Terms and Conditions
These terms and conditions (“Agreement”) shall apply to the agreement between phoenixFx New Media Consulting Limited (“phoenixFx”) and the individual or company applying for the provision of services by phoenixFx (“the Customer”).
IT IS AGREED as follows:
1. DEFINITIONS
In this Agreement, the following words and phrases shall have the following meanings:
“Confidential Information” – information which is identified as confidential or proprietary by either party or the nature of which is clearly confidential or proprietary.
“Fees” – the fees (including any VAT) due for the provision of the Services as calculated in accordance with the Price List or such other fee as is agreed.
“Inappropriate Material” – material that under the laws of any jurisdiction where the material can be accessed is or may be any of the following: unlawful, threatening, abusive, harmful, obscene, pornographic, malicious, profane, libellous, defamatory, or which infringes any Intellectual Property Rights, constitutes or encourages a criminal offence or contains a virus, worm, Trojan horse or other harmful code.
“Intellectual Property Rights” – copyrights, patents, registered and unregistered design rights, topography rights, registered and trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
“Material” – text, graphics, images, sound, video or any combination thereof or any other material provided by the Customer to phoenixFx from time to time in connection with the provision of the Services.
“Name” – any name specifically requested by or allocated to the Customer for the provision of the Services including, without limitation, any domain name or mailbox name.
“phoenixFx Account”- the bank account for receipt of the Fees, as notified by phoenixFx to the Customer on the invoice.“phoenixFx Server” the third party computer server equipment leased by phoenixFx and used by phoenixFx in connection with the provision of the Services.
“phoenixFx Website” – the website located at http://www.phoenixfx.com/ or http://www.newmediaconsulting.co.uk/ or such other Internet address as may be adopted by phoenixFx from time to time.
“Price List” – a list of phoenixFx’s then current standard prices for each of the Services available on the phoenixFx Website.
“Relevant Legislation” – such laws of England and Wales and the Customer’s country or countries of business and any country in which the Customer’s Website is intended to be accessed or to which emails are sent.
“Services” – the provision of shared hosting packages (Linux, Apache, MySql, PHP) including domain name registration, the provision of disk space, email accounts, data transfer and databases as further specified on the phoenixFx Website and any other services agreed by phoenixFx and the Customer in writing from time to time.
“Term”- the contract period for which the Fees are paid as specified on the phoenixFx Website.
“Website” – a website on the World Wide Web.
2. PAYMENT AND SERVICES
2.1 In consideration for the payment of the Fees calculated in accordance with the Price List, phoenixFx agrees to provide the Services during the Term.
2.2 The Fees shall be payable on receipt of an invoice from phoenixFx. The Customer shall pay the invoice within 30 (thirty) days of the invoice date. The Customer shall pay the Fees by means of payment to the phoenixFx Account or by means of PayPal through the phoenixFx Website.
2.3 Without prejudice to the rights of phoenixFx and the clause 2.5 below, if the Customer fails to pay any invoice which is due and payable under this Agreement, phoenixFx shall be entitled to charge interest on a daily basis on the overdue amount and on outstanding interest from the date of such failure until payment (both before and after judgement) at an annual rate of 4% above the base rate of Barclays Bank plc for the time being in force.
2.4 Non-delivery or non-performance of services by any third party shall not give the Customer any right to delay any payment to phoenixFx or to make any claim whatsoever against phoenixFx.
2.5 If phoenixFx does not receive payment in full within 30 (thirty) days of the date of the invoice, it may terminate this Agreement as regards any Service requested by the Customer without further obligation to the Customer.
2.6 For the purposes of this Agreement, time of payment is of the essence.
3. CUSTOMER AUTHORISATION AND OBLIGATIONS
3.1 The Customer acknowledges and accepts that to enable phoenixFx properly to provide the Services it must co-operate with phoenixFx and provide such information as may be reasonably required by phoenixFx from time to time.
3.2 Without limitation to the foregoing, the Customer undertakes that it shall:
3.2.1 provide phoenixFx with accurate details of its e-mail and physical addresses and promptly notify phoenixFx in writing of any alterations thereto from time to time;
3.2.2 obtain the consent of individuals whose personal data are to be held on a domain name register or are otherwise provided to phoenixFx;
3.2.3 keep the Customer’s user ID and passwords secure so that such ID and passwords are only used by the Customer or those authorised by the Customer.
4. PHOENIXFX WARRANTIES AND LIMITATION OF LIABILITY
4.1 phoenixFx shall provide the Services in a timely manner and shall exercise the reasonable care and skill of a competent Internet service provider.
