ekmPowershop is one of a number of internet related services which are provided by Ekm Systems. The following terms and conditions apply in respect of the provision of all such internet related services which Ekm Systems may provide to the Customer, not simply ekmPowershop.
Ekm Systems may vary these terms and conditions when it considers it necessary to do so. However, Ekm Systems shall provide the Customer with as much notice as is reasonably possible (which may be by email and/or a pop-up splash screen when the Customer logs into any Ekm Website and/or any Ekm Application) and, in any event no less than 30 days' notice (save where such variation results from a change in applicable laws or regulations). The Customer is responsible for regularly reviewing these terms, conditions and notices. Continued access to or use of the Services provided by Ekm Systems after any such change shall constitute consent to such change. Unless explicitly stated otherwise, any new services or features that change or improve the Services shall be subject to these Conditions, as modified from time to time.
1.1 Definitions. In these Conditions, the following definitions apply:
"Business Day" means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
"Charges" means the charges payable by the Customer for the supply of the Services in accordance with condition 7.
"Commencement Date" has the meaning set out in condition 2.2.
"Conditions" means these terms and conditions as amended from time to time in accordance with condition 14.10.
"Contract" means the contract between Ekm Systems and the Customer for the supply of Services in accordance with these Conditions.
"Customer" means the person or firm who purchases Services from Ekm Systems.
"Customer Data" means any data held within any Deliverable, including any data relating to clients and/or customers of the Customer.
"Customer Default" means any act or omission by the Customer (or one of its sub-contractors or agents) or failure by the Customer (or one of its sub-contractors or agents) to perform any relevant obligation.
"Customer Feedback" means any feedback and/or suggestions which the Customer may provide to Ekm Systems from time to time in relation to the Services and other services which Ekm Systems might consider offering in the future.
"Customer Materials" means any and all instructions, requirements, specifications, materials and/or other content which the Customer provides to Ekm Systems (which shall include any and all content which the Customer uploads into any Ekm Application or onto any hosting environment provided by Ekm Systems) from time to time (other than any Customer Feedback).
"Customer Payment Service Providers" means the third party service providers necessary to enable the Customer to receive payments via any website hosted by Ekm Systems as part of any Services, which shall include any and all merchant acquirers and internet payment service providers (which may be providing payment gateways).
"Customer's Log-In Details" means the username and password details required for the Customer to log-in to any Ekm Website and/or any Ekm Application.
"Deliverables" means: (i) in respect of any Ekm Standard Services, any deliverables or other output created as a result of the use by the Customer of such services (by way of example, in respect of ekmpowershop, the Deliverables shall mean: (a) the e-commerce website which the Customer creates using the applicable Ekm Application; and (b) the hosting of such website); and (ii) in respect of any Ekm Bespoke Services, the deliverables set out in the Quotation which are to be produced by Ekm Systems for the Customer.
"Ekm Application" means an application made available (via the internet as a hosted application service, or by any other means) by Ekm Systems to the Customer as part of the provision of a Service.
"Ekm Bespoke Services" means any one or more of Ekm Systems' service offerings which requires Ekm Systems to undertake bespoke work on behalf of the Customer, including: ekmwebdesign.
"Ekm Materials" means any and all materials, applications and/or other content made available to the Customer by Ekm Systems in providing any Service.
"Ekm Standard Services" means any one or more of Ekm Systems' standard service offerings, including: (i) ekmpowershop; (ii) ekmresponse; (iii) ekmdigitalvault; (iv) ekmsitebuilder; (v) ekmpinpoint; (vi) ekmcompass; and (vii) ekmhosting.
"Ekm Systems" means Ekm Systems Ltd registered in England and Wales with company number 04774091 and with registered address at Unit 6 Arkwright Court, Commercial Road, Darwen, Lancashire BB3 0FG.
"Ekm Website" means, in respect of a particular Service, the applicable website operated by Ekm Systems for such service. By way of example, in respect of ekmpowershop, the Ekm Website means the website accessed via the url: http://www.ekmpowershop.com/.
"Inappropriate Content" means content which does or may infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or promoting violence of any kind, blasphemous, breaches any third party Intellectual Property Rights (including copyrighted works, commercial audio, video, music files, pirated software, ROMS, emulators, freaking, hacking, password cracking, IP spoofing, etc., and encrypting of any of the above, or any material which provide "links to" or "how to" information about such material) or constitutes harassment).
"Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"Order" means: (i) in respect of any Ekm Standard Services, the Customer's order for one or more of such services made by completing the "Sign Up" process via the Ekm Website; and (ii) in respect of any Ekm Bespoke Services, the Customer's written acceptance of Ekm Systems' Quotation for the same.
"Quotation" means, following receipt of Requirements for the provision of Ekm Bespoke Services from the Customer: (i) EKM Systems' description of the Ekm Bespoke Services (which may or may not be similar or identical to those requested within the Requirements); together with (ii) Ekm Systems' cost quotation for the provision of such Ekm Bespoke Services.
"Requirements" means the Customer's requirements for the provision of Ekm Bespoke Services by Ekm Systems which the Customer has made known to Ekm Systems prior to the creation of a Quotation;
"Service Levels" means: (i) in respect of any Ekm Standard Services, the service levels described on the relevant Ekm Systems website; and (ii) in respect of any Ekm Bespoke Services, the service levels set out in the applicable Quotation.
"Services" means the Ekm Standard Services and/or the Ekm Bespoke Services (as may be ordered from time to time by the Customer).
"Specification" means: (i) in respect of any Ekm Standard Services, the specification of the Services as more particularly described in the "overview" section of the relevant Ekm Website; and (ii) in respect of any Ekm Bespoke Services, the specification set out in the applicable Quotation.
"Virus" means any thing or device (including any software, code, file or programme) which may: (i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or (iii) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Construction. In these Conditions, the following rules apply: (i) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (ii) a reference to a party includes its successors or permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; (iv) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and (v) a reference to writing or written includes faxes and e-mails.
2.1The Order constitutes an offer by the Customer to purchase the applicable Services in accordance with these Conditions.
2.2The Order shall only be deemed to be accepted: (i) in respect of any Ekm Standard Services, when Ekm Systems provides online access to the applicable services and has received the initial payment from the Customer in respect of the same; and (ii) in respect of any Ekm Bespoke Services, when Ekm Systems issues written acceptance of the Order, at which point and on which date the Contract shall come into existence ("Commencement Date").
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Ekm Systems which is not set out in the Contract.
2.4 Each Ekm Website includes certain content which was not created by Ekm Systems, including: (i) details of/links to other websites; (i) details of customer testimonials; and (iii) blogs written by third parties (including customers). This content is included for information only but is not intended to make any representations with regard to the Services. The parties acknowledge that they shall not form part of the Contract or have any contractual force.
2.5 Any advertising issued by Ekm Systems, and any descriptions or illustrations contained in Ekm Systems' catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.1 Ekm Systems shall supply the Services (detailed in an Order which Ekm Systems has accepted) to the Customer in accordance with the Specification and the Service Levels in all material respects. The parties acknowledge that the following applies in respect of the application of the Service Levels:
3.1.1 The Service Level availability measure refers to an access point on Ekm Systems' hosting provider's backbone network. It does not apply to the portion of the circuit that does not transit the hosting provider's backbone network, as the Customer is responsible for its own internet access. Availability does not include scheduled or emergency maintenance events, Customer or third party caused outages or disruptions, or outages or disruptions attributable in whole or in part to force majeure events within the meaning of condition 14.3.
3.1.2 All measurements are performed at five-minute intervals and measure the availability of a test page within 30 seconds. Availability measurement shall be carried out by Ekm Systems and is based on the monthly average percentage availability, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month.
3.2 The parties agree that any performance timescales specified by Ekm Systems shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Ekm Systems shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Ekm Systems shall notify the Customer in any such event.
3.4 Ekm Systems warrants to the Customer that:
3.4.1 the Services will be provided using reasonable care and skill; and
3.4.2 it has the right to make available the Ekm Websites, the Ekm Applications and Ekm Materials for use by the Customer in the manner permitted under these Conditions.
3.5 If Ekm Systems' performance of any of its obligations under the Contract is prevented or delayed by any Customer Default:
3.5.1 Ekm Systems shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Ekm Systems' performance of any of its obligations;
3.5.2 Ekm Systems shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Ekm Systems' failure or delay to perform any of its obligations as set out in this condition 3.5; and
the Customer shall reimburse Ekm Systems on written demand for any costs or losses sustained or incurred by Ekm Systems arising directly or indirectly from the Customer Default.
