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GENERAL TERMS AND CONDITIONS OF SERVICES
Version Date: 02-02-2019
In these General Conditions, and in any Special Conditions applicable to the Contract:
1.1 The following terms shall have the following meanings unless the context otherwise requires:
- Conditions: these General Conditions and the Special Conditions which are applicable to the Contract.
- Contract: the contract between the Supplier and the Customer for the sale and purchase of the Services, in accordance with these Conditions.
- Customer: the person, firm or company who purchases Services from the Supplier.
- Customer ID or Username: the Customer’s account number in relation to any Service which allows access to the Management Interface.
- Diagnostics: analysis conducted by Supplier at the Customer's request to identify a malfunction of the Service.
- Documentation: the documentation and tools made available to the Customer on the Supplier’s website.
- Incident: a problem or malfunction of the Service.
- Keywords: those words notified to the Customer by the Supplier which control the Customer’s access to some of the Services including without limitation a password and username.
- Management Interface: the “User pages” which are made available to the Customer on the Website following entry by the Customer of the relevant Customer ID and Keywords.
- Order: a request made by the Customer to the Supplier for Services to be supplied under the Conditions.
- Quotation: a proposal sent by the Supplier to the Customer for the provision of certain Services at the quoted price.
- Service: all services provided by the Supplier to the Customer in accordance with these Conditions.
- Software: the computer software provided by the Supplier in connection with the Services. This includes the term "Software as a service" or SaaS.
- Special Conditions: any additional terms and conditions agreed between the Customer and the Supplier in writing.
- Supplier: Aegir Digital LTD, a private company incorporated and registered in England and Wales under No 08967602, whose registered office is at 18 whites wood lane Gainsborough DN21 1TH:
Aegir Digital LTD
Registration number: 08967602
www.aegirdigital.com - firstname.lastname@example.org
- Technical Assistance: the provision by the Supplier of documentation and assistance to the Customer in relation to the installation and use of the Service by the Customer.
- Website: the Supplier’s website which is accessible at http://www.aegiridigital.com from any internet access.
1.2 Headings do not affect the interpretation.
1.3 The singular shall include the plural, the masculine shall include the feminine, and vice versa.1.4 In the event of any conflict between these General Terms and Conditions, and any Special Conditions applicable to the Contract, the Special Conditions shall prevail.
2. Application of conditions
2.1 The Conditions shall apply to any Contract between the Supplier and the Customer for the provision of Services and shall prevail over any inconsistent terms or conditions submitted by the Customer or implied by law, trade custom, practice or course of dealing.
2.2 The Supplier shall be entitled to amend the Conditions at any time by giving notice to the Customer at least 30 days before the changes take effect, such notice to be given by email or by notification on the Supplier’s website. Upon receipt of such notice, the Customer shall be entitled to terminate the Contract with effect from the date of the notice, such termination to be notified to the Supplier no later than 30 days from the date of the notice (time being of the essence). The Customer shall not be entitled to any refund of the fees and shall remain liable for any fees previously due. Failure to give such notice of termination shall be deemed acceptance of the new Conditions. Any renewal of the Services shall be subject to the Supplier’s Conditions current at the date of renewal.
2.3 The Order constitutes an offer by the Customer to purchase the Services specified in the Order. A contract on the terms set out in these Conditions shall be created when the Supplier accepts the Order pursuant to Condition 2.4 (b) or commences/executes work pursuant to the Order.
2.4 The Supplier shall send the following emails to the Customer at the Customer’s email address specified in the Order:
a) a first email acknowledging receipt of the Order;
b) a second email confirming acceptance of the Order and that the payment of the fees has been received by the Supplier;
c) a third email containing any Keywords necessary to enable the Customer to gain access to the Services;
d) a fourth email containing an invoice for the Services. For the avoidance of doubt, the second email referred to at condition 2.4(b) shall constitute acceptance of the Order placed by the Customer.
