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We’re
committed to delivering the best possible service
to all manxworld.com customers, and our Terms of
Use are designed to set out clearly from the start
what we can expect from each other throughout our
partnership.
GENERAL PROVISIONS
Definitions
In these Conditions, the following expressions will
have the following meanings, unless inconsistent
with the context:
"Agreement" the agreement between
manxworld.com and the Client for the provision of
Services formed by these Conditions and the Order
"Client Materials" data, text, images,
graphics, videos, logos and other content and
material, hardware or equipment provided by the
Client in connection with the Agreement for use by
manxworld.com in providing the Services
"Client" as identified on the Order
"Conditions" these conditions to be read
in conjunction with the Order
"Defect" any defect in systems having a
material effect on the Client's use or operation of
the Services or any failure by any Ancillary System
to comply with any term of Part 2 of these
Conditions
"Fees" the charges due to manxworld.com
under the Agreement in relation to the Services, as
set out on the Order
"Intellectual Property Rights" any and
all patents, trade marks, service marks, copyright,
moral rights, rights in design, know-how,
confidential information and all or any other
intellectual or industrial property rights whether
or not registered or capable of registration and
whether subsisting in the United Kingdom or any
other part of the world together with all or any
goodwill relating to the same
"Netiquette" generally accepted standards
and codes of practice for use of the internet
including not sending bulk unsolicited email, mail
bombing or impersonating another person
"Order Confirmation" the order form(s)
submitted by manxworld.com to the Client by email
or otherwise in writing for the provision of the
Services, in response to the Client's order or
request
"Services" those development,
implementation, consultancy, hosting and other
services (if any) provided to the Client pursuant
to the Agreement, as described on a relevant Order
Confirmation, together with any Support Services
and Domain Services
"SLA" the level of performance to be
provided by manxworld.com to the Client in respect
of the Services, as set out on the Order
"Software" any communications or other
software provided to or made available to the
Client by manxworld.com in connection with the
Agreement, but excluding Third Party Software
"Support Services" those support and
maintenance services provided to the Client
pursuant to the Agreement, as described on a
relevant Order Confirmation
"Support Hours" the hours during which
manxworld.com will provide the Support Services, as
set out on a relevant Order Confirmation
"Third Party Software" any software
identified as third party software (if any) to be
provided to the Client pursuant to the Agreement,
as set out in a relevant Order Confirmation
2
Interpretation
2.1 The headings used in the Agreement are inserted
for convenience only and are not intended to be
part of nor to affect the meaning or interpretation
of any of the Agreement.
2.2 In the Agreement the masculine includes the
feminine and the neuter, and the singular includes
the plural and vice versa as the context shall
admit or require.
2.3 The expression "person" means any
individual, firm, body corporate, unincorporated
association, partnership, government, state or
agency of a state or joint venture.
2.4 In the event of a conflict between any of these
Conditions and any Order Confirmation, the conflict
will be resolved according to the following order
of priority: these Conditions then the Order
Confirmation.
2.5 The words "include",
"includes", "including" and
"included" will be construed without
limitation unless inconsistent with the context.
2.6 The Agreement (as varied in accordance with its
terms) forms the entire understanding of the
parties in respect of the matters dealt within it
and supersedes all previous agreements,
understandings and negotiations between the
parties.
2.7 The parties do not intend that any of the terms
of the Agreement will be enforceable by virtue of
the Contracts (Rights of Third Parties) Act 1999 by
any person not party to it.
2.8 References in these Conditions to clauses means
clauses of these Conditions. References in these
Conditions to the provisions of statutes or
statutory instruments are deemed to include those
provisions as amended or substituted
3
Service Provision
3.1 The Services are described or referred to on
the Order Confirmation(s).
3.2 manxworld.com will use its reasonable
endeavours to provide the Services in accordance
with any timescale set out on the Order
Confirmation(s), but will not be liable to the
Client where, using those endeavours, it fails to
meet any timescale.
3.3 manxworld.com will not be liable for any
failure to provide the Services resulting from any
breach by the Client or its employees, agents or
subcontractors of the Agreement.
