GENERAL TERMS AND CONDITIONS
QUOTATIONS AND PRICES
Any quotation given by the Company shall be open for acceptance by the Customer for a period of 30 days and if not accepted within this period shall be withdrawn by the Company.
Every endeavor will be made to deliver the correct quantity ordered, but quotations are conditional upon margins of 5 per cent for work in one colour and 10 per cent for other work being allowed for overs or shortages.
Customer’s alterations and additional proofs shall be charged extra.
Where copy supplied is not clear and/or legible an extra charge may be made to cover any additional work involved.
If the Company’s costs incurred in respect of the Goods increase due to the following circumstances which may occur after the Customer’s Order was accepted, the Company may at its option at any time before delivery give notice to the Customer of an increase in the Contract price under this Condition due to:
Variation and/or alteration of instructions and/or details and/or a failure by the Customer or its representative to provide the same.
Overtime costs incurred if the delivery date does not permit sufficient time for the work to be completed during normal working hours i.e. 9 am -6 pm Monday to Friday.
The Company reserves the right to sub-contract work and where the quotation given includes an estimate or reserve in respect of the costs of a sub-contractor such estimate or reserve whilst given in good faith is subject to formal confirmation and will not be binding upon the Company unless and until ratified by the sub-contractor.
Any Order accepted by the Company may be amended or cancelled by the Customer only with the Company’s written consent. Any costs incurred by the Company in connection with that Order may be charged to the Customer.
All work carried out at the Customer’s request whether experimentally or otherwise shall be charged to the Customer.
Value Added Tax will be charged in accordance with United Kingdom legislation in force at the tax point date whether specified on the quotation or not.
Time of delivery shall not be the essence of any Contract.
Any delivery date specified is a genuine forecast in the light of current conditions but shall not be legally binding on the Company and is subject to extension to cover delays caused by events beyond the Company’s control.
Where at the request of our Customer we are asked to forward Goods by Post, BritDoc, Rail, Carrier or any other means, an appropriate charge will be rendered for this service.
Whilst every reasonable precaution will be taken to ensure accuracy of despatch, no claims will be accepted by the Company in the event of damage to or non-delivery or late delivery of Goods by whichever means of transport have been used once the Goods have left the Company’s premises.
Any additional work to replace lost or damaged Goods will be charged for.
TERMS OF PAYMENT
Payments shall be made to the Company’s business address and are due no later than 30 days from this Customer Order Form date quoted over leaf, or earlier if specified
The Company reserves the right to charge and be paid interest on all sums due from the Customer at the rate of 5% above Lloyds Bank plc base lending rate from the date upon which payment is due until the date upon which it is received as well after as before judgement.
Invoices are payable in full and the Customer shall not be entitled, for any reason whatsoever, to withhold or set-off payment or make any counterclaim.
The time of payment shall be the essence of the Contract.
Dishonoured cheques will be charged at £40.00 per presentation.
DEFECTS IN THE GOODS
The following terms will apply to all Goods supplied by the Company whether artwork has been created by the Company or the Customer has supplied the artwork files.
Whilst every care is taken by the Company when designing work/processing files for visuals before print, it is the responsibility of the Customer to proof bromides/films immediately upon receipt whether laser proofs have been supplied by the Company or not.
The Company shall not be liable in any way whatsoever for any defects in Goods beyond the Company’s reasonable control.
If the Customer alleges that the Goods do not conform to the Customer’s Order whether as to content or quality it shall notify the Company within three working days of delivery by letter or facsimile transmission of such allegation and the failure to make such notification shall be deemed to be conclusive evidence of the conformity of the Goods to the Customer’s Order in every respect.The Company’s liability for defects in the Goods caused by the negligence of the Company shall be limited to the replacement by the Company of the artwork bromides/films at no cost to the Customer provided that such defect is notified in accordance with clause 5(c) above and the Goods have been returned for scrutiny by the Company as evidence of the alleged defects.
In any event the liability of the Company for defects/errors in the Goods shall be limited to a sum equivalent to the invoice price of the Goods in respect of which any claim is made against the Company.
The Company shall NOT be liable for any claims for consequential loss or loss of profit or any other loss calculated on a time basis of whatsoever nature including claims for cromalins, plates or printing costs.
