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Terms and Conditions up to 04 July 2007

Demon Web Commerce Terms & Conditions

All Web Commerce Merchants must comply with these Terms and Conditions. To preserve the integrity of our service to You, all Merchants must also agree to be bound by our Acceptable Use Policies which may change from time to time.

1. Definitions

The following terms have the following meanings when capitalised in this Agreement.

Acceptable Use Policies
Demon's acceptable use policies applicable to the Services, as may be amended by Demon from time to time, which are available at http://www.demon.net/helpdesk/producthelp/aup

Agreement
The terms and conditions set out in this agreement, the Order Form, and the Acceptable Use Policies.

Associated Company
A division, subsidiary or holding company of either party or a subsidiary of any such company ('holding company' and 'subsidiary' having the meanings defined by Sections 736 and 736A of the Companies Act 1985).

Bank
Barclays, NatWest, Midlands, Lloyds, Bank of Scotland or Royal Bank of Scotland, as indicated by You if You choose the Direct Merchant Option. Your Bank will authorise and process debit and credit card transactions and facilitate settlement of transactions for Demon Commerce.

Card
Visa, Mastercard and/or such other cards which may later be approved by Demon as a means of payment to purchase Products through Demon Commerce.

Card Information
Any information about a Customer's Card, and the amount of money to be authorised for a Web Commerce transaction.

Catalogue Creation See Services.

Charges
The relevant one-off charge for the Services payable by You to Demon pursuant to this Agreement as set out on the Order Form attached (stated exclusive of VAT) and the charges for Your Demon Web Hosting account.

Confidential Information
Information or material received by one party of a confidential, technical or business nature relating to the business, products or services of the other including, but not limited to, trade secrets, information of commercial value, including but not limited to details about the Demon Platform.

Content
Any information entered by You or on Your behalf onto Your Website, and onto the Secure Shopping Cart or any other template which is part of the Demon Platform. Content includes, but is not limited to, all information displayed on Your Website and/or which can be transmitted to Customers, and all trade marks, service marks and domain names contained therein from time to time.

Customer
A person who offers to purchase a Product advertised on Your Website by completing and submitting the Secure Shopping Cart to the Demon Platform. Demon means THUS plc, whose registered office is at 1-2 Berkeley Square, 99 Berkeley Street, Glasgow G3 7HR , Scotland, Company Number SC 192666 being the company which is providing the services under these terms and conditions.

Demon
Platform The computer platform used by Demon for the provision of Web Commerce, consisting of Open Market Transact and Open Market ShopSite software.

Demon Web Hosting
The service offered by Demon that provides a user with configured Internet web space between 10MB and 10,000 MB.

Direct Merchant Option
The option for Merchants whereby the Merchant has separate agreements with NetBanx and the Merchant's selected Bank.

Effective Date
The date on which Your Demon Web Hosting web space is enabled with Web Commerce.

Licence
Demon's licence to use the Open Market Transact software and to use Open Market ShopSite.

Merchant/You
The merchant as identified on the Order Form.

Merchant Identification
The username(s), password(s), security checkpoint question(s) and store identification issued to You by Demon to enable You to use Web Commerce if You are using the Direct Merchant Option.

Merchant Number
The number issued to You by NetBanx to enable You to be linked to the Bank.

NetInvest
NetInvest Limited, the parent company of NetBanx. NetInvest has agreements with the Banks for secure processing and storing of Card transaction data submitted via the Internet for authorisation and payment. NetInvest's registered office is at Communications House, Station Court, Station Road, Great Shelford, Cambridge, CB2 5LR.

NetBanx
NetBanx Limited, a wholly owned subsidiary of NetInvest. Netbanx has a dedicated computer server network with transmission links to the Banks. Netbanx processes debit and credit card transactions of Customers and collects Transaction Fees. Netbanx's registered office is at NetBanx House, Station Court, Station Road, Great Shelford, Cambridge, CB2 5LR.

Order
An irrevocable offer by a Customer to buy a Product made when the Customer completes the Secure Shopping Cart and submits it to the Demon Platform.

