Service Agreement
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ENBECOM LTD
SERVICE AGREEMENT
1 Interpretation
In this Contract:
"Authorised User" means anyone the Customer allows to use the Service.
"Enbecom", "Enbecom Ltd", "we", "us", "our" means Enbecom Ltd, a company registered in England and Wales with number 11749458 and whose registered office is 124 City Road, London, United Kingdom, EC1V 2NX
"Code of Conduct" means the Regulations and the General Conduct guidelines regarding the use of the Service issued by Enbecom for the protection of the Customer and other users of the Service and made available for the Customer and Authorised Users to read and review on-line.
"Contract" means, in order of precedence, this Service Agreement, the written or on-line Registration Form and the Code of Conduct.
"Customer" means the person named on the Registration Form or Order Form, or otherwise placing the order, and in the case of instructions given to Enbecom, anyone reasonably appearing to Enbecom to be acting with that person's authority or permission.
"Customer Hosted Data" means the data, materials and content hosted by Enbecom on behalf of the Customer which may include, but shall not be limited to: Customer or third-party owned transactional e-commerce websites and other websites, data generated through the processing of Enbecom-hosted Customer Hosted Data, CRM management data and core business applications where the Customer is deemed the Data Controller under the applicable Data Protection Laws.
"Customer Hosted Solution" means Enbecom services that are purchased by or otherwise allocated to the Customer, including, but not limited to, dedicated servers, virtual servers and other hosting services.
"Enbecom Rules And Regulations" means the Website Terms of Use, Privacy Policy / Privacy Notice, Consumer Information and other terms and conditions made available for the Customer and Authorised Users to read and review on-line.
"Helpdesk" means the e-mail helpdesk facility provided by Enbecom to handle enquiries and administration for the Service.
"Internet" means the global data network comprising interconnected networks using the TCP/IP protocol suite.
"Service" means the domain name registration service, the web hosting service, the e-mail service, the website design service, the website maintenance service, the server rental and/or management service, the internet marketing service, and any other related or ancillary services provided by Enbecom in conjunction therewith.
"Suppliers" means businesses or companies that provide services and technology to Enbecom for the provision of Service.
2 Duration
This Contract begins on the date that the Customer completes the written or on-line process to place an order with Enbecom and this order is explicitly accepted in writing by Enbecom. This contract will continue until terminated in accordance with this Contract.
3 Provision of the Service
3.1 Enbecom will provide the Customer with the Service on the terms of this Contract.
3.2 Enbecom will use reasonable endeavours to provide the Service by any date agreed with the Customer but all dates are estimates and Enbecom has no liability for any failure to meet any date.
3.3 Enbecom will provide the Service with the reasonable skill and care of a competent provider of services which are the same or similar to the Services.
3.4 It is technically impracticable to provide a fault free Service and Enbecom does not undertake to do so. Enbecom will however use its best efforts to procure the repair of any reported faults as soon as it reasonably can.
3.5 Occasionally Enbecom may:
(a) change the technical specification of the Service;
(b) suspend the Service for operational reasons such as repair, maintenance or improvement of the Service or because of an emergency.
3.6 The Customer is responsible for providing suitable computer hardware, software and telecommunications equipment and services necessary to access and use the Service. This Contract does not include the provision of telecommunications services necessary to connect to the Service or to obtain access to the Internet.
3.7 The Customer is responsible for the acts and omissions of all Authorised Users in connection with the Service and is liable for any failure by any Authorised User to perform or observe the terms and conditions of this Contract.
3.8 The Customer acknowledges that he or she is aware of the Code of Conduct and that the Code of Conduct has been made available for the protection and safety of the Customer and others using the Service. The Customer agrees to ensure that any Authorized Users are aware of and familiar with the Code of Conduct.
3.9 The Customer acknowledges that he or she is aware of the Enbecom Rules And Regulations and that the Enbecom Rules And Regulations have been made available to comply with legislation and for the protection and safety of the Customer and others using the Service including Enbecom. The Customer agrees to ensure that any Authorised Users are aware of and familiar with the Enbecom Rules And Regulations.
3.10 Enbecom may work with third-party Suppliers to provide Services, however in the case of services where a Customer contract is with Enbecom, details of the arrangements with third parties are confidential between Enbecom and Suppliers for commercial and operational reasons.
4 Security
4.1 The Customer is responsible for the security and proper use of all user names and passwords used in connection with the Service (including changing passwords on a regular basis) and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised people.
4.2 The Customer must immediately inform Enbecom if there is any reason to believe that a user name or password has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way, or if there has been a suspected or actual security breach of a Customer's Services.
