The following agreement (“Agreement”) contains the
complete terms and conditions that will apply between you
(“Customer”) and Go Ecommerce Limited, incorporated
and registered in England and Wales with company number 05347272
whose registered office is at 1 Approach Road, London, SW20 8BA,
United Kingdom (Host).
(1) you read and agree to the terms and conditions of the
Agreement and indicate your acceptance of the terms and
conditions of the Agreement by clicking “Sign Up" at
the page at www.go-ecommerce.com; and
(2) you fully and correctly submit all information requested of
you in the following Sign Up Form; and
(3) you submit proper payment pursuant to Section 5.1, of this
Agreement.
This Agreement shall become effective on the Sign Up date
is received and accepted by Go Ecommerce.
The parties have agreed that the Host shall provide the Customer
with website hosting and related services on the terms and
conditions set out in this agreement.
AGREED TERMS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause
apply in this agreement.
Business Day: any day (other than a Saturday or
Sunday) when banks are generally open for normal business in
London, United Kingdom.
Change Control Procedures: the procedures set
out in 22.2.
Charges: the charges in respect of the Services
set out in 22.2, together with any charges arising from the
Change Control Procedures.
Confidential Information: has the meaning given
in clause 14.1.
Force Majeure Event: has the meaning given in
clause 13.1
Intellectual Property Rights: all intellectual
property rights wherever in the world arising, whether registered
or unregistered (and including any application), including
copyright, know-how, confidential information, trade secrets,
business names and domain names, trade marks, service marks,
trade names, patents, petty patents, utility models, design
rights, semi-conductor topography rights, database rights and all
rights in the nature of unfair competition rights or rights to
sue for passing off.
Materials: the content provided to the Host by
the Customer from time to time for incorporation in the Site.
Non-Host Defects: the defects described in
clause 4.3.
Services: the hosting and related services to be
provided pursuant to this agreement as described in 22.2.
Site: the website at go-ecommerce.com to be
hosted by the Host pursuant to this agreement.
Site Software : the software for the Site
commissioned by the Customer as described in Schedule 1 Part 1.
Site Specification: the specification for the
Site set out in Schedule 1 Part 2.
Visitor: a visitor to the Site.
1.2 Clause and schedule headings do not affect the interpretation
of this agreement.
1.3 References to clauses and schedules are (unless otherwise
provided) references to the clauses and schedules of this
agreement.
1.4 In the event and to the extent only of any conflict between
the clauses and the schedules, the clauses shall prevail.
1.5 Words in the singular include the plural and in the plural
include the singular.
1.6 A reference to a particular law is a reference to it as it is
in force for the time being taking account of any amendment,
extension, application or re-enactment and includes any
subordinate legislation for the time being in force made under
it.
1.7 References to including and include(s) shall be deemed to
mean respectively including without limitation and include(s)
without limitation.
1.8 References to content include any kind of text, information,
image, or audio or video material which can be incorporated in a
website for access by a visitor to that website.
2. SERVICES
The Host shall perform its obligations in accordance with these
terms and conditions.
3. CUSTOMER RESPONSIBILITIES
3.1 The Customer shall be responsible for the accuracy and
completeness of the Materials.
3.2 The Host shall not be liable for any delays in implementing
the Service resulting from the Customer's failure to fulfil any
of its obligations set out in the terms and conditions. The Host
reserves the right to invoice the Customer for any additional
expenses reasonably incurred by the Host as a result of such
delays.
4. ACCEPTANCE
4.1 The Acceptance Tests shall test compliance of the Site with
the Site Specification. The form and detail of the Acceptance
Tests are set out in Schedule 6.
4.2 The Host shall run the Acceptance Tests and Acceptance of the
Site shall occur when the Site has passed the Acceptance Tests.
The Host shall not notify the Customer when the Acceptance Tests
have been passed.
