Terms and Conditions
November 2004, updated
July 2007
These terms and conditions
shall apply to the agreement between
COOLBLUENET ("COOLBLUENET") and the
individual or company applying for the
provision of services by COOLBLUENET ("the
Customer").
IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Agreement, the
following words and phrases shall have the
following meanings:
"Confidential Information" - information
which is identified as confidential or
proprietary by either party or the nature of
which is clearly confidential or
proprietary.
"Fees" - the fees (including any VAT) due
for the provision of the Services as
calculated in accordance with the Price List
or such other fee as is agreed.
"coolbluenet's Server" the computer server
equipment operated by COOLBLUENET in
connection with the provision of the
Services.
"coolbluenet's web site" - the web site
located at http://www.coolbluenet.com or
such other Internet address as may be
adopted by COOLBLUENET from time to time.
"Inappropriate Material" - material that
under the laws of any jurisdiction where the
material can be accessed is or may be any of
the following: unlawful, threatening,
abusive, harmful, obscene, pornographic,
malicious, profane, libellous, defamatory,
infringes any Intellectual Property Rights,
constitutes or encourages a criminal offence
or contains a virus, worm, trojan horse or
other harmful code and such further and
additional material referred to in the
Acceptable Use Policy.
"Intellectual Property Rights" - copyrights,
patents, registered and unregistered design
rights, topography rights, trademarks and
service marks and applications for any of
the foregoing, together with all trade
secrets, know-how, rights to confidence and
other intellectual and industrial property
rights in all parts of the world.
"Material" - text, graphics, images, sound,
video or any combination thereof.
"Name" - any name specifically requested by
or allocated to you for the provision of the
Services including, without limitation, any
domain name or mailbox name.
"Order Form" - an order form provided by
COOLBLUENET as available from COOLBLUENET by
post or fax on request, and completed by the
Customer to indicate which Services it
requires and its agreement to these terms
and conditions governing such provision.
"Price List" - a list of coolbluenet's then
current standard prices for each of the
Services available on request from
COOLBLUENET.
"Relevant Legislation" - such laws of
England and Wales and the Customer's country
as relate to data protection and any laws of
England and Wales and the Customer's country
governing Inappropriate Material.
"Services" - the services identified on an
Order Form to be provided by COOLBLUENET to
the Customer pursuant to these terms and
conditions and any others specified by
COOLBLUENET on such Order Form.
"web site" a web site on the World Wide Web.
2. PAYMENT AND SERVICES
2.1 In consideration for the
payment of the Fees calculated in accordance
with the Price List at the time of the
completion of an Order Form by the Customer,
COOLBLUENET agrees to provide the Services.
2.2 The Customer agrees to make payment for
the Services by payment of the invoice
within 28 days of the invoice date if the
Order Form is submitted by fax or post.
2.3 If the Customer fails to pay any invoice
which is due and payable under this
Agreement, COOLBLUENET shall be entitled to
charge interest on a daily basis on the
overdue amount and on outstanding interest
from the date of such failure until payment
(both before and after judgement) at an
annual rate of 4% above the base rate of
Barclays Bank plc for the time being in
force.
2.4 Non-delivery or non-performance of
services by any third party shall not give
the Customer any right to delay any payment
to COOLBLUENET or to make any claim
whatsoever against COOLBLUENET.
2.5 If COOLBLUENET does not receive payment
in full within 28 days of the date of the
invoice, it may terminate this Agreement as
regards any Service requested by the
Customer without further obligation to the
Customer.
2.6 For the purposes of this Agreement, time
of payment is of the essence.
3. INDEMNITY
3.1 To indemnify and keep
indemnified The Customer from and against
any and all loss damage or liability
(whether criminal or civil) suffered, and
legal fees and costs incurred, by The
Customer resulting from a breach of this
agreement by COOLBLUENET including:
3.1.1 any act neglect or fault of
coolbluenet's employees or agents
3.1.2 breaches in respect of any matter
arising from the supply of the Services
resulting in any successful claim by any
third party.
