Terms and Conditions
KhooSeller is part of Khoo Systems Ltd and therefore the same Terms & Conditions apply.
Definitions and Interpretation
In this Agreement, the following expressions shall have the following meanings:
Khoo Systems means Khoo Systems Limited whose registered offices are at Eureka Park, Upper Pemberton, Ashford, Kent, TN25 4AZ.
Confidential Information means information that is identified as confidential or proprietary by Khoo Systems.
Fees means the fees due for the provision of the Services as calculated by Khoo Systems (where appropriate such calculation to be in accordance with the Price List) together with any Value Added Tax or other taxes or dues payable thereon.
Headings are included in these terms and conditions for ease of reference only and have no other significance. For the avoidance of doubt, all terms and conditions under every heading are included in any contract incorporating these terms and conditions irrespective of the service to be provided.
Inappropriate Material: material that under the laws of any jurisdiction where the material can be accessed or stored, is or may be considered to be, any of the following: - unlawful, threatening, abusive, harmful, malicious, obscene, pornographic, profane, libelous, defamatory, infringes any Intellectual Property Rights, constitutes or encourages a criminal offence or contains a virus, worm, Trojan horse or other harmful code, or may be damaging to any other person or body.
Intellectual Property Rights: copyrights, patents, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
Material : text, graphics, images, sound, video or any combination thereof.
Khoo Systems' Server : the computer server equipment operated by Khoo Systems in connection with the provision of the Services.
Khoo Systems' Website : the Website located at or such other internet address as may be adopted by Khoo Systems from time to time.
Netiquette: generally accepted standards of conduct relating to the use of the Internet. Netiquette shall include the exclusion of the following:
- the sending of unsolicited mass e-mail,
- the impersonating of another person, persons, corporation or body,
- the representation, either directly or by innuendo, that there is authorization from another person or body when no such authorisation exists. Where there is a dispute as to what constitutes Netiquette, the decision of Khoo Systems shall be binding on all parties.
Price List : a list of Khoo Systems' then current standard prices for each of the Services available on request from Khoo Systems.
Khoo Systems Standard Services Listing means a list of Khoo Systems then current Standard Services and the component parts of each of those Services.
Relevant Legislation : such laws of England and Wales and the Customer s country as relate to data protection and any laws of England and Wales and the Customer's country governing Inappropriate Material.
Services : the services identified on the Order Form Acceptance and as detailed in the edition of Khoo Systems Standard Services Listing current at the date and time of the provision of the service.
Website : a website on the World Wide Web.
Security Phrase : a unique word or phrase or combination thereof selected by the Customer, or by Khoo Systems on behalf of the Customer, and when used verifies the Customer's authorisation to undertake the activities set out in Khoo Systems Standard Service Listing.
Term : the period of time that the agreement shall be in force as specified in the Order Form Acceptance.
The Customer and/or The Client : the person, persons, corporation or other body referred to as either the Customer or as the Client on the Order Form Acceptance. For the avoidance of doubt, the words should be read as interchangeable.
Reasonable Endeavour means acting with due diligence, and where due diligence has been so exercised, the party required to use reasonable endeavour shall be deemed to have performed the said obligation under this agreement.
Payment and Services
2. In consideration of the Fees payable by the Customer, Khoo Systems agrees to provide the Services.
2.1 The Customer agrees to make payment for the Services as follows:
2.1.2 if the Customer agrees in writing, then by debit or credit card payment at the time of making the order;
2.1.3 if by invoice, such invoice to be paid within 14 days of the invoice date;
2.1.4 where payment is by direct debit or standing order it shall be paid on the date specified by Khoo Systems into Khoo Systems nominated bank account;
2.2 If the Customer fails to make any payment that is due and payable under this Agreement, Khoo Systems shall be entitled, without limiting any other rights it may have:
2.2.1 To charge interest on the outstanding amount at its option as follows:
Option One - at the rate of 4% above the base rate from time to time of HSBC plc from the due date until the outstanding amount is paid in full;
Option Two - Interest will be calculated at the same rate as the monthly interest rate charged by Barclaycard on balances outstanding on standard Barclaycard accounts for the month of calculation, or such lesser interest as set out in the Khoo Systems Price List. The interest will be calculated on the amount overdue on the 15th day of each month; and2.2.2 To suspend the Service until payment together with interest or other charges is received in full in cleared funds.
