Version 1.0.1, 4th April 2016
In these terms and conditions:-
1.1 “Business” means any organisation or entity that is not a Consumer.
1.2 “Charges” means the charges in respect of the Service as shown in our Proposal or Order Confirmation.
1.3 “Consumer” means an individual whose use of the Service is for personal purposes only, and not for use in connection with any trade, business, profession, charity or organisation.
1.4 “Commencement Date” is the signature date of the Proposal or date on the Order Confirmation.
1.5 “Equipment” means any equipment (including any software) provided to you by us, or to which we enable you to have access, in connection with the Service.
1.6 “Order Confirmation” means the document which we send to you by post or e-mail after you have placed an order, confirming details of the Service ordered, and the relevant Charges.
1.8 “Proposal” means the signed document which shows details of the Service and the relevant Charges.
1.9 “Service” means the service to be provided by us to you, as described in a Proposal or Order Confirmation
1.10 "Supplier" refers to any business that provides service to us that we resell as part of the Service provided to you.
1.11 “we/us/our” refers to Room 108 Limited, a company incorporated in Scotland (registered number SC183036), and having its registered office at Hudson House, 8 Albany Street, Edinburgh, EH1 3QB.
1.12 “you/yours” refers to you, the person placing an order for the Service.
2 YOUR AGREEMENT WITH US
2.1 In order to ensure a clear understanding of the Services required and the relevant charges for those Services, an agreement will be put in place before work commences. This agreement will consist of either a Proposal or Order Confirmation. These terms and conditions along with the Policy Documents will also form part of the agreement.
2.2 When there is conflict between any of the documents provided as part of the agreement the following will be true;
2.2.1 The Proposal will override any statements in all other agreement documents;
2.2.2 The Order Confirmation will override any statements in the terms and conditions or Policy Documents;
2.2.3 The Terms and Conditions will override any statements in the Policy Documents.
2.3 Any oral information or explanation given by us does not form part of the agreement.
2.4 The information on our website is intended to provide you with information to help in making your decision to purchase Services from us; it does not form part of the agreement.
2.5 The Agreement is commenced only when we have accepted your order by sending you an Order Confirmation or a signed Proposal is in place.
3 PROVISION OF SERVICE
3.1 We grant you a non-exclusive, non-transferable and restricted licence to use any software which forms part of the Service, for the period of the Agreement.
3.2 Any third party software provided as part of the Service, together with the third party’s electronic or printed licence agreement, is included for use as described in the agreement, and any use of the third party software will be governed by the third party’s licence agreement, and not by our Agreement with you.
3.3 You acknowledge that if you prevent us from having access to any Equipment or information, we may not be able to provide the Service, and will not be liable to you in any way as a result of our inability to provide any part of the Service to you.
4 PASSWORD AND ACCOUNT NUMBER
4.1 On commencement of the Service, we will allocate an account identifier to you, a password and various other identifiers. It is your responsibility to keep them safe and not disclose them to anyone else. You are responsible for all use of the Service accessed via these passwords or account identifiers, including, all Charges incurred and any breaches of this Agreement, even where the Service is not actually used by you, but by some other person or organisation using the passwords or account identifiers.
4.2 You will keep any password and account identifier confidential and will immediately notify us if any unauthorised third party becomes aware of the password or account identifier.
5 USE OF THE SERVICE
5.1 If you are a Consumer, the Service is supplied to you for your personal use. You may not commercialise it or use it in connection with any occupation, trade or profession without our prior written consent.
5.2 If you are a Business, you may not make any unauthorised commercial use of the Service.
5.3 The Service is for use by the Business identified in the agreement only. You will notify us of any usage outside of the agreement and will allow us to review this usage and modify the agreement if required.
6 INTELLECTUAL PROPERTY RIGHTS, COPYRIGHTS AND TRADEMARKS
6.1 By supplying text, images and other data to Room 108 Ltd for inclusion in the customer’s mediums, the customer declares that it holds the appropriate copyright and/or trademark permissions. The ownership of such materials will remain with the customer, or rightful copyright or trademark owner.
6.2 Any artwork, images, or text supplied and/or designed by Room 108 Ltd on behalf of the customer, will remain the property of Room 108 ltd and/or its suppliers.
