o By proceeding with the purchase of this Eschoolwebsite product ('the Product') you agree to be legally bound by:
o the terms and conditions ('the Terms') set out below with immediate effect. If you do not agree to be legally bound by all the following terms please do not continue with this purchase; and
o the terms and conditions of Nominet which can be found by clicking on the following link: http://www.nominet.org.uk/nominet-terms. This is a separate contract independent of your agreement with Eschoolwebsite.
Eschoolwebsite may change these terms at any time by posting changes online. Please review these terms regularly to ensure you are aware of any changes made by the Eschoolwebsite. Your continued use of eschoolwebsite.com after changes ares posted means you agree to be legally bound by these terms as updated and / or amended.
Unless expressly stated in writing by Eschoolwebsite.com all fees and charges set out in these Terms are inclusive of VAT.
Eschoolwebsite.com is a trading name of Kinix Ltd.
o Basis of Purchase
The order placed by the Customer constitutes an offer to purchase the Product and acquire the Services subject to these Terms. The order will lapse unless unconditionally accepted by Eschoolwebsite within 7 days of its date.
No variation to the order or these Terms shall be binding unless agreed in writing between the authorised representatives of the Customer and Eschoolwebsite.
Provision of Services
The Customer will have the benefit of the full range of Eschoolwebsite's features as listed on eschoolwebsite.com under http://www.eschoolwebsite.com/features
The Services are provided to the Customer (price plan – 50 pounds per month) for a current fee of £50 per month inclusive of VAT for one year (there is an additional fee for additional development, support and training). At the expiration of one year the Customer can renew the Services provided by Eschoolwebsite.com for the current fee of £50 including VAT per month paid monthly in advance.
The Services are provided to the Customer (price plan – 100 pounds per month) for a current fee of £100 per month inclusive of VAT for one year (there is an additional fee to cover the costs of post and packing where applicable). At the expiration of one year the Customer can renew the Services provided by Eschoolwebsite for the current fee of £100 including VAT per month paid annually in advance.
The Services are provided to the Customer (price plan – 150 pounds per month) for a current fee of £150 per month inclusive of VAT for one year (there is an additional fee to cover the costs of post and packing where applicable). At the expiration of one year the Customer can renew the Services provided by Eschoolwebsite for the current fee of £150 including VAT per month paid annually in advance.
The Customer may, at any time, transfer their Website domain name away from eschoolwebsite.com to an alternative hosting solution, providing that the customer has no outstanding debts with eschoolwebsite and the customer has paid their contract value in full.
Eschoolwebsite.com is not responsible for any third party charges incurred by transferring a domain name away from eschoolwebsite.com. eschoolwebsite.com will charge a one off fee of £100 including VAT to transfer the domain name to an alternative hosting company to cover administrative costs.
Domain names registered using Eschoolwebsite are final and cannot be changed. Any changes will require the registration of a new domain
If the Customer does not renew the Services the domain name and service plan will continue to run until eschoolwebsite.com are otherwise notified.
Eschoolwebsite excludes liability for any loss of profit caused to the Customer by the expiration of the domain name as a result of the Customer's failure to renew the Services.
Eschoolwebsite excludes liability for any loss of profit caused to the Customer by the expiration of the domain name as a result of a technical fault or any other fault caused by any third party.
Eschoolwebsite excludes liability for any loss of profit caused to the Customer by the expiration of the domain name as a result of a technical fault of any other fault caused by the negligence of Eschoolwebsite.
Eschoolwebsite reserves the right to adjust the cost of the Services at any time.
The Customer acknowledges that Eschoolwebsite's systems, servers and equipment may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes outside its control.
In the event of any such interruptions Eschoolwebsite will notify the Customer by email as soon as reasonably practicable of any such interruptions to its ability to provide the Services.
Eschoolwebsite agrees to rectify faults or problems and to restore the system to full operational capacity as soon as reasonably practicable.
Subject to Eschoolwebsite's compliance with clause 4.3 above, Eschoolwebsite excludes liability for any loss of profit caused to the Customer as a result of the system not being fully operational.
Eschoolwebsite gives no condition, warranty, or undertaking, and makes no representation to the Customer about the suitability of, or fitness of the Services for the Customer's purposes other than those conditions, warranties, undertakings or representations expressly set out in these Terms.
With the exception of any rights which the Customer may have under applicable law in all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from the Terms to the fullest extent permitted by law.