2.3 Non-delivery or non-performance of services by any third party other than Khoo Systems' sub-contractors shall not give the Customer any right to delay any payment to Khoo Systems or to make any claim whatsoever against Khoo Systems.
2.4 If Khoo Systems does not receive payment in full within 14 days of the date of a payment becoming due, it may terminate this Agreement without further obligation to the Customer.
2.5 For the purposes of this Agreement, time of payment is of the essence.
Indemnity
3. The Customer hereby agrees fully to indemnify, keep indemnified and hold harmless Khoo Systems, its officers, employees, agents, sub-contractors and affiliated companies from and against any and all costs, claims, losses, damages or liability (whether civil or criminal) and expenses (including, but not limited to, legal fees) sustained or incurred by Khoo Systems or its any of its officers, employees, agents, sub-contractors or affiliated companies directly or indirectly and in any jurisdiction as a result of:
3.1 the provision by Khoo Systems of the Service;
3.2 any breach by the Customer of any of its warranties, agreed conditions or representations contained in, or associated with, this Agreement; or
3.3 any content, material or required mode of operation, supplied or specified by the Customer, for the Service.
Customer Authorisation and Obligations
4.1 The Customer hereby appoints Khoo Systems to act on its behalf in conjunction with the provision of the Services.
4.2 The Customer will provide to Khoo Systems the information required by Khoo Systems. The Customer acknowledges and accepts that to enable Khoo Systems properly to provide the Services it must co-operate with Khoo Systems as required by Khoo Systems. Without limiting the generality of the foregoing subclasses the Customer agrees as follows:
4.2.1 to provide Khoo Systems with accurate details of its e-mail and physical addresses and promptly notify Khoo Systems in writing of any alterations thereto from time to time;
4.2.2 to obtain the consent of individuals whose personal data are to be held on a domain name register or are otherwise provided to Khoo Systems;
4.2.3 to keep any Customer's user ID issued to the Customer and all other security items issued to the Customer secure so that such ID or item is only used by the Customer or those authorised by the Customer; and
4.2.4 the Customer acknowledges and accepts that it is responsible for the security and proper use of all Security Phrases, user IDs and other security items used in connection with the Service and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised people. Khoo Systems will have no liability whatsoever in regard to the use or misuse of any such Security Phrases, user IDs and other security items by any third parties whether authorised by the Customer or not.
4.2.5 the Customer acknowledges and accepts that all Security Phrases, user IDs, other security items or codes giving access to any systems, developed websites or programs or otherwise, used in connection with the Service, may only be used by the Customer, or anyone acting on its behalf, for the purposes authorised by Khoo Systems. The Customer shall indemnify Khoo Systems in respect of any misuse or unauthorised use thereof. Khoo Systems will have no liability whatsoever in regard to the misuse or unauthorised use of any such Security Phrases, user IDs and other security items by the Customer or any third parties whether authorised by the Customer or not.
4.2.6 the Customer must satisfy security checks as Khoo Systems may operate in order to change Security Phrases;
4.2.7 Khoo Systems reserves the right to suspend Security Phrase access to the Services if at any time Khoo Systems considers there is or is likely to be a breach of security; 4.2.8 the Customer agrees that Khoo Systems is authorised to act on instructions that contain the Customer's Security Phrase within any form of communication.
Khoo Systems Warranties
5.1 Khoo Systems warrants that it will make reasonable endeavours to provide the Services. It is hereby acknowledged that because the Services are provided by means of computer and telecommunication systems, Khoo Systems gives no warranties or representations that any Service will be uninterrupted or error-free. Where the Service is so interrupted by or subjected to error through fault or otherwise of equipment or of line or other forms of communication not under the direct control of Khoo Systems, such interruption or errors shall not be considered to be a breach of this warranty or of this agreement.
5.2 In providing the Services, Khoo Systems shall do so to the standard that Khoo Systems considers appropriate and having regard to the nature of services generally required by its customers.
