General Terms & Conditions
Last updated: 20th August 2018
Note: All of our Services are covered by the General Terms & Conditions below; in addition please refer to the service specific terms and conditions (“Relevant Product Terms”) as appropriate.
1 GENERAL PROVISIONS
These Conditions set out the terms under which Scholar Web Services will provide Services to the Client (as such terms are defined below). Scholar Web Services reserves the right to change, add, subtract or in way alter these Conditions without the prior consent of the Client. By logging into Your account and/or updating files and/or accessing Services provided by Scholar Web Services, You are deemed to have accepted these Conditions.
This Agreement is made up of the following documents. If there are any conflicts or inconsistencies between such documents, to the extent of any conflict or inconsistency only, the following order or priority shall be given:
1.1 Service Schedule (as the case may be)
1.2 Relevant Product Terms or the Managed Service Terms (as the case may be)
1.3 General Terms & Conditions
Nothing in these Conditions shall create a partnership or agency between the parties.
If a dispute arises between the parties in relation to the Agreement in any way, the parties shall first try in good faith to amicably resolve the dispute within 28 days of the dispute arising.
The term “Scholar Web Services” or “We/Us/Our” refers to Scholar Web Services Limited, a limited company registered in England and Wales with registered number 09045808 and whose registered office is Basepoint Business Centre, Office 29, Aviation Park West, Hurn, Christchurch, Dorset BH23 6NX.
“Agreement”: the agreement between Scholar Web Services and the Client for the provision of Services formed by these Conditions and the Order Confirmation(s) and/or Service Schedule.
“Activation”: occurs when the relevant Service is available for use by the Client.
“Ancillary Systems”: any Software and/or Equipment.
“Associated Company”: in respect of either party, a subsidiary or holding company of that party or any subsidiary of such holding company and the terms “subsidiary” and “holding company” will have the meanings given to them by sections 736 and 736A Companies Act 1985.
“Business Day”: a day which is not a Saturday or Sunday or public or bank holiday in England and Wales.
“Business Hours”: 9am to 5.30pm on each Business Day.
“Client” or “You/Yours”: the customer, as identified on the Service Schedule and/or Order Confirmation(s) and/or invoice.
“Client System”: the Client’s computer system upon which the Software is loaded or otherwise in connection with which the Services are provided.
“Client Portal”: shall mean the web site at https://portal.scholarwebservices.com
“Colocation”: the act of situating multiple related items, with multiple owners, in a single location.
“Colocated Equipment”: refers to switches, servers, cabling and other assets owned or supplied by or for the Client and housed at one of Scholar Web Service’s data centres or third party data centres.
“Conditions”: these conditions to be read in conjunction with the Order Confirmation(s) and/or Service Schedule and any Relevant Product Terms or Managed Service Terms
“Data Centre”: means the data centre(s) designated by Scholar Web Services for this Agreement.
“Equipment”: any hardware, cabling and/or other equipment provided to the Client by Scholar Web Services in connection with the Agreement.
“Fees”: the charges due to Scholar Web Services under the Agreement in relation to the Services, as set out on the Service Schedule and/or Order Confirmation(s) and/or invoice(s).
“Netiquette”: generally accepted standards and codes of practice for use of the Internet including but not limited to sending bulk unsolicited email, mail bombing or impersonating another person, organisation or website.
“Order Confirmation”: the order confirmation form(s) and/or invoice(s) submitted by Scholar Web Services to the Client by email or otherwise in writing for the provision of the Services, in response to the Client’s order or request.
“Service”: those development, implementation, consultancy, hosting and other services (if any) provided to the Client pursuant to the Agreement, as described on a relevant Service Schedule/Order Confirmation/Invoice, together with any Support Services and Domain Services.
“Managed Service Terms”: Scholar Web Services terms and conditions in place in relation to Scholar Web Services’ Managed Services (as detailed therein) from time to time.
“Service Schedule”: the Scholar Web Services schedule form submitted by Scholar Web Services to the Client by email or otherwise in writing detailing the payment schedule and particulars for the provision of the Services.
“Scheduled Maintenance”: means any work or maintenance performed on the Scholar Web Services’ Ancillary Systems or Client System from time to time which shall be notified to the Client at least 72 hours (unless otherwise agreed between Scholar Web Services and the Client) in advance of the commencement of such maintenance.
