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Terms and Conditions ...
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| 1. |
HANDY4U LIMITED of 17
Marlock Close Fiskerton Southwell Nottinghamshire NG25 0UB (handy4U) is the provider
of the services for the Customer whose name and address shall be printed on the
Order Form |
| 2. |
Interpretation |
| 2.1 |
In this agreement unless otherwise specified:
2.1.1 reference to a party is a reference to a party to this agreement and includes his permitted assignees and the respective successors in title to substantially the whole of his undertaking;
2.1.2 reference to a person includes any person, individual company firm corporation government state or agency of a state or any undertaking whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists;
2.1.3 reference to a statute or statutory instrument or any of its provisions is a reference to that statute or statutory instrument or such provision as from time to time amended or re-enacted
2.1.4 words denoting the singular include the plural and vice versa and
words denoting any gender include all genders;
2.1.5 references to recitals clauses paragraphs or schedules are to recitals
clauses and paragraphs of and schedules to this agreement;
2.1.6 ‘includes’ and ‘including’ shall mean includes and including without limitation
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| 2.2 |
The index to and the headings in this agreement are for information only and shall be ignored in construing it
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| 2.3 |
The Order Form and Confirmation form part of the operative provisions of this agreement and references to this agreement shall, unless the context otherwise requires, include references to the recitals the Order form and Confirmation
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| 2.4 |
In this agreement the following words shall have the meanings set out by them:
'Confirmation' means the acknowledgement by Handy4U to the Customer that it will provide the Services selected by the Customer on the Order form
'Content' means the information provided by the Customer to enable Handy4U to perform its Services some of which information shall be incorporated into or on the Web-site or in the advertisement
'Effective date' means the date of the Confirmation
'Order Form' means the form selecting the Services and provided by Handy4U completed by the Customer and submitted to Handy4U
'Password' means the unique password given to the Customer by Handy4U to enable the Customer to amend the Content
'Price' means the cost of the Services provided by Handy4U set out in the Order form and selected by the Customer
'Referral Fee' means the sum of £1.00 per month (inclusive of VAT) paid for each new Client of Handy4U introduced by the Customer Provided that
(i) the new Client continues to use the Services
(ii) the Customer continues to use the Services. There shall be no obligation to pay the Referral Fee as soon as either the New Client or the Customer cease using Handy4U’s Services
'Services' means either the provision of a Web-site or advertisement and identified by the Customer on the Order Form
'Web-site' means the Web-site provided by Handy4U in accordance with this Service
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| 3 |
Recitals |
| 3.1 |
The Designer is engaged in business as a developer and provider of Web-sites and advertisements for small businesses
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| 3.2 |
The Customer is a small business that requires marketing through a web-site or by direct newspaper advertising
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| 3.3 |
The Customer has advised the Designer of its requirements and the Designer has agreed to provide a web-site or advertisement as set out on the Order Form
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| 3.4 |
Handy 4U shall comply with all data protection legislation and shall subject to the terms of this agreement keep all information provided by the Customer confidential
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| 4 |
The Appointment |
| 4.1 |
Subject to the terms and conditions of this agreement the Customer appoints Handy4U with effect from the Effective Date to provide the Services selected by the Customer on the Order Form
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| 4.2 |
Handy4U will with effect from the Effective Date:
4.2.1 Carry out the Services on behalf of the Customer in accordance with the Confirmation
4.2.2 perform his obligations and duties under his agreement with all due care diligence and skill
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| 4.3 |
This agreement shall be for an initial period of three months from the Effective Date and thereafter shall be terminable:
4.3.1 Upon one months notice by the Customer
4.3.2 By Handy4U at any time without any liability to make any repayment of the Price
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| 5 |
The Customer shall: |
| 5.1 |
provide all informative and documentation reasonably requested and required by Handy4U to carry out the Services
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| 5.2 |
ensure that all information provided to Handy4U is accurate and true
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| 5.3 |
maintain passwords as confidential
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| 5.4 |
use its best endeavours to prevent any virus or other form of interference or disruption from corrupting Handy4U’s software and data
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| 5.5 |
notify Handy4U in the event that the Customer becomes aware or is reasonably suspicious that any of Handy4U’s other Clients are in breach of the terms of their agreement with Handy4U
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| 6 |
Payments |
| 6.1 |
In consideration of the performance of the Services by Handy4U the Customer shall pay the Price in the manner and terms set out in the Order Form
6.2.1 The Price is inclusive of VAT unless stated otherwise
6.2.2 All payments shall be made by the Customer to Handy4U in pounds sterling by standing order or direct debit to the account of Handy4U
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| 6.3 |
Payment by the Customer shall be without prejudice to any claims or rights the Customer may have against Handy4U and shall not constitute any admission by the Customer as to the performance of Handy4U’s obligations under this agreement
6.3.1 The Price may be increased, but at least one month's notice of any increase in the Price shall be made either on Handy4U’s web-site and/or on any correspondence/statement submitted to the Customer by Handy4U
6.3.2 For Customers paying by Standing Order. In the event that the Price for the Services is varied in accordance with clause 6.3.1 the Customer shall complete and return to Handy4U a new Standing Order mandate reflecting such change within 14 days of any request to do so
6.3.3 Handy4U shall be entitled to withdraw the Services if the amended/new Standing Order mandate referred to in clause 6.3.2 is not returned to Handy4U within the timescale stated
6.3.4 there shall be no increase in the Price within 3 months of the Effective Date
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| 6.4 |
