Smudge IT Solutions LtdTerms & Conditions A GENERAL 1 Definitions 1.1 In these Conditions, the following words and expressions have the following meanings: means an ICANN accredited registrar; "Back-up Services" means the data back-up, storage and restoration service provided by Smudge IT and detailed in Section C of these Conditions; "Conditions" means these terms and conditions; "Contract" means the contract for the provision of Services by Smudge IT to the Customer governed by the Order Form and these Conditions; "Customer" means the customer to whom Smudge IT has agreed to provide the Services and whose details appear on the Order Form; "Customer Server" means any computer server equipment operated and owned by the Customer; "Customer Site" means any Website of the Customer which is the subject of the Hosting Services; "Data" includes information, documents, text, software, music, sound, photographs, graphics, video, messages and other materials of any kind and in any form; "Dedicated Server" means the computer server equipment provided by Smudge IT for the sole use of a single customer; "Dedicated Server Services" means the provision of a Dedicated Server for use by the Customer; "Domain Name Services" means the processing of Orders with the Relevant Naming Authority on the Customers' behalf and such additional services as may be agreed between the parties. Section B of these Conditions relates to Domain Name Services; "Smudge IT" means Smudge IT Solutions Ltd (Company Number: 05905104) trading as "smudge-it.co.uk" and its employees, agents or sub-contractors (as appropriate); "Smudge IT Server" means the computer server equipment operated by Smudge IT for the provision of the Hosting Services; "Email Services" means the email services provided by Smudge IT and detailed in Section C of these Conditions; "Fees" means the fees published (including the Pre-registration Fee and Deposit payable in respect of the Pre-registration Services) by or on behalf of Smudge IT from time to time on the Website and payable in pounds sterling; "Global Domains" means domains which are not country specific including without limitation .com, .net, .org, .info, .biz and .name; "Hosting Services" means Web-Hosting Services, Email Services, Co-location Services, Dedicated Server Services and Back-up Services, collectively known as the Hosting Services and detailed in Section C of these Conditions; "Intellectual Property Rights" means any intellectual property rights or other proprietary rights including but not limited to copyright, design rights, trademarks or names and patents in each case whether registered or unregistered names; "Order" means the Customers application for the Services; "Order Form" means the order form and customer sign-up pages annexed to these Conditions or as displayed by or on behalf of Smudge IT on the Website as at or prior to the date of the Contract; "Regulations" means the Consumer Protection (Distance Selling) Regulations 2000; "Registry" Means the organisation that has been granted the rights to maintain the definitive database of registrations for a particular TLD, namely Verisign for .com, .net and .org domains, Neulevel for .biz domains, Afilias for .info domains and Global Name Registry for .name domains; "Relevant Naming Authority" means Nominet UK for UK domain names, ICANN for international domain names and the .TV Corporation for .tv domains; "Secure Hosting Services" means the website hosting services provided on Smudge IT's Secure Server and detailed in Section C of these Conditions; "Secure Server" means an Smudge IT Server that has a recognised digital certificate installed to allow SSL (Secure Socket Layer) encryption; "Services" means any services provided by Smudge IT to the Customer under this Agreement including without limitation Pre-registration Services, Domain Name Services, Hosting Services, Email Services, Web Re-direction Services, Co-location Services, Dedicated Server Services and Search Engine Submission Services; "Transmit" includes use, facilitate (e.g. by operating chatroom, discussion groups, FTP sites etc) generate, link to, upload, post, publish, download, store, disseminate, email, send or receive via or in any way connected with our goods or services; "Web-Hosting Services" means the website hosting services provided by Smudge IT and detailed in Section C of these Conditions; "Website" means Smudge IT's Website accessible via the Internet address or such other address as Smudge IT shall notify to the customer from time to time. "Web Re-direction" means a service provided by Smudge IT whereby a domain can be configured so that it re-directs an internet user to a website located at a different internet address. "You" means the Customer applying for the provision of Services from Smudge IT. 1.2 Where appropriate, words denoting a singular number only shall include the plural and vice versa and words referring to an individual shall include a firm or company as appropriate and vice versa. 1.3 References to any statute or statutory provision include a reference to that statute or statutory provision as from time to time amended, extended or re-enacted or consolidated and all statutory instruments or orders made pursuant to it. 1.4 All warranties, representations, indemnities, covenants, agreements and obligations given or entered into by more than one person in this Agreement are given or entered into jointly and severally. 1.5 The headings in these Conditions are inserted only for convenience and shall not affect their construction. 2 Application of Conditions 2.1 These Conditions, the Order Form and any terms specifically agreed in writing by Smudge IT supersede any terms stipulated by the Customer in any negotiations or any course of dealing between Smudge IT and the Customer. 