Terms And Conditions
TERMS AND CONDITIONS OF BUSINESS
This Agreement is made between Avatar Digital Limited and the party contracting the services (the Client), and becomes effective upon the date that Avatar Digital Limited accepts this signed agreement (be that by email, fax, Royal Mail post, or in person) for the contracting party (the Client) to use the service or services requested. Please note that Avatar Digital Digital Limited reserves the right to refuse services and/or access to its servers to anyone.
1. DEFINITIONS AND INTERPRETATION
“Agreement” means any agreement made subject to these Terms and Conditions, which shall incorporate or be subject to these Terms and Conditions. In this Service Agreement the party who is to receive the Services provided, shall be referred to as the “Client” and the party providing the Services shall be referred to as “Avatar Digital.”
“Services” means website design and construction, domain name registration, website hosting and email facilities, website maintenance, internet training and any other service or facility provided by Avatar Digital to the Client. “Server” means any computer server equipment operated by or contracted to Avatar Digital in connection with the provision of the Services. “Website” means the area on a Server allocated by Avatar Digital (or any other Hosting Company) to the Client for use by the Client as a site on the World Wide Web or Internet. “Website Design” means web page design, custom HTML, custom programming and associated construction which may include web page layout, graphics, photographs of materials and/or products that the Client wishes to display on the website, including the redesign of existing websites. “Web Traffic” means data transferred from a website. “Search Engine Registration” means submission of the Client’s URL, or domain name, to Internet Search Engines to assist in the effort of gaining recognition for the Client’s website. “Domain Name Registration” means the registration with the appropriate authorities of the desired domain name on behalf of the Client. “Website Hosting” means providing World Wide Web page hosting on a server with email message facilities.
2. SERVER USE
Pornography, erotic images or other lewd or obscene content and sex related merchandising are PROHIBITED on any Avatar Digital server. Illegal material including but not limited to copyrighted works, commercial video, music files and any material in violation of any regulation is PROHIBITED on any Avatar Digital server. Pirated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing, etc., and encrypting of any of the above is PROHIBITED on any Avatar Digital server. Also includes any sites which provide “links to” or “how to” information about such material. Spamming, or the sending of unsolicited email, from an Avatar Digital server or using an email address that is maintained on an Avatar Digital machine is STRICTLY PROHIBITED. Avatar Digital Digital reserves the right to suspend or cancel a Client’s access to any or all services provided by Avatar Digital if Avatar Digital decides that an account has been inappropriately used.
3. SEARCH ENGINE REGISTRATION
All search engine registrations carried out by Avatar Digital are done so to the best of Avatar Digital abilities, but it should be noted that Avatar Digital has no control over search engine registrations. As such Avatar Digital cannot guarantee how or where the search engine will rank the Client’s website, or how long an individual search engine directory may take to catalogue the information presented.
4. DOMAIN NAME REGISTRATION
Avatar Digital makes no representation that the domain name the Client wishes to register is capable of being registered by or for the Client, or that it will be registered in the Client’s name. The Client should therefore not assume registration of a requested domain name(s) until the Client has been notified that it has, or they have, been registered. Any action taken by the Client before such notification is at the Client’s own risk. The registration and use of the Client’s domain name is subject to the terms and conditions of use applied by the relevant naming authority; the Client shall ensure that they are aware of those terms and conditions and they comply with them. The Client shall have no right to bring any claim against Avatar Digital in respect of refusal to register a domain name. Any administration charge paid by the Client to Avatar Digital shall be non-refundable notwithstanding refusal by the naming authority to register the desired name. Avatar Digital shall have no liability in respect of the use by the Client of any domain name; any dispute between the Client and any other person must be resolved between the parties concerned in such a dispute. If any such dispute arises, Avatar Digital shall be entitled, and at their discretion without giving any reason, to withhold, suspend or cancel the domain name. Avatar Digital shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute. Avatar Digital gives no warranty that the Domain Name requested will not infringe the rights of any third party and the client indemnifies Avatar Digital in respect of any such infringement. Avatar Digital shall not release any domain name to another provider unless full payment for that domain name has been received by Avatar Digital. Avatar Digital shall have no liability in respect of the renewal of any domain name(s).