Where a complaint or a claim has been made in respect of Goods proved or alleged to be defective the Company may suspend further deliveries of any Goods under this Contract which may have the same or similar alleged defects until the validity of such complaint or claim has been finally determined. In such event the applicable delivery dates shall be postponed accordingly.
Colour separated films will not be guaranteed for registration.
The Company shall not be liable for indirect loss or third party claims occasioned by delay in completing the work nor for any loss to the Customer in delay of transit and the Customer is advised to obtain insurance.
RISK , TITLE AND INTELLECTUAL PROPERTY RIGHTS
Unless otherwise agreed in writing and signed by both parties the entire copyright, design and all other intellectual property rights subsisting in or attached to the Goods belongs to the Company and shall not be licensed or assigned to the Customer other than as provided for herein.
This Contract shall operate as a licence for the Customer to use the Goods and the intellectual property rights therein as provided for over leaf until the date payment is due and, provided that payment in full is made for the Goods on or before 5 pm on the date due, this Contract shall operate as an automatic licence (or an automatic assignment of intellectual property rights if this is agreed in writing and signed by both parties) for the Customer to continue to use the Goods and the intellectual property rights therein as provided for overleaf subject to the terms herein, but, if payment in full is not made on or before 5 pm on the date due for payment there shall be no assignment of rights and any right or licence the Customer may have had to use the Goods and any intellectual property rights herein contained shall be automatically revoked and the Company reserves the right to take such action as may be necessary and appropriate in both the civil and the criminal courts and all intellectual property rights in the Goods shall remain the property of the Company and the Customer shall have no further right to use Goods in anyway prohibited by the Contract or statute or common law unless otherwise agreed in writing by the Company and signed by Garry Morris of the Company.
Title to the Goods shall not pass to the Customer until payment in full of the price agreed for the Goods and until such payment is received in full by the Company the Customer shall have possession of the Goods as bailee for the Company and shall store the Goods in such a way as to enable them to be identified as the property of the Company, provided that, if the Customer is purchasing the Goods for resale the Customer may act as agent for the Company and sell or deliver the Goods to a third party in the ordinary course of the Customers business on condition that until such payment as aforesaid the Customer shall hold all the proceeds in trust for the Company in a separate interest bearing account and further, the Customer hereby assigns to the Company all rights and claims which the Customer may have against it’s Customer arising from such sale until payment is made in full as described hereunder.
The Company reserves the right to repossess any Goods in respect of which payment is overdue and following such repossession to resell such Goods if possible and for this purpose the Customer hereby grants an irrevocable right and licence to the Company, it’s servants and agents to enter upon the Customer’s premises with or without vehicles during normal business hours and this right shall continue not withstanding the termination of this Agreement for any reason and is without prejudice to any other rights of the Company.
All rights and licences granted or made to the Customer hereunder by the Company are conditional on the Goods and any intellectual property rights therein being used only for the purposes agreed over leaf and the Customer hereby undertakes and agrees to promptly notify the Company in order to obtain it’s approval (which shall not be unreasonably withheld or delayed) to use the Goods and/or any intellectual property rights therein contained for any additional purpose including, but not limited to re-use, re-print or duplication and the Customer further agrees to pay the Company the appropriate fee as listed in the Company’s scale for such charges from time to time, copies of which are available on request.
All risk in connection with the Goods shall pass to the Customer upon delivery but, where the Goods are collected by or on behalf of the Customer from the Premises of the Company or the Premises of any Agent or sub-contractor of the Company the risk shall pass to the Customer at the time the Goods are handed over.
The Company shall not be required to process any matter which, in its opinion, is or may be of any illegal or libellous nature or of an infringement of the proprietary, intellectual property or any other rights of any third party.
The Company shall be completely indemnified by the Customer in respect of any claims, costs, and expenses arising out of any libellous matter or any infringement of Copyright, Patent or design or any other proprietary, intellectual property or personal rights contained in any materials processed for the Customer and the indemnity shall extend to any amounts paid on Lawyer’s Advice in settlement of any claim.
The Company shall be at liberty at any time to discontinue work if in the Company’s opinion such work may be libellous or illegal and in such circumstances the Customer shall be liable to pay the Company for the work carried out prior to the date of discontinuance.