2.2 The Customer acknowledges that there are no representations outside the Contract that have induced it to enter into the Contract, and the Contract constitutes the entire understanding between the parties for the provision of the Services. All other terms and conditions express or implied by statute or otherwise are excluded to the fullest extent permitted by law. 2.3 Unless otherwise provided in these Conditions no modification of the Contract shall be effective unless agreed in writing by a duly authorised representative of Smudge IT. 2.4 Smudge IT may from time to time amend these Conditions and any such amendment will be displayed at least one month prior to the implementation of the amendment. If the Customer is a consumer it may end the Contract by written notice at any time up to the date on which the amendment comes into force. Should the Customer place an Order or continue to use the Services following implementation of an amendment it will be deemed to have accepted the amendment. 3 Obligations of the Customer 3.1.1 Transmit any Data or otherwise use our products or services in a manner which, we consider in our discretion in any way involves or includes or relates to conduct that is unlawful (including breach of any applicable laws, statutes, regulations, standards or codes of conduct whether or not compulsory), harmful, threatening, a nuisance, abusive, harassing, tortious, defamatory, vulgar, obscene, indecent, invasive of another's privacy, hateful, inflammatory, racially, ethnically or otherwise objectionable; 3.1.2 submit to Smudge IT any Order that it knows or should (after reasonable enquiry) have discovered, infringes or might reasonably be considered to infringe the Intellectual Property Rights of any third party; 3.1.3 use the Smudge IT Server or any of the Services in any way that might reasonably be considered to infringe the rights of any third party, including but not limited to trademark infringement, copyright infringement, passing off and defamation. 3.1.4 reverse engineer, de-code or in any way disassemble any software provided by Smudge IT in relation to the provision of the Services; 3.1.5 use the Smudge IT Server or any of the Services to send, relay, upload, post or receive replies to any unsolicited or unauthorised e-mail messages, mobile phone messaging or any other form of messaging, promotional materials, junk mail, spam, chain letters or other form of solicitation ; 3.1.6 advertise a Customer Site, domain or any product or service offered by or through a Customer Site or domain hosted by Smudge IT using unsolicited or unauthorised means including junk mail, spam, chain letters or any other form of solicitation; or 3.1.7 enter any incorrect or incomplete name, address, email address or telephone number or any other false information on the Order Form or otherwise enter information intended to conceal the Customer's identity. The Customer further acknowledges that it is its responsibility to notify Smudge IT of any changes to its details and to ensure that those details provided are kept up to date. 3.2 In the event of any breach of the provisions of clause 3.1 by the Customer, Smudge IT reserves the right forthwith to withdraw, suspend or cancel the Services. 3.3 The Customer acknowledges that it is solely responsible for maintaining adequate insurance cover in respect of any loss or damage relating to the provision of the Services. 3.4 The Customer acknowledges that the internet is not a completely secure medium of communication, and, whilst Smudge IT has taken steps to safeguard the security of some information (i.e payment details) the Customer inputs on the Website or sends to Smudge IT on the internet by using secure servers and Secure Sockets Layer ("SSL") technology which encrypts the information the Customer inputs on its system before it is transmitted to Smudge IT, Smudge IT is not and will not be responsible for any damages the Customer may suffer as a result of the loss of confidentiality of such information. 4 Obligations of Smudge IT 4.1 In the event that the Customer submits any Order or uses any or all of the Services in such a way as may in Smudge IT's opinion expose Smudge IT to the risk of legal or other proceedings or expose Smudge IT to loss or damage of any kind, Smudge IT reserves the right to refuse to process or continue processing any Order or to withdraw, suspend or cancel the Services or take any other action as it in its absolute discretion it sees fit. 4.2 Smudge IT will comply with all applicable data protection legislation in relation to the personal details that the Customer provides on the Order Form. All information provided to Smudge IT will be dealt with in accordance with Smudge IT's privacy policy which can be found on the Website. The Customer acknowledges that Smudge IT is under no obligation to edit, review or modify information provided by or on behalf of the Customer. In order to maintain the integrity of the service, Smudge IT reserves the right to forward contact details to the police, or other regulatory authorities where requested to do so, Smudge IT may also forward contact details where a complaint arises concerning the Customer's use of the Service and where that use is deemed by Smudge IT to be inconsistent with these user conditions. 4.3 In the event that software that has been developed by third parties ("Third Party Software") is available to the Customer through the Website and such Third Party Software is licensed to the Customer pursuant to separate terms ("Third Party Licenses") the Customer agrees that he has had the opportunity to review the Third Party Licenses and agrees to comply with them. In the event of a conflict between these Conditions and a term of a Third Party License, the terms of the Third Party License controls with respect to the applicable Third Party Software only. 5 Fees 5.1 The Customer shall pay to Smudge IT the Fees, inclusive of any additional costs incurred by Smudge IT in processing an Order (subject to clause 5.4). 5.2 The Fees shall be paid by the Customer, as detailed on the Website, without set off or counterclaim. 5.3 The Customer acknowledges that the provision of the Services is conditional on Smudge IT receiving payment of the Fees in full and in the event of non payment of Fees or suspected fraudulent activity in relation to payment of Fees by the Customer, Smudge IT reserves the right forthwith to withhold, suspend or cancel the Services. 