Part 1: General Provisions
In these Conditions, the following expressions will have the following meanings, unless inconsistent with the context:
“Affiliate” – A person, organisation, or establishment indirectly associated with Ixel.
“Agreement” – the agreement between Ixel and the Client for the provision of Services formed by these Terms, any product specific terms and conditions and the Order Confirmation(s)
“Ancillary Systems” – any Software and/or Equipment
“Associated Company” – in respect of either party, a subsidiary or holding company of that party or any subsidiary of such holding company and the terms “subsidiary” and “holding company” will have the meanings given to them by section 1159 of the Companies Act 2006.
“Business Day” – a day which is not a Saturday or Sunday or public or bank holiday in England and Wales
“Business Hours” – 9am to 5pm on each Business Day
“Client Materials” – data, text, images, graphics, videos, logos and other content and material, hardware or equipment provided by the Client in connection with the Agreement for use by Ixel in providing the Services
“Client” – as identified on the Ixel customer support system
“Client System” – the Client’s computer system upon which the Software is loaded or otherwise in connection with which the Services are provided
“Conditions” – these conditions to be read in conjunction with the Order Confirmation(s) where applicable
“Defect” – any defect in systems having a material effect on the Client’s use or operation of the Services or any failure by any Ancillary System to comply with any term of these Conditions
“Domain Services” – those domain registration and other related services (if any) provided to the Client by Ixel pursuant to the Agreement, as described on a relevant Order Confirmation
“Email Marketing Services” – means the provision of data storage services and data management and manipulation software by which (i) persons can give and withdraw notice of their interest in a Customer’s products and services by mobile telephone or online, (ii) storage of personal data relating to the Customer’s target audience (iii) the provision of software to manipulate the data collected, (iv) the provision of facilities for the Customer to send emails to the email addresses stored, (v) facilities for the Customer to export the data along with supporting and ancillary services as may be agreed from time to time.
“Email Suspension” – The email package that was purchased or provided to the Client under a package will be cancelled and no longer accessible to the Client, prohibiting access to the Client’s email account, email mailbox or otherwise from the package or email account created by Ixel. The Client will have prohibited access to the following:- IMAP, Webmail, Mobility, ASMTP and POP
“Email Usage Limit” – The applicable limit on storage for the package purchased by the client, to be defined on the Ixel’ website under “Packages”.
“Email Un-Suspension” – Ixel will un-suspend the Client’s email account to grant full access to the mailbox within the 28 day period of suspending the account, or on the 28th day if the Client is back within the Email storage allowance granted under the Agreement, by purchasing or deleting unwanted email content.
“Equipment” – any hardware, cabling and/or other equipment provided to the Client by Ixel in connection with the Agreement
“Fees” – the charges due to Ixel under the Agreement in relation to the Services, as set out on the Order Confirmation(s) or via the “Packages” page of Ixel’ website or any other page on the website advertising relevant prices to the customer’s package.
“ICANN” – Internet Corporation for Assigned Names and Numbers. A California nonprofit, public benefit corporation of which Ixel provisions services via accredited registrars (to be chosen at Ixel’ discretion).
“Initial Period” – the period of 12 months from the date of the relevant Order Confirmation or, where different, any other period stated on the Order Confirmation or otherwise.
“Registered Account Holder” – You are the Registered Account Holder if you have purchased a service from Ixel for yourself, for a Company or otherwise and control the management of the services.
“Intellectual Property Rights” – any and all patents, trademarks, service marks, copyright, moral rights, rights in design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating to the same
“Netiquette” – generally accepted standards and codes of practice for use of the internet including but not limited to a prohibition on sending bulk unsolicited email, mail bombing or impersonating another person, organisation or website
“Order Confirmation” – the order confirmation form(s) submitted by Ixel to the Client by email, via the client support site (http://support.Ixel.co.uk) or otherwise in writing for the provision of the Services, in response to the Client’s order or request
“Services” – those development, implementation, consultancy, hosting and other services (if any) provided to the Client pursuant to the Agreement, as described on a relevant Order Confirmation or support ticket, together with any support services and domain services.
“Software” – any communications or other software provided to or made available to the Client by Ixel in connection with the Agreement, but excluding Third Party Software
“Support Services” – those support and maintenance services provided to the Client pursuant to the Agreement, as described on a relevant order confirmation or support ticket.