3.4 manxworld.com will not be obliged to provide
any services not referred to on the Order
Confirmation(s). Furthermore, manxworld.com cannot
provide the Services where the Client makes use of
particular systems including communications systems
identified in writing by manxworld.com.
3.5 The terms of the Agreement form the entire
agreement between manxworld.com and the Client in
relation to the Services and all other
understandings, agreements, warranties, conditions,
terms or representations, whether express or
implied, statutory or otherwise, are excluded to
the fullest extent permitted by law. The Client may
not rely upon any representation made or given by
any employee of manxworld.com prior to the
Agreement being entered into unless confirmed in
the Agreement.
3.6 manxworld.com may at any time and from time to
time improve, correct or otherwise modify all or
any of the Services (including substituting
Software and/or Equipment with software or
equipment of similar specification) provided that
such modification does not materially affect
provision of the Services to the Client.
manxworld.com will endeavour to give the Client
reasonable notice of any such modification, where
this is reasonably practicable.
3.7 manxworld.com will, upon arrangement and
provided that no Fees are due and payable, allow
the Client reasonable access to any co-located
server hosted by manxworld.com as part of the
Services during Business Hours. Access will only be
granted to the Client if manxworld.com is given at
least 3 Business Days' notice in writing that
access is required and acceptance of that request
has been confirmed in writing to the Client by
manxworld.com.
3.8 Without prejudice to its other rights and
remedies, manxworld.com may at its sole discretion
suspend the provision of the whole or any part of
the Services (temporarily or permanently) and will
have no liability to provide the Services on the
occurrence of any of the following events:
3.8.1 notified
or unscheduled upgrade or maintenance of
manxworld.com's IT systems;
3.8.2 issue by any competent authority of an order
which is binding on manxworld.com which affects the
Services;
3.8.3 if the Client fails to pay any Fees or any
other sums owing to manxworld.com by the Client
when they fall due;
3.8.4 if an event occurs and manxworld.com deem it
to be appropriate to terminate the Agreement;
3.8.5 if the bandwidth or computer memory used by
the Client in relation to the Services exceeds any
agreed or stipulated level and manxworld.com
determines in its sole discretion that suspension
is necessary to protect all and any internet
solutions provided by manxworld.com from time to
time;
3.8.6 if the size of an email, mailing list or cron
job used by the Client exceeds any agreed or
stipulated size, level or frequency and
manxworld.com determines in its sole discretion
that suspension is necessary to protect all and any
internet solutions provided by manxworld.com from
time to time; or
3.8.7 failure or deficiencies in the Client System
referring but not limited to hardware, server
corruption and security breaches.
Where manxworld.com suspends provision of the
Services in accordance with clause 3.8.3, it will
only be obliged to recommence provision during
Business Hours and once the Client has paid all
relevant outstanding sums in clear funds together
with any relevant reinstatement fee (as published
from time to time by manxworld.com) and has
accepted any revised payment terms requested by
manxworld.com .
3.9 The Client will provide to manxworld.com those
Client Materials identified on the Order within a
reasonable time period taking account of the
obligations of manxworld.com under the Agreement.
3.10 The Client warrants that the Client Materials
will be accurate in all material respects and will
not knowingly include material which is illegal,
the accessing holding transmitting or supplying of
which would be a criminal offence or which is
otherwise unlawful or in breach of any applicable
law or code of practice applying to such materials.
In particular, the Client warrants that all
necessary licences, consents and waivers (including
those from rights owners, performers and other
contributors) are obtained and paid for by the
Client. Without prejudice to the foregoing,
manxworld.com may decline to use any Client
Materials on any reasonable grounds.
3.11 The Client will supply in a timely manner all
information, instructions, review and feedback
reasonably required by manxworld.com in connection
with the performance of its obligations under the
Agreement and will appoint a representative who is
fully empowered and authorised to provide the same.
4 Service Delivery
4.1 The Client acknowledges that, given the nature
of such services, manxworld.com cannot guarantee
that the Services, when delivered via the internet,
will be uninterrupted or error free.