5.4 The Customer acknowledges that occasionally unforeseen charges are incurred in processing Orders. Smudge IT shall obtain the Customer's written consent before incurring such charges. 6 Bulk Discounts If the Customer places an Order for multiple items where the relevant Fee is advertised on the Website as a discounted Fee and one or more of the items ordered is unavailable then Smudge IT reserves the right to charge the Customer for the advertised discounted Fee for the number of items actually available. 7 Refunds and Credits Unless otherwise provided in the Contract the Customer shall not be entitled to any refund of Fees or a credit against any future Order. This excludes our 30 day money back guarantee, which is provided to new customers. We do not offer refunds on domain name, IP or SSL Certificate purchases. Our 30 day money back guarantee must be claimed before 30 days after start of a new contract. If you receive a free domain name / SSL certificate when opening your account. You waive your right to a 30 money back guarantee. This is due to costs incurred by Smudge IT. 8 Indemnity The Customer shall indemnify Smudge IT and it's suppliers and keep Smudge IT and it's suppliers fully indemnified from and against all liability, claims, costs, losses, loss of profits, expenses, business interruption, and other pecuniary or consequential loss (including reasonable legal costs and expenses) suffered or incurred by Smudge IT as a result of:- (i) access to and/or use of the Services by the Customer; (ii) any information, data or material produced, transmitted or downloaded by the Customer; (iii) any breach by the Customer of any of the provisions of these Conditions or of any law, code or regulation relating thereto or to the internet. 9.1 Smudge IT warrants to the Customer that the Services will be provided using reasonable care and skill. 9.2 Except as set out expressly in these conditions, Smudge IT excludes all conditions, terms, warranties and representations (other than fraudulent representations) in relation to the whole or part of the Services whether imposed by statute or operation of law or otherwise including but not limited to implied warranties or conditions of accuracy, completeness, satisfactory quality and fitness for a particular purpose. 9.3 Whilst Smudge IT makes no attempt in the Contract to limit its liability for death or personal injury arising from its negligence, in no circumstances shall Smudge IT or it's suppliers be liable in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof for: 9.3.1 any increased costs or expenses; 9.3.2 any loss of profit, business, contracts, revenues, or anticipated savings; 9.3.3 the consequences of any failed or unsuccessful domain name, registration; 9.3.4 any claims that the domain name registered or requested by the Customer to be registered by Smudge IT on behalf of the Customer or that any Customer Site or material on a Customer Site infringes the Intellectual Property Rights; 9.3.5 the consequences of any errors or interruption in the Services ; 9.3.6 any failure of e-mail including without limitation non-receipt and mis-routing; or 9.3.7 any changes in any of Smudge IT's facilities, operations, procedures, products or Services which render obsolete or require modification of or alteration to the Customer's equipment or software; 9.3.8 any special indirect or consequential damage of any nature whatsoever, arising directly or indirectly out of the provision by Smudge IT of the Services or the performance by Smudge IT of the Contract. 9.4 Notwithstanding anything contained in the Contract Smudge IT's liability to the Customer in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the Fees paid by the Customer for the Services. 9.5 The Customer expressly acknowledges that the provisions of this clause 9 satisfy the requirements of reasonableness specified in the Unfair Contract Terms Act 1977 and that it shall be estopped from claiming to the contrary at any future date in the event of any dispute with Smudge IT concerning Smudge IT's liability hereunder. 9.6 Where the Services are performed under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Conditions. 10. Suspension and Termination Without prejudice to any of its other rights, either party shall have the right to immediately terminate the Contract and Smudge IT may also suspend or restrict the Services to the Customer, if: 10.1 the Customer commits any material or repeated breach of the Contract and/or, fails to remedy any breach which is capable of being remedied within fourteen days of receipt of a notice requiring it to remedy such breach. For the purpose of this clause a breach of clauses 3, 4 or 5 may be deemed a non-remediable breach and Smudge IT may immediately suspend or restrict the Services without notice to a Customer breaching these clauses. In the case of a suspected breach by the Customer Smudge IT will take whatever steps it believes necessary to investigate and resolve matters; 10.2 the other is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of affecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of a relevant party under the Contract) or compounds with or convenes a meeting of its creditors or has a Receiver or Manager or an Administrator appointed over its assets or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party terminating means that the other may be unable to pay its debts. 