Terms and conditions

GENERAL WEBSITE TERMS AND CONDITIONS

1. DEFINITIONS AND INTERPRETATIONS
2. APPLICABILITY OF THESE TERMS AND CONDITIONS
3. DURATION
4. ACCEPTABLE USE POLICY
5. PASSWORDS
6. FEES
7. NETBENEFIT’S RIGHT TO CHANGE THE FEES
8. PAYMENT
9. INDEMNITY
10. DISCLAIMER
11. INTELLECTUAL PROPERTY RIGHTS
12. PUBLICITY
13. DATA PROTECTION
14. EXCLUSIONS AND LIMITATIONS OF LIABILITIES
15. CONFIDENTIALITY
16. RIGHTS TO TERMINATE
17. EFFECT OF TERMINATION AND EXPIRY
18. RIGHTS TO SUSPEND
19. FORCE MAJEURE
20. MISCELLANEOUS

1. DEFINITIONS AND INTERPRETATIONS

In these Terms and Conditions:

2. APPLICABILITY OF THESE TERMS AND CONDITIONS

1. These General Terms and Conditions apply to all Services that NetBenefit supplies to the Client. This includes any and all past, present and future orders, unless otherwise agreed.
2. In respect of each individual Service that NetBenefit agrees to supply Client as set out on the Order Form, the relevant set of Special Terms and Conditions will also apply.
3. To the extent that there is any inconsistency between an Order Form, any Special Terms and Conditions and these General Terms and Conditions the order of precedence as to their interpretation shall be:
   1. the Order Form;
   2. the relevant Special Terms and Conditions; and
   3. these General Terms and Conditions.

3. DURATION

1. This Agreement shall take effect in respect of each Service from the later of the date that:
   1. the Client and NetBenefit sign the relevant Order Form for that Service (if a paper-based Order Form is used); or
   2. the date on which NetBenefit confirms the Client’s order in writing, if the Client placed an order over the web or by telephone (as the case may be)
2. Notwithstanding that an Order Form may be binding on a Party from the date of signature, it may be that NetBenefit is not able to start supplying the relevant Service until a later date. NetBenefit will usually include an anticipated start date for the Service on the Order Form for the relevant Service; this shall be indicative only and time shall not be of the essence in this regard.
3. If any End Date is shown on the Order Form for a Service, this Agreement shall automatically renew on the same terms at such End Date unless either Party has notified the other Party in writing at least 30 days in advance that it does not wish to renew this Agreement in respect of such Service, subject in all cases to earlier termination in accordance with Clause 16. In all other cases all Services shall continue in force unless terminated in accordance with Clause 16.

4. ACCEPTABLE USE POLICY

1. NetBenefit publishes an Acceptable Use Policy on NetBenefit’s website, presently at http://www.netbenefit.com/netbenefit/Acceptable_use_policy. The Client must comply with the Acceptable Use Policy at all times during the Term.
2. NetBenefit may change the Acceptable Use Policy from time to time and NetBenefit will give the Client no less than 14 days notice of such change and thereafter the Client must comply with the Acceptable Use Policy as changed. NetBenefit will not make changes to the Acceptable Use Policy that are unreasonable or that undermine the purpose of this Agreement.

5. PASSWORDS

1. NetBenefit may issue the Client with one or more username and password (“Credentials?) combinations for use in connection with the Services. These Credentials are personal to the Client, the Client should not permit any unauthorised third party to use them.
2. NetBenefit may assume that all use of the Credentials is by the Client or authorised by the Client. NetBenefit shall have no liability to the Client for any unauthorised use of the Credentials.
3. NetBenefit may decline to provide certain aspects of the Services if the Client has not provided the correct Credentials to NetBenefit on request.
4. The Client must notify NetBenefit immediately if the Client believes that the Credentials have been compromised. Promptly upon notice NetBenefit shall:
   1. remove permissions from the compromised Credentials;
   2. issue the Client with a new set of Credentials.

6. FEES

1. The Fees for each of the Services shall be as set out on the Order Form.
2. Any Fees that are indicated as ‘set up costs’ may be invoiced by NetBenefit any time after signature of this Agreement.
3. Any Fees that are indicated as recurring shall be invoiced in advance at the frequency shown on the Order Form.
4. Sub-clauses (2) and (3) shall apply unless the Order Form states otherwise.