“Support Hours” – the hours 9am to 5pm on each Business Day during which Ixel will provide the Support Services, as set out on a relevant Order Confirmation or support ticket.
“Third Party Software” – any software identified as third party software (if any) to be provided to the Client pursuant to the Agreement, as set out in a relevant Order Confirmation.
“Use the Software” – to load the Software onto and store and run it on the Client System and/or Equipment in accordance with the terms of the Agreement
2.1 The headings used in the Agreement are inserted for convenience only and are not intended to be part of nor to affect the meaning or interpretation of any of the Agreement.
2.2 In the Agreement the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context shall admit or require.
2.3 The expression “person” means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.
2.4 In the event of a conflict between any of these Conditions and any Order Confirmation or support ticket, the conflict will be resolved according to the following order of priority: these Conditions, then relevant tickets, then the Order Confirmation.
2.5 The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.
2.6 The Agreement (as varied in accordance with its terms) forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between the parties.
2.7 The parties do not intend that any of the terms of the Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not party to it.
2.8 References in these Conditions to clauses mean clauses of these Conditions. References in these Conditions to the provisions of statutes or statutory instruments are deemed to include those provisions as amended or substituted.
3.1 The Services are described or referred to on the Order Confirmation(s). Ixel agrees to supply Services to the Client on the following conditions, these conditions are not an offer to provide service but a statement of the terms on which we would provide them.
3.2 Ixel will use its reasonable endeavours to provide the Services in accordance with any timescale set out on the Order Confirmation(s), but will not be liable to the Client where, using those endeavours, it fails to meet any timescale.
3.3 Ixel will not be liable for any failure to provide the Services resulting from any breach by the Client or its employees, agents or subcontractors of the Agreement.
3.4 Ixel will not be obliged to provide any services not referred to on the Order Confirmation(s). Furthermore, Ixel cannot provide the Services where the Client makes use of what in the sole discretion of Ixel can be deemed as incompatible communication systems
3.5 The terms of the Agreement form the entire agreement between Ixel and the Client in relation to the Services and all other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law. The Client may not rely upon any representation made or given by any employee of Ixel prior to the Agreement being entered into unless confirmed in the Agreement.
3.6 Ixel reserves the right at any time and from time to time to improve, correct or otherwise modify all or any of the Services (including substituting Software and/or Equipment. Ixel will endeavour to give the Client reasonable notice of any such modification, where this is reasonably practicable.
3.7 Without prejudice to its other rights and remedies, Ixel may at its sole discretion suspend the provision of the whole or any part of the Services (temporarily or permanently) and will have no liability to provide the Services on the occurrence of any of the following events:
3.7.1 notified or unscheduled upgrade or maintenance of Ixel’ IT systems;
3.7.2 issue by any competent authority of an order which is binding on Ixel which affects the Services;
3.7.3 if the Client fails to pay any Fees or any other sums owing to Ixel by the Client when they fall due;
3.7.4 if an event occurs and Ixel deem it to be appropriate to terminate the Agreement;
3.7.5 if the bandwidth or computer memory used by the Client in relation to the Services exceeds any agreed or stipulated level and Ixel determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by Ixel from time to time;
3.7.6 if the size of an email, mailing list or cron job used by the Client exceeds any agreed or stipulated size, level or frequency and Ixel determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by Ixel from time to time; or
3.7.7 failure or deficiencies in the Client System referring but not limited to hardware, server corruption and security breaches
3.7.8 failure by the Client to adhere to any of the provisions outlined in Ixel’s acceptable usage terms as communicated with the client.
Where Ixel suspends provision of the Services in accordance with clause 3.7.3, it will only be obliged to recommence provision during Business Hours and once the Client has paid all relevant outstanding sums in clear funds together with any relevant reinstatement fee as published from time to time by Ixel and has accepted any revised payment terms requested by Ixel (such as payment by direct debit).
3.8 The Client will provide to Ixel those Client Materials identified on the Order Confirmation(s) within a reasonable time period taking account of the obligations of Ixel under the Agreement.
