AGREEMENT Terms and Conditions
These are the terms and conditions of the Agreement between Swift Image and the Subscriber:
1. DEFINITIONS
In this Agreement unless the context otherwise requires:
1.1 "Swift Image" means Christopher Marc Addams trading as Swift Image, with the
trading address at 9 Hilltop View, Meppershall, Shefford SG17 5QE.
1.2 "Subscriber” means the person(s) or company in Part 1 of the Application For
Service form.
1.3 "Service"(s) means provision of domain name(s), Website, hosting, email, e-commerce
and any other services provided by Swift Image to the Subscriber.
1.4 "Charges" means the prevailing Charges as published from time to time agreed
by the Subscribers’ acceptance of this agreement for the Services.
1.5 "Bandwidth" means the allocated transmission capacity, measured in bits per second,
of the network connection as specified in the Agreement;
1.6 "Data Transfer" means all traffic that passes through the Server including but
not exclusively web traffic, email, FTP transfers;
1.7 "Website" means the software provided by Swift Image at which Service is or is
to be provided under this Agreement;
1.8 "Internet" means the global data network comprising Internet connected networks
using TCP/IP (Transmission Control Protocol/Internet Protocol). Internet Standards
means the protocols and standards defined in the following Internet documents: RFC
1009, 1122, 1123 and 1250 and any future such protocols and standards;
1.9 “Forum” is an Internet message-board or chat-room which may be attached by hyperlink
(link) to the Website.
2. DOMAIN NAME
2.1 Swift Image makes no representation that the domain name that the Subscriber
wishes to register is able to be registered for the Subscriber or that it will be
registered in the Subscribers name.
2.2 The registration and use of the Subscribers domain name is subject to the Terms
and Conditions of use as applied by the Domain Registrar and the Subscriber accepts
that this is beyond the control of Swift Image. Swift Image will supply to the Subscriber
details of the Registrar and its Terms and Conditions on request.
2.3 Swift Image shall have no liability in respect of the use by the Subscriber of
any domain name.
2.4 Swift Image may suspend or cancel as deemed appropriate the Service and domain
name(s) unless full payment of all amounts due to Swift Image at that time has been
paid to Swift Image.
2.5 If payment is not received for any Service Swift Image may retain the user's
domain name for further sale and delete the Website.
3. SERVER HOSTING, FORUM and EMAIL
3.1. Swift Image makes no representation and gives no warranty as to the accuracy
or quality of information received by any person via the Website or Server and Swift
Image shall have no liability for any loss of or damage to any data stored on the
Server.
3.2. The Subscriber shall effect and maintain adequate insurance cover in respect
of any loss of or damage to data stored on the Server.
3.3 The Subscriber represents, undertakes and warrants to Swift Image that any access
to and use of the Service granted to the Subscriber will only be for lawful purposes
and without infringing the rights of any third party.
3.4 The Subscriber will not post, link to or transmit: any material which is unlawful,
threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous,
profane or otherwise objectionable in any way, nor any material containing a virus
or other hostile computer program, nor any material which constitutes, or encourages
the commission of, a criminal offence or which infringes any patent, trade mark,
design right, copyright or any other intellectual property right or similar rights
of any person which may subsist under the laws of any jurisdiction.
3.5 The Subscriber will not undertake or allow the sending of unsolicited email or
spam from an email address that is maintained on a Swift Image server.
3.6 The Subscriber shall keep secure any identification, password and other confidential
information relating to their account and shall notify Swift Image immediately of
any known or suspected unauthorised use of their account or breach of security, including
loss, theft or unauthorised disclosure of their password or other security information.
3.7 Whilst Swift Image will use every reasonable endeavour to ensure the integrity
and security of the Server, Swift Image does not guarantee that the Server will be
free from unauthorised users or hackers or from corruption by virus and Swift Image
shall be under no liability for non-receipt or misdirecting of email or for any other
failure of email or any other loss or damage
3.8 The Subscriber will be allocated 1GB of data storage space per domain name unless
otherwise stipulated by Swift Image. Additional Bandwidth usage will be charged at
current prevailing prices.
