Terms and Conditions
1. Definitions
In this Agreement unless the context otherwise requires:
"Company" means Dynamite Marketing
"Server" means the computer server equipment operated or administered by us in connection with the provision of the Services
"Services" means domain name registration, web site hosting, email, web design, graphic design and any other service or facility provided by us to you
"User" means you the customer or any person who makes use of the services through you or on your behalf
2. Formation of Agreement
All Users using services provided by the Company, by use of such services, accept the terms and conditions of business set out below, irrespective of the mode or manner of ordering employed by the User when ordering the services.
The following constitute the terms and conditions under which the Company trades and supplies its services and related products. These Conditions (together with the terms and conditions, if any, set out in the Schedule) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
The following are the only terms and conditions upon which the Company will undertake all and any service and or supply of services. No variation or alteration to any term or condition shall be binding unless agreed in writing by the authorised representatives of the User and the Company.
No failure or delay by either party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
No order which has been accepted by the Company may be cancelled by the User except with the agreement in writing of the authorised representative of the Company and in terms that the User shall indemnify the Company in full against all loss (including loss of profits), costs, damages, charges and other expenses incurred by the Company as a result of the cancellation.
The Company is entitled to suspend services if the User does not adhere to any or several conditions as set out in this document.
If any provision of these terms and conditions is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall wherever possible remain in full force and effect.
3. Services
The Company will use reasonable endeavours to adhere to any dates proposed by either the Company or the User for the provision of Services, however any such date is to be treated as an estimate only and the Company accepts no liability for failure to meet such dates;
The Company will use all reasonable endeavours to provide reliable Services, however it is not practicable to provide such Services free of faults and the Company does not undertake to do so. In the event of a fault in Services, the User must report the fault by telephone to the Company. Upon receipt of the fault report, the Company will take all proper steps without undue delay to correct the fault. The Company shall not, in any event, be liable for interruptions of Services or downtime of a Server.
The Company may: - temporarily suspend for the purpose of repair, maintenance or improvement, part or all of the Company's Services, generally without notice - give or update instructions regarding the use of the Service which in the Company's reasonable opinion is necessary in the interests of safety, or to maintain or improve the quality of Services to the User and any such instructions shall whilst they are in force, be deemed to form part of this agreement - vary the technical specification of Service for operational reasons.
The Company undertakes to use reasonable endeavours to restore Services as soon as practicable after any such suspension.
Where the Company uses any third-party services, site search facilities, chatroom, email, web hosting or search engines submission services, the Company cannot be held responsible for those third-party service commitments, quality or availability.
The Services shall be provided in accordance with the Schedule.
The Company may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Services without any liability to the User.
The Company may at any time without notifying the User make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
4. Content and Misuse
The User will use all reasonable endeavours to ensure that the Company’s Services are used or include content that conforms to the laws of this country and will not knowingly permit any illegal use or such use that will bring the Company into disrepute;
You must not, nor must any other person, use the Services: to send or receive any material which is offensive, abusive, indecent, obscene or menacing; or in breach of confidence, copyright, privacy or any other rights; to cause annoyance, inconvenience or needless anxiety;
The Company retains the right to suspend Services immediately in the event of a breach or suspected breach by the User of any of the terms and conditions contained herein.
The Company may discontinue Services if after 3 hours the User continues to permit such illegal or disreputable use. If the Company suspends service for contravention of the above conditions of this clause, the Company can refuse to restore Services until it receives an acceptable assurance from the
User that there will be no further contravention.
Spamming, or the sending of unsolicited email, from a Company Server or using an email address that is maintained on a Server administered by the Company or from a domain name that is maintained on a Server or registered by the Company is STRICTLY PROHIBITED.
5. Rights in Input Material and Output Material
The property and any copyright or other intellectual property rights in:
- any Input Material shall belong to the User
- any Output Material shall, unless otherwise agreed in writing between the User and the Company, belong to the Company, subject only to the right of the User to use the Output Material for the purposes of utilising the specified Services.
- any Input Material or other information provided by the User which is so designated by the User and any Output Material shall so far as practical be kept confidential by the Company, and all Output Material or other information provided by the Company which is so designated by the Company shall be kept confidential by the User; but the foregoing shall not apply to any documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
The User shall obtain any and all necessary consents and clearances to enable the Company lawfully to make use of all and any intellectual property rights through the Services, including without limitation, clearance and/or consents in respect of your proposed domain name. Wherever possible royalty free or public domain images may be used in the design of the User’s website. Any conflict between an unknown author of such images and publication of said images on the site will be the full responsibility of the User.
The User shall at their own expense supply the Company with all necessary documents or other materials, and all necessary data or other information relating to the specified Services, within sufficient time to enable the Company to provide the specified Services in accordance with the Agreement. The User shall ensure the accuracy of all Input Material.
The User shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Company shall have no liability for any such loss or damage, however caused.
6. Liability
The User shall indemnify the Company and keep the Company indemnified and hold the Company harmless from and against any breach by the User of these terms and conditions of business and any claim brought against the Company by a third party resulting from the provision of Services by the Company to the User and the User’s use of the Services and the Server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by the Company in consequences of the User’s breach or non-observance of this Agreement;
The User acknowledges that the Company has no control over the information transmitted via the Service and that the Company does not examine the use to which the User puts the service or the nature of the information the User sends or receives. The Company hereby excludes all liability of any kind for the transmission or reception of information of whatever nature;
The Company undertakes no liability whatsoever for the acts or omissions of other providers of telecommunication service or for faults in or failures of their apparatus;
The Company is not in any way liable in Agreement or otherwise 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.
The Company makes no warranty as regards to its Services or equipment and will not be responsible for any damage allegedly suffered or claimed by the User for any reason including but not limited to loss of data and service interruptions.
In any event no claim shall be brought unless the User has notified the Company of the claim within one year of it arising.
The Company shall not be liable to the User by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms and conditions of the Agreement, for any indirect special, or consequential loss of damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Services or their use or resale by the User. The Company’s total aggregate liability to the User for any claim in Contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by the User in respect of the Services, which are the subject of any such claim.
The Company warrants to the User that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Agreement and any Schedule and at the intervals and within the times referred to.
The Company shall not be liable to the Client or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Company’s reasonable control.
7. Force Majeure
The Company shall not be liable to the User or deemed to be in breach of the Agreement by reason of any delay in performing or any failure to perform any of the Company’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Company’ reasonable control. Without prejudice to the generality of the foregoing the following, shall be regarded as causes beyond the Company’s reasonable control:
Act of God, explosion, flood, tempest, fire or accident, War or threat of war, sabotage, insurrection, civil disturbance or equisition, Acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any government parliamentary or local authority, strikes, lockouts or other industrial action or trade disputes (whether involving employees of the Company or any third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.
8. General
Any notice required or permitted to be given by either party to the other under these conditions shall be in writing by: post email or fax but must be addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. If sent by email it shall, unless the contrary is proved, be deemed to be received on the day it was sent provided that it was sent prior to 5 p.m. or if sent by fax shall be deemed to be served on receipt of an error free transmission report provided that it was sent prior to 5 p.m., or if sent by post shall be deemed to be served one day following the date of posting.
Any Schedule shall form part of the Agreement
The Agreement shall in all respects be construed and operated in accordance with English Law and all parties agree to submit to the jurisdiction of the English courts
Unless the right of enforcement is expressly provided, it is not intended that a third party should have the right to enforce any term of this agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