5. DESIGN CREDIT
Client’s website pages which have been designed and constructed by Avatar Digital shall have a link to Avatar Digital’s websites, appearing in small type at the bottom of each website page. If the client wishes for this to be removed, it shall be agreed prior to the commencement of the project. Avatar Digital reserve the right to charge a link removal fee.
6. POST PLACEMENT ALTERATIONS AND AMENDMENTS
Avatar Digital cannot accept responsibility for any alterations or amendments caused by a third party to the Client’s website pages once placed on a server. Such alterations or amendments include, but are not limited to additions, modifications, or deletions.
7. WEBSITE HOSTING AND EMAIL
Avatar Digital makes no representation and gives no warranty as to the accuracy or quality of information received by any person via the Server, and Avatar Digital shall have no liability for any loss or damage to any data stored on the Server. The Client shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server. Under no circumstances shall Avatar Digital be held liable for claims arising from the content of the Clients website. The Client represents, undertakes and warrants to Avatar Digital that they will use the Website allocated to them only for lawful purposes. In particular, the Client represents, warrants and undertakes to Avatar Digital that: the Client will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will they authorise or permit any other person to do so; the Client will not post, link to or transmit: (a) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way; (b) any material containing a virus or other hostile computer program; (c) 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. The Client shall keep secure any identification, password and other confidential information relating to the Client’s account and shall notify Avatar Digital immediately of any known or suspected unauthorised use of the account or breach of security, including loss, theft or unauthorised disclosure of the password or other security information. The Client shall observe the procedures, which Avatar Digital may from time to time prescribe and shall make no use of the Server which is detrimental to Avatar Digital’s other customers. The Client shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and a secure manner. In the case of an individual, the Client warrants that they are at least 18 years of age and if the Client is a company, the Client warrants that the Services will not be used by anyone under the age of 18 years. The Client will keep Avatar Digital informed of any change to the Client’s address and other such information as may affect the payment of charges due. While Avatar Digital will use every reasonable endeavour to ensure the integrity and security of the Server, Avatar Digital do not guarantee that the Server will be free from unauthorised users or hackers and Avatar Digital shall be under no liability for non-receipt or misrouting of email or for any other failure of email. Avatar Digital reserves the right to make extra charges for additional Website traffic or data transfer from the client’s website above the standard levels of 500 MB per month. High bandwidth usage accounts may create a need to upgrade the network to cope with the traffic in order to maintain a reasonable level of service to all users. Avatar Digital will therefore contact the Client should such usage become apparent. If no arrangement can be reached, Avatar Digital reserves the right to terminate the account giving 10 days notice to the Client. All website hosting accounts are set up on a prepay basis. All pricing is guaranteed for the term of the prepayment. Avatar Digital reserves the right to change prices at any time.
8. SERVICE AVAILABILITY AND PERFORMANCE
Avatar Digital shall use all reasonable endeavours to make available to the Client at all times the Server and the other Services, but Avatar Digital shall not, in any event, be liable for interruptions of Service or downtime of the Server, or any losses associated with such interruptions. The Client acknowledges and agrees that Avatar Digital cannot guarantee the absence of service interruptions caused by Acts of God or other circumstances beyond Avatar Digital’s control, including, but not limited to, telecommunications problems. Avatar Digital shall have the right to suspend the Services at any time and for any reason, generally without notice, but if such suspension lasts or is to last for more than 7 days the Client will be notified of the reason. The Client acknowledges that Avatar Digital will not be held responsible for the appearance or operation of any website pages within any version or type of Web Browser software. All websites designed by Avatar Digital will be optimised for viewing in Microsoft Internet Explorer, Netscape Navigator, Firefox, Mozilla and Safari. The Client accepts that certain features of their site may not work, or may not be visible, or may look different, depending on the functionality of the hardware and software used to view the site. The Services provided to the Client hereunder and the Client’s account with Avatar Digital cannot be transferred or used by anyone other than the Client. No more than one login session under any one account may be used at any time by the Client. If the Client has multiple accounts, the Client is limited to one login session per system account at any time; user programs may be run only during login sessions. If the Client’s account is found to have been transferred to another party, or shows other activity in breach of this sub clause, Avatar Digital shall have the right to cancel the account and terminate the Services and/or this Agreement immediately.
