Terms and Conditions - Affinity
Emails Ltd
AGREEMENT TO PROVIDE
SERVICES
THIS AGREEMENT is between you ("the Applicant") and Affinity
Emails Ltd.
INTRODUCTION
Affinity Emails provides, manages, and maintains an internet email address
rental Service of specified Names over an agreed period of time. The Applicant wishes to display and exploit
the Name on the internet or by email.
This Agreement contains the terms and conditions which shall govern the
relationship between the Applicant and Affinity Emails Ltd. Until accepted by Affinity Emails Ltd this
Agreement constitutes the Applicant's request to Affinity Emails Ltd to provide
the Services (as defined below) on the terms and conditions set out herein. Further details of the Services provided can
be found at:
http://www.affinityemails.co.uk
Affinity
Emails Ltd will advise the Applicant of its acceptance of the Applicant's offer
by sending an electronic acknowledgement to the Applicant's email address. Acceptance by Affinity Emails Ltd brings into
existence a legally binding agreement between the Applicant and Affinity Emails
Ltd. Please note that acceptance of
the Applicant's order is not an acknowledgement of the availability of the
specified Name or prefix or suffix Name/s.
IT
IS AGREED THAT:
1
DEFINITIONS
1.1
In this Agreement, the following expressions shall have the following meanings
unless the context otherwise requires:
'Acceptable
Use Policy' means the policies and rules that exist now or which may be
amended, modified or published from time to time by Affinity Emails Ltd which
are posted on the Affinity Emails web Site;
‘Name’ means the email address that the
Applicant wishes to register, display and exploit on the internet;
’Prefix Name/s' means the part of the Name
before the ‘@’ in the email address that the Applicant wishes to register,
display and exploit on the internet;
’Suffix Name/s' means the part of the Name
after the ‘@’ in the email address that the Applicant wishes to register,
display and exploit on the internet;
"Name Services" means the Name Services
specified in Clause 3;
'Effective Date' means the date of
acceptance of the Agreement by Affinity Emails Ltd;
'Fees' means the registration, renewal,
modification and/or other fees as posted on the Affinity Emails Ltd web Site,
or notified to the Applicant, from time to time payable by the Applicant to
Affinity Emails Ltd in respect of the provision of the relevant Services;
'Intellectual Property Rights' means all
copyright, trade marks, Service marks, patents, design rights and any other
intellectual property right (whether registered or not);
'Information' means the information
provided by the Applicant on the Order Form and any other information relating
to the specified Name/s, the Services or this Agreement submitted by the
Applicant to Affinity Emails Ltd;
'Personal Data' means information which relates to the Applicant or individuals
employed or engaged by the Applicant who can be identified from that
information or from that information and other information held by or likely to
be held by Affinity Emails Ltd.
'Registry' means the relevant prefix
Name/s registry with whom Affinity Emails Ltd or a third party arranges to
register the prefix or suffix Name;
‘Services'
means the specified Name Services, and any other Services posted on the
Affinity Emails Ltd web Site as selected by the Applicant and which the
Applicant wishes Affinity Emails Ltd to provide;
'Affinity Emails Site' means the Affinity Emails Ltd web site routed through http://www.affinityemails.net and accessible by that or any other URL.
'Affinity Emails Ltd' is company Registered Number 5025992 with the Registered Office at 17, Church Lane, Mirfield, West Yorkshire WF14 9HU.
1.2
The headings contained in this Agreement are for reference only and shall not
affect their interpretation.
1.3
Affinity Emails Ltd may at any time correct any typographical or other errors
or omissions in any document posted on the Affinity Emails site relating to the
provision of the Services, the Policies or otherwise without any liability
whatsoever to Affinity Emails Ltd.
2
SUPPLY OF SERVICES
2.1
Affinity Emails Ltd will provide the Services to the Applicant subject to the
terms and conditions contained in this Agreement. Any changes or additions to the Services or
this Agreement must be agreed in writing by Affinity Emails Ltd and the
Applicant.
2.2
Affinity Emails Ltd will provide the Services exercising reasonable skill and
care but otherwise it will have no obligation, duty or liability to the
Application in contract, tort, for breach of statutory duty or otherwise. In
the event of material breach of this clause, the Applicant's only remedy
against Affinity Emails Ltd will
be to terminate this agreement and a right to recover actual damages suffered
which will not exceed the total amount of fees paid by the Applicant to Affinity
Emails Ltd for provision of the
Services affected by Affinity Emails Ltd breach, less any sums chargeable in
respect of usage in accordance with these terms and conditions and/or the
refund policy. This does not affect the
Applicant’s statutory rights.
