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terms and conditions
 

TERMS AND CONDITIONS FOR THE PROVISION OF BUSINESS HOSTING AND ECOMMERCE SERVICES

PLEASE READ THIS AGREEMENT CAREFULLY.

WE WILL ONLY PROVIDE YOU WITH ACCESS TO THESE SERVICES IF YOU FIRST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY ELECTRONICALLY TICKING THE "I ACCEPT" BUTTON WHEN PROVISIONING A SERVICE.

 

1. Definitions

1.1 The definitions of words and phrases used in this Agreement are set out at the end of this Agreement.

1.2 The expressions “the Customer” and “ntl” shall include their respective successors and permitted assigns and their respective employees and agents.

1.3 Any reference to any Act of Parliament shall be deemed to include any amendment, replacement or re-enactment thereof from time to time in force and to include any bye-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made thereunder and any condition attaching thereto.

1.4 Any undertaking by the Customer to do or not to do any act or thing shall be deemed to include an undertaking to procure or not to permit or suffer the doing of that act or thing.

1.5 Words in the singular shall include the plural and vice versa.

1.6 The headings in this Agreement are for convenience only and shall not affect the construction of this Agreement.

1.7 In the event of any conflict between the provision of these terms and conditions and those in ntl’s Service Literature then the provisions of these terms and conditions shall prevail.

2. Conditions

2.1 ntl shall provide Services to the Customer on the terms set out in this Agreement. The provision of Services is subject to availability and to acceptance by ntl and to any conditions which may be imposed by ntl prior to acceptance. Acceptance shall take place only when confirmation of registration is sent to the Customer in writing (whether by email or otherwise). ACCESS TO THE SERVICES IS SUBJECT TO CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT AND ntl’s USER POLICY.

2.2 Subject to clause 2.1, the Customer may order Services at any time. ntl will confirm the Services ordered by the Customer. It is the Customer’s responsibility to check that this confirmation correctly sets out the Services ordered by the Customer and the Customer shall inform ntl immediately in writing (whether by email or otherwise) of any errors.

2.3 If ntl sends the Customer a revised version of ntl’s current standard terms and conditions for provision of Services, together with a notice stating when such revised terms and conditions will come into force and the Customer continues to use the Services after such date, then the Customer shall be deemed to have accepted such revised terms and conditions with effect from such date.

3. The services

3.1 Software

3.1.1 Intellectual property rights in all software (in whatever form) provided by ntl or its licensors to the Customer for the purpose of using the Services shall remain the property of ntl or its licensors. ntl grants the Customer a non-exclusive non-transferrable right and licence to use the software provided by ntl (if any) solely for the purpose of using the Services during the term of this Agreement and for no other purpose. The Customer agrees to comply with the terms of any agreement reasonably required by the owner or licensor of intellectual property rights in all software supplied to the Customer for the protection of that software. The Customer may be required to enter into a separate licence agreement with the owner or licensor for such purpose.

3.1.2 The Customer shall:

(a) keep the software in confidence;

(b) not reproduce the software except for archival or back-up purposes where each copy contains all of the original software’s proprietary notices;

(c) not alter, modify, translate, reverse engineer, decompile, disassemble (except to the extent that applicable laws specifically prohibit such restriction) or create derivative works based on any of the software or any documentation accompanying the software;

(d) permit only authorised employees or contractors to access any system administration or site administration portion of the software or Services;

(e) not remove any proprietary notices or labels on or within the software;

(f) not rent, lease, grant a security interest in or otherwise transfer or sub-licence rights to the software to any person; and

(g) immediately on termination of this Agreement for any reason, cease to use the software and return all copies of the software to ntl and expunge any copies of the software from any computer, word processor or other data storage device.

3.2 Names

3.2.1 Where the Customer is supplying its own Names, ntl reserves the right to charge the Customer for transferring such Names onto the Internet Network.

3.2.2 If ntl allocates one or more of its own Names to the Customer, such Names shall remain the property of ntl and shall be returned to ntl upon termination of this Agreement.

3.2.3 Where the Customer uses the Services to arrange the registration of Names directly with the relevant third party domain naming or other authorities, the Customer shall pay such third party directly on demand for all registration and subscription fees payable in connection therewith. Subject to clause 3.2.4 where ntl arranges the registration of Names on the Customer’s behalf, the Customer shall pay ntl on demand for all registration and subscription fees payable in connection therewith. The Customer acknowledges that it is solely responsible for the selection of such Names and agrees to indemnify ntl for any loss or damage suffered as a result of the use of such Names.

3.2.4 ntl agrees to arrange for the registration of a single “.co.uk” Name on the Customer’s behalf with Nominet and to pay the initial registration fees in relation to such Name. All other charges and fees, including renewal and transfer fees shall be payable by the Customer.

