Legal
In this Agreement the following terms shall have the following meanings: “Act” means the Telecommunications Act 1984; and “Acceptable Use Policy” means an acceptable use policy (also referred to herein as General Usage Policy) posted on Obsidian Networks website found at http://www.obsidian-networks.co.uk/
1.1.1 Support/terms-and-conditions from time to time applicable to all aspects of services provided by Obsidian Networks; and “Agreement” means this document, and, where the context so requires, any Service Order, Application Form, Acceptable Use Policy, Obsidian Networks Price List and/or the Service Description; and “Apparatus” means any telecommunications apparatus required for the provision of the Service and installed by or on behalf of Obsidian Networks (including by a `sub-contractor) at the Client’s Premises; and “Business Builder” means Obsidian Networks E-Business Builder (site and commerce versions) products; and “Business Day” means any day (other than Saturday, Sunday or English public holiday) on which the banks in England are open for a full range of banking transactions; and “Obsidian Networks” Trading as Obsidian Networks of Unit 4, Bretton Hall Offices, Bretton, Chester, CH4 0DF; and “Obsidian Networks System” means the telecommunication and/ or Internet system run by Obsidian Networks and or its service providers; and “Obsidian Networks Equipment” means any equipment that is supplied by or on behalf of Obsidian Networks to the Client or installed at the Client’s Site for the purpose of providing the Service including Obsidian Networks software, hardware, cables, hubs and such other equipment supplied by Obsidian Networks, its agents or its sub-contractors for the provision of the Service which have not been purchased and paid for by the Client; and “Obsidian Networks Software” means the installation software and/or other software necessary to facilitate the use of the Service supplied by Obsidian Networks; and “Obsidian Networks Website” means the website at http://www.obsidianinternet.net or at such other URL as Obsidian Networks may determine from time to time; and “Charges” means without limitation the Set-up Charge and the Service Charge and any other applicable Charges as outlined in the Obsidian Networks Price List; and “Client” means the person, firm, or company whose Application / Service Order is accepted by Obsidian Networks; and “Commencement” means that point in time when the Client’s account is set-up on Obsidian Networks internal provisioning system and hosting equipment configured to provide a Service to the Client; and “Components” means all components of the system within Obsidian Networks ‘s and/or any third party’s premises that provide dedicated Internet access to the Customer and which are necessary for the supply of the Service, but excludes the Customer’s Equipment; and “Confirmation Letter” means a letter or any other form of document issued by Obsidian Networks confirming and accepting the Customer’s order for the Service. “Conditions” means the standard terms and conditions for the Supply of Services set out or referred to on the Application / Service Order; and “Confidential Information” means any and all information which relates to the business affairs, products, developments, trade secrets, know-how, personnel, clients and suppliers of either party or information which may reasonably be regarded as the confidential information of the disclosing party; and “Connectivity” means the connection to the Internet using the dial-up telephone number, ADSL connection, or other connection to the Internet as specified by Obsidian Networks and informed to the Client by Obsidian Networks from time to time; and “Contract” or “Service Contract” means the related FM Server Contract, Leased Line Contract, VoIP Contract, Web Development Contract, Telco Contract or any other provision of Service as stated on the Application Form/ Service Order relating to the particular Services requested and Contracts shall be construed accordingly; and “Dial-Up Platform” means the access number to be used by the Client to connect to the Internet or to the Obsidian Networks account as specified by Obsidian Networks; and “Domain Name” means the domain name requested by the Client to be registered on the Client’s behalf as outlined on the Application or any alternative domain name offered by Obsidian Networks; and “Client’s Equipment” means the telecommunications leased line and all equipment and facilities located at the Customer’s premises including but not limited to Customer-owned routers (unless the Client’s orders a managed router service as part of the Service). “Client’s Website” means the website belonging to the Client which is hosted by Obsidian Networks pursuant to the Contract; and “E-Tutor” means the online guide to building a Website by using the Software; and “Force Majeure” means any cause affecting the performance by a party of its obligations arising from acts, events, omissions, or happenings beyond its reasonable control. Including (but not limited to) wars, riots, embargoes, strikes, lockouts, acts of god, insurrection, or civil commotion or any other causes or circumstances beyond the parties reasonable control; and “Input Material” means all materials, data, images, and information necessary for the Client’s use of the Service; and “Installation Date” means the proposed installation date for the Service as defined in the relevant Service Order/ Application Form; and “Intellectual Property Rights” means any current and future intellectual property rights including copyrights, trademarks, trade names, domain names, rights and logos and get-up, service marks, inventions, Confidential Information, trade secrets and know-how, design rights, patents, utility models, semiconductor topography, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights; and all intangible rights and privileges of a nature similar, analogous or allied to any of the above existing anywhere throughout the world and all renewals, revivals and extensions of them and rights of action in respect of them howsoever including the right to sue for past infringement and the right to apply for, prosecute and obtain patent, design right, trademark and other protection throughout the world or any invention claimed in any patent or patent application including the right to claim priority; and “Internet” means the worldwide TCP/IP (Transmission Control Protocol/Internet Protocol) network formed of an interconnection of companies, organisations and institutions, private and public networks; and “Keyword Selection Policy” means the guidelines for the selection of Internet Keywords (“Keywords”) as dictated to Obsidian Networks by the Registrar or the body responsible for the granting of the Keywords; and “Licence” means any licence required for Obsidian Networks to provide the Service or to run Obsidian Networks System; and “Name” shall mean the name assigned to the Client in relation to the provision of the Service including but not limited to any mailbox and domain names; and “Oftel” means Office of Telecommunications or the Director General of Telecommunications; and “Offending Material” means any material, data, images or information (including without limitation, the Input Material) which is (1) in breach of any law, regulation, code of practice or acceptable use policy; or (2) abusive, indecent, defamatory, obscene or menacing or otherwise offensive; or (3) in breach of confidence, copyright or other intellectual property rights, privacy or any other right of any third party; and “Order Form” means the agreement or relevant order form or such other appropriate form for the Service issued by Obsidian Networks that the Client completes and sends to Obsidian Networks; and “Package” means any Obsidian Networks products bundled together where the domain name is acquired and other services added free of charge as required by the Client as defined on the Service Order; and “Party” means a party to the Contract and “Parties” shall be construed accordingly; and “Personnel” means the employees, agents or sub- contractors of the respective Party; and “Premises” means any sites owned or occupied by the Client at which the Service is, or will be, provided, as specified in a Service Order; and “Price List” means the list of fees payable by the Client in respect of the Services of which a copy can be requested from Obsidian Networks in writing to the address shown above; and “Processing” means any use of messages or calls or data including sending, receiving, uploading, downloading and posting on web-sites or elsewhere; and “Protocols” means the protocols and standards defined in the following Internet documents: RFC 009, RFC 1122, RFC 1123, RFC 1250 and any existing or future protocols and standards as appropriate; and “Registry” means the relevant registry or naming authority responsible for the registration of domain names that includes (without limitation) the Nominet UK and the Network Solutions Inc. “Server” means the server of certain specifications selected by the Customer in the Order Form and confirmed by Obsidian Networks in the Confirmation Letter. “Services” means the Obsidian Networks service selected by the Client in the Service Order; and “Service Charge” means the Charges for the Service set out in the applicable Service Order, Service Description and/or in any Obsidian Networks price list as in force from time to time; and “Service Commencement Date” means the date on which Obsidian Networks agrees to start providing Service as set out in the Service Order; and “Service Description” means a Obsidian Networks document as in force from time to time which contains a description of the Service, and which may set out additional terms and conditions; and “Service Order” means a Obsidian Networks Service Order / Application Form; and “Set-up Charge” means Obsidian Networks charge for setting-up the Service (including any installation charge) set out in the Service Order, Service Description and/or Obsidian Networks Price List as in force from time to time; and “Software” means any device supplied by Obsidian Networks to support the usability of its services as used by the Client; “Standard Charges” means the standard charges for the Service as set out in the Order Form or otherwise as set out on Obsidian Networks Website or in Obsidian Networks brochures; and “Terms and Conditions” means these terms and conditions including any Schedules hereto; and “Work” means any work carried out by Obsidian Networks (or its sub-contractor) at the Premises for the purpose of installing, maintaining, repairing, moving, replacing or removing any Apparatus in order to comply with any of its obligations under this Agreement.
