DIGITALOX LIMITED -TERMS AND CONDITIONS OF BUSINESS.
In this document the following words shall have the following meanings:
“IPS” shall mean Internet Protocol Service
“FTP” shall mean File Transfer Protocol
“DNS” shall mean Domain Name Server
“SEO” shall mean Search Engine Optimisation
“TLD” shall mean Top Level Domain
“ISP” shall mean the Internet Service Provider
1.1 “Agreement” means these Terms and Conditions together with any additional terms agreed between the parties in writing. In the event of any conflict or inconsistency between these Terms and Conditions and any written additional terms, these Terms and Conditions here on the website at www.digitalox.co.uk will take priority;
1.2 “Client” means the organisation or person who purchases services from DigitalOx;
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade – marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “Service Specification” means a statement of work, quotation or other similar document describing the services to be provided by DigitalOx;
1.5 DigitalOx means supplier; DigitalOx Ltd: registered of Suite 33, Normanby Gateway, Lysaghts Way, Scunthorpe DN15 9YG.
1.6 A person who is not a party to a Contract has no rights under the Contract (Rights of Third Parties Act 1999) to enforce any Term of these Terms and Conditions.
1.7 “Services” refers to all the actions or services provided by DigitalOx as detailed in the Service Specification provided.
1.8 Terms including “social media marketing”, “writing product descriptions”, “press release submission”, “manually create Meta tags”, “XML sitemap creation”, “manual creation of backlinks”, “Google My Business or Google Places optimisation”, all refers to different service options which may or may not be included in your services package.
1.9 “Fair Play Policy” refers to DigitalOx’s policy regarding the amount of time per month you may take advantage of our additional email and telephone support which is defined by what level of services you receive. These are as follows:
Package 1 – up to 1 hour per month,
Package 2 – up to 2 hours per month,
Package 3 – up to 4 hours per month,
Package 4 – up to 6 hours per month.
DigitalOx Limited will tell you which package you fall into at the time of signing for the services. (See Clause 8.17 for further details).
1.10 “Best practice” refers to the generally accepted informally-standardized, best techniques, methods or processes that have proven to be effective at achieving a given task.
2.1 These Terms and Conditions shall apply to all contracts for the supply of services by DigitalOx to the Client. It is the responsibility of the client to check these terms and conditions periodically for any updates, although where possible and where applicable DigitalOx will strive to inform clients of any changes that will affect them.
2.2 Before the commencement of the services DigitalOx shall submit to the Client a Service Specification which shall specify the services to be performed and the fees payable to DigitalOx. The Client shall notify DigitalOx immediately if they do not agree with the contents of the Service Specification. All Service Specifications shall be subject to these Terms and Conditions. A Service Specification is deemed accepted if the Client provides written or verbal instructions to DigitalOx to commence work after they have received the Service Specification.
2.3 DigitalOx shall use all reasonable endeavours to complete the services within estimated time frames although time is not of the essence of this Agreement.
2.4 Clients must ensure that they have provided DigitalOx with a valid email address for correspondence and notify DigitalOx of any change in the status of this email address, and if this email address is no longer accepting email it is the responsibility of the client to inform DigitalOx immediately.
3. FEES AND PAYMENT.
3.1 The fees for the performance of the services are as agreed in your Service Specification. DigitalOx shall invoice the Client for the services.
3.2 Invoiced amounts shall be due and payable in advance of DigitalOx undertaking any work under this Agreement unless alternative payments terms are agreed between the parties in writing in accordance with clause 1.1 above and in any event not later than 14 days from the Invoice date. No work will be undertaken by DigitalOx until payment of the Invoiced sum is made in full unless DigitalOx provide alternative terms in writing.
3.3 In the event that an invoice remains unpaid after 14 days DigitalOx shall be entitled to:
3.3a increase its quotation so as to include any additional work that occurs or is necessary as a result of the delay; or
3.3b charge interest on overdue invoices from the date when payment becomes due each month or part of each month thereof at 5% per calendar month of the outstanding balance until payment is made in full.
3.4 In the event that the Client’s procedures require that an invoice be submitted against a purchase order to payment, the Client shall be responsible for issuing such purchase order before the services are rendered.
3.5 Payment for ongoing services is collected in advance by Direct Debit on a regular day each month as agreed between the parties in writing. If you are unable to pay by Direct Debit then there will be an admin charge of 5% on each invoice.