4.2 Except as expressly set out in this Agreement, all conditions or warranties which may be implied or incorporated into this Agreement by law or otherwise are hereby expressly excluded to the extent permitted by law. In particular, but without limitation, phoenixFx excludes any warranty as to the quality or accuracy of information received through the provision of the Services.
4.3 The Customer acknowledges and agrees that phoenixFx is unable to exercise control over the content of the information transmitted via the phoenixFx network and/or the Service and that phoenixFx does not examine the use to which customers put the Service or the nature of the information and/or software they are sending or receiving, and accordingly phoenixFx hereby excludes all liability of any kind for the transmission or reception of infringing information of whatever nature as a result of the provision of the Services.
4.4 While phoenixFx will use all reasonable endeavours to provide a prompt and continuing service, the Customer is responsible for putting in place adequate insurance against all loss of or damage to data and phoenixFx excludes any liability to the customer for any loss of or damage to data stored/transmitted on/using the Service and/or the phoenixFx network.
4.5 The Customer acknowledges and agrees that it is the responsibility of the Customer to adopt appropriate security measures for the protection of computer systems and phoenixFx we will not be liable to the Customer for any loss or damage suffered by the Customer or any third party as a result of any virus or other hostile computer program being introduced into the Customer’s computers or computer systems as a result of the use of the Services and/or the phoenixFx network.
4.6 phoenixFx will not be liable to the Customer, whether in contract, tort or otherwise:
4.6.1 for loss, whether direct or indirect, of business, revenue, profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatsoever; or
4.6.2 for the acts or omissions of the third party owner or provider of the phoenixFx Server or other providers of telecommunication services or for faults in or failures of their apparatus.
4.7 In any event the liability of phoenixFx to the Customer in respect of an event or series of connected events arising out of or in connection with the Agreement, whether in contract, tort or otherwise, shall be limited to the amount of the Fees for the Services.
4.8 Each provision of this Clause 4 excluding or limiting liability shall be construed separately, and shall apply and survive even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the termination or expiry of this Agreement.
4.9 Any liability of phoenixFx whatsoever arising under these terms or otherwise in respect of the Service or any product shall be deemed to end 6 months after the date on which the Customer ought reasonably to have known of the event giving rise to the liability. For the avoidance of doubt, the Customer acknowledges and agrees that no claims or actions by the customer can be validly made after the expiry of 6 months following such date.
5. NAME AND INTERNET PROTOCOL ADDRESS
5.1 The Customer confirms and warrants that it is the owner of, or that it has been and are duly authorised by the owner to use, any trade mark or name requested or allocated as the Customer’s Name.
5.2 The Customer acknowledges that phoenixFx cannot guarantee that any Name requested by the Customer will be available or approved for use.
5.3 phoenixFx has the right to require the Customer to select a replacement Name and may suspend the Service if, in phoenixFx opinion, there are reasonable grounds to believe that the choice of Name might infringe the rights of any other person or company, whether in statute or common law, in a corresponding trade mark or name.
5.4 If the Services include the registration of an Internet domain name the Customer acknowledges and agrees that:
5.4.1 phoenixFx does not represent, warrant or guarantee that any domain name applied for on behalf of the Customer is capable of being registered or that the use of such domain name by you will not infringe any third party rights. Accordingly, the Customer should take no action in respect of the requested domain name(s) until it has been notified that the requested domain name has been duly registered and phoenixFx shall not be liable for any such action taken by you.
5.4.2 The registration of the domain name and its ongoing use by the Customer is subject to the relevant naming authority’s terms and conditions of use and the Customer undertakes to phoenixFx that it will comply with such terms and conditions. The Customer hereby irrevocably waives any claims it may have against phoenixFx in respect of any decision of a naming authority to refuse to register a domain and, without limitation, the Customer acknowledges and agrees that any administration or other charge paid in respect of the registration of the domain name is non-refundable in any event.
Nominet’s terms and conditions can be found here: http://www.nic.uk/ref/terms.html.
5.4.3 phoenixFx accepts no responsibility in respect of the use of a domain name by the Customer and any dispute between the Customer and any other individual or organisation regarding a domain name must be resolved between the parties concerned and phoenixFx will take no part in any such dispute. PhoenixFx reserves the right, on becoming aware of such a dispute concerning a domain name, at its sole discretion and without giving any reason, to either suspend or cancel the relevant Service associated with the domain name, and/or to make such representations to the relevant naming authority as we deem appropriate.