3.9 The Client warrants that the Client Materials will be accurate in all material respects and will not knowingly include material which is illegal, the accessing holding transmitting or supplying of which would be a criminal offence or which is otherwise unlawful or in breach of any applicable law or code of practice applying to such materials. In particular, the Client warrants that all necessary licences, consents and waivers (including those from rights owners, performers and other contributors) are obtained and paid for by the Client. Without prejudice to the foregoing, Ixel may decline to use any Client Materials on any reasonable grounds.
3.10 The Client will supply in a timely manner all information, instructions, review and feedback reasonably required by Ixel in connection with the performance of its obligations under the Agreement and will appoint a representative who is fully empowered and authorised to provide the same.
3.11 The Client acknowledges and understands that Ixel shall verify the email address the Client provides upon registration, upon the purchase of WHOIS Privacy, upon any updates the Client makes, once a year and at any other time Ixel deem necessary. In the event that the Client’s email address cannot be verified, the Client’s domain(s) shall be suspended within fifteen (15) calendar days and/or removed from the Client’s control.
3.12 Further to the above clause 3.11, the Client acknowledges and accepts that Ixel shall keep a log of the verification checks carried out for as long as is deemed necessary by ICANN.
3.13 The Client acknowledges and understands that Ixel shall cross validate postal address information to spec UPU S42 (or any other method) to ensure that it is a legitimate address. In the event that the Client’s postal address cannot be verified, the Client’s domain(s) shall be suspended within fifteen (15) calendar days and/or removed from the Client’s control.
3.14 That Ixel will on occasion, and at our sole discretion, register domain names using our own details on behalf of customers.
4.1 The Client acknowledges that, given the nature of such services, Ixel cannot guarantee that the Services, when delivered via the internet, will be uninterrupted or error free.
4.2 To the fullest extent permitted by law and save as provided elsewhere in the Agreement, the Services and any Client Systems and Ancillary Systems are provided by Ixel to the Client on an “as is” and “as available” basis and no warranty or representation (express or implied) of any kind are given in connection with the Agreement including as to satisfactory quality and fitness for a particular purpose. In particular, Ixel gives no warranty or representation that:
4.2.1 the Services will meet the Client’s requirements;
4.2.2 the Services will be provided on an uninterrupted, timely, secure or error-free basis; or
4.2.3 any results obtained from use of the Services will be accurate, complete or current.
4.3 Ixel warrants that it will provide the Services with reasonable care and skill. Ixel will not be liable for a breach of such warranty unless the Client notifies Ixel in writing of such failure within 14 days of the Client becoming aware of the failure.
4.4 If the Client makes a valid claim against Ixel based on a failure by Ixel to comply with the warranty set out in clause 4.3 Ixel may, at its option, take such steps as it deems necessary to remedy such failure or refund such part of the Fees as relates to such Services, provided that the liability of Ixel under such warranty will in no event exceed the amount of the Fees paid to Ixel by the Client (excluding VAT and expenses) in the 3 month period prior to the date on which the Client makes the claim. If Ixel complies with this clause, it will have no further liability for a breach of the said warranty.
4.5 Ixel Customer Services must be contacted via the appropriate method (the support ticket system at http://support.Ixel.co.uk). Ixel shall respond via the same medium the Client contacted Ixel, within a reasonable time. In regards to complaints relating to abusive registration or hosting Clients agree to contact Ixel in writing at abuse@Ixel.co.uk. Ixel shall endeavour to respond to such matters within 28 days of receipt of the complaint.
