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Terms and Conditions
4S TECHNOLOGIES STANDARD TERMS AND CONDITIONS FOR WEB DESIGN, WEB HOSTING AND EMAIL SERVICES.
The following constitute the terms and conditions under which 4S Technologies trades and supplies its Web Design and Web Hosting services and related products. These conditions, in conjunction with the details as shown on the 4S Technologies Limited Quotation and Proposal (where provided) represent the totality of the agreement and form the Contract between 4S Technologies Limited and the User.
4S Technologies Limited is entitled to suspend services if the User does not adhere to any or several conditions of this Contract.
1. DEFINITIONS
In this Contract unless the context otherwise requires:
"Service" or "Services" means domain name registration, Web hosting, Web Design, bandwidth provision, email and any other service or facility provided by us to you;
"Server" means the computer server equipment operated by us or provided by you in connection with the provision of the Services;
"Web Site" means the area on the Server allocated by us to you for use by you as a site on the Internet;
"4ST" means 4S Technologies Limited, incorporated in Scotland, company number SC247896, with the registered office at 100 Fisher Drive, Phoenix Park, Paisley, PA1 2TR;
"Contract" means the agreement between 4ST and the User incorporating these conditions, the 4ST Quotation and Proposal (where provided) and 4ST's published charges for the provision of its services; References to "Agreement" shall, where the context admits, be read as referring to the Contract
"Charges" means the charges as agreed on the Quotation and Proposal (where provided) and 4ST's latest published prices for products and services requested or incurred by you
"bandwidth" means the allocated transmission capacity, measured in bits per second, of the network connection as specified in the Contract;
"data transfer" means all traffic that passes through the Server including specifically but not exclusively web traffic and email;
"Internet" means the global data network comprising Internet connected networks using TCP/IP (Transmission Control Protocol/Intermit Protocol) Internet Standards means the protocols and standards defined in the following Internet documents: RFC 1009, 1122, 1123 and 1250 and any future such protocols and standards as appropriate;
"User" means you, the Customer, or any person who makes use of the services though you or on your behalf;
"Initial Contract Term" means the initial period of service as specified in clause 3.14;
"Extension Term" means each successive period of twelve months after the Initial Contract Term.
2. DOMAIN NAME REGISTRATION
2.1 We make no representation that the domain name you wish to register is capable of being registered by or for you or that it will be registered in your name. You should therefore not assume registration of your requested domain name(s) until you have been notified that it has or they have been registered. Any action taken by you before such notification is at your risk;
2.2 The registration and use of your domain name is subject to the terms and conditions of use applied by the relevant naming authority; you shall ensure that you are aware of those terms and conditions and that you comply with them. For UK domain registrations you shall ensure that you are aware of the terms and conditions of Nominet UK, the UK naming authority, that can be found at http://www.nominet.org.uk/nominet-terms.html and that you comply with them. You shall have no right to bring any claim against us in respect of refusal to register a domain name or cancellation of the domain name by the relevant naming authority. Any administration charge paid by you to us shall be non-refundable notwithstanding refusal by the naming authority to register your desired name.
2.3 We shall have no liability in respect of the use by you of any domain name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
2.4 We give no warranty or representation that your domain name is or will continue to be available for your use or that no domain name is or will be registered which conflicts with your domain name or which otherwise affects your use of your domain name. We do not accept resposibility for re-registering domain names and/or for ensuring that the domain name will continue to be available.
2.5 We shall be entitled to withhold the release of any domain name to another provider or "tag holder" unless full payment of all amounts due to us at that time for whatever reason has been received by us:
2.6 If payment is not received for any domain name 4ST may delete or retain the domain for further sale.
2.7 You may request deletion of a UK domain name registered with Nominet UK only within 7 days of the application date for that domain name. There will be a standard "deletion charge" of £25. Deletion requests after these 7 days will not be accepted.
