1.1 Definitions. In these Conditions, the following definitions apply:
Bespoke Software, means all software written, created or developed by or on behalf of nsmDigital for the purposes of or pursuant to the Services, excluding, either in whole or in part, nsmDigital Software, Third Party Software and any already existing modules and/or codes thereof.
Booking Form, means the form to be prepared by nsmDigital and completed and signed by the Client and, in the absence of such form, the specifications as shall be agreed between nsmDigital and the Client in writing from time to time.
Business Day, means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Client, means the person or firm who enters into an arrangement to purchase Services from nsmDigital as set out in the Booking Form.
Client Data, means data, in whatever form, owned, held and/or controlled by the Client which is made available to nsmDigital or is otherwise created, collated or collected and/or accessed by nsmDigital in connection with the Services;
Client Materials, means any materials provided by the Client to nsmDigital.
Client Software, means all software, the Intellectual Property Rights in which are owned by the Client, or licensed to the Client by a Third Party (other than for the purposes of or pursuant to the Services) which are required to be used by nsmDigital for the purposes of or pursuant to the Services.
Conditions, means these terms and conditions as amended from time to time in accordance with clause 11.8.
Contract, means the contract between nsmDigital and the Client for the supply of Services in accordance with these Conditions and the Booking Form and the signing of the Booking Form shall be deemed to be unconditional acceptance by the Client of these Conditions and the Booking Form.
Contract Commencement Date means the date set out in the Booking Form.
Contract Term means the term set out in the Booking Form.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Subject: means an individual who is the subject of Personal Data.
Deliverables, means all documents, products and materials developed by nsmDigital or its agents, contractors and employees as part of or in relation to the Services.
nsmDigital Materials, means all materials, equipment, documents and other property of nsmDigital the Intellectual Property Rights in which are owned by nsmDigital and which are either Deliverables or are incorporated in Deliverables, excluding Third Party Materials, New Materials and Software and including Pre-existing Intellectual Property Rights.
nsmDigital Software, means software which is proprietary to nsmDigital and which has not been created by nsmDigital pursuant to or in connection with the Services.
Intellectual Property Rights, means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
New Materials, means all materials (including any presentations, reports, specifications, designs, user guides, documentation and works) conceived, designed, prepared or created by or on behalf of nsmDigital for the purposes of or pursuant to the Services or arising out of the provision of the Services and/or Deliverables excluding Software, nsmDigital Materials, Client Materials and Third Party Materials.
Personal Data, has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which nsmDigital is providing services under the Contract.
Pre-existing Intellectual Property Rights, means Intellectual Property Rights existing before the Contract Commencement Date.
Processing and process, have the meaning set out section 1(1) of the Data Protection Act 1998.
Service Fees, means the fees payable by the Client for the supply of the Services in accordance with clause 5 and the Booking Form, including expenses incurred and Materials.
Services, means the services, including the Deliverables, provided by nsmDigital to the Client as set out in the Booking Form or as may be agreed in writing between the parties from time to time.
Services Commencement Date has the meaning given to it in the Booking Form.
Software, means the computer programs used by nsmDigital from time to time and any Modification which is acquired by the Client during the subsistence of this Contract.
Third Party Materials, means all materials which are proprietary to any third party and which are either Deliverables or are incorporated in Deliverables, excluding nsmDigital Materials, New Materials and Software.
Third Party Software, means software which is proprietary to any third party and which has not been created pursuant to or in connection with the Services.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body whether or not having separate legal personality;
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes e-mails
2.1 The Booking Form constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The offer to purchase the Services from nsmDigital shall be deemed to be accepted and the Contract shall come into existence on the Contract Commencement Date as indicated in the Booking Form or, in the absence of a Booking Form, signed or otherwise, on the date in which nsmDigital performed any act in the provision of any of the Services.
2.3 Any samples, drawings, descriptive matter or advertising issued by nsmDigital, and any descriptions or illustrations contained in nsmDigital’s promotional printed matters, website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 Any quotation given by nsmDigital shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue and all amounts quoted by nsmDigital under the Contract are exclusive of Value Added Tax as chargeable from time to time.
3.1 nsmDigital shall supply the Services to the Client in accordance with the Booking Form in all material respects.
3.2 nsmDigital shall use all reasonable endeavours to meet any performance dates specified in the Booking Form or otherwise, but any such dates shall be estimates only.