4.3 If any failure to pass the Acceptance Tests results from a
defect which is caused by an act or omission of the Customer, or
by one of the Customer´s sub-contractors or agents for whom
the Host has no responsibility (Non-Host Defect), the Site shall
be deemed to have passed the Acceptance Tests notwithstanding
such Non-Host Defect. The Host shall provide assistance
reasonably requested by the Customer in remedying any Non-Host
Defects by supplying additional services or products. If so
requested, the Customer shall pay the Host in full for all such
additional services and products at the Host's then current fees
and prices.
4.4 Acceptance of the Site shall be deemed to have taken place
upon the occurrence of any of the following events:
(a) the Customer uses any part of the Site for any
revenue-earning purposes or to provide any services to third
parties other than for test purposes; or
(b) the Customer unreasonably delays the start of the relevant
Acceptance Tests or any retests for a period of seven working
days from the date on which the Host is ready to commence running
such Acceptance Tests or retests.
5. CHARGES AND PAYMENT
5.1 The Host shall deduct monthly Services Charges in advance
each month if applicable for the Customer's service plan after
the Customer free trial period has expired.
5.2 The Host shall deduct a partial monthly Service Charges in
arrears at the start of the first month if applicable for the
Customer's service plan after the Customer free trial period has
expired.
5.3 The Host shall deduct a 'Pay As You Go' Service Charges in
advance on the first calendar day of each month after the
Customer free trial period has expired.
5.4 The Host shall deduct Successful Sales Transaction Charges in
arrears at the end of each customer month. The site software
Customer order status must be updated by the Customer for all
Customer orders to enable accurate calculation of the Successful
Sales Transaction Charge.
5.5 The Customer shall pay to the Host the Charges using the Pre
Pay (Pay As You Go) Top Up mechanism available in the site
software.
5.6 If the Customer fails to pay any amount payable by it under this agreement, the Host shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgement, at the rate of 4% per annum above the base rate for the time being of HSBC PLC UK. Such interest shall accrue on a daily basis and be compounded quarterly. The Host reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 If fund remain on account the customer may request a refund
upon closure of their customer account subject to a £20 GBP
(British Pounds Sterling) administration charge.
5.8
We may increase or decrease our Charges from time to time.
If we increase our Charges,
we will let you know at least 30 days before the Charges are due to go up.
5.9
You can end this Agreement without notice, if:
(a) we increase your Charges by more than the Retail Price Index (RPI) annual inflation
rate at the date we notify you of the applicable price increase; or
(b) we increase any of our Charges in such a way that
would have increased your total bill for the immediately previous month by more than 10%.
6. WARRANTIES
6.1 Each of the parties warrants to the other that it has full
power and authority to enter into and perform this agreement.
6.2 The Host shall perform the Services with reasonable care and
skill.
6.3 The Host warrants that the Site will perform substantially in
accordance with the Site Specification for a period of 90 days
from Acceptance. If the Site does not so perform, the Host shall,
for no additional charge, carry out any work necessary in order
to ensure that the Site substantially complies with the Site
Specification.
6.4 The warranty set out in clause 6.3 shall not apply to the
extent that any failure of the Site to perform substantially in
accordance with the Site Specification is caused by the Site
Software or any Materials.
6.5 This agreement sets out the full extent of the Host´s
obligations and liabilities in respect of the supply of the
Services. All conditions, warranties or other terms concerning
the Services which might otherwise be implied into this agreement
or any collateral contract (whether by statute or otherwise) are
hereby expressly excluded.
7. LIMITATION OF REMEDIES AND LIABILITY
7.1 Nothing in this agreement shall operate to exclude or limit
the Host´s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of
Goods Act 1979 or section 2 of the Supply of Goods and Services
Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under
applicable law.
7.2 The Host shall not be liable to the Customer for any damage
to software, damage to or loss of data, loss of profit,
anticipated profits, revenues, anticipated savings, goodwill or
business opportunity, or for any indirect or consequential loss
or damage.
7.3 Subject to clause 8.1, the Host's aggregate liability in
respect of claims based on events in any calendar year arising
out of or in connection with this agreement or any collateral
contract, whether in contract or tort (including negligence) or
otherwise, shall in no circumstances exceed [75] % of the total
Charges payable by the Customer to the Host under this agreement
in that calendar year.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Site Author retains all Intellectual Property Rights in
the Site Software and Materials, and grants the Host a licence to
such Intellectual Property Rights to the extent required to
perform its obligations pursuant to this agreement.