9. FEES AND PAYMENTS
50% of charges for all Services shall be paid by the Client to Avatar Digital upon agreeing to the Proposal. The proposal will include delivery timescales, additional charges, tasks included within the scope. The remaining 50% balance shall be paid upon completion, unless otherwise agreed by Avatar Digital in a Website Design Contract Agreement, or Addendum to such an agreement. All completed projects will be demonstrated on the Avatar Digital server and will be transferred to the client server once full payment has been received. All payments must be in UK Pounds Sterling and must be received within 10 working days subsequent to the agreement. All payments must be paid by BACS into Avatar Digital Digital Limited Limited account prior to agreed deadlines (unless otherwise agreed by both parties). All pricing is guaranteed for the term of the prepayment. Avatar Digital reserves the right to change prices at any time. Payment is due each anniversary month or period following the date the hosting and/or maintenance account was established. If for any reason payment does not arrive on time, the account may be suspended without notice or alternatively Avatar Digital reserves the right to charge penalty interest. Any account not brought current within one week of email notification is subject to suspension. The Client is responsible for all money owed on the account from the time it was established to the time Avatar Digital receives a cancellation notice for termination of services. Avatar Digital reserves the right to vary all charges, with one months notice to the Client. All charges are subject to VAT. Without prejudice to Avatar Digital other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, Avatar Digital shall be entitled forthwith to suspend the provision of Services to the Client without notice.
10. RELATIONSHIP OF PARTIES
It is understood by the parties that Avatar Digital is an independent contractor with respect to the Client, and not an employee of the Client, and as such the Client will not provide any employee or fringe benefits, for the benefit of Avatar Digital or Avatar Digital employees.
11. PERMISSIONS AND COPYRIGHT
The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphics, registered company logos, names and trademarks or any other material supplied to Avatar Digital by the Client for the design and construction of any web pages. Acceptance of this Agreement shall be regarded as a guarantee by the Client that all such permissions and authorities have been obtained. Evidence of permissions and authorities may be requested. No responsibility will be accepted by Avatar Digital for damages to or losses incurred by the Client from the use of material for which the required permission or authority has not been properly obtained. The Client is required to ensure that the content of their website pages meets all the current UK government legislation regarding publications. The Client shall further indemnify Avatar Digital in respect of any claims, costs or expenses that may arise from any material included in the Client’s website pages.
Avatar Digital will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Avatar Digital, or divulge, disclose, or communicate in any manner, any information that is proprietary to the Client. Avatar Digital will act reasonably to protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement. Upon request, Avatar Digital will return to the Client all notes, records, documentation or other items belonging to the Client that were used for the Services of this Agreement.
13. INTELLECTUAL PROPERTY AND WORK PRODUCT OWNERSHIP
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively, the “Product”) developed in whole or in part by Avatar Digital in connection with the Services shall be the exclusive property of Avatar Digital. Two noted exceptions are: (i) Any and all HTML documents created specifically for the Client are the property of the Client. (ii) Any and all graphics created specifically for the Client are the property of the Client. If the Client wishes to obtain exclusive rights to any other such copyrightable property it must be agreed upon in writing by both the Client and Avatar Digital and made an Addendum to this Agreement. In any case, no release of rights or ownership from Avatar Digital to the Client of any works, product or services is granted until full payment for the Services is received in full from the Client.
