These terms and conditions shall apply to the agreement between Sound Solutions Advertising Limited trading as Spark and the individual or company applying for the provision of services by Spark ('the Customer').
It is hereby agreed as follows:
In this Agreement, the following words and phrases shall have the following meanings:
‘Confidential Information’ - information which is identified as confidential or proprietary by either party or the nature of which is clearly confidential or proprietary.
‘Fees’ - the fees (including any VAT) due for the provision of the Services as calculated in accordance with the Price List or such other fee as is agreed.
‘Spark Server’ the computer server equipment operated by Spark in connection with the provision of the Services.
‘Spark website’ - the website located at http://www.sound-solutions.co.uk or such other internet address adopted by Spark.
‘Inappropriate Material’ - material that under the laws of any jurisdiction where the material can be accessed is or may be any the following: unlawful, threatening, abusive, harmful, obscene, pornographic, malicious, profane, libellous, defamatory, infringes any Intellectual Property Rights, constitutes or encourages a criminal offence or contains a virus, worm, trojan horse or other harmful code.
‘Intellectual Property Rights’ - copyrights, patents, registered and unregistered design rights, topography right trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
‘Material’ - text, graphics, images, sound, video or any combination thereof
‘Name’ - any name specifically requested by or allocated to you for the provision of the Services including, without limitation, any domain name or mailbox name.
‘Order Form’ - an order form provided by Spark as available from Spark by email, post or fax on request and completed by the Customer to indicate which Services it requires and its agreement to these terms and conditions governing such provision.
'Confirmation Order' - Alternatively to an Order Form an Order to confirm services of which Spark are to provide can be agreed and commuciated and approved via email and this also shall stand as a Legal Contract of Service.
'Verbal Contract' - This is where both Spark and a Cleint confirm that Spark are to carry out services that are agreed and this also shall stand as a Legal Contract of Service.
‘Price List’ - a list of Spark’ then current standard prices for each of the Services available on request from Spark.
‘Relevant Legislation’ - such laws of England and Wales and the Customer’s country as relate to data protection and to laws of England and Wales and the Customer’s country governing Inappropriate Material.
‘Services’ - the services identified on an Order Form, Confirmation Order/Email or by Verbal Agreement to be provided by Spark to the Customer pursuant to these terms and conditions and any other specified by Spark on such Order Form, Confirmation Order/Email of Verbally.
‘Website’ - a website on the World Wide Web
2.1 In consideration for the payment of the Fees calculated and agreed in accordance with the Price List and/or a bespoke price at the time of the completion of an Order Form by the Customer Spark agrees to provide the Services..
2.2 The Customer agrees to make payment for the Services provided under this Agreement within 7 days of presentation of Spark' invoice, or if a credit account is agreed within 30 days of presentation of Spark' invoice. For customers who pay via Direct Debit then payment shall be taken automatically around the 14th of each month.
2.3 If the Customer fails to pay any invoice which is due and payable under this Agreement, Spark shall be entitled to charge interest on a daily basis on the overdue amount and on outstanding interest from the date of such failure until payment (both before and after judgement) at an annual rate of 6% above the base rate of HSBC Bank plc for the time being in force. Failure to pay beyond 30 days then the customer accepts that we reserve the riight to call in the services of a Debt Collection Ageny and all costs will be bourne by the customer.
2.4 Non-delivery or non-performance of services by any third party shall not give the Customer any right to delay any payment to Spark or to make any claim whatsoever against Spark.
2.5 If Spark does not receive payment in full by the due payment date, it may after giving 30 days notice, terminate this Agreement as regards any Service requested by the Customer without further obligation to the Customer.
2.6 For the purposes of this Agreement, time of payment is of the essence.
2.7 In the case of new customers: Any payment or part payment up front (Sometimes described as a deposit) that has been received shall not be refunded once any work has commenced and therefore should the customer cancel a project prior to completion the monies received shall be reatained by Spark as recompence. In cases were the value of the work been carried out by Spark exceeds the value of the initial payment or deposit then Spark reserve the right to invoice the customer for the remaining cost of the project irrespective of the impossed delay or cancellation by the customer.