“Emergency Maintenance”: means any emergency work or maintenance for continued or optimum provision or protection of service performed on the Scholar Web Services’ Ancillary Systems or Client System whether or not pre-notified. Scholar Web Services shall endeavour to give the Client reasonable notice of such emergency work or maintenance but this may not always be possible.
“Third-party Scheduled Maintenance”: means any work or maintenance performed by a third party including but not limited to third party supplier or affiliates from time to time whether or not pre-notified. Scholar Web Services shall endeavour to give the Client reasonable notice of such work or maintenance but this may not always be possible.
“Domain Services”: those domain registration and other related services (if any) provided to the Client by Scholar Web Services pursuant to the Agreement, as described on a relevant Order Confirmation.
“Internet”: shall mean the worldwide collection of private and public router-based networks that are interconnected via gateways and exchange points, and which all utilise the TCP/IP protocol suite.
“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.
“CDR”: means Committed Data Rate which is the minimum amount of IP Transit that the Client is committed to during the Minimum Term or any Subsequent Term.
“IP Transit”: means the act of passing IP traffic from one location to another via a layer 2 or layer 3 connection as measured in Mbps and/or volume of Gigabytes.
“Minimum Term”: shall mean the minimum period of twelve months during which the Client must pay for the relevant Service. In all cases the relevant Notice must be given in writing.
“Subsequent Term”: shall mean the extension of the minimum term during which the Client must pay for the relevant Service. The Subsequent Term shall commence in conjunction with the conclusion of the Minimum Term or any active Subsequent Term. Where no Subsequent Term is explicitly stated, the subsequent term shall mean 90 days. In all cases the relevant Notice must be given in writing.
“Notice”: shall mean 30 days written notice to cancel the relevant Service. Notice must not be considered as received by Scholar Web Services unless the Client has received acknowledgement by post or email.
“Software”: any communications or other software provided to or made available to the Client by Scholar Web Services in connection with the Agreement.
“Remote Hands”: remote support assistance for Colocated Equipment or Ancillary Systems provided by Scholar Web Services to the Client.
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 The expression “person” means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.
2.3 The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.
3 SERVICE PROVISION
3.1 Scholar Web Services reserves the right at any time and from time to time improve, correct or otherwise modify all or any of the Services (including substituting Software and/or Equipment). Scholar Web Services will endeavour to give the Client reasonable notice of any such modification, where this is reasonably practicable.
3.2 Scholar Web Services will use its reasonable endeavours to provide the Services in accordance with any timescale set out on the Service Schedule and/or 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 Scholar Web Services 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 Scholar Web Services will not be obliged to provide any services not referred to on the Order Confirmation(s)/Invoices and/or Service Schedule. Furthermore, Scholar Web Services cannot provide the Services where the Client makes use of incompatible communication systems.
3.5 For the avoidance of doubt, all services exclude:
3.5.1 backup of any data stored on the Scholar Web Services servers, Ancillary Systems and Client System(s).
3.6 Without prejudice to its other rights and remedies, Scholar Web Services 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:
3.6.1 any Scheduled Maintenance, Emergency Maintenance or Third-party Scheduled Maintenance;
3.6.2 issue by any competent authority of an order which is binding on Scholar Web Services which affects the Services;
3.6.3 if the Client fails to pay any Fees or any other sums owing to Scholar Web Services by the Client when they fall due;
3.6.4 if an event occurs and Scholar Web Services deem it to be appropriate to terminate the Agreement;
3.6.5 if the bandwidth (IP Transit) or computer resource (CPU, memory, disk space) used by the Client in relation to the Services exceeds any agreed or stipulated level and Scholar Web Services determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by Scholar Web Services from time to time;
3.7 Scholar Web Services reserves the right to charge the Client additional fees should the bandwidth (IP Transit) or CDR or computer resource (CPU, memory, disk space) used in relation to the Services exceed the stipulated amount on the Order Confirmation(s) and/or Service Schedule.
3.8 Scholar Web Services will, upon arrangement and provided that no Fees are due and payable, allow the Client reasonable access to any Colocated Equipment hosted by Scholar Web Services as part of the Services. Access will only be granted to the Client if Scholar Web Services is given at least 1 Business Days’ notice in writing that access is required and acceptance of that request has been confirmed in writing to the Client by Scholar Web Services.