3. Supplier's obligations
3.1 The Supplier shall perform the Services with reasonable care and skill and in accordance with best industry practice but shall not be liable for downtime caused by routine or emergency maintenance by the Supplier or occasioned by third parties.
3.2 The Supplier reserves the right at any time and from time to time to amend, improve or correct the Services and/or Software (or any part thereof) provided that such modification does not materially affect the Services and/or Software (and any part thereof). The Supplier shall give reasonable notice of such modification by email.
3.3 The Supplier shall process the Customer’s personal data in compliance with the Data Protection Act 1998 and the Supplier’s privacy and Security Policy. The Customer hereby consents to such processing of such personal data for the purpose of the provision of the Services.
4.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, failure of power supply, or default of suppliers or sub-contractors (“Force Majeure Event”).
4.2 If the Force Majeure Event prevails for a continuous period of more than 30 days, any party may terminate the Contract by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination.
4.3 The Supplier shall have no liability to the Customer under the Contract if the Supplier's performance of its obligations under the Contract is prevented or delayed by any act, omission, fault or negligence of the Customer or the Customer's agents, sub-contractors or employees, and in particular due to:
a)Damage to the Customer’s equipment, software or telecommunications links;
b)Wrongful use of the Software, including by the Customer or the Customer’s clients, or non-compliance with any operating instructions given by the Supplier;
c)Disclosure, unlawful or fraudulent use of the Keywords;
d)Fault, negligence or omission by a third party not connected to the Supplier;
e)Issue by a competent authority of an order which is binding on the Supplier and which affect the Services;
f)Total or partial loss of the material and/or data uploaded due to an error by the Customer; or
g)Incompatibility of the Software with any of the Customer’s equipment, software or telecommunications links.
4.4 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any:
a)breach of the Contract;
b)use made by the Customer of the Services;
c)and representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract; or
d)otherwise howsoever arising.
4.5 Subject to Condition 4.6, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
4.6 Nothing in the Conditions excludes the liability of the Supplier for:
a)death or personal injury caused by the Supplier's negligence; or
b)fraud or fraudulent misrepresentation.
4.7 Subject to Conditions 4.5 and 4.6:
a)the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses howsoever arising; and
b)the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for that part of the Services to which the liability relates.
4.8 The Customer acknowledges that there is a risk that any material or data generated, stored, transmitted or used via or in connection with the Services may be irretrievably damaged or lost if there is a failure or on suspension or termination of the Services and that the Supplier shall be under no obligation to back-up any such material or data. The Customer shall take precautionary measures for preserving such material or data in the event of loss, or damage, however caused. The Supplier recommends customers to back up their material at least once a month.
5.1 The Customer warrants that:
a)it has the power and authority to enter into and perform its obligations under the Contract.
b)it has received all relevant information and advice from the Supplier before placing the Order and that it has satisfied itself that the Services shall be suitable for its particular needs.
c)its use of the Services will not infringe any third party intellectual property or other rights.
5.2 The Customer shall:
a)not knowingly use the Services, Software, and/or Hardware or allow them to be used for any unlawful purpose or to send SPAM or for the publication, linking to, issue or display of any unlawful material (which shall include without limit any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including without limit intellectual property rights) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmfulcode) whether under English law or regulation, the laws or regulations of the Customer's country or any other place where the results of such purpose or such material can be accessed;
b)not knowingly use the Services, Software and/or Hardware or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of the Supplier may harm the Supplier or any of its clients or bring the Supplier into disrepute or may call into question any action taken by the Supplier on the Customer's behalf;
c)not provide any technical or other information obtained from the Supplier and/or relating to the Services, these Conditions or the Contract to any person, company, firm or government which the Customer knows or ought reasonably to be aware may directly or indirectly lead to a breach of any relevant law or regulation;
d)not knowingly use the Services, Software and/or Hardware or allow them to be used in breach of the Supplier’s Acceptable Use Policy, which can be found at www.aegirdigital.co.uk, and shall bring it to the attention of the Customer’s authorised users;
e)provide the Supplier with accurate contact details, bank details and email address, and shall promptly notify the Supplier of any changes by email;
f)comply with the Supplier’s reasonable instructions and requests concerning the Services;
g)immediately notify the Supplier by email if it becomes aware of any unauthorized use of all or any of the Services, Software and/or Hardware;
h)ensure that all Keywords are at all times kept confidential, used properly and not disclosed to unauthorized people and if the Customer has any reason to believe that any Keyword has become known to someone not authorized to use it or if any Keyword is being or is likely to be used in an unauthorized way or the Customer is aware of any other breach of security then the Client shall inform the Supplier immediately. For the avoidance of doubt, the Customer shall be solely responsible for any unauthorised and/or fraudulent use of the Keywords whether such unauthorised and/or fraudulent use is due to its agents’, sub-contractors’ or employees’ fault, omission or negligence. Any change of Keywords, at the Customer’s request, will be charged to the Customer on a time-and-material basis.