5.1 The Client agrees that it will:
5.1.1 immediately notify Ixel on becoming aware of any unauthorised use of all or any of the Services and/or relevant part of the Client System;
5.1.2 not use the Services, Ancillary Systems and/or Client System or allow them to be used for any unlawful purpose or for the publication, linking to, issue or display of any unlawful material (including any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights including Intellectual Property Rights of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under English law or regulation, the laws or regulations of the Client’s country or any other place where the results of such purpose or the material in question can be accessed;
5.1.3 not use the Services, Ancillary Systems and/or Client System or allow them to be used for the publication, web forwarding, linking to issue of or display of any material which in the absolute discretion of Ixel may harm Ixel or any of its Associated Companies or clients or bring Ixel into disrepute or which calls into question any action taken by Ixel on the Client’s behalf;
5.1.4 not use the Services, Ancillary Systems and/or Client System or allow them to be used in breach of good Netiquette practices;
5.1.5 remove or prevent access to any material hosted on any of the Equipment and/or Client System which causes or is likely to cause the Client to be in breach of the Agreement;
5.1.6 ensure that it has all necessary consents, permissions and licences to make use of the Services including registration and appropriate consents and approvals under the Data Protection Act 1998;
5.1.7 not provide any technical or other information obtained from Ixel and/or relating to the Services to any person which the Client is aware or ought reasonably be aware may directly or indirectly lead to a breach of any law or regulation;
5.1.8 not, in breach of good Netiquette practices, use any service provided by any third party (including an internet web site and/or email) for the publication, linking to, issue or display of any material which refers to an internet web site hosted by Ixel or any other products or services offered by Ixel from time to time without Ixel’ prior written consent;
5.1.9 ensure that all material or data hosted by Ixel on any web site operated by the Client from time to time or communicated through such site or using the Client System is checked for viruses and other harmful code and has appropriate security patches applied;
5.1.10 save as provided in any Order Confirmation, be responsible for keeping regular and full back ups of all material and data hosted by Ixel on any web site or other system operated by the Client from time to time including the Client System and/or Ancillary Systems;
5.1.11 comply with any security policy notified to it from time to time by Ixel and, in particular, ensure that all passwords and user names provided to it by Ixel are at all times kept confidential, used properly and not disclosed to unauthorised people. If the Client has any reason to believe that any password or user name has become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or of any other breach of security then the Client will inform Ixel immediately;
5.1.12 independently monitor its bandwidth in relation to the use of Services and report to Ixel any use of bandwidth over and above those agreed or stipulated levels as detailed on the Ixel website at the time of purchase. Exceeding stipulated levels will incur additional fees as noted in clause 6.1.3;
5.1.13 be entirely liable for all activities conducted and charges incurred under its passwords and user names whether authorised by it or not and the Client acknowledges that Ixel shall not be liable for any loss of confidentiality or for any damages arising from the Client’s inability to comply with these Conditions;
5.1.14 ensure that the Client obtains and maintains insurance over all parts of the Client System which are located on the premises of Ixel or any of its Associated Companies and to provide evidence that such insurance is in place, upon Ixel’s demand;
5.1.15 ensure that all communication details which it provides to Ixel are at all times true, current, accurate and complete. The Client will promptly notify Ixel of any change to such details within 7 days of the change and acknowledges that Ixel will not be liable for any loss suffered or incurred by the Client as a result of its failure to notify such changes to Ixel; and
5.1.16 ensure that its systems (including the Client System) meet any minimum system specifications notified to the Client from time to time.
5.1.17 read and abide (where applicable) to the following policies, specifications and materials:
(i) ICANN Registrant Educational Materials (specifically for resellers), found at https://www.icann.org/resources/pages/educational-2012-02-25-en
5.1.18 provide an active and monitored abuse@emailaddress on their website to allow Law Enforcement Agencies (LEA) to contact them if necessary.
5.2 The Client acknowledges that it has appropriate knowledge of how the internet functions, the systems and products provided to it in connection with the Agreement and what types of use and content are and are not acceptable, some of which are referred to in clause 5.1.2. The Client acknowledges that Ixel shall have no obligation to:
5.2.1 train the Client or its staff on its use of the Services or any Ancillary System;
5.2.2 manipulate any material which the Client wishes to and/or does post on any web site or other system it operates (including any Client System) or any communication which it issues or sends in connection with any Services; or
5.2.3 validate, vet or edit such material for usability, legality, content or correctness.
The Client also acknowledges that the services and products provided by Ixel are standard packages which are not tailored to specific requirements of the Client, unless confirmed in writing by Ixel to the contrary.
5.3 The Client will promptly provide to Ixel and/or its consultants, employees and agents such information and assistance as they may reasonably require in order to be able to carry out the Services and, where relevant, deliver and install any Ancillary Systems.
5.4 The Client will procure all necessary rights from third parties (including intellectual property licences of computer software and website content including but not limited to ringtones, and music and any other relevant media which are from time to time required in order for Ixel to be able legally to provide the Services.
5.5 If, in Ixel’s opinion, the Client is in breach of the provisions of clauses 5.1.2 to 5.1.4 then Ixel may without prejudice to its other rights and remedies immediately by written notice to the Client:
5.5.1 suspend provision of the Services;
5.5.2 terminate the Agreement.