5.3 Except as expressly stated in this agreement (and in so far as required by law where the Customer is a consumer as defined in the UK Unfair Terms in Consumer Contracts Regulations 1994) all implied conditions, warranties and terms (whether express or implied by statute, common law, custom or otherwise) including, but not limited to, those relating to the exercise of reasonable care and skill, fitness for purpose and durability and satisfactory quality (where applicable) are hereby excluded in relation to each of the Services to be provided.
Limitation of Liability
6.1 The Customer shall not use the Services in any circumstances where the provision of the Services, the non-performance of the Service or the negligent performance of the Services, could cause personal injury or death to any person.
6.2 The Customer shall satisfy itself as far as it is able as to the truthfulness and reliability of any statements made by Khoo Systems or on Khoo Systems' behalf.
6.3 The liability of Khoo Systems arising out of any tort, breach of duty (statutory or otherwise), breach of this agreement or other liability is limited to a sum equal to the Fee in the period of 12 months preceding the event giving rise to the liability for the service out of which the alleged tort or breach has arisen.
6.4 Khoo Systems will not be liable for any indirect or consequential loss or damage whatsoever suffered by the Customer or any other person or body. Where any person or body not a party to this agreement shall allege that they have suffered any such loss as a result of the provision of Services under this agreement and claim from Khoo Systems, the Customer shall indemnify Khoo Systems in respect thereof. Without limiting the generality of the foregoing such loss referred to in this paragraph shall include loss of business, loss of opportunity, loss of profits and shall include losses arising as a result of the disclosure of the Customer's password or Security Phrase.
6.5 Where Khoo Systems gives advice to the Customer (or to a third party on behalf of, or at the request of the Customer) whether Khoo Systems has been advised of the possibility of specified losses or damages arising out of such advice, or not, Khoo systems shall not be liable for any loss of damage arising from that advice.
6.6 The liability of Khoo Systems for any damages arising from the provision of the Service contracted for under this agreement, including, but not by way of limitation, any breach of this agreement, shall be deemed to terminate 12 months after the date on which the customer ought reasonably to have known of the event giving rise to the liability.
Termination
7.1 Khoo Systems may terminate this Agreement by notice in writing to the Customer having immediate effect if:
7.1.1 the Customer is in breach of any of its obligations under this Agreement;
7.1.2 the Customer is a company and a resolution is passed for its winding up or a petition for its liquidation is presented; or
7.1.3 the Customer is an individual and a petition for bankruptcy is presented against it; or
7.1.4 a receiver or liquidator (where the Customer is a company) or (where the Customer is an individual) a trustee in bankruptcy is appointed over it or any of its assets; or
7.1.5 the Customer proposes or enters into any arrangement or composition with or for its creditors (including any voluntary arrangement).
7.2 In the event that any of the circumstances identified in clause 7.1 arises, Khoo Systems shall have the option to terminate this Agreement in its entirety, or, at Khoo Systems option, to terminate the provision of selected services only, the services terminated being in the absolute discretion of Khoo Systems.
7.3 In the event that any of the circumstances identified in clause 7.1 arises, Khoo Systems shall be entitled to retain any sums paid to it by the Customer hereunder and to recover any sums due to it pursuant hereto whether invoiced or not at the date of termination.
7.4 Either party may terminate this Agreement, after the minimum period of the Term when applicable, on 30 days written notice served in accordance with clause 9.7 (Notices);
Confidentiality
8.1 Each of the parties agrees, subject to the other provisions of this clause, not to:
8.1.1 disclose any Confidential Information received from the other party; or
8.1.2 make any use of any such Confidential Information other than for the purposes of the performance of this Agreement.
8.2 Each party may disclose Confidential Information received from the other to its responsible employees, consultants, sub-contractors or suppliers who need to receive the information in the course of performance of this Agreement.
8.3 The confidentiality obligations under clause 8.1 shall not apply to any information which:
8.3.1 is or subsequently becomes available to the general public other than through a breach of this agreement; or 8.3.2 is already known to the receiving party before disclosure by the disclosing party; or
8.3.3 is developed through the independent efforts of the receiving party; or
8.3.4 the receiving party rightfully receives from a third party without restriction as to use.
