Proweb (UK) Ltd - Terms & Conditions for Services
1. Basis of Supply
1.1 These Conditions are the only terms and conditions on which ProWeb (UK) Limited (“the Supplier”) is prepared to supply Internet services (“Services”) to is Customer and these Conditions shall apply to the exclusion of any other express or implied conditions, including any terms and conditions to which the order of the Customer may purport to be subject
1.2 No variation or addition to these Conditions shall be binding upon the Supplier unless agreed in writing between a director of the Supplier and the Customer or, where the Customer is not an individual, a duly authorised representative of the Customer
1.3 Subject to any variation in accordance with clause 1.2, these Conditions (together with the matters referred to on the face of the Supplier’s standard order form submitted by the Customer and accepted by the Supplier) embody the entire understanding of the parties and override any prior promises, undertakings or representation including any such statements concerning the Services, by employees or agents of the Supplier
1.4 In these Conditions, “Contract” means the contract for the provision of the Services by the Supplier to the Customer
2.1 The Customer shall pay the registration, set-up, monthly fees and other charges for the Services as stated on the Supplier’s list of charges last published before the date on which the Customer’s order for the Services is accepted.
2.2 The Supplier reserves the right at any time to increase the charges payable for the Services or to vary the Services upon not less than 30 days’ written notice to the Customer such notice to expire at the end of one of the Customer’s quarterly or annual payment periods as referred to at clause 3 below
2.3 The charges are exclusive of any application Value Added Tax or any other taxes, levies or duties which will be added or charged on invoices at the appropriate rates
3.1 All charges are payable quarterly or annually in advance by credit card or direct debit. An invoice will be rendered to the Customer following acceptance of the Customer’s initial order and no Services will be provided until payment of that invoice has been received by the Supplier. Invoices for subsequent quarters or years shall be paid by the Customer on or before expiry of the preceding quarter or year (“the due date”)
3.2 If the Customer fails to make any payment by the due date, then, without prejudice to any other right or remedy available, the Supplier shall be entitled in its sole discretion to:-
3.2.1 suspend the provision of the Services to the Customer;
3.2.2 charge interest (both before and after any judgment) on a day to day basis at the rate of 4% above the base lending rate of National Westminster Bank plc from time to time until payment;
3.2.3 determine the Contract
4. Limitations on use of the Services
4.1 The Services comprise a facility shared by the Customer with other customers of the Supplier. The Supplier cannot accordingly guarantee access to the Services at all times. It also reserves the right to disconnect the Customer from the Services if the Customer has been logged in for a period of more than 30 minutes and disconnection is necessary in order to allow other customers reasonable access to the Services.
4.2 The Customer shall not allow any simultaneous access to the Services using the same log-in and shall not allow use of an e-mail address by anyone other than the specific individual, company, division, department or other entity for which it was provided.
4.3 The Customer undertakes to use the Services for lawful purposes only and in accordance with any terms and conditions applicable to any third party services accessed through use of the Services and agrees, without prejudice to the generality of the foregoing, not to use the Services in order to transmit or receive any material that:-
4.3.1. is obscene, blasphemous or defamatory;
4.3.2 infringes the intellectual property rights (including without limitation, copyright, moral rights and rights in confidential information) of any third party
4.4 The Customer acknowledges that, whatever assistance may be given by the Supplier in the production of the Customer’s “home pages”, the content of those pages remains entirely the responsibility of the Customer. The customer accordingly undertakes to ensure that such pages will not contain any material of the type referred to at clauses 4.3.1 or 4.3.2 above.
4.5 The Customer agrees to indemnify and keep indemnified the Supplier against all losses and all actions, claims, proceedings, costs and damages (including any damages or compensation paid by the Supplier arising out of the Customer’s use of the Services or any Communications Software (as defined at clause 7 below) provided by the Supplier or out of any breach by the Customer of its undertaking at clause 4.4 above. The Customer further agrees promptly to notify the Supplier of any such claim, to give all such assistance as the Supplier may reasonably require in order to defend the same and promptly to cease the activity which is the subject of such a claim, if so requested by the Supplier.
4.6 The Customer is responsible for and must provide all telephone and other equipment and services in order to obtain access to the Services.
4.7 The Customer undertakes to keep its password secret and secure. Should it fail to do so and a third party gain access therefore, the Customer shall indemnify the Supplier against the third party’s use of the Services in accordance with the terms of clause 4.5 above.
4.8 Except as expressly permitted in writing by the Supplier, the Customer may not reproduce, redistribute, retransmit, publish or otherwise transfer or commercially exploit any information, software, or other material received through use of the Services.
4.9 The Customer must not participate in any form of unsolicited bulk e-mailing or Spam. Spam is defined as "e-mail sent to addresses that do not affirmatively and verifiably request such material from that specific sender that includes advertisements or solicitations, commercial or otherwise, regardless of content." Without exception, the Supplier prohibits the practice spam of any type, regardless of content, and will take action to prevent this practice. The Supplier reserves the right to terminate accounts and disallow further service without notice. Spam sent from other networks which reference e-mail accounts or web sites hosted by the Supplier shall be treated as if they originated from the account referenced, unless there is sufficient reason given for the Supplier to believe that the message truly originated with some unrelated party.
