1. INTERPRETATION
1.1 In this Agreement unless the
context otherwise requires:
"HITS" means Heath Information Technology Services
plc;
"Agreement" means these conditions, the Order Form and the
Consultation Form;
"Customer" means the person named as such on the Order
Form and anyone reasonably appearing to HITS to be acting with that Customers
authority or permission;
"Domain Name" means a name registered with an Internet
registration authority for use as part of the Customers URL;
"Information" means the visual, textual or other
information published or otherwise made available (directly or indirectly) on
the Internet using the Service;
"Internet" means the global data network comprising
interconnected networks using TCP/IP ("Transmission Control Protocol/Internet
Protocol");
"Internet Standards" means the protocols and standards
defined in Internet documents RFC 1009, 1122, 1123 and 1250 and any future such
protocols and standards as applicable;
"Minimum Period of Service" means the first two years of
service;
"Order Form" means the HITS order form identifying the
Service required by the Customer;
"Product" means the product as laid down in the product
specification including Service
"Service" means the service known as HITS comprising the
hosting, promotion and maintenance of the product on the World Wide Web and,
where applicable, any other services and facilities provided by HITS for the
Customer in connection with the Service;
"Third Party Information" means any visual, textual or
other information not owned or generated by the Customer published on the web
site established by the Customer on the Internet using the Service;
"URL" means a uniform resource locator, which is the full
address for the Customers web site on the World Wide Web and which incorporates
the Customers Domain Name.
"Live" means the point at which the web site can first be
accessed on the World Wide Web.
1.2 The Order Form contains explanations and notes
concerning the charges which form part of this Agreement.
1.3 In the event of any conflict between the documents
forming this Agreement, the documents will take the same order of precedence as
those in which they appear in the definition of Agreement in paragraph 1.1.
2. PROVISION OF THE SERVICE
2.1 HITS agrees to provide
the Customer with the Service on the conditions of this Agreement.
2.2 If the Service is to be provided by a date specified
by the Customer or HITS, such date shall be treated as an estimate only and
HITS does not accept any liability for any failure to meet the date.
2.3 It is technically impracticable to provide the Service
free of faults and HITS does not undertake to do so. HITS will correct reported
faults as soon as it reasonably can.
2.4 This Agreement does not include the provision of any
telecommunications service or computer equipment for Internet access.
2.5 The Customer is responsible for providing a suitable
PC, modem, and any other items of hardware, software and communications
equipment necessary to access the Service if full advantage is to be made of
e-mail services.
2.6 Occasionally HITS may:
2.6.1 for operational
reasons change the technical specification of the Service (provided that it
does not materially affect the performance of the Service);
2.6.2 temporarily suspend the Service for repair,
maintenance or improvement of the Service but before doing so will give as much
on-line, written or oral notice as is reasonably practicable. HITS will restore
Service as soon as it reasonably can after temporary suspension;
2.6.3 give instructions about the use of the Service which
HITS thinks are reasonably necessary in the interests of health, safety or the
quality of the Service to the Customer or any other customer.
3. MINIMUM PERIOD OF SERVICE
The Minimum Period of
Service begins on the date when the Service is first made available to the
Customer, but it does not prevent HITS from exercising its rights to suspend
the Service, or, subject to paragraphs 8 and 9, either party from terminating
this Agreement or the provision of a service or facility under it.
4. CHARGES
4.1 The Customer agrees to pay all charges
for the Product as specified on the Order Form. Any additional bespoke work as
required and laid out in the order form will be quoted for separately with
payment made as described in paragraph 4.2
4.2 Subject to paragraph 4.3, a payment is required at the
point of order of at least 25%. The balance will become due 14 days after the
product goes "live".
4.3 If the Customers rate of traffic is deemed to be
excessive, at the discretion of HITS, the Customer may be asked to pay
additional charges for continued provision of the web hosting service.