General
9.1 Subject to clause 9.2, this written Agreement constitutes the entire agreement between the parties hereto and save in respect of fraudulent statements supersedes all prior agreements, arrangements, understandings and representations (whether oral, written or otherwise) made by or between the parties and the Customer acknowledges that it has not relied on any representation made by Khoo Systems unless such representation is expressly either included herein or in a document that expressly refers to such representation as being included in these terms and conditions.
9.2 No change, alteration or modification to this Agreement shall be valid unless it is in writing and is expressed to change, alter or modify this Agreement and signed by the Customer and Khoo Systems.
9.3 If any provision of this Agreement or part thereof shall be void for whatever reason, the offending words shall be deemed deleted and the remaining provisions shall continue in full force and effect.
9.4 The rights and obligations of the Customer under this Agreement are personal to the Customer and the Customer undertakes that it shall not nor purport to: assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part. If as a result of a breach of this sub-clause, a third party makes any claim against Khoo Systems, the Customer shall indemnify Khoo Systems in respect of all costs, expenses and damages suffered by Khoo Systems as a result thereof.
9.5 Khoo Systems reserves the right to sub-contract any of the work required to fulfill its obligations hereunder.
9.6 Khoo Systems may change any of these terms and conditions by giving the Customer 7 days notice in writing of the intended change. At the expiration of the notice period the changed terms and conditions shall be substituted for the terms and conditions so changed.
9.7 Notices
All notices given under this Agreement shall be in writing and shall be delivered as specified in this clause.
Notices given by Khoo Systems to the Customer
The notice shall be sent to the address of the customer as set out in the Order Form Acceptance or such other address or electronic mail address as Khoo Systems shall reasonably believe will come to the notice of the Customer. For the avoidance of doubt, where Khoo Systems do not know the present whereabouts of the customer, a notice shall be properly served if it is sent to the address of the Customer given in the Order Form Acceptance. Any such notice may be delivered personally, by first class pre-paid letter, by facsimile transmission or electronic mail and shall be deemed to have been served as follows:
By hand delivery - at the time of delivery to the premises
By first class - 24 hours after the date of mailing where the address is within the United Kingdom and after 3 working days of the date of mailing where the address is outside the United Kingdom
By facsimile - on transmission
By electronic mail on transmission.
Notices given by the Customer to Khoo Systems
The notice shall be sent to Khoo Systems the current address at the time and date of giving the notice, and shall be deemed to have been served as follows:
By hand delivery - at the time of delivery provided that the notice is handed to an officer of Khoo Systems Limited. Where the notice is not so delivered to an officer of Khoo Systems Limited, the delivery shall be deemed not to be effective service.
By first class post on receipt by Khoo Systems
By facsimile - on receipt, by the Customer, of facsimile confirmation from Khoo Systems that they have received the notice.
By electronic mail - on receipt, by the Customer, of electronic mail confirmation from Khoo Systems that they have received the notice
9.8 Khoo Systems shall not be liable for any loss suffered by the Customer or any third party or be deemed to be in default for any delays or failures in performance hereunder resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.
9.9 Any delay or forbearance by Khoo Systems in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
9.10 Clause headings have been included in this Agreement for convenience only and shall not be considered part of, or be used in interpreting, this Agreement.
9.11 This Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
Domain Name Registration
10.1 Khoo Systems reserves the right to reject any request by a Customer to register a domain name and, in it absolute discretion and without explanation, to discontinue processing a registration of a domain name.
10.2 Subject to the clauses of these terms and conditions, the extent of Khoo Systems service in relation to the registration of domain names is:
10.2.1 to forward the Customer's application to the appropriate Registry;
10.2.2 to provide administrative support in securing the registration;
10.2.3 to notify reasonably promptly the Customer of the outcome of the application;
10.2.4 in the event of re-registration, to endeavour to notify the Customer of the renewal date for such re-registration and only to complete such renewal on payment by the Customer of the renewal fees.
10.3 Khoo Systems shall have no liability in respect of damages or other liability arising out of the Customer s use and retention of a domain name once registered.
10.4 Without prejudice to clause 6 above, Khoo Systems shall not be liable to the customer for any direct, indirect or consequential loss, damage cost or expense including, without limiting the generality of the foregoing, any loss of profit, business or anticipated savings suffered by a customer on account of a failure to obtain or loss of a domain name;
10.5 Without prejudice to clause 5 above, Khoo Systems gives no warranty or representation as to the likelihood or otherwise of a particular domain name application being successful, and shall have no liability for the rejection of an application for the registration of a domain name.
