The following terms and conditions refer to Areca Design Limited ("The Agency") and its relationship with its clients and potential clients.
1.1 Quotes & Prices
1.1.1. All quotes/estimates are valid for 30 days from the date of submission.
1.1.2. Quotes/estimates are based on the information provided by the Client, including but not limited to detail on quantities, structure, scope and functionality. Any quote/estimate may therefore be subject to change should the client’s requirements change at any time.
1.1.3. Unless otherwise stated, photography, stock images, delivery, copywriting and VAT will be charged extra.
1.1.4. If the contract or hourly price has not been fixed for the term of a contract, our hourly rate of £80 will apply.
1.1.5. The Agency reserves the right to alter the hourly rate at any time as business needs dictate.
1.1.6. Quotes/estimates are based on the Agency's current costs of production and unless otherwise agreed are subject to amendment on or at any time after acceptance to meet any rise or fall in such costs.
1.1.7. Any estimates given by The Agency as to the time of completion or performance of its services (whether completion of the whole or a part of those services) shall be estimates only and time shall not be of the essence.
1.1.8. Any stated timescale is reliant upon the client providing all required information/copy/images within the time set out at project initiation.
1.2.1. The Agency reserves the right to sub-contract the fulfilment of an order or any part thereof.
1.2.2. Any images supplied electronically will be incorporated into designs without charge provided that they are of suitable quality. All images need to be supplied as EPS illustrator vectors for logos and Photoshop tiffs (300dpi min) for pictures. Any logos that need to be re-drawn will be charged extra at our hourly rate. All supplied images requiring scanning or alterations to be charged at £20 per image. Images sourced from external image libraries may incur additional licence/royalty charges payable by the Client.
1.2.3. Should the Client supply text, artwork or images, the Agency is not obliged to edit, check or guarantee the correctness thereof in any way whatsoever, and the end product shall be made at the entire risk of the Client.
1.2.4. The Agency shall be indemnified by the Client in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of copyright, patent design or any other proprietary or personal rights contained in any material supplied by the Client. The indemnity shall extend to any amounts paid on a lawyer's advice in settlement of any claim.
1.2.5. Origination and/or conceptual work and any copyright subsisting therein shall remain the property of the Agency unless otherwise agreed in writing with the Client.
1.2.6. The Client’s property and property supplied to the Agency on behalf of the Client, while it is in the possession of the Agency or in transit to or from the Client, will be deemed to be at Client’s risk unless otherwise agreed and the Client should insure accordingly.
1.2.7. The Agency may charge rent for storage of goods retained at Client’s request, or items left with the Agency before receipt of the order or after notification to the Client of completion of the work.
1.2.8. When required to expedite project delivery ahead of the time needed for proper production of a given deadline, the Agency shall not be liable for defects occasioned thereby. Should such delivery require payment of overtime wages, delivery charges or other additional costs, all such extras will be for the Client’s account.
1.2.9. The Agency shall not be required to use, print, upload or hold any matter which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of a third party.
1.3 Invoices & Payment
1.3.1. Payment must be made no more than 30 days after date of invoice unless otherwise agreed in writing in advance.
1.3.2. We understand and will exercise our statutory right to interest under the Late Payment Of Commercial Debts (Interest) Act 1998 amended by European Directive 2000/35/EC if we are not paid according to these terms.
1.3.3. All work remains copyrighted to the Agency until settlement of relevant fee account.
1.3.4. All invoices are subject to UK VAT at the current rate, unless a valid exemption certificate is provided.
1.3.5. All payments must be in UK Pounds Sterling.
1.3.6. All work completed after project inception will be billed as it is completed.
1.3.7. If the Agency incurs any costs as a result of the Client’s neglect or default, the Agency may charge those costs to the Client in addition to the contract price.
1.3.8. The Client shall pay for any preliminary work which is produced at his/her request, whether experimentally or otherwise. A 50% rejection fee is applicable on all designs executed by the Agency should the Client cancel their contract/order.
1.3.9. When payment is overdue, the Agency may suspend work, service and/or delivery without notice and without prejudice to any other legal remedy until due payment has been made. Furthermore, any work started but incomplete may be suspended and payment therefore becomes immediately due and payable, notwithstanding anything expressed herein, and any monies in respect of.
1.3.10. The Agency may require payment in advance, or a deposit of at least 50% of the quote/estimate total prior to instigating work on an order, particularly but not limited to the following situations: new clients; clients with a poor payment history; large, lengthy or complex projects. Where a deposit is required, the balance shall be due upon completion of the work, unless otherwise agreed in writing in advance.
1.3.11. If your payment is returned by the bank as unpaid for any reason, you will be liable for a charge of £50 for each occurrence.
1.4.1. Proofs, pull samples, specimens, sketches, photographs, links or any representation, whether partial or total, of the finished article in whatever form may be submitted to the Client for approval.
1.4.2. After approval the Client shall have no claim against the Agency for errors in the exemplar as approved by them.
1.5.1. If the Client ceases to pay his debts in the ordinary course of business or cannot pay his debts as they become due or is deemed to be unable to pay its debts or have a winding-up petition issued against it or being a person who commits an act of bankruptcy or has a bankruptcy petition issued against him, the Agency without prejudice to other remedies shall:
126.96.36.199. Have the right not to proceed further with the contract or any other work for the Client and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the Client. Such charge to be an immediate debt due to him.