Order Form
The Demon Web Commerce Order Form attached completed by the Merchant and submitted to Demon for approval to use the Services.

Products
The goods and/or services which You offer for sale from time to time on Your Website.

Secure Shopping Cart
The electronic form (which Demon may amend and/or substitute from time to time) which appears on the Demon Platform and which is the Customer's interface to the Demon Platform. Customers enter Card Information and other details on to the Secure Shopping Cart to Order a Product.

Services:

(a) Demon Web Commerce
An electronic-commerce service to be provided to You by Demon under this Agreement. It is a service with a secure connection to NetBanx (if You are using the Bureau Service Option) or Your selected Bank (if You are using the Direct Merchant Option) for the purpose of collecting Orders from Customers for the purchase of Products by means of Your Website, authorising credit and debit card transactions in respect of such Products and arranging for the transfer and settlement of purchase funds. It is offered to Demon customers who have a current Demon Web Hosting account. Demon Web Commerce has the following elements:

1. it will allow Customers to create cryptographically protected digital offers to buy Products, based on information provided by You on Your Website about Your Product(s) (including, but not limited to, Product name, weight and price);

2. it will manage all purchase transactions with Customers so that once a Customer enters Card Information onto the Secure Shopping Cart and forwards it to the Demon Platform, Demon will forward that Card Information to NetBanx to request authorisation to debit the Card;

3. it will arrange debits to a Card for Products purchased by a Customer using Demon Web Commerce. For physical goods, a debit will not occur until You have indicated to Demon Web Commerce through an online interface that You have shipped the goods to the Customer;

4. it will provide You with a Merchant Identification allowing You to have secure access to Demon Web Commerce and configure Your Website;

5. it will allow a Customer (upon request by the Customer) to register with the Demon Platform so that information about the Customer is retained. Such registration will allow the Customer access to Smart Statements. It will also provide a password and user name which the Customer may use for purchasing Products from Your Website and from the web site of any other merchant who has entered into an agreement with Demon for the provision of Demon Web Commerce;

6. it will facilitate refunds and credits to a Card for Products purchased by a Customer using Demon Web Commerce. To arrange such refund or credit (if this becomes necessary), You will access a Customer service screen (called a store report). This screen links a refund or credit request made by You with the corresponding Secure Shopping Cart and sends an instruction to NetBanx to arrange the credit or refund the relevant the amount; vii. it will provide You with information to assist You to use Demon Web Commerce; viii. it will provide You with 24 hour Customer support by phone on connecting to the servers, locating relevant documentation, changing passwords, confirming Demon Web Commerce availability and reporting faults.

(b) Catalogue Creation
An optional service offered by Demon whereby You provide Demon with an electronic version of Your Product catalogue and Demon then publishes this catalogue online within Your Demon Web Commerce product.

Smart Statements
Digital receipts on the Demon Platform which set out details of all transactions which a Customer has undertaken using Demon Web Commerce.

SSL
Secure Sockets Layer, a standard protocol for encrypted communication of traffic over the Internet.

THUS see Demon

Transaction Fee
The current fee charged and collected by NetBanx for each transaction on Demon Web Commerce, as listed in Your contract with NetBanx (including the Demon commission collected by NetBanx on behalf of Demon).

VAT Value added tax.

Demon Web Commerce See Services.

Website
The website which You configure, and on which You display Your online store front for Customers to see and use Demon Web Commerce.

You/Merchant See Merchant/You.

2. Provision of Demon Web Commerce

2.1 Demon will provide Demon Web Commerce to You under the terms of this Agreement from the Effective Date according to Your choice of the Bureau Service Option or the Direct Merchant Option.

2.2 This Agreement applies only to the single Merchant Number issued to You in respect of this Agreement; it does not cover those issued to any Associated Company, or any other Merchant Numbers.

2.3 If you are using the Direct Merchant Option Demon will issue You with a Merchant Identification to enable You to use Demon Web Commerce.