4.4 Charges are payable as laid out in paragraph
4.2.Unless the Price List provides otherwise, charges for the Service are
exclusive of Value Added Tax and any other applicable sales taxes which will be
added to the Customers bill at the prevailing rate.
5. SECURITY
5.1 The Customer is responsible for the
security and proper use of user names and passwords supplied in connection with
the E-mail service and must take all necessary steps to ensure that they are
kept confidential, used properly and not disclosed to unauthorised people. The
passwords must not be disclosed to any third parties.
5.2 The Customer must immediately inform HITS 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.
5.3 The Customer may change a password by contacting HITS
and satisfying such security checks as HITS may operate.
5.4 HITS reserves the right to suspend user name and
password access to the Customers web site if at any time HITS considers that
there is or is likely to be a breach of security.
5.5 The Customer must immediately inform HITS of any
changes to the Customers details, which the Customer supplied when registering
for the Service.
6. USE OF WEB DESIGN, HOSTING, EMAIL and UPDATE
SERVICE
6.1 The Customer shall be and shall remain responsible for supply
of information, including images, for the creation, maintenance and design.
6.2 The Customer warrants that the Information is accurate
and will not include any information or material, any part of which, or the
accessing of which would be a criminal offence or otherwise unlawful. In
particular the Customer warrants that all necessary licenses and consents
(including but not limited to those from owners of copyrights or performing
rights) have been obtained.
6.3 The Customer warrants that it will comply with; all
consumer and other legislation, instructions, or guidelines issued by
regulatory authorities, relevant licenses and any other codes of practice which
apply to the Customer, or HITS and which relate to the provision of
Information, provided that HITS has given notice to the Customer of those which
only apply to HITS.
6.4 The Service must not be used:
6.4.1 fraudulently or in connection with a criminal
offence;
6.4.2 to send, receive, upload, download, use or re-use
any Information or material which is offensive, abusive, defamatory, obscene or
menacing, or in breach of confidence, copyright, privacy or any other
rights;
6.4.3 in breach of instructions HITS has given under
paragraph 2.6.3;
6.4.4 to cause annoyance, inconvenience or needless
anxiety;
6.4.5 to send or provide unsolicited advertising or
promotional material; or
6.4.6 other than in accordance with the acceptable use
policies of any connected networks and the Internet Standards.
6.5 The Customer must not use a Domain Name, or URL, which
infringes the rights of any person in a corresponding trademark or name,
whether in statute or common law.
6.6 The Customer must ensure that they supply a contact
name, telephone number and electronic mail address (where applicable) to be
included in clear and legible form on its web site for receipt of any enquiries
or complaints that may arise in relation to Information, Third Party
Information or other material published on the web site. HITS reserves the
right to disclose to any person with an enquiry or complaint the contact name,
telephone number and electronic mail address if such person cannot locate these
details on the Customers web site.
6.7 If anyone other than the Customer uses the Service
with or without the Customer's knowledge or approval, in contravention of
paragraphs 6.4 or 6.5, HITS can treat the contravention as a breach by the
Customer of paragraph 8 of this Agreement.
7. CONFIDENTIALITY
7.1 The Customer shall keep in
confidence any information of a confidential nature relating to the Service
obtained from HITS under this Agreement and must not disclose such information
to any other person without HITS prior written consent, provided that this
restriction does not apply to information which is:
7.1.1 in the public domain otherwise than in breach of
this Agreement;
7.1.2 lawfully obtained from a third party that is free to
disclose it;
7.1.3 required to be disclosed by law or a competent
authority;
7.1.4 in the lawful possession of the Customer prior to
disclosure.
7.2 The restrictions in this paragraph shall survive the
termination or expiry of this Agreement.