OWNERSHIP OF ARTWORK/MAGNETIC MEDIA/PRINT/GOODS
All artwork/films/magnetic media/print/Goods produced or originated during the course of production of the Goods shall remain the property of the Company who reserve the right to dispose of the same immediately after completion of the Contract.
At the request of the Customer this period may be extended and a charge may be made for the storage of these materials. Whilst every care will be taken to keep the materials in good condition, the Company accepts no liability for damage or loss of any kind.
The Company will be prepared to negotiate with the Customer for the sale of such materials at any time during the period mentioned in this clause.
All designs and visuals are submitted by the Company in confidence, and unless otherwise agreed in writing, it owns the Copyright in them and, all rights under the Copyright Designs and Patents Act 1968, including the right to reproduce any such design, remains its property.
STORAGE OF CUSTOMER’S PROPERTY
The Company accepts no liability for any loss or damage to property left in the Company’s possession unless the Customer has given written instructions requiring the property to be retained and has paid a storage charge including any charge for insurance.
Whilst every care and precaution is taken against loss of or damage to originals or other articles entrusted to the Company, all are held at the sole risk of the Customer and no liability is accepted should damage or loss occur.
The Customer is advised to obtain insurance.
If there remain outstanding sums in respect of the Customer’s obligation to pay the Company for the Goods supplied under this Contract or to be supplied under this or any further Contract, the Company shall have a general lien on all Goods and property in its possession whether worked on or not and shall be entitled, on the expiration of fourteen days notice, to dispose of such Goods or property in such manner and at such price as it thinks fit and to apply the proceeds of that sale after having given credit for the costs of sale towards such debts of the Customer as may be outstanding.
Customer’s property and all property supplied to the Company by or on behalf of the Customer will be held, worked on, and carried at Customer’s risk.
Metal, film, glass and other materials used in the production of types, plates, moulds, stereotypes, electrotypes, film-setting, positive and the like shall remain the exclusive property of the Company.
Type may be distributed and lithographic, photo-gravure, or other work effaced immediately after the order is executed unless written arrangements are made to the contrary. In the latter event, rent may be charged.
Every effort will be made to carry out the Contract but its due performance is subject to suspension or cancellation by the Company or to such variations as the Company may find necessary as a result of inability to secure labour, materials or suppliers, or as a result of any act of God, war, strike, lockout or other labour dispute, fire, flood, drought, illness, accident, legislation failure of power at place of manufacture of the Goods, unavailability of materials from usual sources of supply or other cause (whether of the foregoing class or not) beyond the control of the Company.
The Company may reject any paper, plates or other material supplied by the Customer which appear unsuitableand the Customer agres that it will pay any additional costs may be be incurred if materials supplied or requested by the Customer are found to be unsuitable during production.
Where materials are so supplied, responsibility for defective work will not be accepted by the Company unless this is due to failure by the same to use reasonable skill and care.
Quantities of materials supplied shall be adequate to cover normal spoilage.
TERMINATION DUE TO INSOLVENCY OR BREACH
If the Customer shall be in breach of any of it’s obligations hereunder or becomes subject to any bankruptcy petition order or, if a company, becomes subject to any winding up petition or order or is in any way deemed to be insolvent or if an administrator, receiver or administrative receiver shall be appointed over the whole or any part of it’s assets or undertakings, the Company in it’s absolute discretion and without prejudice to any other right or remedy shall:- refuse to proceed further with and charge for all or any work already carried out (whether or not the same shall have been completed) together with all or any materials purchased on the Customer’s behalf (such debt to be immediately due by the Customer it’s trustee in bankruptcy, administrator or other official dealing with it’s financial position); have a lien over all the Customer’s goods and property in it’s possession in respect of all unpaid debts due from the Customer and shall on the expiry of 14 days notice to the Customer, be entitled to dispose of such goods or property in such manner and at such price as it deems fit.
LAW OF THE JURISDICTION
This Contract shall be governed exclusively by the Law of England and the Customer hereby accepts the jurisdiction of such Courts, whether in England or otherwise, as the Company may nominate for the purpose of trying any Action out of this Contract.
In these Terms and Conditions “the Company” means Garry Morris trading as ThinlineCreative: The Coach House 20 Leegate Road, Heaton Mersey, Stockport, Cheshire “Goods” means the goods sold and/or services rendered by the Company “ the Customer” means the person, firm or company buying the Goods.
