1.2 By placing an order for the Services, you consent to these terms and conditions of business.
2. Information About Us
2.1 Optimal Internet Limited (“we”, “us” and “our”). We are registered in England and Wales under company number 05848360 and have our registered office and trading address at 25 Barnes Wallis Road, Segensworth, Hampshire, PO15 5TT, United Kingdom.
3. Your status
3.1 By placing an order through our website, you warrant that:
3.1.1 you are legally capable of entering into binding contracts; and
3.1.2 you are at least 18 years old.
3.2 If you are acting on behalf of a company or other business, you further warrant that you personally have the authority to bind that company or business on whose behalf you are placing an order.
4. The Order Process
4.1 You can only place an order for the Services once you have successfully accepted a proposal from us. Information that you provide while registering a proposal acceptance with us must be complete and accurate.
4.2 After placing an order for the Services we will give you details of the Services you have ordered. We will credit check your company to determine any change to our payment agreement should this be needed. This managed service agreement will be sent by email, together with an invoice, to the email address you provided when you completed your proposal acceptance form with us. An account in our project management system will be opened as the primary communication route for milestone measurement, file storage and message exchange. All material is stored in a 128-bit SSL environment. Upon successful receipt of the questionnaire and cleared funds, only then will work commence.
5. Summary of Agreement
5.1 After placing an order, you will receive e-mail from us accepting your order and, if appropriate, letting you know that the Hosting Service and managed services you have purchased has been activated (“Acceptance Confirmation”). Your order constitutes an offer to us to buy our Services and all orders are subject to acceptance by us. The contract between us (“Contract”) will only be formed when the signed agreement is signed by both parties using our electronic signature system. We may also decline your order for the Services for any reason, in which case we will tell you so.
5.2 This Agreement is valid from the start date and duration as stipulated. The agreement is valid for a minimum duration of 12 months
5.3 The parties now agree and declare that in pursuance of the said Agreement and in consideration of the amount agreed to be paid in the manner hereinafter mentioned, Optimal Internet Limited hereby undertake to deliver the highlighted services as detailed in Schedule 1 of the agreement or any subsequent services agreed by both parties by way of an official quotation.
5.4 In the event that ‘The Company’ breaches its legal payment obligations under the signed contract, the Director will be held personally liable for such payments owed to Optimal Internet.
5.5 The Contract will relate only to those Services we have confirmed in the Acceptance Confirmation. We will not be obliged to supply any other Services, which may have been part of your order until such Services have been confirmed in a separate Acceptance Confirmation.
6. Our status
6.1 We may provide links on our site to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking that products or services you purchase from companies to whose website we have provided a link on our website will be of satisfactory quality, and any such warranties are DISCLAIMED by us absolutely. This DISCLAIMER does not affect your statutory rights against the third party seller or user.
7. Consumer rights
7.1 If you are buying as a consumer (i.e., not within the course of your business), ordinarily, the Consumer Protection (Distance Selling) Regulations 2000 allow you to cancel the Contract at any time within seven (7) working days, beginning on the day after you received the signed agreement. However, by placing your order for the Services, you agree to us starting supply of those Services before the end of the seven working day cancellation period referred to here. As such, you will not have the right to cancel the Contract under the Consumer Protection (Distance Selling) Regulations 2000.
7.2 This provision does not otherwise affect your statutory rights.
8. Price and payment
8.1 The price of any Services will be as quoted from time to time, except in cases of obvious error. These prices exclude VAT.
8.2 Prices are liable to change at any time. We will notify you of a change in our prices at least thirty (30) days before the price increase comes into force. Any such price increase will not be effective until the Minimum Term (as defined in clause 20.3) expires. If you do not agree to such price changes, please cancel your Services in accordance with clause 5.2. If you do not cancel you will be deemed to have accepted the new prices, and they will be charged to you through your chosen payment method registered to your account. You will make payment of money due by monthly Standing Order or in full at time of signature.
8.3 Our website and documentation contains the details of a large number of Services and it is always possible that, despite our best efforts, some of the Services listed on our website may be incorrectly priced. Where a Service’s correct price is less than our stated price, we will charge the lower amount when accepting your order. If a Service’s correct price is higher than the price stated on our website, we will normally, at our discretion, either contact you for instructions before accepting your order, or reject your order and notify you of such rejection.