10.3 Smudge IT deems that the customer's site isn't suitable for our servers. You will receive 7 days notice to move the site. After that, Smudge IT reserve the right to disable the site. 11. Resellers 11.1 If the Customer is acting in the capacity of a reseller of the Services or on behalf of a third party the Customer agrees:- 11.1.1 to ensure that its customers or the third party are bound by the Conditions or terms and conditions no less exhaustive than the Conditions; 11.1.2 to ensure that at all times it acts in accordance with its customers' instructions; 11.1.3 to ensure that it seeks permission from its customers before passing any of their personal details to Smudge IT; 11.1.4 to provide all appropriate support to its customers including without limitation general customer services, billing and collection of fees and technical support; 11.1.5 to use commercially reasonable efforts to inform its customers when a domain name registration is due for renewal at least thirty (30) days prior to the end of the applicable registration term; 11.1.6 not to incur any liability on the part of Smudge IT; and 11.1.7 not to make any representation or warranty on behalf of or pledge the credit of or otherwise bind Smudge IT 11.2 Smudge IT reserves the right to contract with the Customer's customer directly in relation to the provision of the Services on termination of the Contract with the Customer howsoever arising and/or in the event that Smudge IT is unable to contact the Customer and/or in the event that Smudge IT receives a complaint from the Customer's customer providing that the Customers customer has requested Smudge IT to contract with them. 12. Proprietary Rights The Customer acknowledges that all title, rights and interest in the Services shall remain with Smudge IT and/or its suppliers and that the Customer shall not under any circumstances obtain any proprietary rights in respect of the Services. 13. Force Majeure Neither party shall be in breach of the Contract if there is any total or partial failure of performance by it of its duties and obligations under the Contract occasioned by any act of God, fire, act of Government or State, war, civil commotion, insurrection, embargo, labour disputes of whatever nature and any other reason beyond the control of either party. If either party is unable to perform its duties and obligations under the Contract as a direct result of the effect of one of those reasons, that party shall give written notice to the other of the inability which sets out full details of the reason in question. The operation of the Contract shall be suspended during the period in which the reason continues. Forthwith upon the reason ceasing to exist, the party relying upon it shall give written advice to the other of this fact. If the reason continues for a period which substantially affects the commercial intention of the Contract, the party not claiming relief under this clause 13 shall have the right to terminate the Contract upon giving 7 day's written notice of such termination to the other party. 14. Assignment The Contract is personal to the Customer and the Customer's rights may not be assigned, sub-licensed or transferred in any way. 15. Severability Each provision of these terms and conditions excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of those provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the termination of the Contract howsoever occasioned. 16. No Waiver No waiver by Smudge IT shall be construed as a waiver of any preceding or succeeding breach of any provision. 17. Notices Any notice or other documents given under the Contract shall be given in writing and in English and shall be deemed to have been duly given on the date of dispatch if hand delivered or sent by first class post, express, airmail, other fast postal service, registered post or telex, facsimile or other electronic media to the last known address of the party to whom the notice is addressed. To prove the giving of notice or other document it shall be sufficient to show that it was dispatched. 18. Governing Law The validity, construction and performance of the Contract shall be governed by English law and the parties hereby submit to the jurisdiction of the English Courts. B DOMAIN NAME SERVICES This Section B together with Section A of the Conditions constitutes the terms of the Domain Name Services provided by Smudge IT. In addition, Section D of these Conditions contains additional terms relating to the Pre-registration Services for .biz, .info and .name domains. 1.1 The Customer shall not use any domain name registered by Smudge IT on behalf of the Customer to communicate, reproduce, transmit, store or knowingly receive any material that is offensive, abusive, indecent, defamatory, obscene, menacing or in breach of confidence or which infringes the Intellectual Property Rights of any third party. 1.2 The Customer acknowledges that the registration and use of domain names is subject to the terms and conditions of the Relevant Naming Authority and accordingly agrees to be bound by them. 1.3 The Customer hereby authorises Smudge IT to act as the administrative, technical and billing contact on all Global Domains and to perform all functions associated with these roles. The Customer may act as the administrative contact providing it has submitted a written request to Smudge IT and where the Customer is acting as the administrative contact it acknowledges that in relation to its role as administrative contact it is solely responsible for its acts and omissions and the consequences thereof. Smudge IT does not allow the Customer to act as the technical/billing contact and if the Customer wishes to act as the technical and/or billing contact it will have to transfer the domain away from Smudge IT who can accept no further responsibility for the domain. 1.3 The ".biz" domain is intended for business use only and in submitting an Order for a ".biz" domain the Customer warrants that the domain will be used for business purposes. 1.4 The ".name" domain is intended for an individual's personal use only and in submitting an Order for a ".name" domain the Customer warrants that it is either registering its own name or a close variation thereof or that it is registering a fictional name to which it owns the rights. 1.5 The ".me.uk" domain is intended for an individual's personal use only and in submitting an Order for a ".me.uk" domain the Customer warrants that it is registering a name or a close variation thereof that belongs either to the Customer or to another individual that has authorised the Customer to do so. 1.6 To be eligible to register a ".us" domain the Customer must satisfy eligibility rules laid down in the "Nexus Requirements" as described on the Website. 