Terms and Conditions
These terms and conditions shall apply to the agreement between CastNet Limited ("CastNet") and the individual or company applying for the provision of services by CastNet ("the Customer").
IT IS HEREBY AGREED as follows:
In this Agreement, the following words and phrases shall have the following meanings:
"Confidential Information" - information which is identified as confidential or proprietary by either party or the nature of which is clearly confidential or proprietary.
"Fees" - the fees (including any VAT) due for the provision of the Services as calculated in accordance with the Price List or such other fee as is agreed.
"CastNet's Server" the computer server equipment operated by CastNet in connection with the provision of the Services.
"CastNet's web site" - the web site located at http://www.CastNetWebsites.co.uk or such other Internet address as may be adopted by CastNet from time to time.
"Inappropriate Material" - material that under the laws of any jurisdiction where the material can be accessed is or may be any of the following: unlawful, threatening, abusive, harmful, obscene, pornographic, malicious, profane, libellous, defamatory, infringes any Intellectual Property Rights, constitutes or encourages a criminal offence or contains a virus, worm, trojan horse or other harmful code and such further and additional material referred to in the Acceptable Use Policy.
"Intellectual Property Rights" - copyrights, patents, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
"Material" - text, graphics, images, sound, video or any combination thereof.
"Name" - any name specifically requested by or allocated to you for the provision of the Services including, without limitation, any domain name or mailbox name.
"Order Form" - an order form provided by CastNet as available from CastNet by post or fax on request, and completed by the Customer to indicate which Services it requires and its agreement to these terms and conditions governing such provision.
"Price List" - a list of CastNet's then current standard prices for each of the Services available on request from CastNet.
"Relevant Legislation" - such laws of England and Wales and the Customer's country as relate to data protection and any laws of England and Wales and the Customer's country governing Inappropriate Material.
"Services" - the services identified on an Order Form to be provided by CastNet to the Customer pursuant to these terms and conditions and any others specified by CastNet on such Order Form.
"web site" a web site on the World Wide Web.
2. PAYMENT AND SERVICES
2.1 In consideration for the payment of the Fees calculated in accordance with the Price List at the time of the completion of an Order Form by the Customer, CastNet agrees to provide the Services.
2.2 The Customer agrees to make payment for the Services by payment of the invoice within 28 days of the invoice date if the Order Form is submitted by fax or post.
2.3 If the Customer fails to pay any invoice which is due and payable under this Agreement, CastNet shall be entitled to charge interest on a daily basis on the overdue amount and on outstanding interest from the date of such failure until payment (both before and after judgement) at an annual rate of 4% above the base rate of Barclays Bank plc for the time being in force.
2.4 Non-delivery or non-performance of services by any third party shall not give the Customer any right to delay any payment to CastNet or to make any claim whatsoever against CastNet.
2.5 If CastNet does not receive payment in full within 28 days of the date of the invoice, it may terminate this Agreement as regards any Service requested by the Customer without further obligation to the Customer.
2.6 For the purposes of this Agreement, time of payment is of the essence.
3.1 To indemnify and keep indemnified The Customer from and against any and all loss damage or liability (whether criminal or civil) suffered, and legal fees and costs incurred, by The Customer resulting from a breach of this agreement by CastNet including:
3.1.1 any act neglect or fault of CastNet's employees or agents
3.1.2 breaches in respect of any matter arising from the supply of the Services resulting in any successful claim by any third party.
4. CUSTOMER AUTHORISATION AND OBLIGATIONS
4.1 The Customer acknowledges and accepts that to enable CastNet properly to provide the Services it must co-operate with CastNet as required by CastNet and, without limitation in particular:
4.1.1 the Customer must provide CastNet with accurate details of its e-mail and physical addresses and promptly notify CastNet in writing of any alterations thereto from time to time;
4.1.2 the Customer must obtain the consent of individuals whose personal data are to be held on a domain name register or are otherwise provided to CastNet;
4.1.3 keep the Customer's user ID and passwords secure so that such ID and passwords are only used by the Customer or those authorised by the Customer;
5. CASTNET WARRANTIES AND LIMITATION OF LIABILITY
5.1 In performing our obligations under this Agreement, we shall exercise the reasonable care and skill of a competent Internet service provider.
5.2 Except as expressly set out in this Agreement, all conditions or warranties which may be implied or incorporated into this Agreement by law or otherwise are hereby expressly excluded to the extent permitted by law. In particular, but without limitation, we exclude any warranty as to the quality or accuracy of information received through the Service.
5.3 You acknowledge and agree that we are unable to exercise control over the content of the information transmitted via the CastNet network and/or the Service and that we do not examine the use to which customers put the Service or the nature of the information and/or software they are sending or receiving, hence, we hereby exclude all liability of any kind for the transmission or reception of infringing information of whatever nature.