3.9 The terms of the Agreement and the documents referred to in it form the entire agreement between Scholar Web Services and the Client in relation to the Services and all other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law. The Client may not rely upon any representation made or given by any employee of Scholar Web Services prior to the Agreement being entered into unless confirmed in the Agreement.
4 SERVICE DELIVERY
4.1 The Client acknowledges that, given the nature of such services, Scholar Web Services cannot guarantee that the Services, when delivered via the Internet, will be uninterrupted or error free. It is technically impracticable for Scholar Web Services to provide a 100% fault-free Service and Scholar Web Services does not warrant or undertake to do so.
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 Scholar Web Services 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, Scholar Web Services 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.
4.3 Where the Client accesses Scholar Web Services’ services from locations outside the UK, the Client does so, on the Client’s own initiative and is responsible for compliance with local laws.
4.4 Where Scholar Web Services provides the Client with goods or services from Amazon Web Services (AWS), all such goods and services are supplied exclusively and subject to and in accordance with the terms and conditions of AWS in place from time to time, which the Client agrees to comply with (current details of which are detailed at www.aws.amazon.com/legal (“AWS Terms”)).
4.5 Scholar Web Services warrants that it will provide the Services with reasonable care and skill and in accordance with any SLA. Scholar Web Services will not be liable for a breach of such warranty unless the Client notifies Scholar Web Services in writing of such failure within 14 days of the failure.
4.6 If the Client makes a valid claim against Scholar Web Services based on a failure by Scholar Web Services to comply with the warranty set out in clause 4.5 Scholar Web Services 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 Scholar Web Services under such warranty will in no event exceed one times the amount of the Fees paid to Scholar Web Services by the Client (excluding VAT and expenses) in the 12 month period prior to the date on which the Client makes the claim. If Scholar Web Services complies with this clause, it will have no further liability for a breach of the said warranty.
5 REMOTE HANDS
5.1 Scholar Web Services reserves the right to charge the Client £150+VAT per hour for Remote Hands support.
6 CLIENT’S OBLIGATIONS
6.1 The Client agrees that it shall:
6.1.1 save as provided in any Order Confirmation and/or Invoice and/or Service Schedule, be responsible for keeping regular and full back ups of all material and data hosted by Scholar Web Services including any web site, email system, spam filtering system or other system operated by the Client on a daily basis (or more frequent basis if required by best computing practice) including the Client System and/or Ancillary Systems. For the avoidance of any doubt Scholar Web Services 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 Scholar Web Services server crash.
6.1.2 immediately notify Scholar Web Services on becoming aware of any unauthorised use of all or any of the Services and/or relevant part of the Client System;
6.1.3 complete its own checks to ensure that any registration or renewal has been made successfully.
6.1.4 complete its own checks to ensure that any backups on Scholar Web Services Cloud Backup service have been completed successfully.
6.1.5 ensure that all communication details which it provides to Scholar Web Services are at all times true, current, accurate and complete. The Client will promptly notify Scholar Web Services of any change to such details and acknowledges that Scholar Web Services will not be liable for any loss suffered or incurred by the Client as a result of its failure to notify such changes to Scholar Web Services. Clients are advised that a failure to at all times have true, accurate and complete communication details may result in the temporary suspension of a Client’s account;
6.1.6 independently monitor its bandwidth in relation to the use of Services and report to Scholar Web Services any use of bandwidth over and above those agreed or stipulated levels set out in the Order Confirmation and/or Service Schedule;
6.1.7 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 Scholar Web Services shall not be liable for any loss of confidentiality or for any damages arising from the Client’s inability to comply with these Conditions;
6.1.8 comply with any security policy notified to it from time to time by Scholar Web Services and, in particular, ensure that all passwords and user names provided to it by Scholar Web Services 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 Scholar Web Services immediately;
6.1.9 promptly provide to Scholar Web Services and/or its consultants, employees and agents such information and assistance as they may reasonably require in order to be able to carry out the Services and, where relevant, deliver and install any Ancillary Systems.
6.1.10 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 Scholar Web Services to be able legally to provide the Services to the Client.
6.1.11 obtain and maintain insurance over all parts of the Client System and/or Colocated Equipment which are located on the premises of Scholar Web Services or any of its Data Centres and to provide evidence that such insurance is in place, upon Scholar Web Services’s demand.