1.1.2
References to Clauses are references to clauses in the Agreement.
1.1.3
Clause headings are for ease of reference and do not form part of nor shall they affect the interpretation of these Terms and Conditions.
1.1.4
References to each party include their permitted assigns and successors by operation of law.
1.1.5
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.
1.1.6
Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporated and in each case vice versa.
1.1.7
References to any statute, statutory provision or other enactment and any British or other standard include a reference to that statute, provision, enactment or standard as from time to time amended, extended or re-enacted.
1.1.8
The words “include” or “including” are to be construed without limiting the generality of any preceding words. Clause 1.2 Provision of Service
1.2.1
Obsidian Networks will provide the Service to the Client in accordance with the provisions of this Agreement upon a Service Order or Application having been duly signed by the Client and returned to Obsidian Networks and subject to the further provisions of this Agreement.
1.2.2
The Client may request Obsidian Networks to supply Service to the Client by completing and forwarding an Application to Obsidian Networks or by submitting an online Application via Obsidian Networks website. Obsidian Networks, in its absolute discretion, may accept the Client request by processing the request including the raising of an invoice (pro-forma or otherwise) for services.
1.2.3
Obsidian Networks will endeavour to provide the Service in a timely manner but (in particular where Obsidian Networks are dependent on another operator to provide the Service and/or due to technical reasons) cannot guarantee to do so, and Obsidian Networks will have no liability for any failure to meet such date.
1.2.4
The Client acknowledges that the fees paid for any Obsidian Networks hosting package are allocated to the acquisition of the domain name as registered with the appropriate Registrar and that all other services, as delivered as part of that initial hosting package, are deemed to be provided free of charge. The Client further acknowledges that once the acquisition of this domain name has occurred as outlined on the Service Order Obsidian Networks is deemed to have fully executed its contractual obligations to the Client.
1.2.5
Obsidian Networks possesses the right to change service providers at any time without consulting the Client and the Client empowers Obsidian Networks to act as its agent and have full authority to select, change or remove sub agents when deemed necessary.
1.2.6
Obsidian Networks shall provide the Services using all reasonable care and skill subject to payment by the Client of all amounts payable hereunder on the dates specified herein or on the Application.
1.2.7
The Client accepts that Obsidian Networks reserves the right to subject the Client to a credit check and has sole discretion over whether or not the Client may utilise Obsidian Networks services based on the results of that check. The Client also accepts that if the credit check does not meet Obsidian Networks requirements, whatsoever they may be at the time, that Obsidian Networks may request the Client to pay annual in advance or a deposit in line with the estimated annual charges that the Client may incur by using the service. The Client accepts that this credit check may impact their credit rating and that this information may be shared with other related companies or subcontractors from time to time.
1.2.8
The Client acknowledges that Obsidian Networks cannot provide advice or technical support for any aspect of the Client’s own network and therefore the Client acknowledges that costs may be incurred by the Client for any technical consultation provided by a third party enabling the compatibility of the Client’s own network to work to specification with the services as provided by Obsidian Networks as outlined on the Service Order.
1.2.9
The Client shall do all things and provide all such information as is reasonably required by Obsidian Networks to provide the Services in accordance with these Terms and Conditions. Clause 1.3 Payment and Term
1.3.1
Any agreement shall commence on the date of acceptance by Obsidian Networks of the Application submitted by the Client and shall be paid on an annual basis for an initial contract period of two-years (unless otherwise specified) and annually thereafter, unless and until terminated by either party by providing 60 days written notice with no termination earlier than the end of the initial contract period or annual renewal period.
1.3.2
The fees payable to Obsidian Networks in respect of the Services are specified in the Obsidian Networks Price List. If a credit card or debit card is on file with Obsidian Networks, the Client acknowledges that Obsidian Networks will automatically take payment via that device 14 days from the date of invoice. If payment is not received via this process (i.e.: credit card or debit card is no longer valid, credit card or debit card has expired, etc.) Obsidian Networks will inform the Client via fax or letter and the Client acknowledges that the invoice (pro-forma or otherwise) is to be paid by other means and that Obsidian Networks reserves the right to pursue any outstanding invoice (pro-forma or otherwise) through the appropriate legal channels.
1.3.3
All Charges are due in advance (whether disputed or not) or within 14 days of invoice (unless specified otherwise in the application or on the invoice.) The Client acknowledges that Obsidian Networks reserves the right to suspend the customer’s entire account in the event of non-payment for any overdue invoice (pro-forma or otherwise.)
1.3.4
The Client may be required to pay for Services by Direct Debit or Credit Card on a non-invoiced basis. Obsidian Networks will notify the Client if this is the case.
1.3.5
All Charges are exclusive of VAT and any other applicable purchase tax, import, and all other duties. Any failure by the Client to pay any fees due under these Terms and Conditions on the date specified shall be deemed to be a “material breach” of these Terms and Conditions.
1.3.6
In the event of a material breach as described above, Obsidian Networks normal terms for collection of payment apply. If the Client chooses to pay by direct debit, and if, for any reason, the Client’s direct debit fails or mandate is cancelled and Obsidian Networks cannot take payment, the Client agrees to make the payment in full by an alternative method within 5 days. If payment is made within this time period, the Client can continue to pay via direct debit though, if payment is not made with in this five day period, Obsidian Networks retains the right to pursue payment through its normal processes and retract the Client’s right to pay by direct debit in the future.
1.3.7
The Client acknowledges that he shall provide Obsidian Networks with such amount in cash or by way of guarantee as Obsidian Networks may specify from time to time as a non-refundable payment of Charges for the remaining balance on the Contract. If the deposit is not provided within seven days of request, Obsidian Networks will have the right to disconnect the Service. Interest is not payable on deposits.
1.3.8
If the Client is overdue with any payments hereunder, then without prejudice to Obsidian Networks other rights and remedies, the Client shall be liable to pay to Obsidian Networks a flat fee of £15 for each correspondence, Obsidian Networks solicitors and court fees, as well as interest on the amount payable at an annual rate of 5% above the prevailing base rate of The Royal Bank of Scotland plc, which interest shall accrue on a daily basis from the date payment becomes overdue until Obsidian Networks has received payment of the overdue amount together with all interest.
