Terms & Conditions (11th March 2016)
** THESE T&C's WILL REPLACE THE CURRENT ONES ON OR AFTER 18TH MARCH 2016 **
1.1 We are 123 Connect Ltd, company number 04850973 with our registered office at 101 Stansfield Road, Benfleet, Essex SS7 4NA. Our contact phone number is 0333 1214 123
1.2 This is an agreement between us and the individual or organisation applying for the provision of our Services.
1.3 You should read the main part of this agreement, which applies to all Services, together with any "additional terms" at the end of this agreement that relate to the particular Services you are ordering.
1.4 These terms and conditions take precedence if inconsistent with any material on our website.
2.1 The following definitions apply in this agreement:
"Acceptable Use Policy"
the Acceptable Use Policy on our website as varied from time to time
Data which you or third parties Transmit via or in connection with the Services
12 months unless an alternative contract period is specifically agreed by us in writing. We do not provide a "Monthly" or "Rolling Monthly" period.
information, documents, text, software, scripts, music, sound, photographs, graphics, video, messages and other materials of any kind and in any form
Data inputted by you or website users in connection with any sitebuilder website
where we have reason to believe that:
1. this agreement (including the Acceptable Use Policy) has been or may be breached;
2. it is necessary to protect us or our other customers or the public and/or to minimise our exposure to breach of Regulation or the risk of civil or criminal proceedings and /or to respond to claims of breaches or infringements of third party rights; or
3. your account has become the target of denial of service, hacking or other malicious activities.
"Intellectual Property Rights"
worldwide copyright, design rights, database right, patents and any rights to inventions, know-how, trade and business names, trade secrets, logos and devices, trade and service marks (whether registered or unregistered) and any applications therefor and all rights in confidential information
(1) ICANN or any equivalent body;
(2) the registries responsible for specific types of domain names
(3) domain name registrars or any equivalent bodies
contacting us via the "ticket" or equivalent contact forms within the client area of our website or by email or telephone to any email address or telephone number which we make available on our website specifically for "support"
as defined in the Data Protection Act 1998
all applicable laws, statutes, regulations, standards or codes of conduct, whether or not compulsory
hosting and any other related services (such as our sitebuilder, domain name, email, ecommerce and website backup services) which we supply to you
"Third Party Software"
any third party software which we download on your behalf
use, facilitate, generate, link to, upload, post, publish, download, store, disseminate, email, send or receive via or in any way connected with our Services
3. Changes to the terms and conditions
3.1 We may need to change the terms and conditions to comply with law or to meet our changing business requirements. If so, we will post notice on our website for at least 7 days before the change takes effect. Please check our site frequently. If you continue to use our Services after the effective date of the revised terms and conditions, you will be bound by them.
3.2 Any renewal of our Services will in any case be subject to our then current terms and conditions.
4. Our supply of the Services
4.1 Please note that we reserve the right in our absolute discretion not to proceed with any application or order by you.
4.2 Given the general nature of hosting and related services, we do not guarantee:
4.2.1 that the Services will be uninterrupted, secure or error-free; or
4.2.2 that any Data generated, stored, transmitted or used via or in connection with the Services will be complete, accurate, secure, up to date, received or delivered correctly or at all.
4.3 We are entitled, without notice and without liability, to suspend the Services for repair, maintenance, improvement or other technical reason. If so, we will use reasonable endeavours to ensure that the suspension is for the shortest period possible.
5. Service Level Agreement ("SLA") - applicable to dedicated servers only
5.1 Subject to the other terms of this SLA, we guarantee that dedicated servers which we use to host your Services will be available (i.e. able to send and receive Data) for at least 99.9% of the time for each Month. Downtime is calculated from the time when you Notify Us of an interruption to the Service until the time when the Service is restored.
5.2 The above excludes downtime resulting from:
5.2.1 planned maintenance;
5.2.2 Hardware Failure (as defined below);
5.2.3 actions or omissions by you or others authorised on your behalf;
5.2.4 denial of service, hacking or other malicious activities; or
5.2.5 networks or equipment not owned or managed us or anything outside our reasonable control.
5.3 If the above availability is not achieved ("Downtime") and, subject to you Notifying Us within five days of the end of the relevant Month, as your sole remedy we will credit you with an additional month of hosting Services as follows:
5.3.1 the free month will take effect at the end of the Contract Period in which the Downtime occurred;
5.3.2 the free month will be for the same hosting package which was in effect at the start of the Month in which the Downtime occurred; and
5.3.3 only the monthly hosting fee is waived and fees for any additional Services remain payable.
