AGREEMENT BETWEEN YOU AND EKM SYSTEMS LTD
These Terms & Conditions constitute a legal agreement between you and Ekm Systems. You must accept without modification all of the terms, conditions, and notices contained in these Terms & Conditions in order to access and use the services Ekm Systems provide. If you do not accept these Terms & Conditions in their entirety, you may not access or use the services provided by Ekm Systems.
Ekm Systems provides internet services, Ekm Systems reserves the right to suspend or cancel any customer's access to any or all services provided by Ekm Systems when Ekm Systems decides that the account has been inappropriately used or otherwise.
These are the terms and conditions for use of the Internet services provided by Ekm Systems. By purchasing services from Ekm Systems, you (subscribers) agree to abide by these terms and conditions. We reserve the right to change this agreement at any time without notice.
Ekm Systems may wish to update or change the terms, conditions and notices for the service provided from time to time to reflect changes in the service, changes in the laws affecting the Services, or for other good reasons. You understand that Ekm Systems reserves the right to make these changes and that you are responsible for regularly reviewing these terms, conditions and notices. Continued access to or use of the Services provided by Ekm Systems after any such change shall constitute your consent to such change. Unless explicitly stated otherwise, any new features that change or improve the Ekm Systems Services shall be subject to the Terms & Conditions, as modified from time to time.
EKM SYSTEMS RIGHT TO USE FEEDBACK OR SUGGESTIONS YOU SUBMIT
Ekm Systems wants your voluntary feedback and suggestions on the Services we provide so that we can continually improve the services for you and other customers. When you submit feedback and suggestions, please understand that Ekm Systems needs to have full rights to use your feedback and suggestions without any encumbrances. In particular, you should understand that by submitting any feedback or suggestions to Ekm Systems concerning the Services we provide, you warrant and represent that you own or otherwise control the rights necessary to do so and you are granting Ekm Systems and its affiliated companies permission to:
Use, modify, copy, distribute, transmit, publicly display, publicly perform, reproduce, publish, sublicense, create derivative works from, transfer, or sell any such feedback or suggestions; and
Sublicense to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to the feedback or suggestions.
These grants include the right to exploit any proprietary rights in such feedback or suggestions, including rights under copyright, trademark, service mark or patent laws in any relevant jurisdiction. No compensation will be paid with respect to Ekm Systems use of the materials contained within such feedback or suggestions. Ekm Systems is under no obligation to post or use any materials you may provide and may remove such materials at any time at Ekm Systems sole discretion.
Ekm Systems accounts are to be used by the primary owner only, account holders are not permitted to resell, store or give away the services of their account to other parties even if it was for free or non-profitable.
You are responsible for conforming to all federal, state, and local laws regarding the Internet and electronic communication. You must respect the intellectual property and copyrights of resources provided by others on the net. You may not participate in any illegal activities while using your account. You must obey the laws of the United Kingdom, England and Wales and other countries that you communicate with over the net. We cannot and do not monitor or control traffic content to/from our service. You are responsible for keeping your activities legal, and for censoring yourself and colleagues. Subscribers are not permitted to post any material that is illegal, libelous, tortuous, or likely to result in retaliation against Ekm Systems. Should the posted material fall into this category, we reserve the right to immediately refuse or terminate service.
Ekm Systems does not allow any of the following contents to be stored on any of its servers:
- Illegal Material - This includes copyrighted works, commercial audio, video, or music files and any material in violation of any Federal, State or Local regulation.
- Adult Material - Includes all pornography, erotic images, or otherwise lewd or obscene content. The designation of "adult material" is left entirely to the discretion of Ekm Systems. We allow adult stores, our only restriction is that there must be no pornographic images or anything too offensive. We have several "ann summers" type stores using ekmPowershop and other Ekm Systems services.
- Warez - Includes pirated software, ROMS, emulators, freaking, hacking, password cracking, IP spoofing, etc., and encrypting of any of the above. Also includes any sites which provide "links to" or "how to" information about such material.
Ekm Systems will terminate any account that contains any of the above mentioned contents without any warning and without refunding any payments.
