Terms

1. Terms and Conditions (“Conditions”)
2. Supply of the Services
3. Payment
4. Your Obligations
5. Our Obligations
6. Change of Obligations
7. Eligibility
8. Confidentiality
9. Termination
10. Effect of Termination
11. Warranties
12. Limitation of Liability
13. Force Majeure
14. Indemnity
15. Notices
16. Law
17. General
18. Definitions

1. Terms and Conditions (“Conditions”)

1.1. These Conditions form part of the Contract for the provision of the Services.

1.2. If there is any ambiguity or conflict between the documents forming the Contract the following descending order of precedence shall apply:

1.2.1. These Conditions;

1.2.2. The Order Form;

1.2.3. The Service Schedule;

1.2.4. The Project Initiation Document (where provided).

1.3. Latest dated documents will always supersede previous ones once accepted by you.

2. Supply of the Services

2.1. We are under no obligation to provide the Services to you until the details of the Service Schedule have been agreed with you.

2.2. Subject to Condition 2.1 the Services shall be provided from the Commencement Date (and unless terminated in accordance with Condition 9 (Termination)) for the duration of the Term.

2.3. The relevant parts of the Services only apply to the hardware and other equipment set out in the Service Schedule.

2.4. You acknowledge and agree that we do not operate or exercise control over and accept no responsibility for the content of any online or multimedia service or any of your material received in accordance with the provision of these Services.

2.5. If agreed we may provide Extra Services. These will be set out in an amended Service Schedule.

2.6. If a Project Initiation Phase is provided as part of the Services we will use our reasonable efforts to provide you with a project plan and report on the Project within any agreed timescales and the provisions of Condition 6 shall apply.

3. Payment

3.1. You will pay the Charges for the Services in the manner specified in the Order Form (unless any stage payments are agreed a single invoice will be issued).

3.2. When a contract is separated into milestones, this contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment.

3.3. The Charges shall be paid within 30 days of the date of the invoice issued by us without set off or counterclaim. We may (acting reasonably) vary the Charges in writing at any time prior to the Commencement Date to take account of the prevailing circumstances at that time. The Client shall pay all amounts due under any invoice in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.

3.4. The Charges are exclusive of VAT. VAT shall be paid in addition by you at the rate applicable at the time.

3.5. If any payment of the Charges is not made on the due date we shall be entitled, without limitation of any other rights that we may have, to charge interest on the outstanding amount (both before and after any judgement) at the rate of 4% above the base rate from the due date until the outstanding amount is paid in full.

3.6. We reserve the right to suspend the provision of Services in the event that any payment in respect of the Charges is not made on the due date and we will not be obliged to recommence the Services until full payment of any outstanding amounts has been made.

4. Your Obligations

4.1. You will use all reasonable endeavours to ensure that you supply all the information reasonably necessary to enable us to provide the Services (including during any Project Initiation Phase) and Extra Services (if any) and that any such information is true, complete, accurate and in a format agreed with us. This information will be supplied in a timely fashion. If you discover that such information is not accurate, true or complete you will notify us straightaway and correct it as soon as possible.

4.2. We will not be liable to you for any loss arising from any information or instruction supplied by you which is incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or arising from the late arrival or non-arrival of any form or other fault of yourself.

4.3. You warrant and represent (and we enter the Contract relying on this) that the Services are provided solely for your use and you must not without our written permission transfer or sell or attempt to transfer or sell your access to or use of the Services or any of your rights or obligations under this Agreement.