8. BREACHES OF THE AGREEMENT
8.1 If:
8.1.1 the Customer:
(a) does not pay any charge within
14 (Fourteen) days of it falling due; or
(b) commits a breach of this
Agreement and if it is possible to remedy, fails to remedy the breach within a
reasonable time of written notice to do so or if it is not possible to remedy
the breach; or
8.1.2 HITS believes the Service is being used in a manner
prohibited under paragraph 6 even if the Customer is unaware that the Service
is being used in such a way
HITS can terminate this Agreement or suspend the Service
or any part of the Service (or both) without notice, and claim for the
resulting losses or expenses. If HITS suspends the Service under this
paragraph, HITS can refuse to restore the Service until HITS receives an
acceptable assurance from the Customer that there will be no further breach of
this Agreement.
8.2 HITS can also terminate this Agreement if the Customer
is the subject of a bankruptcy order, or becomes insolvent, or makes any
arrangement or composition with or assignment for the benefit of its creditors
or if any of its assets are the subject of any form of seizure or goes into
liquidation, either voluntary (otherwise than for reconstruction or
amalgamation) or compulsory, or if a receiver or administrator is appointed
over its assets.
8.3 On termination under paragraphs 8.1 or 8.2, the
Customer shall pay to HITS all charges which are due for the Service under this
Agreement, including any unpaid charges for the remainder (if any) of the
Minimum Period of Service.
8.4 The Customer will remain liable to pay all charges
that are due for the Service during any period in which the Customer does not
comply with this Agreement.
8.5 If HITS waives a breach of this Agreement by the
Customer, that waiver is limited to that particular breach. HITS delay in
acting upon a breach is not to be regarded in itself as a waiver.
9. TERMINATION BY NOTICE
9.1 Either party can
terminate this Agreement on giving 14 days notice to the other party.
9.2 If notice is given under paragraph 9.1, the Customer
shall pay all charges due for the Service up to the expiry of the notice. If
the Customer gives notice, the Customer must also pay the charges due for any
remaining part of the Minimum Period of Service, unless the Customer has given
notice because HITS intends to change any of the conditions of this Agreement
to the Customers material detriment.
9.3 If HITS gives notice under paragraph 9.1, HITS will
repay or credit the appropriate proportion of any charges paid in advance
following expiry of the notice period.
9.4 Termination by notice under this paragraph 9 does not
avoid any liability for Service already provided.
10. HITS'S LIABILITY
10.1 HITS's duty in performing
any obligation under this Agreement is only to exercise the reasonable skill
and care of a competent Internet Web Design and Hosting Company.
10.2 HITS accept liability for death or personal injury
caused by HITS's negligence.
10.3 The Customer accepts that HITS is under no obligation
to monitor or approve Information and Third Party Information and that HITS
does not examine the use to which customers put the Service.
10.4 HITS excludes all liability of any kind for all
material comprising Information or Third Party Information and is not
responsible for the provision or delivery of any goods and services (including
Information) advertised, sold or otherwise made available by means of the
Service.
10.5 HITS is not liable to the Customer either in
agreement, tort (including negligence) or otherwise for the acts or omissions
of other providers of Internet services (including Internet registration
authorities) or for faults in or failures of their equipment.
10.6 HITS is not liable to the Customer either in
agreement, tort (including negligence) or otherwise for loss (whether direct or
indirect) of profits, business or anticipated savings, or for any indirect or
consequential loss whatever.
10.7 HITS liability to the Customer either in agreement,
tort (including negligence) or otherwise in relation to this Agreement is
limited to £250,000 for any one incident or series of related incidents
and £500,000 for all incidents in any period of 12 months.
10.8 Each provision of paragraph 10 limiting or excluding
liability operates separately. If any part is held unreasonable or inapplicable
in any circumstances the other parts shall continue to apply.
11. INDEMNITY
The Customer must indemnify HITS against
any claims or legal proceedings that anyone (other than the Customer) threatens
or makes against HITS because of the way the Service is used
12. ASSIGNMENT
Neither party may assign any rights or
obligations under this Agreement without the written consent of the other, save
that HITS may assign or transfer its rights or obligations to any HITS Group
Company without consent.