5.4.4 phoenixFx will undertake domain name renewal provided that the Customer has notified phoenixFx that it wishes to renew the domain name and the Customer shall reimburse to phoenixFx the cost of such renewal , such amount to be payable within 30 (thirty) days of receipt of an invoice.
5.4.5 Any Internet Protocol address allocated by phoenixFx to the Customer shall at all times remain the sole property of phoenixFx and phoenix FX grants the Customer a non-transferable licence to use such address for the duration of this Agreement. If this Agreement is terminated for whatever reason, the Customer’s licence to use the Internet Protocol address shall automatically terminate and thereafter the Customer shall not use such address.
6. WEB SITE HOSTING
6.1 If the Customer has not engaged phoenixFx to create the Customer’s website, the Customer will provide and post to the phoenixFx Server hosting the Customer’s Website only Material which is “server-ready” and which requires no additional manipulation on the part of phoenixFx.
6.2 The Customer shall ensure that all Material provided to phoenixFx or to the phoenixFx Server in connection with this Agreement shall not contain any Inappropriate Material and the Customer acknowledges and agrees that phoenixFx shall be under no obligation to check the Material for Inappropriate Material or for content, correctness, legality or usability.
6.3 The Customer acknowledges and accepts that it bears sole responsibility, legal and otherwise, for the content of all Material appearing on its web site hosted by the phoenixFx Server. For the avoidance of doubt, this clause shall apply to all Material, whether posted on to the phoenixFx Server by or on behalf of the Customer, whether by phoenixFx or a third party.
6.4 The Customer warrants, represents and undertakes in relation to all Material (including any Material which it requests phoenixFx or any third party to post on its web site hosted by PhoenixFx’s Server) that:
6.4.1 it is not Inappropriate Material;
6.4.2 the Customer either has sole ownership of all Intellectual Property Rights in such Material in each jurisdiction from which the web site may be accessed and/or has obtained full and effective licence(s) from all relevant third parties allowing the Customer to use the Material and to permit its dissemination world wideand the provision of the Services in connection with the Material shall not infringe any third party rights;
6.5 The Customer shall not to link to any Inappropriate Material from its web site.
6.6 phoenixFx shall retain the right at all times to refuse to host any Material and to suspend availability of the web site and/or to remove any Material already appearing on the web site which in the opinion of phoenixFx:
6.6.1 constitutes or would if posted constitute Inappropriate Material;
6.6.2 breaches or would if posted breach Relevant Legislation or any other applicable regulations, standards or codes of practice (notwithstanding that compliance may not be compulsory); and/or
6.6.3 harms or would if posted harm the reputation of phoenixFx in any way
6.7 phoenixFx’s rights to suspend availability of the Customer’s web site and/or remove content under clause 6.6 above shall be without prejudice to the Customer’s sole responsibility for content of the Website under clause 6.3 and to the warranties given by the Customer relating to that content in clause 6.4.
6.8 Hosting of Material by phoenixFx on the Customer’s web site shall not under any circumstances constitute a waiver of any of its rights in relation to such Material or of its rights in relation to any breach of the Customer’s obligations under this Agreement.
6.9 The Customer undertakes:
6.9.1 to fully virus-check all Material supplied to phoenixFx pursuant to this Agreement;
6.9.2 not to embark on any course of action, whether by use of its web site or any other means, which may cause a disproportionate level of web site activity without providing at least seven day’s prior notice in writing to phoenixFx;
6.9.3 to keep secure from third parties any passwords issued to the Customer by phoenixFx in connection with this Agreement;
6.9.4 to observe the limitations on data transfer notified to it by phoenixFx and agree, if such limits are exceeded, to pay the appropriate excess charge at phoenixFx’s then current rates.
7. E-MAIL SERVICES (including e-mail forwarding)
7.1 The Customer undertakes that it will not (and will ensure that others under its control will not) via e-mail:
7.1.1 transmit Inappropriate Material;
7.1.2 infringe the Intellectual Property Rights of any third party;
7.1.3 make use of phoenixFx’s Server to an extent or in a manner which in phoenixFx’s reasonable opinion is excessive, wasteful or otherwise to the detriment of phoenixFx, any of phoenixFx’s customers or any other third party, including but not limited to:
7.1.3.1 the transmission of bulk e-mail (“spamming”); or
7.1.3.2 referring to phoenixFx hosted websites or email addresses in bulk e-mail (“spamming”) sent via other servers; or
7.1.3.3 “flaming”.