8.4 We are under no obligation to provide the Services to you at the incorrect (lower) price, even after we have sent you an Acceptance Confirmation, if the pricing error is obvious and unmistakable and could have reasonably been recognised by you as a mis-pricing.
8.5 Please note that when purchasing a Service; you are obliged to pay for that Service in accordance with the table specified in Schedule 1, for the duration of the Agreement that applies to it even though you may pay by monthly standing order payments. Consequently, you must not cancel your standing order payments without first canceling your Services under clause 21.4.1. If you do so, we will seek to recover any outstanding payments due to us by other means, including by taking appropriate legal action.
8.6 Time for payment shall be of the essence. No payment shall be deemed to have been received until we have received cleared funds. Further, if your payment is still not authorised we may, at our discretion, suspend or terminate any Services we provide to you from time to time, even if payment in respect of such Services is not outstanding.
8.7 Upon release of a Beta site to the client, the client has a 4 week period in order to review the site and return a single set of complete snags for changes to be implemented. Should a complete snag list not be received by Optimal within 4 weeks from Beta release, an invoice for 50% of the balance outstanding for development will be issued. Payment will be due immediately for this invoice. If the complete snag list is not received within 8 weeks from Beta release, the remaining balance of 50% will be invoiced and due for payment.Under certain circumstances clients may request a time extension to deliver their complete snag list. Any extension requests need to be made in writing and are at the full discretion of Optimal Internet. Interest will be added daily on overdue invoices. Clients are then entitled to submit the snag list for completion at their discretion. The remaining development snags will be added to the current development schedule when received.
8.8 In the event of a dispute from either party regarding invoices the disputed sum will be withdrawn from the payment cycle and will be the subject to Dispute Resolution.
8.9 In the event that ‘The Company’ breaches its legal payment obligations under the signed contract, the Director will be held personally liable for such payments owed to Optimal Internet.
8.10 Optimal Internet Limited reserve the right to charge The Client interest in respect of the late payment of any sums due under this Agreement (both before and after judgment) at the rate of 3 per cent above the base rate from time to time of the Bank of England from the due date until receipt of payment.
8.11 The full cost of work to be paid shall be invoiced monthly in advance.
8.12 No part of the Price shall be payable until Optimal Internet Limited have submitted an invoice to The Client for such part of the Price as is due.
8.13 The full remaining contract value is due upon early termination of any Agreement. In the event of early termination of the Service the fees shown in Schedule 1 will be payable in addition to any outstanding amounts during the termination period including any special provisions concerning termination costs as agreed on the date of sale. In the event of Optimal Internet Limited breaching the Agreement, this fee will not apply.
8.14 Work will commence upon receipt of the full opening balance (as specified in Schedule 1) and in addition receipt of a fully signed agreement.
8.15 Final payment of all agreed development costs (as per Schedule 1) plus any additional fees from all design and development must be paid in full within 3 working days prior to your website going live and being made publicly available. Should cleared funds not be received, Optimal Internet reserve the right to suspend all live services until such payment is received.
8.16 Optimal Internet Limited operate a no refund policy for all advanced / deposit payments to commence any work or for any work completed for services ordered. All payment terms are stipulated per project requirement. All agreed non refundable amounts due will be agreed with the client in advance based on the work being carried out under quotation or agreement schedules, provided your acceptance of these terms.
8.17 Optimal Internet will not commence any additional development work detailed outside of Schedule 1 without a detailed functional specification being agreed and related quotation signed and accepted by the client. Payment for any ad hoc work may fall due before the commencement of work or may fall due upon completion of the agreed work. This is on a case by case basis and will be advised within the quotation sent to the client.
8.18 Project milestone payments are due no later that 5 days after receipt of the invoice. Invoices are only issued upon mutual sign-off of a project milestone. Failure to pay project milestone payments on time will result in the project being halted, removed from the project schedule. Outstanding project milestone payments that fall in to arrears by 14 days will be handed over to a collection agency for recovery of debt. Reinstatement of a project removed from our project schedule will be subject to a £850 reinstatement fee.
8.19 To state that once the site development and single round of snags is complete and we are ready to set the site LIVE – the client can pay and set the site LIVE immediately otherwise if they don’t want to set it LIVE at that time they have to pay the invoice within 7 days and can then set the site LIVE whenever they choose. Weekly interest will be added to the invoice at the standard bank rate until the invoice is paid.