14. CUSTOMER REVIEW OF WEBSITE DESIGNS
Avatar Digital will provide the Client with an opportunity to review the design concepts for the website before construction of the website begins. Avatar Digital will also provide the Client with an opportunity to review the appearance and content of the website once they are scripted and laid out. Any request for alterations should be made at this time. Such scripted materials will be deemed to be accepted and approved at the time of presentation, unless the Client notifies Avatar Digital to the contrary. Alterations requested after this time will be charged for as extras, in addition to charges for any work completed up to the date such a request was received by Avatar Digital. Extras will be charged for at the custom design rate in accordance with the scale of charges and rates published from time to time by Avatar Digital.
15. TERMINATION OF DESIGN SERVICES
Cancellation of website design services may be made at or before the first customer review of design concepts, in which instance the Client will pay compensation for any design work completed at a flat fee of £250, or whatever lower value fee Avatar Digital may at their discretion agree to. Cancellation of design Services after the first customer review may, in the first instance, be made by telephone, but must be confirmed in writing from the original signature. The Client agrees to pay, and will be invoiced, for work completed to the date of first notice of cancellation.
16. ERRORS AND LIABILITIES
Avatar Digital will use its best endeavours to ensure the Services are free of errors. Avatar Digital may not be held responsible for any errors that may arise in the course of performing the Services. Such errors include but are not limited to: grammatical or spelling errors on web pages; misplacement of text or graphics on web pages; malfunctioning of interactive elements included in the website pages. Avatar Digital does not accept any liability for losses or damages arising from errors within the Services.
The Client shall indemnify Avatar Digital and keep Avatar Digital indemnified and hold Avatar Digital harmless from and against any breach by the Client of these terms and conditions of business, and any claim brought against Avatar Digital by a third party resulting from the provision of Services by Avatar Digital to the Client, and the Client’s 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 Avatar Digital in consequences of the Client’s breach or non-observance of this Agreement.
If this Service Agreement or any part thereof shall be adjudged for any reason to be void, unenforceable or ineffective, but would be adjudged to be valid effective and enforceable if part of the wording were deleted or a provision were limited in scope, then this Agreement shall continue with such modifications deemed to be written, construed and enforced as so limited, so as to make its provisions (or if such be the case its remaining provisions) valid effective and enforceable.
19. TERMINATION AND SUSPENSION
This Agreement shall remain in force for a minimum period of 12 months from acceptance by Avatar Digital of the Client’s application to use the service or services provided, or until such time as the services required under this agreement or addendum to this agreement are completed by Avatar Digital. Termination of this agreement (other than for the cancellation of design services) can be effected by the Client by giving a minimum of 1 month’s notice in writing, either by email, fax or Royal Mail post. Termination can be effected by Avatar Digital, without in any way limiting Avatar Digital rights under any other sub clause in this agreement, if: the Client fails to pay any sums due to Avatar Digital as they fall due, then Avatar Digital may remove the website from public viewing, or suspend the Services and/or terminate this Agreement forthwith without notice to the Client; the Client breaks any of these terms and conditions, including violating any licensing agreements, and fails to correct the breach within thirty (30) days following written notice from Avatar Digital specifying the breach, then Avatar Digital may terminate this Agreement forthwith upon written notice; the Client is a company and that company goes into insolvent liquidation or suffers the appointment of an administrator or administrative receiver or enters into a voluntary arrangement with the Client’s creditors, then Avatar Digital shall be entitled to terminate this Agreement forthwith without notice to the Client. On termination of this Agreement or suspension of the Services by Avatar Digital for breach of this agreement, Avatar Digital shall be entitled immediately to block the Client’s Website and to remove all data located on it. Avatar Digital shall be entitled to delete all such data but may, at Avatar Digital’s discretion, hold such data for such period as Avatar Digital may decide, to allow the Client to collect it at the Client’s expense, subject to payment in full of any amounts outstanding and payable to Avatar Digital. Avatar Digital shall further be entitled to post such notice in respect of the non-availability of the Client’s Website as Avatar Digital thinks fit. Services may be suspended, or suspended during peak times, by Avatar Digital without notice and without prejudice to Avatar Digital Rights of Termination. No such suspension shall affect the liability of the Client to pay charges and other amounts due to Avatar Digital. During suspension Avatar Digital reserves the right to refuse to release the Client’s Internet Address as issued by Avatar Digital.