The Customer represents that it enters into the Contract in the course of its business and not as a consumer.
These Conditions shall apply to the Contract except where expressly excluded by the Company in writing. Any general Conditions of Order or other Terms of Business offered on behalf of the Customer shall, if inconsistent with these Conditions, be deemed to have been rejected by the Company unless expressly accepted in writing by Garry Morris of the Company.
CONDITIONS OF SUPPLY OF INTERNET SERVICES
ThinlineCreative, a provider of internet related services including connectivity, co-location, dedicated and shared server, website hosting and domain name services. These Conditions set out the terms under which ThinlineCreative will provide Services to the Client (as such terms are defined below).
These Conditions will be supplemented from time to time by order confirmation forms setting out specific details relating to services requested by the Client and, as so supplemented, will apply to the exclusion of any other terms and conditions including any which the Client may attempt to introduce. ThinlineCreative reserves the right to change, add, subtract or in way alter these Conditions without the prior consent of the Client.
All Terms and Conditions are subject to the supplemental Terms and Conditions that may be found on our hosting suppliers websites. http://www.webfusion.co.uk http://www.123-reg.co.uk/ http://www.1and1.co.uk http://www.wds2000.co.uk/ https://www.vidahost.com/page/terms-conditions
To the extent that the Client is deemed to be a consumer (as defined by the Unfair Contract Terms Act 1977) then these Conditions will not affect the rights of the Client as a consumer and will apply to the extent that applicable law allows.
By undertaking work from ThinlineCreative you are deemed to have accepted these terms and conditions and the acceptable user policy.
These Conditions are divided into parts, however all parts may not apply in every case:
applies in all cases.
applies where the Services include ongoing support and maintenance services.
applies where the Services include domain name registration services.
PART 1 – GENERAL PROVISIONS
In these Conditions, the following expressions will have the following meanings, unless inconsistent with the context:
The agreement between ThinlineCreative and the Client for the provision of Services formed by these Conditions and the Order Confirmation(s)
Any Software and/or Equipment
a day which is not a Saturday or Sunday or public or bank holiday in England and Wales
9am to 5pm on each Business Day
data, text, images, graphics, videos, logos and other content and material, hardware or equipment provided by the Client for use by ThinlineCreative in providing the Services
as identified on the Order Confirmation(s)
the Client’s computer system upon which the Software is loaded or otherwise in connection with which the Services are provided
those domain registration and other related services (if any) provided to the Client by ThinlineCreative pursuant to the Agreement, as described on a relevant Order Confirmation
the charges due to ThinlineCreative under the Agreement in relation to the Services, as set out on the Order Confirmation(s)
“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
the order confirmation form(s) submitted by ThinlineCreative to the Client by email or otherwise in writing for the provision of the Services, in response to the Client’s order or request
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
the level of performance to be provided by ThinlineCreative to the Client in respect of the Services, as set out on the Order Confirmation(s)
those support and maintenance services provided to the Client pursuant to the Agreement, as described on a relevant Order Confirmation
the hours during which ThinlineCreative 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
“Use the Software”
to load the Software onto and store and run it on the Client System and/or Equipment in accordance with the terms of the Agreement
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.
3 Service Provision
3.1 The Services are described or referred to on the Order Confirmation(s). ThinlineCreative agrees to supply the Services to the Client on the following conditions.
3.2 ThinlineCreative 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, based on those reasonable endeavours, it fails to meet any timescale.
3.3 ThinlineCreative 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 ThinlineCreative will not be obliged to provide any services not referred to on the Order Confirmation(s). Furthermore, ThinlineCreative cannot provide the Services where the Client makes use of incompatible communication systems.
3.5 The terms of the Agreement form the entire agreement between ThinlineCreative 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 ThinlineCreative prior to the Agreement being entered into unless confirmed in the Agreement.
3.6 ThinlineCreative reserves the right at any time and from time to time improve, correct or otherwise modify all or any of the Services.
3.7 ThinlineCreative will, upon arrangement and provided that no Fees are due and payable, allow the Client reasonable FTP access to any server hosted by ThinlineCreative. Or all data will be provided to client on CD/DVD at a cost based on time taken.
