Terms and Conditions of KDA Web Services Limited (“the Company”)
- The Contract between the Company and you (“the Customer”)
1.1 The Company must receive payment in full before the Customer’s order can be accepted. Once payment has been received, the Company we will confirm that the Customer’s order has been accepted by sending an email to the Customer’s email address provided in the order form. The Company’s acceptance of the order brings into existence a legally binding contract between us. 1.2 The Customer acknowledges that there are no representations outside the Contract that have induced it to enter into the Contract, and the Contract constitutes the entire understanding between the parties for the provision of the Services. All other terms and conditions express or implied by statute or otherwise are excluded to the fullest extent permitted by law. 1.3 Unless otherwise provided in these Conditions no modification of the Contract shall be effective unless agreed in writing by a duly authorised representative of the Company. 1.4 The Company may from time to time amend these Conditions and any such amendment will be displayed at least one month prior to the implementation of the amendment. If the Customer is a consumer it may end the Contract by written notice at any time up to the date on which the amendment comes into force. Should the Customer place an order or continue to use the Services following implementation of an amendment it will be deemed to have accepted the amendment. 1.5 The Customer acknowledges that if it is registering a .uk domain name that it is entering in to a 3-way contract between the Company, the Customer and Nominet UK. The Customer acknowledges that they have read and understood the contract with Nominet UK, which can be found on the Website.
2.1 The price payable for services is as set out in the order form (“the Price”). 2.2 The Customer acknowledges that the provision of the Services is conditional on the Company receiving payment of the Price in full and in the event of non payment of the Price or suspected fraudulent activity in relation to payment of the Price by the Customer, the Company reserves the right forthwith to withhold, suspend or cancel any services provided to the Customer. 2.3 The Customer acknowledges that occasionally unforeseen charges are incurred in processing orders. The Company shall use reasonable endeavours to obtain the Customer’s written consent before incurring such charges. 2.4 Interest will be charged on overdue accounts at a rate of 8% above the base rate from time to time in force of National Westminster Bank PLC or such other rate as may be published on the Website. Such interest will be calculated on a daily basis from the date payment was due until the date payment is received (including any time following the entry of judgement) and will be compounded monthly. 2.5 Should legal proceedings be required to recover any sums due to the Company, the Company reserves the right to claim interest pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
- Obligations of the Customer
The Customer shall not:
3.1.1 submit to the Company any Order that it knows or should (after reasonable enquiry) have discovered, infringes or might reasonably be considered to infringe the Intellectual Property Rights of any third party; 3.1.2 use the Company Server or any of the Services in any way that might reasonably be considered to infringe the rights of any third party, including but not limited to trademark infringement, copyright infringement, passing off and defamation; 3.1.3 reverse engineer, de code or in any way disassemble any software provided by the Company in relation to the provision of the Services; 3.1.4 use the Company Server or any of the Services to send, relay, upload, post or receive replies to any unsolicited or unauthorised e-mail messages, mobile phone messaging or any other form of messaging, promotional materials, junk mail, spam, chain letters or other form of solicitation; 3.1.5 advertise a Customer Site, domain or any product or service offered by or through a Customer Site or domain hosted by the Company using unsolicited or unauthorised means including junk mail, spam, chain letters or any other form of solicitation, for the avoidance of doubt this includes utilising 3rd party email lists where the Customer has not collected the email addresses themselves via a double opt-in system; or 3.1.6 enter any incorrect or incomplete name, address, email address or telephone number or any other false information on the Order Form or otherwise enter information intended to conceal the Customer’s identity. The Customer further acknowledges that it is its responsibility to notify the Company of any changes to its details and to ensure that those details provided are kept up to date; 3.1.7 use the Services so that any material posted on the Customer’s Site, the Company Server or email sent through the Customer email account is offensive, abusive, indecent, defamatory, obscene, menacing, in breach of confidence, and/or infringes the Intellectual Property Rights of any third party or contain a virus or other hostile code or constitute or encourage a criminal offence; 3.1.8 use the Company Server or any of the Services as to cause nuisance or harm to other internet users or systems, including but not limited to Denial of Service attacks, network and/or port scanning, unauthorised connection attempts; 3.1.9 use or permit or authorise any other party to use the Company Server, the Customer Site or the Customer Server in breach of any law or regulation; 3.1.10 use or permit or authorise any other party to use the Company Server, the Customer Site or the Customer Server in any way which is or may be detrimental to the Company. 