Terms and conditions

Published: July 29, 2007 at 12:22 pm

1. Definitions In these Terms and Conditions (“T&C”), unless the context otherwise requires, the expression “Agreement” means an agreement between Company and the User; “Charges” means the charges as agreed; “Company” means Flip Media FZ-LLC; ...

1. Definitions

In these Terms and Conditions (“T&C”), unless the context otherwise requires, the expression
Agreement” means an agreement between Company and the User;
Charges” means the charges as agreed;
Company” means Flip Media FZ-LLC;
Input Material” means any material or content in any form provided exclusively by User to Company for the purpose of the Services rendered by Company;
Output Material” means any material or content in any form being issued by Company in the context of Services rendered to User;
Server” means the computer server equipment operated or administered by Company in connection with the provision of the Services;
Services” means domain name registration, web site hosting, email, web design, CD-ROM production, Micro-site production, online banner creative, online ad delivery and tracking services, online media buying, graphic design and any other service or facility provided by Company to User;
User” means the customer or any person who makes use of the services through the customer’s or on costumer’s behalf.

2. General

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 authorised 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.

No failure or delay by either party in exercising any of its rights under these T&C and/or an Agreement based thereon shall be deemed to be a waiver of that right, and no waiver by either party of any breach by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

The agreement between the Company and the User will be entered into with the User’s order and the Company’s appropriate confirmation. No order which has been accepted by the Company may be cancelled by the User except with the agreement in writing of the authorised representative of the Company and in terms that the User shall indemnify the Company in full against all loss (including loss of profits), costs, damages, charges and other expenses incurred by the Company as a result of the cancellation.

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.

3. Services

The Company will use reasonable endeavours 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 endeavours 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 shall not, in any event, be liable for interruptions of Services or downtime of a Server.

The Company may

(a) temporarily suspend for the purpose of repair, maintenance or improvement, part or all of the Company’s Services, generally without notice;
(b) 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;
(c) vary the technical specification of Service for operational reasons.

The Company will use reasonable efforts to keep interruptions as brief as possible and preferably use night times (02:00 to 05:00 a.m.) for any required workings. The Company undertakes to use reasonable endeavours to restore Services as soon as practicable after any such suspension.

Where the Company uses any third-party services, site search facilities, chatroom, 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 endeavours 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.

The Company may discontinue Services if after 3 hours the User continues to permit such illegal or disreputable use. If the Company suspends Service for contravention of the above conditions of this clause, the Company can refuse to restore Services until it receives an acceptable assurance from the User that there will be no further contravention.

Spamming, or the sending of unsolicited email, from a Company Server or using an email address that is maintained on a Server administered by the Company or from a domain name that is maintained on a Server or registered by the Company is strictly prohibited. This also covers conducting, promoting or forwarding illegal contests, pyramid schemes, chain letters, unsolicited and unauthorized advertising, promotional materials, multi-level or illegal marketing campaigns or any other measures which excessively loads the Company’s network.

3.2. Domain Name Registration

The Company is only assisting in the registration of the requested domain name before the relevant naming authority. The Company makes no representation that any domain name the User wishes to register is capable of being registered by or for the User or that it will be registered in the name of the User. The User should therefore not assume registration of User’s requested domain name(s) until User has been notified that it has or they have been registered. Any action taken by the User before such notification is at the User’s risk.

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.

The Company shall not release any domain to another provider unless the Company has received full payment for that domain and any other pending payment from the User. If the domain cannot be transferred to a new provider due to any outstanding declarations or actions to be arranged by the User, the User shall pay the Company for its services during that time.

It is acknowledged that by viertue of these T&C the Company is authorised to take any measures necessary to fulfil executable orders of competent authorities or to comply with enforceable decisions of national or international courts. The Company is further authorized to take any measures to fulfil decisions made pursuant to the Uniform Domain Name Dispute Resolution Policy (“UDRP” accessible under http://www.icann.org/udrp/udrp.htm) rendered by an ICANN registered arbitral court.

The User shall hold the Company, its assistants and affiliated companies harmless from any damage claims for complying with a decision of a national, international or arbitral court or competent authority.

3.3. Website Hosting and Email

The User is allowed to utilise 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.

Additionally, the Company is authorized to delete a User’s email account if the account remains inactive during a longer time period to be defined by the Company.