6.1.12 procure all necessary rights from third parties which are from time to time required in order for Scholar Web Services to be able legally to provide the Services.
6.1.13 ensure that its systems (including the Client System) meet any minimum system specifications notified to the Client from time to time.
6.2 The Client acknowledges and understands that it is required to comply with PCI DSS. The Client is responsible to encrypt sensitive data using appropriate methods. For further details on PCI DSS Compliance and the Client’s responsibilities in upholding the standard they need to contact the PCI Security Standards Council (https://www.pcisecuritystandards.org).
6.3 The Client agrees that it shall not:
6.3.1 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) whether under English law or regulation, the laws or regulations of the Client’s country or any other place where the results of such purpose or the material in question can be accessed.
6.3.2 use the Services, Ancillary Systems and/or Client System or allow them to be used in breach of good Netiquette practices.
6.4 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.
6.5 No Intellectual Property Rights created or acquired by Scholar Web Services will transfer or be assigned to the Client unless Scholar Web Services and the Client have signed a written assignment document to that effect.
7 DELIVERY AND COLLECTION
7.1 The Client accepts full responsibility for the delivery and collection of Colocated Equipment to the Data Centre, and shall ensure that it reaches the Data Centre in working conditions. Scholar Web Services does not accept any liability for any loss or damage caused in transit to and from the Data Centre or on the installation of the Colocated Equipment by or for the Client. When the Colocated Equipment is delivered, the package it is delivered in must be removed from the Data Centre by the Client. The Client shall not be entitled to collect their Colocated Equipment for maintenance or otherwise unless all unpaid fees for the Services are paid in full prior to such collection.
7.2 The Client accepts;
7.2.1 Where all the Services are terminated, Scholar Web Services will arrange for the Colocated Equipment to be stored without charge for 7 days. If the Colocated Equipment is stored beyond this period, there will be a storage charge of £50+VAT per week per item of equipment. Scholar Web Services reserves the right to exercise a lien over the Colocated Equipment is respect of any unpaid fees. It shall also be entitled, without any liability to the Client, but not obliged, to sell the Colocated Equipment if it is not collected after 3 days from the termination date in order to recoup any unpaid fees and costs of sale.
7.2.2 Upon termination of a Colocation Service, the Client shall ensure that the Colocation Space is completely vacated and returned to Scholar Web Services in the physical and aesthetic condition that the Colocation space was originally provided to the Client prior to the commencement of the Colocation Services. The Client shall be solely responsible for all remedial work required to return the Colocation space to its original state, and to this respect, the Client indemnifies Scholar Web Services against any such costs incurred as a result of the Client, its employees or representatives. In such circumstance, Scholar Web Services shall provide a quotation and invoice to the Client for all reasonable direct costs incurred and the Client shall make immediate payment on the outstanding amount.
8 PAYMENT TERMS
8.1 The Fees are payable to Scholar Web Services subject to the following conditions:
8.1.1 Fees payable monthly, quarterly or yearly 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.
8.2 The Client agrees to pay Scholar Web Services’ invoices within 14 days of invoice date.
8.3 All Accounts that have any unsettled fees 14 days after their invoice due date will be suspended.
8.4 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 3.6.3) be liable to pay interest on any sum outstanding from the due date for payment at the annual rate of 7% above the base lending rate from time to time of Natwest Bank plc accruing on a daily basis until payment is made whether before or after any judgement.
8.5 Scholar Web Services only accepts payment by Direct Debit, standing order or electronic payment i.e. BACS. Scholar Web Services may at its discretion only restrict the methods by which it will accept payment.
8.6 Prices stated or quoted by Scholar Web Services do not include VAT unless explicitly stated in writing.
8.7 Services invoiced monthly can only be paid via Direct Debit which has to be setup at the time of order.
8.8 If Scholar Web Services cannot collect a Direct Debit payment, because the Client has cancelled the instructions with the Client’s bank or there are insufficient funds in the Client’s account, a processing fee of £75+VAT will be applied to the outstanding balance.
8.9 Scholar Web Services reserves the right to immediately suspend all Services on the Client’s account should the Client’s Direct Debit fail for any reason outside Scholar Web Services’ control.