7.2. When sending e-mail, the Customer acknowledges that it is responsible for complying with any Relevant Legislation.
7.3. The Customer acknowledges and agrees that phoenixFx is not responsible for the security of the contents of e-mail sent or received by the Customer.
7.4 phoenixFx will use its reasonable endeavours to ensure that messages are routed accurately and promptly but does not accept any liability for non-receipt, non-delivery or misrouting of e-mail or any other failure of the e-mail system.
7.5 phoenixFx’s policy is to respect the privacy of e-mail messages sent, received forwarded or otherwise dealt with by it and the Customer acknowledges that phoenixFx will therefore not monitor, edit or disclose the contents of such messages unless required to do so by law or competent authority or to protect phoenixFx’s rights and/or position.
8. TERMINATION
8.1 phoenixFx may terminate this Agreement by notice in writing to the Customer with immediate effect if:
8.1.1 the Customer is in breach of any of its obligations under this Agreement;
8.1.2 the Customer is a company and a resolution is passed for its winding up or a petition for its liquidation is presented; or
8.1.3 the Customer is an individual and a petition for bankruptcy is presented against it; or
8.1.4 a receiver or liquidator (where the Customer is a company) or (where the Customer is an individual) a trustee in bankruptcy is appointed over it or any of its assets; or
8.1.5 the Customer proposes or enters into any arrangement or composition with or for its creditors (including any voluntary arrangement).
8.1.6 the Customer provides phoenixFx with any false, inaccurate or misleading information for the purpose of obtaining Services.
8.2 In the event that any of the circumstances identified in clause 8.1 arises, phoenixFx shall have the option to terminate this Agreement as regards all Services provided or to be provided or only as regards that Service or those Services in respect of which the breach is considered by phoenixFx to have been committed; and
8.3 In the event that any of the circumstances identified in clause 8.1 arises, phoenixFx shall be entitled to retain any sums paid to it by the Customer hereunder and recover any sums due to it pursuant hereto whether invoiced or not at the date of termination.
9. CONFIDENTIALITY
9.1 Each of the parties agrees (subject to clauses 9.2 and 9.3) not to:
9.1.1 disclose any Confidential Information received from the other party; or
9.1.2 make any use of any such Confidential Information other than for the purposes of performance of this Agreement.
9.2 Each party may disclose Confidential Information received from the other to its responsible employees, consultants, sub-contractors or suppliers who need to receive the information in the course of performance of this Agreement.
9.3 The confidentiality obligations under clause 9.1 shall not apply to any information which:
9.3.1 is or subsequently becomes available to the general public other than through a breach by the receiving party; or
9.3.2 is already known to the receiving party before disclosure by the disclosing party;
9.3.3 is developed through the independent efforts of the receiving party; or
9.3.4 the receiving party rightfully receives from a third party without restriction as to use.
10. PROVISION OF SERVICE
phoenixFx reserves the right to vary the description of the Services at any time, and shall inform the Customer of any material variations where reasonably practicable in the circumstances.
11. DATA PROTECTION
The Customer agrees that phoenixFx may put the Customer’s name and contact details into a computerised directory for internal use only, unless phoenixFx receives specific written instructions from the Customer.
12. ASSIGNMENT, RESELLING AND SUB-LETTING
The Customer shall not assign, re-sell, sub-lease or in any other way transfer the Services (or any element thereof), or any of its rights or obligations under the terms of this Agreement. Contravention of this restriction in any way, whether successful or not, will entitle phoenixFx to terminate the Services and/or the Agreement immediately.
13. GENERAL
13.1 Subject to Clause 13.2, this written Agreement together, constitutes the entire agreement between the parties hereto relating to the subject matter hereof and save in respect of fraudulent statements supersedes all prior agreements, arrangements, understandings and representations (whether oral, written or otherwise) made by or between the parties and each party acknowledges that it has not relied on any representation made by the other party unless such representation is expressly included herein.
13.2 No change, alteration or modification to this Agreement shall be valid unless in writing referencing this Agreement and signed by the Customer and phoenixFx.
13.3 If any provision of this Agreement or part thereof shall be void for whatever reason, the offending words shall be deemed deleted and the remaining provisions shall continue in full force and effect.
13.4 phoenixFx reserves the right to sub-contract any of the work required to fulfil its obligations hereunder.
13.5 All notices which are required to be given under this Agreement shall be in writing and shall be sent to the email address of the recipient provided in writing to the other party. Any such shall be deemed to have been receive on receipt of a delivery receipt notice.
13.6 Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.
13.7 Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
13.9 This Agreement shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