8.20 Without prejudice to any other right or remedy available to Optimal Internet, Optimal Internet shall be entitled to suspend the Services with immediate effect should payment not be received on the due date and until payment in full has been made in the case of any arrears.
9 Confidentiality and Non Disclosure Agreement
9.1 Optimal Internet Limited are aware that in the course of the performance of the Agreement they will have access to and be entrusted with information in respect of the business and operation of The Client and their dealings, transactions and affairs, and/or any and all other proprietary information belonging to The Client relating to this business or businesses and/or related affairs, all of which information (written, oral or otherwise) is or may be confidential. Accordingly, Optimal Internet Limited hereby undertake for themselves and every employee or sub-contractor whose services they may use both during and after completion of the Agreement:
9.2 That they will not divulge to any person whatever or otherwise make use of (and shall use reasonable endeavours to prevent the publication or disclosure of) any such trade secret, data or confidential information for their own advantage or the advantage of others except with the express written consent of The Client.
9.3 That they will not remove from The Customer’s premises or copy or allow anyone else to copy from any document, computer disk, tape or other tangible item which contains any Confidential and proprietary Information except as may be necessary in the course of their work for The Client;
9.4 Each of Optimal Internet Limited and The Client hereby undertakes one to the other that for the period of 12 months following completion of the Service they will not directly or by an agent or otherwise and whether for themselves or for the benefit of any other person induce or endeavour to induce any officer or employee of the other to leave his employment. The provisions of the instant sub paragraph shall not apply to one of them if the other becomes subject to bankruptcy, receivership or liquidation proceedings.
10.1 We warrant that (subject to the other provisions of these terms and conditions) any Services purchased from us will be provided with all reasonable care and skill.
10.2 We will not be liable for a breach of the warranty in clause 10.1 unless:
10.2.1 you give written notice of the breach to us in writing; and
10.2.2 we are given a reasonable opportunity after receiving the notice of examining our provision of the Services to you.
10.3 We will not be liable for a breach of the warranty in clause 10.1 if:
10.3.1 the problem arises because you failed to follow our oral or written instructions as to the use of the Services and deliver systems (if there are any); or
10.3.2 you alter the Services without our written consent; or
10.3.3 the problem arises because of misuse.
10.4 Subject to clause 10.2 and clause 10.3, if we are in breach of the warranty in clause 10.1 we will, at our expense, use all reasonable commercial efforts to remedy the breach promptly. This constitutes your sole and exclusive remedy for any breach of the warranty set out in clause 10.1. Notwithstanding the foregoing, we do not warrant that your use of the Services will be uninterrupted or error-free.
10.5 We reserve the right to modify the Services without notice to you provided such modification does not adversely effect your access to, or use of, the Services or detract from the overall performance of the Services. Any changes, which may have such adverse effect on you or may detract from the overall performance of the Services, will be notified to you at least sixty (60) days prior to the change taking effect. These are deemed necessary changes to protect the security of your product being hosted within our server network and the security of our server network itself.
10.6 You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf which is not set out on our website or otherwise confirmed in writing by us. Nothing in this clause will exclude or limit our liability to you for fraudulent misrepresentation.
11.1 Optimal Internet shall use reasonable skill, care and comply with all applicable laws in the United Kingdom in its provision of the Services but makes no representation or warranty that the Services will be accessible or free from error at all times. Furthermore, Optimal Internet does not warrant the continued availability of any job board, social networking website or other distribution / search channel operated by a third party.
11.2 Optimal Internet may temporarily suspend and/or alter the operation of the Services for legal or technical reasons. Optimal Internet shall endeavor to notify the Customer as far in advance as possible of any temporary suspension or significant alteration but the Customer acknowledges that prior notice may not always be possible.
11.3 The Customer is responsible for ensuring that its use of the Services and the content of all job adverts posted via the Services comply with all applicable laws, regulations and codes of practice and will not be defamatory or infringe the copyright, trade mark or other rights of any third party when using any Optimal Internet product or service.
11.4 The Customer is responsible for complying with the terms and conditions of any websites where its job adverts are to be posted and the payment of all charges due to the operators of such websites.