5.4 A "Hardware Failure" means a fault arising in, or the complete failure of, any hardware component forming part of a dedicated server. We will use reasonable endeavours to ensure that in the event of computers on the internet generally being unable to send or receive Data to/data from the dedicated server as a direct result of any Hardware Failure, the Company shall repair or replace the hardware component(s) in question within 8 hours ("the Response Time") of the fault or failure of such components being diagnosed by us. For each complete hour above the Response Time in any Month, you shall be entitled to be refunded 5% of the charges for the hosting service in respect of the Month in which the Hardware Failure occurs, up to a maximum refund of the entirety of such charges paid in that Month provided that you notify the claim within 14 days of the end of the relevant Month.
6.1 The Services include support only to the extent specifically provided for within the Services for which you subscribe and by the contact methods specifically provided for. Unless otherwise stated, our support service is intended to address configuration and proper use of, or any errors or interruptions arising from, our Services. We may in our discretion provide additional support beyond that expressly provided for but we reserve the right to charge for such additional support at our then current standard rates. We will always tell you in advance before providing any support which is chargeable.
6.2 We cannot guarantee that our support will be delivered within any particular timeframe or that it will achieve any particular outcome.
6.3 We shall not in any event be obliged to supply support:
6.3.1 in respect of faults or problems directly or indirectly or indirectly arising from incorrect use of the Services or any cause external to the Services;
6.3.2 where you are using anything other than the most recent version of, any relevant software;
6.3.3 where you or any third party not authorized by us has attempted to resolve the problem;
6.3.4 for application specific issues; or
6.3.5 if any fees due to us are unpaid.
7. Third Party Software
7.1 You agree to be bound by any third party licence or other terms and conditions applicable to the Third Party Software. We make no promise as to the suitability or performance of the Third Party Software.
8. Your obligations and promises
8.1 Where you communicate with us on behalf of a company / organisation, you promise that you have authority to act on behalf of that entity.
8.2 You acknowledge that your account on our Service is for use only by you or (if applicable) by your organisation and is non-transferable except through any mechanism that we may provide for that express purpose.
8.3 You must comply with our reasonable instructions, requests and guidelines concerning the Services, including those stated on our website.
8.4 You must promptly provide us with all information which we reasonably request in connection with the Services. You promise that all information including contact and payment information (eg email and postal addresses, credit card numbers) which you provide in connection with the Services is accurate and not misleading and that you will update it so that it remains so. We rely on this information for various reasons including the transmission of renewal notices and other important information concerning the Services. It is sufficient if we send such information by email to the most recent email address you have provided to us.
8.5 You must comply with our Acceptable Use Policy [insert hyperlink] and bring it to the attention of your authorised users. It may change from time to time and so please check it frequently.
8.6 You must ensure that your computers and systems comply with any minimum technical specifications which are specified by us as being necessary in order to use the relevant Services.
9.1 You acknowledge that there is a risk that Content may be irretrievably damaged or lost if there is a fault or on suspension or termination.
9.2 It is your responsibility to make frequent back-ups of all such Content that you wish to save. This applies even if you take up our website backup service, which is intended as a fallback. If you do take that service, then it is subject to the restrictions stated in the relevant service specification on our website including as to frequency of backups, storage period and restoration of backup files.
9.3 You acknowledge that our backup services do not include backups of emails held on our servers.
9.4 If you require us to supply a copy of any database held on our servers we reserve the right to make a charge for this. If you have our Backup Service option for databases then the conditions of that service will apply aswell.
10.1 Our hosting and sitebuilder fees are payable in advance of each Contract Period. Our fees for any additional Services must be paid within 7 days of the invoice date. You authorise us to take payment for additional Services using your credit card or payment details which we have been requested to hold by you, whether at the time of your next hosting payment or otherwise. If you pay by bank transfer you are responsible for all sending and receiving bank charges.
10.2 We may change our prices at any time. Any renewal will be subject to our then current prices.
10.3 Our fees are subject to VAT or other applicable taxes which must be in paid in addition at whatever rate is applicable.
10.4 All fees are non-refundable unless otherwise stated. All fees remain payable where we suspend this agreement or any Services in accordance with this agreement.