3.1 The Customer acknowledges and accepts that to enable Spark properly to provide the Services it must co-operate with Spark as required by Spark and, without limitation in particular:
3.1.1 the Customer must provide Spark with accurate details of its e-mail and physical addresses and promptly notify Spark in writing of any alterations thereto from time to time;
3.1.2 the Customer must obtain the consent of individuals whose personal data are to be held on a domain name register or are otherwise provided to Spark;
3.1.3 keep the Customer’s user ID (or other form of username) and passwords secure so that such ID and passwords are only used by the Customer or those authorised by the Customer.
4.1 In performing our obligations under this Agreement, we shall exercise the reasonable care and skill of a competent Internet Service provider.
4.2 Except as expressly set out in this Agreement, all conditions or warranties which may be implied or incorporated into this Agreement by law or otherwise are hereby expressly excluded to the extent permitted by law. In particular, but without limitation, we exclude any warranty as to the quality or accuracy of information received through the Service.
4.3 You acknowledge and agree that we are unable to exercise control over the content of the information transmitted via the Spark network and/or the Service and that we do not examine the use to which customers put the Service or the nature of the information and/or software they are sending or receiving, hence, we hereby exclude all liability of any kind for the transmission or reception of infringing information of whatever nature.
4.4 While we will use all reasonable endeavours to provide a prompt and continuing service, you are responsible for insuring yourself and/or your organisation against all loss of or damage to data, hence, we will not be liable to you for any loss of or damage to data stored/transmitted on/using the Service and/or the Spark network.
4.5 You acknowledge and agree that it is your responsibility to adopt appropriate security measures for the protection of your computer systems as a result of your use of the Service and/or the Spark network.
4.6 We will not be liable to you, whether in contract, tort or otherwise:
4.6.1 for loss, whether direct or indirect, of business, revenue or profits anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatsoever; or
4.6.2 for the acts or omissions of other providers of telecommunication services or for faults in or failures of their apparatus.
4.7 In any event our liability to you in respect of an event or series of connected events arising out of or in connection with the Agreement, whether in contract, tort or otherwise, shall be limited to the amount of the fee for the Services.
4.8 Each provision of this Clause 4 excluding or limiting liability shall be construed separately and shall apply and survive even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the termination or expiry of this Agreement.
4.9 Any liability of Spark whatever arising under these terms or otherwise in respect of the Service or any product shall be deemed to end twelve months after the date on which the customer became aware of the event giving rise to the liability. For the avoidance of doubt, the customer acknowledges and agrees that no claims or actions by the customer can be validly made after the expiry of twelve months following such date.
5.1 Either party may terminate this Agreement by notice in writing to the other party having immediate effect if:
5.1.1 either party is in breach of any of its obligations under this Agreement;
5.1.2 either party is a company and a resolution is passed for its winding up or a petition for its liquidation is presented; or
5.1.3 either party is an individual and a petition for bankruptcy is presented against it: or
5.1.4 a receiver or liquidator (where the party in question is a company) or (where the party in question is an individual) a trustee in bankruptcy is appointed over it or any of its assets; or
5.1.5 either party proposes or enters into any arrangement or composition with or for its creditors (including any voluntary arrangement);
5.1.6 either party provides the other with any false, inaccurate or misleading information for the purpose of obtaining or providing the Services;
5.2 In the event that any of the circumstances identified in clause 5.1 arises, either party shall have the option to terminate this Agreement as regards all Services provided or to be provided or only as regards that Service or those Services in respect of which the breach is considered by Spark to have been committed; and
5.3 In the event that any of the circumstances identified in clause 5.1 arises, either party shall be entitled to recover any sums due to it pursuant hereto whether invoiced or not at the date of termination.
5.4 Either party may terminate this Agreement on one month’s written notice served in accordance with these terms and conditions.