13. GIVING NOTICE
Notices given under this Agreement
must be in writing and delivered by hand, or sent by prepaid post or electronic
mail as follows:
13.1 To HITS: to the address shown on the Order Form, or
any alternative address which HITS notifies to the Customer at any time;
13.2 To the Customer: the address specified by the
Customer when entering into this Agreement or any alternative address which the
Customer notifies to HITS at any time.
14. MATTERS BEYOND THE PARTIES REASONABLE CONTROL
If
either HITS or the Customer 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, it will have no liability
to the other party.
15. SOFTWARE
15.1 Intellectual property rights in any
software or documentation supplied by HITS to the Customer remain the property
of HITS or its licensors.
15.2 The Customer agrees to comply with the terms of any
agreements reasonably required by the owner of intellectual property rights in
any such software or documentation relating to the protection of those rights.
Subject to the terms of this Agreement, HITS grants the Customer the
non-exclusive right to use such software or documentation in connection with
the Service.
15.3 Without affecting any applicable statutory rights
under the Copyright (Computer Program) Regulations 1992 the Customer must not
and must not permit any other person to:
15.3.1 disassemble, reverse engineer, decompile or in any
other way interfere with the software;
15.3.2 copy or modify the software; or
15.3.3 create any new software partly or wholly based on
the software.
15.4 The Customer must not transfer or assign the right to
use the software or attempt to do so.
15.5 HITS may offer updates or modifications to such
software or documentation. Any applicable charges for such updates or
modifications will be notified to the Customer at the time HITS offers such
updates or modifications.
16. DOMAIN NAME REGISTRATION
16.1 The Customer
warrants that it is the owner of, or that it is duly authorised by the owner
of, any trademark or name that it wishes to register as its Domain Name and use
as part of its URL.
16.2 Unless otherwise agreed, HITS will undertake Domain
Name and URL registration on behalf of the Customer with the appropriate
Internet registration authorities.
16.3 The Customer acknowledges that HITS cannot guarantee
that any Domain Name or URL requested by the Customer will be available from or
approved for use by the Internet registration authorities.
16.4 HITS reserves the right to require the Customer to
select a replacement Domain Name or URL and may either refuse to provide or may
suspend Service if, in HITS opinion, there are reasonable grounds for HITS to
believe that the Domain Name or URL is, or is likely to be, offensive, abusive,
defamatory or obscene or in breach of the provisions of paragraph 6.5.
17. EXPORT CONTROL
17.1 The Service may comprise
software, services, technical information, training materials or other
technical data which, because of their origin or otherwise are subject to the
United States of America export control regulations or the laws or regulations
of another country. In such case, provision of the Service will be conditional
on obtaining and maintaining all necessary consents. The Customer agrees to
provide HITS with reasonable assistance to obtain such consents.
17.2 The Customer agrees to comply with any applicable
export or re-export laws and regulations of any country, including obtaining
written authority from the US Government if the Customer intends at any time to
re-export any items of US origin to any proscribed destination.
17.3 For US government personnel using the Service in the
United Kingdom, US government restricted rights will apply.
18. VARIATION OF TERMS AND CONDITIONS
HITS may change
the conditions of this Agreement at any time and will give the Customer notice
of such changes at least 14 days before they take effect.
19. ENTIRE AGREEMENT
19.1 This Agreement contains the
whole agreement between the parties relating to its subject matter and
supersedes all previous written or oral agreements relating to it.
19.2 The parties acknowledge and agree that:
19.2.1 they have not been induced to enter into this
Agreement by any representation, warranty or other assurance not expressly
incorporated into it; and
19.2.2 in connection with this Agreement, and except in
the case of fraud, their only rights and remedies in relation to any
representation, warranty or other assurance shall be for breach of the terms of
this Agreement and that all other rights and remedies are excluded.
20. LAW
This Agreement is governed by the laws of
England and Wales. |