188.8.131.52. In respect of all unpaid debts due from the Client have a general lieu on all goods and property in its possession (whether worked on or not) and shall be entitled on the expiration of 14 days' notice to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards such debts.
1.6 Force Majeure
1.6.1. The Agency shall be under no liability if it shall be unable to carry out any provision of the contract for any reason beyond its control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the Client may by written notice to the Agency elect 'to terminate the contract and pay for work done and materials used', but subject thereto shall otherwise accept delivery when available.
1.7 Information Provided by You
1.7.1. You warrant that the name, address and payment information provided when you place your order with the Agency will be correct and you agree to notify the Agency of any changes in the name, address and/or payment details.
1.7.2. You agree that the Agency may disclose your name and address where any enquiries are made.
1.7.3. You warrant that you possess the legal right and ability to enter into this Agreement and to use the Agency's services in accordance with this Agreement.
1.8.1. You shall indemnify us and keep us indemnified and hold us harmless from all liabilities, actions, claims, proceedings, losses, expenses (including reasonable legal costs and expenses), costs and damages, howsoever suffered or incurred by us in consequences of your breach or non-observance of this Agreement, or arising out of claims based upon or relating to our work for you or any claim brought against us by a third party resulting from the provision of any Services to you and your use of them.
1.8.2. The Agency will notify you promptly of any claim for which the Agency seeks specific indemnification at the currently supplied address. The Agency will afford you the opportunity to participate in the defence of such claim, provided that your participation will not be conducted in a manner prejudicial to the Agency's interests, as reasonably determined by the Agency and/or its legal representatives.
1.9 Limitation of Liability
1.9.1. 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, are subject always to sub clause 1.9.2.
1.9.2. Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
1.9.3. In any event, no claim against the Agency shall be brought unless you have notified the Agency of the claim within one year of the issue arising.
1.9.4. In no event shall the Agency be liable to you by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, for any loss of business, contracts, anticipated savings or profits or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Agency's negligence or the negligence of its servants or agents or otherwise) which arise out of or in connection with the provision of any goods or services by the Agency.
1.9.5. The Agency warrants that its services will be provided using reasonable care and skill. Where the Agency supplies any goods supplied by a third party, the Agency does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign the benefit of any warranty, guarantee or indemnity given by the supplier of the goods to the Agency.
1.10 General Terms
1.10.1. These conditions and all other express terms of the contract shall be governed and constructed in accordance with the laws of England and you hereby submit to the non-exclusive jurisdiction of the English courts.
1.10.2. The Agency shall not be liable or deemed to be in breach of contract by reason of any delay in performing, or failure to perform, any of its obligations if the delay or failure was due to any cause beyond its reasonable control.
1.10.3. All quotes/estimates, briefs and other Client/Agency documents are commercially confidential and may not be disclosed to third parties without prior written agreement.
1.10.4. These terms and conditions, together with any documents expressly referred to in them, contain the entire Agreement between the Agency and the Client relating to the subject matter covered and supersede any previous agreements, arrangements, undertakings, proposals or contemporaneous communications, written or oral: between the Agency and the Client in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you confirm that you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been expressly made in this Agreement.
1.10.5. Any notice to be given by either party to the other may be sent by either email or post to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have 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 post shall be deemed to be served two days following the date of posting.
1.10.6. Headings, numbering and summaries are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
1.10.7. You acknowledge that no joint venture, partnership, employment, or agency relationship exists between you and the Agency as a result of your use of these services. You agree not to hold yourself out as a representative, agent or employee of the Agency. You agree that the Agency will not be liable by reason of any representation, act or omission to act by you.
1.10.8. The Agency reserves the right to revise, alter, modify or amend these terms and conditions, and any of our other policies and agreements at any time and in any manner without prior notification. Notice of any revision, amendment, or modification will be posted in accordance with our Terms and Conditions.
1.10.9. If any of the provisions of this Agreement are judged to be illegal or unenforceable, the remainder shall continue in full force and the effect of the remainder of them will be not be deemed to be prejudiced.
1.10.10. This Agreement takes effect on the date on which you order our services. Acceptance of these terms is an absolute condition of the Client requesting work. An order constitutes acceptance of all our Terms and Conditions.
1.10.11. You shall not assign this Agreement or any benefits or interests arising under this Agreement without the Agency’s prior written permission.
1.11 Service Level Agreements
1.11.1. The hours provided in Service Level Agreements (SLA) can be used in any way, other than for fixed costs and essential services – such as web hosting or advertising placement – or towards payment of debts or existing/quoted jobs.
1.11.2. Once an account handler at the Agency has been given a job brief as part of the SLA, should the work take longer than 30 minutes, we will endeavour to provide a total estimate of how long the job will take for approval by the Client before any work is commenced.
1.11.3. For each job requested by the Client as part of the SLA, a minimum of 30 minutes will be deducted from the remaining SLA time allowance.
1.11.4. All hours worked as part of an SLA are recorded and can be forwarded to the Client on request.
1.11.5. Once a Client approaches the final two hours of their SLA allowance, the Agency will endeavour to notify them automatically via email, providing the opportunity to purchase another SLA.