5.4a Termination of agreement by the client that involves the Transfer of domain name(s) to an alternative provider. In this case the client accepts that Spark require that all outstanding amounts owed, including the amount(s) that have or will accrue in and up to the last day of month in which the termination or transfer date is requested, are paid in full prior to release of the domain name(s)
6.1 Each of the parties agrees (subject to clauses 6.2 and 6.3) not to:
6.1.1 disclose any confidential information received from the other party; or
6.1.2 make any use of any such confidential information other than for the purposes of performance of this Agreement.
6.2 Each party may disclose confidential information received from the other to its responsible employees, consultants, sub-contractors or suppliers who need to receive the information in the course of performance of this Agreement.
6.3 The confidentiality obligations under clause 6.1 shall not apply to any information which:
6.3.1 is or subsequently becomes available to the general public other than through a breach by the receiving party; or
6.3.2 is already known to the receiving party before disclosure by the disclosing party;
6.3.3 is developed through the independent efforts of the receiving party; or
6.3.4 the receiving party rightfully receives from a third party without restriction as to use.
7.1 We reserve the right to vary the hosting service at any time, however, we shall inform you of such variations where we deem it necessary to do so and where reasonably practicable in the circumstances. Any such variation will not significantly detract from the service provided.
7.2 Unless specifically quoted otherwise on the Order Form; The Customer acknowledges that, without limitation, any content management system (often referred to as 'updating system') offered as part of the Service remains the sole property of Spark. Such systems are not permitted to be used by the Customer after termination of this agreement.
8.1 We will provide to you such installation and maintenance services for the Service (including, where applicable, the Equipment), as are described in the relevant Service Description.
8.2 Where it is necessary for us to install and/or maintain the Service at your premises, you will provide us with such access as we reasonably require and any technical/personnel assistance reasonably necessary for the installation and maintenance of the Service including, for example and without limitation, electricity supply and suitable accommodation and environmental conditions. We will notify you in advance where we require you to make such access available.
8.3 Data Protection: You agree that we may put your name and other information obtained about you into a computerised directory for internal use only, unless we receive specific written instructions from you.
8.4 We reserve the right to change/alter the server status to which your site is assigned which may result in a break in service. We will endeavour to ensure that such a break in service will be for the shortest possible time. Advance notice of 30 days will be given before any scheduled break in service, except in cases where urgent work is necessary to ensure the security of data and/or smooth running of our service.
9.1 Spark agrees to comply with the Data Protection Act 1986 and the Customer agrees to furnish Spark with details of the Customers registration under the Act (if required). The Customer warrants that any personal data supplied for use in its campaigns has been appropriately obtained and registered under the Act.
9.2 Any notice to be given under this Agreement shall be in writing addressed to the principal place of business, registered office or such other addresses as may be notified by either party to the other for this purpose. Writing shall include facsimile transmission or similar means of communication.
9.3 No waiver by Spark or any breach of this Agreement by either party shall be considered a waiver of the subsequent breach of the same or any other provision.
9.4 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement shall not be affected.
9.5 The Laws of England shall govern this Agreement.
10.1 You confirm and warrant that you are the owner of, or that you have been and are duly authorised by the owner to use, any trade mark or name requested or allocated as your Name.
10.2 You acknowledge that Spark cannot guarantee that any Name you request will be available or approved for use.
10.3 We have the right to require you to select a replacement Name and may suspend the Service if there are reasonable grounds for us to believe that your current choice of Name might infringe the rights of any other person or company, whether in statute or common law, in a corresponding trade mark or name.
10.4 If the Service includes the registration of an internet domain name you acknowledge and agree that:
10.4.1 we do not represent, warrant or guarantee that any domain name applied for by you or on your behalf will be registered by you or in your requested name or is capable of being registered by you or that the use of such domain name by you will not infringe any third party rights. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been duly registered and we shall not be liable for any such action taken by you.