10.5 You must contact us and give us a reasonable opportunity to resolve the issue before making a chargeback. If you do not or if you make an unjustified chargeback / complaint, we reserve the right to suspend or terminate some or all of the Services and/or to charge a reasonable administrative fee and a separate fee to cover any fees charged to us by payment providers.
10.6 All payments must be made without deduction, counterclaim or set-off.
10.7 We may charge interest on overdue sums (both before and after judgment) on the amount unpaid at the rate for the time being that would be applicable if the debt were a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998.
10.8 We may charge a reasonable administrative fee in relation to each overdue payment.
11.1 If you sign up to one of our reseller packages, then you may resell the relevant Services to a third party on condition that you:
11.1.1 ensure that such third party is legally bound by terms which are no less onerous than these terms and conditions;
11.1.2 are fully responsible for the acts and omissions of any such third party; and
11.1.3 indemnify us for any loss or damage we suffer as a result of such acts or omissions.
12.1 You promise:
12.1.1 to keep any password, security phrase or private key secure (and you acknowledge that we may change these at any time for good reason);
12.1.2 to comply with our guidance or recommendations concerning password strength / security and, in any event to choose a strong and secure password;
12.1.3 to notify us immediately of any actual or suspected security breaches in connection with the Services; and
12.1.4 to comply with our reasonable security checks.
12.2 You promise to take reasonable steps in respect of matters in your control to minimize any risk of security breaches in connection with the Services e.g. by promptly implementing antivirus software and updates and security patches (except to the extent that you subscribe for any of our Services which include such features).
12.3 You acknowledge that you are responsible for all persons who use your password or other log-in information to access the Services, whether authorised or not, unless and to the extent that we are at fault.
13. Term / termination / suspension
13.1 This agreement will terminate automatically at the end of the relevant Contract Period unless you pay the relevant renewal fee before the end of the Contract Period.
If the fee is not paid by that time, we may in our discretion allow the contract to continue for a further grace period thereafter determined by us but we may suspend or terminate that grace period at any time whether with or without notice.
13.2 You can terminate this agreement at any time by Notifying Us. There will be no refund.
13.3 We may without refund suspend or terminate this agreement (as regards some or all of the Services) immediately on giving notice by email:
13.3.1 in the event of Exceptional Circumstances;
13.3.2 if any payment is overdue;
13.3.3 if we are required to do so by Regulation or competent authority or our upstream providers; or
13.3.4 it is otherwise permitted under this agreement.
We may decline to reinstate suspended Services unless we have received all outstanding payments and/or any assurances from you which (acting reasonably) we consider satisfactory. We are entitled to require payment of our reasonable costs before reconnecting suspended Services.
13.4 We may terminate this agreement (as regards some or all of the Services) without cause immediately on giving notice by email. If so, we may provide a refund in respect of any fees paid which relate to the unused part of the Contract Period.
13.5 The consequences of termination of this agreement for any reason are:
13.5.1 we will immediately stop supplying, and will terminate access to, the relevant Services - you acknowledge that this may involve irretrievable damage to or loss of Content and / or we may destroy any such Content including any files, images or databases associated with the website.
13.5.2 any fees due remain payable;
13.5.3 all licences granted by us will terminate;
13.5.4 accrued rights and liabilities will be unaffected; and
13.5.5 any termination of part of a bundled package of Services will terminate the entire bundle; however we may in our discretion allow you to convert certain of the bundled Services to stand-alone Services.
13.6 The clauses in this agreement which are expressed or intended to survive the termination of this Agreement shall survive.
14.1 Nothing in this agreement in any way limits or excludes our liability for negligence causing death or personal injury or for fraudulent misrepresentation or for anything which may not legally be excluded or limited.
14.2 No action or proceedings against us arising out of or in connection with this agreement shall be commenced more than one year after the relevant event one event or series of related events giving rise to our liability, and both parties acknowledge that this clause constitutes an express waiver of any rights under any otherwise applicable statute of limitations.
14.3 We are not responsible for any loss or damage which results from your failure to comply with this agreement.
14.4 To the extent allowed by law, you and we exclude all terms, whether imposed by statute or by law or otherwise, that are not expressly stated in this agreement. .In this clause, any reference to "us" includes our employees, directors, officers and agents.
14.5 Our liability of any kind (including our own negligence) with respect to our Service for any one event or series of related events is limited to the amount of the total fees payable by you in the 12 months before the event(s) complained of.