2.4 Demon Web Commerce transactions, including requests for Card authorisations and refunds or credits, will be processed in sterling, unless a specific arrangement is made with NetBanx to use a different currency.

3. Your Obligations

3.1 You are Your Customers' point of contact for all queries and problems connected with their use of Demon Web Commerce. You are responsible for any action to be taken if a Customer requests a refund to their Card for Products purchased (or purported to be purchased) or if the Customer reports problems relating to the delivery of Products or Charges applied to Cards.

3.2 To use Demon Web Commerce, YOU MUST:

3.2.1 have a current Demon Web Hosting account with Demon;

3.2.2 create and configure Your own Website store; it is Your responsibility to correctly enter all relevant information, including, but not limited to, all necessary information about Products, delivery, price and VAT into templates provided by the Demon Platform; You may purchase Demon's Catalogue Creation to help You put Your Product catalogue online in which case the supplementary terms and conditions in clause 22 apply;

3.2.3 comply with all reasonable instructions which Demon gives You from time to time;

3.2.4 display on Your Website a hyperlink to Your terms and conditions for transactions to be conducted using Demon Web Commerce; Your terms and conditions must comply with the Acceptable Use Policies; in particular, Your terms and conditions must state that Demon is not a contracting party to any sale from a Merchant to a Customer;

3.2.5 NOT inform the Demon Platform that Products have been sent or charge a Card until the Products have been sent; You must promptly update the Demon Platform on the relevant online form that Products have been sent;

3.2.6 keep Your own records of the transactions which You enter using Demon Web Commerce;

3.2.7 NOT use or copy Demon's or THUS's name, trade mark or logo in any way whatsoever, without the prior written consent of Demon;

3.2.8 NOT change any prices on Your Website for a particular transaction once a Customer has submitted an Order for a Product.

4. Charges and Payment

4.1 If You are using the Bureau Service Option You must have an agreement with NetBanx who will act as principal in the merchant services agreement with the Bank. NetBanx will make all proper enquiries as to Your credit worthiness before it accepts any agreement with You.

4.2 If You are using the Direct Merchant Option You must have a separate agreement with NetBanx and Your selected Bank. You must comply with all the terms of those agreements.

4.3 The Charges and Transaction Fees are extra to any Charges You pay to the Bank under Your agreement with the Bank.

4.4 Demon will invoice You for the charges for Demon Web Commerce at the Effective Date.

4.5 You must pay the Charges and the VAT on the Charges to Demon in sterling within thirty (30) days from the date of the invoice and by the method specified on the Order Form.

5. Security

5.1 You must not harm, or attempt to harm, the integrity, security and/or availability of the Demon Platform.

5.2 If You believe that the integrity and/or security of the Demon Platform has been, or is at serious risk of being harmed, You must notify Demon immediately on telephone 0845 272 2555 (or any other number which Demon notifies to You).

5.3 Demon will take any steps which it deems necessary, including barring Your access for Demon Web Commerce, to eliminate a real or potential threat to the integrity, security or availability of the Demon Platform.

5.4 You agree, notwithstanding clause 9 of this Agreement, to fully indemnify Demon against all liabilities (including, but not limited to, legal and other professional fees and expenses) which Demon may incur in connection with clause 5.3.

5.5 You must treat Your Merchant Identification as strictly confidential. You may however create 'employee accounts' (like sub-Merchant Identifications) which will enable Your employees to have limited access and control of Your Website for processing Orders.

5.6 You must contact Demon immediately if You think that any unauthorised person has discovered Your Merchant Identification and/or employee accounts. Failure to protect Your Merchant Identification and/or employee accounts could make You liable for any losses You incur if they are misused.

5.7 You may change the passwords and security checkpoints associated with Your Merchant Identification and employee accounts at any time.

6. Modification of Services

6.1 At any time during this Agreement, Demon may modify the Services. Demon will make reasonable endeavours to notify You prior to any material modification being made.