4.3 The Customer must not change or attempt to change a user name or alias. If a Customer forgets or loses a password or user name the Customer must contact Enbecom and satisfy such security checks as Enbecom may operate.
4.4 The Customer must take all reasonable steps, on an ongoing basis, to ensure that all Web Sites, web applications, files, emails and configuration settings hosted on Services provided to the Customer by Enbecom do not pose a risk to the security, reliability and/or integrity of the technology and/or systems used to provide the Service, nor to those of other customers. This includes, but is not limited to, regularly checking for and implemeting downloadable updates and/or downloadable or manual file changes; regularly checking for and changing file and folder permission settings to meet best practice; ensuring and regularly checking that all Customer-controllable configuration settings are set in line with best security practice; and regularly auditing Web Sites and other elements of Services for security breaches.
4.5 Enbecom and its Suppliers reserve the right to suspend access to the Service if at any time Enbecom or its Suppliers consider that there is or is likely to be a breach of security and/or an impact on the reliability or integrity of the technology used to provide the Service.
4.6 Enbecom and its Suppliers reserve the right (at their sole discretion) to require the Customer to change any or all of the passwords used by the Customer in connection with the Service;
4.7 The Customer must immediately inform Enbecom of any changes to the information the Customer supplied when registering for the Service, including, but not limited to, contact details.
4.8 Enbecom and its Suppliers reserve the right to disclose the name, address and other contact details of the Customer upon reasonable request in writing from any law enforcement agency and/or third party (or solicitors acting on behalf of either of the foregoing), where it reasonably appears to Enbecom that such information is required by such party to establish, exercise or defend legal rights included, without limitation, for the purpose of or in connection with actual or prospective legal proceedings or obtaining legal advice.
5 Customer Hosted Data
5.1 The Customer shall own all rights, title and interest in and to all of the Customer Hosted Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Hosted Data. The Customer is the Data Controller (as defined in the applicable Data Protection Laws) for all Customer Hosted Data.
5.2 The Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Enbecom so that Enbecom may lawfully process the personal data in accordance with this agreement on the Customer’s behalf;
5.3 Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5.4 The Customer must ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data comprising Customer Hosted Data to Enbecom for the duration and purposes of this agreement so that Enbecom may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Customer's behalf.
6 Use of the Service
6.1 The Service is provided solely for the Customer's own use (including use by Authorised Users) and the Customer will not sell or attempt to sell the Service (or any part or facility of it) to any third party.
6.2 The Service must not be used by the Customer or any Authorised User in a way that does not comply with
(a) the terms of any legislation or any license applicable to the Customer or that is in any way unlawful;
(b) the Code of Conduct.
6.3 The Service must not be used by the Customer or any Authorised User:
(a) fraudulently, in connection with a criminal offence, or otherwise unlawfully;
(b) 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;
(c) to cause annoyance, inconvenience or needless anxiety;
(d) to transmit knowingly or recklessly any electronic material (including viruses) through the Service which shall cause or is likely to cause detriment or harm, in any degree, to computer systems owned by Enbecom, its Suppliers, or other Internet users;
(e) 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
(f) other than in accordance with the acceptable use policies of any connected networks.
6.4 The Customer must not use a user name or alias which infringes the rights of any person in a corresponding trade mark or name. Enbecom and its Suppliers reserve the right to require the Customer to select a replacement user name or alias and may either refuse to provide or may suspend Service if, in Enbecom's opinion (or that of its Suppliers), there are reasonable grounds for Enbecom or its Suppliers 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.
6.5 If Enbecom designs, produces, makes available for public viewing, or updates an Internet Web Site for The Customer or does any combination of the above, The Customer is fully responsible for obtaining all legal clearances for, and ensuring legal compliance of, the content of the Web Site, including, but not limited to, clearances relating to copyright and intellectual property rights including trade marks and names, clearances relating to the legality of the content of the Web Site and the inclusion of all legally relevant information relating to the Customer's business and its goods and services, and granting of permission to modify text, graphics and programming code on an existing Internet Web Site connected with the Customer, and move the text, graphics and programming code to different computer networks.
6.6 If the Customer, an Authorised User or anyone else, with or without the Customer's knowledge or approval, uses the Service in contravention of paragraphs 6.1, 6.2, 6.3, 6.4 or 6.5, Enbecom may treat the contravention as a material breach of this Contract which cannot be remedied for the purposes of paragraph 13.
7 Internet
The Service does not provide or include access to the Internet. The Customer's use of the Internet is solely at the Customer's risk and subject to all applicable laws, and Enbecom has no responsibility for any information, software, services or other materials accessed or obtained by the Customer using the Internet.