2. Obligations of Smudge IT 2.1 Smudge IT shall use its reasonable endeavours to obtain registration of the domain names requested. 2.2 Smudge IT does not warrant or guarantee that the domain name requested by the Customer will be registered or be capable of registration and the Customer should take no action in respect of the requested domain name until the Customer has been notified that the requested domain name has been registered. 2.3 The Customer acknowledges that any domain names registered by Smudge IT on the Customers' behalf may subsequently be suspended or cancelled by persons other than Smudge IT. 2.4 If required by the Customer Smudge IT will host any domain name registered through Smudge IT on Smudge IT's name-servers and provide Web Re-direction and e-mail forwarding services PROVIDED ALWAYS that the domain name is managed by Smudge IT and Smudge IT remains the technical and billing contact. The Customer acknowledges that if the domain is transferred to another registrar or management of the domain is transferred to another service provider or if the technical and/or billing contact is changed Smudge IT will no longer be under any obligation to host the domain and/or provide web re-direction and/or e-mail forwarding. 2.5 If the Customer does not make use of the Web Re-direction service for a domain, it will be re-directed to a holding page or other website. The Customer agrees that Smudge IT may amend the content of any holding page or change the destination of any re-direction is at its sole discretion. This does not in any way affect the Customer's right or ability to make use of the Web Re-direction facility as and when the Customer chooses. 3. Cancellation In entering into a Contract with Smudge IT for Domain Name Services, the Customer acknowledges that performance of the Contract will begin immediately and that it is hereby forfeiting its right to cancel the Contract under the Regulations. 4. Refunds and Credits 4.1 If the domain name requested by the Customer is unable to be registered the Customer will be entitled to a refund of any Fees paid in relation to an Order or a credit against any future Order. 4.2 Subject to clause 4.1 above the Customer shall not be entitled to any refund of Fees or a credit against any future Order. 5 Transfer of domain names 5.1 Customers are not permitted to transfer domain names for a period of 60 days following completion of the registration of the domain name. 5.2 Smudge IT reserves the right to refuse to transfer a domain where any monies are due from the Customer to Smudge IT in respect of that domain name. 5.3 Where the Customer wishes to transfer the ownership of its domain to a third party Smudge IT will charge an administration charge of £15 for effecting the transfer. Smudge IT reserves the right to increase this administration fee if Smudge IT incurs costs in excess of £15 in effecting the transfer and Smudge IT will notify the Customer of the increased fee as soon as practicable. 5.4 Any domain name not registered through Smudge IT but subsequently transferred to Smudge IT is subject to the Conditions. 5.5 In submitting a request for a domain name to be transferred to Smudge IT the Customer warrants that it is the registrant of the domain name or is authorised to act for and on behalf of the registrant. 5.6 In submitting a request for a domain name to be transferred to Smudge IT the Customer agrees to pay the fee for the next renewal of the domain at the time of the transfer. 5.7 In the event of a dispute regarding the ownership of or any rights to a domain name transferred to Smudge IT, Smudge IT reserves the right to take any and all necessary action to protect itself including (without limitation) the right to give the registry key for the domain name to the registrant and/or to authorise the transfer of the domain name away from Smudge IT. 6 Renewal of domain names 6.1 The Customer acknowledges that the Customer has ultimate responsibility for renewing the domain name and the Customer accepts that whether or not Smudge IT has successfully contacted the Customer pursuant to this clause Smudge IT cannot be held liable if the Customer fails to renew the domain name before its expiry. 6.2 The renewal of any domain name through Smudge IT is subject to the Conditions. 6.3 When renewing Global Domains Smudge IT reserves the right in its sole discretion to change the registrar through which the domain is registered and in requesting the renewal of a domain name the Customer authorises Smudge IT to make such a change. 6.4 Smudge IT does not warrant or guarantee that the domain name requested by the Customer will be renewed or be capable of renewal and the Customer should take no action in respect of the requested domain name until the Customer has been notified that the requested domain name has been registered. 6.5 Any domain name not renewed by its expiry date will be de-activated on the expiry date. To avoid loss of service, the Customer should ensure that domains are renewed well in advance of the expiry date. Uninterrupted service cannot be guaranteed. 6.6 Any domain name not renewed 30 days after its expiry date may be deleted. Once a domain has been deleted it cannot be renewed. At this point it will have to be re-registered and there is a risk that it may be registered by another person or company. To avoid loss of a domain name, the Customer should ensure that domains are renewed well in advance of the end of the 30-day grace period following the expiry date. Successful renewal cannot be guaranteed. C WEB-HOSTING, EMAIL, DEDICATED SERVERS AND BACK-UPS This Section C together with Section A of the Conditions constitute the terms of the Web-Hosting Services, the Email Services, Dedicated Server Services and Back-up Services, collectively known as the Hosting Services 1. Licence In accepting the Customer's application to subscribe to the Hosting Services, Smudge IT grants the Customer a non-exclusive, non-transferable, royalty free and restricted licence to use the requested services package, as published on the website at the time such services are purchased. 