1.11.6. Any hours that have not been used within the initial 12 months after purchase will roll over to the following year, up to a maximum of 24 months. However, although the Agency reserves the right to increase the hourly rate as business needs dictate, the hours in an SLA will be honoured at the original rate at which they were purchased for one year, after which time, any roll-over hours will be applied to subsequent years at the new hourly rate.
2. Print Terms & Conditions
2.1.1. After initial design and layout, a proof will be submitted for author’s corrections to be identified. These corrections will be carried out inclusive of the quoted price. On approval of a second proof, again inclusive of the quoted price, the design will be classed as complete, where a final proof will be provided for full Client sign off. Any additional author’s corrections requested after the final sign of proof is submitted will be charged at our normal rate of £80 per hour.o 2.2 Print
2.2.1. Standing matter and printers’ materials of any kind are effaced or disposed of immediately after the order is executed unless written arrangements are made for retention in advance.
2.2.2. The Agency shall not be required to work to tolerances closer than those applicable to the materials obtained by him in the ordinary course of trade. No liability shall arise from variation in the standard, quality and performance of such materials.
2.2.3. Every endeavour will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of 5% for work in one colour and 10% for other work being allowed for overs or shortage (4% and 8% respectively for quantities exceeding 50,000) the same to be charged or deducted.
2.3 Materials supplied by the Client
2.3.1. The Agency will not be responsible for imperfect work caused by defects in or unsuitability of material and equipment supplied by the Client. The Agency will not be responsible for Client’s material wasted in course of production. Extra costs incurred through the use of defective materials or equipment supplied are for the Client’s account.
2.3.2. The Agency may reject any paper, plates or other materials supplied or specified by the Client which appear to them to be unsuitable. Additional cost incurred if materials are found to be unsuitable during production may be charged except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by the Agency in ascertaining the unsuitability of the materials then that amount shall not be charged to the Client.
2.3.3. Quantities of materials supplied by the Client shall be adequate to cover normal spoilage.
2.4 Machine Readable Codes
2.4.1. In the case of machine readable codes or symbols, the Agency shall print the same as specified or approved by the Client in accordance with generally accepted standards and procedures.
2.4.2. The Client shall be responsible for satisfying themselves that the code or symbol will read correctly on the equipment likely to be used by those for whom the code or symbol is intended.
2.4.3. The Client shall indemnify the Agency against any claims by any party resulting from the code or symbol not reading or not reading correctly for any reason, except to the extent that such claim arises from any failure of the Agency to comply with any of the above which is not attributable to error falling within the tolerances generally accepted in the trade in relation to printing of this sort.
2.5.1. Goods will be dispatched or must be collected by the Client when ready and the Client shall not refuse or delay delivery.
2.5.2. Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to the Agency and the carrier within three clear days of delivery (or, in the case of non-delivery, within 28 days of despatch of the goods) and any claim in respect thereof must be made in writing to the Agency and the carrier within seven days of delivery (or, in the case of non-delivery, within 42 days of despatch). All other complaints and claims must be made in writing to the Agency within 28 days of delivery. The Agency shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the Client proves that it was not possible to comply with the requirements and advice (where required) was given and the claim made as soon as reasonably possible.
2.5.3. Goods completed but not delivered shall thereupon forthwith become due and payable. Moreover after the expiration of 14 days notice the Agency may exercise a general lien on all the Client’s goods and property in our hands and may dispose of such goods and property as they see fit and apply the proceeds towards such debts. The Agency may also elect to cancel further work and/or not produce any unmade balance of such contract and recover from the Client any losses sustained by so doing.
2.5.4. The Agency shall not be liable for any loss to the Client arising from delay in transit howsoever caused.
2.5.5. The risk in the goods passes to the Client upon delivery (whether to the Client or to a common carrier) but legal and beneficial ownership shall remain with the Agency until payment in full has been received (each delivery being considered as a whole). Until the date of payment the Client, if so required by the Agency, shall store the goods in such a way that they are clearly identifiable as the property of the Agency.
3.1 Areca Design will only pay a supplier on receipt of an agreed VAT invoice.
You indicate acceptance of these terms and conditions of service by using Areca Design's services. These terms and conditions will not be varied for individual customers.
1.1 In this Agreement the following words and expressions shall have the following meanings:
1.1.1 "downtime" means any service interruption in the availability to visitors of the Website;
1.1.2 "intellectual property rights" means patents, trade marks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, whether registrable or not in any country;
1.1.3 "Areca Design" means Areca Design Limited who operate this service and are the party with whom you have a contract.
1.1.4 Areca Design provide the use of REC software, which means ReallyEasyCart software, intellectual property of Wildfire Internet (Areca Design sister company) – This is wholly owned by Perfect4Business and licenced to you via the Wildfire Internet and Areca Design partnership. Other third party software used to provide the services to which you have subscribed may be bound by their own separate terms and conditions.
1.1.5 "IP address" stands for internet protocol address which is the numeric address for the server;
1.1.6 "ISP" stands for internet service provider;
1.1.7 "server" means the computer server equipment operated by Wildfire Internet and Areca Design in connection with the provision of the Services;
1.1.8 "the Services" means web hosting, domain name registration, email and any other services or facilities provided to operate this service.