3.6 Where the Services include an obligation for Ekm Systems to register a domain name, this will require Ekm Systems to use the services of a third party. In such circumstances, the Customer acknowledges and agrees that the registration of such domain names will be subject to the relevant registrar's terms and conditions. In respect of Ekm System's current third party providers, these can be found through the following links:
|UK Domain Names||Nominet|
|Other Domain Names||Total Registrations|
Any complaints regarding a registration or usage of a domain name should be made to Ekm Systems' Customer Support team on 0333 004 0333 or emailed to supportekmsystems.co.uk.
4.1 Ekm Systems agrees to provide the Services to the Customer solely for the Customer's business purposes.
4.2 The Customer shall not:
4.2.1 attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Ekm Materials or Ekm Applications except to the extent expressly set out in these Conditions or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
4.2.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Ekm Materials or Ekm Applications, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
4.2.3 access all or any part of the Services in order to build a product or service which competes with Services;
4.2.4 use the Services to provide services to third parties (or any subsidiary or holding company of the Company) whether or not for profit;
4.2.5 subject to condition 14.4.2, transfer, temporarily or permanently, any of its rights under a Contract; or
4.2.6 attempt to obtain, or assist third parties in obtaining, access to the Services.
4.3 The Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Services and notify the Supplier promptly of any such unauthorised access or use. The Customer shall ensure that the Customer Log-in Details are kept secure and confidential at all times.
4.4 High Resource Usage: In providing the Services, Ekm Systems maintains very large ratios of bandwidth and disk space per customer. Currently, Ekm Systems has implemented an "unlimited" bandwidth and disk space usage policy. However, should Ekm Systems consider that the Customer is using server resources to such an extent that it jeopardises server performance and resources for other customers ("Excessive Resource Usage"), Ekm Systems reserves the right to suspend or terminate immediately the provision of the Services to the Customer. Such a suspension would only be implemented in extreme circumstances and is intended to prevent the misuse of the Services and/or Ekm Systems' servers. For the avoidance of doubt, bandwidth usage which equals or exceeds 45Gb in any month (or a pro-rata proportion of the same on a daily basis) shall constitute Excessive Resource Usage for the purposes of this condition.
5.1 Ekm Standard Services
The Ekm Standard Services are standard services and, as such, are automatically accepted by the Customer when the applicable Order is made.
5.2 Ekm Bespoke Services
5.2.1 On delivery of each Deliverable, the Customer shall be able to access the Deliverable in the manner specified in the Quotation. Within five days of Ekm Systems notifying the Customer of such access being made available, the Customer shall review the Deliverable to confirm that it functions in material conformance with the Specification. If the Customer believes that the Deliverable fails in any material respect to conform with the Specification, the Customer shall give the Supplier a detailed description of any such non-conformance ("Defect"), in writing, within the five-day review period ("Defect Notice").
5.2.2 A Deliverable shall be deemed accepted:
188.8.131.52 If a Defect Notice is not received within the five-day review period;
184.108.40.206 if the Customer uses any part of the applicable Deliverable other than for test purposes, notwithstanding any Defect Notice; or
220.127.116.11 where Ekm Systems can show that the relevant Deliverable has been produced in accordance with the Specification (and this shall automatically be the case where Ekm Systems can demonstrate that the Deliverable passes any acceptance tests which are expressly set out in the Quotation), notwithstanding any Defect Notice.
5.2.3 Where any Defect results from a Customer Default ("Non-Ekm Defect"), the Deliverable shall be deemed accepted notwithstanding any Defect Notice. Ekm Systems shall provide assistance reasonably requested by the Customer in remedying any Non-Ekm Defect by supplying additional services or products. The Customer shall pay Ekm Systems in full for all such additional services and products at Ekm Systems' then current fees and prices.
6.1 The Customer shall only use the Ekm Websites, Ekm Applications and Ekm Materials in the manner permitted by these Conditions.
6.2 Customer Materials
6.2.1 Ekm Standard Services: All Customer Materials must be provided in the format required by the applicable Ekm Website/Ekm Application.
6.2.2 Ekm Bespoke Services: Unless agreed otherwise in writing, all text will be provided by the Customer in electronic format (ASCII text files delivered on CD via overnight courier or via e-mail or FTP) and that all photographs and other graphics will be provided physically in high quality print suitable for scanning or electronically in .gif, .jpeg or .tiff format. Additional expenses may be incurred and will be invoiced accordingly for corrective work, conversion of media or outside facility charges. Although a reasonable attempt shall be made by Ekm Systems to return to the Customer any images or printed material provided in respect of the provision of the Services, such return cannot be guaranteed.