4.4. You agree that your use of the Services will not:

4.4.1. be false, inaccurate or misleading (including but not limited to the provision of Your Information);

4.4.2. be fraudulent;

4.4.3. support or maintain businesses that use or support the use of unsolicited commercial e-mail;

4.4.4. infringe any third party’s copyright, patent, trade mark, trade secret or other proprietary rights or rights of publicity or privacy and that you have obtained all necessary consents, approvals and licences for the use of any third party property;

4.4.5. violate any law, statute, ordinance or regulation or licence applicable to you;

4.4.6. create a false identity for the purpose of misleading others as to your identity;

4.4.7. be defamatory, libellous, unlawfully threatening or harassing against us or any third party;

4.4.8. be obscene or contain indecent pornography;

4.4.9. contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage detrimentally and interfere with surreptitiously intercept the services or any part thereof; nor

4.4.10. create any liability for us or cause us to lose in whole or in part the services of our ISP or other suppliers.

4.5. You must inform us immediately of any claim that may be made or alleged against you in connection with the use of the Services.

4.6. You must not allow the serving of any additional and distinct website from an individual virtual server by any means.

4.7. If the Services involve the provision of any hosted service, you warrant and represent (and we enter this Contract relying on this) that you will:

4.7.1. keep any user name, password and security phrase secure;

4.7.2. take reasonable steps to minimise any risk of security breaches in connection with the Services;

4.7.3. notify us of any securing breaches; and

4.7.4. comply with our security checks.

4.8. You will provide us with reasonable access to your premises and employees as we may require to provide the Services.

4.9. You shall maintain an appropriate data back up procedure to enable you to recover any data files that are corrupted or lost.

4.10. You will ensure that you and your employees and any agent or contractors of yours cooperate reasonably with us in carrying out the Services.

4.11. If any of the Services require us to remotely access your system to provide support you will inform your employees or any relevant third party of this.

5. Our Obligations

5.1. We will provide the Services with reasonable skill and care and in accordance with the Service Schedule.

5.2. In the event of any errors with respect to your access to or use of the part of the Services being online Services, you should report it to us at once. Once an error or a fault in the provision of the Services is reported to us within a reasonable timeframe of the site going live, we will endeavour to correct it as soon as we reasonably can.

5.3. We reserve the right to change the Service Schedule of the Services or suspend the provision of online Services for operational reasons such as repair, maintenance or improvement or because of an emergency. We will endeavour to restore the Services as soon as we reasonably can after any change or suspension.

5.4. We will take reasonable steps to ensure that the Services are free of any viruses.

5.5. We shall not be liable for a failure in the Services if this is caused by any act or omission of yours or your employees, agents or contractors. If our performance of the Services is delayed by you, your employees, agents or contractors you will immediately reimburse us for any additional expenses we reasonable incur as a consequence.

5.6. If any part of the delivery of the Services is delayed by you or your employees, agents or contractors you shall bear the cost of any such delay.

5.7. Any time scales set out in the Service Schedule are a reasonable indication of the time-scale when they are given and time is not of the essence in respect of them.

6. Change of Obligations

6.1. Subject to clause 6.5, if at any time after the Commencement Date there may be a need to change all or any part of the Services (without limiting the interpretation of this provision an example of which may be at the conclusion of the Project Initiation Phase if there is one) the Party requesting the change will issue a Change Request. Once a Change Request has been agreed we will issue a change notice detailing the changes to be made to the Service Schedule and send it to you.

6.2. You may request a Change Request during business hours on any day on which we are open for business. We will consider the Change Request, agree with you the scope of any work required to implement the Change Request and perform an assessment of the impact of the Change Request. If the proposed Change Request involves only minor or negligible changes which do not affect the Charges we will initiate the Change Request within two Working Days.

6.3. If the change request does not involve minor or negligible changes we will propose and agree with you an amended Service Schedule, Charges and any costs that will be associated with the implementation of the Change Request. If the terms of the proposed amended Service Schedule, Charges and costs cannot be agreed between you and us and the Change Request was initiated by you then it will be withdrawn by you and no change will be made.

6.4. If the change requested is a result of the Project Initiation Document we prepare during the Project Initiation Phase and the terms of an amended Service Schedule and Charges cannot be agreed then the Contract will come to an end and we will provide you with a final invoice for the Services provided up to that date

6.5. We reserve the right to make a charge for considering a Change Request submitted by you at our then current rates in force and we will not be liable for any delay to or failure in the Services directly arising from the implementation as a Change Request submitted by you.