7. NETBENEFIT’S RIGHT TO CHANGE THE FEES

NetBenefit reserves the right to amend NetBenefit’s Fees with effect from each anniversary of an Order. NetBenefit will give the Client at least 60 days’ notice of any increase in Fees for the Services. In certain cases an increase in Fees may permit the Client to terminate the affected Service pursuant to Clause 16(3).

8. PAYMENT

1. The Client must pay NetBenefit’s Fees within 14 days of the date of NetBenefit’s invoice, subject to the provisions of sub-clause (2) and (3).
2. If the Client disputes any item on any of NetBenefit’s invoices in good faith, the Client must notify NetBenefit within 7 days of the date of the relevant invoice and must still pay any undisputed amount within the time permitted in sub-clause (1). If the Client does not notify NetBenefit within this time the Client must pay the full amount of the invoice within the time permitted under sub-clause (1), but the Client may still query the invoice with NetBenefit and in the event of a discrepancy, NetBenefit will correct the error on the next invoice (or if the Agreement has expired or terminated in the interim, issue a credit note or closing invoice (depending on whether the error constituted an over-charge or an under-charge).
3. In some circumstances NetBenefit may require payment in advance of providing the Services under an Order Form (for example, and without limitation, material hardware purchases and/or an inadequate credit check on Client). NetBenefit will notify the Client if NetBenefit has such a requirement.
4. The Client may not off-set any amounts that NetBenefit may owe the Client (under this or any other Agreement) against any of NetBenefit’s invoices unless NetBenefit has given the Client written permission to do so.
5. If the Client is late in paying any of NetBenefit’s invoices, NetBenefit may charge the Client (and the Client must pay) interest on such late payment at a rate of 10% (ten per cent) per annum, such interest to be calculated and compounded daily from the date that such payment should have been made to the date that it is actually made.

9. INDEMNITY

The Client indemnifies and shall hold NetBenefit and NetBenefit’s Group Companies, employees and directors (together the “Indemnified Persons?) harmless against all loss, costs, expenses, damages and liabilities suffered as a result of a claim against the Indemnified Persons (or any of them) brought or threatened to be brought in a court or tribunal of competent jurisdiction that arises directly or indirectly from a breach by the Client of this Agreement.

10. DISCLAIMER

NetBenefit may make certain warranties and representations in the relevant Special Terms and Conditions. With the limited exception of any such warranties and representations, in entering into this Agreement, the Client acknowledges and agrees that the Client has not relied on any other warranty or representation, and NetBenefit expressly disclaims all such warranties and representations including, without limitation, but to the maximum extent permitted by applicable law, any warranty relating to fitness for any particular purposes and merchantable quality.

11. INTELLECTUAL PROPERTY RIGHTS

1. For the avoidance of doubt, nothing in this Agreement shall act so as to transfer the intellectual property rights or any other proprietary right from one Party to the other.
2. Ownership of any documents produced by NetBenefit for the Client as part of the Services (and the intellectual property rights therein) shall remain NetBenefit’s unless otherwise agreed in writing. To the extent that any such document contains Confidential Information (as defined in Clause 15(1)), the provisions of Clause 15 shall apply notwithstanding the provisions of this Clause or any agreement to the contrary as to ownership.

12. PUBLICITY

The Client agrees that at all times during the currency of this Agreement NetBenefit may identify the Client in NetBenefit’s marketing material and on NetBenefit’s websites as a client. NetBenefit may use the Client’s corporate name, trading name and/or and logo to identify the Client. NetBenefit agrees that the Client may withdraw this consent at any time on no less than 14 days’ notice in writing to Us.

13. DATA PROTECTION

The Client consents to NetBenefit’s use of information about the Client for the following purposes:

1. performing credit checks on the Client;
2. the performance of NetBenefit’s obligations under this Agreement; and
3. as otherwise disclosed in NetBenefit’s Notification to the Office of the Information Commissioner.