6.3 The customer may request in writing from Room 108 Ltd, the necessary permission to use materials (for which Room 108 holds copyright) in forms other than for which it was originally supplied, and Room 108 Ltd may, at its discretion, grant this. Such permission must be obtained in writing before it will allow any of the aforesaid artwork, image, text, or other data to be used.
6.4 By supplying images, text, or any other data to Room 108 Ltd, the customer grants Room 108 Ltd permission to use this material freely in the pursuit of the design.
6.5 Should Room 108 Ltd, or the customer supply an image, print item, exhibition, advertisement or any other medium believing it to be copyright and royalty free, which subsequently emerges to have such copyright or royalty usage limitation, the customer will agree to allow Room 108 Ltd to remove and/or replace the file.
6.6 The customer agrees to fully indemnify and hold Room 108 Ltd free from harm in any and all claims resulting from the customer in not having obtained all the required copyright, and/or any other necessary permissions.
6.7 You shall obtain any and all necessary consents, licences and clearances to enable you lawfully to make use of all and any intellectual property rights through the Service, including, without limitation, clearance, licences and/or consents in respect of your proposed domain name or media assets supplied.
7.1 The customer agrees that changes required over and above the estimated work or required to be carried out after acceptance for the raft design will be liable to separate charges. The customer also agrees that Room 108 Ltd holds no responsibility for any amendments made by any third party, before or after a design is published.
8.1 All Charges shall be payable in accordance with the payment terms displayed on the invoice. Invoices will be raised in accordance with payment details defined in the Order Confirmation or Proposal.
8.2 We will e-mail and post an invoice using the details we have registered for you, we will also send a further reminder if the payment becomes overdue.
8.3 We may at any time vary any of the Charges in accordance with the terms of clause 19.
8.4 Charges are exclusive of value added tax, which must be paid by you on submission by us of a proper VAT invoice, unless you are exempt from tax and display to us a valid tax exemption certificate.
8.5 We reserve the right to charge interest on any amounts due by you to us which are not paid on the relevant due date, from that date until the date of payment on a daily basis at the rate of 3% above the base rate of the HSBC Bank plc. You shall reimburse us all costs and expenses (including reasonable legal costs) incurred in the collection of any overdue amounts. Interest shall continue to accrue and costs and expenses shall continue to be reimbursed after the termination of the Agreement for any reason.
8.6 All payments must be made in pounds sterling.
8.7 If you attempt to pay by means of a cheque which is not honoured by your bank for any reason whatsoever, you will be liable for an administration charge of £25, and we may suspend the Service at our discretion in accordance with clause 11.3.3.
9 Over Usage
9.1 You accept that if your account has any predefined limits applied to it, for example for data transfer or disk space usage, you will be liable for any excess charges generated by that account, with or without your previous knowledge. You can obtain a full list of any over usage charges by contacting Room 108.
10 RIGHT TO CANCEL
10.1 Subject to clause 7.4, you have seven working days from the Commencement Date (“the cancellation period”) in which to cancel the Agreement.
10.2 If you wish to cancel the Agreement, you must notify us of this fact in writing and send your notification to us by e-mail or post. Full contact details are set out in the “Contacts” section of our website.
10.3 You have no automatic right to cancel the agreement between us if, at your request or with your consent, we begin to provide the Service to you within the cancellation period.
10.4 If you no longer wish to use the particular Service then no refunds will be available for any unused time remaining on the account.
11 SUPPORT SERVICES
11.1 We will use reasonable efforts to respond to any request for support in relation to a Service provided within twenty four hours of being notified of it, and shall make all commercially reasonable attempts to resolve the fault within forty eight hours of acknowledging the problem.
11.2 As part of the Service, we offer technical advice and support either via e-mail or by our telephone helpline. We reserve the right to establish limitations on the extent of such support, and the hours at which it is available.
12 LIMITATION OF LIABILITY
12.1 Nothing in these terms and conditions is intended to exclude any provision of the Unfair Contract Terms Act 1977, or of the Unfair Terms in Consumer Contracts Regulations 1999, or of any other legislation designed to ensure that the rights of parties to a contract of the type of the Agreement (i.e. standard terms and conditions which are not individually negotiated) are fairly balanced.
12.2 Subject to clause 12.1, we shall not be liable to you for any loss or damage unless such loss or damage arises as a direct result of our negligence, recklessness or wilful misconduct, or fraud or misrepresentation on our part.
