This Agreement is made between
(1) Sensical Services Ltd registered in England and Wales under company number 4811011 trading under the name of Sensical and Sensical.net whose business address is at Mermaid House, 2 Puddle Dock, LONDON, EC4V 3DS, U.K. ("Sensical"); and
(2) The customer (the "Customer");
together referred to as the "Parties" and each individually as a "Party".
1.1. All orders in whatever terms, are accepted subject to the following terms and conditions detailed in this Agreement which will apply even if Sensical receive an order form with different terms and conditions, unless varied in writing by an authorised representative of Sensical.
1.2. All orders will be submitted by the Customer or their authorised representative using the Sensical website or written purchase order. This Agreement is made only when Sensical accept the Customer's order by sending or otherwise transmitting to the Customer a contract or confirmation of service.
1.3. The Customer shall be deemed to have accepted the service on the date they are notified that it is operational.
1.4. The term of this Agreement shall commence as of the date this Agreement is agreed by the Customer and accepted by Sensical and shall continue in effect for as long as any Service remains in effect unless otherwise terminated in accordance with the terms of this Agreement. The Initial Term for each Service is stated on the applicable Order Form and where not specified shall default to 12 months. The Initial Term begins on the Delivery Date defined in the Service Description of such Service or otherwise notified. Each Service will continue automatically for additional Renewal Terms of twelve months unless a different Renewal Term is specified, or a written notice of cancellation is given by either party at least 30 days prior to the end of the then-current term. The Agreement term at any time in effect, including without limitation, the Initial Term, and/or a Renewal Term are referred to herein as the "Term".
2.1. The Customer agrees with Sensical to pay all charges, VAT and any bank charges that may arise when they fall due. Delinquent payments on any undisputed portion of an invoice may be subject to a late payment charge at a rate of 2.0% per month, or portion thereof.
2.2. All overcharges or billing disputes must be reported by the Customer to Sensical within 30 days of the time the dispute occurred. If the Customer disputes a charge to their credit or debit card issuer that after resolution between Sensical and its merchant is deemed to be a valid charge under the provisions of this Agreement the Customer shall pay Sensical an Administrative Fee of not less than £50.00 and not more than £200.00.
2.3. Payment by cheque is permitted subject to an administration fee of 5% of the value of the payment which should be added to the value of the cheque.
2.4. In the event Customer fails to pay Sensical any undisputed fees under this Agreement when due, Sensical agrees that it shall notify the Customer in writing of any unpaid and undisputed fees and the Customer shall have five (5) working days to remedy any non-payment. In the event that the Customer still has not paid any undisputed fees Sensical may upon five (5) working days’ written notice to Customer suspend and/or terminate the affected Service under Section 3. Such interruption or termination will not relieve the Customer of the obligation to pay the amount owed plus interest and early cancellation fees in accordance with Section 3.
2.5. With effect from the expiry of the Initial Term, Sensical shall be entitled to revise the charges to reflect then current standard rates, by giving the Customer not less than thirty (30) days prior written notice.
3.1. The Customer may cancel any or all of the Service(s), or any component of a Service by providing notice to Sensical at email@example.com at any time. If notice is received within 7 days of the start of the then-current Term then except for any unrecoverable items (inter alia domain registration and SSL certificates) Sensical shall refund any setup or period fees paid by the Customer in relation to the then-current Term. If notice is received after 7 days of the start of the then-current term the Customer shall pay to Sensical all charges for the applicable Service provided through the effective date of such cancellation plus a lump sum cancellation charge of 100% of the scheduled payments for the Service for each of the months remaining in the then-current Term.
3.2. Sensical reserves the right to suspend Services to Customer upon the occurrence of any of the following events:
(i) Customer fails to pay undisputed Fees due in accordance with the notice procedure set out in section 2; or
(ii) Customer violates the terms of Sensical’s AUP as stated in Schedule 1. Sensical may suspend Services if any AUP violation harmful to the Sensical network or its customers occurs and continues uncured for more than 4 working hours after written notice thereof from Sensical. Such suspension will not relieve the Customer of the obligation to pay Recurring Fees during the period of suspended service. In the event of suspension due to AUP violation, service will be reinstated immediately upon remedy by the Customer of the violation. For the avoidance of doubt, the intention of this clause is solely to protect quality of service for all customers.
3.3. Either party may terminate this Agreement with immediate effect by written notice:-
(i) in the event that an administrator is appointed or an administration order is made, or a receiver or administrative receiver is appointed over any of the other party’s assets or undertakings or a winding-up resolution or petition is passed (otherwise than for the purposes of reconstruction or amalgamation); or
(ii) if the other party is in material default of a material obligation under this Agreement and in the case of any breach capable of remedy fails to remedy the breach within a period of thirty (30) days after receipt of written notice to do so from the non-defaulting party.
3.4. Following termination of this Agreement and without prejudice to any rights or remedies available to Sensical, the Company shall pay to Sensical on demand all arrears of Charges due up to the date of termination under this Agreement or as a result of termination of this Agreement. This clause shall continue to be binding on the Customer notwithstanding termination of this Agreement.
