|
1.1 The definitions of words and phrases used in this Agreement
are set out at the end of this Agreement.
1.2 The expressions “the Customer” and “ntl”
shall include their respective successors and permitted assigns
and their respective employees and agents.
1.3 Any reference to any Act of Parliament shall be deemed to
include any amendment, replacement or re-enactment thereof from
time to time in force and to include any bye-laws, statutory instruments,
rules, regulations, orders, notices, directions, consents or permissions
made thereunder and any condition attaching thereto.
1.4 Any undertaking by the Customer to do or not to do any act
or thing shall be deemed to include an undertaking to procure or
not to permit or suffer the doing of that act or thing.
1.5 Words in the singular shall include the plural and vice versa.
1.6 The headings in this Agreement are for convenience only and
shall not affect the construction of this Agreement.
1.7 In the event of any conflict between the provision of these
terms and conditions and those in ntl’s Service Literature
then the provisions of these terms and conditions shall prevail.
2.1 ntl shall provide Services to the Customer on the terms set
out in this Agreement. The provision of Services is subject to availability
and to acceptance by ntl and to any conditions which may be imposed
by ntl prior to acceptance. Acceptance shall take place only when
confirmation of registration is sent to the Customer in writing
(whether by email or otherwise). ACCESS TO THE SERVICES IS SUBJECT
TO CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT AND ntl’s
USER POLICY.
2.2 Subject to clause 2.1, the Customer may order Services at
any time. ntl will confirm the Services ordered by the Customer.
It is the Customer’s responsibility to check that this confirmation
correctly sets out the Services ordered by the Customer and the
Customer shall inform ntl immediately in writing (whether by email
or otherwise) of any errors.
2.3 If ntl sends the Customer a revised version of ntl’s
current standard terms and conditions for provision of Services,
together with a notice stating when such revised terms and conditions
will come into force and the Customer continues to use the Services
after such date, then the Customer shall be deemed to have accepted
such revised terms and conditions with effect from such date.
3.1 Software
3.1.1 Intellectual property rights in all software (in whatever
form) provided by ntl or its licensors to the Customer for the purpose
of using the Services shall remain the property of ntl or its licensors.
ntl grants the Customer a non-exclusive non-transferrable right
and licence to use the software provided by ntl (if any) solely
for the purpose of using the Services during the term of this Agreement
and for no other purpose. The Customer agrees to comply with the
terms of any agreement reasonably required by the owner or licensor
of intellectual property rights in all software supplied to the
Customer for the protection of that software. The Customer may be
required to enter into a separate licence agreement with the owner
or licensor for such purpose.
3.1.2 The Customer shall:
(a) keep the software in confidence;
(b) not reproduce the software except for archival or back-up
purposes where each copy contains all of the original software’s
proprietary notices;
(c) not alter, modify, translate, reverse engineer, decompile,
disassemble (except to the extent that applicable laws specifically
prohibit such restriction) or create derivative works based on any
of the software or any documentation accompanying the software;
(d) permit only authorised employees or contractors to access
any system administration or site administration portion of the
software or Services;
(e) not remove any proprietary notices or labels on or within
the software;
(f) not rent, lease, grant a security interest in or otherwise
transfer or sub-licence rights to the software to any person; and
(g) immediately on termination of this Agreement for any reason,
cease to use the software and return all copies of the software
to ntl and expunge any copies of the software from any computer,
word processor or other data storage device.
3.2 Names
3.2.1 Where the Customer is supplying its own Names, ntl reserves
the right to charge the Customer for transferring such Names onto
the Internet Network.
3.2.2 If ntl allocates one or more of its own Names to the Customer,
such Names shall remain the property of ntl and shall be returned
to ntl upon termination of this Agreement.
3.2.3 Where the Customer uses the Services to arrange the registration
of Names directly with the relevant third party domain naming or
other authorities, the Customer shall pay such third party directly
on demand for all registration and subscription fees payable in
connection therewith. Subject to clause 3.2.4 where ntl arranges
the registration of Names on the Customer’s behalf, the Customer
shall pay ntl on demand for all registration and subscription fees
payable in connection therewith. The Customer acknowledges that
it is solely responsible for the selection of such Names and agrees
to indemnify ntl for any loss or damage suffered as a result of
the use of such Names.
3.2.4 ntl agrees to arrange for the registration of a single “.co.uk”
Name on the Customer’s behalf with Nominet and to pay the initial
registration fees in relation to such Name. All other charges and
fees, including renewal and transfer fees shall be payable by the
Customer.
3.2.5 The Customer shall have exclusive use of the domain Names
referred to in clauses 3.2.3 and 3.2.4 for the period specified
by the relevant naming authority. In the event that the Customer
wishes to transfer the Name to another Service provider ntl reserves
the right to charge an administration fee to effect such transfer.
ntl shall not be required to transfer any Name unless and until
the Customer has paid in full all amounts due by it under this Agreement.
3.2.6 Where the Customer, or ntl on the Customer’s behalf
registers a domain Name as specified in clauses 3.2.3 or 3.2.4,
the Customer shall also be subject to and shall comply with any
terms and conditions imposed by the relevant naming authority, whether
this be Nominet UK, InterNIC or otherwise and such terms are incorporated
herein by reference in relation to such Names. The terms and conditions
of the relevant naming authority are available for inspection upon
their web pages. The Customer acknowledges that ntl cannot guarantee
that any Names requested by the Customer under clause 3.2.2, 3.2.3
or 3.2.4 will be available or approved for use.