Ixel may also notify appropriate public authorities (governmental or otherwise including the police or other enforcement authority) of any such breach, where it deems necessary.
5.6 Where as part of the Services the Client is entitled (having obtained Ixel’s prior written consent) to resell the whole or any part of the Services to a third party then the Client will:
5.6.1 procure such third party’s compliance with and acceptance of these Conditions;
5.6.2 be fully responsible for the acts and omissions of any such third party; and
5.6.3 indemnify Ixel for any losses it suffers as a result of such acts or omissions.
5.7 The Client acknowledges and understands that it is required to comply with PCI DSS. The Client is responsible to encrypt sensitive data using appropriate methods. For further details on PCI DSS Compliance and the Client’s responsibilities in upholding the standard they need to contact the PCI Security Standards Council.
5.8 The Client is required to provide the following details when purchasing WHOIS Privacy:
The first and last legal name of the registered domain name owner;
The names of the primary name server and secondary name server(s) for the Registered Name;
The identity of Registrant including Registrant’s telephone and fax numbers (including any relevant extension numbers) and email address;
The original creation date of the registration;
The expiration date of the registration;
The name and postal address of the Registered Domain name Holder;
The name, postal address, e-mail address, voice telephone number, and (where available) fax number of the technical contact for the Registered Name;
The name, postal address, e-mail address, voice telephone number, and (where available) fax number of the administrative contact for the Registered Name;
The name, postal address, e-mail address, voice telephone number, and (where available) fax number of the billing contact for the Registered Name.
5.9 The client will not allow any third party to access, or view in whole or part, any part of the Ixel service without prior written consent from Ixel.
5.10 Only the named client will be given access or make use of any part of the WordPress admin system as part of any websites we provision. Unless:
5.10.1 The client has received prior written permission
5.10.2 Purchased a package which extends their site to multiple administrators use
5.11 Ixel reserves the right to refuse access to any part of the site provisioned for client without cause.
6.1 The Fees are payable to Ixel subject to the following conditions:
6.1.1 Fees payable monthly or yearly will be paid in advance and will not be refundable in whole or part if the Agreement or relevant part is terminated during the period to which the payment relates;
6.1.2 any set up fee will (unless stated to be included within later payments) be payable immediately;
6.1.3 additional Fees will become payable if the Client exceeds agreed or stipulated bandwidth use levels. In the event that the Client’s monthly data allowance exceeds that specified in the service paid for, Ixel do not prevent any further data usage. Instead, customers will be charged the standard rate of £2.00 + VAT (at applicable rate) per Gigabyte of additional data used. It is the responsibility of Clients to maintain and monitor their own data usage and no notifications will be sent by Ixel in this regard. Clients should be advised that the current quoted rate is subject to change without notice.
6.2 Any total sum for the fees set out in an Order Confirmation is (unless stated in the Order Confirmation to be a fixed and firm amount) an estimate of the fees only and not a fixed price quotation.
6.3 Any sums payable by the Client to Ixel under the Agreement are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Client at the appropriate rate.
6.4 The Client agrees to pay Ixel’ invoices within 7 days of invoice due date. If invoices are not settled in full by then, the Client will without prejudice to its other rights and remedies (including the right to suspend the Services under clause 3.8.3) be liable to pay interest on any sum outstanding from the due date for payment at the annual rate of 6% above the base lending rate from time to time of Bank of Scotland plc accruing on a daily basis until payment is made whether before or after any judgment.
6.5 All sums payable to Ixel under the Agreement must be paid in full with no set off or deduction.
6.6 Ixel has a general and particular lien over the Client System and or domains until all claims and money payable by the Client to Ixel on any account whatsoever have been received in full clear funds.
6.7 Ixel may make a search in relation to the Client with a credit reference agency (and make other credit enquiries from time to time), keep a record of that search and enquiries, and share that information with third parties. Ixel may also make enquiries about the principle directors/proprietors of the Client with a credit reference agency.
6.8 Where the Client authorises payment of any of the Fees by credit and or debit card then Ixel may deduct other amounts becoming payable to it under the Agreement from that credit or debit card without obtaining additional authorisation from the Client. For the avoidance of all doubt the Client must have an active credit or debit card stored on Ixel’s systems for the duration of the Agreement.