1. Unless indicated otherwise on the relevant Order form, the Client hereby agrees to allow Ekm Systems to collect and process data and information regarding the Clients use of the Service and to provide this to sub-contractors and/or companies affiliated with Ekm Systems for the purposes of marketing Ekm Systems (or Ekm Systems affiliated companies) services, or other related services, or for any other purpose connected with the Agreement. Ekm Systems will provide the Client on request with details of all such information held by Ekm Systems, and will modify any information that the Client advises is incorrect.
2. Subject to and in accordance with relevant data protection legislation, the Client hereby consents to allow Ekm Systems to collect data regarding Ekm Systems use of the Services and to provide such data to any governmental or regulatory body for the purpose of Ekm Systems compliance with any applicable laws and regulations.
3. Each party shall for the duration of any Agreement governed by these Terms and Conditions comply with the provisions of the Data Protection Act 1998, (including the data protection principles set out in that Act) and any similar or analogous laws, regulatory requirements or codes of practice governing the use, storage or transmission of personal data and shall not permit anything to be done which might cause or otherwise result in a breach by either party of the same.
4. Ekm Systems possesses the right to communicate with the Client regularly via, but not limited to, electronic means.
5. Ekm Systems may, from time to time, send Client information relating to the services of other companies that Ekm Systems feels may be of interest to the Client. If the Client does not want to receive such information, it is to inform Ekm Systems in writing.
6. Ekm Systems has the right to deny Customer Support to the Client if the Client fails to demonstrate to the Ekm Systems representative upon receipt of a phone call or e-mail by Ekm Systems that they are indeed the Client and therefore authorised to request that changes be made on the account. The Client acknowledges that it may not always be possible for Ekm Systems to guarantee that breaches will not occur and therefore agrees to cooperate with Ekm Systems staff in its requests for Client authentication.
High bandwidth usage: Ekm Systems offers an unlimited use policy by maintaining very large ratios of bandwidth and disk space per customer. In rare cases, Ekm Systems may find a customer to be using server resources to such an extent that he or she may jeopardize server performance and resources for other customers. In such instances, Ekm Systems reserves the right to impose the High Resource User Policy for the consideration of all customers.
HIGH RESOURCE USER POLICY
Resources are defined as bandwidth, disk space and/or processor utilization.
Ekm Systems may implement the following policy to its sole discretion:
When an account is found to be monopolising the resources available Ekm Systems reserves the right to suspend that website or service immediately. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers.
EXCEEDED USER ACCOUNTS
If an account is found to have uploaded more contacts than their tariff specifies and subsequent email campaigns are sent thereby using system resources, EKM Systems reserve the right to upgrade the account tariff to the most appropriate and charge the user accordingly.
DATA AND BACKUP
While we do backup all data within our own internal systems we are not liable for any loss of data which may adversely affect your business. This means that if you have uploaded your product data and/or built up a database of clients and/or orders, you must keep a backup on your own machine. Subscribers agree that Ekm Systems has the right to delete all data, files, or other information that is stored on Ekm Systems servers upon termination of services, or cancellation of account due to non-payment or breaking of any of these terms by subscriber.
While Ekm Systems makes all efforts to ensure the services we provide are both secure and robust, we make no claims about this security. If someone gains unauthorised access to your account they may/may not have access to customer details such as payment information, this is your responsibility. Hacking is a serious crime and effects most businesses. Should Ekm Systems and/or any system provided by Ekm Systems suffer a breach of security we cannot be held responsible. It is the clients responsibility to delete credit card information after processing it.
Subscribers will indemnify and hold Ekm Systems harmless (including officers, employees, agents, and shareholders) of any and all claims, costs, expenses or liability resulting from any damage to Subscribers business, service, equipment, network, operations, or reputation resulting from Ekm Systems actions. Indemnification includes, but is not limited to, any government actions, acts of vandalism or other retaliation, and any claims of libel, unfair competition, infringement of any patent, copyright, trademark, service mark, or other intellectual property right, violation of privacy, or other tort.
Ekm Systems reserves the right to change prices of accounts or services at any time.
In addition, Ekm Systems reserves the right to suspend other services until the outstanding debt is cleared. The customer is responsible for all money owed on the account from the time it was established to the time that the customer sends a cancellation request; the Customer can request cancellation of their account and will be billed up to the first day of the following month.