Nothing in these Terms excludes or limits the liability of Eschoolwebsite for:
o death or personal injury caused by Eschoolwebsite's negligence; or
o from further fraudulent misrepresentation or fraud.
Subject to clauses (ii) and (iii):
o Eschoolwebsite's total liability in contract, tort, (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the fees received in relation to the Services; and
o In no event shall Eschoolwebsite be liable to the Customer whether arising under these Terms or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. 'Consequential Loss' shall for these purposes mean (i) pure economic loss (ii) losses incurred by any customer of the Customer or other third party (iii) loss of profits (whether categorised as direct or indirect) (iv) losses arising from business interruption (v) loss of business revenue, goodwill, anticipated savings (vi) losses whether or not occurring in the normal course of business, wasted management or staff time (viii) loss or corruption of data.
Eschoolwebsite will not be responsible for the accuracy and / or functionality of the material created or supplied by the Customer to Eschoolwebsite ('Customer Content') in the form in which it is provided by the Customer or as modified upon and in accordance with the Customer's instructions for inclusion on the website.
Eschoolwebsite will not be responsible for the Customer's failure to fulfil any orders placed for those goods or services being sold or promoted by the Customer on its website.
If Eschoolwebsite reasonably forms the view that the Customer Content of any website may be pornographic, defamatory, misleading or deceptive or otherwise in breach of any third party's rights or in contravention of applicable law, including breach of any third party intellectual property rights, Eschoolwebsite may without prior notice or any liability remove that Customer Content from the website and shall within 24 hours thereafter notify the Customer of its removal.
With reference to clause (iii) above the Customer agrees to take all reasonable steps to ensure they are not in breach of any third party intellectual property rights by, including but not exclusively limited to, the illegal use of commercial songs on their MP3 players and / or by the unauthorised use of copyright works and / or by the unauthorised use of any registered intellectual property rights.
The Customer shall indemnify and hold harmless Eschoolwebsite and its affiliates, employees, agents, contractors, directors, officers and third party providers from all liabilities, demands, costs and expenses (including legal expenses) arising in connection with any Customer Content including but not limited to the posting and / or transmission of Customer Content on the website.
Eschoolwebsite agrees that the Customer will own all the intellectual property rights in the Customer Content of the website.
The Customer will have sole responsibility for the use of any third party intellectual property rights included on the Customer's website and in the Customer Content. The Customer agrees to take all reasonable steps to ensure that the use of any third party intellectual property rights has been authorised and is not in contravention of any applicable law.
Any intellectual property rights owned by either party and required for the performance by the other party of its obligation under these Terms or the use of the website by the Customer shall be licensed to that other party on a non-exclusive, irrevocable, royalty free basis for the period during with the use of those rights by that party pursuant to these Terms is required.
Neither party shall grant a sub-licence under the licences created without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
Eschoolwebsite maintain ownership of the content management system, all code, designs and database and will not release this to the customer.
Eschoolwebsite may terminate the Services by notice in writing to the Customer in the event that:
o the Customer fails to pay the amount due to Eschoolwebsite and does not make that payment within 7 days after receiving notice requiring the client to do so;
o the Customer fails to perform any of the obligations on its part to be observed or performed pursuant to these Terms and such failure is not remedied by the Customer within 14 days after receipt of it of a notice in writing requiring the default to be remedied;
o any of the warranties or representations made by the Customer are false or inaccurate in any material way.
The Customer may request in writing that the domain name be transferred to an alternative hosting company, thereby terminating the Services, provided that:
o the Customer has no outstanding debt due to Eschoolwebsite; and
o the Customer pays Eschoolwebsite a fee of £15 for the costs transferring the domain name incurred by Eschoolwebsite
Either party shall be entitled to terminate the Services provided immediately by notice in writing to the other if the other party shall:
o commit any material breach of any of its obligations under these Terms which (in the case of a breach capable of being remedied) shall not have remedied within 14 days after receipt of written request so to do;
o pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect;
o have an administrator appointed or documents are filed with the court in respect of such appointment or notice is served of an intention to appoint an administrator by that party or its directors or by a qualifying floating charge holder as provided in the Insolvency Act 1986, paragraph 14 Schedule B1;
o make any voluntary arrangement with its creditors or become subject to an administration order;
o have a receiver or manager or similar official appointed over the whole or substantial part of its undertaking or assets of such party;
o cease or threaten to cease to carry on business; and
o have any similar event occur under law of any other jurisdiction in respect of it.