5.4 While we will use all reasonable endeavours to provide a prompt and continuing service, you are responsible for insuring yourself and/or your organisation against all loss of or damage to data, hence, we will not be liable to you for any loss of or damage to data stored/transmitted on/using the Service and/or the CastNet network.
5.5 You acknowledge and agree that it is your responsibility to adopt appropriate security measures for the protection of computer systems and, hence, we will not be liable to you for any loss or damage that you suffer as a result of any virus or other hostile computer program being introduced into your computers or computer systems as a result of your use of the Service and/or the CastNet network.
5.6 We will not be liable to you, whether in contract, tort or otherwise:
5.6.1 for loss, whether direct or indirect, of business, revenue or profits anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatsoever; or
5.6.2 for the acts or omissions of other providers of telecommunication services or for faults in or failures of their apparatus.
5.7 In any event our liability to you in respect of an event or series of connected events arising out of or in connection with the Agreement, whether in contract, tort or otherwise, shall be limited to the amount of the fee for the Services.
5.8 Each provision of this Clause 5 excluding or limiting liability shall be construed separately, and shall apply and survive even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the termination or expiry of this Agreement.
5.9 Any liability of CastNet whatever arising under these terms or otherwise in respect of the Service or any product shall be deemed to end 6 months after the date on which the customer ought reasonably to have known of the event giving rise to the liability. For the avoidance of doubt, the customer acknowledges and agrees that no claims or actions by the customer can be validly made after the expiry of 6 months following such date.
6.1 CastNet may terminate this Agreement by notice in writing to the Customer having immediate effect if:
6.1.1 the Customer is in breach of any of its obligations under this Agreement;
6.1.2 the Customer is a company and a resolution is passed for its winding up or a petition for its liquidation is presented; or
6.1.3 the Customer is an individual and a petition for bankruptcy is presented against it; or
6.1.4 a receiver or liquidator (where the Customer is a company) or (where the Customer is an individual) a trustee in bankruptcy is appointed over it or any of its assets; or
6.1.5 the Customer proposes or enters into any arrangement or composition with or for its creditors (including any voluntary arrangement).
6.1.6 the Customer provides CastNet with any false, inaccurate or misleading information for the purpose of obtaining Services.
6.2 In the event that any of the circumstances identified in clause 6.1 arises, CastNet shall have the option to terminate this Agreement as regards all Services provided or to be provided or only as regards that Service or those Services in respect of which the breach is considered by CastNet to have been committed; and
6.3 In the event that any of the circumstances identified in clause 6.1 arises, CastNet shall be entitled to retain any sums paid to it by the Customer hereunder and recover any sums due to it pursuant hereto whether invoiced or not at the date of termination.
6.4 Either party may terminate this Agreement by not less than 90 days prior written notice served in accordance with clause 12.5, expiring on or after the end of the minimum period specified in the Order (or if no minimum period is specified, after 12 months from the date the service is ready for service).
7.1 Each of the parties agrees (subject to clauses 7.2 and 7.3) not to:
7.1.1 disclose any Confidential Information received from the other party; or
7.1.2 make any use of any such Confidential Information other than for the purposes of performance of this Agreement.
7.2 Each party may disclose Confidential Information received from the other to its responsible employees, consultants, sub-contractors or suppliers who need to receive the information in the course of performance of this Agreement.
7.3 The confidentiality obligations under clause 7.1 shall not apply to any information which:
7.3.1 is or subsequently becomes available to the general public other than through a breach by the receiving party; or
7.3.2 is already known to the receiving party before disclosure by the disclosing party;
7.3.3 is developed through the independent efforts of the receiving party; or
7.3.4 the receiving party rightfully receives from a third party without restriction as to use.
8. PROVISION OF SERVICE
8.1 We reserve the right to vary the Service Description at any time, however we shall inform you of such variations where we deem it necessary to do so and where reasonably practicable in the circumstances.
9. INSTALLATION AND MAINTENANCE
9.1 We will provide to you such installation and maintenance services for the Service (including, where applicable, the Equipment), as are described in the relevant Service Description.
9.2 Where it is necessary for us to install and/or maintain the Service at your premises, you will provide us with such access as we reasonably require and any technical/personnel assistance reasonably necessary for the installation and maintenance of the Service including, for example and without limitation, electricity supply and suitable accommodation and environmental conditions for the housing of the CastNet Equipment. We will notify you in advance where we require you to make such access available.
9.3 All installation and maintenance services will be carried out by our personnel or appointed agents who shall liaise with your nominated representative.