3.2.5 The Customer shall have exclusive use of the domain Names referred to in clauses 3.2.3 and 3.2.4 for the period specified by the relevant naming authority. In the event that the Customer wishes to transfer the Name to another Service provider ntl reserves the right to charge an administration fee to effect such transfer. ntl shall not be required to transfer any Name unless and until the Customer has paid in full all amounts due by it under this Agreement.

3.2.6 Where the Customer, or ntl on the Customer’s behalf registers a domain Name as specified in clauses 3.2.3 or 3.2.4, the Customer shall also be subject to and shall comply with any terms and conditions imposed by the relevant naming authority, whether this be Nominet UK, InterNIC or otherwise and such terms are incorporated herein by reference in relation to such Names. The terms and conditions of the relevant naming authority are available for inspection upon their web pages. The Customer acknowledges that ntl cannot guarantee that any Names requested by the Customer under clause 3.2.2, 3.2.3 or 3.2.4 will be available or approved for use.

3.2.7 The Customer warrants that it and any Users are the owners of, or that they have been and are duly authorised by the owners to use, any trade marks or names which are used, supplied, requested or allocated as their Names. The Customer may be required (as determined by ntl in its sole discretion) to supply ntl with the applicable registration or other documents in confirmation of such warranty.

3.2.8 ntl may require the Customer to select replacement Names and/or suspend Services if, in ntl’s opinion, there are reasonable grounds for ntl to believe that the Customer’s current use or choice of Names infringes upon the rights of any other person, whether in statute or common law, in a corresponding trade mark or name.

3.2.9 The Customer grants to ntl the right to list the Customer and where relevant include the Customer’s Names (and its trade marks) in the e-commerce community pages of its web site.

3.3 Internet protocols addresses

3.3.1 The Customer acknowledges and agrees that no fixed internet protocol addresses shall be provided under this Agreement and such internet protocol addresses shall at all times remain the sole property of ntl and/or its licensors. Each dynamic internet protocol address which is provided now or hereafter by ntl to Customer shall at all times remain the property of ntl or its licensors and each such provision shall constitute a licence made by ntl to Customer pursuant to which Customer may use such address in accessing the Services for the duration of a single session. At the end of any session, the licence made by ntl to the Customer shall automatically terminate.

3.3.2 The Customer acknowledges that it may be obligated to re-configure its own networks in order to continue receiving the Services as a result of changes in the dynamic internet protocol address or the payment gateway virtual terminal ID. ntl shall not be liable for any costs incurred by the Customer in connection with any such re-configuration.

3.4 Webspace and eshops

3.4.1 The Customer shall ensure that the contents of webspace and eShops at all times comply with the provisions of clause 8 of this Agreement and any User Policy.

3.4.2 It is the Customer’s responsibility to keep backup copies of any data uploaded to ntl’s servers and to satisfy itself of the effectiveness of any system it establishes to monitor the webspace and eShop contents and use.

3.4.3 The Customer acknowledges that limits on storage allocation and data transfer levels will apply to the Services as set out in ntl’s Service Literature. If the Customer wishes to exceed such limits then it must obtain additional Services as specified in clause 7.1 and additional charges shall be payable. ntl may at its absolute discretion move any webspace or eShop which generates abnormally high hit levels or otherwise exceeds data transfer limitations and/or make additional charges. ntl shall give the Customer notice of such move and/or any additional charges this may incur, as soon as reasonably practicable.

3.4.4 ntl shall only provide the eShop services to the Customer where the eShop is hosted by ntl.

3.5 Payment gateway

3.5.1 In consideration for the Charges and subject to compliance with clauses 3.5.2, ntl agrees (where requested by Customer and accepted by ntl) to provide the following services:

  • remote access to and use of payment gateway software (which shall be licensed pursuant to clause 3.1) which will when used with the ntl payment gateway server facilitate the following checks to determine whether the Relevant Card:
    1. passes the Luhn check algorithm;
    2. has an expiry date in the future; and
    3. has an issue date in the past.
ntl does not, either through the payment gateway software or in providing the Services undertake any name or address checks on the Relevant Card, any checks to determine whether the number of the Relevant Card if fraudulent or invalid, any checks to determine if the person using the Relevant card has the permission of the Cardholder to use the Relevant Card, or any checks to determine whether there is sufficient credit available on the Relevant Card.

3.5.2 The Customer acknowledges and accepts that ntl is only able to provide the payment gateway Services and the payment gateway Software will only provide the functionality detailed in clause 3.5.4 if the Customer:

  1. properly collects and delivers the Card Scheme Transaction data to ntl or its authorised representative and including without limitation the proper completion of the Authentication Method;
  2. properly uses the API (if provided) to integrate its Site into ntl’s payment gateway server; and
  3. complies with clause 3.1.2.

3.5.3 The Customer acknowledges and accepts that the collation and accuracy of any Card Scheme Transaction data submitted to ntl or its authorised representative is the Customer’s exclusive responsibility and that ntl is solely acting on the Customer’s behalf in seeking the authorisation by the Customer’s Acquiring Bank of the relevant Card Scheme Transaction. Accordingly and without prejudice to clause 12, ntl and its licensors shall have no liability to Customer in relation to either the Card Scheme Transaction data submitted to ntl or its authorised representative or the results of any Authorisation Request sought on Customer’s behalf from the Acquiring Bank.