i)inform the Supplier promptly in the event of any actual or suspected security breaches in connection with the Services;
j)provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects;
k)ensure that it has all necessary consents, permissions and licenses to make use of the Services including without limit registration under the Data Protection Act 1998;
l)use the Services in a manner consistent with any and all applicable laws and regulations including but not limited to the Data Protection Act 1998;
m)maintain appropriate insurance cover in respect of its liability arising out of or connected with this Contract with a reputable insurance company.
5.3 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any act of negligence, default, or wilful misconduct by the Customer, failure by the Customer to comply with its obligations under this Contract or any use made by the Customer of the Services.
6. Technical support
6.1 Tools and documentation provided by the Supplier:
The Supplier provides the Customer with a set of tools and documentation available on the Website at the following address: http://www.aegirdigital.co.uk/support/. This page also contains contact information which the Customer can use to contact the Supplier’s staff.
The Supplier provides the Customer with the following on the Website:
·Documentation and technical guides for better understanding and use of the Service;
·Communication tools that show the condition of the Supplier’s facilities;
·Interfaces to show the Supplier’s real-time network status ;
·Contact details for technical assistance;
·An Incident report form;
·Details of the paid intervention services which are available to carry out additional operations subject to additional charges.
·In the event of an Incident, the Customer shall, in the first instance, consult the documentation and perform the technical tests suggested by the Supplier at
·In the event that the technical tests suggested above fail to resolve the Incident encountered, the Customer may report the Incident to the Supplier by following the Incident reporting procedures set out below.
6.2 Incident Reporting Procedures
To report an incident, the Customer shall complete the specific form available on the Website and in the Management Interface where the Customer will be able to find any previous electronic exchanges between the Customer and the Supplier. It is the Customer’s responsibility to complete the Incident reporting form provided at https://www.aegirdigital.co.uk/support/ and to provide sufficient information in relation to the Incident to enable the Supplier to successfully complete the Diagnostics. To this end, the Customer authorizes the Supplier to connect to the Service and perform any act necessary to enable the Diagnostics to be performed on both the Hardware and the Software. The Supplier reserves the right to refuse any work if it finds during the research that the Customer uses the Service in violation of these Conditions and any Special Conditions, or of any relevant laws or regulations.
6.3 Incident Support and Diagnostics
Under the above procedure of Incident reporting, the Supplier will perform Diagnostics in order to investigate the origin and cause the Incident. If in the Diagnostics reveal that the Incident is caused directly by the Supplier, the cost of the Diagnostics shall be borne by Supplier in accordance with the terms applicable to the Service Contract.
In the event that the Diagnostics illustrate that the Incident is not directly caused by the Supplier, then the costs associated with performing the Diagnostics (including the time spent by the Supplier performing the Diagnostics) will be paid by the Customer at a flat rate tariff which is available on the Website at https://www.aegirdigital.co.uk/support/ and as mentioned in the declaration Incident.
In the event that the Supplier is unable to identify the origin or cause the Incident following performance of the Diagnostics, the cost of the Diagnostics will not be charged to the Customer.