14.6 In no event (including our own negligence) will we be liable for any:
14.6.1 economic losses (including, without limit, loss of revenues, profits, contracts, business or anticipated savings);
14.6.2 loss of goodwill or reputation;
14.6.3 special, indirect or consequential losses; or
14.6.4 damage to or loss of data
(even if we have been advised of the possibility of such losses).
14.7 You will indemnify and hold us harmless against all losses, damages, liabilities, and expenses (including reasonable legal fees) arising out of (i) your use of the Services or (ii) your breach of this agreement. We shall have the sole right to control the defence and settlement of any such claim save that we shall consult with you prior to any settlement. You agree to provide reasonable assistance to us at your expense in the defence of same.
14.8 This agreement constitutes the entire agreement between us with respect to its subject matter and supercedes any previous communications or agreements between us. We both acknowledge that there have been no misrepresentations and that neither of us has relied on any pre-contractual statements. Liability for misrepresentation (excluding fraudulent misrepresentation) relating to the terms of this agreement is excluded.
15.1 We may access, copy, preserve, disclose, remove, suspend or delete any Content:
15.1.1 in the event of Exceptional Circumstances concerning that Content;
15.1.2 if we are required to do so by Regulation or competent authority; or
15.1.3 it is otherwise permitted under this agreement.
If so, you must not attempt to re-publish or re-send the relevant Content.
16. Personal Data
16.1 You acknowledge and agree that we may process Personal Data in accordance with the terms of our privacy and cookies policy which is subject to change from time to time.
16.2 If we process any Personal Data on your behalf, we promise that:
16.2.1 we shall do so only in accordance with this agreement or your written instructions, and
16.2.2 we will at all times have appropriate technical and organizational measures in place to protect all such Personal Data against unauthorised or unlawful processing, accidental loss, destruction or damage and that, having regard to the state of technological development and the cost of implementing any measures, the measures shall ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and to the nature of the data to be protected.
17.1 We both agree not to use for any purpose apart from this agreement or disclose any Confidential Data received from the other party. "Confidential Data" means Data identified as, or which clearly is intended to be, confidential.
17.2 This clause does not apply to Data which:
17.2.1 enters the public domain other than through breach of this clause;
17.2.2 is or becomes independently known to the receiving party free from any confidentiality restriction;
17.2.3 is required to be disclosed by Regulation or competent authority;
17.2.4 is reasonably disclosed to employees, suppliers or others for the proper performance of the agreement;
17.2.5 is reasonably disclosed to professional advisers; or
17.2.6 which we are otherwise permitted to disclose in accordance with this agreement.
18.1 We shall give notices under this agreement by email to the most recent email address which you have supplied to us for this purpose. You must give notices to us by Notifying Us.
19.1 We explain in the headings what each clause covers. These headings are for guidance only and are not legally binding. When we say "including", we mean "including without limitation".
19.2 If any part of this agreement is deemed void or ineffective for any reason, the offending words shall be deemed deleted and the remainder shall continue in full force.
19.3 We may assign (ie transfer) all or part of our rights or duties under this agreement. As this agreement is personal to you, you may not assign any of your rights or duties under it without our prior consent by email.
19.4 We shall not be liable for failure to perform or delay in performing any obligation (excluding payment) under this agreement if the failure or delay is caused by any circumstances beyond our reasonable control, including but not limited to failure of any communications, telecommunications or computer system.
19.5 The failure to exercise or delay in exercising a right or remedy under this agreement shall not constitute a waiver of the right or remedy.
19.6 Nothing in this agreement shall be construed as creating a partnership, agency or joint venture of any kind between us.
19.7 A person who is not a party to this agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement except insofar as expressly stated otherwise.
20. English law and jurisdiction
20.1 This agreement is governed by English law and and any disputes will be decided only by the courts of the United Kingdom.
21. ADDITIONAL TERMS APPLICABLE TO WEBSITE HOSTING SERVICES
21.1 This section of the terms and conditions applies to website hosting services. You should read this section in conjunction with the main part of the terms and conditions.
21.2 You bear sole legal and other responsibility for all Content. We do not, and are not obliged to, check Content (without prejudice to our rights to remove and take other steps in relation to Content).
21.3 You must observe the bandwidth, disk usage and other limitations specified when you ordered the Services including in relation to databases, emails and websites. It is your responsibility to monitor bandwidth. If you believe your website may be susceptible to high or otherwise abnormal usage you must contact us in advance to discuss the suitability of your hosting environment. You promise that bandwidth usage will be reasonably consistent throughout every month, without irregular bandwidth usage patterns, either individually or as part of a group of servers. If you breach this clause, we reserve the right to require payment of excess charges at our then current rates and/or to limit bandwidth usage and/or to suspend and/or terminate some or all of the Services immediately without notice.