3.1.11 use or permit or authorise any other party to use the Company Server, the Customer Site or the Customer Server to connect to, or utilise IRC services in any way. 3.1.12 use or permit or authorise any other party to use the Company Server, the Customer Site or the Customer Server to host any materials unsuitable for viewing by persons under 18 years of age. 3.2 In the event of any breach of the provisions of clause 3.1 by the Customer, the Company reserves the right forthwith to withdraw, suspend or cancel the Services. 3.3 The Customer acknowledges that it is solely responsible for maintaining adequate insurance cover in respect of any loss or damage relating to the provision of the Services. 3.4 The Customer acknowledges that the internet is not a completely secure medium of communication, and, whilst the Company has taken steps to safeguard the security of some information (i.e. payment details) the Customer inputs on the Website or sends to the Company on the internet by using secure servers and Secure Sockets Layer (“SSL”) technology which encrypts the information the Customer inputs on its system before it is transmitted to the Company, the Company is not and will not be responsible for any damages the Customer may suffer as a result of the loss of confidentiality of such information.
- Obligations of the Company
- Right for the Customer to cancel the Contract
5.1 The Customer may cancel the contract for the services provided in the order at any time up to the end of the thirtieth (30th) working day from the date the Customer ordered the goods. The Customer need not give the Company any reason for cancelling the contract nor will you have to pay any penalty. 5.2 Any cancellation of the Contract must be in writing. 5.2 Once the Customer has notified the Company of the cancellation of the contract in writing, any sum debited save for monies paid for domain names, software licenses, SSL security certificates and other such services provided by 3rd parties, by the Company from the Customer’s credit card will be re-credited to their account as soon as possible and, in any event, within 60 days of the order.
- Cancellation by the Company
The Company reserves the right to cancel the contract if:
6.1.1 the Customer does not pay the Price in accordance with Clause 2; or 6.1.2 one or more of the items ordered was listed at an incorrect price due to a typographical error or an error in the pricing information. 6.2 If the Company cancels the Contract, the Company will use reasonable endeavours to notify the Customer by e-mail and will re-credit to the Customer’s account of any sum deducted from the Customer’s credit card as soon as possible but in any event within 60 days of your order. The Company will pay no additional compensation for disappointment suffered.
7.1 The Company warrants to the Customer that the Services will be provided using reasonable care and skill. 7.2 Except as set out expressly in these conditions, the Company excludes all conditions, terms, warranties and representations (other than fraudulent representations) in relation to the whole or part of the services provided whether imposed by statute or operation of law or otherwise including but not limited to implied warranties or conditions of accuracy, completeness, satisfactory quality and fitness for a particular purpose. 7.3
Whilst the Company makes no attempt in the Contract to limit its liability for death or personal injury arising from its negligence, in no circumstances shall the Company be liable in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof for:
7.3.1 any increased costs or expenses; 7.3.2 any loss of profit, business, contracts, revenues, or anticipated savings; 7.3.3 the consequences of any failed or unsuccessful domain name, registration; 7.3.4 any claims that the domain name registered or requested by the Customer to be registered by the Company on behalf of the Customer or that any Customer Site or material on a Customer Site infringes the Intellectual Property Rights; 7.3.5 the consequences of any errors or interruption in the Services 7.3.6 any failure of e-mail including without limitation non receipt and mis routing; or 7.3.7 any changes in any of the Company’s facilities, operations, procedures, products or Services which render obsolete or require modification of or alteration to the Customer’s equipment or software; 7.3.8 any special indirect or consequential damage of any nature whatsoever, arising directly or indirectly out of the provision by the Company of the Services or the performance by the Company of the Contract. 7.4 The Customer acknowledges that the Customer has ultimate responsibility for renewing the domain name and the Customer accepts that the Company cannot be held liable for any losses howsoever caused if the Customer fails to renew the domain name before its expiry. 7.5 The Customer acknowledges that the Customer has ultimate responsibility for their data and its backup and the Customer accepts that the Company cannot be held liable for any losses howsoever caused if the Customer fails to maintain backups of their data, including but not limited to Web site files, e-mails, databases and settings. 7.6 Notwithstanding anything contained in the Contract the Company’s liability to the Customer in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the Price paid by the Customer for the service pursuant to Clause 2. 7.7 The Customer expressly acknowledges that the provisions of this clause 7 satisfy the requirements of reasonableness specified in the Unfair Contract Terms Act 1977 and that it shall be stopped from claiming to the contrary at any future date in the event of any dispute with the Company concerning the Company’s liability hereunder. 7.8 Notwithstanding the foregoing, nothing in these terms and conditions is intended to limit any rights you might have as a consumer under applicable local law or other statutory rights that may not be excluded nor in any way to exclude or limit our liability to you for any death or personal injury resulting from our negligence.
