Section 1 - Conventions
In this Agreement:
"User" means anyone the Client authorises to use the Service.
"The Company" means ShiftCreate Limited.
"Agreement" means, in order of precedence, this Service Agreement or the on-line Registration Form .
"Client" means the person(s) named on the Registration Form and any authorised user.
"Customer support" means all customer support and help services provided by The company to handle enquiries.
"Service" means all services provided by The company to the Client and user(s).
Section 2 - Agreement Duration
* This Agreement begins on the date that the Client uses a The company service and will continue until terminated in accordance with this Agreement.
Section 3 - Service Provision
* The company endeavours to provide uptime in excess of 99.9% at all times.
* The company will provide the Client with the Service on the terms of this Agreement.
* The company will provide the Service by any date agreed with the Client but the Client is advised that all dates are estimates and The company has no liability for any failure to meet any date.
* From time to time faults of a technical nature may occur. At such times, The company will endeavour to minimise any loss of service in such occurrences.
* The company reserves the right to:
i. change the technical specification of the Service;
ii. suspend the Service for operational reasons such as repair, maintenance or improvement of the Service or because of an emergency.
* The company is not responsible for any provision or maintenance of the Client computer hardware, software and telecommunications equipment that give the Client access to the The company services.
* The Client will indemnify The company of any responsibility for the acts and omissions of all Users in connection with the Service. The Client is liable for any failure by any User to perform or observe the terms and conditions of this Agreement.
Section 4 - Security
* The Client is responsible for the security and maintenance of all user names and passwords used in connection with the Service. The Client is advised to ensure passwords and user identities are kept confidential and secure.
* The Client is obligated as a matter of urgency to inform The company if there is any reason to believe that a user name or password has or is likely to become known to an unauthorised person(s).
* The Client must not change or attempt to change a user name or alias. If a Client forgets or loses a password or user name the Client must contact The company and satisfy such security checks as The company may operate.
* If at any time The company considers that there is or is likely to be a breach of security, The company reserves the right to suspend user name and password access to the Service or reserves the right to require the Client to change any or all of the passwords used by the Client in connection with the Service.
* The Client is obligated as a matter of urgency to inform The company of any changes to the information the Client supplied when registering for the Service.
Section 5 - Service Use
* The Service is provided solely for the Client's and Authorised Users use.
* The Service must not be used by the Client or any User in a way that does not comply with:
i. the terms of any legislation or any license applicable to the Client or that is in any way unlawful;
* The Service must not be used by the Client or any authorised User:
i. Fraudulently or otherwise unlawfully; to send, receive, upload, download, use or re-use any information or material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of confidence, copyright, trademark, service mark, patent, privacy or any other rights;
ii. to cause annoyance, inconvenience or needless anxiety;
iii. to transmit knowingly or recklessly any electronic material through the Service which shall cause or is likely to cause harm, in any degree, to computer systems owned by The company or other Internet users;
iv. to send or provide unsolicited advertising or promotional material or to receive responses to any unsolicited advertising or promotional material sent or provided using the Service by any third party; or
v. other than in accordance with the acceptable use policies of any connected networks.
* The Client must not use a user name or alias which infringes the rights of any person in a corresponding trade mark or name. The company reserves the right to require the Client to select a replacement user name or alias and may either refuse to provide or may suspend Service if, in The company's opinion, there are reasonable grounds for The company to believe that the user name or alias is, or is likely to be, used for a dishonest purpose, offensive, abusive, defamatory, obscene, or in violation of any person's intellectual property or similar rights.
* The Client must stay within their assigned quotas. Including but not limited to disk space usage/ bandwidth usage/ number of email accounts.
* The Client must settle invoices before they are due in accordance with the due date on the invoice.
Section 6 - Indemnity
* The Client hereby indemnifies The company from any claim brought by a third party resulting from the use of the Service. The Client further indemnifies The company in respect of all losses, including loss of turnover, sales, revenue, profits or indirect, consequential or special loss, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered or incurred by The company in consequence of the Client's breach or non-observance of the Agreement.
* The Client shall defend and pay all costs, damages, awards, fees (including any reasonable legal fees) and judgements awarded against The company arising from the above claims and shall provide The company with notice of such claims, full authority to defend, compromise or settle such claims and reasonable assistance necessary to defend such claims, at the Client's sole expense.
* This section known as 'Section 6 Indemnity' shall remain in effect for three years after the termination of this Agreement.
Section 7 - Confidentiality
* The company will keep in confidence any information provided to it by the Client. The company will not disclose any Client information to any person other than its employees without the Client's consent.