4.2 To the fullest extent permitted by law and save
as provided elsewhere in the Agreement, the
Services and any Client Systems and Ancillary
Systems are provided by manxworld.com to the Client
on an "as is" and "as
available" basis and no warranty or
representation (express or implied) of any kind are
given in connection with the Agreement including as
to satisfactory quality and fitness for a
particular purpose. In particular, manxworld.com
gives no warranty or representation that:
4.2.1 the
Services will meet the Client's requirements;
4.2.2 the Services will be provided on an
uninterrupted, timely, secure or error-free basis;
or
4.2.3 any results obtained from use of the Services
will be accurate, complete or current.
4.3 manxworld.com warrants that it will provide the
Services with reasonable care and skill.
manxworld.com will not be liable for a breach of
such warranty unless the Client notifies
manxworld.com in writing of such failure within 14
days of the Client becoming aware of the failure.
4.4 If the Client makes a valid claim against
manxworld.com based on a failure by manxworld.com
to comply with the warranty set out in clause 4.3
manxworld.com may, at its option, take such steps
as it deems necessary to remedy such failure or
refund such part of the Fees as relates to such
Services, provided that the liability of
manxworld.com under such warranty will in no event
exceed one and a quarter times the amount of the
Fees paid to manxworld.com by the Client (excluding
VAT and expenses) in the 12 month period prior to
the date on which the Client makes the claim. If
manxworld.com complies with this clause, it will
have no further liability for a breach of the said
warranty.
5 Client's Obligations
5.1 The Client agrees that it will:
5.1.1
immediately notify manxworld.com on becoming aware
of any unauthorised use of all or any of the
Services and/or relevant part of the Client System;
5.1.2 not use the Services, Ancillary Systems
and/or Client System or allow them to be used for
any unlawful purpose or for the publication,
linking to, issue or display of any unlawful
material (including any pirated software or any
material which is obscene, pornographic,
threatening, malicious, harmful, abusive,
defamatory or which breaches the rights including
Intellectual Property Rights of any third party or
which is or encourages criminal acts or contains
any virus, worm, trojan horse or other harmful
code) whether under English law or regulation, the
laws or regulations of the Client's country or any
other place where the results of such purpose or
the material in question can be accessed;
5.1.3 not use the Services, Ancillary Systems
and/or Client System or allow them to be used for
the publication, linking to, issue or display of
any material which in the absolute discretion of
manxworld.com may harm manxworld.com or any of its
Associated Companies or clients or bring
manxworld.com into disrepute or which calls into
question any action taken by manxworld.com on the
Client's behalf;
5.1.4 not use the Services, Ancillary Systems
and/or Client System or allow them to be used in
breach of good Netiquette practices;
5.1.5 remove or prevent access to any material
hosted on any of the Equipment and/or Client System
which causes or is likely to cause the Client to be
in breach of the Agreement;
5.1.6 ensure that it has all necessary consents,
permissions and licences to make use of the
Services including registration and appropriate
consents and approvals under the Data Protection
Act 1998;
5.1.7 not provide any technical or other
information obtained from manxworld.com and/or
relating to the Services to any person which the
Client is aware or ought reasonably be aware may
directly or indirectly lead to a breach of any law
or regulation;
5.1.8 not, in breach of good Netiquette practices,
use any service provided by any third party
(including an internet web site and/or email) for
the publication, linking to, issue or display of
any material which refers to an internet web site
hosted by manxworld.com or any other products or
services offered by manxworld.com from time to time
without manxworld.com's prior written consent;
5.1.9 ensure that all material or data hosted by
manxworld.com on any web site operated by the
Client from time to time or communicated through
such site or using the Client System is checked for
viruses and other harmful code and has appropriate
security patches applied;
5.1.10 save as provided in any Order Confirmation,
be responsible for keeping regular and full back
ups of all material and data hosted by
manxworld.com on any web site or other system
operated by the Client from time to time including
the Client System and/or Ancillary Systems;
5.1.11 comply with any security policy notified to
it from time to time by manxworld.com and, in
particular, ensure that all passwords and user