1.1.9 "spam" means sending unsolicited and/or bulk emails;
1.1.10 "virus" means a computer programme that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user's files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as "worms" or "trojan horses";
1.1.11 "visitor" means a third party who has accessed the Website;
1.1.12 "the Customer" means the person or organisations who pay to use our Services.
1.2 Product specifications and details may be found at www.reallyeasycart.co.uk and on our freshdesk knowledge centre at support.reallyeasycart.co.uk/solution/categories.
1.3 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.4 The headings of the paragraphs of this Agreement are for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
2.1 The Customer wishes to provide Areca Design with data that will be hosted on Wildfire Internet and Areca Design's chosen hosting provider's servers and made accessible via the Internet.
2.2 Areca Design provide web hosting services via its chosen hosting provider and has agreed to host the Customer's data upon the following terms and conditions.
3.1 Areca Design shall provide to the Customer the Services specified in their order subject to the following terms and conditions.
3.2 The Customer shall deliver to Areca Design any associated data or images which are owned by the Customer that are needed for Areca Design to provide the services, in a format specified by Areca Design.
4 CHARGES AND PAYMENTS
4.1 Payment methods include such credit cards (including MasterCard and Visa), debit cards (including Maestro (Switch), Solo, Visa Electron and Visa Delta) and direct debits or subscriptions as used by Paypal.
4.2 Areca Design only accept cheques, bank transfers, postal orders, cash or any other form of payment other than those outlined in 4.1 by prior agreement and any such payments must be cleared into Areca Design's bank account prior to services commencing.
4.3 Tax shall be added to the prices and will be paid by the Customer where required.
4.4 Areca Design shall be entitled to charge interest in respect of late payment of any sum due under this Agreement, which shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the base rate of the Bank of England from time to time in force.
4.5 Areca Design do not provide credit facilities.
4.6 From time to time Areca Design may make enquiries on the Customers company, proprietor or directors of the Customers company with credit reference agencies. These agencies may record that a search has been made and share this information with other businesses.
4.7 Pro-rata refunds will not be issued for services that are cancelled before the end of the subscription period.
4.8 Should your chosen payment method fail, Areca Design will attempt to settle your invoice using any other payment facilities available on your account.
4.9 All services remain in force until cancelled by the customer via the subscription method in use at that time. No refunds will be made for cancellations part way through a subscription period. Subscription periods may vary dependent upon the type of service purchased.
4.10 Areca Design may at its discretion immediately suspend the Services without notice where the Customer payment is not made on time.
4.11 There are no guarantees, with any Internet Marketing, and the use of the REC platform does not guarantee to increase / generate increased sales or lead generation.
5 IP ADDRESSES
5.1 Areca Design shall maintain control and ownership of the IP address that is assigned to the Customer as part of the Services and reserves the right in its sole discretion to change or remove any and all IP addresses.
5.2 Where Areca Design changes or removes any IP address it shall use its reasonable endeavours to avoid any disruption to the Customer.
6 SOFTWARE LICENCE AND RIGHTS
6.1 If the Customer requires use of Areca Design's Software in order to use the Services, Areca Design grants to the Customer and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use Areca Design’s Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Customer any right, title, interest or intellectual property rights in Areca Design’s Software.
6.2 In relation to Areca Design's obligations under this Agreement in connection with the provision of the Services, the Customer grants to Areca Design a royalty-free, world-wide, non-exclusive licence to use the Customer Software and all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the website ("the Content"). For the avoidance of doubt, this Agreement does not transfer or grant to Areca Design any right, title, interest or intellectual property rights in the Customer Software or the Content.
6.3 The Customer undertakes that he/she will not himself/herself or through any third party, copy, sell, lease, license or sublicense Areca Design's Software.
6.4 Areca Design may make such copies of the Customer Content as may be necessary to perform its obligations under this Agreement, including back up copies of the Content. Upon termination or expiration of this Agreement, Areca Design shall destroy all such copies of the Content and other materials provided by the Customer.
7 SERVICE LEVELS AND DATA BACKUP
7.1 Areca Design shall use its reasonable endeavours to make the server and the Services available to the Customer 100% of the time but because the Services are provided by means of computer and telecommunications systems, Areca Design makes no warranties or representations that the Service will be uninterrupted or error-free and Areca Design shall not, in any event, be liable for interruptions of Service or downtime of the server.
7.2 Areca Design provide data backups, carried out by Wildfire Internet, for use by Areca Design and Wildfire Internet in the event of systems failure. Areca Design and Wildfire Internet do not provide data restoration facilities for individual customers. Even though every effort is made to ensure data is backed up correctly Areca Design and Wildfire Internet accept no responsibility for data loss or corruption. The Customer has the ability to make their own backups and to save them locally, if required, to protect The Customer's data. The responsibility, therefore, lies with The Customer to ensure customer website content is adaquately backed up before any content changes are made.
8 ACCEPTABLE USE POLICY
8.1 The website and use of the Services may be used for lawful purposes only and the Customer may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Customer agrees not to:
8.1.1 use the Services or the website in any way to send unsolicited commercial email or "spam", or any similar abuse of the Services;
8.1.2 send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities;
8.1.3 publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights (for the avoidance of doubt this includes licensed software distributed as Warez), via the Services or on the Website;
8.1.4 threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
8.1.5 engage in illegal or unlawful activities through the Services or via the Website;
8.1.6 make available or upload files to the website or to the Services that the Customer knows contain a virus, worm, trojan or corrupt data; or
8.1.7 obtain or attempt to obtain access, through whatever means, to areas of Areca Design's network or the Services which are identified as restricted or confidential.