3. WEB HOSTING and EMAIL SERVICE
3.1. We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss of or damage to any data stored on the Server. We shall retain a copy of all original data stored on the server by 4ST such that, in the event of loss or damage, the original data can be restored.
3.2. You shall effect and maintain adequate insurance cover in respect of any loss of or damage to data stored on the Server.
3.3 You represent, undertake and warrant to us that you will use the Service allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that
3.3.1 you will not use the Service in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorise or permit any other person to do so;
3.3.2 you will not post, link to or transmit:
(a) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
(b) any material containing a virus or other hostile computer program;
(c) any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
3.4 You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorised use of your account or breach of security, including loss, theft or unauthorised disclosure of your password or other security information.
3.5 You shall procure that all email is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
3.6 While we will use every reasonable endeavour to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers or from corruption by virus and we shall be under no liability for non-receipt or misrouting of email or for any other failure of email or damage to date or operations.
3.7 We do not take responsibility for the placement/ranking of your web pages or Web Site by search engines.
3.10 We will use all reasonable endeavours to adhere to any dates proposed by either 4ST or you for the provision of Service; however any such date is to be treated as an estimate only and 4ST accepts no liability for failure to meet such dates.
3.11 We will use all reasonable endeavours to provide reliable Service; however, it is not practicable to provide Service free of faults and 4ST does not undertake to do so. In the event of a fault in Service, you must report the fault by telephone or electronic mail to 4ST's Technical Support at the appropriate numbers or addresses or other such numbers or addresses that 4ST may from time to time provide. Upon receipt of the fault report, 4ST will take all proper steps without undue delay to correct the fault. 4ST shall not, in any event, be liable for interruptions of Service or downtime of a Server.
3.12 4ST may:
3.12.1 temporarily suspend for the purpose of repair, maintenance or improvement, part or all of Service, without notice. 4ST undertakes to use reasonable endeavours to restore the Service as soon as practicable after any such suspension.
3.13 If the bandwidth used by you exceeds agreed quotas as specified in the Quotation and Proposal (where provided) in a one month minimum period an excess charge will be payable by you.
3.14 The Web Hosting and Email Service shall be for an initial period as specified on the Quotation and Proposal (where provided). The Web Hosting and Email Service, unless otherwise agreed on the Quotation and Proposal (where provided), shall be provided for an Initial Contract Term of twelve months. The Initial Contract Term shall commence upon payment of Invoice.
3.15 Anti-virus scanning by 4ST Servers should be seen as a supplementary safeguard. 4ST do not guarantee that any form of Virus scanning implemented by 4ST servers will protect email, data, or servers from corruption by virus and we shall be under no liability for non-receipt or misrouting of email or for any other failure of email or damage to data or operations.
4. WEB DESIGN SERVICE
4.1 4ST will adhere to the following procedure for Web Design unless otherwise agreed.
4.1.1 Initial Consultation during which the current 4ST Web Design Questionnaire shall be completed.
4.1.2 Submission of Proposal (if required) setting out certain activities and timescales. 4ST will use our reasonable endeavours to meet the relevant timescales indicated, however we shall be entitled to amend the timescales where failure to meet the due dates is due to your actions (or lack of them) or due to third parties or due to other circumstances beyond our reasonable control.
4.1.3 The Production of a Development Web Site based on the contents of the Questionnaire and Proposal (if provided) in order to agree a 'look'. Access to the development site shall be password protected.
4.1.4 When the 'look' has been agreed 4ST shall Submit a Quotation. All prices outlined in our Quotation and Proposal (where provided) will remain valid for a period of 30 days from date of Quotation and Proposal (where provided). However, we shall be entitled following your acceptance to vary our prices to reflect any change in third party dependent costs which are imposed on us, by giving written notice to you, such variations to take effect from the date such revised costs are imposed on us. 4ST reserve the right to re-quote where you fail to accept our Quotation and Proposal (where provided) within the 30 days.