10.6 The Customer s use of the domain name once registered may be challenged by a third party. The registration of a domain name does not confer any legal rights to a name or its use. In the event of a challenge, the procedures laid down by the relevant registry will apply. Where required to do so, the Customer will consent to the suspension or revocation of the application for, or the registration of, a domain name. Khoo Systems shall have no liability whatsoever in respect of a challenge by a third party and the procedures and events resulting therefrom, including, but not by way of limitation of the generality of the foregoing, the loss of the domain name. Khoo Systems shall have no liability whatsoever in, or to, defending or otherwise dealing with a challenge to a domain name.
10.7 It is the Customer s responsibility to pay any and all renewal charges to the relevant registry in respect of each domain name registered by Khoo Systems on the Customer s behalf.
10.8 Khoo Systems only liability under this agreement is to communicate with the domain name registry and the Customer. The Customer accepts responsibility to communicate with, and to otherwise deal with, any third parties in regard to the domain name. Where Khoo Systems is obliged to communicate with and have dealing with a third party resulting from the provision of the Service to the Customer, the Customer will indemnify Khoo Systems with regard to all costs, fees, expenses and liability. 10.9 An application for the registration of a domain name is not complete until the Customer is issued with a Registration Certificate from the relevant registry. The Customer agrees not to take any action in respect of a requested domain name until such a certificate has been issued to the Customer.
10.10 Khoo Systems may change the terms and conditions of the contract on renewal of the registration of the domain name. All renewals will be made under the Terms and Conditions current at the time of the renewal.
10.11 Once a domain name(s) is registered the Fee is non-refundable.
10.12 The Customer warrants to Khoo Systems that:
10.12.1 all information provided by the Customer to Khoo Systems is true and correct, and that any additions or alterations thereto will also be true and correct;
10.12.2 it has the legal right to apply for and use the domain name(s) as a Website address; and 10.12.3 the domain name(s) and its/their use as a Website address does not and will not infringe the Intellectual Property Rights or any other rights of a third party.
10.12.4 The Customer will indemnify Khoo Systems in respect of all claims, expenses and costs however arising, as a result of a breach of this clause.
10.13 The Customer acknowledges:
10.13.1.1 that the application process, registration and subsequent use of any domain name is subject to the then current terms and conditions and policies of the relevant registry and the Customer agrees to abide by all such rules and policies; and
10.13.1.2 the Customer undertakes to read those terms and conditions and policies before applying for a domain name and to comply with them. In the event of the customer being unable to comply with this sub-clause, to notify in writing Khoo Systems of this fact and to withhold instruction to proceed until such time as the Customer has complied with this clause.
10.14 If the Customer s application for a domain name is rejected and provided that the Customer has not breached its obligations in this Agreement, Khoo Systems will return to the Customer any payments received in respect of that application subject to a deduction of the administration fee set out in the current edition of Khoo Systems Price List.
Website Hosting
11.1 The Customer will provide and post to Khoo Systems server hosting the Customer s Website only Material which is server-ready and which requires no additional manipulation on the part of Khoo Systems.
11.2 Khoo Systems shall have no responsibility to validate Material or to ensure that it does not contain Inappropriate Material or to check it for content, correctness, legality or usability.
11.3 The Customer warrants that both it and its web development agency, has the level of knowledge necessary to deal in websites and website development. Without limiting the generality of the foregoing, the Customer warrants that both it, and its web development agency have detailed knowledge of hypertext mark up language, file transfer protocol and other protocols, languages and software.
11.4 It is the Customer s responsibility to upload the content of the Customer s Website and to check that such content functions satisfactorily.
11.5 If Khoo Systems assists the Customer in regard to the matters referred to herein and that assistance does not form part of the Service contracted for, then in so doing, Khoo Systems does not accept any responsibility or liability in regard thereto.
11.6 The Customer has sole responsibility for the content of all Material appearing on its Website hosted by Khoo Systems Server. For the avoidance of doubt, this clause shall apply to all Material, whether posted on to the Khoo Systems server by or on behalf of the Customer, whether by Khoo Systems or a third party.