3.6 If payment is not received your services will be suspended and you may incur an administration fee of £15.00 + VAT to recommence. The ongoing monthly service can be cancelled at any time, for any reason, by either the client or DigitalOx by providing one months’ notice in writing to [email protected] .
3.7 If a Direct Debit is returned as unpaid you will be due to pay an additional fee of £15.00 + VAT. If you wish to cancel your ongoing services with DigitalOx please contact us in writing to inform us on [email protected] that you will be cancelling one month in advance of your wish to cancel. If a non-agreed or accidental Direct Debit cancellation is made by you, you will be due to pay an additional administration fee of £15.00 + VAT.
3.8 If insufficient notice of cancellation of an ongoing service is served, one month’s total service charge will be invoiced plus an administration fee of £15.00 + VAT.
3.9 If payment is made and no work, nor the materials to complete the work, is provided within the following 6 month period the allocated working-time will be cancelled and no refunds will be due.
4. CLIENT’S OBLIGATIONS.
4.1 To enable DigitalOx to perform its obligations under this Agreement the Client shall:
4.1a co-operate with DigitalOx;
4.1b provide DigitalOx with any information reasonably required by DigitalOx
4.1c obtain all necessary permissions and consents which may be required before the commencement of the services; and
4.1d comply with such other requirements as may be set out in the Service Specification or otherwise agreed between the parties.
4.1e deal with DigitalOx staff in reasonable, professional and non-abusive manner.
4.1e.1 Any threats or abuse (including but not limited to: aggressive behaviour, swearing, violence, implied violence or threats of violence) towards any DigitalOx staff at any time shall constitute a breach of contract on the Clients part and DigitalOx Limited will recover the full value of the Contract to its term from the Client plus the additional sum of £2,000.00 + VAT as compensation.
4.1f Provide the work, or the materials for us to do the work, or sufficiently detailed information for us to complete the work, within a 6-month period of making payment then your contract will be cancelled and no refund will be offered nor due. As per 3.9 above.
4.2 The Client shall be liable to compensate DigitalOx for any expenses incurred by DigitalOx as a result of the Client’s failure to comply with Clause 4.1.
4.3 Without prejudice to any other rights to which DigitalOx may be entitled, in the event that the Client unlawfully terminates or cancels the services agreed to in the Service Specification, the Client shall be required to pay to DigitalOx as agreed damages, not as a penalty, the full amount of any third party costs to which DigitalOx has committed; and in respect of cancellations on less than five working days’ written notice the full amount of the services contracted for as set out in the Service Specification, and the Client agrees this is a genuine pre-estimate of DigitalOx’s losses in such a case. For the avoidance of doubt, the Client’s failure to comply with any obligations under Clause 4.1 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.
4.4 In the event that the Client or any third party, not being a sub-contractor of DigitalOx, shall omit or commit anything which prevents or delays DigitalOx from undertaking or complying with any of its obligations under this Agreement, then DigitalOx shall notify the Client as soon as possible and:
4.4a DigitalOx shall have no liability in respect of any delay to the completion of any project;
4.4b if applicable, the timetable for the project will be modified accordingly;
4.4c DigitalOx shall notify the Client at the same time if it intends to make any claim for additional costs.
5. ALTERATIONS TO THE SERVICE SPECIFICATION.
5.1 The parties may at any time mutually agree upon and execute new Service Specifications. Any alterations in the scope of services to be provided under this Agreement shall be set out in the Service Specification, which shall reflect the changed services and fees and any other terms agreed between the parties.
5.2 The Client may at any time request alterations to the Service Specification by notice in writing to DigitalOx. On receipt of the request for alterations DigitalOx shall, within 10 working days or such other period as may be agreed between the parties, advise the Client by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.
5.3 Where DigitalOx gives written notice to the Client agreeing to perform any alterations on terms different to those already agreed between the parties, the Client shall, within 10 working days of receipt of such notice or such other period as may be agreed between the parties, advise DigitalOx by notice in writing whether or not it wishes the alterations to proceed.
5.4 Where DigitalOx gives written notice to the Client agreeing to perform alterations on terms different to those already agreed between the parties, and the Client confirms in writing that it wishes the alterations to proceed on those terms, the Service Specification shall be amended to reflect such alterations and thereafter DigitalOx shall perform this Agreement upon the basis of such amended terms.