12.3 To the fullest extent permitted by applicable law, we disclaim all liability for our employees’ or sub-contractors’ negligence.
12.4 All conditions, terms, representations and warranties relating to the Service and not expressly stated in the Agreement are hereby excluded to the fullest extent permitted by law.
12.5 Our total liability to you in respect of any claim by you arising out of or in connection with the provision (or the failure to provide) the Service shall be limited to the amount paid by the client for the Service, where a limit can be applied.
12.6 No claim by you against us shall be valid unless you have notified us of the details of the claim within one year of it arising.
12.7 Every provision of this clause 12 excluding or limiting liability shall be applied separately and shall remain in force upon the expiry or termination of the Agreement.
13.1 You agree that you shall be liable for, and hereby agree to indemnify us in respect of any and all demands, liabilities, losses, costs and claims (including reasonable legal fees) sustained or incurred by us, our agents, suppliers, resellers, our customers, officers or employees, and arising as a result of breach by you, your employees, agents or sub-contractors, or any person with whom you share the Service in accordance with the Agreement.
14.1 We reserve the right at any time to suspend the Service or terminate the Agreement without notice to you and without giving you any refund in the event that we, acting reasonably, consider that you have made inappropriate use of the Service or otherwise materially breached any Policy Document.
14.2 Either you or we may terminate the Agreement at any time by giving at least 30 days’ written notice to the other party. You may also terminate the Agreement in the circumstances described in clauses 19 and 21.
14.3 In addition to our rights under clauses 14.1 and 14.2, we may suspend the Service or terminate the Agreement immediately without notice to you and, in the case of clauses 14.3.2 to 14.3.5 inclusive, without giving you any refund if any of the following occurs:-
14.3.1 We are precluded from providing the Service by law or by the decision of any competent judicial, governmental or regulatory body;
14.3.2 You provide us with any false, inaccurate or misleading information for the purpose of using the Service;
14.3.3 you fail to pay any sum due to us when it falls due, and have not made payment in accordance with the payment terms defined, or you breach any other provision of the Agreement and, if the breach is remediable, fail to remedy the breach within 30 days of written notice from us specifying the nature of the breach, and the steps required to remedy it; or
14.3.4 You commit a breach of the Agreement which cannot be resolved by commercially reasonable efforts.
14.3.5 (in accordance with the law of any jurisdiction in the world) you become bankrupt or apparently insolvent, are sequestrated, wound up, make a proposal for a voluntary arrangement under the Insolvency Act 1986, cease or threaten to cease to carry on your business, or otherwise are unable to meet your debts as they fall due.
14.3.6 Your death.
14.4 We may temporarily suspend the Service for the purpose of repair, maintenance or improvement of any of our facilities which are necessary to provide the Service, or vary the technical specification of the Service for operational reasons, without incurring any liability to you or any other person, subject to us giving you as much online, written or oral advice as is reasonably practicable in the circumstances, and restoring the Service as soon as reasonably practicable after such temporary suspension.
14.5 On termination of the Agreement or suspension of the Service in any of the circumstances described in clauses 14.3.2 to 14.3.5 inclusive, we shall be entitled, acting reasonably, to do all or any of the following:-
14.5.1 Immediately to block any website of yours which we host and to remove all data from the website.
14.5.2 To archive all data from our system and provide you with access at our convenience and at your cost.
14.5.3 To post such notice on your website in respect of the non-availability of your website as we think fit;
14.5.4 To take any other action we, acting reasonably, deem appropriate and proportionate to the breach of the Agreement.
14.6 On termination of the Agreement for any reason, any licence granted to you under clause 3.2 shall automatically terminate.
14.7 We shall investigate any suspected or alleged breach of the Agreement, and make an additional charge for all reasonable costs incurred due to investigating and dealing with the misuse and/or blocking access to any components of the Service. Without limitation, you expressly authorise us to use your personal data and other account information in connection with any such investigation, including by disclosing it to any third party whom we consider has a legitimate interest in any such investigation or its outcome.
14.8 If you cancel the Agreement before completion of the Services outlined in the Agreement we will charge you at our current hourly rate for any work already carried out to implement the Services defined in the agreement.
15 MATTERS BEYOND Room 108 Limited's REASONABLE CONTROL
15.1 We shall not be in breach of the Agreement or otherwise liable to you in any manner whatsoever for any failure or delay in performing our obligations under the Agreement due to matters that are reasonably beyond our control.