6.2.3 The Customer shall ensure that the Customer Materials do not contain any Inappropriate Content or Viruses or cause any Deliverables to contain any Inappropriate Content or Viruses. For the avoidance of doubt, Customers should note that Ekm Systems do permit the use of its Services for Customers undertaking activity in the "adult entertainment industry", provided there are no pornographic images or other content which Ekm Systems may consider offensive.
6.2.4 To the extent that any of the Customer Materials are not owned outright by the Customer, free of any encumbrances, the Customer shall ensure that, before any such Customer Materials are provided to Ekm Systems (including by way of upload into any Ekm Website or Ekm Application) it has obtained all appropriate third party licences and consents necessary for the same.
6.3 The Customer shall be solely responsible for the use and/or operation of the Deliverables. In particular, the Customer shall:
6.3.1 ensure that, at all times, the use and/or operation of the Deliverables is in compliance with all applicable laws and regulations which may apply to the same;
6.3.2 obtain and maintain all necessary licences, permissions and consents which may be required in respect of the use and/or operation of the Deliverables before any such use and/or operation commences;
6.3.3 put in place any third party contracts with Customer Payment Service Providers which may be required; and
6.3.4 where taking payment via any Deliverable, ensure that it has received appropriate funds through its Customer Payment Service Providers before performing any services or despatching any goods.
The Customer's attention is particularly drawn to the rules of the Payment Card Industry (i.e. the rules applying to the taking of payments on cards such as Visa, MasterCard, Maestro and EuroPay). The Customer should note that, in providing the Services, Ekm Systems is not processing, transmitting or storing any payment card details. This is undertaken by third party payment gateways (provided by Customer Payment Service Providers).The Customer must ensure it is compliant with all the applicable rules put in place by the Payment Card Industry. Ekm Systems shall have no responsibility or liability whatsoever for the acts or omissions of any Customer Payment Service Provider.
6.4 Where the Deliverable is a website, the Customer acknowledges that Ekm Systems has no control over any content placed on such website by visitors to such site and does not purport to monitor the content of the site. Ekm Systems reserves the right to remove content from any such website which it is hosting where it reasonably suspects such content is Inappropriate Content. Ekm Systems shall notify the Customer if it becomes aware of any allegation that content on the website may be Inappropriate Content (unless it is prevented from doing so by law).
6.5 The Customer shall co-operate with Ekm Systems in all matters relating to the Services and shall provide Ekm Systems with such information and materials as Ekm Systems may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects.
6.6 Where the Deliverables under a Contract for the provision of Ekm Bespoke Services include the creation of a website to be installed on a third-party server, the Customer must grant Ekm Systems the necessary access to the Customer's storage directories, and those directories must be accessible via FTP. Depending on the specific nature of the project, other resources might also need to be configured on the server.
6.7 Responsibility for Backing Up Data: Where stated as part of the relevant Service, Ekm Systems shall make periodic back-ups of the Deliverables. The Customer acknowledges that such back-ups may be made outside of the UK and outside of the EEA. However, the Customer must ensure that any and all data, the loss of which may cause financial or other loss, is backed-up by the Customer.
6.8 Payment Card Information: The Customer acknowledges that it must not use the Services to store payment card information within any element of the credit card information after processing it.
6.9 Customer Support: Before providing any customer support, for security reasons Ekm Systems requires the Customer representative to be authenticated. The Customer acknowledges that Ekm Systems has the right to deny the provision of customer support if authentication is not successful.
7.1 Ekm Standard Services
7.1.1 The Charges for the Ekm Standard Services shall be as set out on the applicable Ekm Website at the time the applicable Order is accepted by Ekm Systems in accordance with condition 2.2.
7.1.2 However, Ekm Systems reserves the right to change such Charges when it considers it necessary to do so. However, Ekm Systems shall provide the Customer with as much notice as is reasonably possible and, save where a change in applicable laws or regulations affects the cost to Ekm Systems in providing a Service, no less than 30 days' notice of the same.
7.1.3 Invoicing: Ekm Systems shall invoice the Customer via the relevant Ekm Website.
7.1.4 Payment: Ekm Systems shall take payment automatically following invoicing using the payment choice chosen by the Customer via the relevant Ekm Website.