3.8 Without prejudice to its other rights and remedies, ThinlineCreative 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 ThinlineCreative’s or providers IT systems;
3.8.2 issue by any competent authority of an order which is binding on ThinlineCreative which affects the Services;
3.8.3 if the Client fails to pay any Fees or any other sums owing to ThinlineCreative by the Client when they fall due;
3.8.4 if an event occurs and ThinlineCreative 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 ThinlineCreative determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by ThinlineCreative from time to time;
3.8.6 if the size of an email, mailing list used by the Client exceeds any agreed or stipulated size, level or frequency and ThinlineCreative determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by ThinlineCreative 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.
3.8.8 failure by the Client to adhere to any of the provisions outlined in ThinlineCreative’s acceptable usage policy. Where ThinlineCreative 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.
3.9 The Client will provide to ThinlineCreative those Client Materials identified on the Order Confirmation(s) within a reasonable time period taking account of the obligations of ThinlineCreative 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 for usage of images video and music (including those from rights owners, performers and other contributors) are obtained and paid for by the Client. Without prejudice to the foregoing, ThinlineCreative 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 ThinlineCreative 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, ThinlineCreative 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 ThinlineCreative 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, ThinlineCreative 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 ThinlineCreative warrants that it will provide the Services with reasonable care and skill and in accordance with any SLA. ThinlineCreative will not be liable for a breach of such warranty unless the Client notifies ThinlineCreative 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 ThinlineCreative based on a failure by ThinlineCreative to comply with the warranty set out in clause 4.3 ThinlineCreative 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 ThinlineCreative under such warranty will in no event exceed one and a quarter times the amount of the Fees paid to ThinlineCreative by the Client (excluding VAT and expenses) in the 12 month period prior to the date on which the Client makes the claim. If ThinlineCreative 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 shall:
5.1.1 save as provided in any Order Confirmation, be responsible requesting a regular and full back ups of all material and data hosted by ThinlineCreative on any web site or other system on a regular basis. For the avoidance of any doubt ThinlineCreative will not attempt to restore any lost material or data of the Client’s except where such loss occurred as a direct result of a ThinlineCreative server crash;
5.1.2. immediately notify ThinlineCreative on becoming aware of any unauthorised use of all or any of the Services and/or relevant part of the Client System;
5.1.3 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;
5.1.4 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;
5.1.5 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 ThinlineCreative shall not be liable for any loss of confidentiality or for any damages arising from the Client’s inability to comply with these Conditions;
5.1.6 comply with any security policy notified to it from time to time by ThinlineCreative and, in particular, ensure that all passwords and user names provided to it by ThinlineCreative 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 ThinlineCreative immediately;
5.1.7 ensure that all communication details which it provides to ThinlineCreative are at all times true, current, accurate and complete. The Client will promptly notify ThinlineCreative of any change to such details and acknowledges that ThinlineCreative will not be liable for any loss suffered or incurred by the Client as a result of its failure to notify such changes to ThinlineCreative; and
5.1.8 ensure that its systems (including the Client System) meet any minimum system specifications notified to the Client from time to time.
5.1.9 promptly provide to ThinlineCreative such information and assistance as they may reasonably require in order to be able to carry out the Services.
5.1.10 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 ThinlineCreative to be able legally to provide the Services to the Client.
5.1.11 complete its own checks to ensure that any registration or renewal has been made successfully.
5.2 The Client aggrees that it shall not:
5.2.1 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)
5.2.2 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 ThinlineCreative may harm ThinlineCreative or any of its Associated Companies or clients or bring ThinlineCreative into disrepute or which calls into question any action taken by ThinlineCreative on the Client’s behalf;
5.2.3 use the Services, Ancillary Systems and/or Client System or allow them to be used in breach of good practices;
5.2.4 provide any technical or other information obtained from ThinlineCreative 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;
5.2.5 in breach of good practices, use any service provided by any third party for the publication, linking to, issue or display of any material which refers to an internet web site hosted by ThinlineCreative or any other products or services offered by ThinlineCreative from time to time without ThinlineCreative’s prior consent;
5.2.6 use any part of the ThinlineCreative premises except as is reasonably necessary to inspect and maintain any co-located server hosted as part of the Services and the Client shall ensure that such server is kept in good condition and is in its original condition upon the termination of such hosting;
5.2.7 whilst present at any ThinlineCreative premises, do anything which may be dangerous or a nuisance or inconvenience or to disturb, threaten or abuse any ThinlineCreative personnel or other ThinlineCreative clients and the Client shall abide by all health and safety and other policies as ThinlineCreative may notify to the Client from time to time in relation to any such premises.