names provided to it by manxworld.com are at all
times kept confidential, used properly and not
disclosed to unauthorised people. If the Client has
any reason to believe that any password or user
name has become known to someone not authorised to
use it or is being or is likely to be used in an
unauthorised way or of any other breach of security
then the Client will inform manxworld.com
immediately;
5.1.12 monitor its bandwidth in relation to the use
of Services and report to manxworld.com any use of
bandwidth over and above those agreed or stipulated
levels set out in the Order Confirmation;
5.1.13 be entirely liable for all activities
conducted and charges incurred under its passwords
and user names whether authorised by it or not and
the Client acknowledges that manxworld.com shall
not be liable for any loss of confidentiality or
for any damages arising from the Client's inability
to comply with these Conditions;
5.1.14 ensure that the Client obtains and maintains
insurance over all parts of the Client System which
are located on the premises of manxworld.com or any
of its Associated Companies and to provide evidence
that such insurance is in place, upon
manxworld.com's demand;
5.1.15 ensure that all communication details which
it provides to manxworld.com are at all times true,
current, accurate and complete. The Client will
promptly notify manxworld.com of any change to such
details and acknowledges that manxworld.com will
not be liable for any loss suffered or incurred by
the Client as a result of its failure to notify
such changes to manxworld.com; and
5.1.16 ensure that its systems (including the
Client System) meet any minimum system
specifications notified to the Client from time to
time.
5.2 The Client acknowledges that it has appropriate
knowledge of how the internet functions, the
systems and products provided to it in connection
with the Agreement and what types of use and
content are and are not acceptable, some of which
are referred to in clause 5.1.2. The Client
acknowledges that manxworld.com shall have no
obligation to:
5.2.1 train the
Client on its use of the Services or any Ancillary
System;
5.2.2 manipulate any material which the Client
wishes to and/or does post on any web site or other
system it operates (including any Client System) or
any communication which it issues or sends in
connection with any Services; or
5.2.3 validate or vet such material for usability,
legality, content or correctness.
The Client also acknowledges that the services and
products provided by manxworld.com are standard
packages which are not tailored to specific
requirements of the Client, unless confirmed in
writing by manxworld.com to the contrary.
5.3 The Client will promptly provide to
manxworld.com and/or its consultants, employees and
agents such information and assistance as they may
reasonably require in order to be able to carry out
the Services and, where relevant, deliver and
install any Ancillary Systems.
5.4 The Client will procure all necessary rights
from third parties (including intellectual property
licences of computer software and website content
including ringtones and music) which are from time
to time required in order for manxworld.com to be
able legally to provide the Services.
5.5 If, in manxworld.com's opinion, the Client is
in breach of the provisions of clauses 5.1.2 to
5.1.4 then manxworld.com may without prejudice to
its other rights and remedies immediately by
written notice to the Client:
5.5.1 suspend
provision of the Services;
5.5.2 terminate the Agreement; or
5.5.3 amend or remove any Client Materials and/or
content appearing on any website or other system
hosted by manxworld.com on behalf of the Client
(including any Client System or Ancillary
System). manxworld.com may also notify
appropriate public authorities (governmental or
otherwise including the police or other enforcement
authority) of any such breach, where it deems
necessary.
5.6 Where as part of the Services the Client is
entitled (having obtained manxworld.com's prior
written consent) to resell the whole or any part of
the Services to a third party then the Client will:
5.6.1 procure
such third party's compliance with and acceptance
of these Conditions;
5.6.2 be fully responsible for the acts and
omissions of any such third party; and
5.6.3 indemnify manxworld.com for any losses it
suffers as a result of such acts or omissions.
6 Payment Terms
6.1 The Fees are payable to manxworld.com subject
to the following conditions:
6.1.1 Fees
payable monthly or yearly will be paid in advance
and will not be refundable in whole or part if the
Agreement or relevant part is terminated during the
period to which the payment relates;
6.1.2 any set up fee will (unless stated to be
included within later payments) be payable
immediately;
6.1.3 additional Fees will become payable if the
Client exceeds agreed or stipulated bandwidth use
levels.