2.3 Affinity Emails Ltd will commence
performance of the Services following despatch of its acceptance of the
Applicant's offer and the Applicant agrees and acknowledges that he will not be
able to exercise any right he may have to cancel this agreement under the
Consumer Protection (Distance Selling) Regulations 2000 (as amended or modified).
2.4
The Acceptable Use Policy, and Data Protection and Privacy Policy ("the
Policies"), and where applicable the Service Level Agreement are
incorporated into this Agreement by reference.
The Applicant agrees and acknowledges that by entering into this
Agreement he will be bound to and will abide by these policies.
2.5 Affinity Emails Ltd may
modify, amend, and/or revise the Policies from time to time and the Applicant
is responsible for reviewing the Policies on a regular basis. Any modifications, amendments, and/or
revisions to the Policies necessary to comply with any applicable statutory or
other legal requirements will be effective immediately on the date of posting
on the Affinity Emails Ltd
website. All other modifications,
amendments, and/or revisions to the Policies will be effective twenty two (22)
days after the date of posting on the Affinity
Emails Ltd Site and will have retrospective effect.
2.6 The Applicant agrees that Affinity
Emails Ltd is not responsible for lost emails, mis-delivered emails or in
delays in delivering emails howsoever caused.
3 NAME SERVICES
3.1
Affinity Emails Ltd will provide
the Name Services on an "as
available" basis. The
acceptance by Affinity Emails Ltd
of the Applicant's application to register the Prefix Name is not an
acknowledgement by Affinity Emails Ltd
of the availability of the Name and such application will be subject to the
successful registration of the Domain Name at the Registry which shall be
signified by the Domain Name being displayed on the Registry's WHOIS directory
as being registered to Affinity Emails
Ltd.
3.2
In the event the Domain Name is not successfully registered with the Registry
or if Affinity Emails Ltd
declines to accept the Applicant's Order for whatever reason, Affinity Emails Ltd will refund the
Fees to the Applicant. Affinity Emails
Ltd will not be liable to the Applicant for any loss or damage
whatsoever arising or resulting from any inability to register the Prefix Name
or by any refusal by Affinity Emails
Ltd of the Applicant's Order Form.
Please note: Affinity Emails Ltd will not be liable to refund the
fees to the Applicant if, for any reason after registration, the Applicant is
forced to relinquish the Name or, subject to the Refund Policy, if the
Applicant cancels his order.
3.3
The Applicant agrees and acknowledges that registration of, and use of, the
Name may be subject to the Registry's own acceptable use policies, rules or
other terms and conditions. By submitting the order form to Affinity
Emails Ltd, the Applicant agrees to be bound by any such policies, rules or
other terms and conditions and to fully and effectively indemnify Affinity
Emails Ltd in respect of any and all losses, costs, expenses or liability
suffered or incurred by Affinity Emails Ltd in the event of or as a result of
or arising out of any breach of this clause 3.3, upon successful registration
of the Domain Name to Affinity Emails Ltd and subsequent Name to the
applicant. It is the Applicant’s responsibility
to review and familiarize himself with the relevant registry's policies, rules
and other terms and conditions.
3.4
Affinity Emails Ltd sole obligation in relation to the renewal of the Name, and
then only for so long as this agreement for the provision of prefix Name
Services remains in force, shall be to issue one reminder to the Applicant at
his last notified email address as to the renewal date of the relevant prefix
Name. Affinity Emails Ltd shall have no
obligation in relation to renewal other than as specified above, and shall have
no liability to the Applicant for any failure of the Applicant to renew any
prefix Name/s or domain Name, whether or not such email notification is
delivered or for the refusal of the Registry to renew any Domain Name.
3.5 Email forwarding is a Service provided with Name registration at the
discretion of Affinity Emails Ltd who are not responsible for any failure in
these Services or the loss of any emails howsoever caused. Such
a Service is enabled by a third party and cannot be guaranteed.