If the Customer fails to make any payment to Handy4U under this agreement when it is due and payable then in addition to any other right Handy4U may have it shall be entitled to terminate the Services and destroy the Customer data and web-site
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| 6.5 |
Handy4U shall pay any Referral Fee due to the Customer quarterly in arrears
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| 7 |
Handy4U’s Rights |
| 7.1 |
Handy4U shall have the following rights in addition to such statutory rights and obligations that it may have
7.1.1 The right to forward to any authority or police force any material belonging to the Customer when requested to do so without any obligation upon Handy4U to justify such an action
7.1.2 The right to disclose such information Handy4U in its absolute discretion deems necessary in the event that Handy4U becomes aware that the Customer is in breach of any of the terms of this agreement or Handy4U receives a complaint about the Content
7.1.3 The right to withdraw or remove the Content incorporated either in the Web-site or advertisement at its sole discretion in the event that Handy4U cannot complete or perform the Services then this agreement shall determine
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| 8 |
The Content |
| 8.1 |
The Customer shall not use or provide in the Content any material or other information that:
8.1.1 infringes any intellectual property rights;
8.1.2 is in breach of any law statute or regulation;
8.1.3 is defamatory libellous unlawfully threatening or harassing;
8.1.4 is obscene pornographic or indecent;
8.1.5 contains any viruses or other computer programs intended to damage detrimentally interfere with surreptitiously intercept or expropriate any personal information
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| 8.2 |
For the avoidance of doubt Handy4U does not monitor and will have not any liability for the contents of any communications transmitted by virtue of the Services
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| 8.3 |
The Customer grants to Handy4U a non-exclusive royalty-free licence during the term of this agreement to use store and maintain the Content on a server for the purposes of providing the Services in accordance with this agreement. The Supplier may make such copies as may be necessary to perform his obligations under this agreement including back up copies of the Content. Upon the termination or expiration of this agreement Handy4U shall destroy all such copies of the Content and other materials provided by the Customer and shall be under no obligation to return any such documents to the Customer
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| 8.4 |
This agreement does not transfer or grant to Handy4U any right title interest in any intellectual property rights in the Content except for the rights expressly granted in this agreement
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| 9 |
Downtime |
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Where Handy4U recommends and the Customer agrees that the best method of error correction involves an interruption of the live operation of the Web-site Handy4U shall use all reasonable endeavours to perform the support in accordance with the Customer’s direction as to the timing of downtime and shall seek to minimise business disruption so far as is reasonably practicable
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| 10 |
Intellectual property rights |
| 10.1 |
The Web-site and all technical data and information provided by Handy4U and the intellectual property rights in it are and remain the exclusive property of Handy4U and shall not be reproduced copied or redistributed in any form or way whatsoever
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| 10.2 |
for the avoidance of doubt all the intellectual property rights in the underlying methodologies and methods used and applied by Handy4U to the performance of the Services shall remain owned by Handy4U in all respects
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| 10.3 |
The property in papers documents tapes discs and other materials embodying or relating to the Content shall belong to the Customer
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| 11 |
Intellectual property rights indemnity |
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The Customer agrees to indemnify Handy4U against any and all liability loss damage costs legal costs professional and other expenses of any nature whatsoever incurred or suffered by Handy4U or by a third party whether direct indirect or consequential arising out of any dispute or contractual tortuous or other claims or proceedings brought by a third party alleging infringement of his intellectual property rights by the Web-site or Advertisement
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| 12 |
Liability |
| 12.1 |
Notwithstanding any other provision in this agreement Handy4U’s liability to the Customer for death or injury resulting from his own negligence or that of his employees agents or sub-contractor’s shall not be limited
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| 12.2 |
Handy4U entire liability to the Customer in respect of any breach of his contractual obligations any breach of warranty any representation statement or tortuous act or omission including negligence arising under or in connection with this agreement shall be limited to £100
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| 12.3 |
Handy4U shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer even if such loss is reasonably foreseeable or if Handy4U had been advised of the possibility of the Customer incurring it
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| 12.4 |
Handy4U shall not be liable for any misuse of the Web-site nor for any losses arising out of any consequence of the use of the Web-site as a result of the Content
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| 12.5 |
Handy4U shall not be responsible for any loss action claim or demand claimed by the Customer in the event that the Customer shall allow the Password to be used by any third party nor shall Handy4U be liable for any changes made to the Content other than where the changes are made by Handy4U in error
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| 13 |
Assignment |
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Neither party shall assign transfer sub-contract or in any other manner make over to any third party the benefit and/or burden of this agreement without the prior written consent of the other which shall not be unreasonably withheld or delayed
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| 14 |
Force majeure |
| 14.1 |
Neither party shall be deemed to be in breach of this agreement or otherwise liable to the other party for any delay in performance of any non-performance of any obligations under this agreement if and to the extent that the delay or non-performance is due to an event or circumstance beyond the reasonable control of that party ('the event of force majeure') and the time for performance shall be extended accordingly
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| 14.2 |