14. EXCLUSIONS AND LIMITATIONS OF LIABILITIES

1. Neither Party limits or excludes its liability hereunder for any loss
   1. resulting from death or personal injury caused by its negligence or that of any of its agents or subcontractors;
   2. resulting from any statement or other representation made fraudulently.
2. NetBenefit's liability hereunder shall be limited solely to direct loss or damages caused directly by its gross negligence or wilful misconduct. In no case shall NetBenefit be deemed or held liable, in law, equity or otherwise, for any special, incidental, indirect or consequential loss or damages, including, without limitation, any loss or damages arising from lost customers, lost orders, lost profits, or lost revenues. By way of illustration only, and without limiting in any way the foregoing, this limitation of liability means that NetBenefit shall not be deemed or held liable for Domain Names lost or mistakenly Modified due to Customer's wrongful instructions, nor shall NetBenefit be deemed or held liable for losses incurred by Registrant due to Customer's untimely notification of the Registrant's rights and obligations under the applicable policies and regulations.
3. Neither Party shall be liable, nor responsible, for any third party technology, product, service, declaration, act or omission, or any other condition that is directly or indirectly referable to a third party.
4. For any Service in respect of which NetBenefit has agreed to offer the Client Service Credits, NetBenefit’s sole liability to the Client, and the Client’s sole remedy under this Agreement, for failure to comply with the relevant Service Levels shall be the payment by NetBenefit of the relevant Service Credits.
5. NetBenefit shall not be liable to the Client for any reason, for any loss of data.
6. Subject to sub-clauses (1) to (5) inclusive, each Party’s aggregate liability to the other in respect of all matters connected to this Agreement and under any head of law (including, without limitation, the tort of negligence) shall be limited to the greater of (i) £5,000; and (ii) the aggregate of the Fees paid over the period of 12 months immediately preceding the relevant breach, for the relevant Service in respect of which the breach occurred even if the Party was aware or ought reasonably to be aware of the likelihood of such liability.
7. In no event may the Client bring any claim against Us more than 12 months after the Client knew of (or ought reasonably to have discovered) the event(s) giving rise to the potential liability.

15. CONFIDENTIALITY

1. All information of a confidential nature (“Confidential Information?) given by either Party to the other or otherwise obtained shall be treated by the other Party, its employees and subcontractors as confidential and shall not be used other than for the benefit of the disclosing Party or the furtherance of each Party’s obligations under this Agreement. The foregoing applies notwithstanding that such Confidential Information may have been disclosed prior to this Agreement.
2. Each Party undertakes not to disclose, without the prior consent in writing of the other, Confidential Information belonging to or disclosed by the other in whole or in part to any other person save those of its employees, agents and contractors who are engaged in performing the provision or receipt of that Party’s obligations hereunder and have a reasonable need to know such information and to its board members, professional advisers and auditors who have a reasonable need to know such information in order to advise the Company or otherwise carry out their duties.
3. The provisions of the preceding clause shall not apply to any information which:
   1. is trivial or obvious (for the avoidance of doubt an element that is trivial or obvious in and of itself should not necessarily be taken as trivial or obvious in the context of the whole of the Confidential Information);
   2. becomes public knowledge other than by breach of this clause;
   3. is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party;
   4. is received from a third party who lawfully acquired or developed it and who is under no obligation restricting its disclosure;
   5. is independently developed without use of the other Party’s Confidential Information
4. It shall not be a breach of this Clause if the receiving Party is obliged to disclose the Confidential Information of the disclosing Party by order of a court of competent jurisdiction, pursuant to a regulatory demand or the rules of an internationally recognised stock-exchange provided that, so far as practical, the receiving Party gives prior written notice of such disclosure and provides reasonable assistance to the disclosing Party in trying to prevent or contain such disclosure.
5. At the request of a disclosing Party, the receiving Party shall promptly (and in any event within 30 days) return to the disclosing Party or destroy all Confidential Information of the disclosing Party and shall certify by a signature of a Director (as the term is understood in law) that is has complied with this sub-clause. In respect of confidential information stored electronically, it shall be sufficient that a party uses its reasonable endeavours to expunge such data from its systems. This shall not include the expunging of such data from a party’s enterprise level backups or archives unless and until such backups and/or archives are restored to a live environment.