3.6
In the event of any conflict between this Agreement, the Acceptable Use Policy
and/or the Registry terms and conditions, the following precedence will apply:
(a)
the Registry's terms and conditions;
(b)
the Acceptable Use Policy; and
(c)
this Agreement.
4
OBLIGATIONS OF THE APPLICANT
4.1 The Applicant will pay to Affinity
Emails Ltd the Fees applicable at the time the Applicant submits the
Order Form or at the time of the renewal of this Agreement as provided in
Clause 6 or as otherwise specified as appropriate in the Affinity Emails Ltd
website. Affinity Emails reserves the right
at any time to revise the Fees without notice.
4.2
The Applicant undertakes and warrants to Affinity Emails Ltd that the
Information is true, accurate, and complete in all material respects. The Applicant also undertakes and warrants
that he will maintain and keep the Information true, accurate and complete in
all material respects by immediately notifying Affinity Emails Ltd of any
change that is required to be made to the Information (including but not
limited to informing Affinity Emails Ltd of any changes in the Applicant's address
and/or contact details).
4.3
The Applicant undertakes and warrants to Affinity Emails Ltd as follows:
(a)
to the best of the Applicant's knowledge, information and belief, neither the
registration of the prefix Name/s or use of the domain main nor the provision
of the Services nor the manner in which they are to be directly or indirectly
used will infringe the Intellectual Property rights of any third party;
(b)
that the Applicant has the full right, power, legal capacity, ability and
authority to enter into this Agreement;
(c) that use of the Domain Name and prefix Name/s by the Applicant and the
Services will be strictly subject to the terms and conditions of this
Agreement, the Acceptable Use Policy and the policies, rules and terms and
conditions of the Registry, all of which may be amended, revised or modified
from time to time and it is the Applicant's responsibility to review these
documents on a regular basis;
(d)
the Applicant will use the Services and will display and exploit the Domain
Name and Name/s Services in good faith;
(e)
the Applicant will fully comply with any Terms and Conditions of the Registry;
(f)
the Applicant understands and agrees that Affinity Emails Ltd has no
responsibility for the content of the e-mails
of the Applicant, whether hosted using the Services or not, and that the
Applicant is responsible for those e-mails including but not limited to
ensuring their accuracy, complying with the Acceptable Use Policy, and ensuring
that such e-mails are secure and
adequately protected from viruses and other disabling devices; and
(g)
the Applicant will not make use of the Services, nor operate, display or
exploit the Domain Name or prefix Name/e in any way so as to infringe any
subsisting right of any third party.
4.4
The Applicant understands and agrees that it is its responsibility to ensure
that all data stored on any servers is backed up as is necessary for the
Applicant. Unless the Applicant has
otherwise agreed in writing with Affinity Emails Ltd, Affinity Emails Ltd will
not be responsible for any losses of whatever nature caused by loss or
corruption of data including but not limited to emails and online orders.
4.5
The Applicant understands and agrees that use of the Services, use of the
Domain Name and access to any website located at the Domain Name address by
third parties will be subject to the local laws of the country where such third
party is resident and the Applicant warrants to Affinity Emails Ltd that he
will use the Services and will operate, display and exploit the Domain Name,
the website, any website or other functions operated using the Servers and any
other websites located at the Domain Name address in accordance with all
relevant national and international laws and regulations.
4.6
The Applicant will be responsible for and will fully and effectively
indemnify and keep indemnified Affinity
Emails Ltd, its employees, agents and
contractors from and against any liability, loss or claim whatsoever and costs
and expenses (including, without limitation, legal costs and expenses) incurred
in relation to or arising as a result of any breach of the Applicant's
obligations under this clause 4 by either the Applicant, its employees, agents
or contractors.
5 LIMITATION OF LIABILITY
5.1 The Applicant acknowledges that the Fees for the Services are calculated on
the basis of the limitations on liability as set out in this Agreement and
that, accordingly, the limitations on liability set out in this Agreement are
reasonable in the circumstances. If
requested by the Applicant, Affinity Emails Ltd will provide alternative Fee
quotations, based upon acceptance by Affinity Emails Ltd of higher levels of
liability, such level of liability to be specified in Affinity Emails Ltd
quotation.