8.10 Without prejudice to any other of its rights and remedies, Scholar Web Services 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 28 days of its due date for payment. Scholar Web Services is not required to back up such data or return the same to the Client prior to any such removal or following termination of the Agreement.
8.11 All accounts that have any unsettled invoices 28 days after the due date will be passed onto a Debt Recovery Agency, where additional recovery charges and court cost may accrue.
9.1 In this clause “RPI” is defined as Retail Prices Index published by the Office of National Statistics or any successor body. Scholar Web Services reserves the right to apply annual price increases at any time during the contract duration, but no more than once a year, at the level of RPI plus five per cent giving not less than 30 days notice to the Client.
10 UTILITY COSTS
10.1 The Client and Scholar Web Services acknowledge that wholesale utility costs of the Data Centre Facilities can vary, and Scholar Web Services reserves the right to make annual adjustments in respect of the cost of the Services in line with utility cost fluctuations. However, should utility cost fluctuate more than 5% from the most recent adjustment under this clause or if none then the start of the relevant Service Schedule, Scholar Web Services may make an adjustment provided the frequency of this adjustment does not exceed once a quarter.
11 COMMENCEMENT AND TERM
11.1 Following activation, the Service shall continue to be provided for a period equal to the Minimum Term. If the Client cancels this Agreement during the Minimum Term they will be charged for the remainder of the Minimum Term. If the Client cancels this Agreement during the Subsequent Term they will be charged for the remainder of the Subsequent Term.
11.2 Unless otherwise stated in the Relevant Product Terms or Managed Service Terms cancellation requires 30 days prior written notice unless otherwise stated on the Service Schedule
11.2.1 Termination notification by the Client must be made in writing to Scholar Web Services Web Services to the following address:
Scholar Web Services Limited
Basepoint Business Centre
Aviation Park West
Or by email to;
11.2.2 Any notification of termination by the Client must be authorised by the contact on the order or a staff member with suitable authority and must specify the Service Schedule reference of the Service and the date on which Service is to be terminated.
11.2.3 Termination notification by Scholar Web Services to the Client will be made by email to the contact stated on the Services Schedule and/or Order Confirmation by the Client’s Account Manager or a member of the Accounts Department. The Client must not assume that Scholar Web Services has received notice of Termination unless Scholar Web Services has confirmed this in writing, or the Client has used registered post. Proof of postage is not taken as proof of delivery.
11.3 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:
11.3.1 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;
11.3.2 becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986;
11.3.3 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
11.3.4 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
11.3.5 has ceased or threatened to cease to trade.
11.4 Upon termination of the Agreement, the Client will forthwith:
11.4.1 cease to use the Software, Equipment and Services;
11.4.2 erase the Software from the Client System and certify to Scholar Web Services that this has been done;
11.4.3 return to Scholar Web Services any hardware or other equipment loaned to the Client in connection with the Services or any other materials and equipment owned by Scholar Web Services; and
11.4.4 pay all outstanding invoices and Fees raised by Scholar Web Services pursuant to the Agreement.
12. DATA PROTECTION, CLIENT DATA AND WARRANTIES
12.1 In performing its obligations under the Agreement, Scholar Web Services shall comply with:
12.1.1 up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998; and
12.1.2 any privacy and/or data protection notice issued by it from time to time.
12.2 Subject always to clause 12.1:
12.2.1 Scholar Web Services does not warrant the integrity of the data that is provided by the Client in connection with the Services (“Client Data”).
12.2.2 The Client accepts that Scholar Web Services has no control over the way in which any third party (other than its employees, agents and subcontracts) treat Client Data including but not limited to the way in which it shall be stored and whether it is free from corruption, received, transferred or accessible to the Client or inaccessible by third parties. The Client shall not hold Scholar Web Services responsible for the actions or omissions of such third parties.
12.2.3 The Client accepts full responsibility and liability in relation to the Client Data and shall defend and hold harmless Scholar Web Services against any actions arising against Scholar Web Services as a result of the use of the Scholar Web Services’ Services, Ancillary Systems and/or Client system(s), save to the extent that this is caused by any breach by Service Web Scholar of its obligations under the Agreement. The Client shall ensure at all times that it has adequate copies and backups stored independently of Scholar Web Services Ancillary Systems.