9.4 If you are subscribed to any managed services ( as described in the relevant Service Description), you will at all times provide our personnel or appointed agents, such access as we reasonably require to the Service either at your premises or via the network, in order to enable us to carry out management of the Service. We will notify you in advance where we require you to make such access available.
10. DATA PROTECTION
10.1 You agree that we may put your name and other information obtained about you from the Order Form and Sales Process into a computerised directory for internal use only, unless we receive specific written instructions from you. You also agree that these personal details may be passed on to other companies in our group.
11. ASSIGNMENT, RESELLING AND SUB-LETTING
11.1 You will not assign, re-sell, sub-lease or in any other way transfer the Service (or any element thereof), or any of your rights or obligations under the terms of this Agreement. Contravention of this restriction in any way, whether successful or not, will entitle us to terminate the Service and/or the Agreement immediately.
12.1 Subject to clause 12.2, this written Agreement together with the Order Form(s), constitutes the entire agreement between the parties hereto relating to the subject matter hereof and save in respect of fraudulent statements supersedes all prior agreements, arrangements, understandings and representations (whether oral, written or otherwise) made by or between the parties and each party acknowledges that it has not relied on any representation made by the other party unless such representation is expressly included herein.
12.2 No change, alteration or modification to this Agreement shall be valid unless in writing referencing this Agreement and signed by the Customer and CastNet.
12.3 If any provision of this Agreement or part thereof shall be void for whatever reason, the offending words shall be deemed deleted and the remaining provisions shall continue in full force and effect.
12.4 CastNet reserves the right to sub-contract any of the work required to fulfil its obligations hereunder.
12.5 All notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the recipient set out on the front page of this Agreement or such other address or electronic mail address as the recipient may designate by notice given in accordance with this clause. Any such notice may be delivered personally, by first class pre-paid letter by facsimile transmission or electronic mail and shall be deemed to have been received:
by hand delivery - at the time of delivery provided that it is handed over to a senior employee or officer of the recipient company,
by first class registered post - 48 hours after the date of mailing in the United Kingdom; or
by facsimile - on receipt of telephone confirmation of receipt from the intended recipient; or
by electronic mail - on receipt of telephone confirmation of receipt from the intended recipient.
12.6 Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.
12.7 Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
12.8 Clause headings have been included in this Agreement for convenience only and shall not be considered part of, or be used in interpreting, this Agreement.
12.9 This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
13. NAME AND INTERNET PROTOCOL ADDRESS
13.1 You confirm and warrant that you are the owner of, or that you have been and are duly authorised by the owner to use, any trade mark or name requested or allocated as your Name.
13.2 You acknowledge that CastNet cannot guarantee that any Name you request will be available or approved for use.
13.3 We have the right to require you to select a replacement Name and may suspend the Service if, in our opinion, there are reasonable grounds for us to believe that your current choice of Name might infringe the rights of any other person or company, whether in statute or common law, in a corresponding trade mark or name.
13.4 If the Service includes the registration of an Internet domain name you acknowledge and agree that:
13.4.1 we do not represent, warrant or guarantee that any domain name applied for by you or on your behalf will be registered by in your requested name or is capable of being registered by you or that the use of such domain name by you will not infringe any third party rights. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been duly registered and we shall not be liable for any such action taken by you.
13.4.2 The registration of the domain name and its ongoing use by you is subject to the relevant naming authority's terms and conditions of use and you undertake to us that you will comply with such terms and conditions. You hereby irrevocably waive any claims you may have against us in respect of any decision of a naming authority to refuse to register a domain and, without limitation, you acknowledge and agree that any administration or other charge paid by you in respect of the registration of the domain name is non-refundable in any event.
Nominet's terms and conditions can be found here: http://www.nic.uk/ref/terms.html.
13.4.3 We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on becoming aware of such a dispute concerning a domain name, at our sole discretion and without giving any reason, to either suspend or cancel the relevant service associated with the domain name, and/or to make such representations to the relevant naming authority as we deem appropriate.
13.4.4 You are responsible for domain name renewal and recognise that you must inform CastNet as to your intentions regarding renewal of your domain name or names.
13.4.5 Any Internet Protocol address allocated by us to you shall at all times remain our sole property and you will have a non-transferrable licence to use such address for the duration of this Agreement. If this Agreement is terminated for whatever reason, your licence to use the Internet Protocol address shall automatically terminate and thereafter you shall not use such address.
14. WEB SITE HOSTING
14.1 The Customer will provide and post to CastNet's server hosting the Customer's Web site only Material which is "server-ready" and which requires no additional manipulation on the part of CastNet. CastNet shall be under no obligation to validate such Material as not containing Inappropriate Material or for content, correctness, legality or usability.
