The following words shall have the following meanings:
1.1 “Agreement” means the Order Form (and/or a request for services via an equivalent online method approved by the Company), the Conditions, the AUP and the SLA;
1.2 “Assumptions” means the assumptions referred to in Clause 3.4 (and as may be changed in accordance with Clause 3.5);
1.3 “AUP” means the Acceptable Use Policy of the Company;
1.4 “Change Recommendation” means the change(s) which may be recommended by the Company at any time in writing in accordance with the mechanism set out in Clause 3.5;
1.5 “Change Request” means the change(s) which may be requested by the Customer at any time in writing in accordance with the mechanism set out in Clause 3.5;
1.6 “Change Response” means the written response provided by the Company to the Customer in accordance with Clause 3.5 following an investigation into the effect(s) of the proposed change(s);
1.7 “Chargeable Day” means one person working on a calendar day for up to seven and a half hours (7.5 hours);
1.8 “Colocation” means the accommodation of equipment owned by the Customer at a data centre operated by the Company and for these purposes “Colocated Equipment” means the equipment so accommodated and “Colocated Space” means the place where the Colocated Equipment is accommodated;
1.9 “Company” means Raw Creative Limited (Company Registration Number 8045901) whose registered office is situated at 17 Albert Street, Harrogate, HG1 1JX;
1.10 “Company’s Network” means the network owned and managed by the Company for the purpose of connecting the Customer to the Internet;
1.11 “Conditions” means these terms and conditions;
1.12 “Customer” means any person or organisation with whom the Company enters into the Agreement and as detailed on the Order Form;
1.13 “Internet” means the global data network comprising interconnected networks to which the Company is connected and provides access to its Customers;
1.14 “Internet Protocol Address” means such sequence of alphanumeric or numeric only characters as assigned by the Company to the Customer in relation to the Specification;
1.15 “Network Operator” means the legal entity or entities responsible for the operation of a communications network;
1.16 “Order Form” means the Company’s standard Order Form or Quotation signed for or acknowledged via email response by the customer to the company;
1.17 “Parties” means the Customer and the Company;
1.18 “Password” means the alphanumeric characters chosen and used exclusively by the Customer at its own risk for the purpose of securing and maintaining the exclusivity of its access to the Company’s Services;
1.19 “Services” means the services described in the current Company literature together with such Value Added Services to be provided by the Company to the Customer but excluding all or any representations made by the Company’s distributor which will not form part of the Agreement unless confirmed in writing by the Company prior to the purchase of the Services;
1.20 “Service Commencement Date” means the date identified as the target delivery date on the Order Form;
1.21 “SLA” means the Service Level Agreement of the Company;
1.22 “Specification” means a detailed written specification of the Services to be provided to the Customer under the Agreement;
1.23 “TCP/IP” is the abbreviation for Transmission Control Protocol/Internet Protocol;
1.24 “Upgrade Usage Charges” means the charges for such predetermined unit of time and/or volume of data together with any charges related to the Valued Added Services from time to time provided by the Company and in each and every case the said charges shall be such rates as are set out or referred to in the Company’s Quotation and/or such as may be agreed in writing between the Customer and the Company;
1.25 “User” means any person, organisation or other entity that employs the Services provided by the Company and is in most cases the Customer;
1.26 “User name” means a sequence of alphanumeric characters as are used by the Customer to identify itself; and
1.27 “Value Added Services” means the provision of a service (or services) other than the Services which are agreed in writing between the Customer and the Company.
2. ACCEPTANCE OF AGREEMENT
2.1 The Company reserves the right to refuse to enter into any Agreement for the Services but if accepted by the Company the Services shall not be unreasonably withheld without proper justification.
2.2 The Customer acknowledges that the Conditions prevail over any of the Customer’s own standard terms and conditions whether set out on the Customer’s own standard order form or Quotation.
2.3 In the event of any conflict between the Conditions and the Agreement for the Services then the Conditions shall prevail.
3.1 The Company shall provide the Services to the Customer having regard to the provisions of the SLA.
3.2 The Parties shall produce and agree the Specification.
3.3 The Parties each agree to dedicate the necessary resources and use all reasonable commercial efforts to meet their respective deadlines set forth in the Specification. Any delay or adjustment in the Specification caused by the Customer’s delay shall be the responsibility of the Customer and the Customer will pay the Company for all costs incurred for wasted time and/or for the rescheduling of booked resources at the Company’s standard daily rates plus expenses.