3.2.7 The Customer warrants that it and any Users are the owners
of, or that they have been and are duly authorised by the owners
to use, any trade marks or names which are used, supplied, requested
or allocated as their Names. The Customer may be required (as determined
by ntl in its sole discretion) to supply ntl with the applicable
registration or other documents in confirmation of such warranty.
3.2.8 ntl may require the Customer to select replacement Names
and/or suspend Services if, in ntl’s opinion, there are reasonable
grounds for ntl to believe that the Customer’s current use
or choice of Names infringes upon the rights of any other person,
whether in statute or common law, in a corresponding trade mark
or name.
3.2.9 The Customer grants to ntl the right to list the Customer
and where relevant include the Customer’s Names (and its trade
marks) in the e-commerce community pages of its web site.
3.3 Internet protocols addresses
3.3.1 The Customer acknowledges and agrees that no fixed internet
protocol addresses shall be provided under this Agreement and such
internet protocol addresses shall at all times remain the sole property
of ntl and/or its licensors. Each dynamic internet protocol address
which is provided now or hereafter by ntl to Customer shall at all
times remain the property of ntl or its licensors and each such
provision shall constitute a licence made by ntl to Customer pursuant
to which Customer may use such address in accessing the Services
for the duration of a single session. At the end of any session,
the licence made by ntl to the Customer shall automatically terminate.
3.3.2 The Customer acknowledges that it may be obligated to re-configure
its own networks in order to continue receiving the Services as
a result of changes in the dynamic internet protocol address or
the payment gateway virtual terminal ID. ntl shall not be liable
for any costs incurred by the Customer in connection with any such
re-configuration.
3.4 Webspace and eshops
3.4.1 The Customer shall ensure that the contents of webspace
and eShops at all times comply with the provisions of clause 8 of
this Agreement and any User Policy.
3.4.2 It is the Customer’s responsibility to keep backup
copies of any data uploaded to ntl’s servers and to satisfy
itself of the effectiveness of any system it establishes to monitor
the webspace and eShop contents and use.
3.4.3 The Customer acknowledges that limits on storage allocation
and data transfer levels will apply to the Services as set out in
ntl’s Service Literature. If the Customer wishes to exceed
such limits then it must obtain additional Services as specified
in clause 7.1 and additional charges shall be payable. ntl may at
its absolute discretion move any webspace or eShop which generates
abnormally high hit levels or otherwise exceeds data transfer limitations
and/or make additional charges. ntl shall give the Customer notice
of such move and/or any additional charges this may incur, as soon
as reasonably practicable.
3.4.4 ntl shall only provide the eShop services to the Customer
where the eShop is hosted by ntl.
3.5 Payment gateway
3.5.1 In consideration for the Charges and subject to compliance
with clauses 3.5.2, ntl agrees (where requested by Customer and
accepted by ntl) to provide the following services:
- remote access to and use of payment gateway software (which
shall be licensed pursuant to clause 3.1) which will when used
with the ntl payment gateway server facilitate the following checks
to determine whether the Relevant Card:
- passes the Luhn check algorithm;
- has an expiry date in the future; and
- has an issue date in the past.
ntl does not, either through the payment gateway software or in providing
the Services undertake any name or address checks on the Relevant
Card, any checks to determine whether the number of the Relevant Card
if fraudulent or invalid, any checks to determine if the person using
the Relevant card has the permission of the Cardholder to use the
Relevant Card, or any checks to determine whether there is sufficient
credit available on the Relevant Card.
3.5.2 The Customer acknowledges and accepts that ntl is only able
to provide the payment gateway Services and the payment gateway
Software will only provide the functionality detailed in clause
3.5.4 if the Customer:
- properly collects and delivers the Card Scheme Transaction data
to ntl or its authorised representative and including without
limitation the proper completion of the Authentication Method;
- properly uses the API (if provided) to integrate its Site into
ntl’s payment gateway server; and
- complies with clause 3.1.2.
3.5.3 The Customer acknowledges and accepts that the collation
and accuracy of any Card Scheme Transaction data submitted to ntl
or its authorised representative is the Customer’s exclusive
responsibility and that ntl is solely acting on the Customer’s
behalf in seeking the authorisation by the Customer’s Acquiring
Bank of the relevant Card Scheme Transaction. Accordingly and without
prejudice to clause 12, ntl and its licensors shall have no liability
to Customer in relation to either the Card Scheme Transaction data
submitted to ntl or its authorised representative or the results
of any Authorisation Request sought on Customer’s behalf from
the Acquiring Bank.
3.5.4 Provided the Customer complies with the provision of clauses
3.5.2, the payment gateway software will provide Customer with the
following functionality:
- (when combined with the necessary hardware and networking) the
ability for Customer to process Card Scheme Transactions effected
by Cardholders on the Customer’s Site; and
- the encryption of (using the Blowfish
encryption algorithm, or other encryption algorithm that ntl or
its licensors may, from time to time, deem necessary) the details
provided by the Cardholder on Customer’s Site before such number
is sent by the payment gateway software to ntl’s server as an
Authorisation Request.