4. CUSTOMER AUTHORISATION
AND OBLIGATIONS
4.1 The Customer acknowledges
and accepts that to enable COOLBLUENET
properly to provide the Services it must
co-operate with COOLBLUENET as required by
COOLBLUENET and, without limitation in
particular:
4.1.1 the Customer must provide COOLBLUENET
with accurate details of its e-mail and
physical addresses and promptly notify
COOLBLUENET in writing of any alterations
thereto from time to time;
4.1.2 the Customer must obtain the consent
of individuals whose personal data are to be
held on a domain name register or are
otherwise provided to COOLBLUENET;
4.1.3 keep the Customer's user ID and
passwords secure so that such ID and
passwords are only used by the Customer or
those authorised by the Customer;
5. COOLBLUENET WARRANTIES
AND LIMITATION OF LIABILITY
5.1 In performing our
obligations under this Agreement, we shall
exercise the reasonable care and skill of a
competent Internet service provider.
5.2 Except as expressly set out in this
Agreement, all conditions or warranties
which may be implied or incorporated into
this Agreement by law or otherwise are
hereby expressly excluded to the extent
permitted by law. In particular, but without
limitation, we exclude any warranty as to
the quality or accuracy of information
received through the Service.
5.3 You acknowledge and agree that we are
unable to exercise control over the content
of the information transmitted via the
COOLBLUENET network and/or the Service and
that we do not examine the use to which
customers put the Service or the nature of
the information and/or software they are
sending or receiving, hence, we hereby
exclude all liability of any kind for the
transmission or reception of infringing
information of whatever nature.
5.4 While we will use all reasonable
endeavours to provide a prompt and
continuing service, you are responsible for
insuring yourself and/or your organisation
against all loss of or damage to data,
hence, we will not be liable to you for any
loss of or damage to data stored/transmitted
on/using the Service and/or the COOLBLUENET
network.
5.5 You acknowledge and agree that it is
your responsibility to adopt appropriate
security measures for the protection of
computer systems and, hence, we will not be
liable to you for any loss or damage that
you suffer as a result of any virus or other
hostile computer program being introduced
into your computers or computer systems as a
result of your use of the Service and/or the
COOLBLUENET network.
5.6 We will not be liable to you, whether in
contract, tort or otherwise:
5.6.1 for loss, whether direct or indirect,
of business, revenue or profits anticipated
savings or wasted expenditure, corruption or
destruction of data or for any indirect or
consequential loss whatsoever; or
5.6.2 for the acts or omissions of other
providers of telecommunication services or
for faults in or failures of their
apparatus.
5.7 In any event our liability to you in
respect of an event or series of connected
events arising out of or in connection with
the Agreement, whether in contract, tort or
otherwise, shall be limited to the amount of
the fee for the Services.
5.8 Each provision of this Clause 5
excluding or limiting liability shall be
construed separately, and shall apply and
survive even if for any reason one or other
of these provisions is held inapplicable or
unenforceable in any circumstances and shall
remain in force notwithstanding the
termination or expiry of this Agreement.
5.9 Any liability of COOLBLUENET whatever
arising under these terms or otherwise in
respect of the Service or any product shall
be deemed to end 6 months after the date on
which the customer ought reasonably to have
known of the event giving rise to the
liability. For the avoidance of doubt, the
customer acknowledges and agrees that no
claims or actions by the customer can be
validly made after the expiry of 6 months
following such date.
5.9.1 A refund may be available in
exceptional circumstances at discretion of
the management.
6. TERMINATION
6.1 COOLBLUENET may terminate
this Agreement by notice in writing to the
Customer having immediate effect if:
6.1.1 the Customer is in breach of any of
its obligations under this Agreement;
6.1.2 the Customer is a company and a
resolution is passed for its winding up or a
petition for its liquidation is presented;
or
6.1.3 the Customer is an individual and a
petition for bankruptcy is presented against
it; or
6.1.4 a receiver or liquidator (where the
Customer is a company) or (where the
Customer is an individual) a trustee in
bankruptcy is appointed over it or any of
its assets; or
6.1.5 the Customer proposes or enters into
any arrangement or composition with or for
its creditors (including any voluntary
arrangement).
6.1.6 the Customer provides COOLBLUENET with
any false, inaccurate or misleading
information for the purpose of obtaining
Services.
6.2 In the event that any of the
circumstances identified in clause 6.1
arises, COOLBLUENET shall have the option to
terminate this Agreement as regards all
Services provided or to be provided or only
as regards that Service or those Services in
respect of which the breach is considered by
COOLBLUENET to have been committed; and
6.3 In the event that any of the
circumstances identified in clause 6.1
arises, COOLBLUENET shall be entitled to
retain any sums paid to it by the Customer
hereunder and recover any sums due to it
pursuant hereto whether invoiced or not at
the date of termination.