2. Provision of Services 2.1 The facilities and services provided within the Services will be defined by the description of the services applied for by the Customer on the Website at the time of the application, including but not limited to the specification of the storage space and data transfer that will be made be available. If the storage or data transfer limits are exceeded, it will be necessary for the Customer to upgrade the Services or purchase additional storage and/or data transfer as required. 2.2 Whilst Smudge IT undertakes to use reasonable endeavours to provide the Services promptly following the Customer's application, it is possible that restrictions in the availability of resources may lead to a delay. 2.3 Whilst Smudge IT undertakes to use reasonable endeavours to maintain an acceptable level of security, it cannot give any guarantee regarding the security of material hosted on the Smudge IT Server or Customer Server. 2.4 Whilst Smudge IT undertakes to use reasonable endeavours in the provision of the Services, it does not guarantee that provision of the Services will be error-free or uninterrupted. 2.5 Smudge IT may from time to time have to suspend the Services for repair, maintenance or improvement and in such circumstances Smudge IT undertakes to notify the Customer as far in advance as possible and to endeavour to keep the period of suspension to the minimum length of time necessary to carry out such works. 2.6 In light of clauses 2.3, 2.4 and 2.5 above the Customer accepts that the Services are not intended to be used in circumstances where fail-safe performance is required. 2.7 Smudge IT reserves the right to suspend or modify the Services if the Customer's continued use of the Services is determined, at Smudge IT's sole discretion, to be detrimental to the running of any Smudge IT Server or to the use of the Services by any other Customer. 2.8 Smudge IT reserves the right to terminate the Contract for the provision of Services at any time. If Smudge IT exercises this right for any reason other than as described elsewhere in these Conditions, Smudge IT will give 30 days notice of termination and will refund the Fees. 2.9 Smudge IT reserves the right to monitor the Customer Site, the Smudge IT Server and the Customer Server and the Customer's use of the Hosting Services and shall be entitled at all times and without notice to refuse to host any material and/or to suspend availability of the Customer Site or other Hosting Services and/or to remove any material which Smudge IT in its sole discretion believes contravenes any of the warranties in clause 3 below or otherwise harms Smudge IT. 2.10 Where Smudge IT proposes to take action pursuant to clause 2.9 above it shall notify the Customer of its action as soon as possible. 2.11 Smudge IT's rights to suspend availability of the Customer Site or other Hosting Services and/or remove material is without prejudice to the Customer's sole responsibility for the content of the Customer Site or other Hosting Services and to the warranties given by the Customer under clause 3 below. 2.12 The Customer acknowledges that hosting of the Customer Site, the provision of the Customer email account, the co-location of the Customer Server and the rental of a Dedicated Server by Smudge IT does not amount to Smudge IT's approval of the Customer Site or material on the site or the Customer's use of email or the Smudge IT Server or Customer Server and shall not under any circumstances constitute a waiver of any of Smudge IT's rights or the Customer's obligations under this Agreement. 2.13 On termination of the Contract, howsoever arising, Smudge IT shall be entitled to immediately stop access to and to remove all material from the Customer Site, Dedicated Server and email account and also to post an appropriate notice regarding the lack of availability of the Customer Site, Dedicated Server and email account 2.14 In relation to the use of email aliases and sub-domains: 2.14.1 If the Customer applies to use an email alias or sub-domain attached to a domain not owned by the Customer, Smudge IT cannot guarantee that the desired alias or sub-domain will be available; 2.14.2 If the Customer applies to use an email alias or sub-domain attached to a domain not owned by the Customer, Smudge IT cannot guarantee that the selected domain will continue to be available beyond the initial term of the Email or Hosting Services applied for. 2.15 In relation to the Dedicated Server Services: 2.15.1 Smudge IT will use commercially reasonable efforts to repair or replace any faulty component in the Smudge IT Server, but Smudge IT cannot be held liable for any delays due to factors beyond Smudge IT's control, including but not limited to delivery delays or non-availability of replacement components; 2.15.2 On request, Smudge IT will recover the Smudge IT Server on the Customer's behalf, subject to an annual limit, which is currently set to one such request per year; 2.15.3 Unless the Customer has purchased the Back-up Services in connection with the Hosting Services, a request from the Customer to recover the Smudge IT will result in the server being restored to its original state and any data, programs or web-sites belonging to the Customer will not be retained; 2.15.4 If the Customer so wishes, Smudge IT will install upgrades and patches to the Smudge IT Server from time to time. Only software that has been approved by the manufacturer of the Smudge IT Server will normally be installed, although Smudge IT may consider requests for installation of unapproved software at an additional cost, but Smudge IT cannot be held responsible for the functioning of a server running unapproved software; 2.15.5 In the event of the Customer requesting full root access to the Smudge IT Server, the Customer accepts full responsibility for all management and maintenance of the server, including but not limited to system monitoring and recovery and installation of all upgrades and patches; 2.16 In relation to the Back-up Services: 2.16.1 Smudge IT will use reasonable efforts to back up the Customer's data from the Smudge IT Server or Customer Server as defined by the description of the Back-up services on