The party relying on clause 14.1 shall as soon as reasonably practicable notify the other party of the nature and extent of the circumstances giving rise to the event of force majeure
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| 14.3 |
If the event of force majeure in question prevails for a continuous period in excess of 3 months after the date on which it began the other party may give notice to the party suffering the event of force majeure terminating this agreement. The notice to terminate must specify the termination date which must be not less than 30 days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given this agreement will terminate on the termination date set out in the notice. Neither party shall have any liability to the other in respect of termination of this agreement due to an event of force majeure but rights and liabilities that have accrued prior to termination shall not be effected
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| 14.4 |
In the event of force majeure Handy4U will use its reasonable endeavours to continue the Services but in the event that it is unable to do so Handy4U’s liability shall be limited in accordance with clause 12 hereof
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| 15 |
Conflict of terms |
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Except as otherwise expressly provided
in this agreement in the event of any conflict between the terms of this agreement
and the schedules or either parties' standard terms and conditions of business
the terms of this agreement shall prevail |
| 16 |
Waiver |
| 16.1 |
A waiver of any term provision or
condition of this agreement shall be effective only if given in writing and signed
by the waiving party and then only in the instance and for the purpose of which
it is given |
| 16.2 |
No failure or delay on the part of
any party in exercising any right power or privilege under this agreement shall
operate as a waiver of it nor shall any single except with the express written
consent of the parties |
| 17 |
Invalidity |
| 17.1 |
If any provision of this agreement is or becomes invalid illegal or unenforceable in any respect under the law of any jurisdiction whether pursuant to any judgement or otherwise;
17.1.1 the validity legality and enforceability under the law of that jurisdiction of any other provision and
17.1.2 the validity legality and enforceability under the law of any other jurisdiction of that or any other provision shall not be affected or impaired in any way
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| 18 |
Remedies |
| 18.1 |
The rights and remedies provided for by this agreement are cumulative with and not exclusive of any rights or remedies provided by law
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| 18.2 |
Without prejudice to any other rights or remedies of the parties each party acknowledges for the benefit of the other that damages might not be an adequate remedy for any breach of the provisions of this agreement and that accordingly either party shall be entitled without proof of special damage to the remedies of injunction specific performance and other equitable remedy for any threatened or actual breach of the provisions of this agreement by the other
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| 19 |
Notices |
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Any notice demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be in writing and shall be delivered personally or sent by fax or prepaid first class post (air mail if posted to or from a place outside the United Kingdom) in the case of the Customer to the address set out and completed by the Customer on the Order Form
In the case of Handy4U to:
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| Address: |
17 Marlock Close Fiskerton Southwell Notts NG25 0UB
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| Fax: |
0870 751 5962 |
| Attention: |
P Darby |
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And shall be deemed to have been duly given or made as follows:
19.1.1 if personally delivered upon delivery at the address of the relevant party
19.1.2 if sent by first class post two business days after the date of posting
19.1.3 if sent by air mail 5 working days after the date of posting and
19.1.4 if sent by fax when despatched
provided that if in accordance with the above provision any notice demand or other communication would otherwise be deemed to be given or made after 1700 hours if shall be deemed to be given or made at the start of the next business day
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| 19.2 |
A party may notify the other party to this agreement of a change to his name relevant addressee address or fax number for the purposes of the above clause provided that such notification shall only be effective on:
19.2.1 the date specified in the notification as the date on which the change is to take place; or
19.2.2 if no date is specified or the date specified is less than five business days after the date on which notice is given the date falling five business days after the notice is given
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| 20 |
Entire agreement |
| 20.1 |
This agreement embodies and sets for the entire agreement and understanding of the parties and supersedes all prior oral or written agreements understandings or arrangements relating to the subject matter of this agreement. Neither party shall be entitled to rely on any agreement understanding or arrangement not expressly set forth in this agreement save for any representation made fraudulently
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| 20.2 |
Unless otherwise expressly provided elsewhere in this agreement this agreement may be varied only by a document signed by both the parties
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| 21 |
Relationship of the parties |
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Nothing in this agreement and no action taken by the parties pursuant to this agreement shall constitute or be deemed to constitute the parties a partnership association joint venture the agents of each other or any other co-operative entity
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| 22 |
Governing law and jurisdiction |
| 22.1 |
This agreement and any dispute controversy proceedings or claim of whatever nature arising out of or in any way relating to this agreement or its formation shall be governed by and construed in accordance with the laws of England
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| 22.2 |
The parties irrevocably submit to the exclusive jurisdiction of the courts of England for the purpose of hearing and determining any suit action or proceedings or settling any disputes arising out of or in connection with this agreement and for the purpose of enforcement of any judgement against their respective assets
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| 23 |
Exclusion of third party rights |
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The Contracts (rights of Third Parties) Act 1999 shall not apply to this agreement and no person other than the parties to this agreement shall have any rights under it nor shall it be enforceable under that Act by any person other than the parties to it
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