11.5 The Customer shall not resell the Services or license the use of the Services to any third party in relation to any service offered by Optimal Internet Limited.
11.6 The Customer shall not copy, make modifications to, reverse engineer or decompile the software supporting the Services, except to the extent permitted by law.
11.7 The Customer shall not disclose its login password for the Services to any third party for any service provided by Optimal Internet Limited.
11.8 The customer will be provided with 5 page design layouts as part of the agreed project costs (Homepage, Contact, Inner Page, Job summary, Job description) after initial consultation with the designer. The designer will supply a wireframe design ahead of any visual design. Once approved, the visual designs will be provided in 2 views (first supplied in desktop and then mobile view once the desktop design has been signed off) with 2 rounds of design revisions included for each. Should further rounds of design be desired or additional custom page designs be requested, at any stage in the project process, these will be charged at our standard rate of £75+VAT per hour. After the design sign off stage, the client must supply a sitemap, image selection and all content prior, to technical integration of the design. A beta site will then be produced and returned to the client to test pre-launch phase. The client will have a final chance to snag any of the content at this stage however, design or technical functional changes to the signed off PSDs and specification, will only be authorised at our hourly rate of £75 + VAT. Any changes to the signed off design will also affect project delivery milestones and are subject to current scheduling and workload at the time. No concessions are made in favour of a client amending designs at a beta stage of the project process – all changes are subject to scheduling.
11.9 Additional service costs will be levied at the approved hourly rate for any change to a design proof and pre-approved services once signed off and agreed between the parties by official quotation. This includes changes made prior to the site being deployed to a live state, by a member appointed by the customer other than the main project manager responsible for the project from inception.
12. Access to the Hosting Service
12.1 You are responsible for making all arrangements necessary for you to have access to our Hosting Services. You are also responsible for ensuring that all persons who access our Services through your Internet connection are aware of these terms and conditions (and in particular our acceptable use policy below).
13. Hosting Service levels
13.1 We will use reasonable endeavours to make our servers available to you as part of the Hosting Service you purchase each calendar month. We do not warrant access to our servers will be uninterrupted or error free but we shall use reasonable endeavours to keep downtime to a minimum. We shall make all commercially reasonable efforts to provide you with advanced notification of all scheduled and emergency outages.
13.2 Service credits or compensation of any sort is not given for any form of downtime or service unavailability.
14 IP addresses
14.1 You will have no right, title or interest in any internet protocol address (“IP address”) allocated to you, and any IP address allocated to you is allocated as part of the Hosting Service you purchased and is not portable or otherwise transferable by you in any manner whatsoever.
14.2 If an IP address is re-numbered or re-allocated by us, we shall use our reasonable endeavours to avoid any disruption to you.
14.3 You agree that you shall have no right, title or interest to any IP address upon expiry or termination of the Services, and that the acquisition by you of a new IP address following expiry or termination of the Services shall be solely your responsibility.
15. Back-up of your material and our servers
15.1 It is your responsibility to maintain appropriate and up-to-date back-up copies of any data (except if you are subjected to our managed cloud service SLA policy), information or other material you upload (or permit to be uploaded) onto our servers (“Material”) as part of your use of the Hosting Services. In the event of loss of or damage to your Material, you will not be given access to the server back up we maintain pursuant to our archiving procedure. This applies to the shared hosting agreement. In the case of a dedicated server arrangement, automatic backups are created on a daily basis on your behalf.
15.2 We will follow our archiving procedures for the data stored on our servers. In the event of any loss or damage to our servers, your sole and exclusive remedy will be for us to use reasonable commercial efforts to restore the data on our servers (including your Material) from the latest back up we maintained in accordance with our archiving procedure. We will not be responsible for any loss, destruction, alteration or disclosure of your Material caused by you or any third party.
15.3 All client sites are ion addition stored securely on a sub-versioning system to ensure all material for restoration purposes is available.
16. Hosting Service usage limitations
16.1 All our Hosting Service packages come with an unlimited web space allowance provided that your Material is linked into web pages;
16.1.2 you do not use the Hosting Service as a backup of, or repository for, your Material;
16.1.3 you maintain good housekeeping to maintain your Material; and
16.1.4 you comply with our acceptable use policy.
