The following Terms and Conditions of Use dated as of December 2008, govern use by all Users of AY Marketing Consultancy, an online marketing service provider Please read the following carefully because by using AY Marketing Consultancy you are agreeing to abide by these Terms and Conditions of Use.
These T&C are the only terms and conditions upon which the Company will undertake all and any Service and/or supply of Services to User. No variation or alteration to any term or condition shall be binding unless agreed in writing by the authorized representatives of both the User and the Company.
All Users ordering, accepting or using Services provided by the Company, are bound to the T&C of business set out below, irrespective of the mode or manner employed by the User when ordering, accepting or using the Services.
The Company is entitled to suspend Services if the User does not adhere to any or several conditions as set out in the T&C or an Agreement based thereon.
The Company will use reasonable endeavors to adhere to any dates proposed by either the Company or the User for the provision of Services, however any such date is to be treated as an estimate only and the Company accepts no liability for failure to meet such dates.
The Company will use all reasonable endeavors to provide reliable Services, however it is not practicable to provide all such Services free of any faults and the Company does not undertake to do so. In the event of a fault in Services, the User must report the fault by telephone, fax or email to the Company on its registered address. Upon receipt of the fault report, the Company will take all proper steps without undue delay to correct the fault.
The Company may
(a) give or update instructions regarding the use of the Service which in the Company’s reasonable opinion is necessary in the interests of safety, or to maintain or improve the quality of Services to the User and any such instructions shall whilst they are in force, be deemed to form part of any Agreement;
(b) vary the technical specification of Service for operational reasons.
Where the Company uses any third-party services, site search facilities, chat room, email, web services, web hosting or search engines’ submission services, the Company cannot be held responsible for those third-party service commitments, quality or availability.
The Company may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Services without any liability to the User.
The Company may at any time without notifying the User make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
3.1. Content and Misuse
The User will use all reasonable endeavors to ensure that the Company’s Services are used in a way, or include content, that conforms to the laws of the UAE and/or the applicable laws of any other jurisdiction and will not knowingly permit any illegal use or such use that will bring the Company into disrepute. User must not, nor must any other person, use the Services to send or receive any material which is offensive, abusive, indecent, obscene or menacing or in breach of confidence, copyright, privacy or any other rights or to cause annoyance, inconvenience or needless anxiety. For the avoidance of doubt, it is entirely the User’s responsibility to ensure that all content is in line with laws of the UAE and/or the applicable laws of any other jurisdiction. Additionally, the User will not misuse the Company’s services to illegally access a foreign network, including but not limited to cracking, hacking, portscans and denial of service attacks.
The Company retains the right to suspend Services immediately in the event of a breach or suspected breach by the User of any of the terms and conditions contained herein.
3.2. Domain Name Registration
The Company gives no warranty that the User’s domain name is or will continue to be available for use or that no other domain name is or will be registered which conflicts with the User’s domain name or which otherwise affects the User’s use of the domain name. The Company gives no warranty that the User’s domain name will not infringe the rights of any third party.
The registration and use of the User’s domain name is subject to the terms and conditions of use applied by the relevant naming authority; the User shall ensure that it aware of those terms and conditions and that they comply with them. The User needs to provide the naming authority with the required current and complete information and needs to inform the Company immediately in case of any changes. The Company acts as the User’ agent in the registration of a domain name and the User shall have no right to bring any claim against the Company in respect of refusal to register a domain name or cancellation of the domain name by the relevant naming authority.
The Company shall have no liability in respect of the use by the User of any domain name. Any dispute between the User and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, the Company shall be entitled at Company’s discretion and without giving any reason, to withhold, suspend or cancel the domain name. The Company shall be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
3.3. Website Hosting and Email
The User is allowed to utilize the web hosting and email services according to the service descriptions and details of the specific offer. The storage capacities are limited in each case.