8.1.8 operate or attempt to operate IRC bots or other permanent server processes.
8.2 The Customer has full responsibility for the content of the Website. For the avoidance of doubt, Areca Design is not obliged to monitor, and will have no liability for, the content of any communications transmitted by virtue of the Services.
8.3 If the Customer fails to comply with the Acceptable Use Policy outlined in Clause 8.1 Areca Design shall be entitled to withdraw the Services and terminate the Customer's account without notice.
9 ALTERATIONS AND UPGRADES
All alterations and amendments to the website content shall be made by the Customer using the online administration facility. The Customer will be issued with a username and password in order to access the administration centre. The Customer agrees to Areca Design and Wildfre Internet staff having administrator access to the website at any time and allows them to make necessary changes to the website content and programs and configuration as part of setting up, monitoring and supporting the system.
10.1 The Customer warrants and represents to Areca Design that Areca Design's use of the Content or the Customer Software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Customer has the authority to license the Content and the Customer Software to Areca Design as set out in Clause 6.2.
10.2 All conditions, terms, representations and warranties that are not expressly stated in this Agreement, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, Areca Design shall not be liable to the Customer as a result of any viruses introduced or passed on to the Customer.
The Customer agrees to indemnify and hold Areca Design and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against Areca Design arising out of any breach by the Customer of the terms of this Agreement or other liabilities arising out of or relating to the Website.
12 LIMITATION OF LIABILITY
12.1 Nothing in these terms and conditions shall exclude or limit Areca Design's liability for death or personal injury resulting from Areca Design's negligence or that of its employees, agents or sub-contractors.
12.2 The entire liability of Areca Design to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
12.3 In no event shall Areca Design be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or Areca Design had been made aware of the possibility of the Customer incurring such a loss.
13 TERM AND TERMINATION
13.1 This Agreement will become effective on the date the service is ordered and shall continue until terminated by either party in writing of its intention to terminate the Agreement or where the subscription to this service is cancelled by the Customer.
13.2 Areca Design shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due.
13.3 Either party may terminate this Agreement forthwith by notice in writing to the other if:
13.3.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
13.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
13.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
13.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
13.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
13.5 On termination all data held in the Customer's account will be removed. The Customer has the right to request that product information stored in the database is exported into a text file and made available to the Customer.
13.6 The Customer does not have the right to use Areca Design’s Software once this agreement is terminated nor to transfer or use the code on any other server.
13.7 The Customer will be entitled to transfer the domain name registered on their behalf to another provider upon termination of this agreement and upon all outstanding payments being received in full.
14.1 Areca Design may assign or otherwise transfer this Agreement at any time.
14.2 The Customer may not assign or otherwise transfer this Agreement or any part of it without Areca Design's prior written consent which may require the licences required to run the Services being re-purchased and training to be undertaken by the Customer before using any available support services.
15 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
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 appearing in this Agreement or such other address as such party may from time to time have 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 2 days following the date of posting.
18 ENTIRE AGREEMENT
This Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. This Agreement may be updated without notice.
19 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
20 DOMAIN NAME REGISTRATION
20.1 Domain names are not deemed to be successfully registered until they appear in the relevant whois database of the top level domain name registrar. In the event that a domain name is unavailable when we attempt to register it Areca Design will provide a full refund for that domain name, this will be the full limit of our liability.
20.2 Individual domain name registrars have separate terms and conditions which are available upon request.
20.3 Areca Design will make reasonable endeavors to renew domains where the renewal fee has been paid. In the event that we are unable to renew a domain name and that domain name is subsequently lost, the limit of our liability shall be the renewal fee for that domain name.
20.4 Areca Design will retain the domain names which have been registered by us for use in our internet marketing services.
Areca Design is not responsible for customer programming issues other than ensuring that programming languages such as Perl, PHP and ASP are installed and functioning on the web hosting system.
To protect your privacy we will not distribute your details to third parties, unless required to do so by law.
23 DATA TRANSFER
23.1 Web hosting accounts include a certain amount of data transfer, if you exceed this amount in any one month your account will be deactivated until you have upgraded to an account that has more data transfer included.
23.2 Web hosting accounts that host file distribution (including but not limited to music, video and software) are limited to a maximum data transfer of 10 GB per month for file distribution.
23.3 Web hosting accounts are prohibited from hosting adult content orientated websites, hosting banners, graphics or cgi scripts for other websites, storing pages, files or data as a repository for other websites or personal computers, giving away web space under a domain, subdomain or directory.
24 SERVER USAGE
Should your account use more than 5% of the servers processing power and as a result have a detrimental effect on other customers we will discuss with you alternative solutions for your hosting requirements.
25 AFFILIATE PROGRAMME
Commission earned via the affiliate programme will only be paid by using a valid direct debit/credit mandate on your account. It is the customer’s responsibility to ensure they have this facility. In the event of the customer not being able to obtain this facility then no commission will be paid.