16.2 The Hosting Service package you order includes the per calendar month bandwidth allowance applicable to that hosting package as this is set out in your agreement at the time of your order. The Hosting Service you have ordered will be automatically suspended if this monthly bandwidth allowance is exceeded. If this happens, you have to upgrade your Hosting Service package to one, which includes a higher monthly bandwidth allowance, or wait for the Hosting Service to resume at the start of the following calendar month.
16.3 Unless the Hosting Service package you order includes a dedicated / cloud server, you will only be allowed to use a maximum of five (5) per cent of our server’s processing capacity when using the Hosting Service package you order. At our absolute discretion, we may allow your usage to exceed this limitation, and we will speak to you about your hosting requirements if your usage has, or may have, a detrimental effect on our other customers.
16.4 The Hosting Service package you order includes the number of mailboxes applicable to that hosting package as this is set out on our website at the time of your order. However, any mailboxes that have not been accessed for one hundred (100) clear days will be automatically deleted from our system.
16.5 When using the Services, you must comply with our terms of website use and our acceptable use policy and these are incorporated into the Contract by reference. Any conflict between our terms of website use and these terms and conditions, will be resolved in favour of these terms and conditions.
16.6 We shall be entitled to terminate the Contract, or suspend or terminate the provision of any individual Services, if you are in breach of our terms of website use or our acceptable use policy.
17.1 If a problem has arisen with regard to the Services or your registered account, you can access support through our support desk management system twenty-four (24) hours a day, seven (7) days a week at [email protected]
17.2 All technical and support requests will have a 24 hour GMT response time, subsequent responses will be agreed dependent on the nature of any technical or support issue provided you use the prescribed methods to raise support requests as stipulated by Optimal Internet Limited.
18. Domain names
18.1 Where the Contract includes our Domain Registration and Renewal Service:
18.1.1 we will endeavour to procure the registration of the domain name you request;
18.1.2 we will not be liable in the event that the relevant domain name registry refuses to register the domain name you request, or subsequently suspends or revokes any registration for that domain name;
18.1.3 we shall not act as your agent or on your behalf in any dealings with domain name registry;
18.1.4 the registration of the domain name you request and its ongoing use is subject to the relevant domain name registry’s terms and conditions of use which you should obtain and consider;
18.1.5 you are responsible for ensuring that you are aware of the terms referred to in clause 17.1.4 so that you can comply with them; 17.1.6 the domain name you request will only have been successfully registered when you appear as the registrant on the appropriate “whois” database of the top level domain name registrar;
18.1.6 we shall have the absolute discretion to require you to select a replacement domain name to the one you have requested to be registered, and may suspend or terminate our performance of the Domain Registration and Renewal Service, if, in our opinion, there are reasonable grounds for us to believe that your current choice of name is, may or is likely to be in bad faith, breach of the provisions of these terms and conditions or any legal or regulatory requirement; and
18.1.7 you confirm and warrant that you are the owner of any trademark in any domain name (or have the authority of the owner of any trade mark to use such name) that you have requested be registered.
18.2 You confirm and warrant that you are the legal owner of any domain name (or have the authority of the legal owner to use such domain name) supplied by you, or otherwise authorised by you, for use as a domain name in connection with any website in relation to which the Hosting Service supplied to you is used.
18.3 Once the domain name has been successfully registered, it will need to be renewed periodically to ensure you retain your registration of it. We will send you renewal notices thirty (30) days before the renewal date of your registered domain name. These notices will be sent to the email address then registered against your account. You hereby authorise us to automatically renew the domain name by confirming in writing unless you have cancelled the Domain Registration Agreement and Renewal Service in accordance with clause 21.3.1. A renewal invoice will be issued upon your confirmation to renew your domain. Failure to confirm renewal will result in your domain registration lapsing and should you wish to renew your domain outside the validity period, you will be liable for any recovery costs associated in re-registering the domain plus renewal fees. Please refer to the Expired Domains Terms and Conditions.
19. Intellectual property rights
19.1 You, or your licensor, retain all intellectual property rights in your Material, and you grant to us a worldwide, non-exclusive, royalty free license to use, store and maintain your Material on our servers and publish your Material on the Internet for the purpose of providing the Hosting Service to you. You warrant that your Material does not infringe the intellectual property rights of any third party and you have the authority to grant the license in this clause 18.1 to us. We may make such copies as may be necessary to perform our obligations, including making back-up copies of your Material.