3.5.5 ntl shall only provide access to the payment gateway Services
where the Customer’s Site or eShop is hosted by ntl.
4.1 Where as part of the provision of Services ntl provides the
Customer with Access Codes then all rights associated with such
numbers and Access Codes belong to ntl. The Customer shall not or
attempt to rent, lease, let, sell, charge, assign or otherwise deal
with such Access Codes in a manner prejudicial to ntl’s rights
therein.
4.2 ntl shall be entitled, for operational or technical reasons
or in order to comply with any numbering scheme or other obligation
imposed on ntl or by the ntl Licences or any other competent authority,
to withdraw any Access Codes allocated to the Customer provided
that ntl gives the Customer the maximum period of notice in writing
thereof practicable in the circumstances. Upon suspension or termination
of this Agreement or if in the opinion of ntl there are reasonable
grounds for believing the Customer has not complied or is not complying
with this Agreement ntl shall have the right to withdraw any Access
Code forthwith.
4.3 The Customer shall:
(a) keep any Access Codes confidential and personal to the Customer
who shall be responsible for keeping such Access Codes safeguarded;
(b) use such Access Codes in accordance with the reasonable rules
or instructions provided to it by ntl from time to time; and
(c) be responsible for all charges incurred through the use of
Services when access to Services is obtained through the use of
any Access Code whether with or without the Customer’s knowledge
or permission.
4.4 If the Customer has any grounds for suspecting or believing
that a person or persons have discovered or are making use of any
Access Codes without the knowledge, consent or permission of ntl
or the Customer, the Customer shall notify ntl immediately and ntl
shall immediately prevent access to Services by the use of any such
Access Code and allocate a new Access Code in its place. If ntl
has any grounds for suspecting or believing that a person or persons
have discovered or are making use of any Access Codes without the
knowledge, consent or permission of ntl or the Customer, ntl shall
notify the Customer and ntl shall immediately prevent access to
Services by the use of any such Access Code and allocate a new Access
Code in its place.
5.1 This Agreement shall commence upon the date of activation
of the Services and confirmation is given by ntl in accordance with
clause 2.1.
5.2 Where a Customer is provided with a Free Trial then so long
as such Customer has not requested further Services under this Agreement,
Customer may terminate this Agreement at the end of such Free Trial
by giving not less than 5 Working Day’s notice to ntl to expire
on or before the end of the Free Trial. Notice of termination must
be given by letter or by Customer telephoning ntl’s Customer
services centre (and confirming in writing) or by email to the email
address specified by ntl from time to time. Where the Customer fails
to terminate the Agreement at the end of the Free Trial in accordance
with this clause, the Agreement shall continue in full force and
effect and ntl shall be entitled to charge for provision of the
Services as specified in clause 9 from the end of the Free Trial
until no earlier than the end of the Minimum Period.
5.3 Subject to the terms hereof, the Agreement shall continue
in force for a minimum of three (3) months from the date specified
in clause 5.1 or the end of the Trial Period (whichever is later)
(the “Minimum Period”) and thereafter unless terminated
by either party giving to the other party not less than one (1)
months’ prior written notice. Notice of termination under this
clause may be given by letter or by email to the address specified
by ntl from time to time or by Customer telephoning ntl’s Customer
services centre (and confirming in writing).
6.1 ntl shall be responsible for the maintenance of the ntl Network
and the Internet Network.
6.2 ntl shall provide a twenty-four (24) hour a day fault reporting
facility to the Customer that may be used by such representatives
of the Customer as agreed by ntl. Such agreement shall not be unreasonably
withheld.
6.3 When a fault is reported, ntl shall use reasonable endeavours
to take such steps and give such advice as may be appropriate to
restore normal operation of Service. However it is technically impossible
for ntl to provide the Services free of faults at all times and
ntl is unable to guarantee fault free services at all times.
6.4 ntl shall have the right to make additional charges for work
carried out by ntl to locate, rectify or repair faults if such result
from:-
(a) any cause or reason associated with the Customer Provided
Apparatus; or
(b) faults of a minor nature which do not significantly affect
or materially detract from the standard of the provision of Services;
or
(c) power failure, accident, Customer’s neglect or any force
majeure event as set out in clause 19; or
(d) any fault or other problem caused by the Customer’s wilful
act, fault or negligence, or the Customer’s failure to comply
with its obligations hereunder; or
(e) misuse or improper use of Services.
6.5 It may be necessary from time to time for ntl to temporarily
interrupt or suspend the Services for repair, maintenance or improvement
of any of the facilities necessary to provide the Services. ntl
will give the Customer as much notice as is reasonably practicable
of any interruption or suspension and ntl will restore the Services
as soon as is reasonably practicable. The Customer’s access
to the Services may occasionally be restricted to allow implementation
of new facilities and to allow data archival.
6.6 ntl shall back up its systems on a regular basis and in the
event of a system failure ntl shall use reasonable endeavours to
restore such backed up systems including the Content but ntl shall
not be required to recover or be responsible for any failure to
recover the whole or any part of the Content (as defined in clause
12.4). It is strongly recommended that the Customer backs up its
Content on a regular basis.