6.4 Either party may terminate this
Agreement by not less than 90 days prior
written notice served in accordance with
clause 12.5, expiring on or after the end of
the minimum period specified in the Order
(or if no minimum period is specified, after
12 months from the date the service is ready
for service).
7. CONFIDENTIALITY
7.1 Each of the parties
agrees (subject to clauses 7.2 and 7.3) not
to:
7.1.1 disclose any Confidential Information
received from the other party; or
7.1.2 make any use of any such Confidential
Information other than for the purposes of
performance of this Agreement.
7.2 Each party may disclose Confidential
Information received from the other to its
responsible employees, consultants,
sub-contractors or suppliers who need to
receive the information in the course of
performance of this Agreement.
7.3 The confidentiality obligations under
clause 7.1 shall not apply to any
information which:
7.3.1 is or subsequently becomes available
to the general public other than through a
breach by the receiving party; or
7.3.2 is already known to the receiving
party before disclosure by the disclosing
party;
7.3.3 is developed through the independent
efforts of the receiving party; or
7.3.4 the receiving party rightfully
receives from a third party without
restriction as to use.
8. PROVISION OF SERVICE
8.1 We reserve the right to
vary the Service Description at any time,
however we shall inform you of such
variations where we deem it necessary to do
so and where reasonably practicable in the
circumstances.
9. INSTALLATION AND
MAINTENANCE
9.1 We will provide to you
such installation and maintenance services
for the Service (including, where
applicable, the Equipment), as are described
in the relevant Service Description.
9.2 Where it is necessary for us to install
and/or maintain the Service at your
premises, you will provide us with such
access as we reasonably require and any
technical/personnel assistance reasonably
necessary for the installation and
maintenance of the Service including, for
example and without limitation, electricity
supply and suitable accommodation and
environmental conditions for the housing of
the COOLBLUENET Equipment. We will notify
you in advance where we require you to make
such access available.
9.3 All installation and maintenance
services will be carried out by our
personnel or appointed agents who shall
liaise with your nominated representative.
9.4 If you are subscribed to any managed
services ( as described in the relevant
Service Description), you will at all times
provide our personnel or appointed agents,
such access as we reasonably require to the
Service either at your premises or via the
network, in order to enable us to carry out
management of the Service. We will notify
you in advance where we require you to make
such access available.
10. DATA PROTECTION
10.1 You agree that we may
put your name and other information obtained
about you from the Order Form and Sales
Process into a computerised directory for
internal use only, unless we receive
specific written instructions from you. You
also agree that these personal details may
be passed on to other companies in our group
when these companies are based outside the
European Union.
11. ASSIGNMENT, RESELLING
AND SUB-LETTING
11.1 You will not assign,
re-sell, sub-lease or in any other way
transfer the Service (or any element
thereof), or any of your rights or
obligations under the terms of this
Agreement. Contravention of this restriction
in any way, whether successful or not, will
entitle us to terminate the Service and/or
the Agreement immediately.
12. GENERAL
12.1 Subject to clause 12.2,
this written Agreement together with the
Order Form(s), constitutes the entire
agreement between the parties hereto
relating to the subject matter hereof and
save in respect of fraudulent statements
supersedes all prior agreements,
arrangements, understandings and
representations (whether oral, written or
otherwise) made by or between the parties
and each party acknowledges that it has not
relied on any representation made by the
other party unless such representation is
expressly included herein.
12.2 No change, alteration or modification
to this Agreement shall be valid unless in
writing referencing this Agreement and
signed by the Customer and COOLBLUENET.
12.3 If any provision of this Agreement or
part thereof shall be void for whatever
reason, the offending words shall be deemed
deleted and the remaining provisions shall
continue in full force and effect.
12.4 COOLBLUENET reserves the right to
sub-contract any of the work required to
fulfil its obligations hereunder.
12.5 All notices which are required to be
given under this Agreement shall be in
writing and shall be sent to the address of
the recipient set out on the front page of
this Agreement or such other address or
electronic mail address as the recipient may
designate by notice given in accordance with
this clause. Any such notice may be
delivered personally, by first class
pre-paid letter by facsimile transmission or
electronic mail and shall be deemed to have
been received:
by hand delivery - at the time of delivery
provided that it is handed over to a senior
employee or officer of the recipient
company,
by first class registered post - 48 hours
after the date of mailing in the United
Kingdom; or
by facsimile - on receipt of telephone
confirmation of receipt from the intended
recipient; or
by electronic mail - on receipt of telephone
confirmation of receipt from the intended
recipient.