6. REGISTRATION OF DOMAIN NAME.
6.1 The client agrees that DigitalOx may purchase additional domain names in order to facilitate DigitalOx in carrying out (either directly or indirectly) its obligations under this Agreement, including but not limited to facilitating client online repair services.
6.2 The client agrees that all domain names purchased in accordance with clause 6.1 above will be the property of DigitalOx who will be responsible for the upkeep and hosting of the same.
6.3 The client agrees that DigitalOx are not held accountable for errors made on the part of the naming authorities/registration agents.
6.5 DigitalOx guarantee that should the naming authorities/registration agents alter, the clients will be notified immediately via email.
6.5 The client acknowledges that they cannot cancel any domain names once registered.
6.6 In the event of the domain name becoming unavailable during the registration and authorisation period, DigitalOx will propose a new domain name for registration. The new domain name will not affect the present contractual agreements made and the client agrees that they are still subject to the same fees and charges.
7. TRANSFER OF A DOMAIN NAME.
7.1 The client acknowledges that should they request DigitalOx to host an existing domain name, they are fully responsible for the transfer to the server on the day or after the start of any agreements made are responsible for any fees paid to other parties involved in connection to the transfer. In order to affect the transfer the client shall request his/her existing ISP or any other relevant third party:-
7.1a in the case of UK Top Level Domains (TLD’s) to modify the Internet Protocol Server (IPS) Tag as required by DigitalOx.
7.1b in the case of international TLD’s to replace the name servers, admin, technical and billing contact with the relevant details received from DigitalOx.
7.2 Once the agreement has been cancelled or terminated, the client has the right to transfer any domain names to a third party server. The transfer is dependent on a transfer form being completed and all fees being paid in full in accordance to the Price List. All domain names cannot be permitted transfer if requested within 60 days of the renewal date.
7.3 The client acknowledges that DigitalOx will not be held accountable for any obstructions in the transfer of the domain name by any third parties and that all fees should be paid according to the agreement signed.
7.4 The client acknowledges that DigitalOx has the capability to hinder the release of any domain names, should the client be in breach of any agreements or payments, or if the contractual period has not yet expired.
7.5 The client agrees that they are fully responsible for the transfer of the website. DigitalOx will not be held accountable for the transfer of any existing sites hosted within the appropriate domain names.
7.6 The client acknowledges that there may be a release fee or full payment of contract when submitting transfer request forms. This is sometimes demanded by an ISP and is not the responsibility of DigitalOx.
7.7 The client agrees that should an ISP deny the release of a domain name, DigitalOx are not held accountable and are not permitted to interfere with the ordeal. Should DigitalOx choose to intervene, the client understands that there will be a domain name handling fee. This fee is not refundable should the transfer still be unsuccessful.
7.8 The client agrees that services affected by the unsuccessful transfer will not be refunded. Should this occur, DigitalOx will offer a .co.uk domain name to replace the unsuccessful transfer of the previous domain name.
7.9 Domain name transfers, occurring within 2 months of the renewal date, will take longer than initial transfer requests.
7.10 All transferred domain names will be registered to DigitalOx until all agreed fees have been paid in full. The domain name may be transferred to the client, upon request, once all contractual fees and duties have been completed.
8.1 DigitalOx shall upon receiving payment as agreed between both the client and DigitalOx provide the services in accordance with the Service Specification subject to the Client providing the relevant content in order to complete service specification. If the client fails to provide DigitalOx with any information for the completion of any of these services then DigitalOx hold the right to void all services with no refunds issued.
8.2 The ongoing monthly service can be cancelled at any time, for any reason by the client or DigitalOx by providing one month’s notice to [email protected] . DigitalOx will not be held liable for any events occurring after the agreed services have been completed or, where an ongoing service contract is taken and subsequently cancelled, from the date of cancellation.
8.3 Your chosen services cannot begin until we have received payment in full in accordance with clause 3 above, unless DigitalOx provides alternative terms in writing.
8.4 Any additional services you add to your initial service at a later date, will incur an additional charge.
8.5 You agree you will serve us with a minimum of one month’s notice in writing to [email protected] if you wish to cancel your services at any stage.