the Website at the time of the application, but Smudge IT shall not in any way be responsible or liable for any loss, damage, costs, expenses or other claims for compensation arising from any data, file or material being damaged, corrupted or lost from whatever cause; 2.17 In relation to the Plesk SWsoft Software 2.17.1 The Customer acknowledges and agrees that, except for the limited license in Condition C1 above all right, title or interest whatsoever (express or implied) in or to the SWsoft Software or any intellectual property rights therein is transferred or granted by Smudge IT or its suppliers or licensors to the Customer. The Customer acknowledges that Smudge IT's licensor has reserved the unrestricted right to, directly or indirectly, promote, market, sublicense and distribute the SWsoft Software, and may, without consent of, or liability to, Smudge IT or the Customer, add, delete or change the SWsoft Software, including specifications relating thereto. 2.17.2 The Customer shall not, nor shall it permit any third party to: (i) adapt, alter, modify, translate, create derivative works of, reverse compile, reverse engineer, disassemble, or otherwise attempt to reconstruct the source code of the SWsoft Software except to the extent that any such activity is expressly permitted by applicable law despite this restriction; (ii) reproduce the SWsoft Software except as part of its authorized use of the SWsoft Software under these Conditions; (iii) assign, rent, lease, distribute, disclose or provide any copies of the SWsoft Software to any third party or allow any third party to access or use the SWsoft Software, other than as expressly allowed under these Conditions; (iv) use the SWsoft Software for any purpose not authorized in this Agreement; or (v) remove, modify or obscure any of the trademarks, trade names, logos, patent or copyright notices, confidential or proprietary legends or other proprietary rights notices or markings that appear on the SWsoft Software, or otherwise displayed by the SWsoft Software. The Customer also agrees that it will not, nor will it permit any third party to, publish or otherwise disclose to any other third party the results of any benchmark tests run on the SWsoft Software. 2.17.3 The Customer undertakes to (a) not tamper with the SWsoft Software to circumvent the requirement for a license key; (b) use the license key provided only to activate the copy of the SWsoft Software for which it was issued and for no other purpose; and (c) maintain the confidentiality of the license keys with respect to the SWsoft Software. 2.17.4 The Customer hereby agrees to permit Smudge IT or its licensors or their designated representatives remote access to the servers and systems on which the SWsoft Software is installed and shall co-operate with any requirements of Smudge IT, its licensors or their designated representatives in this respect. 2.17.5 The Customer hereby undertakes to disclaim all liability of any kind in relation to the SWsoft Software on behalf of Smudge IT, its licensors and suppliers. 2.17.6 Smudge IT warrants and represents that the SWsoft Software will substantially perform in accordance with its applicable documentation for a period of 30 days after the Customers download of the SWsoft Software. Notwithstanding the foregoing, Smudge IT makes no warranties with respect to any GPL Software or other third-party software embedded in the Program and/or furnished to the Customer. 2.17.7 In the event of a breach of Smudge IT's warranty under 2.17.6 above, Smudge IT will, at its discretion, arrange for repair and/or make available replacement SWsoft Software which shall be the Customer's exclusive remedies. Smudge IT will not have any liability under this warranty if the alleged defect is due to causes not within it's reasonable control, including but not limited to any defect caused by any negligent act or omission by anyone other than Smudge IT or its licensors, any defect caused by use of the SWsoft Software in an operating environment not specified by the applicable documentation or otherwise not in accordance with these Conditions, or any defect caused by alteration or abuse of media on which the program is stored, failure to follow Smudge IT's or its licensor's instructions for installation, operation or maintenance, power failure or surges, fire, flood or the like. 2.17.8 OTHER THAN THE LIMITED WARRANTY SET FORTH IN 2.17.6 ABOVE, THE SWsoft SOFTWARE AND SERVICES PROVIDED BY Smudge IT UNDER THESE CONDITIONS ARE PROVIDED "AS IS", "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY LAW. No oral or written information or advice given by Smudge IT, its licensors or suppliers, agents or employees will create a warranty, and the Customer must use its own judgment in relying on such information or advice. Smudge IT AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS IN THE SWsoft SOFTWARE MEET THE REQUIREMENTS OF THE CUSTOMER OR THAT OPERATION OF SUCH SOFTWARE WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED AND HEREBY DISCLAIM ALL LIABILITY ON ACCOUNT THEREOF. 2.17.9 Neither Smudge IT nor its licensors or suppliers shall be liable in respect of any claims, damages or liabilities arising out of or relating to any of the following ("Excluded Claims"): (i) any product or component thereof that is not supplied by Smudge IT to the Customer hereunder; (ii) the combination of any SWsoft Software with any other products, equipment, component, process or material not obtained from Smudge IT under this Agreement; (iii) any modification to the SWsoft Software unless made by Smudge IT its licensors or suppliers if the alleged infringement arises from such modification; (iv) use of the SWsoft Software in violation of these Conditions; or (v) failure to use replacement or modified SWsoft Software that provides substantially similar functionality as the original SWsoft Software which replacement or modified SWsoft Software would have rendered the SWsoft Software noninfringing. The Customer shall indemnify and hold harmless Smudge IT its licensors and suppliers with respect to any and all Excluded Claims. No indemnification for any third party software products supplied by Smudge IT is provided under these Conditions unless and to the extent equivalent indemnification is provided to the Customer under the terms of Smudge IT's agreement with the licensor or supplier. 