The exception to this is:
i. any information which has been published other than through a breach of this Agreement;
ii. information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
iii. information obtained from a third party who is free to disclose it;
iv. information which a party is requested to disclose and if it did not could be required by law to do so; or
v. information which has been reduced by The company to anonymous, non-personal form before disclosure
* This section known as 'Section 7 Confidentiality' shall remain in effect for 2 years after the termination of this Agreement.
Section 8 - Liability
* The company is not liable to the Client under any circumstances for direct or indirect loss of profits, sales, revenue, business or anticipated savings, indirect, consequential or special loss, nor for any indirect loss or damage, nor for the destruction of data.
* The company excludes all liability of any kind in respect of any material on the Internet which can be accessed using the Service and is not responsible in any way for any goods (including software) or services provided by third parties advertised, sold or otherwise made available by means of the Service or on the Internet.
* The company is not liable to the Client either under any circumstances for the acts or omissions of other providers of telecommunications or Internet services (including domain name registration authorities) or for faults in or failures of their equipment.
* If The company is unable to perform any obligation under this Agreement because of a matter beyond its reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving its employees), or acts of local or central Government or other competent authorities, or events beyond the reasonable control of its suppliers, it will have no liability for that failure to perform.
* Each provision of this Agreement, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
Section 9a - Domain Names
* The Client confirms and warrants that it is the owner of, or that the Client has been and is duly authorised by the owner to use, any trade mark or name requested or allocated as its Name.
* The Client acknowledges that The company cannot guarantee that any Name the Client requests will be available or approved for use.
* The Client recognises that a domain name may appear available at time of purchase, however owing to the varied updating processes of third-party databases, may come to realise that the domain was not available, even if paid for. Such occurrences are rare but do happen.
* The company has the right to require the Client to select a replacement Name and may suspend the Service if, in the opinion of The company, there are reasonable grounds for The company to believe that the Client current choice of Name is, or is likely to be, in breach of the provisions of this Agreement or the law.
* If the Service includes the registration of an Internet domain name the Client acknowledges and agrees that:
i. The company does not represent, warrant or guarantee that any domain name applied for by the Client or on its behalf will be registered in its requested name or is capable of being registered by it or that the use of such domain name by it will not infringe any third party rights. Accordingly, the Client should take no action in respect of its requested domain name(s) until it has been notified that its requested domain name has been duly registered and The company will not be liable for any such action taken by the Client.
ii. the registration of the domain name and its ongoing use by the Client is subject to the relevant naming authority's terms and conditions of use and the Client undertakes to The company that it will comply with such terms and conditions. The Client hereby irrevocably waives any claims it may have against The company in respect of any decision of a naming authority to refuse to register a domain name and, without limitation, the Client acknowledges and agrees that any administration or other charge paid by the Client in respect of the registration of the domain name is non- refundable in any event. Some of the key naming authorities details are provided below. When a Client uses the service to register a domain ending in .UK they are agreeing to Nominet's Terms and Conditions as well as the Company's terms and conditions. For the Nominet naming authorities terms and conditions visit: Nominet terms for .uk domain names.
For .com / .net / .org: ICANN terms and conditions.
* The Client shall have no right to bring any claim against us in respect of refusal to register a domain name or cancellation of the domain name by the relevant naming authority, Any administration charge paid by the Client to The company shall be non-refundable notwithstanding refusal by the naming authority to register the desired domain name.
iii. The company accepts no responsibility in respect of the use of a domain name by the Client and any dispute between the Client and any other individual or organisation regarding a domain name must be resolved between the parties concerned and The company will take no part in any such dispute. The company reserves the right, on becoming aware of such a dispute concerning a domain name, at its sole discretion and without giving any reason, to either suspend or cancel the relevant service associated with the domain name, and/or to make such representations to the relevant naming authority as it deems appropriate.
iv. The company make no representation that the domain name you wish to register is capable of being registered by or for you. You should therefore not assume registration of your requested domain name until you have checked the details against an appropriate WHOIS database. Any notification you receive from The company will act to inform you that we are applying for it on your behalf to secure the domain, not that it has been successfully registered. Any action taken by you prior to getting WHOIS confirmation is at your own risk.
v. The registration and use of your domain name is subject to the terms and conditions of use applied by the relevant naming authority; you shall ensure that you are aware of those terms and conditions and that you comply with them.