All Charges are exclusive of VAT and any other applicable purchase tax, import, and all other duties. Any failure by the Client to pay any fees due under these Terms and Conditions on the date specified shall be deemed to be a "material breach" of these Terms and Conditions.
Ekm Systems Ltd, a UK registered limited liability company, will register all UK domain names through the registrar Nominet to view their terms and conditions please go to http://www.nominet.org.uk/registrants/aboutdomainnames/legal/terms/.
All international domain names are registered through Total registrations to view their terms and conditions please go to
If you wish to make a complaint regarding a registration or usage of a domain name you will need to contact our Customer Support team on 0871 230 7116 or email us at firstname.lastname@example.org
CANCELLATION AND REFUNDS
Ekm Systems reserves the right to cancel the service at any time. Customer refund requests are to be sent via email to: refunds@EkmSystems.co.uk and will only be processed in the cases of service non-performance that might be caused by Ekm Systems side, Refund requests will be refused if requested for any cause that is out of Ekm Systems side.
Should you wish to cancel your account with Ekm Systems Ltd you must write to us on letter-headed paper, or contact our cancellations team by telephone or downgrade to the free tariff within your ekmResponse control panel - all of which must be done 30 days before your next billing date. If none of these methods are carried out, the account will not be cancelled, monthly tariff payments may continue and no refunds will be eligable. On requesting a cancellation we will reply with confirmation that your cancellation request has been actioned.
AFFILIATES & RESELLER PROGRAM
As an affiliate or reseller for any of the services provided by Ekm Systems you will be paid on a commission basis.
- ekmPowershop, you shall be given the fee of £25.00.
All commissions given out to affiliates and resellers have the following terms
- You shall be paid commissions after a period of 3 months to allow for the payments to clear
- Customers gained by affiliates or resellers must remain with Ekm Systems for at least 2 months to qualify as a 'gained customer and for commission to be paid out
- Ekm Systems have the right to cancel an affiliate or resellers account at any time without notice
- Ekm Systems also has the right to discontinue or modify the affiliates or resellers program at any time
- Users understand that participation in the Affiliates and Resellers program is at the discretion of Ekm Systems. Should the actions of any User be deemed to be harmful to the reputation of Ekm Systems the User will be removed from the Affiliates and Resellers program immediately.
- All commission payments will incur a 5% processing fee, this will automatically be deducted from the overall commission
WEB DESIGN & DEVELOPMENT
1. The Service:
Ekm Systems Ltd, a UK registered limited liability company, will design and construct web page(s) for you (the “Client”) according to the Client's specifications as set forth in a client order to be completed and submitted to Ekm Systems Ltd by Client (the “Client Order”) and subject to these Terms and Conditions (this “Agreement”). Upon fulfilment of the Client Order, Ekm Systems Ltd will deliver the work via FTP download or global access and provide the Client with access code. The Client may take the option to upload Final page (s) when finished to a host of his choice or provide Ekm Systems Ltd with the host's access code. The Client may add or subtract items or pages at any time during the construction process until the product is delivered and subject to additional charges as applicable. The final payment will reflect those changes. A copy of these Web Pages Design Terms and Conditions and Client Order must be signed by all Clients at the time of submission of the Client Order to Ekm Systems Ltd, indicating agreement to and acceptance of these Web Design Terms and Conditions.
2. Right to Refuse Orders.
Ekm Systems Ltd will not design or construct web page(s) containing "adult content,” promoting violence of any kind, including an intolerance for race, lifestyle, or faith, or that constitutes harassment, defamation, libel, slander, or promotes the commission of a crime or any unlawful conduct. Ekm Systems Ltd shall have the right to refuse any Client Order or do business with any person or entity without liability and without explanation.
Client may take the option to upload Final page (s) or Web site to a host of his/her choice or provide Ekm Systems Ltd with the access code for the link.