14.2 The Customer recognises that using CastNet's web site hosting Service requires a certain level of knowledge on the Customer's or its web development agency's part, without limitation for example knowledge of hyper text mark up language or file transfer protocol and other protocols, languages and software, and that it is the Customer's or its web development agency's responsibility to upload the content of the Customer's web site and to check such content functions satisfactorily. If requested by the Customer, CastNet may be able to recommend a suitable web development agency to assist the Customer to exploit its web site hosted by CastNet's Server.
14.3 The Customer warrants that it has the necessary knowledge referred to in clause 14.2 above and acknowledges that whilst CastNet may endeavour to assist the Customer on a "good-will" basis, it is not the responsibility of CastNet to provide such knowledge or to provide the Customer with support and assistance in relation to its web site hosted by CastNet's Server unless otherwise agreed in writing with CastNet.
14.4 The Customer acknowledges and accepts that it bears sole responsibility, legal and otherwise, for the content of all Material appearing on its web site hosted by CastNet's Server. For the avoidance of doubt, this clause shall apply to all Material, whether posted on to the CastNet server by or on behalf of the Customer, whether by CastNet or a third party.
14.5 The Customer warrants, represents and undertakes in relation to all Material (including any Material which it requests CastNet or any third party to post on its web site hosted by CastNet's Server) that:
14.5.1 it is not Inappropriate Material;
14.5.2 the Customer either has sole ownership of all Intellectual Property Rights in such Material in each jurisdiction from which the web site may be accessed and/or has obtained full and effective licence(s) from all relevant third parties allowing the Customer or a third party acting on behalf of the Customer to use the Material and to permit its dissemination world wide;
14.6 The Customer undertakes not to link to any Inappropriate Material from its web site.
14.7 CastNet shall retain the right at all times to refuse to host any Material and to suspend availability of the web site and/or to remove any Material already appearing on the web site which in the opinion of CastNet:
14.7.1 constitutes or would if posted constitute Inappropriate Material;
14.7.2 breaches or would if posted breach Relevant Legislation or any other applicable regulations, standards or codes of practice (notwithstanding that compliance may not be compulsory); and/or
14.7.3 harms or would if posted harm the reputation of CastNet in any way
14.8 CastNet's rights to suspend availability of the Customer's web site and/or remove content under clause 14.7 above shall be without prejudice to the Customer's sole responsibility for content of the web site under clause 14.4 and to the warranties given by the Customer relating to that content in clause 14.5.
14.9 Hosting of Material by CastNet on the Customer's web site shall not under any circumstances constitute a waiver of any of its rights in relation to such Material or of its rights in relation to any breach of the Customer's obligations under this Agreement.
14.10 The Customer undertakes:
14.10..1 to fully virus-check all data supplied to CastNet pursuant to this Agreement;
14.10.2 not to embark on any course of action, whether by use of its web site or any other means, which may cause a disproportionate level of web site activity without providing at least seven day's prior notice in writing to CastNet;
14.10.3 to keep secure from third parties any passwords issued to the Customer by CastNet in connection herewith;
14.10.4 to observe the limitations on data transfer notified to it by CastNet and agree, if such limits are exceeded, to pay the appropriate excess charge at CastNet's then current rates.
15 - E-MAIL SERVICES (including e-mail forwarding)
15.1 The Customer undertakes that it will not (and will ensure that others under its control will not) via e-mail:
15.1.1 transmit Inappropriate Material;
15.1.2 infringe the Intellectual Property Rights of any third party;
15.1.3 make use of CastNet's Server to an extent or in a manner which in CastNet's reasonable opinion is excessive, wasteful or otherwise to the detriment of CastNet, any of CastNet's customers or any other third party, including but not limited to:
188.8.131.52 the transmission of bulk e-mail ("spamming"); or
184.108.40.206 referring to CastNet hosted websites or email addresses in bulk e-mail ("spamming") sent via other servers; or
15.2. When sending e-mail, the Customer acknowledges that it is responsible for complying with any Relevant Legislation.
15.3. The Customer acknowledges and agrees that CastNet is not responsible for the security of the contents of e-mail sent or received by the Customer.
15.4 CastNet will use its reasonable endeavours to ensure that messages are routed accurately and promptly but does not accept any liability for non-receipt, non-delivery or misrouting of e-mail or any other failure of the e-mail system.
15.5 CastNet's policy is to respect the privacy of e-mail messages sent, received forwarded or otherwise dealt with by it and the Customer acknowledges that CastNet will therefore not monitor, edit or disclose the contents of such messages unless required to do so by law or competent authority or to protect CastNet's rights and/or position.
15.6 For the purposes of email data transfer, file size is multiplied by a factor of 1.8 to account for the size of data packets.