If The company cannot register a domain name, you, the user will be credited the domain registration fee in full, unless you have deliberately applied for a name that you are not entitled to, for example, a ltd.uk. You will not be entitled to any other form of compensation from us The company. Where payment has been made by credit or debit card, a credit shall be applied to your Account at The company or, subject to the discretion of the management, a refund may be given but only to the same credit or debit card. Due to the personalised nature of domain names and the registration process, unfortunately once registered or submitted the domain name cannot be cancelled and there can be no refund.
vi. We give no warranty that your domain name is or will continue to be available for your use or that no domain name is or will be registered which conflicts with your domain name or which otherwise affects your use of your domain name.
vii. We shall have no liability in respect of the use by you of any domain name any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
viii. We shall not release any domain to another provider unless full payment for that domain has been received by The company. You may not sell any domain name for which The company has not received payment. You may not transfer ownership of any domain name for which The company has not received payment.
ix. It is the sole responsibility of the user to provide us The company with up to date contact details and to inform us The company of any renewals concerning domain names registered.
x. Any Internet Protocol address allocated by The company to the Client shall at all times remain the sole property of The company and the Client will have a non-transferable licence to use such address for the duration of this Agreement. If this Agreement is terminated for whatever reason, the Client's licence to use the Internet Protocol address shall automatically terminate and thereafter it will not use such address.
Section 9b - Development
All invoices raised by the company shall become due for payment to be received-7 (seven) days following the date of invoice unless consent is expressly given in writing to the client for an extension of this period or terms of any account facility between the company and the client expressly state.
Invoices which are overdue for a period in excess of 14 (fourteen) days from the date of invoice for any services will be subject to suspension.
Furthermore, at the Company's sole description a Statutory Demand under Section 123 (1)(a) or 222(1)(a) of the Insolvency Act 1986 may be issued for non-payment for Goods and/or Services delivered.
If this remedy does not satisfactorily resolve any non-payment then a "Winding Up Order" may be issued in accordance with the relevant Acts of Parliament such as the Insolvency Act 1986, the Insolvency Rules 1986, Council Regulations (EC) No. 1346/2000 ('the EC Regulation') and the Companies Act 1985.
Any external service or supply of goods bought on behalf of the client, for or related to the provided service shall be passed through to the client at full cost.
The company shall pass on any charges for use of it's credit facilities with its own suppliers, credit card charges, packing, shipping and other handling of items to the client and will be detailed as such on the invoice.
The company reserves the right to charge a handling fee for any handling of items as set out in 2(iii).
The company reserves the right to pass on any excess charges it receives for late payment of invoices for services or goods supplied to the client including any interest charges from banks or other financial institutions.
By default, the company does not provide monthly credit facilities to customers other than the payment period of an invoice. The company may, at it's discretion, offer such facilities at a later date and reserves the right to apply to any number of external credit reference agencies for information before approving any facility and may carry out regular subsequent checks and if appropriate, suspend or withdraw any given facility and make demand for full settlement of any outstanding balance.
The company has the absolute right to withdraw it's services and cancel any contracts with the client at any given time. The company shall issue notice of such action in writing.
The company is not liable to the client under any circumstances for direct or indirect loss of profits, sales, revenue, business or anticipated savings, indirect, consequential or special loss, nor for any indirect loss or damage, nor for the destruction of data.
Under normal contractual service circumstances, the company provides no warranty or accepts any liability for any data either lost or damaged which is stored on any of the company's or client's equipment.
The company may provide a chargeable service to its clients whereby security copies of information will be made to record able compact discs / DVD's which may be stored by the company or sent to the client to be stored at his/her premises or any other such third party appointed by the client.
Where the company undertakes to provide intellectual services to the client, it agrees that the intellectual property of any software or documentation written for the client either carried out remotely or at the client's premises shall remain with the client once any and all invoices for such work are settled with the following reservations:
The company has the right to make a final backup of any work carried out for the client at the conclusion of the service.
The company may provide during the course of the service any modules, applications or software code that it has previously developed which is central to the development and conclusion of any project or service. The Intellectual Property including rights to re-use, modify, redistribute, make publicly available any such items will remain with the company at all times.
The client shall, without hindrance, be allowed to retain and use any such modules.
The company reserves the right to deliver any pre-existing software in an encrypted format.
The company reserves the right to licence the use of any pre-existing software to the client which may at the company's discretion contain time or limitation of use software. The company shall notify the client of any such provisions in writing at the onset or during the course of the contract.
The company reserves the right to re-use any central items of a similar nature developed for the client in any other contract it undertakes.
The company shall at its discretion, provide upgrades to such central modules or applications as they become available.
By default, the company shall deem that a contract for any form of service is in effect when asked to carry out any work for the client.
The company may require written confirmation of any work to be carried out.
The company may provide a written quotation subject to acceptance by the client at the request of the client.
The company reserves the right to vary the quotation at any time should the client make changes to any requirements of work to be carried out.
Any contract formed between the company and the client shall be mutually binding to the terms and conditions set out within this document. Any subsequent misuse of equipment, or non compliance with any of the regulations and terms as set out, shall result in termination of contract or suspension of service, with special inclusion to those details as set out in section 10.