3.5.4 Provided the Customer complies with the provision of clauses 3.5.2, the payment gateway software will provide Customer with the following functionality:

  1. (when combined with the necessary hardware and networking) the ability for Customer to process Card Scheme Transactions effected by Cardholders on the Customer’s Site; and
  2. the encryption of (using the Blowfish encryption algorithm, or other encryption algorithm that ntl or its licensors may, from time to time, deem necessary) the details provided by the Cardholder on Customer’s Site before such number is sent by the payment gateway software to ntl’s server as an Authorisation Request.

3.5.5 ntl shall only provide access to the payment gateway Services where the Customer’s Site or eShop is hosted by ntl.

4. Access codes

4.1 Where as part of the provision of Services ntl provides the Customer with Access Codes then all rights associated with such numbers and Access Codes belong to ntl. The Customer shall not or attempt to rent, lease, let, sell, charge, assign or otherwise deal with such Access Codes in a manner prejudicial to ntl’s rights therein.

4.2 ntl shall be entitled, for operational or technical reasons or in order to comply with any numbering scheme or other obligation imposed on ntl or by the ntl Licences or any other competent authority, to withdraw any Access Codes allocated to the Customer provided that ntl gives the Customer the maximum period of notice in writing thereof practicable in the circumstances. Upon suspension or termination of this Agreement or if in the opinion of ntl there are reasonable grounds for believing the Customer has not complied or is not complying with this Agreement ntl shall have the right to withdraw any Access Code forthwith.

4.3 The Customer shall:

(a) keep any Access Codes confidential and personal to the Customer who shall be responsible for keeping such Access Codes safeguarded;

(b) use such Access Codes in accordance with the reasonable rules or instructions provided to it by ntl from time to time; and

(c) be responsible for all charges incurred through the use of Services when access to Services is obtained through the use of any Access Code whether with or without the Customer’s knowledge or permission.

4.4 If the Customer has any grounds for suspecting or believing that a person or persons have discovered or are making use of any Access Codes without the knowledge, consent or permission of ntl or the Customer, the Customer shall notify ntl immediately and ntl shall immediately prevent access to Services by the use of any such Access Code and allocate a new Access Code in its place. If ntl has any grounds for suspecting or believing that a person or persons have discovered or are making use of any Access Codes without the knowledge, consent or permission of ntl or the Customer, ntl shall notify the Customer and ntl shall immediately prevent access to Services by the use of any such Access Code and allocate a new Access Code in its place.

5. Trial period and duration

5.1 This Agreement shall commence upon the date of activation of the Services and confirmation is given by ntl in accordance with clause 2.1.

5.2 Where a Customer is provided with a Free Trial then so long as such Customer has not requested further Services under this Agreement, Customer may terminate this Agreement at the end of such Free Trial by giving not less than 5 Working Day’s notice to ntl to expire on or before the end of the Free Trial. Notice of termination must be given by letter or by Customer telephoning ntl’s Customer services centre (and confirming in writing) or by email to the email address specified by ntl from time to time. Where the Customer fails to terminate the Agreement at the end of the Free Trial in accordance with this clause, the Agreement shall continue in full force and effect and ntl shall be entitled to charge for provision of the Services as specified in clause 9 from the end of the Free Trial until no earlier than the end of the Minimum Period.

5.3 Subject to the terms hereof, the Agreement shall continue in force for a minimum of three (3) months from the date specified in clause 5.1 or the end of the Trial Period (whichever is later) (the “Minimum Period”) and thereafter unless terminated by either party giving to the other party not less than one (1) months’ prior written notice. Notice of termination under this clause may be given by letter or by email to the address specified by ntl from time to time or by Customer telephoning ntl’s Customer services centre (and confirming in writing).

6. Maintenance

6.1 ntl shall be responsible for the maintenance of the ntl Network and the Internet Network.

6.2 ntl shall provide a twenty-four (24) hour a day fault reporting facility to the Customer that may be used by such representatives of the Customer as agreed by ntl. Such agreement shall not be unreasonably withheld.

6.3 When a fault is reported, ntl shall use reasonable endeavours to take such steps and give such advice as may be appropriate to restore normal operation of Service. However it is technically impossible for ntl to provide the Services free of faults at all times and ntl is unable to guarantee fault free services at all times.

6.4 ntl shall have the right to make additional charges for work carried out by ntl to locate, rectify or repair faults if such result from:-

(a) any cause or reason associated with the Customer Provided Apparatus; or

(b) faults of a minor nature which do not significantly affect or materially detract from the standard of the provision of Services; or

(c) power failure, accident, Customer’s neglect or any force majeure event as set out in clause 19; or

(d) any fault or other problem caused by the Customer’s wilful act, fault or negligence, or the Customer’s failure to comply with its obligations hereunder; or

(e) misuse or improper use of Services.