5. EXCLUSION OF WARRANTIES
5.1 THE CUSTOMER ACKNOWLEDGES THAT THE SUPPLIER HAS NO CONTROL OVER THE OWNERSHIP, QUALITY OR DECENCY OF MATERIAL ACCESSED THROUGH THE INTERNET. THE CUSTOMER ACCORDINGLY AGREES THAT ITS USE OF THE SERVICES SHALL BE AT ITS SOLE RISK AND EXPENSE AND ACKNOWLEDGES THAT THE SUPPLIER MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE RESULTS TO BE OBTAINED FROM USING THE SERVICES OR AS TO THE OWNERSHIP, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF MATERIAL ACCESSED THROUGH USE OF THE SERVICES
5.2 THE SUPPLIER AGREES TO PROVIDE THE SERVICES WITH REASONABLE CARE AND SKILL AND TO ENDEAVOUR TO MAKE AVAILABLE THE SERVICES THROUGHOUT THE PERIOD OF THE CONTRACT. THE SUPPLIER DOES NOT, HOWEVER, WARRANT THAT ITS PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
5.3 SUBJECT AS EXPRESSLY PROVIDED IN THESE CONDITIONS, ALL WARRANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW
6. LIMITATIONS OF LIABILITY
6.1 THE SUPPLIER SHALL BE UNDER NO LIABILITY (EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF THE SUPPLIER):-
6.2 FOR ANY LOSS OR DAMAGE (WHETHER DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL) SUSTAINED OR INCURRED BY THE CUSTOMER AS A RESULT OF ITS ACCESSING OF THE INTERNET OR ITS RECEIPT OR USE OF ANY MATERIAL CONTAINED ON THE INTERNET;
6.3 FOR ANY LOSS OF PROFITS OR GOODWILL OR ANY TYPE OF INDIRECT OR CONSEQUENTIAL LOSS EVEN IF SUCH LOSS WAS REASONABLY FORESEEABLE OR HAD BEEN ADVISED TO THE SUPPLIER AS A POSSIBILITY (AND WHETHER CAUSED BY THE NEGLIGENCE OF THE SUPPLIER, ITS EMPLOYEES OR AGENTS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THE PROVISION OF SERVICES OR FAILURE BY THE SUPPLIER TO PROVIDE THE SERVICES
6.4 IN AN AMOUNT IN EXCESS OF THE TOTAL CHARGES PAID BY THE CUSTOMER FOR THE SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CUSTOMER’S CLAIM AGAINST THE SUPPLIER.
7. Communications Software
7.1 The Supplier may provide the Customer with or allow the Customer access to third party communications software (“Communications Software”) which is freeware, shareware, or demonstration software. No charges is made in respect of the provision of Communications Software and the Supplier does not purport to grant to the Customer any right to use or any other rights in respect of the same. There is no obligation upon the Customer to use Communications Software provided by the Supplier in order to access the Services.
7.2 Any Communications Software provided by the Supplier is used by the Customer entirely at its own risk and expense and the Supplier makes no warranties or representations and will accept no liability in respect thereof. (The Supplier will, however; provide free of charge a further copy of any such Communications Software if a defect due to faulty materials or workmanship occurs in the disk upon which it was originally supplied by the Supplier during a period of 90 days from the date of such supply.) The Customer undertakes to use such Communications Software strictly in accordance with the terms of the licence granted by the relevant third party including, without limitation, any terms relating to the payment of fees.
8. Suspension of Services
If the Customer is, at any time, in material breach of this Agreement, the Supplier may forthwith by written notice to the Customer (and without prejudice to its other rights and remedies) suspend the provision of any or all of the Services to the Customer for the period during which the breach continues.
9. Term and Termination
9.1 The Contract shall continue until terminated by either the Supplier or the Customer giving at least 30 days’ written notice to the other, such notice to expire at the end of one of the Customer’s quarterly or annual payment periods as referred to at clause 3 above.
9.1.1 The Supplier may agree to waiver the 30 day notice period where the Client may pay an administration charge set out at the time of cancellation.
9.2 The Supplier may terminate the Contract by notice in writing to the Customer:-
9.2.1 in the circumstances referred to at clause 3.2 above; or
9.2.2 if the Customer commits any other material breach of this Agreement provided that, if the breach is capable of remedy, the notice shall only be given if the Customer shall not have remedied the same within 30 days of having been given notice in writing specifying the breach and requiring it to be remedied; or
9.2.3 the Customer being a company shall pass a resolution (or suffer an order of the Court to be made) for its winding up, or if a Receiver or an Administrator shall be appointed, or if a petition for the appointment of an Administrator shall be presented in respect of it, or being an individual or partnership shall suspend payment or propose to enter into any composition with creditors or become unable to pay its debts (or have no reasonable prospect of so doing) or suffer a bankruptcy order.
10. Intellectual Property Rights and Indemnity
10.1 All Intellectual Property created or developed during the supply of The Services will remain the property of The Supplier.