6.9 Without prejudice to any other of its rights and remedies, Ixel will be entitled to remove the Client’s data from its systems and any Equipment and/or put the Equipment to any use other than the Client’s if any amount due under the Agreement is not paid within 14 days of its due date for payment. Ixel is not required to back up such data or return the same to the Client prior to any such removal or following termination of the Agreement.
6.10 Ixel will not refund to the Client the cost of registering a domain name after the Client has submitted the application form for a domain name and it has been registered with the appropriate registrar. This is due to the bespoke nature of domain names.
6.11 Credit and Vouchers
6.11.1 Credit and/or vouchers may be provided to Customers as an alternative resolution to a matter or for any other reason, at the discretion of Ixel.
6.11.2 Credit and vouchers are non-refundable and may not be exchanged for cash or redeemed against the purchase of another voucher.
6.11.3 Ixel will not accept liability if the credit or voucher has been lost, stolen, destroyed or used without the Customer’s consent. Ixel will not replace the credit or voucher or any remaining balance outstanding on the credit or voucher.
6.11.4 Resale, trade, sale or reproduction of a Ixel credit or voucher is prohibited. Any attempt to carry out this act may potentially void the credit or voucher at Ixel’s discretion.
6.11.5 If the full amount of the credit or voucher is not redeemed in one transaction, the remaining balance will be credited to the Customer in a further creditor voucher.
6.11.6 Ixel credit or vouchers may be used to purchase goods or services of a higher price than the face value of the credit or voucher upon payment of the difference in value.
6.11.7 Ixel credit or vouchers will remain valid for a period of 12 months only from the date of issue. Any unused credit or voucher will be void upon the expiry of this period.
7.1 Each party will (unless contrary to law):
7.1.1 keep confidential all information obtained from the other under or in connection with the Agreement (“Information”);
7.1.2 not disclose any Information to any third party without the prior written consent of the other except to such persons and to such extent as may be strictly necessary for the performance of the Agreement;
7.1.3 not use any Information otherwise than for the purposes of the Agreement.
7.2 The provisions of clause 7.1 do not apply to Information which:
7.2.1 is or becomes public knowledge (otherwise than by breach of this clause); or
7.2.2 was in the possession of the party concerned without restriction as to its disclosure before receiving it from the disclosing party; or
7.2.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
and nothing in this clause 7 prevents either party from disclosing any Information for a proper purpose to a public authority or any regulatory body, or to a court of law in the United Kingdom or elsewhere in legal proceedings, or to its senior management, its auditors, bankers, lawyers or other professional advisers.
7.3 The provisions of this clause 7 will continue to apply notwithstanding termination of the Agreement.
7.4 The Client, by entering into the Agreement, consents to Ixel sending to the Client by whatever means Ixel deems appropriate (whether by email or otherwise) information concerning new products and other services that Ixel and its Associated Companies may from time to time offer. The Client may elect to opt out to this communication by unsubscribing at the bottom of the marketing email or otherwise.
8.1 The Client acknowledges and agrees that it will not own or acquire ownership of any Intellectual Property Rights in or relating to the Services or created in performing the Services and that it will have no rights in or to the Services other than the rights expressly granted by the Agreement.
8.2 The Client will indemnify and keep Ixel indemnified from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, legal costs (on a full indemnity basis) and judgments which Ixel incurs or suffers as a consequence of infringement of any Intellectual Property Right of any third party arising directly or indirectly from:
8.2.1 the provision by Ixel of Services making use of information or specifications supplied by the Client;
8.2.2 the Client’s failure to procure all necessary rights from third parties which are from time to time required in order for Ixel to be able legally to provide the Services; or
8.2.3 the use by Ixel in connection with the Agreement of the Client System and the Client Materials.
8.3 No Intellectual Property Rights created or acquired by Ixel will transfer or be assigned to the Client unless Ixel and the Client have signed a written assignment document to that effect.
8.4 The Client shall keep the Ancillary Systems in good condition during the continuance of the Agreement and free of all charges, liens and encumbrances and protect it from any and all judicial process.
8.5 The Client grants full permission without cost or limitation for Ixel to use any Client Material for the purposes of advertising on Ixel’s website and social media accounts, including but not limited to images, screenshots, quotes & statistical data.