3.9 Should the Subscriber require a Forum to be linked to their Website, the Forum
may be provided by one of many providers and it is the Subscribers responsibility
to ensure that the Forum is run in accordance with the Terms and Conditions of the
Forum provider. Although many Forums are free-of-charge, should the Subscriber opt
for one that makes a charge, then the Subscriber agree to reimburse Swift Image for
any costs associated with the Forums’ provision.
4. SWIFT IMAGE SERVICE
4.1 Swift Image will use all reasonable endeavours to adhere to any dates proposed
by either Swift Image or the Subscriber for the provision of Service; however any
such date is to be treated as an estimate only and Swift Image accepts no liability
for failure to meet such dates.
4.2 Swift Image will use all reasonable endeavours to provide reliable Services;
however, it is not practicable to provide Service free of faults and Swift Image
does not undertake to do so. In the event of a fault in Service or part of the Service,
the Subscriber must report the fault by electronic mail to Swift Image's Technical
Support 'support@swiftimage.co.uk' or by telephone at the appropriate number that
Swift Image may from time to time provide. Upon receipt of the fault report, Swift
Image will take all proper steps without undue delay to correct the fault within
normal working hours 09:00 to 17:00 GMT Monday to Friday excluding public holidays.
Swift Image shall not, in any event, be liable for interruptions of Service or downtime
of a Server for any reason or be liable to refund any Charges for the Service.
4.3 Swift Image may temporarily suspend the Service for the purpose of repair, maintenance
or improvement, without notice. Swift Image undertakes to use reasonable endeavours
to restore Service as soon as practicable after any such suspension and shall not,
in any event, be liable for interruptions of Service or downtime of a Server for
any reason or be liable to refund any Charges for the Service.
4.4 Swift Image accepts no liability for any reason for the Subscriber's applications,
equipment, or facilities, acts or omissions of the Subscriber, or any use or user
of the Service authorised by the Subscriber or reasons of Force Majeure or other
circumstances beyond Swift Image's reasonable control (as defined in clause 10 of
these terms).
4.5 If the Bandwidth or speed of Service used by the Subscriber exceeds our current
quotas in a one month period the Subscriber will be advised by email of that exceeding
of quota and an excess charge will be payable by the Subscriber at current published
prices for that and any subsequent month where the quota is exceeded.
4.6 Ongoing Website maintenance, changes and additions are subject to “Limited Use”
or “Reasonable Use” as specified in the Application For Service form. Limited Use
shall be defined as the equivalent of 3 man hours programming time per annum. Reasonable
Use shall be defined as the equivalent of 12 man hours programming time per annum.
4.7 Swift Image is able to provide email accounts and email forwarding subject to
“Limited Use” or “Reasonable Use” as specified in the Application For Service form.
Limited Use shall be defined as the setting up of up to 15 email addresses. Reasonable
Use shall be defined as the setting up of up to 35 email addresses.
4.8 Services requested by the Subscriber which are in excess of either Limited Use
or Reasonable Use may be provided by Swift Image to the Subscriber and charges for
such additional shall be payable by the Subscriber to Swift Image within 30 days
of Invoice being sent to the Subscriber.
5. COMMENCEMENT and TERM
5.1 The Service shall be provided and shall commence from the date of this Agreement
which shall be specified on the Application For Service form. There is no minimum
term to this Agreement and the Subscriber is able to terminate the Agreement at any
time subject to clause 8.1 below. For the avoidance of doubt, the Service includes
the initial design phase where the website is in construction and does not appear
on the Internet.
6. CONTENT and MISUSE
6.1 The Subscriber will use all reasonable endeavours to ensure that the Swift Image
Service is used or includes content that conforms to the laws of this country and
will not knowingly permit any illegal use or such use that will bring Swift Image
into disrepute including any amendment of the text or images on the Website or Forum.
6.2 The Subscriber must not, nor must any other person, use the Service: to send
receive or publish on the Website or Forum any material which is offensive, abusive,
indecent, obscene, pornographic or menacing, or in breach of confidence, copyright,
privacy or any other rights, to cause annoyance, inconvenience or needless anxiety,
or in breach of any provisions as contained within clauses 3 and 4 of this Agreement.