8 Indemnification
8.1 The Customer hereby agrees to indemnify and to hold Enbecom and its Suppliers harmless from and against any claim brought by a third party resulting from the use of the Service or by the Customer and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered or incurred by Enbecom and its Suppliers in consequence of the Customer's breach or non-observance of the Contract.
8.2 The Customer shall defend and pay all costs, damages, awards, fees (including any reasonable legal fees) and judgements awarded against Enbecom arising from the above claims and shall provide Enbecom with notice of such claims, full authority to defend, compromise or settle such claims and reasonable assistance necessary to defend such claims, at the Customer's sole expense.
8.3 By registering a domain name through Enbecom, the Customer expressly agrees to indemnify, defend and hold harmless the relevant domain registry, and its directors, officers, employees, agents and affiliates from and against any and all claims, damages, liabilities, cost and expenses, including reasonable legal fees and expenses arising out of or relating to the Customer's domain name registration.
8.4 This section 8 shall remain in effect for ten years after the termination of this Contract, to the maximum extent permitted by law.
9 Confidentiality
9.1 Save as provided in paragraphs 4.8 and 19, Enbecom will keep in confidence any information provided to it by the Customer when registering for the Service or otherwise under this Contract and will not disclose that information to any person (other than its employees, contractors, or professional advisers, or the employees or contractors of its Suppliers who need to know the information in order to provide the Service) without the Customer's consent.
9.2 This section 9 will not apply to:
(a) any information which has been published other than through a breach of this Contract;
(b) information lawfully in the possession of the recipient before the disclosure under this Contract took place;
(c) information obtained from a third party who is free to disclose it;
(d) information which a party is requested to disclose and if it did not could be required by law to do so; or (e) information which has been reduced by Enbecom to anonymous, non-personal form before disclosure.
9.3 This section 9 will remain in effect for 2 years after the termination of this Contract.
10 Limitation of Liability
10.1 Enbecom accepts liability for death or personal injury resulting from its negligence when proven by due legal process and any limitations in paragraphs 10.2 and 10.3 do not apply to such liability.
10.2 Enbecom is not liable to the Customer, either in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings, nor for any indirect or consequential loss or damage or for any destruction of data.
10.3 Enbecom's liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Contract is limited to £500 for any one incident or series of related incidents and to £1000 for all incidents in any period of 12 months.
10.4 Enbecom 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.
10.5 Enbecom is not liable to the Customer either in contract, tort (including negligence) or otherwise for the acts or omissions of other providers of telecommunications or Internet services (including Enbecom's Suppliers, and domain name registration authorities) or for faults in or failures of their equipment.
10.6 Each provision of this Contract, 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.
11 Matters Beyond Reasonable Control
If Enbecom is unable to perform any obligation under this Contract 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.
12. Domain Names
12.1. The Customer confirms and warrants that it is the owner of, or that the Customer has been and is duly authorised by the owner to use, any trade mark or name requested or allocated as its Name.
12.2. The Customer acknowledges that Enbecom cannot guarantee that any Name the Customer requests will be available or approved for use.
12.3. Enbecom has the right to require the Customer to select a replacement Name and may suspend the Service if, in the opinion of Enbecom, there are reasonable grounds for Enbecom to believe Customer current choice of Name is, or is likely to be, in breach of the provisions of this Agreement and law.
12.4. If the Service includes the registration of an Internet domain name the Customer acknowledges and agrees that:
12.4.1. Enbecom does not represent, warrant or guarantee that any domain name applied for by the Customer 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 Customer 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 Enbecom will not be liable for any such action taken by the Customer.
12.4.2. the registration of the domain name and its ongoing use by the Customer is subject to the relevant naming authority's terms and conditions of use and the Customer undertakes to Enbecom that it will comply with such terms and conditions. The Customer hereby irrevocably waives any claims it may have against Enbecom in respect of any decision of a naming authority to refuse to register a domain name and, without limitation, the Customer acknowledges and agrees that any administration or other charge paid by the Customer in respect of the registration of the domain name is non- refundable in any event.
As part of its duties as an ICANN accredited domain name registrar, Enbecom's domain name registration service supplier is required to provide certain information about customers who register domain names through Enbecom to the relevant naming authority. This information will include personal data such as the customers name, address and telephone number. The relevant naming authority will make such information available to the public through publicly accessible directories of owners of domain names. It is a condition of the purchase of a domain name through Enbecom that the customer agrees to the transfer of his/her personal data to the relevant naming authority and agrees to the naming authority making that personal data available on a public database. Enbecom can provide its customers with details of the relevant naming authority on request.