9.1 The provisions of this clause 9 and the provisions of clauses 4 and 24 set out the entire liability of Ixel (including any liability for the acts or omissions of its consultants, employees, agents and authorised representatives) to the Client in respect of:
9.1.1 any breach of the Agreement; and
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.
9.2 Nothing in the Agreement excludes or limits the liability of Ixel for death or personal injury caused by the negligence of Ixel, fraud or a breach of section 12 of the Sale of Goods Act 1979.
9.3 Subject to clauses 9.2 Ixel will not be liable to the Client in contract, tort, misrepresentation or otherwise (including negligence), for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, or for any loss of profit, loss of business, loss of contract, loss of revenue, depletion of goodwill or otherwise (whether direct or indirect), and whether or not caused by the negligence of Ixel or its employees, agents or authorised representatives. Any other liability which arises out of or in connection with the Agreement is limited to:
9.3.1 £100 per breach for loss of or damage to tangible property; and
9.3.2 for any other kind of loss, one and a quarter times the amount of sums paid by the Client to Ixel pursuant to the Agreement (excluding VAT and expenses) during the preceding 12 month period.
9.4 The Client acknowledges that the allocation of risk in the Agreement reflects the price paid for the Services and that it is not within the control of Ixel how or for what purposes they are used.
9.5 Where the Client accesses Ixel’ services from locations outside the UK, the Client does so, on the Client’s own initiative and is responsible for compliance with all and any applicable local laws.
The Client will fully indemnify and keep Ixel and its Associated Companies, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including legal fees) whatsoever incurred by it and arising from any of the following:
10.1 the Client’s breach of the Agreement, negligence or other default;
10.2 the operation or break down of any IT systems owned or used by the Client including the Client System but not the Equipment; or
10.3 the Client’s use or misuse of the Services.
Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use or access to the IT systems of Ixel or the Client, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.
12. Term and Termination
Without prejudice to the remaining provisions of this clause 12 and any other rights and remedies available to Ixel:
12.1 Ixel will provide the Services for the period of 12 months from the date of the relevant Order Confirmation or, where different, any other period of supply stated on the Order Confirmation (such period being termed the “Initial Period”). For the avoidance of doubt, the Initial Term includes any 30 day free trial. The supply of services will continue beyond that period for a further minimum 12 months, subject to termination by:
12.1.1 the Client upon serving 14 days’ written notice on Ixel following completion of Ixel’ prescribed template procedures for terminating the whole or any part of the Agreement (details of which can be obtained from Ixel’ Customer Services Team); or
12.1.2 Ixel serving 14 days’ written notice on the Client to expire at any time after the Initial Period.
12.2 Ixel may immediately terminate the Agreement (or at its option, any part of it) by notice in writing to the Client if the Client fails to pay to Ixel any sum due under the Agreement on the due date for payment.
12.3 Either party may terminate the Agreement (or, at its option, any part of it) forthwith by notice in writing serving 14 days to the other if the other party:
12.3.1 is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 14 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;
12.3.2 becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986;
12.3.3 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
12.3.4 has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or
12.3.5 has ceased or threatened to cease to trade.
12.4 Clients that have purchased the Services as Consumers have the right to cancel the Agreement within 14 days at no additional cost from either (a) the date the contract is formed; or (b) the date that the Client receives confirmation that the contract is formed from Ixel or whichever is the later. For the purposes of this clause, the date the contract is formed shall be the date that the Client presses the ‘Order’ button thereby granting consent that the Service commences.
12.4.1 The Client can exercise their right to cancel by contacting Ixel through our support site.
12.4.2 The Client will no longer have the right detailed in clause 12.4 when, Ixel has commenced the Service with the Client’s consent. For the purposes of this clause the Client’s consent will be deemed to be given upon the Client pressing the ‘Order’ button.
12.4.3 If you do not wish to waive these rights, then Ixel will be unable to commence the Service until the end of the relevant cooling off period which is 14 days.
13.Consequences of Termination
13.1 Termination of the Agreement is without prejudice to the rights and duties of either party accrued prior to termination.
13.2 The clauses of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
13.3 Ixel will without notice remove the Client’s data from its systems and any Equipment following termination. For the purposes of this clause, the date of termination will be either the date that Ixel receives authorisation from the Client instructing cancellation of account or the date of expiry of notice of termination served in accordance with these Conditions.