6.5 It may be necessary from time to time for ntl to temporarily interrupt or suspend the Services for repair, maintenance or improvement of any of the facilities necessary to provide the Services. ntl will give the Customer as much notice as is reasonably practicable of any interruption or suspension and ntl will restore the Services as soon as is reasonably practicable. The Customer’s access to the Services may occasionally be restricted to allow implementation of new facilities and to allow data archival.

6.6 ntl shall back up its systems on a regular basis and in the event of a system failure ntl shall use reasonable endeavours to restore such backed up systems including the Content but ntl shall not be required to recover or be responsible for any failure to recover the whole or any part of the Content (as defined in clause 12.4). It is strongly recommended that the Customer backs up its Content on a regular basis.

6.7 The Customer undertakes promptly to provide ntl (free of charge) with all information and co-operation that ntl may reasonably require and which the Customer is able to provide from time to time to enable ntl to perform uninterrupted its obligations under this Agreement.

6.8 ntl will not be responsible for any faults or interruptions in the Services or any inability of the Customer to access the Services where this is caused by a failure or inadequacy in any Customer Provided Apparatus or any incompatibility between any Customer Provided Apparatus and the ntl Network or the Internet Network or because of faults in any PTO’s Network.

7. Changes to services

7.1 The Customer shall be entitled at any time to request a change to Services. Agreement to such request shall be at ntl’s sole and absolute discretion and the Customer acknowledges that additional charges may be payable.

7.2 Changes to the services made in accordance with clause 7.1 shall constitute a change in Services and this Agreement shall be treated as varied accordingly.

8. Misuse of and limitations on use of services

8.1 The Customer undertakes to use Services and to procure that each User uses Services in accordance with this Agreement, ntl’s User Policy and such reasonable operating instructions as may be notified in writing or verbally (and confirmed in writing) to the Customer by ntl from time to time and in accordance with any telecommunications or other licences which govern the running of a telecommunication system by the Customer.

8.2 Without limitation to the generality of clause 8.1, the Customer undertakes not to use Services and undertakes to prevent each User from using Services:

(a) for the communication, publication, transmission or receipt of any material which is defamatory, offensive or abusive or of an obscene, nuisance, hoax, threatening or menacing character; or

(b) in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to rights of copyright, privacy or confidentiality); or

(c) in a manner that is associated with a criminal offence; or

(d) to cause annoyance, inconvenience or needless anxiety; or

(e) to send any unsolicited advertising or other promotional material, commonly referred to as “spam” by email or by any other electronic means; or

(f) send email or any other type of electronic message with the intention or result of affecting the performance or functionality of any computer facilities.

8.3 THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE FOR BUSINESS USE ONLY AND ARE AVAILABLE ONLY TO THOSE CUSTOMERS RESIDENT WITHIN AND OBTAINING THE SERVICES FROM WITHIN THE TERRITORY. The Customer warrants and represents to ntl that it shall not be using the Services as a consumer and that it is resident within and is obtaining the Services from within the Territory.

8.4 The Customer undertakes not to re-sell for money or monies worth Services or any part thereof to any third party, other than with prior written consent of ntl.

8.5 The Customer shall not use a Name such as to infringe the rights of any other person, whether in statute or common law, in a corresponding trademark or name.

8.6 The Customer shall indemnify ntl for all costs, claims, damages or proceedings made or threatened to be made by reason of the Customer’s or a User’s use or misuse of Services or the breach by the Customer of its obligations under this Agreement.

8.7 The Customer acknowledges that ntl may co-operate with any court, tribunal, regulatory body, police authority or other competent authority in any investigations or proceedings concerning the Customer’s use of the Services. This may include disclosing private communications transmitted via the Services to such authorities.

8.8 ntl reserves the right to suspend access to or remove by immediate notice material placed on ntl’s servers by the Customer, other Users or any other person which ntl in its reasonable opinion believes violates this Agreement or is otherwise harmful to the interests of ntl or other users of ntl’s services.

9. Charges

9.1 In consideration of ntl’s obligations hereunder the Customer shall pay to ntl the Charges and any other charges due under this Agreement monthly in advance or as otherwise specified by ntl. Payment shall be made by the Customer in full (without any set-off, deductions or withholding whatsoever) by the payment method specified in the Order Form.

9.2 All sums due to ntl under this Agreement are exclusive of Value Added Tax (“VAT”), and any other applicable taxes which may from time to time be introduced, which shall be charged thereon in accordance with the relevant regulations in force at the time of making the taxable supply and shall be paid by the Customer.