1.3.9
Should the Client choose to pay for any ongoing fees by Direct Debit, the completed Direct Debit form must be returned to Obsidian Networks within 28 days. In the event of the Client failing to return a completed direct debit mandate, Obsidian Networks reserves the right to withdraw any discounts that may have been offered and invoice (pro-forma or otherwise) for the annual premium immediately. This invoice (pro-forma or otherwise) will then be payable within 14 days by other means.
1.3.10
The Client accepts that if any services provided by Obsidian Networks are disconnected because of non-payment or because of any breach of contract or Acceptance of Use Policies, Obsidian Networks has the right to charge the Client a reconnection fee equal to one month’s fees with a minimum payment of £45 plus VAT for each reconnection unless specifically stated otherwise in these terms and conditions.
1.3.11
The Client acknowledges responsibility for informing Obsidian Networks of all billing address changes and any changes relating to the Client’s ability to be contacted and further confirms that Obsidian Networks must be informed of any changes on the account including but not limited to address changes or contact person changes and that Obsidian Networks possesses the right to charge a £15 administration fee per change and that Obsidian Networks will not be held responsible for any disruption or lack of service which result from a lack of notification by Client to Obsidian Networks regarding such changes Clause 1.4 Client’s Obligations
1.4.1
The Client shall:
1.4.1.1
supply Obsidian Networks with such information as Obsidian Networks or its sub-contractor may reasonably request in order to carry out any Work; and
1.4.1.2
grant or procure so that Obsidian Networks or its sub-contractor are granted all necessary authority at all reasonable times and on reasonable notice (except in the case of an emergency) to carry out the Work and install, keep, and maintain any Apparatus at the Premises; and
1.4.1.3
in the case of an emergency grant or procure that Obsidian Networks or its sub-contractor is granted all necessary authority to enter the Premises immediately and without notice; and
1.4.1.4
provide appropriate space, ducting, suitable and safe working environment and electrical power for Obsidian Networks or its subcontractor to install and maintain the Apparatus at the Premises at no cost; and
1.4.1.5
not alter, adjust, or interfere with the Apparatus or allow any of Client employees or agents to do so; and
1.4.1.6
ensure that the Apparatus is kept safe and not interfered with by any third party. Clause 1.5 Warranties
1.5.1
In performing Obsidian Networks duties under this Agreement, Obsidian Networks shall, at all times use its reasonable endeavours to exercise reasonable care of a competent ISP (Internet Service Provider) or, as applicable, telecommunications operator. The Client acknowledges that neither Obsidian Networks, nor any other party, has control over the Internet and service interruptions may occur due to circumstances beyond or at times within Obsidian Networks reasonable control such as internal and/or external system malfunctions or failures of third parties. The Client therefore acknowledges that Obsidian Networks shall not be held liable in any way for losses as a result of such service interruptions regardless of their nature.
1.5.2
The Client further acknowledges that Obsidian Networks shall in no way be held liable for any service outage or disruption that occurs as a result of any of Obsidian Networks suppliers’ failure to provide a service. For clarification, if any of Obsidian Networks suppliers enters administration, liquidation, is wound up or for any reason fails to provide a service to Obsidian Networks that impacts the Client, Obsidian Networks shall not be held liable. In the event Obsidian Networks selects an alternative supplier in order to restore the service to the Client, the Client acknowledges that any increase in the costs to Obsidian Networks as a result of the supplier change will be passed on to the Client.
1.5.3
The Client acknowledges that Obsidian Networks offers a Reseller program for Client’s that purchase Obsidian Networks packages on behalf of an end user. The Client further acknowledges that the Client is responsible for all domain names and packages purchased on behalf of a third party, and if not purchased through the Reseller program as offered by Obsidian Networks, Obsidian Networks will not be held liable for any implications resulting from Obsidian Networks effort to contact the Client at the contact details held on the account within Obsidian Networks system through domain names held on the Client’s account.
1.5.4
The Client acknowledges that it is not possible for Obsidian Networks to provide a 100% fault-free Service. Obsidian Networks expressly reserves the right to disconnect availability of Internet access for the purpose of necessary or scheduled maintenance. Access to e-mail may also be adversely affected by conditions and performances outside Obsidian Networks control including without limitation the breakdown of transmission and telecommunication links or provisions of services by Obsidian Networks selected service providers. Sometimes Obsidian Networks will need to suspend the Service for maintenance, scheduled or unscheduled. While Obsidian Networks will try to maintain the Service 24 hours a day, seven days a week, Obsidian Networks cannot guarantee to do so. Obsidian Networks will always try to repair reported faults and/or restore the Service as soon as reasonably practical.
1.5.5
The Client warrants to Obsidian Networks that the Client has obtained and will maintain all such approvals, way leaves, and licences as may be necessary to perform Obsidian Networks obligations under this Agreement or to allow Obsidian Networks to do so and that the Client will comply generally with all applicable laws and regulations.
1.5.6
No other warranties or representations, expressed or implied, are given by either party under this Agreement and any implied warranties are expressly excluded.
1.5.7
The Client warrants that it will comply with the provisions of the end-user licence relating to all aspects of Services in which an Application has been provisioned.
1.5.8
The Client warrants that it will comply in every respect with the provisions of Obsidian Networks General Usage Policy. Clause 1.6 Term and Termination
1.6.1
This Agreement may be terminated by either party by providing 60 days written notice with no termination earlier than the initial contract period or annual renewal period.
1.6.2
If the Client terminates this Agreement during the initial period of two-years, other than because Obsidian Networks has increased its Charges or materially changed the terms of this Agreement to the Client’s detriment, or if the Agreement is terminated by Obsidian Networks under 1.6.3 below, the Client must pay Obsidian Networks the applicable Charges for the remainder of the initial contract period.
1.6.3
Either party may terminate this Agreement or the Service provided under it forthwith by notice to the other if:
1.6.3.1
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 a reasonable time of being given written notice from the other party to do so; or
1.6.3.2
the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
1.6.3.3
the other fails to pay any Charges when due; or
1.6.3.4
the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court makes an order to that effect; or
1.6.3.5
the other party ceases to carry on its business or substantially the whole of its business; or
1.6.3.6
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, administrator, administrative receiver, manager, trustee or similar officer is appointed over any of its assets; or
1.6.3.7
The bandwidth used for traffic to and from the web site is exceeded beyond Obsidian Networks considered acceptable use and is deemed by Obsidian Networks to affect the performance of other Clients’ Business Websites. Notwithstanding any other remedies it may have under these Terms and Conditions or in law, Obsidian Networks, in the event that the acceptable bandwidth is exceeded, may elect to charge the Client an additional monthly fee as set out in the Obsidian Networks Price List or Service Order.
1.6.4
If any of the events detailed above occur as a result of Obsidian Networks default, Obsidian Networks may by giving notice to the Client to disconnect the Service or any part of it without prejudice to Obsidian Networks right to terminate this Agreement. Where the Service or any part of it is disconnected under this paragraph, the Client must pay the Charges for the Service until this Agreement is terminated.
1.6.5
Any rights to terminate this Agreement shall be without prejudice to any other accrued rights.