8.2 All Intellectual Property Rights in any works arising in
connection with the performance of the Services by the Host
(Works) shall be the property of the Site Author, and the Host
hereby grants to the Host a non-exclusive licence to use such
Intellectual Property Rights for the purposes of hosting the
Site.
8.3 The Customer shall indemnify the Host against all damages,
losses and expenses arising as a result of any action or claim
that the Site Software or the Materials infringe any Intellectual
Property Rights of a third party.
8.4 The Host shall indemnify the Customer against all damages,
losses and expenses arising as a result of any action or claim
that the Works infringe the Intellectual Property Rights of a
third party in the UK, other than infringements referred to in
clause 8.3.
8.5 The indemnities in clause 8.3, clause 8.4, and clause 9.3 are
subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in
writing of the action or claim;
(b) the indemnified party makes no admissions or settlements
without the indemnifier´s prior written consent;
(c) the indemnified party gives the indemnifier all information
and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control
over the litigation and settlement of any action or claim.
8.6 The indemnities in clause 8.3, clause 8.4, and clause 9.3 may
not be invoked to the extent that the action or claim arises out
of the indemnifier´s compliance with any designs,
specifications or instructions of the indemnified party.
9. SITE CONTENT
9.1 The Host shall update the Site with the Materials provided
from time to time by the Customer, but no more than once in any
month during the term of this agreement. The Customer shall
ensure that the Materials do not 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, blasphemous or in breach of any third party
Intellectual Property Rights)
Inappropriate Content
9.2 The Host shall include only the Materials on the Site. The
Customer acknowledges that the Host has no control over any
content placed on the Site by the Customer or Visitors and does
not purport to monitor the content of the Site. The Host reserves
the right to remove content from the Site where it reasonably
suspects such content is Inappropriate Content. The Host shall
notify the Customer if it becomes aware of any allegation that
content on the Site may be Inappropriate Content.
9.3 The Customer shall indemnify the Host against all damages,
losses and expenses arising as a result of any action or claim
that the Materials or any other material posted to, or linked to,
the Site constitutes Inappropriate Content.
9.4 The Host may include the statement " Powered by Go
Ecommerce " or a comment similar to this on each page of the
Site in a unobtrusive form at the footer of each page.
10. DATA PROTECTION
10.1 In this clause 11, Personal Data has the meaning given in
the Data Protection Act 1998.
10.2 The Host warrants that, to the extent it processes any
Personal Data on behalf of the Customer:
(a) it shall act only on instructions from the Customer; and
(b) it has in place appropriate technical and organisational
security measures against unauthorised or unlawful processing of
Personal Data and against accidental loss or destruction of, or
damage to, Personal Data.
11. TERM AND TERMINATION
11.1 This agreement shall commence on the Effective Date and
shall (subject to earlier termination pursuant to this clause 12)
terminate 30 days after cancellation request received by Host.
11.2 Either party may terminate this agreement immediately at any
time by written notice to the other party if:
(a) that other party commits any material breach of its
obligations under this agreement which (if remediable) is not
remedied within 30 days after the service of written notice
specifying the breach and requiring it to be remedied; or
(b) that other party:
(i) ceases to trade (either in whole, or as to any part or
division involved in the performance of this agreement); or
(ii) becomes insolvent or unable to pay its debts within the
meaning of the insolvency legislation applicable to that party;
or
(iii) a person (including the holder of a charge or other
security interest) is appointed to manage or take control of the
whole or part of the business or assets of that party, or notice
of an intention to appoint such a person is given or documents
relating to such an appointment are filed with any court; or
(iv) the ability of that party�s creditors
to take any action to enforce their debts is suspended,
restricted or prevented or some or all of that
party´s creditors accept, by agreement or pursuant
to a court order, an amount of less than the sums owing to them
in satisfaction of those sums; or
(v) any process is instituted which could lead to that party
being dissolved and its assets being distributed to its
creditors, shareholders or other contributors (other than for the
purposes of solvent amalgamation or reconstruction).