If the storing capacities are exploited the User cannot upload any additional materials or content. With respect to email accounts the User will not receive any further emails or be able to send some. The content of the email account will only be stored for a certain time frame. Afterwards the Company is allowed to delete emails.
The User may only send messages to recipients which explicitly allowed the User to provide him with a message or which probably agree to receive such message.
The User represents, undertakes and warrants to the Company that use of the Server or space on the Server allocated to the User will only be for lawful purposes. In particular, the User represents, warrants and undertakes to the Company that it will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will it authorise or permit any other person to do so. The User will not post, link to or transmit:
(a) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
(b) any material containing a virus or other hostile computer program;
(c) any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any applicable jurisdiction.
The User shall keep secure any identification, password and other confidential information relating to the account and shall notify the Company immediately of any known or suspected unauthorized use of the account or breach of security, including loss, theft or unauthorized disclosure of the User’s password or other security information.
3.4. Creative and website related Services
The User may not modify, copy, distribute, transmit, display, perform, reproduce for other than private purposes, publish, license, create derivative works from, transfer, or sell any information, software, products, services or benefits obtained from the Company, except as expressly provided herein.
The Company makes no guarantees of any kind regarding the dependability, accuracy, security, timeliness or availability of the Company’s network or services. Without limiting the foregoing, to the maximum extent permitted by law, neither the Company nor its respective suppliers make any representations or warranties about the condition, suitability, reliability, availability, completeness, security, timeliness, or accuracy of the information, software, products, services and materials delivered by the Company All such information, software, products, services and materials are provided “as is” without warranty of any kind. The Company and its respective suppliers hereby disclaim all representations, warranties and conditions, express or implied, with regard to this information, software, products, services or materials, including all implied warranties and conditions of merchantability, fitness for a particular purpose, tile and non-infringement.
Regarding any creative services rendered by the Company (for example web design or micro site production) any copyrights with respect to the works resulting there from shall remain with the Company. The Company grants to the User only a non-exclusive worldwide right to use the works for the particular purpose during the term of the agreement. Upon termination of the agreement the User will immediately stop to use such works and hand any materials back to the Company if necessary. The User does not have any rights with respect to the source codes. Additionally, the User is not allowed to decompile, reverse engineer or change any of the Company’s services or products.
The proper delivery of the Input Materials by the User needed for a particular service, for example the production of a website or advertisement is to the sole responsibility of the User. This includes but is not limited to the proper format of the Input Materials for the particular services. Input materials for microsites, websites or other advertising measures shall be delivered to the Company at least 10 working days before the scheduled live publication. The Company shall be entitled to refuse publication of the User’s materials if there is reasonable suspicion that the material and/or its dissemination would infringe upon the applicable law.
4. Rights in Input Material and Output Material
The property and any copyright or other intellectual property rights in:
(a) Any Input Material shall belong to the User
(b) Any Output Material shall, unless otherwise agreed in writing between the User and the Company, belong to the Company, subject only to the right of the User to use the Output Material for the purposes of utilizing the specified Services.
Any Input Material or other information provided by the User which is so designated by the User and any Output Material shall so far as practical be kept confidential by the Company, and all Output Material or other information provided by the Company which is so designated by the Company shall be kept confidential by the User; but the foregoing shall not apply to any documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
The User shall at its own expense supply the Company with all necessary documents or other materials, and all necessary data or other information relating to the specified Services, within sufficient time to enable the Company to provide the specified Services in accordance with the Agreement. The User shall ensure the accuracy of all Input Material.
The User shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Company shall have no liability for any such loss or damage, however caused.
The User is obliged to store and document any errors arising in connection with the Company’s services and to immediately inform the Company in writing.
The User shall indemnify the Company and keep the Company indemnified and hold the Company harmless from and against any breach by the User of these T&C and any claim brought against the Company by a third party resulting from the provision of Services by the Company to the User and the User’s use of the Services and the Server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by the Company in consequences of the User’s breach or non-observance of the T&C and/or any Agreement based thereon.