6.7 The Customer undertakes promptly to provide ntl (free of charge)
with all information and co-operation that ntl may reasonably require
and which the Customer is able to provide from time to time to enable
ntl to perform uninterrupted its obligations under this Agreement.
6.8 ntl will not be responsible for any faults or interruptions
in the Services or any inability of the Customer to access the Services
where this is caused by a failure or inadequacy in any Customer
Provided Apparatus or any incompatibility between any Customer Provided
Apparatus and the ntl Network or the Internet Network or because
of faults in any PTO’s Network.
7.1 The Customer shall be entitled at any time to request a change
to Services. Agreement to such request shall be at ntl’s sole
and absolute discretion and the Customer acknowledges that additional
charges may be payable.
7.2 Changes to the services made in accordance with clause 7.1
shall constitute a change in Services and this Agreement shall be
treated as varied accordingly.
8.1 The Customer undertakes to use Services and to procure that
each User uses Services in accordance with this Agreement, ntl’s
User Policy and such reasonable operating instructions as may be
notified in writing or verbally (and confirmed in writing) to the
Customer by ntl from time to time and in accordance with any telecommunications
or other licences which govern the running of a telecommunication
system by the Customer.
8.2 Without limitation to the generality of clause 8.1, the Customer
undertakes not to use Services and undertakes to prevent each User
from using Services:
(a) for the communication, publication, transmission or receipt
of any material which is defamatory, offensive or abusive or of
an obscene, nuisance, hoax, threatening or menacing character; or
(b) in a manner which constitutes a violation or infringement
of the rights of any person, firm or company (including but not
limited to rights of copyright, privacy or confidentiality); or
(c) in a manner that is associated with a criminal offence; or
(d) to cause annoyance, inconvenience or needless anxiety; or
(e) to send any unsolicited advertising or other promotional material,
commonly referred to as “spam” by email or by any other
electronic means; or
(f) send email or any other type of electronic message with the
intention or result of affecting the performance or functionality
of any computer facilities.
8.3 THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE FOR BUSINESS
USE ONLY AND ARE AVAILABLE ONLY TO THOSE CUSTOMERS RESIDENT WITHIN
AND OBTAINING THE SERVICES FROM WITHIN THE TERRITORY. The Customer
warrants and represents to ntl that it shall not be using the Services
as a consumer and that it is resident within and is obtaining the
Services from within the Territory.
8.4 The Customer undertakes not to re-sell for money or monies
worth Services or any part thereof to any third party, other than
with prior written consent of ntl.
8.5 The Customer shall not use a Name such as to infringe the
rights of any other person, whether in statute or common law, in
a corresponding trademark or name.
8.6 The Customer shall indemnify ntl for all costs, claims, damages
or proceedings made or threatened to be made by reason of the Customer’s
or a User’s use or misuse of Services or the breach by the
Customer of its obligations under this Agreement.
8.7 The Customer acknowledges that ntl may co-operate with any
court, tribunal, regulatory body, police authority or other competent
authority in any investigations or proceedings concerning the Customer’s
use of the Services. This may include disclosing private communications
transmitted via the Services to such authorities.
8.8 ntl reserves the right to suspend access to or remove by immediate
notice material placed on ntl’s servers by the Customer, other
Users or any other person which ntl in its reasonable opinion believes
violates this Agreement or is otherwise harmful to the interests
of ntl or other users of ntl’s services.
9.1 In consideration of ntl’s obligations hereunder the Customer
shall pay to ntl the Charges and any other charges due under this
Agreement monthly in advance or as otherwise specified by ntl. Payment
shall be made by the Customer in full (without any set-off, deductions
or withholding whatsoever) by the payment method specified in the
Order Form.
9.2 All sums due to ntl under this Agreement are exclusive of
Value Added Tax (“VAT”), and any other applicable taxes
which may from time to time be introduced, which shall be charged
thereon in accordance with the relevant regulations in force at
the time of making the taxable supply and shall be paid by the Customer.
9.3 Time of payment of all sums due to ntl under this Agreement
shall be of the essence of this Agreement. Without prejudice to
ntl’s right to treat non-payment or late payment as a repudiatory
breach of this Agreement, ntl reserves the right to charge daily
interest on outstanding amounts, until payment in full is received
by ntl, at a rate equal to four (4) per cent per annum above the
Barclays Bank PLC base lending rate as current from time to time
whether before or after judgement. Interest shall continue to accrue
notwithstanding termination of this Agreement for any cause whatsoever.
If any payments are more than thirty (30) days overdue, ntl may
at its absolute discretion, suspend the provision of all or part
of the Services.
9.4 ntl shall be entitled to change the Charges and any other
charges payable by the Customer at any time. ntl shall publish any
such changes on its web site before they take place.
10.1 ntl warrants that Services shall be performed in a timely
and professional manner and with reasonable skill and care.
10.2 ntl warrants that Services shall be performed in compliance
with all applicable English laws, enactments, orders, regulations
and other similar instruments, and that ntl will obtain all licences
and permits required to comply with such laws, enactments, regulations,
standards or other similar instruments.
10.3 The software provided under this Agreement is provided “as
is” without warranty of any kind, save as set out in clause
10.4.