20. RIGHTS ON TERMINATION
Termination of the agreement shall not affect any preexisting liability of the Client or affect any right of Avatar Digital to recover damages or pursue any other remedy in respect of any breach by the Client of the agreement. In the event of termination of the agreement by Avatar Digital on account of any breach of the Terms and Conditions thereof by the Client, Avatar Digital shall be entitled to the balance of all Annual Subscription payments, which would but for such termination, have accrued to the earliest date on which the Agreement could have been terminated by the Client in accordance with the terms hereof. Avatar Digital shall not be required to release the Client’s Domain Name or Internet address and may refuse to do so until this Agreement has been lawfully brought to an end and all sums due hereunder have been received by Avatar Digital, and the Client has complied with all its obligations hereunder.
21. LIMITATION OF LIABILITY
Nothing in these terms and conditions shall exclude Avatar Digital’s liability for death or personal injury resulting from Avatar Digital’s negligence in providing these services. The Client acknowledges and agrees that Avatar Digital’s total aggregate liability to the Client for any claim in contract, 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 Client in respect of the Services which are the subject of any such claim. In any event no claim shall be brought unless the Client has notified Avatar Digital of the claim within one year of it arising. In no event shall Avatar Digital be liable to the Client for any loss of business, contracts, profits or anticipated savings, or for any other indirect or consequential or economic loss whatsoever. Avatar Digital will not be held liable for any service that it provides which is totally reliant upon a third party over which Avatar Digital has no administrative control.
Any notice (including but not limited to Suspension notices) to be given by either party to the other must be in writing and may be sent by either email, fax or Royal Mail post to the address of the other party as appearing in this Agreement, or to such other address as such party may from time to time have communicated to the other in writing; and if sent by email shall unless the contrary is proved, be deemed to be received on the day it was sent; or if sent by fax shall be deemed to be served on receipt of an error free transmission report; or if sent by Royal Mail post shall be deemed to be served two days following the date of posting. In proving such service it shall be sufficient to prove that delivery was made or that the envelope containing such communication was properly addressed and posted as a prepaid first class letter.
23. CHANGES TO THE SERVICES
If any Network Operator shall discontinue the provision of telecommunications services to Avatar Digital or shall alter by modification, expansion, improvement, maintenance or repair of the telecommunications services or any part thereof provided to Avatar Digital, then Avatar Digital shall be entitled to discontinue, alter, modify, expand, improve, maintain, repair, suspend, disconnect or otherwise change the Services as necessary.
Headings are included in this Agreement for ease of reference only and shall not affect the validity or interpretation of this Agreement.
Avatar Digital reserves the right to vary these Terms and Conditions as a result of changes required by its insurers, operation or administration problems, new legislation, statutory instruments, Government regulations or licences.
26. ENFORCEMENT EXPENSES
The Client shall pay to Avatar Digital all reasonable costs and expenses incurred by Avatar Digital in enforcing any of these Conditions, or exercising any of its other rights and remedies under the agreement, including (without prejudice to the generality) all costs incurred in tracing the Client in the event that legal processes cannot be enforced at the address last notified to Avatar Digital.
The allowance of time to pay or any other indulgence by Avatar Digital in respect of payments due to it shall in no manner affect or prejudice it’s right to payment together with interest provided under these Conditions. The failure of either party to enforce any provision of this agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement.
28. LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with English law and the client hereby submits to the non-exclusive jurisdiction of the English courts, and any alteration to part of the agreement shall not invalidate the remainder.
29. NATURE OF AGREEMENT
These Terms and Conditions together with any documents expressly referred to in them (including, but not limited to, Website Design Contract Agreements), contain the entire Agreement between Avatar Digital and the Client relating to the subject matter covered and supersedes any previous Agreements, arrangements, undertakings or proposals, written or oral, between Avatar Digital and the Client in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these Terms and Conditions.