The Customer undertakes not to improperly use the Technical Assistance. The Supplier reserves the right to refuse provision of Technical Assistance or Diagnostics in circumstances where, in the Supplier’s absolute discretion, the Customer's request is unjustified or is likely to disrupt the normal functioning of the Technical Assistance offered by the Supplier or where it relates to an Incident for which the Supplier is not liable under these Conditions.
6.4 Resolution of Incidents
Following the performance of Diagnostics, and assuming that the Supplier is able to ascertain the cause of the Incident, the Supplier shall communicate technical solutions for resolving the Incident to the Customer. In circumstances where the Incident is not caused directly by the Supplier, the Supplier will send the Customer a Quotation including estimated costs for resolving the Incident, and the Customer may choose whether or not to accept the Quotation and pay the Supplier to resolve the Incident.
6.5 Settlement Terms
Pricing estimates for the above Services are available at the following address https://www.aegirdigital.co.uk/support/. Unless otherwise agreed in writing, all sums due will be billed in the month following the month in which the Services were provided.
7.Fees and payment
7.1 The fees for the Services shall be set out in the Supplier’s price list as amended from time to time, the current version of which is available online at www.aegirdigital.co.uk. The total fees for the Services shall be confirmed by the Supplier, shall be inclusive of VAT, and shall be payable in Pounds Sterling (GBP or £).
7.2 The Supplier shall be entitled to vary its price list at any time by giving notice to the Customer at least 30 days before the new price list is to come into effect, such notice to be given by email or by notification on the Supplier’s website. Upon receipt of such notice, the Customer shall be entitled to terminate the Contract with effect from the date of the notice, such termination to be notified to the Supplier no later than 30 days from the date of the notice (time being of the essence). Failure to give such notice of termination shall be deemed acceptance of the Supplier’s new price list.
7.3 The Customer shall pay the fees upon placing the Order, and at the interval(s) specified therein and upon renewal of the Services by credit or debit card, by bank transfer, or by cheque addressed to Aegir Digital LTD and sent to 18 whites wood lane, Gainsborough DN21 1TH. All fees shall be non-refundable unless otherwise stated.
7.4 The Supplier shall provide the Services upon receipt of the fees in full and clear funds by the Customer. The Supplier shall acknowledge receipt of the payment and inform the Customer of the commencement date of the Services. Such commencement date shall be an estimate only and the Supplier shall not be liable to the Customer for any delay.
7.5 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
a)charge interest on such sum from the due date for payment at the statutory rate for the time being applicable under the Late Payment of Commercial Debts
(Interest) Act 1998, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement;
b)suspend all Services until payment has been made in full;
c)declare that all sums due by the Customer under any contract with the Supplier are immediately payable; and
d)refuse to enter into any further contract with the Customer for the provision of any services by the Supplier.
7.6 Time for payment shall be of the essence of the Contract.
7.7 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.8 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7.9 The Customer may not dispute any fees and/or Services unless s/he notifies such dispute to the Supplier by email at email@example.com within 30 days from the Order.
8. Limitation of Services
8.1 The Supplier acknowledges that given the nature of the Internet and the fluctuation of the bandwidth, the Services provided by the Supplier may be subject to variation.
8.2 The Supplier shall be entitled to restrict or suspend the Services if:
a)the Customer uses the Services for an activity which contravenes the principles contained in the Acceptable Use Policy;
b)the Customer commits any serious or persistent breach of any of its obligations under Condition 5;
c)an order which is binding on the Supplier is issued by a competent authority;
d)the Supplier wishes to carry out routine or emergency maintenance, repair or upgrade to the Services; or
e)this is permitted under any Special Conditions applicable to the Services.
9. Intellectual property rights
9.1 The Customer acknowledges that the Supplier shall retain ownership of all intellectual property rights relating to the development or supply of the Services including all methodologies, know-how and processes used and in any information, software or other data created by the Supplier as part of the Services (the “Materials”).