26 EMAIL NEWSLETTER
Areca Design communicates with it's customers via email and as such you agree to receive by email our regular newsletter which contains amongst other things changes to our terms and conditions, notification of major outages, amendments to our products & features and special offers.
27 WEBSPACE USAGE
Reasonable web space is available for genuine web site content, content must be linked into web pages. Customers are prohibited from using the server as a file/backup repository. Customers are expected to employ good house keeping when maintaining their account.
28 MAIL BOXES
Mail boxes not accessed for 100 days or more will be removed from the system.
29 DEACTIVATED ACCOUNTS
When a web hosting account is deactivated, you agree that after 30 days this account may be removed from the system without notice.
Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions. Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so.
26th September 2016
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Account" means an account enabling a person to access and use the Hosted Services;
"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
"Authorised Reseller" means a business partner that has entered into an approved relationship with the Provider to sell the Provider’s Hosted Services and their own related services;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Charges" means the following amounts:
(a) the amounts specified on the website from which the service is made available, where shown, or where agreed in writing with the Customer; and
(b) such amounts as may be revised by the Provider or through its Authorised Resellers in writing from time to time; and
(c) such charges for the provision of custom services agreed by the Provider.
"Customer" means the person or entity identified as a user or subscriber to the Hosted Services;
"Customer Confidential Information" means:
(a) any information disclosed by the Customer to the Provider (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider or Authorised Resellers to the Customer;
"Effective Date" means the date the service was first purchased, or used if a free version is available;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means the software which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions, and which explicitly does not include implementation or design services;
"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
"Hosted Services Specification" means the specification for the Platform and Hosted Services as described by the Provider, but which does not include custom designs or bespoke changes made by Authorised Resellers or other parties acting on the instruction of the Customer;
"Implementer" means the organisation or individual responsible for implementing the system for the Customer;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Mobile App" means a mobile version of the application that is made available by the Provider through channels which might include the Google Play Store and the Apple App Store;
"Permitted Purpose" means the use of the system as intended by the Provider for conducting legal business activities and without using the Hosted Services for spamming ;
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means Areca Design Limited, a company incorporated in England and Wales (registration number 948544874) having its principal place of business at The Areca Rooms, Abbey Gate, Evesham, Worcestershire, WR11 4BQ with the principle email address being firstname.lastname@example.org;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Services Order Form" means an online order form published by the Provider and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of the Customer and the Provider or an Authorised Reseller, in each case incorporating these Terms and Conditions by reference;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services;
"Supported Web Browser" means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, and the main body of these Terms and Conditions;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software, which may attract additional charges at the discretion of the Provider.
"Website" means the website or online support system made available by the Provider which relates to the Hosted Services.
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
3. Hosted Services
3.1 The Implementer shall create an Account for the Customer and shall provide to the Customer login details for that Account and any required licence key on or promptly following the Effective Date.
3.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser in accordance with the Documentation during the Term.
3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer;
(b) the Hosted Services will be delivered within the usage levels relevant to the licence that is purchased, and should the Customer exceed the usage levels then additional charges will apply to move to an alternative licence with an appropriate usage level.
3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties, unless it is with the express permission of the Provider, subject to agreed charges;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services, unless it is with the express permission of the Provider;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation;
(f) the Customer is not entitled to transfer the licence to another party without the agreement of the Provider, at which point a new licence will need to be issued which will be subject to a new charge and access to the Platform may be withheld at the Provider’s discretion until such payment has been received.
3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
3.6 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of the Agreement; or
(e) scheduled maintenance carried out in accordance with the Agreement.
3.8 The Customer must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with these Terms and Conditions.
3.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.10 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
(c) when requested to suspend or permanently stop sending email via our Platform
3.11 The Customer acknowledges that alternative hosting arrangements may need to be put into place at additional charge where the Customer’s website usage accounts for 5% or more of system resources, or where the Customer wishes to have special hosting requirements that do not form part of the standard Hosted Services.
3.12 Reasonable web space is available for genuine web site content, and content must be linked into web pages. Customers are prohibited from using the server as a file/backup repository or for streaming services. Customers are expected to employ good house keeping when maintaining their account.
3.13 The Provider may remove any email accounts provided to the Customer which have not been accessed for 100 days or more.
3.14 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term nor to have it transferred to another server.
3.16 The Customer is ultimately responsible for testing the operation of their website:
before making it live; or
whenever changes are made or automatic updates applied as notified in the admin centre; or
whenever the Customer believes there is an issue with the website’s operation; or
after an Update has been applied to the website to resolve an issue; or
whenever system settings, content or designs have been changed.
3.17 The Provider may suspend the provision of the Hosted Services:
(a) if any amount due to be paid by the Customer to the Provider or Authorised Resellers under the Agreement is overdue, without needing to give any further notice;
(b) if there are excessive reports of spam being sent from the Platform, as determined by the Provider or third party service providers;
(c) if the level of usage has a detrimental effect on other Customers;
(d) if the level of usage exceeds that allowed within the Customer’s purchased licence for a period exceeding 30 days, at which point the Provider will issue a revised Charge for a new level of usage and the Customer will make payment as per their regular billing cycle.
4. Maintenance Services
4.1 The Provider shall provide the Maintenance Services to the Customer.
4.2 The Provider shall where practicable give to the Customer prior notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, either via email, admin alerts or Twitter updates, without prejudice to the Provider's other notice obligations under this main body of these Terms and Conditions.