10.2 On payment in full for The Services to be paid under the relevant Schedule of Services, the Customer will be granted a non-exclusive and non-transferable, royalty-free licence to use the product or The Services and any associated documentation in accordance with these terms and conditions. The Supplier will be entitled to terminate the licence forthwith, should the Customer breach the terms of this Agreement, the Schedule of Services and/or any licence granted hereunder. No sub-licences may be granted without The Supplier's prior written consent.
10.3 For the avoidance of doubt the intellectual property rights that are used in the schedule of services are to deemed to Confidential, this is to include all code developed in the bespoke software defined in the schedule of services.
10.4 The Supplier will defend, at its own expense, any legal action brought against the Customer to the extent that it is based on a claim that The Services or any Bespoke Software (or any part thereof), when used in accordance with any documentation that accompanies The Services, infringes a copyright of a third party, and The Supplier will pay any final judgement awarded to the third party against the Customer PROVIDED THAT: Customer shall
(i) notify The Supplier promptly in writing of any such claim;
(ii) permit The Supplier to have sole control of the defence, compromise or settlement of such claim, including any appeals;
(iii) not make any prejudicial statements or settlement offers without the prior written consent of The Supplier; and
(iv) fully co-operate with The Supplier in the defence or settlement of such claim. The Supplier will pay such reasonable costs, damages or fees incurred by Customer in connection with such action or claim.
10.5 Should The Services become, or in The Supplier's opinion be likely to become, the subject of any such infringement claim, Customer shall permit The Supplier, at The Supplier's option and expense, to
(i) procure for Customer the right to continue using the Bespoke Software or the Consultancy Services, or
(ii) replace or modify The Services so that they become non-infringing, or
(iii) terminate the right to use The Services, upon which termination Customer shall, and shall procure that End Users, promptly destroy all copies of The Services and certify the same to The Supplier.
10.6 The Supplier shall have no liability for any Intellectual Property infringement claim to the extent that it is based on
(i) the use or combination of The Services with software, hardware or other materials not recommended by The Supplier, provided such infringement would not have arisen but for such use or combination; or
(ii) the use of the Bespoke software in a manner other than that for which it was designed or contemplated as evidenced by The Supplier's documentation; or
(iii) any unauthorized modification of the Bespoke Software or Consultancy Services by any party; or
(iv) any compliance with designs, plans or specifications furnished by Customer. This section states the entire liability of The Supplier, and Customer's sole and exclusive remedy, with respect to infringement of any Intellectual Property rights, and The Supplier shall have no additional liability with respect to any alleged or proved infringement.
11. Force Majeure
The Supplier shall not be liable to the Customer or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations under the Contract if the delay or failure was due to any cause beyond the Supplier’s reasonable control including, but not limited to, industrial action, war, fire, prohibition, or enactment of any kind on the part of any governmental, parliamentary or local authority, power failure or break down in machinery of any act of omission of the Customer.
12.1 The Contract is personal to the Customer who shall not assign, transfer, sub-contract or in any other manner makeover to any third party (whether in whole or in part) the benefit and\or burden of the Contract.
12.2 Any notices to be served by either party on the other under these Conditions shall be in writing and served, in the case of notice to the Supplier, at its registered office address and, in the case of the Customer, at its address as stated on the order form for the Services or, in either case, at such alternative address as the one party may from time to time designate by written notice to the other.
12.3 No waiver by the Supplier of any breach of these Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.5 The Contract is governed by the laws of England and the English Courts shall have the non-exclusive jurisdiction to resolve any disputes arising out of it.
If you have a complaint about any aspect of Proweb's Service, please call our customer services team on 01159 20 20 10. If the team cannot resolve the complaint, please contact:
The Customer Relations Manager
Proweb (UK) Ltd.
18 Mansfield Road
Proweb is committed to customer service. We will try to resolve any complaint or dispute to your satisfaction as quickly as possible. If we do not do so, please contact:
Mr Richard Drage
Proweb (UK) Ltd.
18 Mansfield Road
We will reply to all complaints within five working days of receipt. We will give you a full explanation or, where appropriate, an update. If our investigation of a complaint takes more than five working days, we will keep you updated of its progress. There will be no more than 10 working days between updates. You will also be given a named Proweb contact who is responsible for your case. This person will give you updates on the progress of your complaint.
14. Arbitration of disputes
If you and Proweb cannot agree whether we should uphold a complaint, you can refer the dispute for arbitration by the Telecommunications Ombudsman. You can contact the Telecommunications Ombudsman at the number and address below. Please note that the Telecommunications Ombudsman will only normally accept a complaint if either:
• we have sent you a letter stating that we are unable or unwilling to resolve your complaint to your satisfaction when we will remind you that the Telecommunications Ombudsman can arbitrate; or
• we have not sent you such a letter within three months of when you first put your complaint to us.
The Telecommunications Ombudsman provides a free arbitration service for existing and prospective customers, independently investigating unresolved complaints in accordance with the terms and conditions shown at www.otelo.co.uk.
The Telecommunications Ombudsman can be contacted at:
P.O. Box 730