Swift Image may discontinue Service immediately if any illegal or use that is prohibited
by these terms is found to have been carried out or permitted.
7. CHARGES and PAYMENT
7.1 All payments must be in UK Pounds Sterling. If a payment is returned by the bank
as unpaid for any reason, the Subscriber will be liable for an additional "returned
payment" charge of £10.
7.2 All Charges payable by the Subscriber for the Services shall be in accordance
with the scale of Charges and rates published from time to time by Swift Image and
shall be due and payable in advance of our Service provision.
7.3 Charges are exclusive of 'Value Added Tax' (VAT). Should Swift Image become VAT
registered, then Swift Image will notify the Subscriber of this occurrence and VAT
shall be paid additionally by the Subscriber at the rate prescribed by law.
7.3 Swift Image shall have the right to increase their Charges at any time subject
to 30 days prior notice to the Subscriber. The Subscriber shall be entitled to terminate
the Agreement by written notice to Swift Image given by within 30 days after the
notice of increase has been issued to the Subscriber and the Subscriber will remain
liable for all Charges (at the previous rate) up to the date the Agreement ends.
7.4 All Charges are payable in advance. If payment is not received on or before the
due date Swift Image reserves the right to immediately withdraw, suspend or limit
Service and will charge the User interest at the rate of 3% of the amount overdue
per month. There can be no refunds for non used periods of Website provision or hosting
for any reason and under any circumstances
7.5 Swift Image shall be entitled when applicable to issue an invoice for the Charges
at the appropriate times or as soon as is reasonably practicable. The invoice shall
be sent to the Subscriber via email.
8. TERMINATION OF SERVICE
8.1 The Subscriber may terminate this agreement by giving 30 days notice to Swift
Image at any time. The Subscriber shall pay all Charges up to the expiry of the notice.
8.2 Swift Image may terminate this agreement by giving 30 days notice to the Subscriber
at any time or for any reason.
8.3 No Charges will be refunded for any reason. No refunds will be given for payments
made that exceed the date of Termination.
8.4 Provided there are no Charges outstanding, the Subscribers Domain Name will be
transferred to the Subscriber upon request and in a manner determined by Swift Image
and any costs that may be incurred by Swift Image in connection with the transfer
must be paid by the Subscriber to Swift Image before any transfer is completed.
9. NOTICES
9.1 Any notice to be given by either party to the other may be sent by
either email or recorded delivery to the address of the other party as appearing
in this Agreement
10. MATTERS BEYOND SWIFT IMAGE'S REASONABLE CONTROL
10.1 Swift Image is not liable
for any breach of this Agreement or liable for any delay or failure in performance
of any part of these conditions and its commitments when caused as a result of Force
Majeure, war, civil disorder, industrial disputes, inclement weather, acts of local
or central government or other competent authorities, and/or failure by any associated
Service providers including but not limited to domain name registrars and server
hosting establishments.
11. LIABILITY
11.1 The Subscriber acknowledges that Swift Image is not liable for
the content that appears in any of the Services including the Website. Swift Image
hereby excludes all liability in this respect.
11.2 Swift Image undertakes no liability
whatsoever for the acts or omissions of other providers of telecommunication Service
or for faults in or failures of their apparatus.
11.3 swift image nor its suppliers
shall be liable to the Subscriber or any third party for any indirect, special, incidental,
punitive, cover or consequential damages (including, but not limited to, damages
for the inability to use equipment or access data, loss of business, loss of profits,
business interruption or the like), anticipated savings, wasted expenditure, corruption
or destruction of data, direct or indirect loss of revenue for any e-commerce failure,
arising out of the use of, or inability to use, the Services and based on any theory
of liability including breach of Agreement, breach of warranty, tort (including negligence),
product liability or otherwise, even if Swift Image or its representatives have been
advised of the possibility of such damages and even if a remedy set forth herein
is found to have failed of its essential purpose
11.4 Swift Image makes no warranty
in regard to its Service or equipment and will not be responsible for any damage
suffered or allegedly suffered or claimed by the Subscriber for any reason including
but not limited to loss of data, wrong or non deliveries, e-commerce failure or errors
and Service interruptions.