10.4.2 The registration of the domain name and its ongoing use by you is subject to the relevant naming authority’ terms and conditions of use and you undertake to us that you will comply with such terms and conditions. You hereby irrevocably waive any claims you may have against us in respect of any decision of a naming authority to refuse to register a domain and, without limitation, you acknowledge and agree that any administration or other charge paid by you in respect of the registration of the domain name is non-refundable in any event.
10.4.3 We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on becoming aware of such a dispute concerning a domain name, to make such representations to the relevant naming authority as we deem appropriate and/or if required by law or other competent authority, to either suspend or cancel the relevant service associated with the domain name.
10.4.4 Any Internet Protocol address allocated by us to you shall at all times remain our sole property and you will have a non-transferrable licence to use such address for the duration of this Agreement. If this Agreement is terminated for whatever reason, your licence to use the Internet Protocol address shall automatically terminate and thereafter you shall not use such address.
11.1 The Customer undertakes to receive hosting and technical support services from Spark for an initial duration of twelve months, payable monthly via Direct, which is auto renewed monthly thereafter.
11.2 File Back Up: Spark is not responsible for the Customer's data files residing on Spark' servers. The Customer is solely responsible for independent backup of data stored on Spark' servers. Spark will however make best efforts to back up the Customer's website in order to restore it, in the event of failure.
11.3 The Customer shall not knowingly or unknowingly submit to Spark for publication any of the following material (including pictures, links or any other content):
11.3.1 any material which violates or infringes any copyright, trademark, trade secret, patent, statutory, common law or other proprietary rights of others;
11.3.2 any material that is libellous or slanderous;
11.3.3 any material which is or contains anything obscene or pornographic; or
11.3.4 distribution lists to be used via unsolicited electronic mail or other mass electronic mailings including but not limited to: mass-newsgroup postings; SPAM and unsolicited e-mail sent from customer’s server, or any other service on the Internet, which contains Customers domain name.
11.4 Any violation of the above conditions will result in termination of the Customer’s account.
11.5 Due to the public nature of the Internet, all material submitted by the Customer for publication will be considered publicly accessible.
11.6 Spark publication of material submitted by the Customer does not create any express or implied approval by Spark of such material, nor does it indicate that such material complies with the terms of this Agreement.
12.1 If the Customer acts as a ‘reseller’ of the services provided by Spark to the Customer hereunder, by the Customer providing similar services to its clients, then all terms of this Agreement shall provide to the resale. Without limiting the foregoing, Customers obligations under Section 4 (Spark Warranties and Limitations of Liability) shall apply to any and all claims made against the Customer and/or Spark which arise out of the resale of Spark services.
13.1 The parties intend that an independent contractor relationship will be created by this contract and that no partnership, joint venture or employee/employer relationship is intended.
14.1 If any local government entity with taxing authority over the services provided under this Agreement imposes a tax directly on the services provided by Spark to the Customer under this Agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes) then Spark may pass the direct amount of such costs on to the Customer and the Customer shall promptly pay such costs.
15.1 The Customer undertakes that it will not (and will ensure that others under its control will not) via e-mail:
15.1.1 Transmit Inappropriate material;
15.1.2 Infringe the Intellectual Property Rights of any third party;
15.1.3 Make use of Spark’ Server to an extent or in a manner which in Spark reasonable opinion is excessive, wasteful or otherwise to the detriment of Spark, any of Spark customers or any other third party, including but not limited to:
18.104.22.168 The transmission of unsolicited bulk e-mail ('spamming') or
15.2 When sending e-mail, the Customer acknowledges that it is responsible for complying with any relevant legislation.
15.3 The Customer acknowledges and agrees that Spark is not responsible for the security of the contents of e-mail sent or received by the Customer.
15.4 Spark will use its reasonable endeavours to ensure that messages are routed accurately and promptly but does not accept any liability for non-receipt, non-delivery or misrouting of e-mail or any other failure of the e-mail system.
15.5 Spark policy is to respect the privacy of e-mail messages sent, received, forwarded or otherwise dealt with by it and the Customer acknowledges that Spark will therefore not monitor, edit or disclose the contents of such messages unless required to do so by law or competent authority.