7.2 Ekm Bespoke Services
7.2.1 The Charges for the Ekm Bespoke Services shall be as set out on the applicable Quotation, which shall be valid for a period of 30 days from the date of such Quotation. However, the Charges set out in any Quotation which has not yet formed a Contract shall not be binding unless and until the applicable Order is accepted by Ekm Systems in accordance with condition 2.2. Any additional Ekm Bespoke Services which may be provided at the request of the Customer shall be on a time and materials basis at Ekm Systems' then current standard rates.
7.2.2 However, Ekm Systems reserves the right to change such Charges in the following circumstances by notice in writing:
18.104.22.168 Ekm Systems may change any of the Charges at any time where a change in applicable laws or regulations affects the cost to Ekm Systems in providing a Service;
22.214.171.124 Ekm Systems may change the Charges for any ongoing maintenance services on no less than 14 days' written notice to the Customer.
7.2.3 Invoicing: The invoicing procedures for the Ekm Bespoke Services shall be as set out on the applicable Quotation.
7.2.4 Payment: Unless stated to the contrary, Ekm Systems shall require payment of the Charges in cleared funds prior to the commencement of the Ekm Bespoke Services. Where otherwise agreed in any Quotation, the Customer shall pay each invoice submitted by Ekm Systems by valid payment card (which is accepted by Ekm Systems), cheque or bank transfer in full and in cleared funds within 30 days of the date of the invoice but, in any event, prior to release of the applicable Deliverables. Time for payment shall be of the essence of the Contract. Without limiting any other right or remedy of Ekm Systems, if any Deliverable has been completed but payment has not been made, Ekm Systems may in its discretion choose not to release such Deliverable to the Customer.
7.3 Special "new customer" offers/discounts to the Charges are only available to new customers. Existing and/or previous customers are not eligible for these offers.
7.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being ("VAT") unless expressly stated to the contrary. Where any taxable supply for VAT purposes is made under the Contract by Ekm Systems to the Customer, the Customer shall, on receipt of a valid VAT invoice from Ekm Systems, pay to Ekm Systems such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.5 Failure to Pay by the Due Date: Without limiting any other right or remedy of Ekm Systems, if the Customer fails to make any payment due to Ekm Systems under the Contract by the due date for payment ("Due Date"), Ekm Systems shall have the right to charge interest on the overdue amount at the rate of 8% per annum above the then current base rate of Barclays Bank Plc accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
7.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Ekm Systems in order to justify withholding payment of any such amount in whole or in part. Ekm Systems may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Ekm Systems to the Customer.
8.1 The Services, Ekm Websites and Ekm Applications: All Intellectual Property Rights in or arising out of or in connection with the Services (including the Ekm Websites and the Ekm Applications) shall be owned by Ekm Systems. Except as expressly stated in these Conditions, these Conditions do not grant the Customer any rights to, or in, any such Intellectual Property Rights.
8.2 Ekm Materials: All Ekm Materials are the exclusive property of Ekm Systems.
8.3 Customer Materials: The Customer shall own all rights, title and interest in and to all of the Customer Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Materials. The Customer grants to Ekm Systems a royalty free, non-exclusive, worldwide, non-exclusive licence to use the Customer Materials to the extent necessary for Ekm Systems to perform the applicable Services.
8.4 Customer Data:
8.4.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants to Ekm Systems a royalty free, non-exclusive, worldwide, non-exclusive licence to use the Customer Data to the extent necessary for Ekm Systems to perform the applicable Services.
8.4.2 Ekm Systems shall follow its backing-up procedures described in condition 6.7. In the event of any loss or damage to Customer Materials or any loss of any data relating to , the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Ekm Systems. Ekm Systems shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
8.5.1 All Intellectual Property Rights in any Deliverables (save for any Customer Materials or Customer Data contained in the same) shall be the property of Ekm Systems, and Ekm Systems hereby grants to the Customer a non-exclusive licence to such Intellectual Property Rights solely for the purposes receiving the benefit of the applicable Services.
8.5.2 Should the Customer wish to use any Deliverable (or any part of any Deliverable, such as artwork and/or graphic logos designed by Ekm Systems) beyond the scope originally intended, Ekm Systems may, at its discretion, agree to do so under separate agreement.