12.6 Neither party shall be liable for any
loss suffered by the other party or be
deemed to be in default for any delays or
failures in performance hereunder (other
than in relation to payment) resulting from
acts or causes beyond its reasonable control
or from any acts of God, acts or regulations
of any governmental or supra-national
authority.
12.7 Any delay or forbearance by either
party in enforcing any provisions of this
Agreement or any of its rights hereunder
shall not be construed as a waiver of such
provision or right thereafter to enforce the
same.
12.8 Clause headings have been included in
this Agreement for convenience only and
shall not be considered part of, or be used
in interpreting, this Agreement.
12.9 This Agreement shall be governed by the
laws of England and the parties submit to
the exclusive jurisdiction of the Courts of
England and Wales.
13. NAME AND INTERNET
PROTOCOL ADDRESS
13.1 You confirm and warrant
that you are the owner of, or that you have
been and are duly authorised by the owner to
use, any trade mark or name requested or
allocated as your Name.
13.2 You acknowledge that COOLBLUENET cannot
guarantee that any Name you request will be
available or approved for use.
13.3 We have the right to require you to
select a replacement Name and may suspend
the Service if, in our opinion, there are
reasonable grounds for us to believe that
your current choice of Name might infringe
the rights of any other person or company,
whether in statute or common law, in a
corresponding trade mark or name.
13.4 If the Service includes the
registration of an Internet domain name you
acknowledge and agree that:
13.4.1 we do not represent, warrant or
guarantee that any domain name applied for
by you or on your behalf will be registered
by in your requested name or is capable of
being registered by you or that the use of
such domain name by you will not infringe
any third party rights. Accordingly, you
should take no action in respect of your
requested domain name(s) until you have been
notified that your requested domain name has
been duly registered and we shall not be
liable for any such action taken by you.
13.4.2 The registration of the domain name
and its ongoing use by you is subject to the
relevant naming authority's terms and
conditions of use and you undertake to us
that you will comply with such terms and
conditions. You hereby irrevocably waive any
claims you may have against us in respect of
any decision of a naming authority to refuse
to register a domain and, without
limitation, you acknowledge and agree that
any administration or other charge paid by
you in respect of the registration of the
domain name is non-refundable in any event.
Nominet's terms and conditions can be found
here:
http://www.nic.uk/ref/terms.html.
13.4.3 We accept no responsibility in
respect of the use of a domain name by you
and any dispute between you and any other
individual or organisation regarding a
domain name must be resolved between the
parties concerned and we will take no part
in any such dispute. We reserve the right,
on becoming aware of such a dispute
concerning a domain name, at our sole
discretion and without giving any reason, to
either suspend or cancel the relevant
service associated with the domain name,
and/or to make such representations to the
relevant naming authority as we deem
appropriate.
13.4.4 You are responsible for domain name
renewal and recognise that you must inform
COOLBLUENET as to your intentions regarding
renewal of your domain name or names.
13.4.5 Any Internet Protocol address
allocated by us to you shall at all times
remain our sole property and you will have a
non-transferrable licence to use such
address for the duration of this Agreement.
If this Agreement is terminated for whatever
reason, your licence to use the Internet
Protocol address shall automatically
terminate and thereafter you shall not use
such address.
14. WEB SITE HOSTING
14.1 The Customer will
provide and post to coolbluenet's server
hosting the Customer's Web site only
Material which is "server-ready" and which
requires no additional manipulation on the
part of COOLBLUENET. COOLBLUENET shall be
under no obligation to validate such
Material as not containing Inappropriate
Material or for content, correctness,
legality or usability.
14.2 The Customer recognises that using
coolbluenet's web site hosting Service
requires a certain level of knowledge on the
Customer's or its web development agency's
part, without limitation for example
knowledge of hyper text mark up language or
file transfer protocol and other protocols,
languages and software, and that it is the
Customer's or its web development agency's
responsibility to upload the content of the
Customer's web site and to check such
content functions satisfactorily. If
requested by the Customer, COOLBLUENET may
be able to recommend a suitable web
development agency to assist the Customer to
exploit its web site hosted by coolbluenet's
Server.
14.3 The Customer warrants that it has the
necessary knowledge referred to in clause
14.2 above and acknowledges that whilst
COOLBLUENET may endeavour to assist the
Customer on a "good-will" basis, it is not
the responsibility of COOLBLUENET to provide
such knowledge or to provide the Customer
with support and assistance in relation to
its web site hosted by coolbluenet's Server
unless otherwise agreed in writing with
COOLBLUENET.