11.3 On termination of this agreement by the Host pursuant to
clause 11.2, all licences granted by the Host under this
agreement shall terminate immediately.
11.4 On expiry or termination of this agreement otherwise than on
termination by the Host pursuant to clause
11.2 the Host shall:
(a) be entiled to remove all Customer Site Materials. It is the
responsibility of the Customer to retrieve and store any Site
Materials to be retained after terminiation of this agreement.
(b) provide such assistance as is reasonably requested by the
Customer to transfer the hosting of the Site to the Customer or
another service provider, subject to payment of the Host´s
expenses reasonably incurred.
11.5 On expiry or termination of this agreement, all provisions
of this agreement shall cease to have effect, except that any
provision which can reasonably be inferred as continuing or is
expressly stated to continue shall continue in full force and
effect.
12. CHANGE CONTROL
Any request to change the scope of the Services shall be
processed in accordance with the Change Control Procedure set out
in Schedule 5.
13. FORCE MAJEURE
13.1 The definition in this clause applies in this agreement.
Force Majeure Event: any event arising which is beyond the
reasonable control of the affected party (including any
industrial dispute affecting any third party, governmental
regulations, fire, flood, disaster, civil riot or war).
13.2 A party who becomes aware of a Force Majeure Event which
gives rise to, or which is likely to give rise to, any failure or
delay in performing its obligations under this agreement shall
forthwith notify the other and shall inform the other of the
period for which it is estimated that such failure or delay will
continue. The affected party shall take reasonable steps to
mitigate the effect of the Force Majeure Event.
14. CONFIDENTIALITY
14.1 The definition in this clause applies in this agreement.
Confidential Information: all information, whether technical or
commercial (including all specifications, drawings and designs,
disclosed in writing, on disc, orally or by inspection of
documents or pursuant to discussions between the parties), where
the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the
nature of the information or the circumstances of disclosure.
14.2 Each party shall protect the Confidential Information of the
other party against unauthorised disclosure by using the same
degree of care as it takes to preserve and safeguard its own
confidential information of a similar nature, being at least a
reasonable degree of care.
14.3 Confidential Information may be disclosed by the receiving
party to its employees, affiliates and professional advisers,
provided that the recipient is bound in writing to maintain the
confidentiality of the Confidential Information received.
14.4 The obligations set out in this clause 15 shall not apply to
Confidential Information that the receiving party can
demonstrate:
(a) is or has become publicly known other than through breach of
this clause 15; or
(b) was in the possession of the receiving party prior to
disclosure by the other party; or
(c) was received by the receiving party from an independent third
party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority,
provided that the party subject to such requirement to disclose
gives the other party prompt written notice of the requirement.
14.5 The obligations of confidentiality in this clause 15 shall
not be affected by the expiry or termination of this agreement.
15. NOTICES
15.1 A notice given under this agreement:
(a) shall be in writing in the English language (or be
accompanied by a properly prepared translation into English);
(b) shall be sent for the attention of the person, and to the
address, fax number or e-mail address given in this clause 16 (or
such other person, address, fax number or e-mail address as the
receiving party may have notified to the other, such notice to
take effect five days from the notice being received); and
(c) shall be:
(i) delivered personally; or
(ii) sent by e-mail; or
(iii) sent by pre-paid first-class post, recorded delivery or
registered post; or
(iv) (if the notice is to be served or post outside the country
from which it is sent) sent by registered airmail.
15.2 The addresses for service of notice are:
(a) for the Customer:
The customer's Email Address
16. PUBLICITY
All media releases, public announcements and public disclosures
by either party relating to this agreement or its subject matter,
including promotional or marketing material, shall be
co-ordinated with the other party and approved jointly by the
parties in writing or by email prior to release.
17. ASSIGNMENT
Neither party may assign or transfer any of its rights or
obligations under this agreement, in whole or in part, without
the prior written consent of the other party, such consent not to
be unreasonably withheld or delayed.