4.1.5 Acceptance of the Quotation and Proposal (where provided) represents the commencement of the agreement and form the Contract between 4S Technologies Limited and the User. You shall be liable for all design work carried out by 4ST from the date of acceptance of the Quotation. All Design work by 4ST up to the Quotation stage is free of charge. Upon agreement and acceptance of the Quotation, 4ST will complete the design and commissioning of your Web Site, or part thereof as agreed, within the timescales agreed (subject to clause 4.2 & 4.3), and issue the Web Site, or part thereof as agreed, for Review.
4.1.6 Review. You undertake to act reasonably and in good faith in requesting any corrections or alterations. We will take all reasonable care to ensure that site content is typographically correct. However the final responsibility for checking the content of the site lies with you. You shall have a period 14 days following our intimation in which to review the site. After the period of 14 days has expired we will issue our Invoice.
4.1.7 Settlement of our Invoice is strictly 30 Days from Date of Issue. On 4ST's acceptance of cleared funds covering our invoice the Web Site, or part thereof, will "go live" (and the copyright will be transferred to you) and/or 4ST will commence work on the next agreed development stage.
4.1.8 Until the copyright has been transferred to you, the design remains the property of 4ST. Transfer of the site means that we have completed our contractual obligations and you accept responsibility for the management and maintenance of the website (unless a maintenance arrangement has previously been agreed. From the date of handover you will have a time period of up to 2 weeks (10 working days) to report any minor defects. 4ST will undertake to correct these minor defects within a reasonable timescale.
4.2 The performance of our work in relation to the Web Site is subject to you providing all materials (this shall include text, graphics, photographs and any other content) and all other necessary data, information, input and decisions as are required of you. You agree to provide these promptly and accurately and will nominate a contact for us to deal with who will act on your behalf and will be authorised to make decisions on you behalf. To avoid any doubt, we will not be liable for any loss arising from material, data, information, input or instructions supplied by you or on your behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form.
4.3 Text supplied by you shall be typed up in a word processing application and supplied in a recognised and commonly used electronic format. Graphics shall be provided in a commonly used format to be mutually agreed. Photographs shall be provided on prints or such other commonly used format to be mutually agreed. Any other media or content shall be provided in a commonly used format as mutually agreed. Information not supplied in the agreed electronic format may incur additional charges.
4.4 Where Web Hosting is to be provided by a 3rd Party 4ST will provide a copy of your Web Site on Compact Disc. Due to the nature of this, 4ST's ability to commission the Web Site may be limited and 4ST take no responsibility for the degradation of function or performance of the Web Site.
4.5 We shall have the right to add your Web Site to our link section on the 4ST Web Site, and to show any or all parts of the your Web Site as an example of 4ST's work.
4.6 We reserves the right to place an icon and link that will redirect all visitors back to our Web Site, on all web pages that we create for you.
4.7 All E-Commerce Web Sites based on the osCommerce platform are released under the GNU General Public License (GPL) meaning that the program is licensed free of charge, there is no warranty for the program, to the extent permitted by applicable law. Except when otherwise stated in writing the copyright holders and/or other parties provide the program "as is" without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the quality and performance of the program is with you. Should the program prove defective, you assume the cost of all necessary servicing, repair or correction.
5. WEB MAINTENANCE SERVICE
5.1 In the event that the you require 4ST to maintain and/or enhance the Web Site following delivery the following shall apply
5.1.1 4ST maintenance contracts shall only cover updates to text and graphics on existing pages up to a maximum of 5 hours per month unless otherwise agreed. Time in excess of 5 hours, or otherwise agreed, shall be charged at our standard rate as outlined in our Quotation.
5.1.2 Addition of pages will be viewed as a new design and the procedure as outlined in clause 4 shall be adhered to.
5.1.3 Alteration outside a maintenance contract shall be charged at 4ST's standard hourly rate at the time.
6. CONTENT and MISUSE
6.1 You will use all reasonable endeavours to ensure that the 4ST Service is used or includes content that conforms to the laws of this country and will not knowingly permit any illegal use or such use that will bring 4ST into disrepute.