1.6.6
On termination of this Agreement for any reason:
1.6.6.1
Obsidian Networks shall have the right immediately to remove any Apparatus from the Premises; and
1.6.6.2
all amounts owing for the Service shall be due and payable in full on demand whether or not then due and Client shall have no right to withhold or set off such amounts; and
1.6.6.3
Obsidian Networks may delete all e-mail, Websites, and other data stored on the Service by the Client and re-use the e-mail addresses, domain names not held by the Client and subject to Clause1.6.6.4, and Business Web-spaces. Obsidian Networks shall not exercise this right for six weeks in the case of termination by Obsidian Networks other than for breach by Client; and
1.6.6.4
Obsidian Networks shall transfer any domain names held by the Client to another ISP at no charge unless there is an expired domain name or unpaid bills relating to that service. If this is the case the domain name will be transferred once the account is brought up to date. Clause 1.7 Consequences of Termination.
1.7.1
Upon the termination of any Agreement for any reason whatsoever:
1.7.1.1
the Client shall promptly return to Obsidian Networks all copies of the Software in his possession; and
1.7.1.2
Obsidian Networks may cease to host the Business Web Site with immediate effect; and
1.7.1.3
Each party shall on request promptly return any documents or papers relating to the business of the other party (including any of the other party’s Confidential Information) which it then has in its possession or control. Clause 1.8 Renewal
1.8.1
Obsidian Networks will automatically renew the Client’s contract each year after the initial two-year contract period unless the Client notifies Obsidian Networks in writing at least 60 days prior to the end of the contract period instructing Obsidian Networks to do otherwise.
1.8.2
The Client acknowledges in the event Obsidian Networks is not informed at least 60 days prior to the end of the contract period of the Client’s wishes not to renew, Obsidian Networks will automatically raise and forward an Invoice (pro-forma or otherwise) to the Client for the renewal for a further year. If a credit card or debit card is on file with Obsidian Networks, the Client acknowledges that Obsidian Networks will automatically take payment via that device 14 days from the date of invoice.
1.8.3
If payment is not received via this process (i.e.: credit card or debit card is no longer valid, credit card or debit card has expired, etc.) prior to the end of the contract period, Obsidian Networks will inform the Client via fax or letter and the Client acknowledges that the invoice (pro-forma or otherwise) is to be paid prior to the end of the contract period and that Obsidian Networks reserves the right to pursue any outstanding invoice (pro-forma or otherwise) through the appropriate legal channels.
1.8.4
Obsidian Networks will use its reasonable endeavours to ensure that the Domain Name, Existing Domain Name, Internet Keyword or any other Obsidian Networks product will be automatically renewed after expiry of the initial or any subsequent two year registration period provided always that this Agreement remains in force up to the date of expiry of such period.
1.8.5
In consideration for renewal of the Obsidian Networks package by Obsidian Networks and prior to the renewal date, the Client shall pay to Obsidian Networks the annual renewal fee set out in the Price List.
1.8.6
Whilst Obsidian Networks will use all reasonable endeavours to ensure that the Domain Name, Existing Domain Name, Internet Keyword or any other Obsidian Networks product is renewed at the relevant renewal date, the Client acknowledges that it is not possible for Obsidian Networks to guarantee such renewal and that Obsidian Networks shall not be liable for any failure to renew the Domain Name or the Existing Domain Name.
1.8.7
The Client acknowledges that in the event the Client fails to remit payment or fails to instruct Obsidian Networks not to renew the Obsidian Networks package, Obsidian Networks reserves the right to renew the Domain Name or any associated Domain Names under its own IPS tag and reserves the right to change the Admin, Technical and Billing contacts to a Obsidian Networks representative and that Obsidian Networks will, at that point, become the rightful owner of the Domain Name.
1.8.8
The Client also acknowledges that in the event the Client fails to remit payment or fails to instruct Obsidian Networks not to renew the Obsidian Networks package, Obsidian Networks reserves the right to offer an alternative domain name to the Client if payment is received during Obsidian Networks debt recovery process. Clause 1.9 Confidentiality
1.9.1
The Client shall ensure that its employees, agents, and sub-contractors shall, keep confidential and not, without Obsidian Networks prior written consent, use or disclose to any third party any material or information relating to the Agreement and/or Obsidian Networks business which the Client may acquire in the course of or in accordance with the Agreement.
1.9.2
Nothing in Clause 1.9.1 will be taken to prevent the Client from disclosing any information:
1.9.2.1
in Client’s possession (with full right to disclose) before disclosed by Obsidian Networks; or
1.9.2.2
which is or becomes public knowledge other than by breach of this clause; or
1.9.2.3
which the Client may independently develop or receive from a third party (with full right to disclose)
1.9.3
Obsidian Networks reserves the right (but does not assume the obligation) to inspect any material which the Client processes using the Service to ensure Obsidian Networks compliance with the Agreement and any legal requirements.
1.9.4
The Client and Obsidian Networks may disclose such material if requested or required to do so by the police or any other competent authority.
1.9.5
If requested to do so by a third party Obsidian Networks may disclose such material during the course of an action for the infringement of their rights which Obsidian Networks reasonably believes to arise from the Client’s use of the Service. Obsidian Networks may modify or remove any material that infringes this Agreement.
1.9.6
The Client hereby agrees that Obsidian Networks may record or monitor the Client’s calls to Obsidian Networks for quality and contractual purposes.
1.9.7
Where the Client uses the Service to post material on a Web Site (including chat-rooms and other facilities), the Client grants to Obsidian Networks and its licensors and assigns a royalty-free, irrevocable licence to use, edit, copy, republish and distribute such material through the Service (for any purpose.) Obsidian Networks may remove any material that appears on any page of Obsidian Networks own Web Site.
1.9.8
All information, drawings, specification, documents, contracts, design material and all other data, which either party may have disclosed and may from time to time disclose to the other party relating to its business, Clients, prices, services, requirements, the Software, the Web Site, the Services and these Terms and Conditions, including any technical specifications (the “Confidential Information”), are proprietary and confidential to the disclosing party. Clause 1.10 Cancellations
1.10.1
The Client understands that there is no cancellation policy in place meaning that, from the time the Client submits the signed Service Order to Obsidian Networks, the Client waives any right to cancel the services purchased unless specified otherwise within this document. Clause 1.11 Force Majeure
1.11.1
Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any cause or circumstance whatsoever beyond its reasonable control (an “event of force majeure”), provided the same arises without the fault or negligence of such party and the affected party notifies the other party within two (2) working days of becoming aware of the same of such event of force majeure and the manner and extent to which its obligations are likely to be prevented or delayed, and provided also that the occurrence of any such event of force majeure shall not have the effect of discharging or postponing the affected party’s payment obligations hereunder.
1.11.2
If any event of force majeure occurs, the date(s) for performance of the obligation(s) affected shall be postponed for so long as is made necessary by the event of force majeure provided that if any event of force majeure continues for a period of or exceeding 60 days, the non-affected party shall have the right to terminate any agreement governed by these Terms and Conditions forthwith on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any event of force majeure Clause 1.12 Data Protection
1.12.1
Unless indicated otherwise on the relevant Application/ Service Order form, the Client hereby agrees to allow Obsidian Networks to collect and process data and information regarding the Client’s use of the Service and to provide this to sub-contractors and/or companies affiliated with Obsidian Networks for the purposes of marketing Obsidian Networks (or Obsidian Networks affiliated companies’) services, or other related services, or for any other purpose connected with the Agreement. In particular, but without limitation, if the Service is provided to the Client following a third party referral, the Client agrees that Obsidian Networks may provide them with such reasonable information as they request regarding the installation of the Service and Obsidian Networks provision of the same to the Client. Obsidian Networks will provide the Client on request with details of all such information held by Obsidian Networks, and will modify any information that the Client advises is incorrect.