16. RIGHTS TO TERMINATE

1. Either Party may terminate this Agreement without liability immediately on written notice to the other Party in the event that:
   1. the other Party has breached any material provision of this Agreement, or, in the Client’s case, the Client has breached the provisions of Clause 4 and/or 8 (whether or not such provisions are regarded as material) and:
      1. such breach is un-remediable; or
      2. such breach has not been remedied within 15 days of receipt of written notice from the other Party requiring that such breach is remedied.
   2. the other Party can no longer pay its debts as they fall due or has had an Administrator, Liquidator, Manager, Receiver or Administrative Receiver (or any appointment similar in effect to any of the foregoing) appointed over any or all of its assets.
2. NetBenefit may terminate the supply of any Service without liability to the Client in the event that NetBenefit is no longer commercially able to continue the supply of such Service due to a change in the legal or regulatory environment. In such a case NetBenefit will give the Client reasonable prior written notice and shall try to provide the Client with reasonable assistance in migrating to an alternative supplier.
3. The Client may terminate the receipt of a Service hereunder, without liability to NetBenefit, in the event that NetBenefit has notified the Client of an increase in Fees for that Service that is in excess of 15% of the Fees previously charged (excluding any discounts that may have been offered on). The Client must exercise this right to terminate within 30 days of receiving the notice of such increase otherwise the Client shall be deemed to have unconditionally accepted such increase in Fees.
4. The Client may terminate the receipt of a Service hereunder, without liability to NetBenefit, in the event that an event of Force Majeure (as referred to in Clause 19) continues for more than 15 days.
5. References to the termination of a Service in this Clause shall be deemed to include any other Service that is materially dependent on the Service being terminated.

17. EFFECT OF TERMINATION AND EXPIRY

On termination or expiry (howsoever caused):

1. (or at the expiry of any Run-Off Period if provided for in any Service), NetBenefit will cease providing the relevant Service or Services (as the case may be);
2. all the accrued rights and remedies of both Parties shall remain unaffected;
3. the provisions of Clauses 1, 2, 8 (in respect of any unpaid invoices), 9, 14, 15, 17, 19 and 20 shall remain in force, notwithstanding termination.

18. RIGHTS TO SUSPEND

1. In any circumstances in which NetBenefit may have the right to terminate this Agreement and/or any Order, NetBenefit may suspend the provision of any Services under any one or more Orders in order to provide the Client and Us some time to resolve any issues that have arisen.
2. Suspension shall not relieve the Client from the liability to pay the Fees during the suspended period.
3. NetBenefit shall promptly re-enable the relevant Services in the event that the issues prompting the suspension have been resolved to NetBenefit’s satisfaction (acting reasonably).
4. The provisions of this Clause are in addition to and are without prejudice to NetBenefit’s right to terminate this Agreement and/or any Order.

19. FORCE MAJEURE

In the event that NetBenefit is prevented or hindered from providing the Services to the Client as a result of any event beyond NetBenefit’s reasonable control then NetBenefit shall not be liable to the Client in respect of any resultant breach.

20. MISCELLANEOUS

1. If any part of this Agreement becomes or is illegal or unenforceable that part of this Agreement shall be deemed excised and the Parties shall act in good faith to replace the relevant part of this Agreement with an alternative that is not illegal or unenforceable and that maintains the intended business relationship between the Parties.
2. This Agreement represents the entire relationship between the Parties and supersedes all previous written or other correspondence and agreements as to the subject matter of this Agreement.
3. The Parties are entering into this Agreement as principals and nothing in this Agreement shall serve to create any agency or partnership benefiting the Parties.
4. No amendment to this Agreement shall be valid unless made in writing and signed by authorised representatives of both Parties.
5. No rights under this Agreement shall accrue to any person that is not expressly a party to this Agreement.
6. If either Party needs to send notices to the other Party they shall do so by first-class (or international equivalent) pre-paid post to the address given for that Party at the start of this Agreement or such other address as a Party may notify the other Party in accordance with this Clause.
7. Any notice will be deemed to be delivered 48 hours after posting it unless posted internationally, in which case delivery shall be deemed to take place 72 hours after postage.
8. This Agreement shall be governed by and construed in accordance with the laws of England (without regard to its provisions on conflict of law). The Parties expressly and unconditionally submit to the exclusive jurisdiction of the courts of England and Wales save that NetBenefit may enforce any judgement on the Client anywhere in the World where the Client may have assets.
9. 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. The registration and use of UK domain names is governed by Nominet UK, the registration and use of international domain names (.com, .net, .org, .biz, .info and .name) which are governed by ICANN is performed through NetBenefit in conjunction with NetNames, the registration and use of .eu domain names is governed by NetNames (a registrar accredited for registration of .eu domains), the registration. In submitting an Order the Customer will be deemed to have read and understood the terms of the relevant registration agreement, which can be reached via the following links: Nominet UK and NetNames