9.3 Time of payment of all sums due to ntl under this Agreement shall be of the essence of this Agreement. Without prejudice to ntl’s right to treat non-payment or late payment as a repudiatory breach of this Agreement, ntl reserves the right to charge daily interest on outstanding amounts, until payment in full is received by ntl, at a rate equal to four (4) per cent per annum above the Barclays Bank PLC base lending rate as current from time to time whether before or after judgement. Interest shall continue to accrue notwithstanding termination of this Agreement for any cause whatsoever. If any payments are more than thirty (30) days overdue, ntl may at its absolute discretion, suspend the provision of all or part of the Services.

9.4 ntl shall be entitled to change the Charges and any other charges payable by the Customer at any time. ntl shall publish any such changes on its web site before they take place.

10. Warranties and representations

10.1 ntl warrants that Services shall be performed in a timely and professional manner and with reasonable skill and care.

10.2 ntl warrants that Services shall be performed in compliance with all applicable English laws, enactments, orders, regulations and other similar instruments, and that ntl will obtain all licences and permits required to comply with such laws, enactments, regulations, standards or other similar instruments.

10.3 The software provided under this Agreement is provided “as is” without warranty of any kind, save as set out in clause 10.4.

10.4 ntl warrants that:

10.4.1 it has full power and authority to grant the licence set out in clause 5.1;

10.4.2 in relation to software licensed by ntl to customer under this Agreement, it has the right and interest in such of the software as it owns and the right to grant sub licences in relation to such parts of the software it does not own; and

10.4.3 the payment gateway software, will subject to compliance by Customer with clause 3.5.2 provide the functionality detailed in clause 3.5.4 in all material respects for a period of 90 days after the date that ntl agrees to provide Customer with such payment gateway Services, following a Customer request, and all other software (if any) licensed by ntl to Customer under this Agreement, will, subject to compliance by Customer with clause 3.5.2, provide the functionality detailed in the published specification for such software in all material respects for a period of 90 days after the date that ntl agrees to provide Customer with such software, following a Customer request.

10.5 In the event that the software does not provide the functionality detailed in clause 3.5.4 for a period of 90 days after the date ntl agrees to provide such software, following a Customer request, Customer agrees that its sole remedy in relation to clause 10.4.3 shall be to require ntl to promptly repair or replace the software or to use its reasonable endeavours to correct, or procure that its licensor corrects, any bugs in the Software which may be identified as causing the breach of clause 10.4.3.

10.6 Customer acknowledges and accepts that no software including without limitation software licensed under this Agreement is bug, interruption or error free and in the event of any such errors, interruption or bugs Customer’s sole remedy shall be as set out in clause 10.4.3 provided the bug, interruption or error manifests itself within 90 days of the date ntl agrees to provide such software, following a Customer request.

10.7 Save as expressly set forth in this Agreement, all conditions and warranties, express or implied, statutory or otherwise, (including but not limited to any conditions or warranties as to satisfactory quality or concerning the fitness of the Services or any part thereof for a particular purpose) are hereby excluded.

11. Termination and suspension

11.1 Termination

11.1.1 ntl shall have the right (without prejudice to its other rights) to terminate this Agreement by notice in writing to the Customer in any of the following events -

(a) a liquidator (other than for the purpose of solvent amalgamation or reconstruction), administrative receiver, administrator or receiver is appointed in respect of the whole or part of the assets and/or undertaking of the Customer or the Customer enters into an arrangement or composition with its creditors, or if it becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or other circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to make a winding up order in relation to the Customer; or

(b) the Customer fails to make any payment when it becomes due to ntl or shall default in due performance or observance of any obligation under this Agreement or any other agreement with ntl or an Associated Company of ntl and (in the case of a remediable breach) fails to remedy the breach within a reasonable time (not less than thirty (30) days) specified by ntl in such notice so to do; or

(c) any licence under which the Customer has the right to run its telecommunication system and connect it to the ntl Network or the Internet Network is revoked, amended or otherwise ceases to be valid and is not immediately replaced by another licence conferring such right or the Customer is in breach of the conditions of any such licence; or

(d) the ntl Licences or any one or more of them, or ntl’s agency in respect thereof, expire or are revoked, in which event ntl shall give to the Customer the maximum period of notice of termination practicable in the circumstances; or

(e) the Customer or a User misuses, or is suspected, in ntl’s reasonable opinion, of misusing, or allows anything to be done which is a misuse of, the Services under Clause 8 or is in breach of the User Policy; or

(f) the Customer has provided ntl with any false, inaccurate or misleading information for the purpose of obtaining Services (or any part thereof); or

(g) the Customer is suspected, in ntl’s reasonable opinion, of involvement with fraud or attempted fraud or any other criminal offence in connection with the use of Services; or

(h) the Customer or a User has previously obtained any services from ntl or any Associated Company and all or any part of the services have been suspended or terminated by ntl or its Associated Company as a result of the act or default of the Customer or User.