12.2.4 Scholar Web Services does not monitor Client Data movement or the content of such data. To this extent Scholar Web Services is a mere conduit and all responsibility in relation to the use of Services, Ancillary systems and/or Client System(s) resides solely with the Client (including without limitation software licensing, data licensing, integrity, content, dissemination, format, backups schedules and transfers).
12.3 The Client shall comply with any privacy and/or data protection notice provided to it by Scholar Web Services from time to time.
13 SOFTWARE AND LICENSING
13.1 Scholar Web Services may provide software licences to the Client as a part of the provision of Services. The Client agrees that it shall not copy or redistribute any Software Scholar Web Services provides to the Client, unless expressly permitted by this Agreement or use such Software after the expiration or termination of the Agreement. You may not remove, modify or obscure any copyright, trade mark, or other proprietary rights notices that appear on any Software Scholar Web Services provides to the Client. Unless permitted by the terms of an open source Software licence, you may not reverse engineer, decompile or disassemble any Software Scholar Web Services provides to the Client except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to Scholar Web Services.
13.2 If the Client uses any non-Scholar Web Services provided Software on the Client System and/or Ancillary Systems, the Client represents and warrants to Scholar Web Services that the Client has the legal right to use the Software in that manner.
13.3 Whereby the Client installs software as a part of the provision of Services or whereby Scholar Web Services installs software under instruction from and/or on behalf of the Client as a part of the provision of Services, the Client agrees that they are solely responsible for ensuring licensing compliance under the terms of the Software vendors licensing agreement for the Software. Whereby the Client does not comply with those licensing agreements and permitted usage, Scholar Web Services reserves the right to pass on all costs relating to non-compliant use of the Software and/or license.
13.4 Scholar Web Services may perform audits of the Clients Software license usage from time to time providing the Client with reasonable notice of such audit where reasonably practicable.
13.5 The Client acknowledges that: Software in general is not error-free, and agrees that the existence of such errors will not constitute a breach of the Agreement.
14 IP ADDRESSES
14.1 Scholar Web Services may assign to the Client IP addresses as part of the provision of Services. Such IP addresses shall (upon Scholar Web Services request and to the extent permitted by law) revert to Scholar Web Services after termination of the Clients Services, whereupon the Client shall cease using such addresses. At any time after such termination, Scholar Web Services may re-assign such addresses to another user or Client.
14.2 All IP addresses requested by the Client shall be accompanied with a RIPE IP justification form as provided by Scholar Web Services from time to time.
14.3 In the event that the Client wishes to use their own PI (Provider Independent) space, the Client shall advise Scholar Web Services in writing. If the Client utilises its own PI space, it shall retain ownership of the PI space until such point where it is surrendered by the Client.
15 DOMAIN SERVICES
15.1 The Client undertakes and warrants to Scholar Web Services that the registration of any domain name requested by it (a “Requested Domain”):
15.1.1 and the manner in which it is to be directly or indirectly used will not infringe any third party rights; and
15.1.2 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.
15.2 The Client acknowledges that, whilst Scholar Web Services will use its reasonable endeavours to register a Requested Domain, Scholar Web Services will not be obliged to accept any request to register or continue to process any registration of a Requested Domain.
15.3 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. Scholar Web Services will use reasonable endeavours to notify the Client of any renewal dates however Scholar Web Services accepts no liability for the loss of registration of any Requested Domain.
15.4 Scholar Web Services 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 Scholar Web Services 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.
15.5 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 Scholar Web Services of any incorrect spellings of a Requested Domain promptly and in any event within 24 hours of receiving such document.
15.6 The Client will at all times comply with the terms and conditions (from time to time subsisting) applying to the registration of domain names published by the relevant naming authority (including the domain dispute resolution policy of that authority) and any other authority having similar force.
15.7 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 Scholar Web Services, 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 Scholar Web Services receives such written assurances as it requires that the Transferee is bound by the terms of the Agreement.
15.8 Scholar Web Services will not transfer ownership of a Requested Domain until all Fees attributable to the Domain Services which are due have been paid by the Client to Scholar Web Services.
15.9 Scholar Web Services may from time to time change the registrar that a Requested Domain is held with, at its discretion and without notice to the Client.
15.10 The Client agrees and acknowledges that Scholar Web Services 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 Scholar Web Services 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 Scholar Web Services.