11.7 The Customer warrants, represents and undertakes in relation to all Material (including any Material which it requests Khoo Systems or any third party to post on its Website hosted by Khoo Systems Server) that:
11.7.1 it is not Inappropriate Material;
11.7.2 the Customer either has sole ownership of all Intellectual Property Rights in such Material in each jurisdiction from which the Website may be accessed or stored and/or has obtained full and effective licence(s) from all relevant third parties allowing the Customer or a third party acting on behalf of the Customer to use the Material and to permit its dissemination world wide.
11.8 The Customer undertakes not to link to any Inappropriate Material from its Website.
11.9 Khoo Systems shall retain the right at all times to refuse to host any Material and to suspend availability of the Website and/or to remove any Material already appearing on the Website which in the opinion of Khoo Systems:
11.9.1 constitutes or would if posted constitute Inappropriate Material;
11.9.2 breaches or would if posted breach Relevant Legislation or any other applicable regulations, standards or codes of practice (notwithstanding that compliance may not be compulsory); and/or
11.9.3 harms or would if posted harm the reputation of Khoo Systems in any way.
11.10 Khoo Systems rights to suspend availability of the Customer s Website and/or remove shall be without prejudice to the Customer s sole responsibility for content of the Website and to the warranties given by the Customer relating to that content.
11.11 Hosting of Material by Khoo Systems shall not under any circumstances constitute a waiver of any of its rights or of any claim it might have in relation to such Material or of its rights in relation to any breach of the Customer s obligations under this Agreement.
11.12 The Customer undertakes:
11.12.1 to pay the charges applicable to the provision of web hosting;
11.12.1 to fully virus-check all data supplied to Khoo Systems;
11.12.2 not to embark on any course of action, whether by use of its Website or any other means, which may cause a disproportionate level of Website activity without providing at least seven day s prior notice in writing to Khoo Systems;
11.12.3 to keep secure from third parties any passwords issued to the Customer by Khoo Systems in connection herewith;
11.12.4 not to change the user names and passwords without the prior consent of Khoo Systems;
11.12.5 to observe the limitations on data transfer notified to it by Khoo Systems and agree, if such limits are exceeded, to pay the appropriate excess charge at Khoo Systems then current rates.
11.13 Khoo Systems undertakes:
11.13.1 to be responsible for maintaining the availability of the Khoo Systems Server on a reasonable endeavours basis;
11.13.2 to provide telephone and e-mail support as set out in Khoo Systems Standard Services Listing current at the date of the provision of the service, such support to be on a reasonable endeavours basis.
11.14 Support will be charged for in addition to hosting fees, subject to the conditions set out herein.
11.15 If the Khoo Systems Server is not responding, Khoo Systems will replace or restore the Khoo Systems Server within 72 hours of becoming aware of the failure and Khoo Systems will restore the data from back up if necessary provided always that if the Khoo Systems Server is not so responding and Khoo Systems comply with this provision, it will have no further or other liability either to the customer or any third party in regard to such non-response. In the event of a third party holding Khoo Systems responsible, the Customer shall indemnify Khoo Systems in respect thereof.
11.16 If:
11.16.1 the Customer shall be in breach of this agreement; or
11.16.2 the Customer shall, in the absolute discretion of Khoo Systems, appear to be in breach of this agreement; or
11.16.3 the use of the Customer s website, in the absolute discretion of Khoo Systems, shall be disproportionate to the usage made by other customers; then, in any or all of these events, Khoo Systems may suspend or cancel the Service without notice.
E-mail Services (including e-mail forwarding)
12.1 The Customer undertakes that it will not (and will ensure that others under its control will not) via e-mail:
12.1.1 transmit Inappropriate Material;
12.1.2 infringe the Intellectual Property Rights of any third party;
12.1.3 contravene Netiquette;
12.1.4 make use of Khoo Systems Server to an extent or in a manner which in Khoo Systems reasonable opinion is excessive, wasteful or otherwise to the detriment of Khoo Systems, any of Khoo Systems customers or any other third party, including but not limited to:
12.1.4.1 the transmission of bulk e-mail ( spamming ); or
12.1.4.2 flaming .