11.1.2 Upon termination of this Agreement for any reason the Customer shall cease to make use of Services.

11.2 Suspension of services

11.2.1 ntl may at its sole discretion suspend forthwith provision of Services either in whole or in part until further notice on notifying the Customer either orally (confirming such notification in writing) or in writing in the event that:

(a) ntl shall be entitled to terminate this Agreement; or

(b) ntl shall be obliged to comply with an order, instruction or request of Government, regulatory authority, emergency services organisation, or other competent authority; or

(c) ntl shall need to carry out work relating to exceptional upgrading or maintenance of the ntl Network; or

(d) ntl shall need to carry out work relating to the repair, improvement, upgrading or maintenance of the Internet Network or any other facilities which are necessary to provide access to the Internet.

11.2.2 Any exercise or non-exercise by ntl of its right of suspension in respect of an event referred to in this clause 11 shall be without prejudice to ntl’s right to terminate this Agreement subsequently in respect of the same or any other event.

11.2.3 The Customer shall reimburse ntl all costs and expenses incurred by the implementation of such suspension and/or the recommencement of the provision of Services as appropriate arising out of an event referred to in clause 11.2.1, save that this shall not apply where the suspension is implemented otherwise than as a consequence of the breach, fault or omission of the Customer.

11.2.4 If ntl suspends Services for contravention of clause 8.1, 8.2 and 8.4, it may refuse to restore Services until it receives an acceptable assurance from the Customer that there will be no further contravention.

12. Limitation of liability

THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 12.

12.1 The following provisions set out ntl’s entire liability (including any liability for the acts and omissions of its employees or agents) to the Customer in respect of:

(a) any breach of its contractual obligations arising under this Agreement; and

(b) any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.

12.2 Any act or omission on the part of ntl or its employees or agents falling within clause 12.1 shall for the purposes of this clause 12 be known as an “Event of Default”.

12.3 ntl’s liability to the Customer for the tort of deceit and for death or injury resulting from its own or that of its employees’ or agents’ negligence while acting in the course of their employment shall not be limited.

12.4 The Customer acknowledges that ntl has no control over the information and/or content (including software) stored on or transmitted via the Services (“Content”) and that ntl does not examine the use to which Customers put the service or the nature of the Content they are storing, sending or receiving. Except as provided in clause 6.6 and subject always to clause 12.3, ntl hereby excludes all liability of any kind for the storage, transmission or the reception of or the failure to store, transmit or receive any Content of whatever nature and all liability for the accuracy or inaccuracy of any such Content. Notwithstanding the foregoing, where advised or required by competent authority, ntl may choose not to permit access to or transmit certain newsgroups or other material, and ntl shall have no liability to the Customer for any such action or decision.

12.5 SUBJECT TO THE PROVISIONS OF CLAUSE 12.3, ntl’s ENTIRE LIABILITY IN RESPECT OF ANY EVENT OF DEFAULT SHALL BE LIMITED TO DAMAGES NOT EXCEEDING THE CHARGES PAID BY THE CUSTOMER TO ntl UNDER THIS AGREEMENT IN THE PRECEDING TWELVE (12) MONTH PERIOD IN THE CASE OF A SINGLE EVENT OF DEFAULT AND TWICE THE CHARGES PAID BY CUSTOMER TO ntl UNDER THIS AGREEMENT IN THE CASE OF ALL EVENTS OF DEFAULT OR SERIES OF CONNECTED EVENTS OF DEFAULT OCCURRING IN ANY TWELVE (12) MONTH PERIOD.

12.6 Subject to clause 12.3 ntl shall not be liable to the Customer in respect of any Event of Default for loss of profits, goodwill or corruption or destruction of data or any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or ntl had been advised of the possibility of the Customer incurring the same.

12.7 The Customer shall procure that each User acknowledges and agrees that its rights in relation to any access to Content and/or use of the Services shall be against Customer, not ntl, and notwithstanding any other provision in this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 (“Act”) to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from the Act.

12.8 ntl specifically excludes any liability for chargebacks. In certain circumstances, card issuers are entitled to refuse to settle a card transaction undertaken by the Customer and presented to them through ntl, its licensor and the relevant acquiring bank. If the card issuer exercises its right to do so, the acquiring bank will be immediately entitled to debit the Customer’s account or to otherwise recover from the Customer by any other means the amount paid to the Customer by the acquirer in respect of that transaction. Upon prior notification by the acquiring bank they may debit the Customer’s account to recover any other costs and expenses the acquirer may incur as a result of or in connection with that chargeback. Neither, ntl, its licensors nor the acquiring bank will give the Customer any assurance that any cardholder not present transaction will be honoured.

12.9 The Customer acknowledges and accepts that in providing the Services ntl does not in any way guarantee the valid use of any credit cards which cardholders propose to use to purchase goods or services from the Customer. Fraudulent use of credit cards cannot be exhaustively checked for and without prejudice to the other terms of this Agreement ntl expressly excludes any liability for fraudulent credit card use by any person other than ntl.