12.4.3. Enbecom accepts no responsibility in respect of the use of a domain name by the Customer and any dispute between the Customer and any other individual or organisation regarding a domain name must be resolved between the parties concerned and Enbecom will take no part in any such dispute. Enbecom 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.
12.4.4. Any Internet Protocol address allocated by Enbecom to the Customer shall at all times remain the sole property of Enbecom and the Customer 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 Customer's licence to use the Internet Protocol address shall automatically terminate and thereafter it will not use such address.
12.4.5. Notwithstanding anything to the contrary contained herein, it is expressly understood and agreed by the Customer and Enbecom that the Uniform Domain Name Dispute Resolution Policy as approved and adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) is hereby incorporated by reference in this Service Agreement and is legally binding on the Customer and Enbecom with respect to all registrations in the .com, .net and .org. top level domains.
13 Termination of this Contract by Notice
13.1. Many Services provided by Enbecom have a minimum term, details of which provided with Service details or other written communication such as a quotation or agreement. Any specified minimum term is strictly enforced and overrides paragraph 13.2 below.
13.2. Save for Services with a minimum term as specified in paragraph 13.1, either party may terminate this Contract on 14 days' notice to the other, without prejudice to any rights that may have accrued before termination. Upon termination (for whatever reason), Enbecom may re-allocate any user names and aliases, hardware, software and other items associated with the terminated Service. Any monies owing by Customer to Enbecom (including the balance of payments under any minimum term) must be paid within 30 days of termination.
13.3. Upon termination of Services, no refunds for any period of Service paid for in advance are provided, to the maximum extent permitted by law.
14 Breaches of this Contract
14.1 Either party may terminate this Contract or the provision of Service under it without notice if the other:
(a) commits a material breach of this Contract, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so;
(b) commits a material breach of this Contract which cannot be remedied; or
(c) is repeatedly in breach of this Contract;
14.2 If any of the events detailed in paragraph 14.1 occur because of the Customer or an Authorised User, Enbecom may suspend the Service without prejudice to its right to terminate this Contract. At its sole discretion, Enbecom reserves the right to suspend or terminate any Authorised User's use of the Service as an alternative remedy to immediate termination of the Contract. This remedy is without prejudice to Enbecom's right subsequently to suspend or terminate the contract. Enbecom may refuse to restore Service which has been suspended under this paragraph until it has received assurances satisfactory to Enbecom that the breach has been remedied and will not be repeated.
14.3 Termination under this paragraph is without prejudice to any rights that may have accrued before termination.
14.4 If either party delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver is limited to that particular breach.
14.5 Upon termination (for whatever reason), Enbecom may re-allocate any user names and aliases, hardware, software and other items associated with the terminated Service. Any monies owing by Customer to Enbecom (including the balance of payments under any minimum term) must be paid within 30 days of termination.
14.6. Upon termination of Services, no refunds for any period of Service paid for in advance are provided, to the maximum extent permitted by law.
15 Changes to this Contract
Enbecom can change the Conditions of this Contract at any time on 14 days' notice to the Customer.
16 Assignment
The Customer may not assign or transfer any of its rights or obligations under this Contract, without the written consent of Enbecom. Enbecom may assign any or all of its rights or obligations (or transfer the entire Contract) as it considers appropriate, on 14 days' notice to the Customer.
17 Entire Agreement
17.1 Save for the provision in paragraph 17.2, this Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
17.2 Some products and services have specific terms and conditions, detailed on the Enbecom website, which apply additionally. Where there is a conflict between an item in this Contract and an item in such specific terms and conditions, the relevant item in this Contract shall prevail.
18 Notices
Notices given under this Contract may be delivered on-line, by telephone, by fax, by post, face-to-face, or by e-mail. Additionally, Enbecom may publish notices to the Customer via the Enbecom website; notices will be deemed effective on the date of publication, or otherwise as notified to the Customer by Enbecom. A notice from Enbecom which is sent by e-mail to the Customer's e-mail address will be deemed effective 24 hours after the date it is sent. A notice from the Customer to Enbecom will be deemed effective when received by Enbecom at the e-mail address notified by Enbecom to the Customer.
19 Data Protection
Enbecom and the Customer fully understand and will adhere to the details contained in the Privacy Notice published on the Enbecom website www.enbecom.net and amended from time to time.
20 Law
This Contract is governed by the law of England and Wales, and the Customer submits to the exclusive jurisdiction of the Courts of England and Wales.