If you choose to terminate your contract, the company will invoice for any work carried out plus any expenses and handling charges incurred to that time Termination charges for intellectual services will include up to 50 (fifty) percent of the outstanding contract balance.
The Company reserves the right to cancel your contract at any time without prior written notice of such upon finding that any of the terms and conditions set out herein this document or any subsequent revisions thereof have been broken.
The Company operates a closed policy on publicity and distribution of information and will not at any time divulge your name, address, telephone number, account details or electronic mail address to any non-legal third party and will only divulge your information to any legal establishment where it is deemed to be in the best interests and operation of the company.
The company accepts no liability for any loss of service, unavailability of files, damage to data, misuse of equipment by 3 rd parties, failure of any externally managed equipment or communications devices or other services deemed to be beyond the company's control.
The company will endeavour to make any corrections to development work in a timely manner where the work has not complied with the agreed specification. The warranty period is limited to 12 months unless stated otherwise. Extended warranty options are available to purchase on request. The warranty is voided if: the work has been deliberately or accidentally damaged by the client or a 3rd party. The warranty is voided if the the client or a 3rd party changes the website hosting environment. The warranty is voided if the client or a 3rd party make changes to the delivered website code.
Those forming an agreement as a reseller are additionally bound to the following. Any violation of these additional terms will result in immediate termination of your account.
At any time, the re-selling of any services is permitted to only one client who shall be the end of the chain, no sub-selling is permitted.
Your clients may not contact us directly, either by e-mail, telephone, fax or any other method. The company reserves the right to refuse to answer any questions from your clients.
The company will at all times advertise it's own products and services at it's own price scales to any person contacting the company.
In the eventuality of non-payment of invoices for any product or service, the company reserves the right to force total suspension of your services and your client's services until such time as any monies are paid. The suspension shall not be lifted until payment is confirmed. In the case of cheques, this may not occur until the cheque becomes cleared funds in our account.
Title of goods (including documentation, electronic or otherwise) shall not pass from the company to client until such time as any outstanding monies are paid in full or disputes resolved.
At all times in any disputes, the company's decision is final and will not be subject to outside adjudication by other parties.
These terms and conditions are formed under the laws of the United Kingdom and any legal claim shall be made in a court or via the legal system of the United Kingdom.
The Company at all times reserves the right to change the terms and conditions set out herein this document without prior written notice to any of its clients and any subsequent changes will become applicable immediately. No claims will be entered into which may not have been applicable in previous revisions of this document which are subsequently made provision for. Any claims by any client will only be acceptable on grounds outside the current revision of this document. The Company will at all times where reasonably possible make available for viewing its terms and conditions through its corporate web site
Section 9c - ShiftMail
i. ShiftMail is not to be used to send unsolicited emails.
ii. The company reserve the right to delete or archive report data older than 12 months.
Section 10 - Termination of Agreement
* Either party may terminate this Agreement on 14 days' notice to the other, without prejudice to any rights that may have accrued before termination.
All expensives and setup costs will be borne by the User.
Section 11 - Breaches of Agreement
* Either party may terminate this Agreement if the other:
i. commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so;
ii. commits a material breach of this Agreement which cannot be remedied; or
iii. is repeatedly in breach of this Agreement;
* If any of the events detailed in paragraph above occur because of the Client or an authorised User, The company may suspend the Service without prejudice to its right to terminate this Agreement. The company reserves the right to suspend or terminate any authorised User's use of the Service as an alternative remedy to immediate termination of the Agreement. This remedy is without prejudice to The company's right subsequently to suspend or terminate the Agreement. The company may refuse to restore Service which has been suspended under this section until it has received assurances satisfactory to The company that the breach has been remedied and will not be repeated.
* Termination under this paragraph is without prejudice to any rights that may have accrued before termination.
* If either party delays in acting upon a breach of this Agreement that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Agreement that waiver is limited to that particular breach.
Section 12 - Changes to this Agreement
* The company can change the Conditions of this Agreement at any time on 14 days' notice to the Client.
Section 13 - Assignment
* Neither party may assign or transfer any of its rights or obligations under this Agreement, without the written consent of the other.
Section 14 - Entire Agreement
* This Agreement contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
Section 15 - Notices
* Notices given under this Agreement may be delivered on-line or by e-mail. Additionally, The company may publish notices to the Client via the The company website; notices will be deemed effective on the date of publication, or otherwise as notified to the Client by The company. A notice from The company which is sent by e mail to the Client's e-mail address will be deemed effective 3 days after the date it is sent. A notice from the Client to The company will be deemed effective when received by The company at the e-mail address notified by The company to the Client.
Section 16 - Law
* This Agreement is governed by the law of England and Wales, and the Client submits to the exclusive jurisdiction of the Courts of England and Wales.