12.10 Customer acknowledges and accepts that the collation and accuracy of any Card Scheme Transaction data submitted to ntl or its authorised representative is Customer’s exclusive responsibility and that ntl is solely acting on Customer’s behalf in seeking the authorisation of an Acquiring Bank of the relevant Card Scheme Transaction. Accordingly and without prejudice to this clause 12, ntl shall have no liability whatsoever or howsoever to Customer in relation to either the Card Scheme Transaction data submitted to ntl or the results of any Authorisation Request sought on behalf of Customers from an Acquiring Bank.

12.11 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.

12.12 The Customer hereby agrees to afford ntl not less than thirty (30) days (following notification thereof by the Customer) in which to remedy any Event of Default hereunder.

12.13 Except in the case of an Event of Default arising under clause 12.3 ntl shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon ntl within twelve (12) months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.

12.14 Nothing in this clause shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.

12.15 The provisions of this clause shall continue to apply notwithstanding the termination or expiry of this Agreement for any reason whatsoever.

13. Confidentiality

13.1 Neither party hereto shall use, copy, adapt, alter, disclose or part with possession of any information or data of the other which is disclosed or otherwise comes into its possession directly or indirectly as a result of this Agreement and which is of a confidential nature (“Confidential Information”) except as strictly necessary to perform its obligations or exercise its rights hereunder Provided That this obligation shall not apply to Confidential Information which:

(a) the receiving party can prove was already in its possession at the date it was received or obtained; or

(b) the receiving party obtains from some other person without any breach of confidentiality; or

(c) comes into the public domain otherwise than through the default or negligence of the receiving party or which is independently developed by or for the receiving party; or

(d) the receiving party is under a statutory obligation to disclose to a government body, agency or regulatory body.

13.2 Each party shall ensure that its employees, agents and sub-contractors are bound by an undertaking in substantially the same terms as contained in this clause 13.

13.3 The obligations in this clause shall continue in force notwithstanding termination of this Agreement for any reason whatsoever.

13.4 The details of this Agreement but not the fact that the Customer is a customer of ntl’s shall be deemed Confidential Information.

13.5 Subject to the party’s obligations under clause 16, during or after termination of this Agreement, ntl may disclose to third parties the name, address and contact details of the Customer to enable such third party to contact Customer directly and this information shall not be considered Confidential Information for the purposes of this Agreement.

14. Assignment transfer and sub-letting

Neither party shall assign, delegate or otherwise deal with all or any of its rights and obligations under this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld except that ntl may freely assign its rights and obligations under this Agreement to an Associated Company.

15. Communications

15.1 Any notice, invoice or other document which may be given by either party under this Agreement shall be deemed to have been duly given if left at or sent by post (whether by letter or, where the parties agree, by any other form) or facsimile transmission (confirmed by letter sent by registered post) or, where the parties expressly agree, by electronic mail, to, in the case of the Customer, the Customer’s registered office or any other address notified to ntl in writing by the Customer as an address to which notices, invoices and other documents may be sent and to, in the case of ntl, the address stated at the head of this Agreement or such address as ntl may prescribe for that purpose.

15.2 Any such communication shall be deemed to have been made to the other party on the day on which such communication ought to have been received in due course of hand delivery, post or facsimile transmission. Any communication by electronic mail shall be deemed to have been made on the Working Day on which the communication is first stored in the other party’s electronic mail-box.

16. Protection of personal data

16.1 Each party warrants that it is properly registered under the Data Protection Act 1998 for such obtaining, storage and use of personal data as may be required in the performance of this Agreement.

16.2 The Customer agrees to comply with the provisions of the Data Protection Act 1998 and any directions issued by the Data Protection Registrar in respect of its use of the Services.

17. Export control

17.1 Services may comprise equipment, 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, the provision of Services shall be conditional upon the parties obtaining and providing all necessary consents. The parties shall provide reasonable assistance to each other to obtain such consents at the cost and expense of the Customer.

17.2 The Customer agrees to comply with any applicable export or re-export laws and regulations, including obtaining written authority from the Government of the United States of America if the Customer intends at any time to re-export any items of U.S.A. origin to any proscribed destination.

18. Corrupt gifts and payments

Neither party shall offer or give or agree to give any person employed by or connected with the other party any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to this Agreement, or for showing or forbearing to show favour or disfavour to any person in relation to this Agreement.

19. Force majeure

Neither party shall be liable to the other for any loss or damage which may be suffered by the other party, or for any failure to perform its obligations under this Agreement to the extent that such failure is due to any cause beyond the first party’s reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of Government, highways authorities, public telecommunications operators or other competent authority, war, military operations, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of the Internet Network or any part thereof.

20. Severability

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid provision eliminated.

21. Waiver

Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.

22. Entire agreement

22.1 This Agreement and any documents expressed by this Agreement to be incorporated herein constitutes the entire understanding between the parties relating to the subject matter of this Agreement and supersedes all prior writings, negotiations or understandings with respect hereto.