10.4 ntl warrants that:
10.4.1 it has full power and authority to grant the licence set
out in clause 5.1;
10.4.2 in relation to software licensed by ntl to customer under
this Agreement, it has the right and interest in such of the software
as it owns and the right to grant sub licences in relation to such
parts of the software it does not own; and
10.4.3 the payment gateway software, will subject to compliance
by Customer with clause 3.5.2 provide the functionality detailed
in clause 3.5.4 in all material respects for a period of 90 days
after the date that ntl agrees to provide Customer with such payment
gateway Services, following a Customer request, and all other software
(if any) licensed by ntl to Customer under this Agreement, will,
subject to compliance by Customer with clause 3.5.2, provide the
functionality detailed in the published specification for such software
in all material respects for a period of 90 days after the date
that ntl agrees to provide Customer with such software, following
a Customer request.
10.5 In the event that the software does not provide the functionality
detailed in clause 3.5.4 for a period of 90 days after the date
ntl agrees to provide such software, following a Customer request,
Customer agrees that its sole remedy in relation to clause 10.4.3
shall be to require ntl to promptly repair or replace the software
or to use its reasonable endeavours to correct, or procure that
its licensor corrects, any bugs in the Software which may be identified
as causing the breach of clause 10.4.3.
10.6 Customer acknowledges and accepts that no software including
without limitation software licensed under this Agreement is bug,
interruption or error free and in the event of any such errors,
interruption or bugs Customer’s sole remedy shall be as set
out in clause 10.4.3 provided the bug, interruption or error manifests
itself within 90 days of the date ntl agrees to provide such software,
following a Customer request.
10.7 Save as expressly set forth in this Agreement, all conditions
and warranties, express or implied, statutory or otherwise, (including
but not limited to any conditions or warranties as to satisfactory
quality or concerning the fitness of the Services or any part thereof
for a particular purpose) are hereby excluded.
11.1 Termination
11.1.1 ntl shall have the right (without prejudice to its other
rights) to terminate this Agreement by notice in writing to the
Customer in any of the following events -
(a) a liquidator (other than for the purpose of solvent amalgamation
or reconstruction), administrative receiver, administrator or receiver
is appointed in respect of the whole or part of the assets and/or
undertaking of the Customer or the Customer enters into an arrangement
or composition with its creditors, or if it becomes unable to pay
its debts within the meaning of Section 123 of the Insolvency Act
1986, or other circumstances arise which entitle the Court or a
creditor to appoint a receiver, administrative receiver or administrator
or to make a winding up order in relation to the Customer; or
(b) the Customer fails to make any payment when it becomes due
to ntl or shall default in due performance or observance of any
obligation under this Agreement or any other agreement with ntl
or an Associated Company of ntl and (in the case of a remediable
breach) fails to remedy the breach within a reasonable time (not
less than thirty (30) days) specified by ntl in such notice so to
do; or
(c) any licence under which the Customer has the right to run
its telecommunication system and connect it to the ntl Network or
the Internet Network is revoked, amended or otherwise ceases to
be valid and is not immediately replaced by another licence conferring
such right or the Customer is in breach of the conditions of any
such licence; or
(d) the ntl Licences or any one or more of them, or ntl’s
agency in respect thereof, expire or are revoked, in which event
ntl shall give to the Customer the maximum period of notice of termination
practicable in the circumstances; or
(e) the Customer or a User misuses, or is suspected, in ntl’s
reasonable opinion, of misusing, or allows anything to be done which
is a misuse of, the Services under Clause 8 or is in breach of the
User Policy; or
(f) the Customer has provided ntl with any false, inaccurate or
misleading information for the purpose of obtaining Services (or
any part thereof); or
(g) the Customer is suspected, in ntl’s reasonable opinion,
of involvement with fraud or attempted fraud or any other criminal
offence in connection with the use of Services; or
(h) the Customer or a User has previously obtained any services
from ntl or any Associated Company and all or any part of the services
have been suspended or terminated by ntl or its Associated Company
as a result of the act or default of the Customer or User.
11.1.2 Upon termination of this Agreement for any reason the Customer
shall cease to make use of Services.
11.2 Suspension of services
11.2.1 ntl may at its sole discretion suspend forthwith provision
of Services either in whole or in part until further notice on notifying
the Customer either orally (confirming such notification in writing)
or in writing in the event that:
(a) ntl shall be entitled to terminate this Agreement; or
(b) ntl shall be obliged to comply with an order, instruction
or request of Government, regulatory authority, emergency services
organisation, or other competent authority; or
(c) ntl shall need to carry out work relating to exceptional upgrading
or maintenance of the ntl Network; or
(d) ntl shall need to carry out work relating to the repair, improvement,
upgrading or maintenance of the Internet Network or any other facilities
which are necessary to provide access to the Internet.
11.2.2 Any exercise or non-exercise by ntl of its right of suspension
in respect of an event referred to in this clause 11 shall be without
prejudice to ntl’s right to terminate this Agreement subsequently
in respect of the same or any other event.
11.2.3 The Customer shall reimburse ntl all costs and expenses
incurred by the implementation of such suspension and/or the recommencement
of the provision of Services as appropriate arising out of an event
referred to in clause 11.2.1, save that this shall not apply where
the suspension is implemented otherwise than as a consequence of
the breach, fault or omission of the Customer.
11.2.4 If ntl suspends Services for contravention of clause 8.1,
8.2 and 8.4, it may refuse to restore Services until it receives
an acceptable assurance from the Customer that there will be no
further contravention.