13.4 Upon termination of the Agreement, the Client will forthwith:
13.4.1 cease to use the Software, Equipment and Services;
13.4.2 erase the Software from the Client System and certify to Ixel that this has been done;
13.4.3 return to Ixel any hardware or other equipment loaned to the Client in connection with the Services or any other materials and equipment owned by Ixel; and
13.4.4 pay all outstanding invoices raised by Ixel pursuant to the Agreement and pay for all work in progress not previously paid for on a reasonable pro-rata basis (subject to receipt of an invoice for the same from Ixel).
13.5 In the event of termination of the Agreement by the Client part way through the Initial Period, the Client remains obliged to pay for Services comprising the provision of dedicated server hosting for the remainder of that period.
13.6 Where following termination, Ixel is unable to cancel any registration of a domain name registered on behalf of the Client, it may levy a minimum charge to cover the cost of the domain registration fee. For the avoidance of all doubt Ixel will not refund to the Client the cost of registering a domain name after the Client has submitted a domain name application form, provided that the domain name has been registered with the appropriate registrar. This is due to the bespoke nature of domain names.
13.7 Where the Client services include the purchase of licensing for software by Ixel on behalf of the client, in the event of termination of the agreement by the client, Ixel are unable to refund any proportion of the software and/or licensing fees incurred.
13.8 Upon registration of a domain name the Client must set up the domain to point to a name server/IP address of their choice. In the event that the Client fails to point the domain to a name server/IP address of their choice Ixel may at its discretion point the domain to a Ixel IP address displaying the Ixel holding page. Clients accept that this page may contain Ixel advertisements/marketing material.
13.9 The Client agrees (and any representative or agent acting on their behalf) to not to copy, in whole or part, any element of the website/services provided by Ixel after termination without prior written consent from Ixel. This may be subject to fees and includes, but not limited to, templates, databases, configuration files and html content.
13.10 In the event Ixel determines that 13.9 has been breached, the client agrees to pay a fee of £750 or an other amount lower than these figures at the discretion of Ixel to obtain license to continue to such material & cover production labour costs, regardless of duration of use and including in situations where use is terminated after payment request is made.
The illegality, invalidity or unenforceability of any provision of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such provision is found by any court or competent authority to be illegal, invalid or unenforceable, the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
15.1 The failure or delay by either party in exercising any right, power or remedy of that party under the Agreement will not in any circumstance impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by either party of any right, power or remedy under the Agreement will not in any circumstance preclude any other or further exercise of it or the exercise of any other right, power or remedy.
15.2 Any waiver by either party of a breach of or default under any of the terms of the Agreement by the other party is not deemed a waiver of any subsequent breach or default and in no way affects the other terms of the Agreement.
16.Assignment and Subcontracting
The Client may not assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to its Associated Company) without the prior written consent of Ixel. Any consent provided by Ixel under this clause is given on condition that the assignee or licensee, as the case may be, agrees to comply with the terms of the Agreement as if they were the Client. Ixel may sub-contract or assign any or all of its rights and obligations under the Agreement.
No variation or amendment to the Agreement (including any Order Confirmation) is effective unless agreed in writing and signed by an authorised representative of Ixel.
Any notice to be given or made by either party under or in connection with the Agreement must be in writing and given or made to the other party at its address stated in the Order Form or to such other address as either party may from time to time notify to the other. Every notice, if so addressed, is deemed to have been duly given or made, if delivered by hand, upon delivery at the address of the relevant party, if sent by prepaid first class post, two Business Days after the date of posting and if transmitted by facsimile, at the time of transmission (provided a confirmatory letter is sent by prepaid first class post) provided that, where, in accordance with the above provisions, any notice would otherwise be deemed to be given or made on a day which is not a Business Day or after 4.00 p.m. on a Business Day, such notice shall be deemed to be given or made at 9.00 a.m. on the next Business Day. Ixel may additionally serve notice on the Client under or in connection with the Agreement by email to the Client by sending an email to the contact email address stated on the Order Confirmation(s),and in such a case the email will be deemed sent once transmitted from Ixel’s email server.
19.Applicable Law and Jurisdiction
The construction, performance and validity of the Agreement will be governed by English law and the English courts have jurisdiction to settle any disputes which may arise out of or in connection with it.