15.11 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 manage their Domain(s)
15.12 The Client may renew the Requested Domain by logging in to the Client Portal and paying the relevant renewal fee. If the Client does not renew the Requested Domain before its expiry date, the Client will have up to 30 days (“Protected Period”) to renew the Requested Domain at the original renewal fee shown on the domain renewal notice emails. After the 30 days Protected Period, the Requested Domain will be suspended. Once the Requested Domain has been suspended, a 60 day “Grace Period” will commence upon which the Client can renew the Requested Domain (at no extra cost/but with an additional redemption fee of £75+VAT). If the Requested Domain is not renewed during the “Grace Period”, it will be cancelled and deleted from the register after 90 days from the expiry date and made available for resale through a third party registrar.
Domain names may be subject to additional terms and conditions as laid down by the respective governing bodies; where possible relevant links have been provided below:
- Registrant terms: www.nominet.org.uk/nominet-terms
- Domain dispute policy: www.nominet.org.uk/disputes/drs/policy/
- Further information can be found at www.nominet.org.uk
- Dispute resolution: http://www.eurid.eu/en/eu-domain-names/disputes
- Further information can be found at www.eurid.eu
.com, .net, .org, .info, .biz, .name, .cc, .tv, .cn, .be, .at, .es, .me
- Registrants Rights and Responsibilities (ICANN) http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm
.uk.com, .gb.com, .eu.com, .de.com, .jpn.com, .uk.net, .gb.net, .us.com, .qc.com, .web.com
- CentralNic terms and conditions: www.centralnic.com/support/terms/domains
- Further information can be found at www.centralnic.com
16 LIMITATION OF LIABILITY
16.1 Nothing in this agreement shall limit or exclude the Scholar Web Services liability for:
death or personal injury caused by its negligence;
fraud or fraudulent misrepresentation; or
any other liability which cannot be limited or excluded by applicable law.
16.2 Subject to clause 16.1, Scholar Web Services will not be liable to the Client in contract, tort, misrepresentation or otherwise (including negligence or breach of statutory duty), whether or not caused by the negligence of Scholar Web Services or its employees, agents or authorised representatives, which arises out of or in connection with the Agreement for:
loss of profit;
loss of business;
loss of revenue;
loss of agreements or contracts;
loss of anticipated savings;
loss of goodwill or otherwise (whether direct or indirect);
loss of data and/or corruption of data;
loss of software and/or other information; or
any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever;
16.3 Subject to clause 16.1, Scholar Web Services total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to one hundred per cent (100%) of the average annual fees paid for the Service by the Client (excluding VAT and expenses) during the preceding 12 month period.
17 CLIENT INDEMNITY
17.1 The Client will fully indemnify and keep Scholar Web Services its subsidiaries and affiliates, officers, partners, directors employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including legal fees) whatsoever incurred by it and arising from any of the following:
17.1.1 the Client’s breach of the Agreement, negligence or other default;
17.1.2 the operation or break down of any IT systems owned or used by the Client including the Client System but not the Equipment; or
17.1.3 the Client’s use or misuse of the Services.
18 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 Scholar Web Services or the Client, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.
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.
20.1 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.
20.2 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.
21 ASSIGNMENT AND SUBCONTRACTING
The Client may not assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to its Associated Company) without the prior written consent of Scholar Web Services. Any consent provided by Scholar Web Services 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. Scholar Web Services may sub-contract or assign any or all of its rights and obligations under the Agreement.
No variation or amendment to the Agreement (including any Order Confirmation or Service Schedule) is effective unless agreed in writing and signed by an authorised representative of Scholar Web Services.
This Agreement shall be governed by and construed exclusively in accordance with English law, and the parties hereby submit to the exclusive jurisdiction of the English courts.
The Client shall not at any time during the duration of the Agreement or for 6 months after the termination of the Agreement, solicit or entice away from Scholar Web Services or employ or attempt to employ any person who is an employee of Scholar Web Services. If the Client does at any time during the duration of the Agreement or for 6 months after the termination of the Agreement, solicit or entice away from Scholar Web Services or employ any person who is an employee of Scholar Web Services (including any key contractors related to or in connection with the Agreement) an immediate fee of £45k (forty five thousand pounds sterling) will be charged to to the Client followed by legal action.