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS
OF THIS CLAUSE 12.
12.1 The following provisions set out ntl’s entire liability
(including any liability for the acts and omissions of its employees
or agents) to the Customer in respect of:
(a) any breach of its contractual obligations arising under this
Agreement; and
(b) any representation, statement or tortious act or omission
including negligence arising under or in connection with this Agreement.
12.2 Any act or omission on the part of ntl or its employees or
agents falling within clause 12.1 shall for the purposes of this
clause 12 be known as an “Event of Default”.
12.3 ntl’s liability to the Customer for the tort of deceit
and for death or injury resulting from its own or that of its employees’
or agents’ negligence while acting in the course of their employment
shall not be limited.
12.4 The Customer acknowledges that ntl has no control over the
information and/or content (including software) stored on or transmitted
via the Services (“Content”) and that ntl does not examine
the use to which Customers put the service or the nature of the
Content they are storing, sending or receiving. Except as provided
in clause 6.6 and subject always to clause 12.3, ntl hereby excludes
all liability of any kind for the storage, transmission or the reception
of or the failure to store, transmit or receive any Content of whatever
nature and all liability for the accuracy or inaccuracy of any such
Content. Notwithstanding the foregoing, where advised or required
by competent authority, ntl may choose not to permit access to or
transmit certain newsgroups or other material, and ntl shall have
no liability to the Customer for any such action or decision.
12.5 SUBJECT TO THE PROVISIONS OF CLAUSE 12.3, ntl’s ENTIRE
LIABILITY IN RESPECT OF ANY EVENT OF DEFAULT SHALL BE LIMITED TO
DAMAGES NOT EXCEEDING THE CHARGES PAID BY THE CUSTOMER TO ntl UNDER
THIS AGREEMENT IN THE PRECEDING TWELVE (12) MONTH PERIOD IN THE
CASE OF A SINGLE EVENT OF DEFAULT AND TWICE THE CHARGES PAID BY
CUSTOMER TO ntl UNDER THIS AGREEMENT IN THE CASE OF ALL EVENTS OF
DEFAULT OR SERIES OF CONNECTED EVENTS OF DEFAULT OCCURRING IN ANY
TWELVE (12) MONTH PERIOD.
12.6 Subject to clause 12.3 ntl shall not be liable to the Customer
in respect of any Event of Default for loss of profits, goodwill
or corruption or destruction of data or any type of special, indirect
or consequential loss (including loss or damage suffered by the
Customer as a result of an action brought by a third party) even
if such loss was reasonably foreseeable or ntl had been advised
of the possibility of the Customer incurring the same.
12.7 The Customer shall procure that each User acknowledges and
agrees that its rights in relation to any access to Content and/or
use of the Services shall be against Customer, not ntl, and notwithstanding
any other provision in this Agreement, a person who is not a party
to this Agreement has no right under the Contracts (Rights of Third
Parties) Act 1999 (“Act”) to rely upon or enforce any
term of this Agreement but this does not affect any right or remedy
of a third party which exists or is available apart from the Act.
12.8 ntl specifically excludes any liability for chargebacks.
In certain circumstances, card issuers are entitled to refuse to
settle a card transaction undertaken by the Customer and presented
to them through ntl, its licensor and the relevant acquiring bank.
If the card issuer exercises its right to do so, the acquiring bank
will be immediately entitled to debit the Customer’s account
or to otherwise recover from the Customer by any other means the
amount paid to the Customer by the acquirer in respect of that transaction.
Upon prior notification by the acquiring bank they may debit the
Customer’s account to recover any other costs and expenses
the acquirer may incur as a result of or in connection with that
chargeback. Neither, ntl, its licensors nor the acquiring bank will
give the Customer any assurance that any cardholder not present
transaction will be honoured.
12.9 The Customer acknowledges and accepts that in providing the
Services ntl does not in any way guarantee the valid use of any
credit cards which cardholders propose to use to purchase goods
or services from the Customer. Fraudulent use of credit cards cannot
be exhaustively checked for and without prejudice to the other terms
of this Agreement ntl expressly excludes any liability for fraudulent
credit card use by any person other than ntl.
12.10 Customer acknowledges and accepts that the collation and
accuracy of any Card Scheme Transaction data submitted to ntl or
its authorised representative is Customer’s exclusive responsibility
and that ntl is solely acting on Customer’s behalf in seeking
the authorisation of an Acquiring Bank of the relevant Card Scheme
Transaction. Accordingly and without prejudice to this clause 12,
ntl shall have no liability whatsoever or howsoever to Customer
in relation to either the Card Scheme Transaction data submitted
to ntl or the results of any Authorisation Request sought on behalf
of Customers from an Acquiring Bank.
12.11 If a number of Events of Default give rise substantially
to the same loss then they shall be regarded as giving rise to only
one claim under this Agreement.
12.12 The Customer hereby agrees to afford ntl not less than thirty
(30) days (following notification thereof by the Customer) in which
to remedy any Event of Default hereunder.
12.13 Except in the case of an Event of Default arising under
clause 12.3 ntl shall have no liability to the Customer in respect
of any Event of Default unless the Customer shall have served notice
of the same upon ntl within twelve (12) months of the date it became
aware of the circumstances giving rise to the Event of Default or
the date when it ought reasonably to have become so aware.