3.3 nsmDigital shall have the right to make any changes to the Services which are necessary to comply with any applicable law, regulation, or which do not materially affect the nature or quality of the Services, and nsmDigital shall notify the Client in any such event.
3.4 nsmDigital warrants to the Client that the Services will be provided using reasonable care and skill.
4.1 The Client shall:
4.1.1 ensure that the terms of the Booking Form (and any information it provides) are complete and accurate;
4.1.2 co-operate with nsmDigital in all matters relating to the Services;
4.1.3 provide nsmDigital, its employees, agents, consultants and subcontractors, as reasonably required by nsmDigital, with access to Client Data, Client’s Materials, Client Software and the Client’s premises, office accommodation and other facilities and ensure that any access to the premises that may require permission from third party is obtained in advance;
4.1.4 provide nsmDigital with such information and materials as nsmDigital may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and
4.1.6 keep and maintain all nsmDigital Materials at the Client’s premises in safe custody at its own risk, maintain nsmDigital Materials in good condition until returned to nsmDigital, and not dispose of or use nsmDigital Materials other than in accordance with nsmDigital’s written Booking or authorisatio n.
4.1.7 allow nsmDigital to display the Client logo in marketing materials for the promotion of nsmDigital services
4.2 If nsmDigital’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1 nsmDigital shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays nsmDigital’s performance of any of its obligations;
4.2.2 nsmDigital shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from nsmDigital’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse nsmDigital on written demand for any costs or losses sustained or incurred by nsmDigital arising directly or indirectly from the Client Default, regardless of whether the Services are completed.
5.1 The Service Fees for the Services shall be invoiced by nsmDigital and paid by the Client, all as set out in the Booking Form, in full and in cleared funds to a bank account nominated in writing by nsmDigital, and time for payment shall be of the essence of the Contract.
5.2 Without limiting any other right or remedy of nsmDigital, if the Client fails to make any payment due to nsmDigital under the Contract by the due date for payment (Due Date), nsmDigital shall have the right to charge interest on the overdue amount at the rate of four per cent per annum above the then current HSBC’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.3 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against nsmDigital in order to justify withholding payment of any such amount in whole or in part. nsmDigital may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by nsmDigital to the Client.
6.1 Except as expressly set out in the Conditions:
6.1.1 The Client shall not acquire any right, title or interest in or to the Intellectual Property Rights of nsmDigital or its licensors, including Intellectual Property Rights in:
6.2 nsmDigital shall not acquire any right, title or interest in or to the Intellectual Property Rights of the Client or its licensors, including:
6.2 The Intellectual Property Rights in all New Materials and/or Bespoke Software shall belong to and vest in the Client unconditionally and immediately on payment of the Service Fees. nsmDigital hereby assigns, and shall procure that all third parties who may have any right, title or interest in New Materials and/or Bespoke Software shall assign, in each case by way of present assignment of future rights, all New Materials and/or Bespoke Software absolutely to the Client with full title guarantee (free from all charges and other rights exercisable by third parties). nsmDigital shall procure the waiver of any Moral Rights in or relating to any New Materials and/or Bespoke Software.
6.3 The Client hereby grants nsmDigital a non-exclusive, non-transferable licence to use the Client Software, Client Materials and Client Data solely to the extent and for the period necessary for nsmDigital to perform its obligations under the Conditions, such licence to terminate no later than on the termination of the Conditions. nsmDigital shall comply with any terms or Booking given by the Client from time to time in relation to the use of the Client Software, Client Materials and Client Data.
6.4 nsmDigital represents that it has and will continue to have the necessary rights and licences to comply with its obligations under this Clause 6 and undertakes to execute, do and/or procure the execution or doing of such things as are reasonably necessary in order to achieve, perfect or record the assignment or grant of rights and licences in accordance with this Clause 6.
6.5 Any physical media forming part of any Deliverables shall be owned by the Client and nsmDigital hereby transfers and agrees to procure the transfer with full title guarantee (free from all charges, incumbrances and other rights exercisable by third parties) of all right, title and interest in such media to the Client.