6.2 If Demon modifies the Services under clause 6.1 so that the Agreement is materially amended, Demon will notify You of that modification and You may terminate this Agreement by giving written notice to Demon within thirty (30) days. If You do not notify Demon of termination within thirty (30) days from notification You will be deemed to have accepted the modification with effect from the thirty-first (31st) day after notification by Demon.

6.3 If modification to the Services made under clause 6.1 allows You to make changes to the format of the Secure Shopping Cart and/or other templates based on the Demon Platform, You must not make any such changes without Demon's prior written approval.

7. Service Level

7.1 Demon will reasonably endeavour to minimise any downtime of Demon Web Commerce within its reasonable control, subject to:

7.1.1 any event of force majeure as set out in clause 12; and

7.1.2 suspension Demon Web Commerce due to an act or omission by You; and

7.1.3 suspension of Demon Web Commerce for up to eight (8) hours in any one (1) calendar month to perform non-emergency maintenance work (Demon will reasonably endeavour to give You three (3) days notice of such suspension via email); and

7.1.4 fulfilment of material third party contracts by the third party, to provide services to Demon.

8. Warranties and Undertakings

8.1 You warrant and undertake to Demon that You:-

8.2 Demon makes no warranties or representations to You about the Services except those which are expressly stated in this Agreement. All terms expressed and implied by statute are excluded from this Agreement (including those relating to reasonableness and fitness for purpose) to the extent that such terms may be excluded as a matter of law. In particular, but not by way of limitation, Demon does not warrant or represent to You:-

8.2.1 that the Services will increase Your revenues or be of any particular benefit to You and/or Your business;

8.2.2 that the contracts entered into between You and Customers through use of the Website will be enforceable;

8.2.4 that Demon Web Commerce will be free from defects or that Your use of Demon Web Commerce will be uninterrupted or error free.

9. Limitation of Liability and Indemnity

9.1 Demon will not be liable to You except in relation to the provision of the Services under this Agreement. This clause applies whether a claim arises in contract, tort or in any other way and whether or not either party knew (or should have known or anticipated) that the other could incur such losses. For example, but not by way of limitation, Demon is not liable in relation to:

9.2 You fully indemnify Demon against all claims and liabilities (including, but not limited to, legal and other professional fees and expenses) which Demon may incur due to a breach of:

9.3 This Agreement does not limit Demon's liability for:

9.4 Subject to the other provisions in this Agreement, Demon's liability under this Agreement is limited to an amount not exceeding:

10. Suspension of Demon Web Commerce

10.1 Demon may, at its sole discretion and without liability to You, suspend Demon Web Commerce immediately until further notice.

10.2 Any suspension of Demon Web Commerce will not exclude Demon's right to subsequently terminate the Agreement where appropriate.

11. Term

11.1 This Agreement will commence on the Effective Date.

11.2 This Agreement may be terminated by either party:-

11.3 Demon may terminate this Agreement immediately on notice in writing to You:-

11.4 Termination of this Agreement (for whatever reason) will not affect the rights or liabilities accrued by either party, nor will it affect the continuance of clauses 8, 9 and 13.

11.5 Any breach of clause 3.2 or clause 8.1.4. will be deemed to be a material breach of this Agreement and will entitle Demon to terminate the Agreement by giving thirty (30) days notice to You. It will be irrelevant whether You are aware of the Content of any material held on or transmitted from Your Website or of any Product offered for sale.

12. Force Majeure

12.1 Either party's obligations under this Agreement will be suspended where that party cannot fulfil them due to any circumstances beyond its reasonable control. Such circumstances include, but are not limited to:

12.2 If either party cannot fulfil its obligations due to the circumstances set out in
clause 12.1, such party must:

12.3 If the cause of the suspension continues for more than six (6) months, either party may terminate this Agreement by giving thirty (30) days notice to the other party.

13. Confidentiality

13.1 During and after this Agreement each party undertakes to the other that it will:

13.2 Notwithstanding clause 13.1, Confidential Information may be disclosed if:

13.3 Each party further agrees and undertakes to the other that access to and disclosure of Confidential Information will be restricted to personnel who need such access and disclosure for the performance of this Agreement.