3.4 In relation to performance dates, the number of Chargeable Days estimated to be required to complete the Services as detailed in the Order Form or Quaotation shall be reviewed following finalisation of the Specification and is based upon the following assumptions (known as “the Assumptions”):
(a) the scope of the tasks performed by the Company will not exceed those stated in the Quotation;
(b) the Customer will perform and complete the Customer’s assigned tasks required by the Specification in a timely manner;
(c) the Customer will not suspend or delay the project in any manner without prior authorisation by the Company which shall not be unreasonably withheld;
(d) the Services are performed during normal working hours those being Monday to Friday 9.00am to 5.30pm except as otherwise agreed in writing between the Parties; and
(e) the Specification cannot be amended once it has been agreed.
3.5 Without prejudice to Clause 24, changes can only be effected in accordance with the following change control mechanism:
(a) either the Company may recommend, or the Customer may request, at any time in writing changes to any of the Assumptions, to any part of the Specification or other provisions of the Agreement;
(b) the Company will notify the Customer in writing within 10 working days of either the Company making a change recommendation (known as “a Change Recommendation”) or receiving a written request for changes from the Customer(known as “a Change Request”)of the time needed to investigate the implication(s) of the proposed change(s) together with the costs (if any) to be charged by the Company to the Customer for undertaking such an investigation;
(c) assuming the investigation proceeds (since it is for the Customer to give the Company a written instruction to investigate the implication(s) of the proposed change(s) by first having agreed to pay any costs to be charged by the Company to the Customer for undertaking it) the Company will give a written response (known as “a Change Response”) showing the effect(s) of the proposed change(s) including:
(i) a revised estimate of the number of Chargeable Days estimated to complete the Services;
(ii) a revised project timeline;
(iii) any additional expenses that will be incurred;
(iv) any effect(s) on other contractual provisions of the Agreement should the proposed change(s) be implemented and in so doing the Company shall use all reasonable endeavors to ensure that the Change Response is given within 10 working days (or such longer period as may be reasonably agreed between the Parties) of receipt by the Company of a written instruction to investigate the implication(s) of the proposed change(s);
(d) should the Customer wish to proceed with the proposed change(s), it will instruct the Company in writing of its wish as soon as reasonably practicable after receipt of the Change Response but in any event not later than 10 working days of receipt of the Change Response (or such longer period as may be reasonably agreed between the Parties) and in such a case those parts of the Agreement affected by the proposed change(s)once implemented will then be deemed to be varied in accordance with the details set out in the Change Response which will then form part of the Agreement; and
(e) until any change is agreed in writing and implemented the Parties shall continue to perform their respective obligations under the Agreement as if the change had not been proposed.
3.6 All key personnel and subcontractors provided by the Company to perform the Services pursuant to the Agreement shall have the appropriate technical and application skills to enable them to adequately perform their duties. All of the Services shall be performed in a competent and workmanlike manner. The Company will use all reasonable efforts to ensure continuity in staffing of its key personnel.
3.7 The Customer agrees to procure the agreement and understanding of the Customer’s own customers where the Services are to be sold to third parties and procure in writing the agreement of such customers that they agree to terms and conditions no less onerous than those contained in the Conditions.
3.8 The Customer agrees not to oversell the Services (or any part thereof) under the Agreement to any third party.
3.9 Total data sent and received within the Company’s network is calculated monthly per customer and measured in Gigabytes rounded up to the next 1 Gigabyte.
3.10 The Company does not warrant that the Company’s technology or the Services will be compatible with any equipment, software or other technology not furnished by the Company.
4. THIRD PARTY SOFTWARE AND HARDWARE
4.1 All third party software and hardware shall be sold subject to the Customer’s acceptance of the relevant suppliers’ software licence(s) for such third party software. The Company aims, wherever possible, to pass onto the Customer the benefit of any and all representations and warranties it receives from the respective third party software suppliers but is under no obligation to do so given that such matters lie outside the Company’s control.
4.2 The pricing set forth in the Order Form for third party software is estimated to the extent that the actual cost may differ based upon such variables including (but not limited to) the Customer’s specific requirements, changes to functionality and changes in pricing by the third party software vendors on the date on which the software is ordered all of which said matters lie outside the control of the Company.
4.3 To the extent that third party software is supplied by the Company, the Customer may procure support services in accordance with the details set out in the Order Form but the Company’s offer to provide these support services is contingent upon the Company’s ability to obtain such support from the appropriate third party software supplier as a result of which the Company cannot and does not warrant that such third party software is or will be supported by the Company because such matters lie outside the control of the Company.