8.6 In the event that you choose to end your contract with DigitalOx it is solely your responsibility to remove any access you have granted DigitalOx to, for example, your ftp details, your back office, Google accounts or services or any other accounts.
8.7 DigitalOx will only be responsible for providing the Services in relation to the specific information expressly listed within the Service Specification.
8.8 DigitalOx does not accept liability for the existence of any negative online content created or posted by third parties.
8.9 Any work you perform without our recommendations, including link building, press releases or statements, changes to your website or anything else that negatively affects your rankings, your online profile or your conversions will not be deemed the responsibility of DigitalOx.
8.10 Any failure on your part to stay in regular contact with us regarding changes to your site including confirmation and approval of key-phrases or content etc. that affects your services negatively is not the responsibility of DigitalOx.
8.11 DigitalOx will not be held responsible for any illegal activities your website is involved in or promotes, e.g. selling counterfeit goods.
8.12 Any external influences that affect your site negatively through hosting services, domain registration or any others will not be held as the responsibility of DigitalOx.
8.13 Unless otherwise agreed; you are responsible for inputting and creating your own content.
8.14 Content created on your behalf by DigitalOx, once you have approved it, is no longer the responsibility of DigitalOx. You accept full responsibility for its accuracy, maintenance and its legality.
8.15 Search engines change their algorithms regularly, which can result in fluctuations in your search ranking positions. DigitalOx will not be held responsible for these fluctuations or if an algorithm change results in dramatic changes to your website rankings.
8.16 You agree to our ‘Fair Play Policy’ in regards to our ‘additional email and telephone support’.
8.17 Fair Play Policy.
8.17a Definitions of Packages:
Package 1 – up to 1 hour per month,
Package 2 – up to 2 hours per month,
Package 3 – up to 4 hours per month,
Package 4 – up to 6 hours per month.
8.17b At the time of taking up a service with us, your Service Specification will contain information as to which category you fall into. We will monitor our time spent on your requests by email or telephone and should you be in danger of reaching the Fair Play Policy limit we will inform you, either by email or by telephone, of that and of future charges to be incurred.
8.17c Any additional support/responses to queries outside of your allocated time package (as above) will be subject to further charges – and invoiced at an hourly rate of £20.00 per part of hour up to full hour.
8.17d This Fair Play Policy has been designed to prevent Clients from taking advantage by making repeated requests for information or assistance that fall outside the remit of the original Service Agreement between the company and the Client. It is not designed to discourage Clients from calling us and asking for assistance or advice, rather to prevent abuse and permit us to charge a fair rate for our time where excessive requests are repeatedly made.
8.18 All Google Analytics usage is in line with Google Analytics terms of service.
8.19 All Google Webmasters usage is in line with Google account terms of service.
8.20 DigitalOx will not be held responsible for any loss of data you may experience from Google Analytics.
8.21 For “Google Shopping optimisation”, DigitalOx will set up a Google base feed on your website only if the website has been built by DigitalOx. If DigitalOx did not build the website, DigitalOx will act as a consultant on ‘best practice’ procedures and techniques to create one.
8.22 For “Google Places optimisation”, DigitalOx will only act as a consultant offering advice and ‘best practice’ procedures and techniques in creating and optimising your Google Places listing.
8.23 For “XML sitemap creation”, DigitalOx will create an automatically updating XML sitemap only if DigitalOx built the website. If DigitalOx did not create the website, DigitalOx will create a static XML sitemap and upload it to Google Webmaster Tools.
8.24 It is your responsibility to create a Google account and provide unrestricted access to it for DigitalOx to set up Google Analytics and Google Webmaster tools.
8.25 For “manually create Meta tags”, DigitalOx will allocate time every month, taken from your services as detailed in your initial service specification.
8.26 For “press release submission”, you agree to approve each press release in advance before they are submitted. Failure to submit press releases as a result of clients not approving press releases in a timely manner is not the responsibility of DigitalOx.
8.27 Unless otherwise agreed, for “social media marketing” it is your responsibility to create social networking accounts for Facebook, Twitter, LinkedIn and any other social networks DigitalOx recommends and to provide access to these accounts for DigitalOx where ‘social media exposure’ is included in your services.
8.28 For “writing product descriptions”, DigitalOx will allocate time every month, taken from your services, as detailed in your initial service specification.