6.6 Whenever nsmDigital provides Bespoke Software in object code form, nsmDigital shall at the same time provide to the Client the Source Materials in respect of such Bespoke Software.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party ( Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall limit or exclude nsmDigital’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
8.2.1 nsmDigital shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
8.2.2 nsmDigital’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the value of the Service Fees paid under the Contract.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of the Contract and if such a breach is remediable fails to remedy that breach within seven days of that party being notified in writing of the breach;
9.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply;
9.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where a company for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party being a company other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.5 the other party being an individual is the subject of a bankruptcy petition or order;
9.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
9.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party being a company;
9.1.8 a floating charge holder over the assets of that other party being a company has become entitled to appoint or has appointed an administrative receiver;
9.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
9.1.10 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.2 to clause 9.1.9 inclusive;
9.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
9.1.12 the other party being an individual dies or, by reason of illness or incapacity whether mental or physical, is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party three months written notice.
9.3 Without limiting its other rights or remedies, nsmDigital shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and nsmDigital if the Client becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.12, or nsmDigital reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
10.1 On termination of the Contract for any reason:
10.1.1 the Client shall immediately pay to nsmDigital all of nsmDigital’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, nsmDigital shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.1.2 the Client shall return all of nsmDigital Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then nsmDigital may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
10.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11.1 Force majeure:
11.1.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of nsmDigital including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of nsmDigital or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of nsmDigital’s or subcontractors.
11.1.2 nsmDigital shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.2 Assignment and subcontracting:
11.2.1 nsmDigital may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
11.2.2 The Client shall not, without the prior written consent of nsmDigital, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.3.2 Any such notice which is given in accordance with Clause 11.3.1 above, shall be deemed to have been received with the other party in accordance with the contact details set out in the Booking Form or at any such address or contact details as shall be provided by the parties in writing from time to time:
11.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
11.5.1 If a court or any other competent authority finds that any provision or part of any provision of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by nsmDigital.
11.9 Entire agreement: The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of nsmDigital which is not set out in the Contract.
11.10 Implied terms: These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
11.11 Data protection and data processing:
11.11.1 The Client and nsmDigital acknowledge that for the purposes of the Data Protection Act 1998, the Client is the Data Controller and nsmDigital is the data processor in respect of any Personal Data.
11.11.2 nsmDigital shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Client.
11.11.3 nsmDigital shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
11.11.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
11.11.5 nsmDigital warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
11.11.6 take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
11.11.7 take reasonable steps to ensure compliance with those measures.
11.11.8 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 11.11.
11.11.9 The Client acknowledges that nsmDigital is reliant on the Client for direction as to the extent to which nsmDigital is entitled to use and process the Personal Data. Consequently, nsmDigital will not be liable for any claim brought by a Data Subject arising from any action or omission by nsmDigital, to the extent that such action or omission resulted directly from the Client’s instructions.
11.11.10 nsmDigital may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:
11.12 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation including non-contractual disputes or claims, shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1.1. This Acceptable Use Policy (“AUP”) specifies actions prohibited by nsmDigital to Users of its Hosting and Email Services (Services).
1.2. You must read this AUP very carefully. It is important. It and our Terms and Conditions are part of your legally binding relationship with us.
1.3. “Users” and “you” means customers or anyone else who uses or accesses the Services, as defined in our Terms and Conditions. This AUP outlines the principles that govern use of the Services provided by nsmDigital in connection with the Services. By using our Services, you agree to comply with all parts of this AUP, and we may (notwithstanding our rights of suspension and restriction referred to below) terminate your account if you fail to comply with any of the same.
1.4. We may amend, modify or substitute this AUP at any time and any such modification, amendment or substitution shall be posted on our web site and become automatically effective upon all Users as from the date of posting.
1.5. We recommend that you visit our website regularly to check for any updates or amendments to this AUP.
2.1. We will take action if you abuse the Services (for example, by sending spam or making racist postings). The actions we may take include:
This is not a full list of the action we may take.
2.2. Notwithstanding our right to restrict, suspend or terminate the Services, if you breach this AUP and/or our Terms and Conditions you may receive a written formal warning from us specifying the unacceptable conduct and notifying you that repeated breaches may result in the Services (or any part of Services) being temporarily or permanently withdrawn from you.
2.3. If, after you have received a written formal warning from us in accordance with paragraph 2.2 above, your conduct continues to breach this AUP, then we will withdraw the Services (or part of the Services) from you until such time as we are satisfied that you have implemented appropriate steps to ensure that your use of our Services will comply with this AUP.
2.4. If such a suspension is imposed, then this may be lifted at our discretion, upon receipt of a formal written undertaking from you not to commit any future relevant abuse. However, all cases will be considered individually (in our sole discretion) upon their merits.