5. RIGHT TO CHANGE USERNAME, INTERNET PROTOCOL ADDRESS AND PASSWORD
The Company shall have the right at any time to change the Username, Internet Protocol Address and/or Password allocated by the Company to the Customer for the purpose of essential network maintenance, enhancement modernisation or other work deemed necessary for the effective operation of the Company’s Network.
6.1 All charges for the Services, as detailed in the Order Form, shall be paid by the Customer to the Company quarterly or monthly in advance unless otherwise agreed in writing between the Parties in the manner prescribed in the Quotation.
6.2 The Company reserves the right to vary all charges to the Customer with one month’s notice but any such variation shall only take effect on the contract renewal date or the anniversary of the contract commencement date (whichever is the earlier).
6.3 Itemised details of excess usage of bandwidth and any other relevant charges may only be made available to the Customer if ordered in advance but the Company in any event reserves the right to make additional charges for the provision of these details.
6.4 All payments shall be due to the Company on presentation of invoice or as otherwise stated in the Quotation. All payments shall be sent to the Company’s registered office as set out in Clause 1.9 above or such other address as may be notified in writing from time to time by the Company to the Customer.
6.5 The Company reserves the right to charge interest on late payments at the rate of 5% above the Bank of England Base Rate in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 as amended by the Late Payment of
Commercial Debts Regulations 2002.
6.6 All charges and tariffs are quoted exclusive of Value Added Tax.
6.7 The Company reserves the right to change payment terms and require deposits if the Customer is more than 30 days late in making payments during the term of the Agreement in addition to or in lieu of any other remedies set out in the Conditions or otherwise available at law or in equity.
The Customer hereby agrees to accept and abide by the AUP.
8.1 Colocated Equipment shall at all times remain at the Customer’s sole risk such that the Customer shall be responsible for insuring the Colocated Equipment against all risks.
8.2 Equipment leased from the Company shall at all times remain the property of the Company.
8.3 The Customer agrees to:
(a) maintain, at the Customer’s expense, comprehensive general liability insurance with a reputable insurance company for the full replacement cost of any equipment leased from the Company throughout the term of the Agreement;
(b) provide the Company with evidence of the same upon request; and
(c) undertake to ensure that all moneys received from the insurer are paid directly to the Company to meet any claim to which the payment relates.
9.1 Nothing in the Agreement shall limit the Company’s liability to the Customer for death or personal injury resulting from the Company’s negligence.
9.2 Except for the Company’s liability to the Customer listed in Clause 9.1 (where no limit applies), the Company’s liability arising under or in connection with the Agreement for the provision of the Services whether in contract, tort, negligence, breach of statutory duty or otherwise howsoever arising shall not exceed the greater of:
(a) £5000 (FIVE THOUSAND POUNDS): or
(b) the total amounts paid by the Customer under Clause 6.1 in the month when such event (or the first event in any series of connected events) occurs.
9.3 Notwithstanding Clause 9.2, in no case shall the Company be liable either to the Customer or to any third party for or in respects of any indirect, consequential or economic loss including (but not limited to) damage, costs or expenses of any description, loss of profit, business, goodwill, turnover or any other loss arising from its performance or non-performance of its obligations in connection with the Agreement whether arising from breach of contract, tort, breach of duty, negligence or any other cause of action even if the event was foreseeable by the Company or the possibility thereof is or had been brought to the attention of the Company.
9.4 Except for the purposes of Clause 9.1, no action or proceedings against the Company arising out of or in connection with the Agreement shall be commenced by the Customer more than one year after the Services have been rendered and in this respect the Customer acknowledges that this clause constitutes an express waiver of any and all of its rights under any otherwise applicable statute of limitations.
10.1 The Services may be suspended by the Company 5 days after a notification of suspension has been issued by email or facsimile and without prejudice to the Company’s rights of termination under Clause 11 in the event of the Customer:
(a) failing to make any payment to the Company on the relevant due date for payment;
(b) doing or allowing anything to be done which contravenes the AUP;
(c) exceeding its credit limit without the prior written approval of the Company; or
(d) being in otherwise breach of the Conditions.
10.2 Suspension shall not affect the liability of the Customer to pay charges and other amounts to the Company.
10.3 The Company reserves the right to suspend the Services if the Customer has not paid the required deposit before a stipulated event or exceeds four times the committed amount during the month for any of the Services or as otherwise provided in the Agreement.