14.4 The Customer acknowledges and accepts
that it bears sole responsibility, legal and
otherwise, for the content of all Material
appearing on its web site hosted by
coolbluenet's Server. For the avoidance of
doubt, this clause shall apply to all
Material, whether posted on to the
COOLBLUENET server by or on behalf of the
Customer, whether by COOLBLUENET or a third
party.
14.5 The Customer warrants, represents and
undertakes in relation to all Material
(including any Material which it requests
COOLBLUENET or any third party to post on
its web site hosted by coolbluenet's Server)
that:
14.5.1 it is not Inappropriate Material;
14.5.2 the Customer either has sole
ownership of all Intellectual Property
Rights in such Material in each jurisdiction
from which the web site may be accessed
and/or has obtained full and effective
licence(s) from all relevant third parties
allowing the Customer or a third party
acting on behalf of the Customer to use the
Material and to permit its dissemination
world wide;
14.6 The Customer undertakes not to link to
any Inappropriate Material from its web
site.
14.7 COOLBLUENET shall retain the right at
all times to refuse to host any Material and
to suspend availability of the web site
and/or to remove any Material already
appearing on the web site which in the
opinion of COOLBLUENET:
14.7.1 constitutes or would if posted
constitute Inappropriate Material;
14.7.2 breaches or would if posted breach
Relevant Legislation or any other applicable
regulations, standards or codes of practice
(notwithstanding that compliance may not be
compulsory); and/or
14.7.3 harms or would if posted harm the
reputation of COOLBLUENET in any way
14.8 coolbluenet's rights to suspend
availability of the Customer's web site
and/or remove content under clause 14.7
above shall be without prejudice to the
Customer's sole responsibility for content
of the web site under clause 14.4 and to the
warranties given by the Customer relating to
that content in clause 14.5.
14.9 Hosting of Material by COOLBLUENET on
the Customer's web site shall not under any
circumstances constitute a waiver of any of
its rights in relation to such Material or
of its rights in relation to any breach of
the Customer's obligations under this
Agreement.
14.10 The Customer undertakes:
14.10..1 to fully virus-check all data
supplied to COOLBLUENET pursuant to this
Agreement;
14.10.2 not to embark on any course of
action, whether by use of its web site or
any other means, which may cause a
disproportionate level of web site activity
without providing at least seven day's prior
notice in writing to COOLBLUENET;
14.10.3 to keep secure from third parties
any passwords issued to the Customer by
COOLBLUENET in connection herewith;
14.10.4 to observe the limitations on data
transfer notified to it by COOLBLUENET and
agree, if such limits are exceeded, to pay
the appropriate excess charge at
coolbluenet's then current rates.
15 - E-MAIL SERVICES
(including e-mail forwarding)
15.1 The Customer undertakes
that it will not (and will ensure that
others under its control will not) via
e-mail:
15.1.1 transmit Inappropriate Material;
15.1.2 infringe the Intellectual Property
Rights of any third party;
15.1.3 make use of coolbluenet's Server to
an extent or in a manner which in
coolbluenet's reasonable opinion is
excessive, wasteful or otherwise to the
detriment of COOLBLUENET, any of
coolbluenet's customers or any other third
party, including but not limited to:
15.1.3.1 the transmission of bulk e-mail
("spamming"); or
15.1.3.2 referring to COOLBLUENET hosted
websites or email addresses in bulk e-mail
("spamming") sent via other servers; or
15.1.3.3 "flaming".
15.2. When sending e-mail, the Customer
acknowledges that it is responsible for
complying with any Relevant Legislation.
15.3. The Customer acknowledges and agrees
that COOLBLUENET is not responsible for the
security of the contents of e-mail sent or
received by the Customer.
15.4 COOLBLUENET will use its reasonable
endeavours to ensure that messages are
routed accurately and promptly but does not
accept any liability for non-receipt,
non-delivery or misrouting of e-mail or any
other failure of the e-mail system.
15.5 coolbluenet's policy is to respect the
privacy of e-mail messages sent, received
forwarded or otherwise dealt with by it and
the Customer acknowledges that COOLBLUENET
will therefore not monitor, edit or disclose
the contents of such messages unless
required to do so by law or competent
authority or to protect coolbluenet's rights
and/or position.
15.6 For the purposes of email data
transfer, file size is multiplied by a
factor of 1.8 to account for the size of
data packets. |
Legal
Information
Acceptable
Use Policy