1.12.2
Subject to and in accordance with relevant data protection legislation, the Client hereby consents to allow Obsidian Networks to collect data regarding Obsidian Networks use of the Services and to provide such data to any governmental or regulatory body for the purpose of Obsidian Networks compliance with any applicable laws and regulations.
1.12.3
Each party shall for the duration of any Agreement governed by these Terms and Conditions comply with the provisions of the Data Protection Act 1998, (including the data protection principles set out in that Act) and any similar or analogous laws, regulatory requirements or codes of practice governing the use, storage or transmission of personal data and shall not permit anything to be done which might cause or otherwise result in a breach by either party of the same.
1.12.4
Obsidian Networks possesses the right to communicate with the Client regularly via, but not limited to, electronic means.
1.12.5
Obsidian Networks may, from time to time, send Client information relating to the services of other companies that Obsidian Networks feels may be of interest to the Client. If the Client does not want to receive such information, it is to inform Obsidian Networks in writing.
1.12.6
Obsidian Networks has the right to deny Customer Support to the Client if the Client fails to demonstrate to the Obsidian Networks representative upon receipt of a phone call or e-mail by Obsidian Networks that they are indeed the Client and therefore authorised to request that changes be made on the account. The Client acknowledges that it may not always be possible for Obsidian Networks to guarantee that breaches will not occur and therefore agrees to cooperate with Obsidian Networks staff in its requests for Client authentication. Clause 1.13 Liability
1.13.1
Nothing in this Agreement shall restrict or exclude either party’s liability for fraud, death or personal injury.
1.13.2
The Client shall not be entitled to any liquidated compensation or refund payments for unavailability of or interruptions to the Service.
1.13.3
Obsidian Networks shall not be liable to the Client nor to any third party under this Agreement in contract, tort or otherwise for any direct or indirect loss of profit, anticipated savings, business, contracts, revenue, time, goodwill or loss of or harm to data or other content or for any other indirect or consequential loss.
1.13.4
Obsidian Networks shall not be liable in respect of any goods or services purchased or obtained or any transactions entered into by the Client through the Service with third parties. Further Obsidian Networks shall have no liability to the Client in respect of any third party Internet criminal activity (including without limitation as a result of computer ‘hackers’) or in respect of billing, payment, or other information that passes between Obsidian Networks over the Internet (including by e-mail) in relation to the provision of the Service.
1.13.5
The Client acknowledges that Obsidian Networks shall not be liable to the Client in respect of any loss or damage arising from the Clients use of or reliance upon any advice or information provided by Obsidian Networks Client Services team.
1.13.6
Subject to the other provisions of this Clause, any liability Obsidian Networks may have to the Client in contract, tort, or otherwise in connection with the supply or non-supply of the Services and this Agreement shall be limited in each calendar year to damages equal to the Charges paid by the Client in that calendar year. Clause 1.14 Data Backup
1.14.1
Whilst Obsidian Networks shall use its reasonable endeavours to ensure that backup copies of the Client’s Web Site and all Client data contained in the Web Site are made at reasonable intervals, the Client shall be solely responsible for the backup of such data and Obsidian Networks shall not be liable for any damages, loss, costs or other expenses arising out of or in connection with any loss of data by the Client which are due to the failure of the Client or Obsidian Networks to back up such data. Clause 1.15 General Usage Policy
1.15.1
The Client agrees to adhere to Obsidian Networks General Use Policy so as to ensure a safe, functional, and trusted environment for Obsidian Networks Clients to publish their information on the Web and will comply with all parts of this clause as well as with the Acceptable Use Policy as found at www.obsidianinternet.net/
1.15.2
The parties acknowledge and agree that the Client shall have full editorial control over the contents of the Web Site and the Client warrants that the Web Site (including where the Client engages in any form of electronic communication through a discussion forum, via the Web Site or otherwise with any end-user) shall not:
1.15.2.1
be in breach of the laws of England and Wales or the country of establishment of the Client or any end-user of the Web Site, or any international conventions, codes or regulations applicable to the Internet including but not limited to infringement of copyright and other Intellectual Property Rights, defamation, theft, fraud, drug-trafficking, money laundering and terrorism; or
1.15.2.2
include any obscene or inflammatory language; or
1.15.2.3
include any defamatory material; or
1.15.2.4
promote sexually explicit materials; or
1.15.2.5
promote violence, sadism, cruelty or incite racial hatred; or
1.15.2.6
promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; or
1.15.2.7
Promote illegal activity.
1.15.3
The Client shall indemnify and keep Obsidian Networks indemnified against all proceedings, losses, liabilities, damages (including legal costs), Charges and expenses of whatsoever nature arising out of or in connection with any action or claim that the content of the Web Site violates the provisions noted above.
1.15.4
Clients in breach of this policy will be contacted by Obsidian Networks and given the opportunity to remove the content in question before having services suspended. The Client accepts that repeated infractions may cause the cancellation of service without refund of any fees.
1.15.5
The Client agrees to comply with all applicable legal and regulatory requirements and any applicable licence; and
1.15.5.1
not use the Service in a way which could cause it to be interrupted, damaged or otherwise impaired or which violates Obsidian Networks rights (including intellectual property rights) or those of any third party (including copyright, confidence, privacy or other rights); and
1.15.5.2
not knowingly intercept or attempt to intercept any message that passes over Obsidian Networks System or attempt to access any unauthorised component of the Service; and
1.15.5.3
only connect to Obsidian Networks System or the Apparatus, telecommunications equipment that is approved for use by Obsidian Networks and complies with all relevant legislation, standards, and licence requirements; and
1.15.5.4
comply with all reasonable instructions Obsidian Networks gives the Client relating to the use of Obsidian Networks System or Apparatus; and
1.15.5.5
Pay the applicable Charges as set out in the Service Order or Applications and comply with any additional obligations specified in the Service Description, Service Order or any applicable Acceptable Use Policy.
1.15.5.6
Must comply to any fair usage policies as determined by OBSIDIAN, wherein usage of services with OBSIDIAN do not affect other customer’s services with OBSIDIAN. This may include but is not limited to Web Server Space and Bandwidth, regardless of whether said services offer an “unlimited” option.
1.15.6
Obsidian Networks does not support unsolicited e-mail messages sent by users of Obsidian Networks system (also known as junk e-mail or SPAM) other than to the Client’s own Clients. Users sending unsolicited e-mail messages from Obsidian Networks system or posting SPAM in Usenet Newsgroups will have all services temporarily suspended. The Client will then be contacted by Obsidian Networks and informed of the suspension before having services reinstated. The Client accepts that repeated infractions may cause the cancellation of service without refund of any fees.
1.15.7
The Client agrees to access Obsidian Networks services using its published fully qualified domain name (FQDN – e.g. smtp.businessserve.co.uk) and not the underlying IP address and acknowledges that Obsidian Networks reserves the right to change the underlying IP address of any of its services without prior notice.