6.6. We may make changes to the Service Schedule as are necessary where it is required so to do in order to comply with any laws affecting the provision of the Services. We will not require your consent to such a change but we will notify you in writing as soon as reasonably possible that such a change is to be made.

7. Eligibility

7.1. Our Services are available only to users who can form legally binding contracts under the laws of England and Wales. Without limiting the foregoing, the Services may not available to minors. If you do not qualify, please do not apply to use the Services.

8. Confidentiality

8.1. The Parties agree and undertake that for the duration of the Contract and following its termination they shall keep confidential all information or documentation, including but not limited to the contents of the Contract; and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any information which either by its nature is or is expressed to be confidential (including trade secrets and information of commercial value) to the other party ("Confidential Information"), unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of the Contract or subsequently comes lawfully into the possession of such party from a third party who is not under any obligation of confidence to the other party.

9. Termination

9.1. Either of the Parties has the right, without prejudice to any other rights and remedies, to terminate the Contract immediately by written notice to the other if the other:

9.1.1. is in material breach of the Contract and such material breach is either incapable of remedy or is capable of remedy but the relevant party in breach has failed to remedy it within 30 days of a notice from the other party not in breach requiring them to do so; or

9.1.2. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or bankrupt or enters into any kind of voluntary arrangement (whether individual or corporate) with its creditors (other than for the purposes of a solvent reconstruction or amalgamation) or has an administration order made against it or has a receiver or administrative receiver appointed to all or any of its assets or commences to be wound up or has a receiver appointed over all or any part of its undertaking or assets or undergoes any analogous event in any foreign jurisdiction.

9.2. Termination of the Contract by whatever means shall not affect any rights, obligations or liabilities either of you or ourselves:

9.2.1. which have accrued before termination of the Contract; and/or

9.2.2. which are intended to continue to have effect beyond termination.

9.3. Without limiting other remedies, we may immediately issue a warning to you :

9.3.1. if You breach any terms of this Agreement or of the documents it incorporates by reference;

9.3.2. if We are unable to verify or authenticate any of your information in any circumstances where you have provided Your Information; or

9.3.3. if We believe that your actions may cause legal liability for You, our users or us.

9.3.4. you are subject to a resolution for winding up or a petition for bankruptcy or liquidation or you propose to enter into any arrangement or composition with or assignment with or for creditors or a receiver or a liquidator or trustee in bankruptcy is appointed over any of your assets.

10. Effect of Termination

10.1. On termination of this Contract:

10.1.1. We will immediately terminate your licence giving you access to the Services.

10.1.2. Any payment due under these conditions will remain due and if already paid, will be non-refundable.

11. Warranties

11.1. Except as expressly set out in the Contract we do not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise for any part of the Services being provided by a third party but we will use our reasonable efforts to assign to you the benefit of any warranty, guarantee or indemnity given by a third party to you for that part of the Service.

11.2. We warrant to you that for a period of 30 days following "go-live" you will be entitled to advise us of any problems with your service and subject to our complete discretion we will seek to fix these problems. Failure to identify any problems within this period will incur charges to investigate and fix problems, unless a paid warranty has been purchased. (Please note that sign off ("go-live") of your service denotes that you accept the service is complete and working to your satisfaction).

12. Limitation of Liability

12.1. We accept liability for death or personal injury resulting from our negligence and nothing in this Agreement shall apply to limit or exclude such liability.

12.2. Subject to Condition 12.1 our liability to you for breach of the Contract or in tort or breach of statutory duty or otherwise is limited in accordance with this Condition 12.

12.3. Our total liability to you in contract, tort (including negligence) or otherwise in relation to or arising out of this Contract is limited to the higher of 100% of the Charges paid or payable in the 12 months following any one incident or series of related incidents or 100% of the Charges paid or payable in the 12 months preceding.