19.2 You will defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services or of any claim or action that your Material infringes, or allegedly infringes, the intellectual property rights of a third party.
19.3 If you download software we own from our website, we grant you a non-exclusive, non-transferable royalty free license to use that software for the purpose set out on our website in relation to that software. Such license will automatically terminate when we stop providing the Hosting Services to you.
19.4 Any third party software that you download from our website shall be licensed to you on the standard software license terms of the owner of the intellectual property rights in that third party software as those license terms are notified to you at the time you download such software.
19.5 We retain all intellectual property rights in the Hosting Services (other than in your Material) and our software referred to in clause 18.3. Accordingly, you must not decompile, disassemble or reverse engineer the Hosting Services or our software.
19.6 We will defend you against any claim that the Hosting Services (but not materials stored or maintained on our servers by third parties) infringe any United Kingdom intellectual property rights of a third party (other than infringements referred to in clause 18.2), and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
19.6.1 you give prompt notice of any such claim;
19.6.2 you make no admissions or settlements without our prior written consent;
19.6.3 you provide reasonable co-operation to us in the defence and settlement of such claim, at your expense; and
19.6.4 we are given sole authority to defend or settle the claim.
19.7 In the defence or settlement of the claim, we may obtain for you the right to continue using the Hosting Services, replace or modify the Hosting Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract with you without liability to you (in which case we will refund to you the previous months hosting fees on a pro-rata basis). We will have no liability to defend or indemnify you if the alleged infringement is based on:
19.7.1 a modification of the Hosting Services by anyone other than us;
19.7.2 your use of the Hosting Services in a manner contrary to our instructions or our acceptable use policy; or
19.7.3 your use of the Hosting Services after notice of the alleged or actual infringement from us or any appropriate authority.
19.8 The foregoing states your sole and exclusive rights and remedies, and our entire obligations and liability, for the infringement of any third party’s intellectual property rights by the Hosting Services.
19.9 The Customer acknowledges that Optimal Internet is the owner or licensee of all intellectual property rights related to SEO services and systems and that the Customer has no rights in, or to, such intellectual property other than the right to use the Services in accordance with these Conditions. Cancellation of service constitutes the removal of all SEO related systems installed on your website for this purpose. The customer will have no recourse to any loss in traffic or earnings as a result of the cancellation of this service.
19.10 Software code and graphic images owned by a third party are not affected by this Agreement. After completion of the Agreement and unless otherwise specified in this Agreement ownership of intellectual property shall be as follows relating to the web development product range:
19.10.1 Web Site concepts belong to The Client.
19.10.2 Web Site designs used in the Web Site belong to The Client.
19.10.3 Web Site designs not used belong to Optimal Internet Limited and designs created for The Client belong to The Client.
19.10.4 Graphic images provided by Optimal Internet Limited belong to The Client unless Optimal Internet Limited expressly state that they retain the ownership.
19.10.5 Software code written by Optimal Internet Limited prior to the date of this Agreement and incorporated in the Web Site as part of the service fees belongs to The Client.
19.10.6 Code written specifically for the Web Site belongs to The Client.
19.11 Optimal Internet Limited shall indemnify The Client against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Web Site by The Client infringes the patent copyright registered design or trade mark rights of that third party
19.12 Optimal Internet Limited shall have no liability to The Client in respect of an infringement if it results from any alteration modification or adjustment to the Software or Web Site not previously known to Optimal Internet Limited.
19.13 In the event of an infringement Optimal Internet Limited shall immediately make such alterations modifications or adjustments to the Software and Web Site as shall be necessary to make them non-infringing and shall not charge The Client for this work.
19.14 No limitations of the liability of Optimal Internet Limited to The Client specified elsewhere in this Agreement should apply to this paragraph.
20. Our liability
20.1 We do not monitor and will not have any liability for your Material or any other communication you transmit, or allow to be transmitted, by virtue of the Hosting Services.