6.2 Any total sum for the fees set out in an Order
Confirmation is (unless stated in the Order
Confirmation to be a fixed and firm amount) an
estimate of the fees only and not a fixed price
quotation.
6.3 Any sums payable by the Client to manxworld.com
under the Agreement are exclusive of value added
tax or any similar taxes, levies or duties, which
will be added to such sums and be payable by the
Client at the appropriate rate.
6.4 The Client agrees to pay manxworld.com's
invoices within 14 days of invoice due date. If
invoices are not settled in full by then, the
Client will without prejudice to its other rights
and remedies (including the right to suspend the
Services under clause 3.8.3) be liable to pay
interest on any sum outstanding from the due date
for payment at the annual rate of 2% above the base
lending rate from time to time of Barclays Bank plc
accruing on a daily basis until payment is made
whether before or after any judgment.
6.5 All sums payable to manxworld.com under the
Agreement must be paid in full with no set off or
deduction.
6.6 manxworld.com has a general and particular lien
over the Client System until all claims and money
payable by the Client to manxworld.com on any
account whatsoever have been received in full clear
funds. If the Client fails to discharge any lien
within a reasonable time from the date of notice of
exercise then the Client System may be sold in or
towards satisfaction of that lien and manxworld.com
will account to the Client for any excess.
6.7 manxworld.com may make a search in relation to
the Client with a credit reference agency (and make
other credit enquiries from time to time), keep a
record of that search and enquiries, and share that
information with third parties. manxworld.com may
also make enquiries about the principle
directors/proprietors of the Client with a credit
reference agency.
6.8 Without prejudice to any other of its rights
and remedies, manxworld.com will be entitled to
remove the Client's data from its systems and any
Equipment and/or put the Equipment to any use other
than the Client's if any amount due under the
Agreement is not paid within 21 days of its due
date for payment. manxworld.com is not required to
back up such data or return the same to the Client
prior to any such removal or following termination
of the Agreement.
7 Confidential Information
7.1 Each party will (unless contrary to law):
7.1.1 keep
confidential all information obtained from the
other under or in connection with the Agreement
("Information");
7.1.2 not disclose any Information to any third
party without the prior written consent of the
other except to such persons and to such extent as
may be strictly necessary for the performance of
the Agreement;
7.1.3 not use any Information otherwise than for
the purposes of the Agreement.
7.2 The provisions of clause 7.1 do not apply to
Information which:
7.2.1 is or becomes public knowledge (otherwise
than by breach of this clause); or
7.2.2 was in the
possession of the party concerned without
restriction as to its disclosure before receiving
it from the disclosing party; or
7.2.3 is received from a third party who lawfully
acquired it and who is under no obligation
restricting its disclosure;
and nothing in this clause 7 prevents either party
from disclosing any Information for a proper
purpose to a public authority or any regulatory
body, or to a court of law in the United Kingdom or
elsewhere in legal proceedings, or to its senior
management, its auditors, bankers, lawyers or other
professional advisers.
7.3 The provisions of this clause 7 will continue
to apply notwithstanding termination of the
Agreement.
7.4 The Client, by entering into the Agreement,
consents to manxworld.com sending to the Client by
whatever means the Company deems appropriate
(whether by email or otherwise) information
concerning new products and other services that
manxworld.com and its Associated Companies may from
time to time offer.
8 Intellectual Property
8.1 The Client acknowledges and agrees that it will
not own or acquire ownership of any Intellectual
Property Rights in or relating to the Services or
created in performing the Services and that it will
have no rights in or to the Services other than the
rights expressly granted by the Agreement.
8.2 The Client will indemnify and keep
manxworld.com indemnified from and against all
costs (including the costs of enforcement),
expenses, liabilities (including any tax
liability), injuries, losses, damages, claims,
demands, legal costs (on a full indemnity basis)
and judgments which manxworld.com incurs or suffers
as a consequence of infringement of any
Intellectual Property Right of any third party
arising directly or indirectly from:
8.2.1 the
provision by manxworld.com of Services making use
of information or specifications supplied by the
Client;
8.2.2 the Client's failure to procure all necessary
rights from third parties which are from time to
time required in order for manxworld.com to be able
legally to provide the Services; or
8.2.3 the use by manxworld.com in connection with
the Agreement of the Client System and the Client
Materials.