12.2 When sending e-mail, the Customer must comply with any Relevant Legislation.
12.3 Khoo Systems shall not be responsible for the security of the contents of e-mail sent or received by the Customer.
12.4 Khoo Systems will use its reasonable endeavours to ensure that messages are routed accurately and promptly but do not accept any liability for non-receipt, non-delivery or misrouting of e-mail or any other failure of the e-mail system.
12.5 Khoo Systems reserves the right to monitor e-mail to ensure its customers are not in breach of this agreement.
12.6 If, in the absolute discretion of Khoo Systems:
12.6.1 the Customer or any third party under the Customer s authority or a third party using the Customer s facility without the Customer s authority, is in breach of this agreement, Khoo Systems may stop or edit e-mail and may disclose the contents of e-mail to interested third parties.
12.6.1 Khoo Systems is required by law to make disclosure of e-mail to a third party it may do so.
12.7 The monitoring of e-mail by Khoo Systems under the provisions of this clause shall not:
12.7.1 be deemed to be notice of any breach of the agreement;
12.7.2 be consent to a breach of this agreement;
12.7.3 Impose any liability on Khoo Systems with regard to the e-mail either to the customer or to a third party.
Web Development and Programming Services
13.1 Khoo Systems Web Development Service is provided on a reasonable endeavours basis, that is if Khoo Systems uses due diligence in undertaking the devolopment and programming work, it shall have performed its obligations hereunder.
13.2 The Customer agrees to:
13.2.1 pay the charges applicable to the provision of web development and programming services.
13.2.2 to fully virus-check all data supplied to Khoo Systems pursuant to this Agreement;
13.3 The Customer is solely responsible for providing Material appearing on its Website and as to the Material s acceptability under both this agreement and as to the law of any jurisdiction in which the Material can be accessed or stored, and whether that Material has been installed and developed by Khoo Systems or not.
13.4 The Customer warrants, represents and undertakes in relation to all Material (including any Material which it requests Khoo Systems or any third party to incorporate into its Website) that:
13.4.1 it is not Inappropriate Material;
13.4.2 the Customer either has sole ownership of all Intellectual Property Rights in such Material in each jurisdiction from which the Website may be accessed and/or stored and/or has obtained full and effective licence(s) from all relevant third parties allowing the Customer or a third party acting on behalf of the Customer to use the Material and to permit its dissemination world wide;
13.5 The Customer undertakes not to link to any Inappropriate Material from its Website.
13.6 Khoo Systems shall retain the right at all times to refuse to develop any Website and/or to remove any Material already appearing on the Website which in the opinion of Khoo Systems:
13.6.1 constitutes or would if posted constitute Inappropriate Material;
13.6.2 breaches or would if posted breach Relevant Legislation or any other applicable regulations, standards or codes of practice (notwithstanding that compliance may not be compulsory); and/or
13.6.3 harms or would if posted harm the reputation of Khoo Systems in any way.
13.7 Khoo Systems rights to suspend availability of the Customer's Website and/or remove content shall be without prejudice to the Customer's sole responsibility for content of the Website and to the warranties given by the Customer relating to that content.
13.8 Where Khoo Systems are the sole developer of a web site and/or are authors of a computer program, it shall remain the absolute owner of the intellectual property rights in the site developed, in the graphics, images, text and programs used in the site developed and/or the computer program written.
13.9 Where Khoo Systems develop a web site and/or authors a computer program jointly with others, or in succession to others, Khoo Systems shall remain the absolute owner of the intellectual property rights in that part of the work either authored and originated by them or, where alterations are made to work already undertaken and the work by Khoo Systems substantially changes the original work, Khoo Systems shall remain the absolute owner of the intellectual property rights in any such work substantially changed.
13.10 Until such time as the total purchase price of the developed site and/or programming and associated payments has been paid by the Customer to Khoo Systems, the Customer shall have no rights or licence in regard to the site developed nor in regard to any graphics, images, text and programs.
13.11 On payment of the total purchase price, Khoo Systems will:
13.11.1 Where the developed site and/or program is to be hosted by Khoo Systems, grant licence to use the developed site and/or program on the Khoo Systems server.