20.2 Due to the public nature of the Internet, we shall not be liable for the protection of the privacy of electronic mail or any other information transferred through the Internet or via any network provider and no guarantee or representation is given that the Hosting Services will be free from hackers or unauthorised users. You shall be liable for the content of any emails transmitted by virtue of the Hosting Services, for any material you upload to, or allow to be uploaded to, our servers and for ensuring compliance at all times with all relevant legislation (including, but not limited to the Data Protection Act 1998 and all other privacy laws, regulations and guidance notes made or issued thereunder).
20.3 All conditions, terms, representations and warranties that are not expressly set out in these terms and conditions (or the documents referred to in them) are hereby expressly excluded.
20.4 We do not exclude or limit in any way our liability:
20.4.1 for death or personal injury caused by our negligence;
20.4.2 under section 2(3) of the Consumer Protection Act 1987;
20.4.3 for fraud or fraudulent misrepresentation; or
20.4.4 for any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
20.5 We will not be responsible for the following types of losses (in each case whether direct, indirect or consequential) and whether they are caused by our negligence or otherwise:
20.5.1 loss of income or revenue;
20.5.2 loss of business;
20.5.3 loss of profits or contracts;
20.5.4 loss of anticipated savings;
20.5.5 loss of goodwill;
20.5.6 loss of software or data;
20.5.7 wasted expenditure (such as pay per click advertising costs); or
20.5.8 wasted management or office time.
20.6 Subject to clause 19.4 and clause 19.5, our maximum aggregate liability under or in connection with the performance or contemplated performance of the Contract, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed one (1) months value preceding the event giving rise to the liability in question. Accordingly, you are advised to acquire business interruption insurance, or other appropriate insurance, to protect you and your business in the event of interruption of the Services (in particular the Hosting Service).
20.7 Where you buy any product or service from a third party seller through following a link on our website to such third party’s website, the seller’s individual liability will be set out in the seller’s terms and conditions. You should consult such terms and conditions.
20.8 The Client hereby agrees to give Optimal Internet Limited not less than 30 days in which to remedy any Event of Default hereunder.
21. Duration of the Services and cancellation
21.1 That part of the Contract relating to our Domain Registration and Renewal Service will commence on the date we send you our Acceptance Confirmation. It will continue until:
21.1.1 we have registered the domain name you have requested (the “Domain Name”) and you subsequently ask us not to renew the registration of your Domain Name by logging into your domains control panel and setting the Domain Name renewal option to “cancel” at anytime before the renewal date; or
21.1.2 we terminate the supply of our Domain Registration and Renewal Service by notice to you because:
188.8.131.52 the Domain Name is no longer available for registration;
184.108.40.206 of some other reason preventing the registration of the Domain Name.
21.2 If we terminate the Domain Registration and Renewal Service, we will refund the price you have paid for the Domain Registration and Renewal Service to the account you used to make the payment.
21.3 That part of the Contract relating to Managed Services other than our Domain Registration and Renewal Service will also commence on the date we send you our signed agreement. Unless such Services are terminated as provided in this clause
21.4 They shall continue for the minimum period of time that applies to the Service you have purchased (as these are set out on our website and subsequently confirmed in the Acceptance Confirmation) (“Minimum Term”) as stated in clause 5.2. After expiry of the Minimum Term, they will continue on a month-to-month basis until terminated:
21.4.1 by you giving to us at sixty (60) days advance written notice, following the minimum contract period, through our project management system. As part of our cancellation process, we will respond to you through our project management system and you must re-confirm your cancellation request. You must re-confirm your cancellation request via our project management system or we will continue to supply the relevant Services and your cancellation will be ineffective. You cannot cancel any of your Services by letter, email or telephone. You will not receive any refund of the price you have paid for the Services you have cancelled.
21.5 The monthly price for Services we supply under Contracts that continue on a month-to-month basis under clause 20.3 shall be charged monthly in advance via standing order registered against your account. Such payment will be taken on the 25th day of each month (“Payment Date”) unless or until you cancel the Services in accordance with clause 21.3.1. We will not provide you with a refund for a cancellation that is partway through a billing period. Where the Payment Date does not recur in a particular month (e.g., 31 January, but there is no 31 February), you will be charged on the closest preceding date to the Payment Date (e.g., 28 February) for that month.
21.7 Notwithstanding anything to the contrary in these terms and conditions, if you are in breach of an obligation of these terms and conditions we may terminate the Contract by seven (7) days notice to you and/or, at our absolute discretion, terminate or suspend without notice any individual Services we provide to you from time to time.