5.3 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. The Client acknowledges that ThinlineCreative shall have no obligation to:
5.3.1 train the Client on its use of the Services or any Ancillary System;
5.3.2 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
5.3.3 validate or vet such material for usability, legality, content or correctness.
5.4 If, in ThinlineCreative’s opinion, the Client is in breach of any of the provisions contained in clause 5.2 then ThinlineCreative may without prejudice to its other rights and remedies immediately by written notice to the Client:
5.4.1 suspend provision of the Services;
5.4.2 terminate the Agreement; or
5.4.3 amend or remove any Client Materials and/or content appearing on any website or other system hosted by ThinlineCreative on behalf of the Client (including any Client System or Ancillary System).
ThinlineCreative may also notify appropriate public authorities (governmental or otherwise including the police or other enforcement authority) of any such breach, where it deems necessary.
6 Payment Terms
6.1 The Fees are payable to ThinlineCreative subject to the following conditions:
6.1.1 Fees payable will be paid in advance and will not be refundable in whole or part if the Agreement or any relevant part is terminated during the period to which the payment relates. Clients will automatically be charged again at the end of their prepay period unless the Client has followed the procedure as per clause 12.1.1;
6.1.2 any set up fee will (unless stated to be included within later payments) be payable within 30 days;
6.1.3 additional Fees will become payable if the Client exceeds agreed or stipulated bandwidth use levels. In the event that the Client exceeds the agreed or stipulated bandwidth an additional invoice will be produced and sent to the client which must be paid within thirty (30) days.
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 ThinlineCreative 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 ThinlineCreative’s invoices within 30 days of invoice due date.
6.5 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 5% above the base lending rate from time to time of Lloyds Bank plc accruing on a daily basis until payment is made whether before or after any judgment.
6.6 All Accounts that have any unsettled invoices 60 days after their due date will be suspended. If a further invoice falls due during the suspension of the Client’s account then this will be added to outstanding balance owed by the Client.
6.7 All accounts that have any unsettled invoices 30 days after the due date may be passed onto a Debt Recovery Agency, where additional recovery charges and court cost may accrue.
6.8 All sums payable to ThinlineCreative under the Agreement must be paid in full with no set off or deduction.
6.9 ThinlineCreative 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. ThinlineCreative may also make enquiries about the principle directors/proprietors of the Client with a credit reference agency.
6.10 Where the Client authorises payment of any of the Fees by credit card then ThinlineCreative may deduct other amounts becoming payable to it under the Agreement under that credit card without obtaining additional authorisation from the Client.
6.11 Without prejudice to any other of its rights and remedies, ThinlineCreative 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. ThinlineCreative is not required to back up such data or return the same to the Client prior to any such removal or following termination of any 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:
7.2.2 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 ThinlineCreative sending to the Client by whatever means the Company deems appropriate (whether by email or otherwise) information concerning new products and other services that ThinlineCreative 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 any rights under this Agreement in any Intellectual Property in or relating to the Services or created in performing the Services and that it will have no other rights in or to the Services other than the rights expressly granted by the Agreement.
8.1.1 the provision by ThinlineCreative of Services making use of information or specifications supplied by the Client;
8.1.2 the Client’s failure to procure all necessary rights from third parties which are from time to time required in order for ThinlineCreative to be able legally to provide the Services; or
8.1.3 the use by ThinlineCreative in connection with the Agreement of the Client System and the Client Materials.
8.1.4 No Intellectual Property Rights created or acquired by ThinlineCreative will transfer or be assigned to the Client unless ThinlineCreative and the Client have signed a written assignment document to that effect.
8.1.5 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.
9.1 The provisions of this clause 9 and the provisions of clauses 4 and 24 set out the entire liability of ThinlineCreative (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 ThinlineCreative for death or personal injury caused by the negligence of ThinlineCreative, 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 ThinlineCreative 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:
9.4 £500 per breach for loss of or damage to tangible property; and
9.5 for any other kind of loss, one and a quarter times the amount of sums paid by the Client to ThinlineCreative pursuant to the Agreement (excluding VAT and expenses) during the preceding 12 month period.