11. TERM AND TERMINATION
11.1 The Agreement shall remain in force for a minimum period of 12 months from acceptance of the Customer’s application being the date on which the Order Form was signed by the Customer unless otherwise agreed with the Company and as so stated in the Quotation.
11.2 Termination of the Agreement can be effected:
(a) by the Customer giving the Company not less than 1 month prior written notice (which for these purposes excludes email such that email notification will not be accepted as a valid method of termination) which said period of notice shall expire at any time on or after expiry of the minimum term as stated in the Quotation.
(b) by the Company at any time forthwith if the Customer commits any breach of the Agreement including (but not limited to) non-payment of any fees due;
(c) by the Company giving the Customer 30 days prior written notice at its sole discretion for any reason; or
(d) by the Company upon receiving written notification of the institution of insolvency, receivership, bankruptcy or any other proceedings for the settlement of the Customer’s debts or upon the making of an arrangement for the benefit of the Customer’s creditors or upon the dissolution of the Customer.
11.3 The Company reserves the right to invalidate any or all of the Customer’s Username and Internet Protocol Address issued to the Customer following termination of the Agreement and to re-allocate it or them to another customer.
11.4 Domain name hosting and transfer requests for domain name server records must be submitted in writing with the authorised signature of the domain name owner and a nominal charge will be made to transfer and cover administration costs. Domain name transfers will not be made until all outstanding amounts have been paid by the Customer such that until this happens domain names remain the property of the Company.
11.5 The Customer shall return all equipment cables and literature belonging to the Company at the Customer’s own cost within 5 days of termination of the Agreement and shall ensure that it arrives in good working order otherwise an appropriate fee may be levied by the Company.
12. RIGHTS ON TERMINATION
12.1 Termination of the Agreement shall not affect any pre-existing liability of the Customer or affect any right of the Company to recover damages or pursue any other remedy in respect of any breach of the Agreement by the Customer.
12.2 On termination of the Agreement the right to the use of the Internet Protocol Address allocated by the Company shall revert to the Company.
12.3 In the event of termination of the Agreement by the Company due to breach of the Conditions by the Customer, the Company shall be entitled to the balance of all payments which would but for such termination have accrued up to the earliest date upon which the Agreement could have been terminated by the Customer in accordance with the Conditions.
13. RELEASE OF INFORMATION
The Company shall not be required to release any domain name and may refuse to do so until the Agreement has been validly terminated and the Customer has complied with all of its obligations including (but not limited to) the payment of all sums due to the Company. Domain names remain the property of the Company until all sums due have been received.
14. INTELLECTUAL PROPERTY
14.1 The Company grants to the Customer a limited, non-exclusive licence to use the Services as set out in the Quotation throughout the term of the Agreement or until the Agreement is terminated (whichever date is earlier) and subject to the restrictions set forth in the Agreement which said licence does not entitle the Customer to any updates, modifications or new releases to the deliverables or software.
14.2 The Company reserves any and all of the Company’s copyright, trademarks, trade names, patents and all other intellectual property rights created, developed, subsisting or used in connection with any deliverables, software, the Services or the Specification which are the sole property of the Company.
14.3 The Customer shall not transfer the Customer’s licence nor sublicense the deliverables or the software except where permitted to do so by the terms of the Agreement and in particular the Customer shall not (and shall not allow any third party to):
(a) remove any product identification, copyright, trademark or other notices;
(b) sell, pledge, lease, lend, distribute over the Internet;
(c) load or use portions of the software (whether or not modified or incorporated into or with other software) on or with any machine or system that is not physically kept at the facilities of the Customer or within third party facilities contracted by the Customer.
14.4 The Customer shall not disassemble, decompile or otherwise reverse engineer the Services provided under the Agreement.
15. FORCE MAJEURE
15.1 The Company shall not have any liability to the Customer for any delay, omission, failure or inadequate performance of the Agreement which is the result of circumstances beyond the reasonable control of the Company. Where the Company is so affected in its performance of the Agreement it will notify the Customer in writing as soon as is reasonably possible.
15.2 Where the performance of the Agreement is affected by force majeure the Company shall use its reasonable endeavors to overcome the problem as soon as practicably possible.
16.1 Other than suspension notices served pursuant to Clause 10, any notice given under or in connection with the Agreement shall be in writing and shall be duly delivered if sent by first class post to the relevant address given in the Quotation or to such other address as the recipient may have previously notified in writing to the other party for that purpose.