1.15.8
Obsidian Networks may, at its sole discretion, run manual or automatic systems to check compliance with these Terms and Conditions. The Client acknowledges that these checks may include, but are not limited to, scanning for open mail relays, smurf amplifiers and insecure formmail scripts. By accessing the Internet via Obsidian Networks services, the Client is deemed to have granted permission for these checks.
1.15.9
The Client is required to accept e-mail addressed to “postmaster” at the Client’s e-mail address utilising the domain name(s) on the Client’s account. For example, if the Client has the domain name “mybusiness.co.uk”, then the Client shall accept and read all e-mail addressed to postmaster@mybusiness.co.uk This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . The Client will be deemed to have read any and all such postmaster-addressed e-mail. The Client acknowledges that Obsidian Networks may take action on the basis of this assumption that may impact the Client’s account. Clause 1.16 Intellectual Property Rights
1.16.1
The Client agrees and acknowledges that the copyright and any other intellectual property rights in the Software, the E-Tutor, and the Business Web Site shall be owned by Obsidian Networks except that the intellectual property rights in any material proprietary to the Client or any third party (the “Content”) which has been incorporated into the Web Site by the Client shall be owned by the Client or the relevant third party respectively.
1.16.2
Subject to the exceptions set out in Clause 16.1 the Client hereby assigns to Obsidian Networks for the sum of £1 (receipt of which is hereby acknowledged) the whole of the Client’s present and future right, title and interest in the Intellectual Property Rights to the Web Site.
1.16.3
Each party agrees to execute any additional documents reasonably necessary to effect and evidence the other party’s rights under Clauses 16.1 and 16.2 (at such other party’s request) and not to do or omit to do any act that would or might prejudice the other party’s rights.
1.16.4
The Client warrants that it has obtained for itself and for Obsidian Networks all necessary consents, approvals and licences for use of the Content in the Business Web Site.
1.16.5
In the event that the use of the Content infringes the intellectual property rights of any third party, the Client will immediately replace the infringing part at its own expense with non-infringing material.
1.16.6
The Client agrees to indemnify and keep Obsidian Networks indemnified and defend it at its own expense from and against:
1.16.6.1
any and all claims that the Content or any act or omission by the Client, its employees, agents and representatives infringes any copyright, trademark or other intellectual property rights of any third party; and
1.16.6.2
any infringement by the Client, its employees, agents and representatives of Obsidian Networks ‘s intellectual property rights howsoever arising and shall compensate Obsidian Networks for any loss, damages and other expenses arising out of or in connection with such infringement. Clause 1.17 Suspension of Services
1.17.1
Obsidian Networks may disconnect the provision of Service without liability on its part, and with as much prior notice as reasonably possible (except in the case of paragraph (a) below in which case Obsidian Networks may do so without prior notice (a) if necessary for operational reasons or for the purposes of carrying out Work at the Premises or maintaining or upgrading the Service or Obsidian Networks System; or (b) if obliged to comply with an order, instruction, or request of an emergency service organisation or a governmental or other competent authority. Clause 1.18 Notices
1.18.1
Except as expressly stated herein to the contrary, all notices and other communications required or permitted to be given under these terms and conditions shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified above or such other address as either party may notify to the other for this purpose from time to time. Any notice shall be treated as having been served on delivery if delivered by hand, two working days after posting if sent by pre-paid registered mail, on delivery if sent by courier and on confirmation of transmission if sent by facsimile. For the avoidance of doubt, notice under these Terms and Conditions shall not be validly served if sent by E-mail. This clause does not affect the responsibility of the Client to regularly review Obsidian Networks website for any alterations/amendments to the terms and conditions which would be binding on the client Clause 1.19 Variation
1.19.1
Except as explicitly stated in this Agreement, the terms of the Agreement may only be changed or modified by Obsidian Networks on behalf of both parties. Obsidian Networks may change the technical specification of the Service at any time, provided this does not detrimentally affect its performance.
1.19.2
The Client accepts the obligation to review these terms and conditions every two weeks and, unless Obsidian Networks is informed in writing otherwise, the Client accepts that as part of the Agreement, the revised terms and conditions will indeed supersede, in whole or in part thereof, the previous terms and conditions deeming the revised terms and conditions to be in force until the end the contract period.
1.19.3
Obsidian Networks may amend this Agreement at any time, with immediate effect, in order to comply with any law, regulation or ruling of Oftel or any other Governmental or regulatory body. Clause 1.20 Indemnity
1.20.1
Client shall indemnify Obsidian Networks against all third party claims and losses, liabilities, costs and expenses (including without limitation reasonable legal expenses) that Obsidian Networks may incur as a result of any breach of Obsidian Networks obligations under this Agreement or misuse of the Services (whether by Client or not) provided that this indemnity shall not apply to the extent that any claim or part of a Claim directly results from any wrongful or negligent acts or omissions by Obsidian Networks. Clause 1.21 Rights of Third Parties
1.21.1
Except as expressly provided to the contrary, a person (“third party”) who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement notwithstanding that any such provision may purport to confer or may be construed as conferring a benefit on such third party. This does not affect any right or remedy of any such third party that exists or is available apart from that Act.
1.21.2
For the avoidance of doubt, Obsidian Networks may and shall, as it deems fit, sub-contract part or all of its obligations under these Terms and Conditions. Clause 1.22 Severability
1.22.1
Should any provision of this Agreement be held by any competent court or authority to be invalid or unenforceable such provision shall (without prejudice to the remaining provisions) have no effect but the parties shall use all reasonable endeavours to replace the invalid or unenforceable provision by a valid provision, the effect of which shall be as close as possible to the intended effect of the invalid or unenforceable provision. Clause 1.23 Waiver
1.23.1
Failure or delay by either party to enforce any of its rights under this Agreement shall not be deemed to be a waiver of any such right nor prevent that party from exercising or enforcing that same right or any other right on a later occasion. Clause 1.24 General
1.24.1
These Terms and Conditions contain all the terms agreed between the parties regarding its subject matter and supersede any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to any agreement governed by these Terms and Conditions except as expressly stated in these Terms and Conditions. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into any Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in these Terms and Conditions.
1.24.2
Provisions of these Terms and Conditions that either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
1.24.3
The relationship of the parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in these Terms and Conditions, nothing in these Terms and Conditions shall constitute the parties as partners, joint ventures or co-owners, or constitute either party as the agent, employee or representative of the other, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither party shall hold itself out as having authority to do the same.
1.24.4
The parties shall at the requesting party’s reasonable expense do and execute all such further acts and things as are reasonably required to give full effect to the rights given and the transactions contemplated by these Terms and Conditions.
1.24.5
Obsidian Networks may make alterations to these Terms and Conditions at any time without warning to the Client. Clause 1.25 Assignment
1.25.1
Obsidian Networks may assign or otherwise transfer this Agreement at any time. Client may not assign or otherwise transfer this Agreement or any part of it without Obsidian Networks written consent. Clause 1.26 Law and Jurisdiction
1.26.1
The construction, validity, and performance of these Terms and Conditions shall be governed by English law, and the parties submit to the exclusive jurisdiction of the English courts to resolve any dispute between them. Clause 1.27 Entire Document
1.27.1
This Agreement and any documents referred to herein contain the entire understanding of the parties relating to the subject matter of this Agreement. Section 2. Connectivity Terms and Conditions Clause 2.1 Dial-up
2.1.1
The Client agrees to access the Client’s account via the designated Obsidian Networks dial-up number as specified by Obsidian Networks that is subject to change at Obsidian Networks discretion.