Equipment and access
The Customer must provide, at its own cost, telecommunications services, computers and other equipment or services necessary to enable it to have access to the Services. The Customer must comply with all the rules and regulations that apply to the communications means by which the Customer obtains access to the Services.
Personnel and subcontractors
Eschoolwebsite may in its absolute discretion sub-contract the performance of any of its obligations under these Terms.
Each party warrants to the other that;
o it has the authority to perform its obligations under these Terms; and
o it has the ability to perform its obligations under these Terms.
Eschoolwebsite warrants to the Customer that the Services:
o will be provided by appropriately qualified and experienced personnel using all reasonable care and skill;
o will not knowingly infringe the Intellectual Property rights of any third party
The Customer warrants to Eschoolwebsite that:
o the use by Eschoolwebsite of any works or materials submitted by the Customer to Eschoolwebsite under these Terms will not infringe the rights of any person or contravene any law;
o it is solely responsible for communicating with persons who access its websites or other sites and that it will not divert any complaints or concerns to Eschoolwebsite.
11.4 Eschoolwebsite shall not be liable for defects resulting from improper use of the Services by the Customer or by another third party.
Each party ('the first party') indemnifies and undertakes to keep indemnified the other party, its officers, employees, contractors and agents ('the second party') against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, employees or agents in any way connected with these Terms arising from any failure of the first party to comply with these Terms or otherwise.
The indemnity extends to and includes all costs, damages and expenses reasonably and properly incurred by the second party in defending any such action, proceeding claim or demands.
Each party may use the Confidential Information of a disclosing party only for the purposes of these Terms and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
Each party may disclose Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of these Terms but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
All documents and other materials containing Confidential Information of either party will be returned to that party immediately upon termination of the Services
The parties' obligations to keep information confidential will survive the termination of the Services.
The obligations of confidentiality do not extend to information that:
o is or becomes public knowledge (otherwise than as a result of a breach of these Terms); or
o is required by law to be disclosed
'An event of force majeure' means, in relation to either party, an event or circumstance beyond the reasonable control of that party including (without limitation) any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out or trade dispute or labour disturbance, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet service provider, war, military operations, act of terrorism or riot, delay or failure in manufacture, production or supply by third parties of equipment or services.
The party suffering the event of force majeure shall not be deemed to be in breach of these Terms or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under these Terms (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an event of force majeure.
If the event of force majeure in question prevails for a continuous period in excess of 3 months after the date on which it began, the other party may give notice to the party suffering the event of force majeure terminating the Services. The notice to terminate must specify the termination date, which must be not less than 30 clear days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, these Terms will cease to be operative from the termination date set out in the notice.
If any provision of these Terms is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these Terms and rendered ineffective as far as possible without modifying the remaining provisions of the Terms, and shall not in any way affect any other circumstances of or the validity or enforcement of the remaining Terms.
o Alternative Dispute Resolution
All disputes at any time arising between the parties that cannot be resolved by negotiation may be referred to an expert in accordance with the remaining provisions of this clause.
The expert shall have appropriate qualifications and practical experience to resolve the particular dispute and be agreed by the parties or in the event of failure to agree shall be appointed by the President for the time being of the British Computer Society.
The parties shall promptly furnish to the expert all information relating to the particular dispute reasonably requested by him, imposing appropriate obligations of confidence.
The expert shall be required by the parties to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible so soon thereafter as may reasonably be practicable and the parties shall co-operate fully with the expert to achieve this objective.
The parties shall share equally the fees and expenses of the expert. The decision of the expert shall be final and binding upon each of the parties.
For the avoidance of doubt the provisions of this clause provides for a form of advanced dispute resolution and is not a reference to arbitration.
Conflict of Terms
Except as otherwise expressly provided in these Terms in the event of any conflict between these Terms and the standard terms and conditions of the Customer these Terms shall prevail.
Law and Jurisdiction
Under these Terms any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to it or its formation, shall be governed by and construed in accordance with the laws of England.
The parties irrevocably submit to the exclusive jurisdiction of the courts of England to hear and determine any suit, action or proceedings or settle any disputes arising out of or in connection with these Terms and to enforce any judgment against their respective assets.
Exclusion of Third PartiesThe Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms and no person other than the parties to these Terms shall have any rights under it, nor shall it be enforceable under that Act