16.2 Suspension notices served pursuant to Clause 10 shall be deemed as duly delivered and received when sent by email or facsimile to such email address or facsimile number as the Customer may have previously notified in writing to the Company.
16.3 Other than suspension notices served pursuant to Clause 10 or maintenance notices served pursuant to Clause 16.4, any notice shall be deemed to be duly received at the expiration of 48 hours after the envelope containing the notice had been posted and in proving such service it shall be sufficient to show that the envelope containing such notice was properly addressed and posted as a first class letter.
16.4 The Company will provide 5 days’ notice (by email or facsimile) for any maintenance the Company wishes to undertake but in the event of emergency maintenance the Company will provide as much notice as is reasonably possible.
17. EXPENSES OF THE COMPANY
The Customer shall pay to the Company all costs and expenses reasonably and properly incurred by the Company in enforcing any of the Conditions or in exercising any of the Company’s rights or remedies under the Agreement including (but not limited to) all costs incurred in tracing the Customer in the event that legal process cannot be effected at the last known address of the Customer.
18.1 Any allowance of time to pay or any other form of indulgence by the Company shall in no manner affect or prejudice the Company’s right to payment and interest pursuant to the Conditions.
18.2 No failure, neglect or delay in enforcing any of the terms of the Agreement may be construed as a waiver of any of the Company’s rights in respect thereof nor such neglect, failure or delay a variation of the express terms of the Agreement.
In the event that any part of the Agreement is found to be invalid or otherwise unenforceable then such provision shall be regarded and construed as severable from the Agreement so as not to affect the validity and enforceability of the remainder.
20.1 Each party undertakes to the other that it shall keep (and shall procure that its directors and employees shall keep) secret and confidential and shall not use or disclose to any other person any information or material of a technical or business nature relating in any manner to the business, products or services of the other party which the receiving party may receive or obtain in connection with or incidental to the performance of the Agreement but subject to the remaining provisions of this Clause 20.
20.2 Notwithstanding Clause 20.1, the receiving party shall not be prevented from using any general knowledge, experience and skills not treated by the disclosing party as confidential or which do not properly belong to the disclosing party and which the receiving party may have acquired or developed at any time during the term of the Agreement.
20.3 Notwithstanding Clause 20.1, the receiving party shall not be prevented from using the information or material referred to in Clause 20.1 above to the extent such information or material comes into the public domain otherwise than through the default or negligence of the receiving party.
20.4 Notwithstanding Clause 20.1, either party shall have the right to communicate any information concerning the other party to any Government department, regulatory body or any other form of enforcement authority or as may be required by law.
The Customer shall not assign or transfer any of the Customer’s rights or obligations under the Agreement without the prior written consent of the Company.
22. CLAUSE HEADINGS
Clause headings are for ease of reference but do not form part of the Agreement and accordingly shall not affect its interpretation.
23. ENTIRE AGREEMENT
23.1 The Services are provided subject to the Conditions to the exclusion of any other terms and conditions such that and for the avoidance of doubt no terms and conditions contained in any document previously sent by the Customer to the Company prior (or subsequent to) the Order Form being signed by the Customer shall be of any effect with respect to the Agreement unless expressly agreed in writing by a director of the Company.
23.2 The Customer acknowledges that in entering into the Agreement the Customer has not relied on and shall not be entitled to rescind the Agreement or to claim damages or any other remedy on the basis of any representation, warranty, undertaking or other form of opinion or statement made by or on behalf of the Company save where expressly contained in the Agreement.
23.3 The Parties hereby agree that the Agreement constitutes the entire agreement between the Parties in respect of the Services.
24.1 The Company reserves the right to vary the Conditions as a result of changes required by its insurers, for operational or administrative reasons or in order to comply with changes in the law.
24.2 A current version of the Conditions can be sent on request.
24.3 The Company will provide the Customer with 14 days’ notice of any significant changes to the Conditions.
24.4 The Customer will keep the Company promptly informed of any changes to the Customer’s address and such other information as may affect the payment of charges due.
25. LAW AND JURISDICTION
The Agreement is governed by the laws of England and Wales and is subject to the exclusive jurisdiction of the Courts of England and Wales.
26. THIRD PARTY RIGHTS
The Parties agree that it is not hereby intended that any rights should be conferred upon or enforceable by any third party as defined in the Contracts (Rights of Third Parties) Act 1999 unless the context otherwise permits.