2.1.2
Any updates and/or amendments to the Web Site or retrieval of e-mail shall be made by the Client using the Software by accessing the Web Site on Obsidian Networks website server via the Dial-Up Connection. In the event that the Web Site is accessed, updated or amended, or retrieval of e-mail facilitated in any other way than via the Dial-Up Connection the Client shall pay to Obsidian Networks the fee specified in the Obsidian Networks Price List. Clause 2.3 ADSL, DDL, Leased Lines,
2.3.1
The client acknowledges that there are no cancellations once an order has been received and accepted by Obsidian Networks.
2.3.2
The full cost of any additional work that has been specifically incurred for the Service by the time of cancellation will be recovered in addition to the cancellation charge. In the event Obsidian Networks fails to meet the Service Commencement Date and the Client decides to cancel the Service, a charge will not be raised. Obsidian Networks will use all reasonable endeavours to install the Service in accordance with the Installation Date but any such date is provisional and maybe subject to alteration. If the Client requests amendments to the Service Commencement Date and subsequently cancels the Service, the cancellation charge will be amended so as to cover the full extent of Obsidian Networks losses.
2.3.3
Further miscellaneous Charges may be applied in connection with the provision of the Service and/or repair of the Client’s data paths as follows:
2.3.3.1
where an internal shift of the Clients line is required, a charge of £75.00 will be imposed; or
2.3.3.2
where an external shift of the Client’s line is requested, this will be charged as a new connection; or
2.3.3.3
a visit charge applies where Obsidian Networks or Obsidian Networks sub-contractor visits the Client’s premises during normal working hours in connection with the Service, and a charge for the particular product or service has not been included in the price of the Service. If more than one visit is required, a single charge is made for each person visiting on each occasion. A visit charge will not apply where a visit is made for the purpose of removing rented Apparatus; or
2.3.3.4
an abortive visit charge of £150.00 (per attendance) where, (I) Obsidian Networks or its sub-contractor attends an incorrect address provided by the Client, (ii) the Premises for installation does not meet the criteria defined by Obsidian Networks or its sub-contractor as requirements for installing the Service e.g. minimum space, availability of power etc., (iii) the Client has not agreed to take Service at the appointed time as agreed between Obsidian Networks and the Client, or (iv) the Client has not agreed to or is unavailable for a maintenance or other agreed visit at the appointed time agreed between the Client and Obsidian Networks ; or
2.3.3.5
A reworking charge where an engineer at the Client’s Premises has to make good any existing non-BT installed wiring to make it fit for installation. Such work will only be undertaken with the Client’s consent and where undertaken by Obsidian Networks sub-contractor, the sub-contractor’s timescale rates will apply. Where undertaken by Obsidian Networks, the Client will be notified of Obsidian Networks rates.
2.3.4
The Client acknowledges that the provision of ADSL, DDL, Leased Lines, services per this Service Order is for one-year and the Client further confirms that other aspects of Obsidian Networks ‘s provision (such as but not limited to hosting etc.) are per the contract terms as outlined earlier within these terms and conditions and that the Client shall pay all charges, the VAT, and any additional taxes as set out on the Service Order/ Invoice (pro-forma or otherwise) and agrees to all guidelines of payment as set out in Clause 1.3. The Client also acknowledges that all Leased Line service cancellations must be made in writing and served via Registered Post to Obsidian Networks at least 90 days prior to the date of cessation as requested by the Client with no cancellation earlier than the initial 12 month contract period.
2.3.5
The Client acknowledges that all quotes provided by Obsidian Networks are subject to available capacity as defined by Obsidian Networks chosen supplier and that an additional fee may be levied to the customer based on additional capacity upgrades that may be required.
2.3.6
The Client acknowledges that any move between premises will need to be notified to Obsidian Networks and the Client acknowledges that, given the nature of broadband connections, a simple swap from one premises to another without down time or additional cost is not possible and that the current connection may need to be ceased and that a new connection at the new premises may be needed on a new 12 month contract.
2.3.7
Where order details received from the Client are illegible, materially incomplete, or incorrect, Obsidian Networks reserves the right to charge the Client an administration charge comprising a minimum charge of £46.00 plus a charge of £23.00 for each subsequent hour or part thereof.
2.3.8
A ‘Breaking through walls’ Charge will apply for the provision of broadband services access links for each of the broadband products. Obsidian Networks may re-wire or disconnect incorrectly wired connections without liability on its part. (The following are not suitable for ADSL: ISDN, PBX lines, RedCare, BT Video Stream, BT DataStream, PCM facilities, coin box operation). The Client acknowledges that ADSL may impact other services terminating on the line such as security systems. These services should be tested once the installation is complete. Such Charges will be notified to the Client in advance if applicable.
2.3.9
The Client acknowledges that additional duct charges may apply for the provision of broadband services access link for EACH of the broadband products and that the Client will be advised by Obsidian Networks of these charges on a case by case basis.
2.3.10
The Client understands that the Service comprises a telecommunication service to access the Internet and such other Services as the Client has ordered in the Service Order. Maximum ‘burst’ rates for the Service will be provided upon request. The Client acknowledges that the burst rates for the Service may be reduced by contention at peak usage times within Obsidian Networks System.
2.3.11
Obsidian Networks will only be able to provide the Service where the Client’s existing telecommunications supplier and/ or Obsidian Networks partners support it (including for the purposes of this Agreement an obligation that the Client has and maintains a contract for the use of a BT provided an analogue direct exchange line which terminates on a master network forming part of the BT network). The Client further acknowledges that the installation of the Service may cause some disruption to the Client’s telecommunication services.
2.3.12
Where it is necessary for Obsidian Networks to install or maintain the Service, the Client warrants that all approvals have been granted for the installation (for example, that all approvals are granted in connection with fitting equipment including receptor dishes for Clients on buildings or premises not directly controlled by the Client) and will provide Obsidian Networks with such access as it is reasonably required and any technical or personnel assistance reasonably necessary for the installation and maintenance of the Service including electricity supply and suitable accommodation and environmental conditions to accommodate the Obsidian Networks Equipment.
2.3.13
The Customer shall be responsible for any Obsidian Networks Equipment located at the Site and the Client will only use the Obsidian Networks Equipment and associated software in accordance with instructions and/or software licenses that Obsidian Networks provides to the Customer from time to time. The Client undertakes not to modify, tamper or in any way interfere with Obsidian Networks ‘s Equipment and Obsidian Networks will not be liable for any repairs to the Obsidian Networks Equipment other than those arising as a result of natural and proper use of it and:
2.3.13.1
the Client will insure any Obsidian Networks Equipment located at the Site against loss or damage from all risks for an amount equal to the full replacement value of the Obsidian Networks Equipment; and
2.3.13.2
The Obsidian Networks Equipment shall be and remains the property of Obsidian Networks at all times and must be surrendered in re-saleable condition, together with all manuals and packaging upon termination. Where the Client fails to surrender the Obsidian Networks Equipment, Obsidian Networks reserves the right to retrieve the Obsidian Networks Equipment directly from the Site; and
2.3.13.3
The Client will be liable to Obsidian Networks for any loss or damage to the Obsidian Networks Equipment except in so far as any such loss or damage is attributable to the negligent or wilful act or omission of Obsidian Networks.