12.14 Nothing in this clause shall confer any right or remedy
upon the Customer to which it would not otherwise be legally entitled.
12.15 The provisions of this clause shall continue to apply notwithstanding
the termination or expiry of this Agreement for any reason whatsoever.
13.1 Neither party hereto shall use, copy, adapt, alter, disclose
or part with possession of any information or data of the other
which is disclosed or otherwise comes into its possession directly
or indirectly as a result of this Agreement and which is of a confidential
nature (“Confidential Information”) except as strictly
necessary to perform its obligations or exercise its rights hereunder
Provided That this obligation shall not apply to Confidential Information
which:
(a) the receiving party can prove was already in its possession
at the date it was received or obtained; or
(b) the receiving party obtains from some other person without
any breach of confidentiality; or
(c) comes into the public domain otherwise than through the default
or negligence of the receiving party or which is independently developed
by or for the receiving party; or
(d) the receiving party is under a statutory obligation to disclose
to a government body, agency or regulatory body.
13.2 Each party shall ensure that its employees, agents and sub-contractors
are bound by an undertaking in substantially the same terms as contained
in this clause 13.
13.3 The obligations in this clause shall continue in force notwithstanding
termination of this Agreement for any reason whatsoever.
13.4 The details of this Agreement but not the fact that the Customer
is a customer of ntl’s shall be deemed Confidential Information.
13.5 Subject to the party’s obligations under clause 16,
during or after termination of this Agreement, ntl may disclose
to third parties the name, address and contact details of the Customer
to enable such third party to contact Customer directly and this
information shall not be considered Confidential Information for
the purposes of this Agreement.
Neither party shall assign, delegate or otherwise deal with all
or any of its rights and obligations under this Agreement without
the other party’s prior written consent, which consent shall
not be unreasonably withheld except that ntl may freely assign its
rights and obligations under this Agreement to an Associated Company.
15.1 Any notice, invoice or other document which may be given
by either party under this Agreement shall be deemed to have been
duly given if left at or sent by post (whether by letter or, where
the parties agree, by any other form) or facsimile transmission
(confirmed by letter sent by registered post) or, where the parties
expressly agree, by electronic mail, to, in the case of the Customer,
the Customer’s registered office or any other address notified
to ntl in writing by the Customer as an address to which notices,
invoices and other documents may be sent and to, in the case of
ntl, the address stated at the head of this Agreement or such address
as ntl may prescribe for that purpose.
15.2 Any such communication shall be deemed to have been made
to the other party on the day on which such communication ought
to have been received in due course of hand delivery, post or facsimile
transmission. Any communication by electronic mail shall be deemed
to have been made on the Working Day on which the communication
is first stored in the other party’s electronic mail-box.
16.1 Each party warrants that it is properly registered under
the Data Protection Act 1998 for such obtaining, storage and use
of personal data as may be required in the performance of this Agreement.
16.2 The Customer agrees to comply with the provisions of the
Data Protection Act 1998 and any directions issued by the Data Protection
Registrar in respect of its use of the Services.
17.1 Services may comprise equipment, software, services, technical
information, training materials or other technical data which, because
of their origin or otherwise are subject to the United States of
America export control regulations or the laws or regulations of
another country. In such case, the provision of Services shall be
conditional upon the parties obtaining and providing all necessary
consents. The parties shall provide reasonable assistance to each
other to obtain such consents at the cost and expense of the Customer.
17.2 The Customer agrees to comply with any applicable export
or re-export laws and regulations, including obtaining written authority
from the Government of the United States of America if the Customer
intends at any time to re-export any items of U.S.A. origin to any
proscribed destination.
Neither party shall offer or give or agree to give any person
employed by or connected with the other party any gift or consideration
of any kind as an inducement or reward for doing or forbearing to
do or for having done or forborne to do any act in relation to this
Agreement, or for showing or forbearing to show favour or disfavour
to any person in relation to this Agreement.
Neither party shall be liable to the other for any loss or damage
which may be suffered by the other party, or for any failure to
perform its obligations under this Agreement to the extent that
such failure is due to any cause beyond the first party’s reasonable
control including without limitation any act of God, inclement weather,
failure or shortage of power supplies, flood, drought, lightning
or fire, strike, lock-out, trade dispute or labour disturbance,
the act or omission of Government, highways authorities, public
telecommunications operators or other competent authority, war,
military operations, or riot, difficulty, delay or failure in manufacture,
production or supply by third parties of the Internet Network or
any part thereof.
If any provision of this Agreement is held invalid, illegal or
unenforceable for any reason, such provision shall be severed and
the remainder of the provisions hereof shall continue in full force
and effect as if this Agreement had been executed with the invalid
provision eliminated.
Failure by either party to exercise or enforce any right conferred
by this Agreement shall not be deemed to be a waiver of any such
right nor operate so as to bar the exercise or enforcement thereof
or of any other right on any later occasion.
22.1 This Agreement and any documents expressed by this Agreement
to be incorporated herein constitutes the entire understanding between
the parties relating to the subject matter of this Agreement and
supersedes all prior writings, negotiations or understandings with
respect hereto.