9.2 The Supplier shall grant a non-exclusive revocable licence to use, store and view on the Customer’s own internal computer network the Materials made available to the Customer as part of the Services.
10. Right to cancel – Consumer Protection (Distance Selling) Regulations 2000 (the“Regulations”)
10.1 This Condition 10 shall apply if the Customer is a “consumer” as defined in the Regulations. The Customer shall be entitled to cancel the Contract by giving written notice to the Supplier by post at 18 whites wood lane, Gainsborough DN21 1TH, to arrive within 14 working days from whichever is the later of (i) the date the Contract is formed and (ii) the date that the Customer receives confirmation from the Supplier that the Contract is formed. A working day is any day other than weekends and bank or other public holidays.
10.2 The Customer hereby consents to the Supplier commencing provision of the Services, and Condition 10.1 shall cease to apply once the Supplier has commenced such provision.
11. Term and Termination
11.1 The Contract shall commence on the date notified by the Supplier in accordance with Condition 7.4 above and shall terminate automatically on the expiry date specified in the Order (the “Expiry Date”). The Supplier shall notify the Customer of the Expiry Date by sending at least 3 reminders by email to last email address notified and updated by the Customer from time to time.
a) the Supplier is entitled to terminate the Contract under Condition 11.4 or 11.5;
b)the Supplier gives the Customer not less than 30 days notice by email that no right of renewal will apply if the Contract expires on the Expiry Date; or
c)the Special Conditions provide otherwise;
the Supplier shall give notice to the Customer (a “Renewal Notice”) by email offering the Customer the opportunity to renew the Contract for a further period as specified in the Renewal Notice, subject to the Supplier’s Conditions current at the date of renewal, upon payment of the renewal fee specified by the Supplier in the Renewal Notice. If the Supplier receives such payment in full and in clear funds no later than the Expiry Date, the Contract shall be renewed for the further period specified in the Renewal Notice. If the Customer fails to pay the renewal fee on or before the Expiry Date (time being of the essence), the Contract shall expire automatically on the Expiry Date.
11.3 The Customer shall be entitled to terminate the Contract at its convenience at any time by giving notice to the Supplier, such notice to be given pursuant to condition 18. For the avoidance of doubt, the Customer shall not be entitled to the reimbursement of the fees (or part thereof) by the Supplier in such circumstances.
11.4 The Supplier shall be entitled to terminate the Contract at any time and without incurring any liability if:
a) the provision of the Services to the Client affects or may affect the safety or stability of the Supplier’s equipment or software. The Supplier shall use reasonable endeavours to notify by email the Customer in advance of such termination; or
b) there is a change of control in the Customer.
11.5 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
a)the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach; or
b)an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
c)an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
d)a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
e)the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
f)the other party ceases, or threatens to cease, to trade; or
g)the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.6 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
12.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
12.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.1 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
13.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14. Status of pre-contractual statements
Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract.
15.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16. No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17. Third party rights
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
Unless otherwise stated, any notice under the Contract shall be in writing and shall be delivered by recorded delivery post or by commercial courier (requiring signature on delivery) to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes. A correctly addressed notice sent by recorded delivery post shall be deemed to have been received on the second Business Day after posting (a “Business Day” means a day other than a Saturday, Sunday or public holiday in England). A correctly addressed notice sent by commercial courier shall be deemed to have been received on the date and at the time of signature of the courier's delivery receipt.
19. Dispute Resolution
If any dispute arises in connection with the Services, the parties shall attempt to settle it by mediation in accordance with the Model Mediation Procedure of the Centre for Effective Dispute Resolution (CEDR). Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing ("ADR notice") to the other party to the dispute requesting mediation. A copy of the request should be sent to CEDR.
20. Governing law and jurisdiction
20.1 The Contract and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the laws of England.
20.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.Aegir Digital LTD
Registration number: 08967602
www.aegirdigital.co.uk - firstname.lastname@example.org