2.17.10 If the SWsoft Software becomes, or in the opinion of Smudge IT or its licensors or suppliers opinion is likely to become, the subject of an infringement claim, Smudge IT may, at its option and sole discretion, (i) obtain for the Customer the right to continue to use the SWsoft Software as provided in these Conditions; (ii) replace the SWsoft Software with another software product that provides substantially the same functionality; or (iii) if Smudge IT determines that neither of the foregoing options are reasonably available, require that the Customer ceases use of the SWsoft Software, and, provided that the Customer returns or destroys (and certify to such destruction of) all copies of the SWsoft Software in its possession or control, refund to the Customer the fees paid for such SWsoft Software, less a reasonable deduction for use based on a 3-year life of the SWsoft Software. 2.17.11 Either party may terminate the licence in respect of the SWsoft Software at any time upon no less then 30 days prior written notice to the other party. The Customer acknowledges that in the event that Smudge IT's licensors or suppliers terminate or suspend their arrangements with Smudge IT so that the SWsoft Software is no longer available Smudge IT shall not be liable. 2.17.12 Forthwith upon termination howsoever arising the Customer must (a) destroy any and all copies of the SWsoft Software and (b) certify in writing to Smudge IT its compliance with the foregoing. 2.18 The Customer shall be solely responsible for the Customer Site, and the Customer Server (and all material hosted thereon) and all material hosted on the Smudge IT Server and for ensuring that the Customer Server and Customer Site function satisfactorily. The Customer recognises that the use of the Hosting Services, the Dedicated Server services and the Co-location Services requires an essential knowledge of matters such as, without limitation, system administration and the languages, software and protocols of the internet. 2.19 If the Customer is paying for Hosting Services on a monthly basis, Smudge IT reserves the right to suspend the Hosting Services in the event of non-payment. If payment is not made within 1 month of suspension, Smudge IT may delete the content of the Customer Site and the Smudge IT Server and will have no further obligation to the Customer in respect of the Hosting Services. 2.10 If the Services are covered by a Service Level Agreement (SLA), the following conditions apply: 2.11.1 Loss of service caused by events described in clause A13 Force Majeure are excluded and may not be claimed for under the SLA; 2.11.2 Any guarantee relating to server re-boot is subject to the limitation described in 2.15.1 above; 2.11.3 The SLA excludes any server or network unavailability due to scheduled maintenance work for which the Customer has been given advance notification; 2.11.4 Claims under the SLA relating to Dedicated Server Services will be limited to the portion of the fees allocated to the Co-location Services; 2.11.5 If the Customer wishes to make a claim under the SLA, the claim must be made in writing within one month of the incident to which the claim relates. 3 Customer Warranties The Customer warrants, represents and undertakes: 3.1 The Customer accepts that it is not the responsibility of Smudge IT to ensure that the Customer has such knowledge or to provide such knowledge or support or assistance and that any assistance that may be given is offered purely on a goodwill basis 3.2 that it will obtain all necessary licenses and consents in respect of any material posted on the Customer Site, email account, Smudge IT Server or Customer Server prior to posting such material; 3.3 that any material posted on the Customer Site, Smudge IT Server or Customer Server or email sent through the Customer email account is not offensive, abusive, indecent, defamatory, obscene, menacing, in breach of confidence, and/or does not infringe the Intellectual Property Rights of any third party or contain a virus or other hostile code or constitute or encourage a criminal offence; 3.4 that it will not transmit any such material from the Customer Site, Smudge IT Server or the Customer Server nor will it link to any such material from the Customer Site, Smudge IT Server or the Customer Server; 3.5 that it will not nor will it permit or authorise any other party to use the Smudge IT Server, the Customer Site or the Customer Server in breach of any law or regulation; 3.6 that it will not nor will it permit or authorise any other party to use the Smudge IT Server, the Customer Site or the Customer Server in any way which is or may be detrimental to Smudge IT; 3.7 to abide by any limitations imposed by Smudge IT and to keep secure any confidential information provided by Smudge IT including any passwords to use the Hosting Services, the Email Services, Dedicated Server Services or the Co-location Services; 4 Cancellation 4.1 If the Customer is acting as a consumer and not as a business in submitting an Order for any Services, not including Domain Name Services then, pursuant to the Regulations, the Customer may, for a period of 30 working days commencing with the day following Smudge IT's acceptance of the Order, cancel the Contract. Upon cancellation the Customer shall receive a refund of any Fees paid in relation to the Order in question or a credit against any future Order. 5 Amendment Smudge IT may from time to time amend the Conditions and any such amendment will be displayed at least one month prior to the implementation of the amendment. If the Customer is a consumer it may end this Agreement by written notice at any time up to the date on which the amendment comes into force. Should the Customer place an Order or continue to use the Services following implementation of an amendment it will be deemed to have accepted the amendment. |