3.5. Any termination of this Agreement shall be without prejudice to the accrued rights of the parties on the date of such termination, and to the continuation in force of all provisions of this Agreement which expressly or implicitly survive such termination.
4.1. Sensical warrants to the Customer that it will provide all services ordered with reasonable care and skill but Sensical does not warrant or undertake that this will cause the services to operate without fault or interruption.
4.2. Sensical cannot guarantee a product or service provided by a third party for and on behalf of the Customer, however, will endeavour to act in the best interest of the Customer.
4.3. Sensical shall use all reasonable endeavours to correct as soon as is reasonably practicable any fault notified by the Customer.
4.4. The Customer warrants and undertakes that it shall in its use of the services comply with Sensical's Acceptable Usage Policy in Schedule 1 of this Agreement, any relevant legislative and regulatory provisions and shall not use the services for any illegal purpose and shall indemnify Sensical in respect of any liability incurred as a result of a breach of this clause
4.5. In no event will Sensical or its network service suppliers be liable for any damages, including but not limited to loss of data, loss of revenue or profits, or for any other special, incidental, indirect or consequential damages, arising out of or in connection with the use of or inability to use services or products provided hereunder.
4.6. Sensical and its network service suppliers disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. Neither Sensical or its network service suppliers will be liable for unauthorised access to or alteration, theft or destruction of end user's data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of Sensical's or its network service suppliers negligence.
4.7. The Customer shall indemnify Sensical and shall hold Sensical harmless against any and all losses, damages, costs and expenses arising from or in connection with any claims or proceedings brought by third parties against Sensical in respect of or arising directly or indirectly from the resale of services.
5.1. Any notice required or authorised to be given may be delivered by post to the address stated for that party and shall be deemed to have been served 72 hours after posting.
6.1. In the case of any Customer who is an individual about whom Sensical processes personal data (as defined by the Data Protection Act), Sensical may use such data to provide the Customer with details of Sensical's products and services which Sensical deems may be of interest to the Customer. Sensical warrants that it will refrain from using any Customer's data as detailed in this clause if the Customer requests Sensical to do so.
6.2. Sensical warrants that it will not pass on any personal data about its Customers to third parties for commercial gain or otherwise with the exception of to UK government agencies when required to do so by law.
7.1. The Customer shall raise to Sensical any complaint relating to the performance of the duties of Sensical outlined in this Agreement. In the first instance the Customer shall raise the complaint by way of email to firstname.lastname@example.org. Sensical shall acknowledge any complaint within 3 working days. Sensical shall make best endeavours to address the complaint.
7.2. If the Customer has raised a complaint to Sensical and Sensical has not addressed the complaint to the satisfaction of the Customer within a reasonable time the Customer shall be entitled to escalate the complaint to a Director of Sensical in writing at the address published on the 'Contact Us' page of the Sensical website.
8.1. Sensical shall raise any complaint relating to the performance of the duties of the Customer outlined in this Agreement to the attention of a Director or similar officer of the Customer.
9.1. All contracts are governed by and constructed in accordance with English Law and the parties irrevocably agree to the exclusive jurisdiction of the English courts
SCHEDULE 1 - ACCEPTABLE USE POLICY
The following Acceptable Use Policy ("AUP") is intended to be a guideline to Sensical's stance against violations of the accepted norms of the internet community and is not intended to be exhaustive. Sensical reserves the right at all times to protect its reputation and goodwill. The Customer and or end user must not use Sensical's service for any of the following purposes:
1. To commit or encourage a criminal offence;
2. To send or receive any material which is offensive, or which maybe construed as abusive, indecent, obscene or menacing, or in breach of confidence, copyright, privacy or any other rights;
3. Do anything which is contrary to the acceptable use policies of any connected networks and Internet standards;
4. Insert or knowingly or recklessly transmit or distribute a virus;
5. Hack into or disrupt any aspect of the Service (The Customer and or end user must not use their account for the purpose of obtaining unauthorised access to any computer or service, or to circumvent, or attempt to seek to circumvent, any of the security safeguards of Sensical's or any of its suppliers or users);
6. Cause annoyance to subscribers or others;
7. Use any domain name or mailbox name so as to infringe upon the rights of any other person whether in statute or common law, in a corresponding trade mark or name;
8. Send any unsolicited advertising or other promotional material, commonly referred to as "spam" by email or by any other electronic means, and the Customer and or end user must not post articles of a commercial nature to newsgroups which are inappropriate to the subject of the article.
9. Send any unsolicited emails advertising a site or service on Sensical's or any other providers network, or allow any third party to do so.
10. Send email or any other type of electronic message with the intention or result of affecting the performance or functionality of any computer facilities;
11. The Customer and or end user must not email a person after they have specifically requested that do not want to be mailed. This applies to any automated mail system employed by the Customer or end user.
12. The Customer and or end user must not send email or post articles with headers modified in such a way as to disguise the true source of such mail or article.
13. The Customer and or end user must ensure that his or her equipment cannot be used to relay mail for a third party.
14. Where applicable the Customer and or end user is responsible for maintaining the confidentiality of their username and the password assigned to them on registration. As a result they are fully responsible for all activities which occur under them. They must notify Sensical immediately if they become aware of any unauthorised use of their username and password.