3.1. We reserve the right to investigate any suspected violation(s) of this AUP. When we become aware of possible violations, we may initiate an investigation, which may include gathering information from the User involved and the complaining party, if any, and examination of material on our servers, networks or any other equipment associated with the Services.
3.2. You must not use the Services in any way that is unlawful or illegal or in any way to the detriment of other Users. You also must not allow anybody using your connection to use the Services in any way that is unlawful or illegal or in any way to the detriment of other Users.
3.3. During an investigation, if we believe that a violation of this AUP or our Terms and Conditions has occurred, we may take immediate remedial action. Such action may include temporary or permanent removal of material from our servers, the cancellation of newsgroup postings, warnings to the User responsible, and the suspension, restriction or termination of the User’s account. We will determine what action will be taken on a case-by-case basis. Please note that we have a policy of open co-operation with all relevant authorities and regulators.
3.4. In addition to and without prejudice to your obligations pursuant to our Terms and Conditions, you agree to comply with (and ensure that others using the Services comply with) all applicable laws, statutes and regulations in connection with the Services. As the registered User, you are responsible for all use of your account, irrespective of use without your knowledge and/or consent.
3.5. You are required to keep your contact details provided to nsmDigital up to date. Keeping such records up to date is important as we may need to send notices or other information to you using the contact information you gave us.
3.6. Users are expected and required to review email in their primary mailbox provided as part of the Services on a regular basis. This is to enable us to advise you of any significant issues that may affect your use of the Services.
4.1. You are prohibited from storing, distributing, transmitting or causing to be published any material (Prohibited Material) through your use of the Services. Examples of Prohibited Material shall be determined by us (acting in our sole discretion) and shall include (but are not limited to) material that:
4.1.1. is threatening, harassing, invasive of privacy, defamatory, racist, obscene, indecent, offensive, abusive, harmful or malicious;
4.1.2. infringes or breaches any third party’s intellectual property rights (which shall include, but not be limited to copyright, trade mark, design rights, trade secrets, patents, moral rights, paternity rights and performance rights) – this includes the use, distribution and/or copying of any material without the express consent of the owner;
4.1.3. is in violation of any law or regulation that is enforceable in the United Kingdom;
4.1.4. unsolicited promotional or marketing material;
4.1.5. chain letters or pyramid selling schemes; and
4.1.6. programs containing viruses, hoaxes or any tools designed to compromise the security of other websites and/or systems. However, you may pass samples of malware in a safe manner to appropriate agencies for the purpose of combatting its spread.
4.2. For the avoidance of doubt, the storage upon and/or distribution over our systems by any User of “pirated” software, or any other materials that are not expressly licensed to the User, will constitute a violation of this section 4 of the AUP.
4.3. We reserve the right to inform and/or report the storage, distribution, transmission, retransmission or publication of Prohibited Material (and/or any other materials which may constitute unlawful conduct by Users) to relevant authorities and/or regulators, in addition to any action we may take as outlined in this AUP.
5.1. You are prohibited from using the Services to compromise the security, adversely affect or tamper with our system resources or accounts (including but not limited to those of other Users) on our systems, or at any other site accessible via our systems, without the explicit consent of the owner of such account and/or site. Malicious use or distribution of tools designed for compromising security is prohibited.
5.2. The security of the Services used by you from your home is your responsibility. It is also your responsibility to ensure that you keep your passwords secure. We are not responsible for any negative consequences (e.g. lost or corrupted files) incurred by your failure to employ adequate security measures.
6.1. Users must not take any action that may restrict or inhibit any person, partnership, company, firm or organisation (whether a customer of nsmDigital or otherwise) in its lawful use or enjoyment of any of our systems, services or products. Examples of this may include:
6.1.1. the sale or resale of our Services;
6.1.2. any form of on-line advertising or marketing practices – deceptive, misleading or otherwise;
6.1.3. furnishing false data on sign-up forms, contracts or on-line applications, including fraudulent use of credit card numbers (and such conduct is grounds for immediate termination and may subject the offender to civil or criminal liability); and
6.1.4. trade or business use of the Services of any kind unless used during the course of working away from the usual place of work (“home working”). The Services are for business use only.