The Company undertakes no liability whatsoever for the acts or omissions of other providers of telecommunication service or for faults in or failures of their apparatus.
The Company is not in any way liable for loss whether direct or indirect of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatsoever.
The Company makes no warranty as regards to its Services or equipment and will not be responsible for any damage allegedly suffered or claimed by the User for any reason including but not limited to loss of data and service interruptions.
The Company warrants to the User that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the T&C and any Agreement based thereon.
6. Price and Payment
All Charges quoted are subject to review and adjustment by the Company at any time. The price of the Services shall be the Company’s quoted Charge. All Charges quoted are valid for minimum 14 days from the time of the quotation after which time the Company may alter them without giving notice to the User.
The Company reserves the right to increase the Charge of Services at any time to reflect any increase in the costs to the Company due to any factor including though not limited to any increase in the costs of labour, materials or other costs or increases in price by those who supply the Company with Services or due to any change in delivery date or any delay caused by any instruction of the User or the failure of the User to give the Company adequate information or instruction.
Unless specifically varied in writing by the Company, the following payment terms shall apply:
(a) All Charges quoted are exclusive of VAT (if applicable) and to the extent that VAT is chargeable in respect of any Services supplied by the Company, VAT at the rate in force at the time of supply should be added to payments otherwise due;
(b) pro-forma accounts will be rendered calendar monthly and/or on completion of the services provided;
(c) invoices on delivered services are sent to the user in electronic format unless otherwise agreed;
(d) All Charges payable by the User for the Services shall be in accordance with the scale of charges and rates provided by Company from time to time and shall be due and payable 30 days after the date on the invoice to User.
Without prejudice to the Company’s other rights and remedies, if any sum payable is not paid on or before the due date, the Company shall be entitled forthwith to:
(a) Cancel the any agreement between the Company and the User after sending a reminder asking the User to initiate the payment within a specific time frame;
(b) Suspend the provision of Services to the User;
Either party may (without limiting any other remedy) at any time terminate an Agreement between the parties by giving written notice to the other if the other commits any breach of these terms and conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the User goes into liquidation, becomes bankrupt or insolvent, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
The User continues to be liable to pay all Charges, which are due for Services during any period in which User do not comply with these T&C or an Agreement based thereon.
On termination of an Agreement between the parties or suspension of the Services the Company shall be entitled immediately to suspend access to the Server and to remove all data located on it. The Company shall be entitled to delete all such data but may, at its own discretion, hold such data for such period as the Company may decide to allow the User to collect it at its expense, subject to payment in full of any amounts withstanding and payable to the Company.
Any notice required or permitted to be given by either party to the other under these conditions shall be in writing by post email or fax but must be addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. If sent by email it shall, unless the contrary is proved, be deemed to be received on the day it was sent provided that it was sent prior to 5 p.m. local time in the UAE or if sent by fax shall be deemed to be served on receipt of an error free transmission report provided that it was sent prior to 5 p.m. local time in the UAE, or if sent by post shall be deemed to be served one day following the date of posting.
The performance and construction of these T&C and any agreement based thereon shall be governed by and construed in accordance with the laws of the United Arab Emirates.
In the event of any dispute arising out of or in connection with the T&C or any Agreement based thereon, including any question regarding its existence, execution, validity or termination, the parties shall negotiate with each other in good faith to reach a satisfactory resolution of such dispute. If they do not reach such a resolution within thirty (30) days after the commencement of such dispute, then the dispute shall be referred to and finally resolved by arbitration under the Dubai International Arbitration Centre (“DIAC”) Rules, which rules are deemed to be incorporated by reference into the T&C. The number of arbitrators shall be one (1). The parties shall seek to nominate an arbitrator, failing which the arbitrator shall be selected by the DIAC. The seat, or legal place, of arbitration shall be in Dubai, UAE. The language to be used in the arbitral proceeding shall be English. The arbitral tribunal shall apply the substantive laws of the UAE.