8.3 No Intellectual Property Rights created or
acquired by manxworld.com will transfer or be
assigned to the Client unless manxworld.com and the
Client have signed a written assignment document to
that effect.
8.4 The Client shall keep the Ancillary Systems in
good condition during the continuance of the
Agreement and free of all charges, liens and
encumbrances and protect it from any and all
judicial process.
9 Liability
9.1 The provisions of this clause 9 and the
provisions of clauses 4 and 24 set out the entire
liability of manxworld.com (including any liability
for the acts or omissions of its consultants,
employees, agents and authorised representatives)
to the Client in respect of:
9.1.1 any breach
of the Agreement; and
9.1.2 any representation, statement or tortious act
or omission including negligence arising under or
in connection with the Agreement.
9.2 Nothing in
the Agreement excludes or limits the liability of
manxworld.com for death or personal injury caused
by the negligence of manxworld.com, fraud or a
breach of section 12 of the Sale of Goods Act 1979.
9.3 Subject to clauses 9.2 the total liability of
manxworld.com in contract, tort (including
negligence or breach of statutory duty),
misrepresentation or otherwise, arising in
connection with the performance or contemplated
performance of the Agreement is limited to one and
a quarter times the amount of sums paid by the
Client to manxworld.com pursuant to the Agreement
(excluding VAT and expenses) during the preceding
12 month period.
9.4 manxworld.com will not be liable to the Client
in contract, tort, misrepresentation or otherwise
(including negligence), for any indirect or
consequential loss or damage, costs, expenses or
other claims for consequential compensation
whatsoever, or for any loss of profit, loss of
business, loss of contract, depletion of goodwill
or otherwise (whether direct or indirect), and
whether or not caused by the negligence of
manxworld.com or its employees, agents or
authorised representatives, which arises out of or
in connection with the Agreement.
9.5 The Client acknowledges that the allocation of
risk in the Agreement reflects the price paid for
the Services and that it is not within the control
of manxworld.com how or for what purposes they are
used.
10 Client Indemnity. The Client will fully
indemnify and keep manxworld.com and its Associated
Companies, officers, partners, employees and agents
fully indemnified from and against all actions,
demands, costs (on a full indemnity basis), losses,
penalties, damages, liability, claims and expenses
(including legal fees) whatsoever incurred by it
and arising from any of the following:
10.1 the Client's breach of the Agreement,
negligence or other default;
10.2 the operation or break down of any IT systems
owned or used by the Client including the Client
System but not the Equipment; or
10.3 the Client's use or misuse of the Services.
11 Force Majeure
Neither party is under any liability to the other
party in respect of anything which, apart from this
provision, may constitute a breach of the Agreement
arising by reason of force majeure which means, in
relation to either party, circumstances beyond the
reasonable control of that party including acts of
God, acts of any governmental or supra-national
authority, war or national emergency, riots, civil
commotion, fire, network failure, systems fault,
unauthorised use or access to the IT systems of
manxworld.com or the Client, explosion, flood,
epidemic, lock outs (whether or not by that party),
strikes and other industrial disputes (in each
case, whether or not relating to that party's
workforce), restraints or delays affecting shipping
or carriers, inability or delay in obtaining
supplies of adequate or suitable materials and
currency restrictions, to the extent outside of its
reasonable control.
12 Term and Termination
Without prejudice to the remaining provisions of
this clause 12 and any other rights and remedies
available to manxworld.com:
12.1 manxworld.com will provide the Services for
the period of 12 months from the date of the
relevant Order Confirmation or, where different,
any other period of supply stated on the Order
Confirmation (such period being termed the
"Initial Period") and will continue
beyond that period, subject to termination by:
12.1.1 the
Client upon serving 30 days' written notice on
manxworld.com following completion of
manxworld.com's prescribed template procedures for
terminating the whole or any part of the Agreement
(details of which can be obtained from
manxworld.com's Customer Services Team); or
12.1.2 manxworld.com serving 30 days' written
notice on the Client to expire at any time after
the Initial Period.