- Suspension and Termination
8.1 Without prejudice to any of its other rights, either party shall have the right to terminate the Contract by giving thirty days notice in accordance with Clause 10. 8.2
The Company may also suspend, restrict or terminate the services to the Customer, if:
8.2.1 the Customer commits any material or repeated breach of the Contract and/or, fails to remedy any breach which is capable of being remedied within fourteen days of receipt of a notice requiring it to remedy such breach. For the purpose of this clause a breach of Clauses 2, 3 or 4 may be deemed a non-remediable breach and the Company may immediately suspend, restrict or cancel the Services without notice to the Customer breaching these Clauses. In the case of a suspected breach by the Customer the Company will take whatever steps it believes necessary to investigate and resolve matters; 8.2.2 the other is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of affecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of a relevant party under the Contract) or compounds with or convenes a meeting of its creditors or has a Receiver or Manager or an Administrator appointed over its assets or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party terminating means that the other may be unable to pay its debts. 8.3
The Company may suspend and/or terminate the services to the Customer if the Company reasonably believes the Customers use of the services is detrimental to other Customers of the services. Such examples, including but not limited to:
- Utilising more than 5% CPU over a 5 minute period.
- Utilising more than 5% memory over a 5 minute period.
- The use of insecure scripting, including the Customers own scripting and/or that of 3rd parties which may be used.
- A breach of Clause 3.1.4 or 3.1.5
The Customer shall indemnify the Company and keep the Company fully indemnified from and against all liability, claims, costs, losses, loss of profits, expenses, business interruption, and other pecuniary or consequential loss (including reasonable legal costs and expenses) suffered or incurred by the Company as a result of:
- access to and/or use of the Services by the Customer;
- any information, data or material produced, transmitted or downloaded by the Customer;
- any breach by the Customer of any of the provisions of these Conditions or of any law, code or regulation relating thereto or to the internet.
Unless otherwise expressly stated in these terms and conditions, all notices from the Customer must be in writing and sent to the Company’s Registered Office as notified on the website and all notices from the Company to the Customer will be displayed on the Company’s website from to time.
- Events beyond our control
Neither party shall be in breach of the Contract if there is any total or partial failure of performance by it of its duties and obligations under the Contract occasioned by any act of God, fire, act of Government or State, war, civil commotion, insurrection, embargo, labour disputes of whatever nature and any other reason beyond the control of either party. If either party is unable to perform its duties and obligations under the Contract as a direct result of the effect of one of those reasons, that party shall give written notice to the other of the inability which sets out full details of the reason in question. The operation of the Contract shall be suspended during the period in which the reason continues. Forthwith upon the reason ceasing to exist, the party relying upon it shall give written advice to the other of this fact. If the reason continues for a period which substantially affects the commercial intention of the Contract, the party not claiming relief under Clause 11 shall have the right to terminate the Contract upon giving 7 day’s written notice of such termination to the other party.
- Invalidity & Severability
Each provision of these terms and conditions excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of those provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the termination of the Contract howsoever occasioned.
- Third party rights
Except for our affiliated companies, directors, employees or representatives, a person who is not a party to this agreement has no right under the UK Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
- Governing law
The contract between us shall be governed by and interpreted in accordance with English law and the English courts shall have jurisdiction to resolve any disputes between us.
- Entire agreement