18. ENTIRE AGREEMENT
Except as set out in this clause 18, neither party shall have any
remedy in respect of any untrue statement (whether written or
oral) made to it upon which it relied in entering into this
agreement (Misrepresentation), and neither party shall have any
liability other than pursuant to the express terms of this
agreement. Nothing in this agreement shall exclude or limit
either party's liability for any Misrepresentation made knowing
that it was untrue. Each party's liability for Misrepresentation
as to a fundamental matter, including as to a matter fundamental
to that party's ability to perform its obligations under this
agreement, shall be subject to the limit set out in clause 8.3.
19. THIRD PARTY RIGHTS
This agreement is made for the benefit of the parties to it and
is not intended to benefit, or be enforceable by, any other
person.
20. VARIATION AND WAIVER
20.1 A variation of this agreement shall be in writing and signed
by or on behalf of both parties to this agreement.
20.2 A waiver of any right under this agreement is only effective
if it is in writing and it applies only to the party to whom the
waiver is addressed and the circumstances for which it is given.
No waiver shall be implied by taking or failing to take any other
action.
20.3 Unless specifically provided otherwise, rights arising under
this agreement are cumulative and do not exclude rights provided
by law.
21. SEVERANCE
21.1 If any provision (or part of a provision) of this agreement
is found by any court or administrative body of competent
jurisdiction to be invalid, unenforceable or illegal, the other
provisions shall remain in force.
21.2 If any invalid, unenforceable or illegal provision would be
valid, enforceable or legal if some part of it were deleted, the
provision shall apply with whatever modification is necessary to
give effect to the commercial intention of the parties.
22. GOVERNING LAW AND JURISDICTION
22.1 This agreement and any disputes or claims arising out of or
in connection with its subject matter are governed by and
construed in accordance with the law of England.
22.2 The parties irrevocably agree that the courts of England
have exclusive jurisdiction to settle any dispute or claim that
arises out of or in connection with this agreement.
Schedule 1 Site software and specification
Part 1. Site software
Go Ecommerce Online Shops
Go Ecommerce Commerce Server
Go Ecommerce Merchant Control Panel
Part 2. Site specification
Go Ecommerce Online Shops : current production release
Go Ecommerce Commerce Server : current production release
Go Ecommerce Merchant Control Panel : current production
release
Schedule 2 Services
Shopping Cart Standard Plan
Shopping Cart Advanced Plan
Online Shop Start Up Plan
Online Shop Standard Plan
Online Shop Business Plan
Schedule 3 Charges
Setup charge: None
Cancellation charge: None
Service charges are charged in advance at the start of each
calendar month.
Successful Sales Transaction Charges are charged in arrears at
the start of the calendar month.
Schedule 5 Change control procedure
Part 1. The Customer shall be notified by email the Host of any
planned service outages exceeding 1 hour. Where the actual
service outage time period exceeds the planned outage time period
the Host shall restore services within the Host's best endevours.
Schedule 6. Affiliate Program
Part 1. Each affiliate is entitled to 10% of the gross sales
commission charge paid to The Host for a referred customer
introduced by an affiliate and is payable to the affiliate upon
successful payment by the referred customer of The Host
charge to The Host. Exclusion - an affiliate cannot introduce
themselves or anyone directly or indirectly connected to
themselves as an affiliate referral under any circumstances.
Affiliate commissions are paid into the affiliates PayPal account
at regular intervals.
Schedule 7. Deactivation Notices
Part 1. If there has been no administrative acitivity (a user
logging into your Secure Shop Merchant Control Panel) for 90 days
the Host reserves the right to serve a Service Deactivation
Notice via email to the Customer. The Customer will have 30 days
to respond. If no reponse is received the Host's reserves the
right to suspend the Services provided to the Customer.
Schedule 8. Reactivation Requests
Part 1. If a Online Shop or Shopping Cart has been out of use (no
merchant login) for a over 6 months the Service may be suspended.
Such a Service can be reactivated. A reactivation request should
be made via email to The Host. The Host shall reactivate the
suspended service within 60 days. The Host reserve the right to
charge a £60 GBP (British Pounds Sterling) reactivation
fee.