12.2
manxworld.com may immediately terminate the
Agreement (or at its option, any part of it) by
notice in writing to the Client if the Client fails
to pay to manxworld.com any sum due under the
Agreement on the due date for payment.
12.3 Either party may terminate the Agreement (or,
at its option, any part of it) forthwith by notice
in writing to the other if the other party:
12.3.1 is in
material breach of the Agreement and fails (where
the breach is capable of remedy) to remedy the
breach within 30 days of the receipt of a request
in writing to remedy the breach, such request
setting out the breach and indicating that failure
to remedy the breach may result in termination of
the Agreement;
12.3.2 becomes the subject of a voluntary
arrangement under section 1 of the Insolvency Act
1986;
12.3.3 is unable to pay its debts within the
meaning of section 123 of the Insolvency Act 1986;
12.3.4 has a receiver, manager, administrator or
administrative receiver appointed over all or any
parts of its undertaking, assets or income, has
passed a resolution for its winding-up, or has a
petition presented to any court for its winding-up
or for an administration order; or
12.3.5 has ceased to, or threatened to cease to,
trade.
13 Consequences of Termination
13.1 Termination of the Agreement is without
prejudice to the rights and duties of either party
accrued prior to termination.
13.2 The clauses of the Agreement which expressly
or impliedly have effect after termination will
continue to be enforceable notwithstanding
termination.
13.3 manxworld.com may without notice remove the
Client's data from its systems and any Equipment
after expiry of 5 Business Days following
termination. For the purposes of this clause, the
date of termination will be either the date that
manxworld.com receives signed authorisation from
the Client instructing cancellation of account or
the date of expiry of notice of termination served
in accordance with these Conditions.
13.4 Upon termination of the Agreement, the Client
will forthwith:
13.4.1 cease to
use the Software, Equipment and Services;
13.4.2 erase the Software from the Client System
and certify to manxworld.com that this has been
done;
13.4.3 return to manxworld.com any hardware or
other equipment loaned to the Client in connection
with the Services or any other materials and
equipment owned by manxworld.com; and
13.4.4 pay all outstanding invoices raised by
manxworld.com pursuant to the Agreement and pay for
all work in progress not previously paid for on a
reasonable pro-rata basis (subject to receipt of an
invoice for the same from manxworld.com).
13.5 In the
event of termination of the Agreement by the Client
part way through the Initial Period, the Client
remains obliged to pay for Services comprising the
provision of hosting for the remainder of that
period.
13.6 Where following termination, manxworld.com is
unable to cancel any registration of a domain name
registered on behalf of the Client, it may levy a
minimum charge to cover the cost of the domain
registration fee.
13.7 Where the Client services include the purchase
of licensing for software by manxworld.com on
behalf of the client, in the event of termination
of the agreement by the client, manxworld.com are
unable to refund any proportion of the software
and/or licensing fees incurred.
14 Severability
The illegality, invalidity or unenforceability of
any provision of the Agreement will not affect the
legality, validity or enforceability of the
remainder. If any such provision is found by any
court or competent authority to be illegal, invalid
or unenforceable, the parties agree that they will
substitute provisions in a form as similar to the
offending provisions as is possible without thereby
rendering them illegal, invalid or unenforceable.
15 Waiver
15.1 The failure or delay by either party in
exercising any right, power or remedy of that party
under the Agreement will not in any circumstances
impair such right, power or remedy nor operate as a
waiver of it. The single or partial exercise by
either party of any right, power or remedy under
the Agreement will not in any circumstances
preclude any other or further exercise of it or the
exercise of any other right, power or remedy.
15.2 Any waiver by either party of a breach of or
default under any of the terms of the Agreement by
the other party is not deemed a waiver of any
subsequent breach or default and in no way affects
the other terms of the Agreement.