21.8 Expiry or termination of the Contract shall be without prejudice to any rights and liability of either of us arising in any way under that Contract as at the date of expiry or termination.
22. Deletion of your data
22.1 If you cancel your Services, any data we hold or host in relation to the Services you have cancelled will be immediately and permanently deleted from our system. Accordingly, you are strongly advised to make appropriate copies of such data before you cancel your Services. Data backups are provided on request.
22.2 If you have purchased a Shared Hosting Service any package disabled that remain disabled for fifty (50) clear days, we will immediately and permanently delete those disabled accounts (and all the data hosted in relation to them) from our system.
23. Additional terms
23.1 Additional terms and conditions may apply for our offers. If so, you will be advised of them at the relevant point.
24 Third-Party Software Rights
24.1 If Optimal Internet Limited incorporate or embed third party software products in the Project then such products will so far as possible be properly licensed to The Client, with full and appropriate legal documentary evidence in support and any money payable to a third party shall be paid by The Client. Any license fees payable by The Client to any third party for software incorporated in the Web Site but not previously used by The Client shall be agreed with The Client before purchase and use by Optimal Internet Limited and paid by The Client unless included in the Price specification set out in Schedule 1.
24.2 Insofar as the terms of business of a third party seller of software do not permit the arrangement set out in sub-paragraph 1, above, then The Client shall themselves buy the software concerned whereupon Optimal Internet Limited shall have no obligation in respect of the software except to warrant that it functions as a part of the Web Site.
24.3 Insofar as it is impractical to follow the procedure set out in sub paragraph 2 above, then Optimal Internet Limited shall be deemed to be the agents of The Client for the purpose of buying such software. In this event, Optimal Internet Limited will obtain Agreement and written approval from an authorised individual within The Client for any and all items purchased and advises the seller by e-mail, with copy to The Client, that the software has been purchased for use by The Client. Optimal Internet Limited will provide full contact details to the seller. It shall be the responsibility of The Client to retain the copy of the e-mail message by Optimal Internet Limited.
25. Written communications
25.1 Applicable laws require that some of the information or communications we send to you should be in writing. When using our website, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
26.1 All notices given by you to us must be given though our project management system. We may give notice to you at either the then current e-mail or postal address registered against your account with us.
27. Third party rights and transfer of rights and obligations
27.1 Neither you nor we intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
27.2 The Contract is binding on you and us and on our respective successors and assigns.
27.3 You may not transfer, assign, charge or otherwise dispose of the Contract, or any of your rights or obligations arising under it, without our prior written consent.
27.4 We may transfer, assign, charge, sub-contract or otherwise dispose of the Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract, subject to us giving you 60 days written notice of intention to do so.
28. Events outside our control
28.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by events outside our reasonable control (“Force Majeure Event”).
28.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
28.2.1 misuse, alteration or interference by you or any third party of our servers or systems (including virus and hacker attacks, denial of service attacks, third party virus protection sites blacklisting site IP addresses or email addresses – mail IP due to SPAM activity)
28.2.2 strikes, lock-outs or other industrial action;
28.2.3 civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
28.2.4 fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
28.2.5 impossibility of the use of public or private telecommunications networks; and
28.2.6 the acts, decrees, legislation, regulations or restrictions of any government.
28.3 Our performance under the Contract will be deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
29.1 If we fail, at any time during the Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
29.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
29.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 24.
30.1 If any of these terms and conditions or any provisions of the Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
31. Entire agreement
31.1 These terms and conditions and any document expressly referred to in them represent the entire agreement between us both in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
31.2 We each acknowledge that, in entering into the Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these terms and conditions.
31.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in these terms and conditions.
32. Our right to vary these terms and conditions
32.1 We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.
32.2 You will be subject to the policies and terms and conditions in force at the time that you order services from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Acceptance Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven (7) working days of receipt by you of the Acceptance Confirmation).
32.3 We may revise these terms of business at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we make, as they are legally binding on you.
33. Law and jurisdiction
31.1 Contracts for the purchase of Services through our site will be governed by English & Scottish law. Any dispute arising from, or related to, such the Contract shall be subject to the exclusive jurisdiction of the courts of England, Wales and Scotland. English is the language offered for the conclusion of the contract between us both.