4.3 The Provider reserves the right to make unscheduled maintenance changes without prior notice where the situation demands it.
4.4 The Provider will automatically Update or Upgrade the Platform overnight when changes are released.
4.5 The Provider shall inform the Customer of the application of any Update or Upgrade to the Platform which affects or adds functionality to the Platform when it becomes available, via an admin alert or email bulletin.
4.6 The Provider shall provide the Maintenance Services with reasonable skill and care.
4.7 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, without needing to give any further notice.
5. Support Services
5.1 The Provider shall provide the Support Services which relate to the Hosted Services during the Term.
5.2 The Customer will have access to a helpdesk in accordance with the provisions of this main body of these Terms and Conditions, which will be provided by an Authorised Reseller and which can be used on a reasonable basis.
5.3 The Customer will solely contact the helpdesk to report any issues and the Authorised Reseller operating the helpdesk will refer issues to the Provider where necessary.
5.4 The Provider shall provide the Support Services with reasonable skill and care.
5.5 The Customer will ensure that operators are trained on the system prior to contacting the helpdesk, which includes any third parties appointed by the Customer to make design or configuration changes.
5.6 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services, which includes:
(a) reasonable advice and guidance on using REC;
(b) access to REC Freshdesk knowledge centre and support ticket system;
(c) bug reporting and fixing;
(d) hosting on our dedicated infrastructure;
(e) data backups;
(f) security updates;
(g) software maintenance;
(h) minor software enhancements.
5.7 The Customer may not use the helpdesk for any other purpose, unless it is by separate agreement or quotation, which includes but is not limited to:
(b) design changes;
(c) implementation of system features;
(d) consultancy and marketing advice;
(e) SEO / social media / general internet advice;
(f) implementing new enhancements;
(g) fixing email issues on local devices;
(h) data imports and exports;
(i) retrieving lost / deleted data from backups or rolling back a site;
(j) ad hoc revenue / SEO / performance analysis;
(k) service reviews and reporting;
(l) digital advertising;
(m) entitlement to major software releases.
5.8 Advice on use of the system via the helpdesk will be restricted to 30 minutes per request, or a series of requests where they relate to the same or similar subjects; and where more time is required then this will be deemed as training which is chargeable.
5.9 The Provider shall respond within reasonable timescales to all requests for Support Services made via the helpdesk which are assigned to the Provider.
5.10 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider or Authorised Reseller under the Agreement is overdue, without needing to give any further notice.
6. Customer Data
6.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement.
6.2 The Customer warrants to the Provider that the use of the Customer Data by the Provider in accordance with the Agreement will not:
(a) breach the provisions of any law, statute or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of any person; or
(c) give rise to any cause of action against the Provider,
in each case in any jurisdiction and under any applicable law.
6.3 The Provider shall create a regular back-up copy of the Customer Data, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.
6.4 The Provider will not restore elements of data for individual Customers on an ad hoc request basis.
6.5 The Provider will remove data within 30 days from when the Customer’s account is closed without further notice.
7. Mobile App
7.1 The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.
8. Use of Logos and Intellectual Property Rights
8.1 You agree that the Provider may use your name or logo on the Website announcing that you are a customer of the Service.
8.2 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
8.3 All Updates and Upgrades to the Platform by the Provider are retained within the Provider’s Intellectual Property Rights, whether provided free, as part of a paid Upgrade or funded in any way by a Customer.
9.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions if the Customer signs up directly with the Provider, alternatively the Customer will pay the Charges to the Authorised Reseller with whom they signed up according to any separate agreement between the Customer and Authorised Reseller.
9.2 If the Charges are based in whole or part upon the time spent by the Provider performing custom Services for a request from a Customer or Authorised Reseller, the Provider must obtain written consent before performing Services that result in any estimate of time-based Charges being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the requestor agrees otherwise in writing, the requestor shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 9.2. However, if additional Platform resources required to perform those Services exceed reasonable estimates due to unforeseen circumstances, then the requestor will be liable to pay those Charges or alternatively to request the changes are rolled back where practicable whereupon the Charges will no longer apply.
9.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider or Authorised Reseller.
9.4 The Provider, or its Authorised Resellers acting in agreement with the Provider, may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation.
10.1 Payments are made to the Provider where the Customer has signed up directly with the Provider, alternatively the Customer will make payments to the Authorised Reseller with whom they signed up in accordance with the Authorised Reseller’s own terms and conditions.
10.2 The Provider will only provide Services to Customers signed up by Authorised Resellers once the Provider has received payment in full from the Authorised Reseller in relation to the Customer.
10.3 The Provider, or the Provider’s chosen payment operator, shall issue invoices for the Charges to Customers who have signed up with the Provider.
10.4 The Customer must promptly pay the Charges to the Provider, or the Provider’s chosen payment operator, in accordance with the subscription cycle to which they have signed up.
10.5 The Customer must pay the Charges by direct debit or other acceptable methods as offered by the Provider or the Provider’s chosen payment operator.
10.6 If the Customer does not pay any amount properly due to the Provider, or the Provider’s chosen payment operator, under these Terms and Conditions, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
11. Provider's confidentiality obligations
11.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.
