further acknowledges that OBSIDIAN Internet is no responsible for informing the Client of such outages if they are unknown to OBSIDIAN Internet management and/ or systems; and 2.3.16.7OBSIDIAN Internet will provide technical support to Leased Line customers via its Premier Support Unit and that all ADSL customers will receive support from OBSIDIAN Internet's Customer Support Department. ADSL customers further acknowledge that the support as provided by Customer Support does not include the support of the Client's network and shall only include support up to the Client's modem/router. 2.3.16.8OBSIDIAN Internet reserves the right to restrict the passage of communications where the Client makes profligate use of the OBSIDIAN Internet network or the Service to the detriment of OBSIDIAN Internet or OBSIDIAN Internet 's other Clients, until the Client gives an acceptable undertaking to OBSIDIAN Internet to modify its use of the Service. In other words, the Client acknowledges that they will not utilise the service beyond what would constitute typical business usage profiles (meaning use of file sharing devices such as Kazaa does not constitute business usage profile); and 2.3.16.9the bandwidth used for traffic to and from the web site is exceeded beyond OBSIDIAN Internet's considered acceptable use and is deemed by OBSIDIAN Internet to affect the performance of other Clients' Business Websites. Notwithstanding any other remedies it may have under these Terms and Conditions or in law, OBSIDIAN Internet, in the event that the acceptable bandwidth is exceeded, may elect to charge the Client an additional monthly fee as set out in the OBSIDIAN Internet Price List; and 2.3.16.10any breach of these terms and conditions by the Client will entitle OBSIDIAN Internet to disconnect or terminate the Service without notice with immediate effect, and OBSIDIAN Internet may restore the Service if the Client gives an acceptable assurance that there will be no further contravention. |