21.4 We reserve the right to alter the hosting environment your site runs in to one with broadly like-for-like features, as long as reasonable notice is given and we take reasonable steps to minimise disruption to the Services.
21.5 You obtain no rights over any IP addresses allocated to our servers or otherwise arising in connection with our hosting services. We retain ownership and control of such IP addresses.
22. ADDITIONAL TERMS APPLICABLE TO SITEBUILDER SERVICES
22.1 For the avoidance of doubt, we retain all Intellectual Property Rights in connection with sitebuilder websites which we make available in connection with sitebuilder services. Subject to payment of the applicable fees, we grant you a worldwide, non-exclusive licence to use such websites during the period of this agreement.
23. ADDITIONAL TERMS APPLICABLE TO ECOMMERCE SERVICES
23.1 This section of the terms and conditions applies to ecommerce (i.e. shopping cart) services. You should read this section in conjunction with the main part of the terms and conditions.
23.2 You promise to resolve any customer order fulfillment complaints in a reasonable and timely manner such that we or our upstream provider do not receive a significant number of complaints against you.
23.3 You promise to provide your customers with reasonable access to contact information on your website including your name, address and email address so that they can contact you if they need to.
23.4 We reserve the right without liability to suspend or terminate ecommerce services at any time if so required by our upstream provider. You acknowledge that our upstream provider has the right to monitor your use of the service and to disclose information relating to the ecommerce services in order to comply with law or protect itself or third parties.
24. ADDITIONAL TERMS APPLICABLE TO DOMAIN NAME SERVICES
24.1 This section of the terms and conditions applies to domain name services including registration, hosting on our DNS, administration, transfers and renewals of domain names. You should read this section in conjunction with the main part of the terms and conditions.
24.2 You agree that you will be bound by and comply with the terms and conditions (from time to time in force) relating to the registration / use of domain names published by the relevant Naming Authority (including any applicable domain dispute resolution policies of that authority).
24.3 The extent of our registration services is: to use our reasonable endeavours to transmit your order for registration of new domain names to the relevant Naming Authority and notify you of the outcome within a reasonable period after communication from the authority. We can give no guarantee of success.
24.4 We may in our discretion cancel, take ownership, dispose of and /or refuse to register, release or renew any domain name:
24.4.1 if so required by our upstream provider;
24.4.2 in the event of Exceptional Circumstances concerning that domain name;
24.4.3 if any fees are overdue whether relating to the domain name or otherwise;
24.4.4 if we are required to do so by Regulation or competent authority; or
24.4.5 if it is otherwise permitted under these terms and conditions.
24.5 No refunds shall be given once domain names are ordered by you unless otherwise specified in this agreement.
24.6 The registration and renewal fees specified in our price list are subject to any variations in the charge made to us by the registry for the particular domain name (known as the "NIC fee").
24.7 You acknowledge that domain names are subject to deletion after the expiration date. You are ultimately responsible for diarising the expiration date and requesting us to renew the domain name and paying renewal charges in good time before the expiration date. We do not guarantee to notify you of any renewal date. Please note that we will not renew domain names if you have not paid for the renewal before the expiration date. You acknowledge that domain names will not necessarily be available for redemption after the expiration date. You are liable for paying any additional redemption fees which do apply.
24.8 Our renewal services do not apply to (and you are solely responsible for renewing) any domain name if the Services to which the domain name relates have been terminated for any reason.
24.9 If domain names are transferred to or from us, a fee may be payable as specified on our website.
24.10 You must carefully check our notification of registrations and renewals of domain names and inform us immediately if anything is incorrect. You must not take any action in reliance on ownership of the domain name until our notification.
24.11 We are not liable for the actions or omissions of any Naming Authorities.
24.12 Nominet Compliance: As members of Nominet we want to ensure that our customers are treated fairly at all times, to this end we have the following as part of our general terms and conditions. In addition you should refer to the Nominet Terms & Conditions before purchasing your .uk type of domain name
24.13 If you have a complaint or a problem with a .uk type domain name you should address this to us using email@example.com and we will do our best to resolve it, usually within 24/48 hours. If you feel that you need to escalate the issue please contact Nominet directly by using their website at www.nominet.uk/resources/complaints