12.4. We are not liable to you, either in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings, or for any indirect or consequential loss or damage or for any destruction of data, however such loss may be suffered.

12.5. You agree and acknowledge that you are in a better position than us to foresee and evaluate any potential damage or loss that you may suffer in connection with the provision of the Services. Therefore you will effect such insurance as is suitable having regard to your circumstances and the terms of the Contract.

12.6. Each provision of these Conditions excluding or limiting liability operates separately. If any provision or part or a provision is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.

13. Force Majeure

13.1. If we are unable to perform any obligation under these Conditions because of a matter beyond our reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving our employees), or acts of local or central Government or other competent authorities, or other events beyond the reasonable control of our suppliers, we will have no liability for that failure to perform.

14. Indemnity

14.1. You agree to indemnify and hold us and our subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable lawyers' fees, made by any third party due to or arising out of your breach the Contract or negligence or of the documents it incorporates by reference, or your violation of any law or the rights of a third party.

15. Notices

15.1. Any notice to be served on us by You shall be sent by prepaid recorded delivery or registered post or by electronic mail and shall be deemed to have been received by us within 72 hours of posting or 24 hours if sent by electronic mail to the correct registered office address. We will send all notices to your current address according to Your Information unless you indicate otherwise to us in writing.

16. Law

16.1. This Agreement shall be governed by and construed in accordance with the laws of England and Wales, and each of the parties submits to the exclusive jurisdiction of the courts of England and Wales.

17. General

17.1. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall remain enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. The Contract sets forth the entire understanding and agreement between us concerning its subject matter but this condition does not seek to limit liability for fraud.

17.2. You will always notify us of any defect in the Services and allow us the opportunity to rectify the defect before making a claim for breach of contract.

18. Definitions

18.1. “Charges” means the price for providing the Services as set out in the Order Form or as varied in writing in accordance with Condition 3.2.

18.2. “Change Request” means a request by either you or us to change or vary the scope of the Services.

18.3. "Commencement Date" means the date we begin to provide the Services as set out in the Order Form or if later the date when the Service Schedule is agreed with you.

18.4. “Content Management Solution” means the code being used by you to update and manage your Website.

18.5. "Contract" means the contract for the Services comprising the Conditions, the Order Form and the Service Schedule.

18.6. "Extra Services" means the extra services forming part of the Services which the Parties agree are to be provided.

18.7. “Order Form” means the confirmation form issued by us and signed by you in respect of the Services.

18.8. "Parties" means you and us referred to together.

18.9. “Project” means the project set out in the Service Schedule.

18.10. “Project Initiation Phase” means the period of delivering the Services during which we make an assessment of the Project.

18.11. “Project Initiation Document” means the document which provides detailed information about the project components and delivery plan resulting from the Project Initiation Phase.

18.12. “Rights” means any and all patents, rights in trade mark, rights in domain names, rights in designs, copyrights and database rights or other intellectual property rights, for the full term of those rights, world-wide.

18.13. "Service Schedule" means the schedule forming part of this Contract setting out the detail of the Services as may be amended from time to time by the Parties or in accordance with Condition 6.

18.14. “Services” means the services we are to provide you under the Contract as detailed in the Service Schedule together with any Extra Services.

18.15. "Term" means the term of the Contract identified in the Order Form and any extension to that agreed between the Parties in writing.

18.16. “Website” means the Internet Web Pages to be constructed, maintained and transmitted by us under the website hosting and development services.

18.17. "We/us/ourselves" means 3 CHILLIES Limited of Beacontree Plaza, Gillette Way, Reading RG2 0BS.

18.18. "You/your" means the user of the Services that we make this Agreement with, and includes anyone reasonably appearing to us to be acting with that User's authority or permission.

18.19. “Your Information” means the information you provide us on registration and any other information disclosed by you in any secure area of any application or online service.