16 Assignment and Subcontracting
The Client may not assign the benefit or delegate
the burden of the Agreement nor sub-license any of
its rights under the Agreement (including to its
Associated Company) without the prior written
consent of manxworld.com. Any consent provided by
manxworld.com under this clause is given on
condition that the assignee or licensee, as the
case may be, agrees to comply with the terms of the
Agreement as if they were the Client. manxworld.com
may sub-contract or assign any or all of its rights
and obligations under the Agreement.
17 Amendments
No variation or amendment to the Agreement
(including any Order Confirmation) is effective
unless agreed in writing and signed by an
authorised representative of manxworld.com.
18 Notices
Any notice to be given or made by either party
under or in connection with the Agreement must be
in writing and given or made to the other party at
its address stated in the Order Form or to such
other address as either party may from time to time
notify to the other. Every notice, if so addressed,
is deemed to have been duly given or made, if
delivered by hand, upon delivery at the address of
the relevant party, if sent by prepaid first class
post, two Business Days after the date of posting
and if transmitted by facsimile, at the time of
transmission (provided a confirmatory letter is
sent by prepaid first class post) provided that,
where, in accordance with the above provisions, any
notice would otherwise be deemed to be given or
made on a day which is not a Business Day or after
4.00 p.m. on a Business Day, such notice shall be
deemed to be given or made at 9.00 a.m. on the next
Business Day. manxworld.com may additionally serve
notice on the Client under or in connection with
the Agreement by email to the Client by sending an
email to the contact email address stated on the
Order or, in the case of a Client for whom
manxworld.com has registered a domain name, to
webmaster@[registered domain name], and in such a
case the email will be deemed sent once transmitted
from manxworld.com's email server.
19 Applicable Law and Jurisdiction
The construction, performance and validity of the
Agreement will be governed by English law and the
English courts have jurisdiction to settle any
disputes which may arise out of or in connection
with it.
SUPPORT SERVICES
20
Provision of Support Services
20.1 manxworld.com will provide the Support
Services to the Client upon the terms and
conditions set out in this Part 3 and Part 1 of
these Conditions.
20.2 manxworld.com will only be obliged to provide
the Support Services during Support Hours.
20.3 The obligation of manxworld.com to provide
Support Services will not extend to:
20.3.1
rectification of lost or corrupted data;
20.3.2 Ancillary Systems altered modified or varied
by other than manxworld.com;
20.3.3 attendance to faults arising from the
Client's failure to comply with manxworld.com's
instructions with regard to the use of the Services
or any documentation or manuals provided by
manxworld.com, or operator error or omission; or
20.3.4 attendance to faults attributable to the use
or interaction of an Ancillary System with other
software or systems with which it is not
compatible.
20.3.5 manxworld.com will charge its standard
employee charge out rates (as published from time
to time by manxworld.com) in addition to the Fees
for the carrying out any remedial work described in
clauses 20.3.1 to 20.
20.4
manxworld.com will use its reasonable endeavours to
provide the Support Services in accordance with any
agreed service levels.
20.5 Scope of Support Services
manxworld.com will at no additional charge to the
Customer install the standard operating system
Software on to the Client System or, where
appropriate, the Equipment.
20.6 manxworld.com will operate a helpline service
to assist the Client and its staff in relation to
the Client's use of the Services and the
identification and correction of Defects.
Assistance via this helpline service may be
requested by the Client and provided by
manxworld.com, by telephone or e-mail system
provided by manxworld.com. The service will be
obtained by telephoning, e-mailing such numbers or
addresses as are notified by manxworld.com from
time to time.
20.7 If a Defect occurs, the following procedure
will be followed:
20.7.1 the
Client will notify manxworld.com of the Defect and
provide such information and assistance as
manxworld.com reasonably requires in connection
with such Defect; and
20.7.2 manxworld.com will analyse the Defect and
use its reasonable endeavours to rectify the Defect
in question or propose a solution in connection
with the same, within ten Business Days of being
notified of the same under clause 20.6.
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