8.29 DigitalOx has no control over the policies of Facebook, Twitter, YouTube, LinkedIn and all other social media channels being utilized for campaigns. DigitalOx has no say with respect to the type of content that social media channels accept now or in the future.
8.30 You acknowledge that DigitalOx makes no guarantee that any Campaign will generate an increase in sales, business activity, profits or any other form of improvement for your business or any other purpose.
8.31 You guarantee any elements of text, graphics, photos, designs, trademarks, or other artwork provided to DigitalOx for inclusion in any campaigns are owned by you, or that you have received permission from the rightful owner(s) to use each of the elements.
8.32 Minimum term of any service is one month. Cancellations of any ongoing Social Media Services must be made in writing by mail or email to [email protected] providing one month’s notice. If DigitalOx does not receive notification that the campaign should be stopped after the one month period in writing, you agree that DigitalOx will continue working and payments will continue to be made.
8.33 There are no refunds available on services provided by DigitalOx.
8.34 No liability whatsoever (except as provided by law) will be accepted by DigitalOx for any damages or losses arising from or as a consequence of the provision of the Services or any other act or default on the part of DigitalOx or of any servant, agent or contractor of DigitalOx in relation to this agreement and the Services unless the same occurs because of the negligence of DigitalOx, its servants, agents or contractors in which case liability is limited to resupplying the Services again or a refund of the fees paid by you in the previous 1 month as elected by DigitalOx.
8.35 Nothing in this agreement is intended to limit or exclude any liability on the part of DigitalOx where and to the extent that applicable law prohibits such exclusion or limitation.
8.36 DigitalOx reserves the right to reject or discontinue the social media services where we are unable to provide the services due to technical, ethical, legal, or other matters. Where applicable, DigitalOx will refund your money for any services not yet rendered.
8.37 A DigitalOx social media marketing account requires your valid email address and full name, you must then provide your legal full name, a valid email address, and any requested information in order to complete the account sign-up process.
9.1 Whilst DigitalOx makes every attempt to check unlawful content, DigitalOx cannot be responsible for the Content accessed or made available to others through the Services.
9.2 DigitalOx has the rights to refuse or remove any Content that is available via the Services. DigitalOx may (but has no obligation to) remove content and accounts containing Content that DigitalOx determines in its sole discretion to be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate or deceptive (including Content that DigitalOx determines in its sole discretion to: (a) be libellous, defamatory, pornographic, obscene, or otherwise objectionable; or (b) violate any party’s intellectual property).
9.3 You must not upload post, host, transmit or otherwise make available to others unsolicited email, SMSs, or “spam” messages through the Services.
9.4 You must not transmit or otherwise make available to others any worms or viruses or any code of a destructive nature (“Viruses”) through the Services.
10. Use and restrictions.
10.1 You may only use the Services to: (a) access Content on DigitalOx’s website; and (b) access, manage and obtain information about your accounts with Third Party Service Providers in accordance with these Terms of Service and any terms specified by the Third Party Service Providers.
10.2 You may not access or search or attempt to access or search the Services by any means (automated or otherwise) except through DigitalOx platforms and software.
10.3 You may not use the Services for any illegal or unauthorized purpose, including in any way that violates copyright or other laws.
10.4 You may not use the Services in a way that is detrimental to the operation of the Services or the access or use of the Services by anyone else. This restriction applies to any use that interferes or attempts to interfere with the normal operations of the Services, including by hacking, deleting, augmenting or altering the Services or any Content.
10.5 You may not, without DigitalOx’s prior written permission (including the permissions granted by these Terms of Service): (a) copy, distribute, modify, enhance, translate, reproduce; (b) decompile, disassemble, reverse engineer, or copy source code; (c) modify another website so as to falsely imply that it is associated with the Services, DigitalOx or any other DigitalOx products or services.
11. Modifications to the services and prices.
11.1 DigitalOx may change the Services at any time and from time to time without notice. Any changes to the Services, including releases of new features, tools or resources, shall be subject to these Terms of Service. DigitalOx may also stop (temporarily or permanently) providing the Services (or any part of the Services) to you or to its customers generally without prior notice though we would strive to provide a minimum of 28 days notice should this ever occur.
11.2 Prices of all Services, including but not limited to monthly subscription plan fees for Services, are subject to change upon 30 days notice from DigitalOx. Such notice may be provided at any time by posting the changes on DigitalOx’s website (www.digitalox.co.uk).