16.1 Any notice to be given in accordance with these terms and conditions by us to you may be sent either by e-mail, fax or recorded delivery, and:-
16.1.1 If sent by e-mail shall, unless the contrary is proved, be deemed to be received on the day it was sent;
16.1.2 If sent by fax shall be deemed to be served on receipt of an error-free transmission report; or
16.1.3 If sent by recorded delivery shall be deemed to be served two days following the date of posting.
16.2 Any notice to be given in accordance with these terms and conditions by you to us shall be in English and may be sent either by e-mail, fax or recorded delivery. You should not assume that any such notice has been received by us until we send you confirmation of receipt.
16.3 Notices sent to us shall be sent to Room 108 Limited, Alba Centre, Alba Campus, Livingston, West Lothian, EH54 7EG. We shall send any notice to you to the address defined in the Agreement, and it is your responsibility to notify us of any change to that address.
16.4 Full contact details can be found on our website www.room108.co.uk.
17.1 Any failure by us to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
18 VARIATION OF SERVICE OR AGREEMENT
18.1 We reserve the right to amend the Services provided by the Agreement at any time. If we do so, we shall provide a notice, as defined in section 14, 30 days prior to the commencement of the variation, informing you of the amendment and the date on which it is to come into force. Your continued use of the Service after any such amendment has come into effect shall be deemed to be your binding acceptance of such amendment. If you are a Consumer you will have the right to end this Agreement by written notice at any time up to the date on which the amendment comes into force.
19.1 If any of the provisions of the Agreement is found by any court or other competent authority to be void or unenforceable, such provision shall be deemed to be deleted from the Agreement and the remaining provisions of the Agreement shall continue in full force and effect.
19.2 A Mutually agreeable replacement provision will be notified to you in accordance with clause 14.
20 TRANSFER OF RIGHTS
20.1 You may not transfer any of your rights or obligations under the Agreement to any other person. We reserve the right to assign or sub-contract any or all of our rights and obligations under the Agreement to any person, but if we do so you may terminate the Agreement in accordance with clause 11. We shall give you reasonable notice in writing of our intention to assign the Agreement.
21 LAW AND JURISDICTION
21.1 The Agreement shall be governed by and construed in accordance with Scottish law and you hereby submit to the non-exclusive jurisdiction of the Scottish courts. You are responsible for compliance with any applicable laws of the country from which you access our website.
22 DOMAIN NAME REGISTRATION
22.1 We make no representation that the domain name you wish to register is capable of being registered by or for you. You should therefore not assume registration of your requested domain name(s) until you have been notified that it has or they have been registered. Any action taken by you before such notification is at your own risk, and you agree that we shall bear no liability for any cost incurred in the belief that registration would be successful.
22.3 We shall bear no liability in respect of the use by you of any domain name. Any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our absolute discretion, and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
22.4 You warrant that you are the owner of, or that you have been and are duly authorised by the owner to use, any trade mark or name requested or allocated as your domain name.
22.5 You warrant that, to the best of your knowledge and belief, neither the registration of your proposed domain name nor the manner in which it is directly or indirectly used will infringe the legal rights of a third party or will otherwise be unlawful in any way, and you will indemnify us against any and all actions, claims, losses, costs, damages and expenses incurred by us if this warranty proves to be untrue.
23 WEBSITE HOSTING AND E-MAIL
23.1 We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Service.
23.2 You shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored by Equipment used in the provision of the Service.
23.3 You shall not share use of the Service, or any part of it, with any other person except:-
23.3.1 If you are a Consumer – members of your household at the same address; or
23.3.2 If you are a Business – your employer or employees or other people with whom you work at the same address; or
23.3.3 Where previously agreed with us in writing.
23.4 You shall ensure that any person you share the Service with is fully aware of the terms defined in the Agreement (other than with respect to payment of Charges, for which you will remain solely responsible). You are responsible for any misuse of the Service by anyone with whom you share the Service.
23.5 You shall observe the procedures which we may from time to time prescribe and shall make no use of the Service which is detrimental to any other person.
23.6 You shall ensure that all mail is sent in accordance with applicable legislation (including data protection legislation), and in a secure manner.
23.7 You acknowledge that you have no right to any physical access to the premises from which the Service is provided or any other of our premises, without our explicit prior permission.