6.2 You must not, nor must any other person, use the Service: to send or receive any material which is offensive, abusive, indecent, obscene, pornographic or menacing, or in breach of confidence, copyright, privacy or any other rights, to cause annoyance, inconvenience or needless anxiety, or in breach of any provisions as contained within this Contract, or other than in conformance with the acceptable use policies of any connected networks and the Internet standards.
6.3 You are responsible for all web site content and 4ST hereby excludes all liability of any kind relating to web site content.
7. CHARGES and PAYMENT
7.1 All payments must be in UK Pounds Sterling. If your cheque is returned by the bank as unpaid for any reason, you will be liable for a "returned cheque" charge of £25.
7.2 All Charges payable by you for the Services shall be in accordance with the scale of charges and rates published from time to time by us on our web site or on the Quotation and Proposal (where provided). Charges are exclusive of 'Value Added Tax' that shall, if applicable, be paid additionally by you at the rate prescribed by law on submission by us of a proper VAT invoice.
7.3 You acknowledge that our Services are provided using facilities provided to us by third parties; 4ST shall have the right, subject to 14 days prior written notice to you, to increase our Charges at any time during the Initial Contract Term or any Extension Term, whether to reflect increase costs to us from such third parties or otherwise. However, if such increase exceeds 10% of the Charge in question prior to such notice you shall be entitled to terminate the Contract by written notice to us given by you within 7 days after service of our notice of increase to you. If you do so terminate, you will remain liable for all Charges (at the previous rate) up to the date the Contract ends.
7.4 All charges unless otherwise agreed are payable in advance. 4ST agrees to be party to this Contract upon 4ST's acceptance of cleared funds covering first invoice or the first payment under the Quotation and Proposal (where provided). If payment is not received on or before the due date 4ST reserves the right to immediately withdraw, suspend or limit Service.
7.5 Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we shall be entitled forthwith to suspend the provision of Services to you. If such a suspension is imposed, you will be liable for a "reconnection" charge of £25.
7.6 If suspension of service occurs for any reason you will be liable for a "reconnection" charge of £25.
8. DEFAULT
8.1 If you do not pay the charges in accordance with the provisions of clause 7 of this Contract, or break this Contract in any other way, or are subject to bankruptcy or insolvency proceedings 4ST can (without prejudicing, losing or reducing any other right or remedy) suspend Service, wholly or partially, without notice (but the User remains liable during the suspension to pay charges for Service), or terminate this Contract by immediate notice, without prejudice to 4ST's pre-existing rights.
8.2 Bankruptcy or insolvency proceeding means bankruptcy proceedings or in Scotland sequestration proceedings, becoming insolvent, making any composition or arrangement with creditors or an assignment for their benefit, any execution, distress, diligence or seizure: or if the User is a company, being the subject of proceedings for the appointment of an administrator, going into liquidation whether voluntary or compulsory (except for the purpose of amalgamation or reconstruction) or having a receiver or administrative receiver of any assets appointed.
8.3 You continue to be liable to pay all charges that are due for Service during any period in which you do not comply with this Contract.
8.4 On termination of this Agreement or suspension of the Services we shall be entitled immediately to block your Web Site and to remove all data located on it. We shall be entitled to delete all such data but we may at our discretion hold such data for such period as we may decide, to allow you to collect it at your expense, subject to payment in full of any amounts withstanding and payable to us. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we think fit.
8.5 For so long as any sum due to 4ST hereunder is unpaid or any other amount is due to or properly claimed by 4ST from you for services or goods supplied or for any other reason, whether pursuant to these terms or otherwise, 4ST shall be entitled to retain any property owned by you or lawfully in your custody or possession and which is held by 4ST or by its agents until such time as all amounts due to 4ST are paid and/or any issue between you and 4ST is determined.8.6 If 4ST waives a breach of Contract by you, that waiver is limited to the particular breach. Any delay by 4ST in acting upon a breach is not to be regarded in itself as a waiver.