11.5 All conditions, terms, representations and warranties
relating to the Services supplied under this Agreement, whether imposed by statute
or operation of law or otherwise, that are not expressly stated in these Terms and
Conditions including, without limitation, the implied warranty of satisfactory quality
and fitness for a particular purpose are hereby excluded.
11.6 The total aggregate
liability to the Subscriber for any claim in Agreement, tort, negligence or otherwise
arising out of or in connection with the provision of the Services shall be limited
to the Charges paid by the Subscriber in respect of the Services for the period of
the dispute which are the subject of any such claim.
11.7 In any event no claim shall
be brought unless the Subscriber has notified Swift Image of the claim within one
calendar month of it arising.
12. INDEMNITY
12.1 The Subscriber shall indemnify Swift Image and keep Swift Image
indemnified and hold Swift Image harmless from and against any breach by the Subscriber
of these terms of business and any claim brought against Swift Image by a third party
resulting from the provision of Services by Swift Image to the Subscriber and the
Subscribers use of the Services and the Server including, without limitation, all
claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including
reasonable legal costs and expenses), howsoever suffered or incurred by Swift Image
in consequence of the Subscribers breach or non-observance of this Agreement.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 The Subscriber shall obtain any and all necessary
consents and clearances to enable them to lawfully make use of all and any intellectual
property rights through the Services, including without limitation, clearance and/or
consents in respect of the Subscribers domain name.
13.2 Swift Image and no other
party retain all Intellectual Property Rights in respect of the Subscribers Website.
14. ASSIGNMENT
14.1 The Subscriber may assign this Agreement to any other party only
with the prior written agreement of Swift Image.
14.2 Swift Image reserves the right to assign this Agreement at any time and must
give the Subscriber 30 days notice of the event.
15. LAW
15.1 This Agreement shall be governed by and construed in accordance with
English law and the Subscriber hereby submits to the non-exclusive jurisdiction of
the English courts.
15.2 This Agreement may be varied or supplemented at any time and in this event Swift
Image will notify the Subscriber by email.
15.3 If any provision in this Agreement should be held to be invalid such provision
shall be severed and the remaining provisions shall continue to have full force and
effect.
16. HEADINGS
16.1 Headings are included in this Agreement for convenience only and
shall not affect the construction or interpretation of this Agreement.
17. DATA PROTECTION
17.1 The Subscriber accepts that encrypted and unencrypted data
may be transferred and stored on the Swift Image's computer systems and servers or
computer systems and servers nominated by Swift Image in the UK and any other country
where Swift Image's computer systems servers or nominated computer systems and servers
may reside from time to time. All information, mail messages and other data stored
therein will be treated as private and solely as the property of the Subscriber at
all times and will not be duplicated, copied, reproduced or viewed publicly in any
way except with the Subscribers express or implied permission and/or for the purpose
of Swift Image's back up services and maintenance and/or providing the Subscriber
with the Services and/or for Swift Image's own internal purposes such as market research
and testing that the Services are working correctly.
17.2 Swift Image expressly points out that by entering into this Agreement the Subscriber
acknowledges and agrees that once unencrypted data passes onto the Internet, it is
not secure and is open to unscrupulous use. Swift Image cannot accept responsibility
or liability for any data or information that becomes available by such means against
the Subscribers wishes and Swift Image recommends the use of encryption for transfer
of sensitive data or information.
17.3 The Subscriber accepts that the Swift Image will put the Subscriber on its mailing
and telephone lists for receipt of Service information from Swift Image. Swift Image
will not pass the Subscribers details on to third parties unless in the sole opinion
of Swift Image the third party can offer the Subscriber a product or service which
will enhance the Swift Image Service.
18. ENTIRE AGREEMENT
These Terms and Conditions together with any documents expressly referred to in them,
contain the entire Agreement between us relating to the subject matter covered and
supersede any previous Agreements, arrangements, undertakings or proposals, written
or oral between us in relation to such matters. No oral explanation or oral information
given by any party shall alter the interpretation of these Terms and Conditions.
In agreeing to these Terms and Conditions, the Subscriber has not relied on any representation
other than those expressly stated in these Terms and Conditions and agrees that they
shall have no remedy in respect of any misrepresentation which has not been made
expressly in this Agreement.