Prohibited Actions: System and Network Security:
6.1.5. attempting to circumvent user authentication or security of any host, network, or account (“cracking”). This includes, but is not limited to, accessing data not intended for the User, logging into a server or account the User is not expressly authorised to access, or probing the security of other networks without the express authorisation of the owner of such third party network(s);
6.1.6. effecting security breaches or disruptions of the Services. Security breaches include, but are not limited to, accessing data of which the User is not an intended recipient or logging onto a server or account that the User is not expressly authorised to access. For the purposes of this section “disruption” includes, but is not limited to, port scans, ping floods, packet spoofing, forged routing information, deliberate attempts to overload a service, any otherwise unspecified form of Denial of Service (DoS) attack, or attempts to “crash” a host;
6.1.7. using any program/script/command, or sending messages of any kind, designed to interfere with or adversely affect a User’s enjoyment of our network by any means, locally or by the Internet – including violating the privacy of other Users; and
6.1.8. executing any form of network monitoring which causes the interception for malicious purposes of any data that does not belong to the User.
7.1. Email usage must be fully compliant with Sections 3 and 4 of this AUP (Use of Services and Use of Material).
7.2. We will investigate complaints regarding email and may take action at our discretion, which shall be based on but not limited to the following:
7.2.1. you may not use your email to send unsolicited messages to groups of people;
7.2.2. if so requested by us or a recipient, you must desist from posting messages to said recipient;
7.2.3. malicious mail, unsolicited e-mail and unsolicited bulk e-mail is prohibited from being sent from or via a nsmDigital connection. Users must take all appropriate precautions to prevent such use of their machines by third parties. We will not forward mail of accounts terminated for bulk mailing or unsolicited advertising;
7.2.4. chain letters are unsolicited by definition and may not be propagated using the Services;
7.2.5. you may not send, distribute, or reply to mailbombs (whether malicious or otherwise). “Mailbombing” is understood as causing individuals to receive large amounts of unrequested email by any means;
7.2.6. Users may not construct, alter and/or forge the headers of email messages to conceal the sender’s email address, or to prevent other Internet users from responding to messages;
7.2.7. violations of this AUP may result in a large amount of email traffic. If our customers receive so much email that our resources are affected, we reserve the right to take such action(s) as may be necessary (to be determined at our sole discretion) to protect both the Services and our Users, including, but not limited to, deployment of appropriate network security software; and
7.2.8. harassment, whether through language, frequency or size of messages sent, is prohibited.
8.1. It is the Users responsibility to back up their webspace content. Upon suspension or termination of the Services the content may be removed without notice.
8.2. We may modify, remove or suspend content without notice if this AUP is breached in any way.
8.3. Webspace usage must be fully compliant with Sections 3 and 4 of this AUP (Use of Services and Use of Material).
8.4. Any content that has potential to offend other Users (whilst within the law, and our Terms and Conditions) contained on a User’s webspace must be preceded by an appropriate content warning (to warn the viewer that should they continue they may find the resulting images offensive).
8.5. The User is wholly responsible for the content stored on their webspace and must ensure that all appropriate intellectual property right permissions are obtained. If said permissions can not be made available when requested by us the content may be removed.
8.6. Any content that results in abnormal data volume use that adversely impacts our network may be removed with or without notice.
9.1.1. Complaints regarding the conduct of a User must be reported to us in writing. We must be able to verify each instance of abuse, and so each complaint must include the full headers and/or complete body of the offending message (where appropriate) or other forms of quantitative, supportive evidence. Submitting all relevant evidence in the original abuse report will significantly speed up the resolution of the issue by a member of our IT Support Team.
9.1.2. Please do NOT send excerpted parts of a message; sending a copy of the entire message, including headers, helps to prevent misunderstandings based on incomplete information, or information used out of context. Full headers demonstrate which path the message has taken, and enable us to determine whether any part of the message has been forged. This information is vital to our investigation.
9.2.1. We may, in our sole discretion, suspend, restrict or terminate the Services to a User for violation of any of part of this AUP at any time and without warning.
9.2.2. Prior to terminating the Services as a general rule, we will attempt to work with Users to avoid future violations of the AUP and to ensure that there is no reoccurrence of the incident (but we shall not be obliged to do so).
10.1. We are not responsible for the content used as part of the Services, whether or not the content is posted by a User.
10.2. We are not responsible for the content of materials and information published by others (including Users) that are accessible via the Services, and we do not accept liability or responsibility for any such publication.
10.3. At our sole discretion (and without prejudice to any of our other rights pursuant to this AUP and our Terms and Conditions), we reserve the right to remove any materials from any server under our control.
Revision 1.0 – Last Updated 12/04/2018 – nsmDigital