5.2 Subject as expressly provided to the contrary in
this agreement and except in respect of fraud, or death or personal injury
caused by the negligence of Affinity Emails Ltd, Affinity Emails Ltd will not be liable to the Applicant by reason of any representation
(unless fraudulent), or any implied warranty, condition or other term, or any
duty at common law, or under the express terms of this agreement for loss of
data, profits or contracts nor for any indirect, incidental, special or
consequential loss or damage, costs, expenses or other claims for compensation
relating to the use or the inability to use the Name, the servers, the website
or in any other way related to or in connection with the provision of the
Services, whether caused by the negligence of Affinity Emails Ltd, its employees or agents or otherwise and
whether such action arises in contract, tort or otherwise.
5.3 Save as expressly provided to the contrary in
the Service Level Agreement, Affinity Emails Ltd will not be liable for any damages or losses
whether direct or indirect that the Applicant may suffer as a result of Service
or systems failure whether caused by systems or Services under Affinity
Emails Ltd control or otherwise,
including but not limited to Domain Name system failure, server failure, access
delays or interruptions, data non-delivery or mis-delivery, any Acts of God,
delays in provision of the Services, breaches of security or unauthorized use
of the domain Name, web-site or server arising from "hacking" or
otherwise, even if Affinity Emails Ltd has been advised of the potential for
such damages and even if Affinity Emails Ltd may reasonably foresee such
possible damages.
5.4 Affinity Emails Ltd is not liable for the loss
of any emails sent to mailboxes of any configuration or sent from email
accounts related Services provided by Affinity Emails Ltd. Affinity Emails Ltd is not responsible for
any email stored in mailboxes provided by Affinity Emails Ltd. The Applicant only has an expectation of
preserving email downloaded from mailboxes provided by Affinity Emails Ltd
5.5 In no event shall the liability of Affinity
Emails Ltd under this agreement (including, for the avoidance of doubt, but not
limited to the Service level agreement and the refund policy) exceed the
aggregate sums specified in clause 2.2.
5.6 While Affinity Emails Ltd makes regular
maintenance updates to its systems and Services, it will not be liable for any
damages or losses whether direct or indirect that the Applicant may suffer as a
result of any virus, worm, Trojan horse or other disabling device that affects
Services or systems whether under the control of Affinity Emails Ltd/third
party or otherwise.
5.7 The Applicant will indemnify Affinity Emails Ltd
and keep Affinity Emails Ltd fully and effectively indemnified on demand
against any and all losses, claims, damages, costs, charges, expenses,
liabilities, demands proceedings and actions which Affinity Emails Ltd may
sustain or incur in relation to the domain Name the hosting Service, the server
provision and/or any other Services brought or threatened against Affinity
Emails Ltd by any third party, except in the event of death or personal injury
caused by the negligence of Affinity Emails Ltd.
5.8
The parties expressly exclude any rights of third parties who may otherwise be
entitled to enforce the terms of this Agreement as if they were a party to it
or otherwise able to rely on the provisions of the Contracts (Rights of Third
Parties) Act 1999 as enacted or modified from time to time.
5.9 Subject as expressly provided in this Agreement, and except where the
Services are sold to a person dealing as a consumer (within the meaning of the
Unfair Contract Terms Act 1977), all warranties, conditions or other terms
implied by statute or common law are excluded to the fullest extent permitted
by law.
5.10 Subject to clause 2.3, where the
Services are sold under a consumer transaction (as defined by the Consumer
Transaction (Restrictions on Statements) Order 1976) the statutory rights of
the Applicant are not affected by the terms and conditions of this agreement.
6
TERM, TERMINATION AND RENEWALS
6.1
This Agreement shall come into force on the Effective Date and subject to
earlier termination as provided under this Agreement, including but not limited
to the Refund Policy, will continue for the period specified in the Service
agreement.
6.2
Approximately two months before the expiry of the term, Affinity Emails Ltd
shall submit to the Applicant a renewal notice accompanied by an emailed
invoice. If the Applicant pays the
invoice prior to the expiry of the term, this Agreement will continue in force
for the further period specified in the renewal notice. If the Applicant has
not paid the invoice by the expiry of the term, this Agreement shall
automatically terminate, and Affinity Emails Ltd shall cease to provide any
further Services to the Applicant without any liability to the Applicant. For the avoidance of doubt, this may include
termination of use of the Domain Name and prefix Name/s, and termination of
access to the Servers.