13.4 Unless otherwise allowed under this clause 13, neither party may make or release a public statement about the existence and/or terms of this Agreement to any person, except with the prior written approval of both parties or as required by law.

14. Assignment

14.1 Neither party may assign or otherwise transfer in full or in part any of its rights, obligations or duties under this Agreement without the prior written consent of the other party.

15. Waiver

15.1 Failure by either party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right. Nor shall such failure bar the exercise or enforcement of such right or of any other right on any later occasion.

16. Notices

16.1 In all Your correspondence with Demon You must refer to Your Merchant Number.

16.2 Notices given under this Agreement must be in writing. Notices must be delivered personally or sent by first class pre-paid post or by facsimile to the other party at the following addresses:

Demon@Thus plc,
Gateway House,
322 Regents Park Road,
Finchley,
London,
N3 2QQ;

Merchant's address, as set out on the Order Form; or to such other address as You or Demon subsequently notifies to the other.

16.3 A notice sent by post will be deemed to have been given seven (7) days after the date of posting.

16.4 A facsimile transmission will be deemed to have been given at the time of dispatch (provided that the sender has a transmission report confirming that the notice was sent to the correct number and that all the pages were transmitted).

17. Severability

17.1 If any provision of this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, the remaining provisions of the Agreement will remain in full force and effect and the parties will immediately begin negotiations to replace invalid or unenforceable provisions that are essential parts of the Agreement.

18. Entire Agreement

18.1 This Agreement constitutes the entire understanding between the parties relating to the subject matter of this Agreement. It supersedes all other agreements and representations made by either party whether oral or written, including any Demon sales, marketing or instruction documents. Neither party to this Agreement has relied on any statement, representation or promise of the other party (or of any officer, agent or representative of the other party) in entering into this Agreement, except as expressly stated in this Agreement. This clause does not exclude liability for any fraudulent misrepresentations(s) made by either party.

19. Governing Law

19.1 This Agreement is governed by and construed in accordance with the laws of England and Wales. The parties submit to the non-exclusive jurisdiction of the English courts.

20. Validity

20.1 This Agreement will be valid once the Order Form is signed by at least one authorised signatory of the Merchant and once Demon has notified You by email that Demon has accepted You to become a Demon Web Commerce merchant.

21. General

21.1 Any reference in this Agreement to a statutory provision will be deemed to include a reference to any statutory modification of that provision.

21.2 In this Agreement any undertaking by You not to do any act or thing shall be deemed to include an undertaking not to permit or suffer the doing of that act or thing.

21.3 Unless the context otherwise requires, the plural includes the singular (and vice versa) in this Agreement.

22. Supplementary terms and conditions for Catalogue Creation.

22.1 To use Catalogue Creation You must have a current Demon Web Hosting account and Demon Web Commerce.

22.2 Demon will invoice You for Catalogue Creation upon receiving Your signed Order Form. You must pay Demon's invoice by the due date on the invoice.

22.3 You must provide Your Product catalogue to Demon in electronic format in the spreadsheet templates provided by Demon, and according to all data format specifications set out in the criteria for Catalogue Creation.

22.4 Demon accepts no liability for checking information supplied by You.

22.5 Demon will insert the data supplied by You onto Your Website.

22.6 Demon will inform You when the Catalogue Creation process is complete.

22.7 You must sign the Catalogue Creation sign off agreement provided to You by Demon and return it to Demon as instructed within 14 days of notification that the Catalogue Creation process in complete, at which point Demon will return access to the Demon Web Commerce area of Your Website to You.

22.8 If the Catalogue Creation sign off agreement is not completed and returned to Demon within 14 days, Demon will remove the Catalogue Creation product from your Website, access to your Website will be returned to You, and Demon will not accept any further liability. Please note that payment will still be due in these circumstances.

22.9 Demon's total liability for Catalogue Creation under this Agreement will not exceed the one-off charge for the level of Catalogue Creation chosen by you.