2.3.14
Obsidian Networks hereby grants to the Client and the Client hereby accepts a non-exclusive and non-transferable license to use any software provided by Obsidian Networks to access the Internet, for the sole purpose of enabling the Client to use the Service. The Client hereby acknowledges that the title to all software is and shall remain with Obsidian Networks or Obsidian Networks third party licensors. The Client hereby undertakes to use its reasonable endeavours to protect and keep confidential all Obsidian Networks software used by it, and shall make no attempt to examine, copy, alter, reverse engineer, disassemble or tamper with such software.
2.3.15
Use of the Service by the Client is deemed acceptance of any and all licences relating to the Service.
2.3.16
The Service is provided for the Client’s use only and the Client undertakes not to resell, hire, lease or allow use of the Service by any third party without the prior written consent of Obsidian Networks and:
2.3.16.1
the Client shall use the Service for lawful purposes only in compliance with all current and future statutes in force from time to time; and
2.3.16.2
the Client agrees not use the Service: (i) to send or receive materials or data which is in violation of any law or regulation or which is defamatory, offensive, abusive, indecent, obscene or in breach of confidence, privacy, trade secrets or in breach of any third party Intellectual property rights (including copyright) or in breach of any other rights; (ii) in a manner which constitutes a violation or infringement of the rights of any person or a violation or infringement of any statutory duty or obligation in contract tort or otherwise, to any third person; (iii) in breach of instructions that Obsidian Networks have provided to the Client in respect of the use of the Service; or (iv) other than in conformance with Obsidian Networks standard acceptable use policies and the Internet Protocols as published from time to time; and
2.3.16.3
the Client acknowledges that no broadband connection provided by Obsidian Networks can be segmented or resold for further provision to beneficiaries other than the Client as known by Obsidian Networks and shall not be in breach of the terms and conditions as set out by our broadband supplier; and
2.3.16.4
The Client acknowledges that Obsidian Networks may be required by current or future law or regulation to access, store and/or take copies of the Client’s data stored on or transmitted by the Service. Obsidian Networks reserves the right to terminate the Service with immediate effect and without further obligation or liability to the Client as required by any law enforcement organisation or by the Courts; and
2.3.16.5
The Client agrees that he will not use a Name so as to infringe the rights of any other person or company under statute or common law in a corresponding trademark or name. The Client also agrees to comply with the terms and conditions of any third party through which Obsidian Networks has supplied the Name to the Client; and
2.3.16.6
The Client acknowledges that Obsidian Networks will be in no way liable for any dial-up charges incurred by the Client in the event the Client’s primary or back-up connectivity devices are used and the Client further acknowledges that Obsidian Networks is no responsible for informing the Client of such outages if they are unknown to Obsidian Networks management and/ or systems; and
2.3.16.7
Obsidian Networks will provide technical support to Leased Line customers via its Premier Support Unit and that all ADSL customers will receive support from Obsidian Networks Customer Support Department. ADSL customers further acknowledge that the support as provided by Customer Support does not include the support of the Client’s network and shall only include support up to the Client’s modem/router.
2.3.16.8
Obsidian Networks reserves the right to restrict the passage of communications where the Client makes profligate use of the Obsidian Networks network or the Service to the detriment of Obsidian Networks or Obsidian Networks ‘s other Clients, until the Client gives an acceptable undertaking to Obsidian Networks to modify its use of the Service. In other words, the Client acknowledges that they will not utilise the service beyond what would constitute typical business usage profiles (meaning use of file sharing devices such as Kazaa does not constitute business usage profile); and
2.3.16.9
The bandwidth used for traffic to and from the web site is exceeded beyond Obsidian Networks considered acceptable use and is deemed by Obsidian Networks to affect the performance of other Clients’ Business Websites. Notwithstanding any other remedies it may have under these Terms and Conditions or in law, Obsidian Networks, in the event that the acceptable bandwidth is exceeded, may elect to charge the Client an additional monthly fee as set out in the Obsidian Networks Price List; and
2.3.16.10
Any breach of these terms and conditions by the Client will entitle Obsidian Networks to disconnect or terminate the Service without notice with immediate effect, and Obsidian Networks may restore the Service if the Client gives an acceptable assurance that there will be no further contravention.
Section 3 – Refunds
3.1
Charges due on a pre-pay basis (together with account setup fees, where application) are non-refundable.
3.2
In the event that Obsidian Networks cancels your service for reasons other than your breach of contract, you will be entitled to a pro rata refund based upon the remaining period of your contract term.
3.3
If you contravene your agreement with Obsidian Networks, a refund will not be issued in the event of a cancellation.
3.4
If you are purchasing Obsidian Networks services for an individual, and not that of a business, you have the right to cancel, in writing to Accounts Department, Obsidian Networks Ltd, Unit 4, Bretton Hall Offices, Bretton, Chester, CH4 0DF, within the first 7 days of payment being made or 7 days of receipt of services whichever is the longer. Refunds will be made in this instance upon receipt within the specified time frame of the service in question.
Section 4 – Domain Names – Additional Information
4.1
For .UK Domain Name Registrations we require you to review and accept Nominets Terms & Conditions which can be found at Nominets Terms and Conditions
4.2
If you wish to raise a complaint about abuse (phishing scams, spam emails etc), please contact a member of our team with as much detail about the abuse that you have received. You can contact us via abuse@obsidian-networks.co.uk or alternatively please call 01244 56 99 28. We will investigate your complaint immediately.
4.3
Please contact a member of our team during the business hours of 0830 – 1700 Monday – Friday on 01244 56 99 28 or alternatively email support@obsidian-networks.co.uk. We will respond to all points of contact regarding any of our services within 1 business day and aim to resolve any issues you have within 5 business days.
4.4
Here at Obsidian Networks Ltd we aim to get it right all of the time. Sometimes the occasion may arise where we have not got it right for you, we can only improve on our services with valid feedback form you, our customers. If you wish to make a complaint about a product or service that you have received from us, please submit an email to enquiries@obsidian-networks.co.uk including as much detail as possible. We will acknowledge your complaint within 1 business day and aim to have this fully resolved within 5 business days.
If you are not happy with the initial outcome of your complaint regarding our product or service, please feel free to escalate your issue to a senior member of our team on 01244 56 99 28.
4.5
If your complaint is in relation to a .UK domain name and you are not happy with the initial outcome, please feel free to escalate your issue to Nominet (the .UK registry) at Nominets Complaints Escalation
4.6
All domains are renewed on an annual basis, we will send out reminder emails 30 days, 14 days, 7 days and 1 day before expiry. We will send emails to the email address that we have on file. It is the registrants responsibility to make sure that their contact details are fully up to date. Obsidian Networks Ltd take no responsibility if your domain renewal fails due to your contact details being incorrect. If you do not wish to renew a domain please make sure that you contact us a minimum of 14 days before your domain name expires by emailing us at domains@obsidian-networks.co.uk.
Alternatively, you can set your domain name to auto renew and this can be managed through our client portal area of our website. All domains will be auto renewed 14 days in advance of the domain name expiring and will be billed 30 days in advance.