11.3 DigitalOx shall not be liable to you or to any third party for any change to the Services, price change, suspension or discontinuance of the Services.
12. Cancellation and termination.
12.1 If you choose to cancel your account, you are solely responsible for doing so properly. The current account cancellation procedure is as follows: Contact your account manager and confirm cancellation in writing (email to [email protected] ). This can be cancelled at any time, for any reason by the client or DigitalOx by providing one month’s notice.
12.2 DigitalOx does not accept any responsibility for loss of Content due to account cancellation.
13. Ownership and licenses for work created Online on your behalf.
13.1 DigitalOx and its licensors retain title to and ownership of all rights (including copyright, trade-mark, patent, trade secret and all other intellectual property rights) in and to the Services and DigitalOx’s Content. You acquire no rights whatsoever to all or any part of the Services except for the limited use rights granted by these Terms of Service. All rights not expressly granted to you are reserved to DigitalOx and its licensors.
13.2 DigitalOx retains ownership of all content and links created on your behalf during the service period with you (except where the content is on your previously existing website and/or otherwise already owned by you). In the case of content created by DigitalOx for the express purpose of fulfilling its service to you (including but not limited to backlinks, social media profiles, websites, articles, blogs, infographics, guest blog posts, guest blog mentions, press releases, online press or publicity mentions) will belong to DigitalOx entirely. At the conclusion of your contract, or following a cancellation of service by either party, all content created as noted above by DigitalOx shall remain the property of DigitalOx. If the Client wishes to purchase the content from DigitalOx they shall pay a fee of £3,000.00 plus VAT for the transfer of all content inc logins, passwords and access and DigitalOx shall waive all future claim to ownership or right to access the content.
13.3 We claim no intellectual property rights over the Content made available to others through your account. Additionally, your profile and other Content you provide to DigitalOx in connection with the Services remain yours. However, by making that Content available to others through the Services, or providing it to DigitalOx through the Services, you grant DigitalOx a worldwide, non-exclusive, royalty-free, fully paid up license (with a right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content through any or all media or distribution methods (whether now known or hereafter developed). You also acknowledge that the purpose of the Services is to access the services of Third Party Service Providers, and that as a result you are agreeing to grant to DigitalOx any and all other rights you grant to applicable Third Party Service Providers.
13.4 By posting any public media using the DigitalOx Service, you agree that you are following the relevant terms and conditions of the Third Party Service Provider you are linking to.
14. Disclaimer and limitation of liability.
The services are provided “as is”, “as available”, with all faults and without warranties, representations or conditions of any kind. Use of the services is entirely at your own risk. Digitalox does not make any representations, warranties or conditions about the quality, accuracy, security, reliability, completeness, quiet enjoyment, currency, or timeliness of the services. Digitalox does not assume any responsibility for any incompleteness, errors, security, viruses, bugs, problems, omissions, inaccuracies or other limitations in, or interruptions in the operation of, the services. To the fullest extent permitted by law, digitalox disclaims all warranties, representations and conditions of any kind with respect to the services whether express, implied or collateral, including, without limitation, the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement or that the services are or will be secure, complete or free of errors, viruses, bugs, problems or other limitations or will operate without interruption. To the fullest extent permissible pursuant to applicable law. Digitalox disclaims all liability, whether based on warranty, contract, tort (including but not limited to negligence, gross negligence or wilful misconduct), product liability, strict liability, statutory liability, breach of a fundamental term, fundamental breach, or any other legal theory, for any loss or damages of any kind (including, without limitation any (i) direct, indirect, special, consequential, exemplary or punitive loss or damage, (ii) lost profits or savings, (iii) business interruption, (iv) loss of programs or data (including any content), (v) lost revenue or failure to realize expected savings, (vi) loss of use, (vii) personal injury, (viii) fines, fees, penalties, or (vi) any other losses or damages whether or not digitalox is advised of the possibility of such damages, resulting from the use of, or the inability to make use of, the services.
15. GENERAL CONDITIONS.
15.1 Technical support is only provided to Clients who have opted for this specific additional service and is only available during United Kingdom standard business operating hours, currently Monday to Friday, 9am to 5pm GMT unless by specific agreement within a separate Service Level Agreement.