9.6 ThinlineCreative 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 revenue, loss of contract, loss of goodwill or otherwise (whether direct or indirect), and whether or not caused by the negligence of ThinlineCreative.
9.7 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 ThinlineCreative how or for what purposes they are used.
9.8 Where the Client accesses ThinlineCreative’s services from locations outside the UK, the Client does so, on the Client’s own initiative and is responsible for compliance with local laws.
10 Client Indemnity
The Client will fully indemnify and keep ThinlineCreative 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 ThinlineCreative or the Client, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes, 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 ThinlineCreative:
12.1 ThinlineCreative 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 ThinlineCreative following completion of ThinlineCreative’s prescribed procedures for terminating the whole or any part of the Agreement.
12.1.2 ThinlineCreative serving 30 days’ written notice on the Client to expire at any time after the Initial Period
12.2 ThinlineCreative may immediately terminate the Agreement (or at its option, any part of it) by notice in writing or email to the Client if the Client fails to pay to ThinlineCreative any sum due under the Agreement after 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 or threatened to cease to trade.
12.4 Clients that have purchased the Services as Consumers have the right to cancel the Agreement within 7 days at no additional cost from either (a) the date the contract is formed; or (b) the date that the Client receives confirmation that the contract is formed from ThinlineCreative or whichever is the later. For the purposes of this clause, the date the contract is formed shall be the date that the Client presses the “Order” button thereby granting consent that the Service commences.
12.4.1 The Client can exercise its right to cancel by contacting [email protected]
12.4.2 The Client will no longer have the right detailed in clause 12.4 when, ThinlineCreative has commenced the Service with the Client’s consent.
12.4.3 If you do not wish to waive these rights, then ThinlineCreative will be unable to commence the Service until the end of the relevant cooling off period which is 7 days.
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 ThinlineCreative will without notice remove the Client’s data from its systems and any Equipment following termination. For the purposes of this clause, the date of termination will be 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 ThinlineCreative that this has been done;
13.4.3 return to ThinlineCreative any other materials and equipment owned by ThinlineCreative.
13.4.4 pay all outstanding invoices raised by ThinlineCreative pursuant to the Agreement.
13.5 Where following termination, ThinlineCreative 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.
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.
15.1 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 consent of ThinlineCreative. Any consent provided by ThinlineCreative 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. ThinlineCreative may sub-contract or assign any or all of its rights and obligations under the Agreement.
No variation or amendment to the Agreement is effective unless agreed and signed by an ThinlineCreative.
Any notice to be given or made by either party under or in connection with the Agreement must be given or made to the 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. ThinlineCreative 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 Confirmation(s) or, in the case of a Client for whom ThinlineCreative has registered a domain name, to [email protected][registered domain name], and in such a case the email will be deemed sent once transmitted from ThinlineCreative’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.
PART 2 – SUPPORT SERVICES
26 Provision of Support Services
26.1 ThinlineCreative 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.
26.2 ThinlineCreative will only be obliged to provide the Support Services during Support Hours as detailed ThinlineCreative in client specific contracts.
26.3 The obligation of ThinlineCreative to provide Support Services will not extend to:
26.3.1 rectification of lost or corrupted data except where such loss is as of a direct result of a ThinlineCreative server crash;
26.3.2 Ancillary Systems altered modified or varied by other than ThinlineCreative;
26.3.3 attendance to faults arising from the Client’s failure to comply with ThinlineCreative’s instructions with regard to the use of the Services or any documentation or manuals provided by ThinlineCreative, or operator error or omission; or
26.3.4 attendance to faults attributable to the use or interaction of an Ancillary System with other software or systems with which are not compatible.
26.3.5 ThinlineCreative will charge its standard charge out rates (as detailed in any relevant SLA) in addition to the Fees for the carrying out any remedial work described in clauses 26.3.1 to 26.
26.4 ThinlineCreative will use its reasonable endeavours to provide the Support Services in accordance with any applicable SLA.