9. TERMINATION OF SERVICE
9.1 Service may be terminated by either party on giving at least 30 days notice to the other expiring on the last day of the Initial Contract Term or at any time thereafter. If 4ST gives notice you shall pay all charges up to the expiry of the notice. If you give notice, you shall pay all charges as provided in subclause 9.5
9.2 4ST reserves the right during the Initial Contract Term and at any time thereafter to terminate this Contract by giving to you not less than 30 days prior written notice of termination.
9.3 After the expiry of the Initial Contract Term you may terminate the Service by giving not less than 30 days prior written notice of termination, but subject to subclause 9.4.
9.4. Your notice does not avoid any other liability for Service already provided.
9.5 If the Contract is a yearly contract and if you continue Service beyond your Initial Contract Term you will be liable to pay for the remainder of the then current Extension Term even though Service ends before the end of the Extension Term.
10. NOTICES
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or the Order Form or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
11. MATTERS BEYOND 4ST'S REASONABLE CONTROL
4ST is not liable for any breach of this Contract or liable for any delay or failure in performance of any part of these conditions and its commitments when caused as a result of Force Majeure, war, civil disorder, industrial disputes, inclement weather, acts of local or central government or other competent authorities, and failure by other service providers.
12. LIABILITY
12.1 You acknowledge that 4ST has no control over the information transmitted via the Service and that 4ST does not examine the use to which you put the Service or the nature of the information you are sending or receiving. 4ST hereby excludes all liability of any kind for the transmission or reception of information of whatever nature.
12.2 4ST undertakes no liability whatsoever for the acts or omissions of other providers of telecommunication service or for faults in or failures of their apparatus.
12.3 4ST undertakes no liability whatsoever for fraudulent activities or otherwise relating to information provided by 4ST. All information is provided in good faith.
12.4 4ST is not in any way liable in contract 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.12.5 4ST makes no warranty as regards to its Services or equipment and will not be responsible for any damage allegedly suffered or claimed by you for any reason including but not limited to loss of data, wrong or non deliveries and Service interruptions.
12.6 All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to subclause 12.6.
12.7 Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
12.8 Our total aggregate liability to you 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 you in respect of the Services that are the subject of any such claim.
12.9 In any event no claim shall be brought unless you have notified us of the claim within one year of it arising.
13. INDEMNITY
You shall indemnify us and keep us indemnified and hold us harmless from and against any breach by you of these terms of business and any claim brought against us by a third party resulting from the provision of Services by us to you and your 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 us in consequences of your breach or non-observance of this Agreement.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 You shall obtain any and all necessary consents and clearances to enable you 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. You shall indemnify 4ST fully against all liabilities, costs and expenses which 4ST may incur as a result of work done in accordance with your contribution to the Web Site involving infringement of any copyright, patent or other proprietary right.
14.2 We acknowledges that any images, graphics, sound, music, custom coding or scripts, text or any other material supplied by you, will remain the property of it's owner, whether it is yours or a 3rd party.
14.3 We shall not reuse or modify any image, graphic, sound, music, custom coding or scripts, text or any other material supplied you, for any other Web Site that 4ST works on, without approval from you.
14.4 All 4ST logo's, designs, images, and trademarks are copyright 4S Technologies Limited 2003.
15. ASSIGNMENT
You may assign all or part of this Contract to any other party only with the prior written agreement of 4ST. 4ST reserves the right to assign all or part of this Contract at any time to any subsidiary or associate company of 4ST.
16. LAW
This Agreement shall be governed by and construed in accordance with Scottish law and you hereby submit to the non-exclusive jurisdiction of the Scottish courts.
17. HEADINGS
Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
18. ENTIRE AGREEMENT
These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation that has not been made expressly in this Agreement.
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