22.2 Neither party has relied upon any oral or written representation
or other communication made to it by the other or its employees
relating to this Agreement other than expressly contained in this
Agreement and the only remedy or remedies available in respect of
any misrepresentation or untrue statement made to it shall be a
claim for breach of contract under this Agreement.
22.3 Clause 22.2 shall not apply to any statement, representation
or warranty made fraudulently, or to any provision of this Agreement
which was induced by fraud, for which the remedies available shall
be all those available under the law governing this Agreement.
This Agreement shall be governed by and construed and interpreted
in accordance with the laws of England and Wales and shall be subject
to the exclusive jurisdiction of the courts of England and Wales.
SCHEDULE
Definitions
Unless the context otherwise requires, the following terms shall
have the following meanings:
“Access Codes” means any access code, number, user ID
or password issued by ntl to the Customer from time to time to enable
the Customer to use Services;
“Acquiring Bank” means the financial agent with whom
Customer has a Merchant Contract and who issues Customer a Merchant
ID;
“Act” means the Telecommunications Act 1984;
“Agreement” means the contract between ntl and the Customer
which includes and is subject to the Order Form, these terms and
conditions and ntl’s Service Literature as referred to herein;
“API” means the application programming interface made
available by ntl (and which may be altered from time to time by
and at the discretion of ntl or its licensors) outlining the means
of integrating/ linking Customer’s Site to the ntl payment
server and providing details of the required format for Authorisation
Requests;
“Associated Company” means the ultimate holding company
or any subsidiary thereof (“holding company” and “subsidiary”
having the meanings given in Sections 736 and 736A of the Companies
Act 1985) of either party as appropriate other than that party;
“Authorisation Requests” means an electronic message
from Customer to ntl requesting ntl to submit the Card Scheme Transaction
to the Customer’s Acquiring Bank for authorisation;
“Card” means a Visa Mastercard, Eurocard, JCB, Switch,
Solo, Visa Purchasing card or American Express or such of these
cards as the Acquiring Bank may allow;
“Cardholder” means the person for whose sole use any
Card was issued;
“Card Scheme” means a Card payment scheme approved by
the Acquiring Bank in its sole discretion;
“Card Scheme Transaction” means any proposed transaction
between Customer and a Cardholder in respect of goods or services
offered to that Cardholder via Customer’s Site and effected
by the use of a Card for debit or credit to such Cardholder’s
account;
“Charges” means charges to be paid by the Customer calculated
according to the prices and rates set out in ntl’s Price Lists
or otherwise notified to the Customer;
“Content” has the meaning set out in clause 12.4;
“Customer Provided Apparatus” means any apparatus, equipment
or software provided and used by the Customer in order to use Services;
“Free Trial” means a free trial of the eShop element
of the Services only for a period of 30 days from activation of
the Services and shall not include any access to payment gateway
services nor enable the Customer to obtain or use any Names in its
use of the Services;
“Internet” means the global data network comprising
inter connected networks using TCP/IP (“Transmission Control
Protocol/Internet Protocol”);
“Internet Network” means the network of telecommunication
systems, gateways, lines and equipment providing access to the Internet
which has been developed and is used by ntl and/or its Associated
Companies for the purpose of providing Internet services;
“Minimum Period” has the meaning set out in clause 5.3;
“Merchant Contract” means the agreement signed by Customer
with the Acquiring Bank enabling Customer to process Card Scheme
Transactions and is a condition precedent to the provision by ntl
of payment gateway Services;
“Merchant ID” means the unique identification number
issued to Customer by its Acquiring Bank;
“Minimum Period” has the meaning set out in clause 5.2;
“Name” means any name used by the Customer in connection
with the Services including, without limitation, any domain name
or mailbox name;
“ntl” means ntl Business Limited, whose registered office
is ntl House, Bartley Wood Business Park, Hook, Hampshire RG27 9XA,
registered number: 3076222;
“ntl Network” means the telecommunication systems run
by ntl or any Associated Company (as principal or agent) from time
to time under the terms of the ntl Licences for the purpose of providing
Services;
“ntl’s Service Literature” means any information,
brochure, customer or user guide or instructions as current from
time to time published by or on behalf of ntl by way of description
of or otherwise in connection with provision of Services;
“Order Form” means the account registration and Service
order forms completed by the Customer;
“Price Lists” means the material published by ntl from
time to time which includes the prices and rates for the Services;
“PTO” means any person to whom a licence is granted
under Section 7 of the Act;
"PTO's Network" means the telecommunication systems
run by any PTO other than the ntl Network;
"Relevant Card" means the specific Card which Cardholder
proposes to use to purchase goods or services from the Customer’s
Site;
“Services” means the provision of virtual hosting, eShop
and/or payment gateway services as more particularly described in
the ntl Service Literature; and
“Site” means a Customer’s website from time to
time offering for sale goods or services or any front end device
used by the Customer or on its behalf and hosted by ntl.
“Territory” means the United Kingdom (including Northern
Ireland);
“User" means any person who uses the Services or accesses
Content displayed through use of the Services including any customer,
employee, agent or contractor of Customer;
“User Policy” means any acceptable usage policy issued
by ntl in respect of the Services, as amended by ntl from time to
time;
“Working Day” means Monday to Friday 9 a.m. to 6 p.m.
excluding United Kingdom Bank and Public holidays.
|