6.3
Affinity Emails Ltd shall be entitled to terminate this Agreement immediately
without notice if the Applicant is in material breach of any obligation under
this Agreement. A material breach includes
but is not limited to:
(a)
if the Applicant provides materially false, inaccurate, incomplete or
misleading information; or
(b) if the Applicant fails to correct material errors or omissions relating to
the Information resulting in the Information becoming false, inaccurate,
incomplete or misleading.
6.4
Affinity Emails Ltd shall be entitled to terminate this Agreement immediately
upon written notice if:
(a) the Applicant is in breach (other than material breach) of any obligation
under this Agreement and, in the case of breach capable of remedy, it shall not
have been remedied by the Applicant within thirty (30) days following receipt
of a written notice from Affinity Emails Ltd specifying the breach and requiring
its remedy; or
(b) the Applicant becomes insolvent, has a receiver appointed over the whole or
any part of its assets, enters into any composition with creditors, or has an
order made or resolution passed for it to be wound up (otherwise than for the purposes
of a scheme for solvent amalgamation or reconstruction) or, in the case of an
individual or partnership, becomes bankrupt, makes a voluntary arrangement with
his or its creditors or has a receiver or administrator appointed.
6.5
The Applicant shall be entitled to terminate this Agreement immediately upon
giving notice to Affinity Emails Ltd (a) Affinity Emails Ltd is in material
breach of any obligation under this Agreement and, in the case of a breach
capable of remedy, it shall not have been remedied by Affinity Emails Ltd
within thirty (30) days following receipt of a written notice from the
Applicant specifying the breach and requiring its remedy; or
(b) Affinity Emails Ltd becomes insolvent, has a receiver appointed over the
whole or any part of its assets, enters into any composition with creditors, or
has an order made or resolution passed for it to be wound up (otherwise than
for the purposes of a scheme for solvent amalgamation or reconstruction).
6.6 The Applicant acknowledges that termination of this Agreement for any
reason will result in Affinity Emails Ltd ceasing to provide the Services, with
all the consequences that flow from such cessation, including, but not limited to, deletion of hosting account(s) and
mailboxes.
6.7 Termination of this Agreement by either party shall be without prejudice to
the accrued rights of either party.
7 REFUND POLICY
7.1
Refunds are only available for Name/s if notification is received from the
Applicant before the Domain Name has been registered to Affinity Emails
Ltd. A handling charge of £5.00 per Name
will apply.
7.2 No refunds will be made if we
terminate your Services due to violation of our Acceptable Use Policy or any
other violation of our Terms and Conditions, except as may be provided therein. This does not affect your statutory rights.
8
DATA PROTECTION
8.1
Except to the extent that Affinity Emails Ltd is required or permitted by law,
any Information which is Personal Data will be used solely as set out in the
Website Data Protection and Privacy Policy on the Affinity Emails Ltd website from time to
time.
8.2
In the event Affinity Emails Ltd does not accept the Applicant's offer to enter
into this Agreement, the Personal Data will not be held for longer than is
necessary, after which time it will be destroyed.
8.3 In the event Affinity Emails Ltd accept the Applicant's offer to enter into
this Agreement, the Personal Data will form part of the Applicant's customer
records and Affinity Emails Ltd will be entitled to use it for all purposes
connected with the provision of the Services, such Services including, but not
limited to, the provision of the Personal Data to the Registry.
8.4 As part of the provision of the
Services, the Personal Data may be transferred outside the European Economic
Area ("EEA") and by supplying the Personal Data, the Applicant hereby
consents to any such transfer. The
Applicant confirms that he is aware that countries outside the EEA may have
less extensive protection for Personal Data than the
8.5 Affinity Emails Ltd may wish to use
the Personal Data to send the Applicant information about its Services and/or
products. If the Applicant does not wish
to receive any such information, he may send a notice to Affinity Emails Ltd
indicating that he does not wish to receive such information, or respond as
specified in the Website Data Protection and Privacy Policy.
9 TRANSFER REQUESTS
9.1 The Applicant cannot request Affinity Emails Ltd to transfer technical
control of the Name to another Service provider at any time during the term of
this Agreement. This is left to the sole
discretion of Affinity Emails Ltd.
10 GENERAL
10.1 This Agreement including all the documents incorporated by reference
within it constitutes the entire agreement between the Applicant and Affinity
Emails Ltd, supersedes any previous agreement or understanding and may not be
varied except as provided for in this Agreement.