The User ensures that the email-address chosen does not breach any applicable law or infringe any third party’s rights. In particular the User is not allowed to register an email-address including a third party’s name or trademark or any other name that is misleading or may deceive anyone with respect to the User’s identity.

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 Company is authorized to offer a spam filter for its email services. However, such spam filter cannot assure that the User will not receive any unsolicited email or that emails will be forwarded to the spam filter folder which does not include any spam. The User is obliged to check his spam filter folder on a regular basis.

The Company makes no representation and gives no warranty as to the accuracy or quality of information received by any person via the Server and the Company shall have no liability for any loss or damage to any data stored on the Server.

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 unauthorised use of the account or breach of security, including loss, theft or unauthorised disclosure of the User’s password or other security information.

While the Company will use every reasonable endeavour to ensure the integrity and security of the Server, the Company does not guarantee that the Server used will be free from unauthorised users or hackers and the Company shall be under no liability for non-receipt or misrouting of email or for any other failure of email.

The User shall at its expense take copies of all information stored on the Server and/or in a database and insure against its accidental loss or damage. The Company shall have no liability for any such loss or damage, however caused.

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 microsite 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.

Any production services will be accepted by the User as contractual services if he does not get back to the Company within the first week after delivery of the services with a notice of defects. Any notice needs to be provided to the Company in writing and must include a documentation of the defect in a comprehensible manner.

With respect to any advertising measures the Company only owes the handling of the services pursuant to the agreed specifications. The Company is not responsible and does not make any guarantees with respect to the success or suitability of the services ordered by the User.

Any deadlines for the delivery of the Company’s services may only be regarded as approximate estimation. The Company is not bound to provide the User with the services at such date.

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 utilising 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 obtain any and all necessary consents and clearances to enable the Company lawfully to make use of all and any intellectual property rights through the Services, including without limitation, clearance and/or consents in respect of User’s proposed domain name. Wherever possible, royalty free or public domain images may be used in the design of the User’s website. Any conflict between an unknown author of such images and publication of said images on the site will be the full responsibility of the User.

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.

5. Liability

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 User acknowledges that the Company has no control over the information transmitted via the Service and that the Company does not examine the use to which the User puts the service or the nature of the information the User sends or receives. The Company hereby excludes all liability of any kind for the transmission or reception of information of whatever nature. The Company is authorized to remove any content or materials, delete email accounts or messages if it will be informed on a User’s possible breach of law or of these Terms and Conditions.

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 shall not be liable to the User by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms and conditions of the Agreement, for any indirect special, or consequential loss of damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Services or their use or resale by the User. The Company’s total aggregate liability to the User for any claim in Contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by the User in respect of the Services, which are the subject of any such claim.

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.

The Company shall not be liable to the User or be deemed to be in breach of the T&C or any Agreement based therein by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Services, if the delay or failure was due to a cause beyond the Company’s reasonable control.

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;
(c) charge to the User interest on the amount unpaid at the rate of 8% per annum until payment in full is made (a part of a month being treated as a full month for the purposes of calculating interest);
(d) Recoup the cost of any third party agents incurred should any action be undertaken to obtain settlement of the account.

7. Default

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.

If the Company waives a breach of Agreement by the User, that waiver is limited to the particular breach. Any delay by the Company in acting upon a breach is not to be regarded in itself as a waiver.

Either party on giving at least 30 days notice to the other may terminate an Agreement under these T&C. If the Company gives notice the User shall pay all charges up to the expiry of the notice. If the User gives notice, the User shall pay all charges until 30 days after the date the Company receives the notice or until expiry of the notice, whichever is the latter. The User’s notice does not avoid any other liability for Services already provided. Annual recurring Services require cancellation by the User and the Company reserves the right to charge annually for the provision of these Services unless the Company has received from the User written instruction to terminate these Services.

8. Force Majeure

The Company shall not be liable to the User or deemed to be in breach of the T&C or any Agreement based thereon by reason of any delay in performing or any failure to perform any of the Company’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Company’ reasonable control. Without prejudice to the generality of the foregoing the following, shall be regarded as causes beyond the Company’s reasonable control: Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance, legal acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any government parliamentary or local authority, strikes, lockouts or other industrial action or trade disputes (whether involving employees of the Company or any third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.

9. General

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.

If any provision of these T&C is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these T&C and the remainder of the provision in question shall wherever possible remain in full force and effect.

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.
Dubai, December 2005