11.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, Authorised Resellers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
11.3 This Clause 11 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider;
11.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
11.5 The provisions of this Clause 11 shall cease to have effect following the termination of the Agreement.
12. Data protection
12.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with these Terms and Conditions, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).
12.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of that Personal Data;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data;
13.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions;
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
13.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(b) the Hosted Services will be free from material Hosted Services Defects;
(c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any material Hosted Services Defects into the Hosted Services, but in the case that any occur these will be remedied in a reasonable timescale.
13.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law.
13.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
13.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights at its own cost and expense; or
(b) withdraw the Hosted Service on a temporary basis; or
(c) terminate the Hosted Service and refund that element of the service for the remainder of the period which has been paid up.
13.6 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.
13.7 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
14. Acknowledgements and warranty limitations
14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
14.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
14.4 The Customer acknowledges that the Provider will not provide any legal, technical, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
15. Limitations and exclusions of liability
15.1 Nothing in the Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
15.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in the Agreement:
(a) are subject to Clause 15.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
15.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
15.4 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
15.5 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
15.6 The Provider shall not be liable to the Customer in respect of any loss of use or production.
15.7 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
15.8 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.
15.9 The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
15.10 The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the amount paid and payable by the Customer to the Provider under the Agreement in the current one month period to which Charges apply according to the plan the Customer has subscribed to. If the Charges are paid annually, then this will be calculated on a pro rata basis for the remaining unused months.
15.11 The aggregate liability of the Provider to the Customer under the Agreement shall not exceed the amount paid and payable by the Customer to the Provider under the Agreement in the current one month period to which Charges apply according to the plan the Customer has subscribed to. If the Charges are paid annually, then this will be calculated on a pro rata basis for the remaining unused months.
15.12 The Provider shall not be liable to the Customer in respect of services provided by Authorised Resellers or other third parties engaged by the Customer.
16. Force Majeure Event
16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
16.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
17.1 Either party may terminate the Agreement by giving to the other party at least 30 days' written notice of termination; where an initial minimum term has been agreed in writing with the Customer then termination can be given only after this period has ended.
17.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
17.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
18. Effects of termination
18.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.17, 7, 10.2, 10.6, 11, 15, 18, 21 and 22.
18.2 The termination of the Agreement shall not affect the accrued rights of either party.
18.3 Within 30 days following the termination of the Agreement for any reason:
(a) a Customer must pay to the Provider any Charges in respect of Services provided to the Customer by the Provider before the termination of the Agreement; and
(b) the Provider must refund the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,
(c) the Provider will not refund any Charges collected by Authorised Resellers who signed up the Customer,
18.4 The Customer can download any data available via the export program and their images via the admin centre or FTP; the Provider has no obligation to provide any other files nor to assist in the transfer of data or assets to another system, and if such assistance was agreed then it would be chargeable and payable in advance by the Customer,
without prejudice to the parties' other legal rights.
19.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or
(c) via an email, with receipt confirmation
providing that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
19.2 The Provider's contact details for notices under this Clause 19 will be via those shown in these terms under the definition of Provider; alternatively the Authorised Reseller will provide their contact details during or just after sign up.
19.3 The addressee and contact details may be updated from time to time by a party giving written or email notice of the update to the other party in accordance with this Clause 19.
20.1 The Provider may subcontract any of its obligations under the Agreement.
20.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations material to the delivery of the Hosted Services.
20.3 Notwithstanding any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform and Hosting Services.
21.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
21.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
21.3 The Agreement may not be varied except, where custom Services are agreed, by a written document signed by or on behalf of each of the parties.
21.4 The Provider may revise these Terms from time to time, the most current version will always be made available on the Provider’s Website. If the revision, in the Provider’s sole discretion, is material the Provider will notify the Customer via an admin alert or e-mail to the email associated with the Customer’s account. By continuing to access or use the Services after those revisions become effective, the Customer agrees to be bound by the revised Terms.
21.5 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time or any third party. The Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
21.6 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
21.7 Subject to Clause 15.1, a Services Order Form, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
21.8 The Agreement shall be governed by and construed in accordance with English law.
21.9 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
22.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
22.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
22.3 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
1. Areca Design is committed to protecting your privacy and maintaining the security of any personal information received from you. We strictly adhere to the requirements of data protection legislation in the UK. The purpose of this statement is to explain to you what personal information we collect and how we may use it.
2. When you order, we need to know your name, address, phone number, email address and payment details. This allows us to process and fulfil your order. You have the option to withhold personal information that is not required for the order process.
3. Areca Design offer a great value service, by using our service you agree that we will use your personal information to tell you about services and new products/services.
4. We do not sell, rent or exchange your personal information with any third party for commercial reasons, beyond the essential requirement for credit/debit card validation during purchase.
5. We follow strict security procedures in the storage and disclosure of information which you have given us, to prevent unauthorised access in accordance with UK data protection legislation. We do not collect sensitive information about you except when you specifically knowingly provide it. In order to maintain the accuracy of our database, you can check, or remove your personal details by accessing the "Contacts and Billing Details" section of the customer area. We use a technology called "cookies" as part of a normal business procedure to allow you to login to the customer area. A cookie is an element of data that our customer area sends to your web browser which is then stored on your system.
6. In order to process credit/debit card transactions, the bank or card processing agency may require to verify your personal details.