9.1 If Ekm Systems processes any personal data (as defined in the Data Protection Act 1998) on the Customer's behalf when performing its obligations under any Contract, the parties record their intention that the Customer shall be the data controller and Ekm Systems shall be a data processor and in any such case:
9.1.1 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Ekm Systems so that Ekm Systems may lawfully process the personal data in accordance with this agreement on the Customer's behalf;
9.1.2 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
9.2 Unless indicated otherwise on within the relevant Order, the Customer hereby agrees to allow Ekm Systems to collect and process data and information regarding the Customer's use of the Services and to provide this to: (i) sub-contractors and/or companies affiliated with Ekm Systems for the purposes of marketing Ekm Systems' (or Ekm Systems' affiliated companies) services, or other related services; (ii) for any other purpose connected with the Agreement; or (iii) any governmental or regulatory body for the purpose of Ekm Systems' compliance with any applicable laws and regulations. Ekm Systems will provide the Customer on request with details of all such information held by Ekm Systems, and will modify any information that the Customer advises is incorrect.
9.3 Ekm Systems may, from time to time, send the Customer information relating to the services of Ekm Systems and/or those of other companies that Ekm Systems feels may be of interest to the Customer. If the Customer does not want to receive such information, it should inform Ekm Systems in writing.
11.1 Nothing in these Conditions shall limit or exclude Ekm Systems' liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
11.1.2 fraud or fraudulent misrepresentation; or
11.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.2 Subject to condition 11.1:
11.2.1 Ekm Systems shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
126.96.36.199 any loss of data (including any Customer Data) as this should be backed-up/archived by the Customer;
188.8.131.52 any loss of Customer Materials, as these should be backed-up/archived by the Customer;
184.108.40.206 any breach of security (provided Ekm Systems has used its reasonable endeavours to avoid the same);
220.127.116.11 any loss of profit;
18.104.22.168 any loss of business; or
22.214.171.124 any indirect or consequential loss;
arising under or in connection with the Contract;
11.2.2 Ekm Systems' liability for any breach of Service Levels shall be limited to a maximum of a refund of the Charges for the applicable month in which the failure occurred. Refund requests should be sent via email to: refundsekmsystems.co.uk.
11.2.3 Ekm Systems' total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Services provided under the applicable Contract in a 12 month period.11.3 Indemnities:
The Customer shall indemnify Ekm Systems from and against any and all damages, losses, costs and expenses incurred by Ekm Systems arising as a result of:
11.3.1 any claims relating the use and/or operation of any Deliverable (save for any claim that any Deliverable infringes the Intellectual Property Rights of any third party), including by way of example, any claims resulting from any product or services which the Customer may sell through any Deliverable;
11.3.2 any claim that any of the Customer Materials or Customer Data infringes the Intellectual Property Rights of any third party;
11.3.3 any claim that any of the Customer Materials or Customer Data constitutes Inappropriate Content; and
11.3.4 any Virus which is uploaded to Ekm Systems from the Customer as a result of the provision of the Services.
11.4 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.5 This condition 11 shall survive termination of the Contract.
12.1 Without limiting its other rights or remedies, Ekm Systems may terminate the Contract with immediate effect by giving written notice to the Customer if:
12.1.1 if the Customer fails to pay any amount due under this Contract on the due date for payment
12.1.2 the Customer commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach;
12.1.3 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
12.1.4 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
12.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
12.1.6 the Customer (being an individual) is the subject of a bankruptcy petition or order;
12.1.7 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
12.1.8 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
12.1.9 a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.1.10 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Customer;
12.1.11 any event occurs or proceeding is taken with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 12.1.3 to condition 12.1.10 (inclusive);
12.1.12 the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
12.1.13 the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.2 Without limiting its other rights or remedies, Ekm Systems may terminate the Contract with immediate effect (and shall, where permitted to to so under all applicable laws and regulations, provide notice to the Customer as soon as reasonably practicable thereafter) if:
12.2.1 Ekm Systems is required by an appropriate authority or other third party to cease to provide the Ekm Services to the Customer, for example, where Ekm Systems has received an order from the Police;
12.2.2 any content which Ekm Systems is hosting as part of the Services (which shall include any website hosted by Ekm Systems) is the subject of a denial of service attack or a distributed denial of service attack (or any event having a similar effect to the aforementioned); or
12.2.3 the Customer or any of its agents or representatives behaves towards Ekm Systems in a manner which Ekm Systems considers to be abusive or threatening in any manner.