26.5 Scope of Support Services
ThinlineCreative assist the Client in relation to the Client’s use of the Services and the identification and correction of Defects. Assistance may be requested by the Client and provided by ThinlineCreative, by telephone, e-mail system provided by ThinlineCreative. The service will be obtained by telephoning, e-mailing such numbers or addresses, as are notified by ThinlineCreative from time to time.
26.6 If a Defect occurs, the following procedure will be followed:
26.6.1 the Client will notify ThinlineCreative of the Defect and provide such information and assistance as ThinlineCreative reasonably requires in connection with such Defect; and
26.6.2 ThinlineCreative 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 26.6.
PART 3 – DOMAIN SERVICES
27 Service Provision
27.1 ThinlineCreative will provide the Domain Services to the Client upon the terms and conditions set out in this Parts 1, 3 and 4 of these Conditions.
27.2 The Client undertakes and warrants to ThinlineCreative that the registration of any domain name requested by it (a “Requested Domain”):
27.2.1 and the manner in which it is to be directly or indirectly used will not infringe any third party rights; and
27.2.2 is not being made in bad faith or could be considered to be an abusive registration under the ICANN or Nominet dispute resolution policies, whichever is appropriate.
The Client also confirms and warrants that any Requested Domain is not being registered and will at no time whatsoever be used for any unlawful purpose.
27.3 The Client acknowledges that, whilst ThinlineCreative will use its reasonable endeavours to register a Requested Domain, ThinlineCreative will not be obliged to accept any request to register or continue to process any registration of a Requested Domain.
27.4 The Domain Services are limited to forwarding the application for registration to the relevant naming authority, providing reasonable administration services in relation to the application and notifying the result of the application to the Client within a reasonable period after communication from the authority. ThinlineCreative will use reasonable endeavours to notify the Client of any renewal dates however ThinlineCreative accepts no liability for the loss of registration of any Requested Domain.
27.5 ThinlineCreative makes no representations or warranties (expressed or implied) of any kind (and they are expressly disclaimed) with respect to availability or likelihood of registration of any Requested Domain. The Client acknowledges that ThinlineCreative cannot guarantee the reservation or registration of any Requested Domain and that the registration of such domain name will be subject to any registration requirements of the appropriate registry.
27.6 The Client will check that the domain name as reported on all documents sent to the Client (such as invoices and e-mail notifications) is spelt correctly. The Client will notify ThinlineCreative of any incorrect spellings of a Requested Domain promptly and in any event within 24 hours of receiving such document.
27.7 The Client will at all times comply with the terms and conditions applying to the registration of domain names published by the relevant naming authority and any other authority having similar force.
27.8 If the Client wishes to transfer ownership of a Requested Domain then it will procure that all necessary consents to that transfer are obtained and will deliver up to ThinlineCreative, on demand, documentary evidence of that all such consents have been obtained. The Client agrees that prior to transferring ownership of a Requested Domain to another person (the “Transferee”) the Client will procure that the Transferee agrees in writing to be bound by the terms of the Agreement. A Requested Domain will not be transferred until ThinlineCreative receives such written assurances as it requires that the Transferee is bound by the terms of the Agreement.
27.9 ThinlineCreative will not transfer ownership of a Requested Domain until all Fees attributable to the Domain Services and transfer admin fee, which are due have been paid by the Client to ThinlineCreative.
27.10 ThinlineCreative may from time to time change the registrar that a Requested Domain is held with, at its discretion and without notice to the Client.
27.11 The Client agrees and acknowledges that ThinlineCreative will make registration information provided by the Client in relation to the Requested Domain available to ICANN, Nominet or any other appropriate registration authority, the registry administrators, and other third parties as applicable laws may require or permit including the police or other enforcement authority. The Client further acknowledges that ThinlineCreative and or our service providers may make publicly available, or directly available to third party vendors, some, or all, of the domain name registration information provided, for purposes of inspection (such as through the WHOIS service) or other purposes as required or permitted by ICANN, Nominet and applicable law. The Client consents to any and all such disclosures, whether during or after the term of registration of the Requested Domain. The Client irrevocably waives any and all claims and causes of action arising from such disclosure or use of the domain name registration information by ThinlineCreative or suppliers.
27.12 The Client agrees that following any upgrades, downgrades or any other changes made by the Client to their Domain or Hosting package the Client will at all times independently check functionality and manage their Domain(s)