15.2 You understand that DigitalOx uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services.
15.3 You understand that the technical processing and transmission of the Services, including your Content, may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
15.4 The failure of DigitalOx to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and DigitalOx and governs your use of the Services, superseding any prior agreements between you and DigitalOx (including, but not limited to, any prior versions of the Terms of Service). A printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Subject to DigitalOx’s ability to amend these Terms of Service, they cannot be changed.
15.5 If any of the provisions contained in these Terms of Service are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to affect the intent of these Terms of Service and such determination shall not affect the remaining provisions contained herein.
15.6 You may not assign these Terms of Service or any of your rights or obligations under these Terms of Service to a third party. Subject to the foregoing, these Terms of Service shall ensure to the benefit of and be binding upon you and DigitalOx and their respective successors (including any successor by reason of amalgamation) and assigns.
15.7 You agree that if you sue DigitalOx and do not obtain judgment in your favour, you will pay all of DigitalOx’s costs, including reasonable fees for in-house and outside legal counsel.
16.1 DigitalOx warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
17.1 The Client shall indemnify DigitalOx against all claims, costs and expenses which DigitalOx may incur and which arise, directly or indirectly, from the Client’s breach of any of its obligations under this Agreement, including any claims brought against DigitalOx alleging that any services provided by DigitalOx in accordance with the Service Specification infringes a patent, copyright or trade secret or other similar right of a third party.
18. LIMITATION OF LIABILITY.
18.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of DigitalOx to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the fees paid by the Client to which the claim relates.
18.2 In no event shall DigitalOx be liable to the Client for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever.
18.3 Nothing in these Terms and Conditions shall exclude or limit DigitalOx’s liability for death or personal injury resulting from DigitalOx’s negligence.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
19.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 28 calendar days of being given written notice from the other party to do so;
19.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
19.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
19.4 the other party ceases to carry on its business or substantially the whole of its business; or
19.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
20. FORCE MAJEURE.
20.1 Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
21. DATA PROTECTION.
22. INDEPENDENT CONTRACTORS.
22.1 DigitalOx and the Client are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. DigitalOx may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Client and such engagement shall not relieve DigitalOx of its obligations under this Agreement.
23.1 The Client shall be entitled to assign its rights or obligations or delegate its duties under this agreement with the prior written consent of DigitalOx.
24.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts, such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
25.1 The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
26.1 Any notice to be given by either party to the other may be served by email, personal service or by post to the address of the other party given in the Service Specification or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been served at the time by which the letter was served via recorded delivery.
27. ENTIRE AGREEMENT.
27.1 This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
28. THIRD PARTIES.
28.1 Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
29. GOVERNING LAW AND JURISDICTION.
29.1 This Agreement shall be interpreted and construed according to, and governed by, the laws of England and Wales.
30. SUSPENSION AND CANCELLATION OF SERVICES.
30.1 DigitalOx hold the rights to cancel and suspend / terminate any services to the client if they are not responding to any notices or providing the relevant content set out in the service specification. There has to be a level of commitment from the client’s behalf in order for DigitalOx to provide a full service. If the client fails to provide the relevant content to their package(s) after 4 weeks from sign up date, or neglects to maintain regular correspondence again up to 4 weeks, DigitalOx reserve the right to suspend any services the client has with DigitalOx. If the client wishes to un-suspend their account they may be liable to pay £199 + VAT. Please note that if your account has been suspended and you fail to contact DigitalOx your website and or other services may be cancelled, deleted from the server, and any monies you owe to DigitalOx for services provided will still be due and may be passed to a debt collection agency to reclaim. We advise you that you should always keep a copy of your website files independently.
30.2 Any refunds due on cancellation of services as agreed with DigitalOx will be paid within 60 days of confirmation of cancellation.
30.3 If you wish to move your site away we will send you all the website files and database(s) to you by email and there will be a £95 + VAT admin charge for this.
30.4 You cannot cancel the contract once we have started to perform the services, where you have agreed to us starting to perform the services as soon as possible.
31.1 DigitalOx shall not, without the prior written consent of the Client, disclosed to any other parties, confidential information of the Client. “Confidential Information” for the purposes of this Agreement shall include proprietary and confidential information such as, but not limited to, customer lists, business plans, marketing plans, password or user IDs, and financial information.
32.1 All of the above Terms and Conditions also apply to the Service fully owned by us and operating under the Trading As name of ‘ReviewNinja’.