22.2 Neither party has relied upon any oral or written representation or other communication made to it by the other or its employees relating to this Agreement other than expressly contained in this Agreement and the only remedy or remedies available in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of contract under this Agreement.

22.3 Clause 22.2 shall not apply to any statement, representation or warranty made fraudulently, or to any provision of this Agreement which was induced by fraud, for which the remedies available shall be all those available under the law governing this Agreement.

23. Governing law and jurisdiction

This Agreement shall be governed by and construed and interpreted in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.

SCHEDULE

Definitions

Unless the context otherwise requires, the following terms shall have the following meanings:

“Access Codes” means any access code, number, user ID or password issued by ntl to the Customer from time to time to enable the Customer to use Services;

“Acquiring Bank” means the financial agent with whom Customer has a Merchant Contract and who issues Customer a Merchant ID;

“Act” means the Telecommunications Act 1984;

“Agreement” means the contract between ntl and the Customer which includes and is subject to the Order Form, these terms and conditions and ntl’s Service Literature as referred to herein;

“API” means the application programming interface made available by ntl (and which may be altered from time to time by and at the discretion of ntl or its licensors) outlining the means of integrating/ linking Customer’s Site to the ntl payment server and providing details of the required format for Authorisation Requests;

“Associated Company” means the ultimate holding company or any subsidiary thereof (“holding company” and “subsidiary” having the meanings given in Sections 736 and 736A of the Companies Act 1985) of either party as appropriate other than that party;

“Authorisation Requests” means an electronic message from Customer to ntl requesting ntl to submit the Card Scheme Transaction to the Customer’s Acquiring Bank for authorisation;

“Card” means a Visa Mastercard, Eurocard, JCB, Switch, Solo, Visa Purchasing card or American Express or such of these cards as the Acquiring Bank may allow;

“Cardholder” means the person for whose sole use any Card was issued;

“Card Scheme” means a Card payment scheme approved by the Acquiring Bank in its sole discretion;

“Card Scheme Transaction” means any proposed transaction between Customer and a Cardholder in respect of goods or services offered to that Cardholder via Customer’s Site and effected by the use of a Card for debit or credit to such Cardholder’s account;

“Charges” means charges to be paid by the Customer calculated according to the prices and rates set out in ntl’s Price Lists or otherwise notified to the Customer;

“Content” has the meaning set out in clause 12.4;

“Customer Provided Apparatus” means any apparatus, equipment or software provided and used by the Customer in order to use Services;

“Free Trial” means a free trial of the eShop element of the Services only for a period of 30 days from activation of the Services and shall not include any access to payment gateway services nor enable the Customer to obtain or use any Names in its use of the Services;

“Internet” means the global data network comprising inter connected networks using TCP/IP (“Transmission Control Protocol/Internet Protocol”);

“Internet Network” means the network of telecommunication systems, gateways, lines and equipment providing access to the Internet which has been developed and is used by ntl and/or its Associated Companies for the purpose of providing Internet services;

“Minimum Period” has the meaning set out in clause 5.3;

“Merchant Contract” means the agreement signed by Customer with the Acquiring Bank enabling Customer to process Card Scheme Transactions and is a condition precedent to the provision by ntl of payment gateway Services;

“Merchant ID” means the unique identification number issued to Customer by its Acquiring Bank;

“Minimum Period” has the meaning set out in clause 5.2;

“Name” means any name used by the Customer in connection with the Services including, without limitation, any domain name or mailbox name;

“ntl” means ntl Business Limited, whose registered office is ntl House, Bartley Wood Business Park, Hook, Hampshire RG27 9XA, registered number: 3076222;

“ntl Network” means the telecommunication systems run by ntl or any Associated Company (as principal or agent) from time to time under the terms of the ntl Licences for the purpose of providing Services;

“ntl’s Service Literature” means any information, brochure, customer or user guide or instructions as current from time to time published by or on behalf of ntl by way of description of or otherwise in connection with provision of Services;

“Order Form” means the account registration and Service order forms completed by the Customer;

“Price Lists” means the material published by ntl from time to time which includes the prices and rates for the Services;

“PTO” means any person to whom a licence is granted under Section 7 of the Act;

"PTO's Network" means the telecommunication systems run by any PTO other than the ntl Network;

"Relevant Card" means the specific Card which Cardholder proposes to use to purchase goods or services from the Customer’s Site;

“Services” means the provision of virtual hosting, eShop and/or payment gateway services as more particularly described in the ntl Service Literature; and

“Site” means a Customer’s website from time to time offering for sale goods or services or any front end device used by the Customer or on its behalf and hosted by ntl.

“Territory” means the United Kingdom (including Northern Ireland);

“User" means any person who uses the Services or accesses Content displayed through use of the Services including any customer, employee, agent or contractor of Customer;

“User Policy” means any acceptable usage policy issued by ntl in respect of the Services, as amended by ntl from time to time;

“Working Day” means Monday to Friday 9 a.m. to 6 p.m. excluding United Kingdom Bank and Public holidays.

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