12.3 Without limiting its other rights or remedies, each party shall have the right to terminate for convenience in the following circumstances only:
12.3.1 a Contract for the provision of Ekm Standard Services by giving the other party no less than 7 days' notice (in writing or by contacting our customer services team over the phone) before the next billing date;
12.3.2 a Contract for the provision of Ekm Bespoke Services prior to the completion/release of a Deliverable provided that:
126.96.36.199 where Ekm Systems initiates such termination, Ekm Systems agrees to reimburse the Customer in full either by cheque within 30 days of termination, or by cancelling/refunding any payment card transaction(s) and Ekm Systems shall have no further obligations to the Customer;
188.8.131.52 where the Customer initiates such termination (which must be done by calling Ekm Systems cancellation team or in writing to the office address. Email cancellation requests will not be accepted):
(a) if the Customer terminates the Contract within 48 hours after acceptance by Ekm Systems, Ekm Systems shall refund twenty five (25%) percent of the total down payment received and Ekm Systems shall have no further obligations to the Customer;
(b) if the Customer terminates the Contract 48 hours or more after acceptance by Ekm Systems, Ekm Systems may charge the Customer for design work performed prior to the date of notice of cancellation based, in Ekm Systems' sole discretion upon either (i) the number of hours of work undertaken at Ekm Systems' standard hourly rates; or (ii) for all accepted milestones and a pro-rated amount for partially completed deliverables.
12.4 Without limiting its other rights or remedies, Ekm Systems shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and Ekm Systems if the Customer becomes subject to any of the events listed in condition 12.1.1 to condition 12.1.13 or condition 12.2.1 or 12.2.2, or Ekm Systems reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
On termination of the Contract for any reason:
13.1 Ekm Systems shall be entitled to delete all data, files, or other information that is stored by Ekm Systems at that time (or within a reasonable time thereafter) which shall include all Deliverables, Customer Materials and Customer Data;
13.2 the Customer shall immediately pay to Ekm Systems all of Ekm Systems' outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Ekm Systems shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.3 the Customer shall return any Deliverables which have not been fully paid for. If the Customer fails to do so, then Ekm Systems may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
13.4 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
13.5 conditions which expressly or by implication have effect after termination shall continue in full force and effect.
The Customer may cancel their products and services with Ekm Systems by giving at least 7 days notice either by telephone to Ekm Systems Cancellation Department or via writing to Ekm Systems Head Office. Email cancellation requests will not be accepted.
14.1 Marketing & Publicity: Ekm Systems reserves the right to refer to the Customer and/or feature the Customer's name, logos, product or service brand names, and/or any Deliverable in its own marketing, advertising and/or general promotion (including use on the Ekm Websites).
14.2 Customer Feedback
14.2.1 Ekm Systems values Customer Feedback. This greatly assists Ekm Systems to continually improve the services for the Customer and other customers. Therefore, where the Customer provides Customer Feedback, it warrants and represents that it owns or otherwise controls the rights necessary to do so and it grants Ekm Systems and its affiliated companies permission to:
184.108.40.206 use, modify, copy, distribute, transmit, publicly display, publicly perform, reproduce, publish, sublicense, create derivative works from, transfer, or sell any such Customer Feedback; and
220.127.116.11 sublicense to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to such Customer Feedback.
No compensation will be paid with respect to Ekm Systems' use of the Customer Feedback. Ekm Systems is under no obligation to post or use any materials the Customer may provide and may remove such materials at any time at Ekm Systems' sole discretion.
14.3 Force majeure:
14.3.1 For the purposes of this Contract, "Force Majeure Event" means an event beyond the reasonable control of Ekm Systems including strikes, lock-outs or other industrial disputes (whether involving the workforce of Ekm Systems or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. For the avoidance of doubt, the Customer acknowledges that a failure on the part of Ekm Systems' internet connection providers shall constitute a Force Majeure Event.
14.3.2 Ekm Systems shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14.3.3 If the Force Majeure Event prevents Ekm Systems from providing any of the Services for more than 4 weeks, Ekm Systems shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14.4 Assignment and subcontracting:
14.4.1 Ekm Systems may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
14.4.2 The Customer shall not, without the prior written consent of Ekm Systems, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.5.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
14.5.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
14.5.3 This condition 14.5 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this condition, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
14.6.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.6.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.7.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.7.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.8 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.9 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.10 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Ekm Systems.
14.11 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
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