4. Delivery, Review and Additional Work.
Ekm Systems Ltd will install and publicly post the Clients pages by the date agreed upon by both Client and Ekm Systems Ltd, unless a delay is specifically requested by the Client. Unless otherwise specified by Client, the method of delivery for completed works, under this Agreement, shall be made through its upload to the hosting web server. Ekm Systems Ltd will provide the Client with an opportunity to review the appearance and content of Web site materials in a Beta Version prior to finalization of the pages (the “Beta Pages”). The Beta Pages will be deemed to be accepted and approved unless the Client otherwise notifies Ekm Systems Ltd at email@example.com within (5) business days of the date the Beta Pages are made available to the Client. Upon notice of requested changes, Ekm Systems Ltd will make changes to the Beta Pages to the extent such requested changes are within the scope of the Client Order. Following any changes to the Beta Pages as requested by Client, Ekm Systems Ltd will provide Client the completed pages (the “Final Pages). Ekm Systems Ltd will not be obligated to make any changes to the Final Pages unless the Client demonstrates the Final Pages do not comply with the Client Order. When requested by Client, the parties shall in good faith negotiate Additional Client Orders, each of which upon signing, shall be deemed a part of this Agreement.
Charges for services to be provided by Ekm Systems Ltd are defined in the Client Order, which Client shall receive, execute and return to Ekm Systems Ltd via facsimile. Ekm Systems Ltd reserves the right, subject to (14) days advance email notice to the Client, to change the rates charged for any ongoing maintenance services provided to Client. Payment for services is due by credit card, cheque or bank transfer, and all payments are subject to these Terms and Conditions and the Terms and Conditions posted on Ekm Systems Ltd site at www.ekmsystems.co.uk pertaining to payment for use of Ekm Systems Ltd services. Ekm Systems Ltd must receive payment prior to final release of the Client Order.
6. Changes in Pricing.
Ekm Systems Ltd reserves the right to change prices without notice. However, price changes, other than those relating to on-going maintenance service, shall not be changed with respect to previously executed Client Orders.
(a) During the construction process and not after the Final Pages are released (with the exception of the Client's failure to make payment), the Client Order will terminate automatically upon either party providing written notice to the other indicating that the notifying party wishes to terminate the Client Order.
(b) If Ekm Systems Ltd initiates termination, with the exception of the Client's failure to make any payments owed thereunder, Ekm Systems Ltd agrees to reimburse the Client in full either by cheque within thirty (30) days of termination, or by cancelling any of the credit card transaction(s), and Ekm Systems Ltd shall have no further obligations to Client nor any obligation to provide Client work that had been commenced or completed prior to termination.
(c) Termination of the Client Order by Client must be sent by email to firstname.lastname@example.org. If Client terminates the Client Order within forty eight (48) hours after signing of contract, Ekm Systems Ltd shall refund twenty five (25%) percent of the total downpayment received. If Client terminates the Client Order at any time following commencement of work thereunder but prior to release of the Final Pages, Ekm Systems Ltd has a right to charge Client for design work performed prior to the date of first notice of cancellation based (at Ekm Systems Ltd discretion) upon either the hours worked up to the date of termination or for all accepted milestones and a prorated amount for partially completed deliverables. Client may not terminate this Agreement after release of the Final Pages.
8. Non-Payment or Late Payment.
Ekm Systems Ltd will not commence work with respect to any Client Order or, if work has commenced, will not continue any work on the Client Order, if it is unable to charge the Clients credit card or to receive payment from the Client within (3) business days after Ekm Systems Ltd notifies Client by email concerning non-payment. If the Client Order has been completed, Ekm Systems Ltd will not release the Final Pages or if the Final Pages have already been released, will remove the Client's page(s) off of the server until payment is received. Ekm Systems Ltd will reinstate all pages after payment in full has been received. If Ekm Systems Ltd found a server for Client, and the Client has not paid Ekm Systems Ltd before termination and before Ekm Systems Ltd found the server, Client's server account will also be deleted. If Ekm Systems Ltd releases the Final Pages but Client fails to make all payments due under the Client Order, Ekm Systems Ltd also has the right to keep all payments the Client has made at any time and to pursue all collection efforts and legal remedies for unpaid work under the Client Order.
Ekm Systems Ltd will impose a finance charge of 1.5% per month and a £10.00 per month late fee for each month that Client has not paid any outstanding balances owed under the Client Order. Clients with accounts in default agree to pay Ekm Systems Ltd reasonable expenses, including attorney fees and costs for collection by third-party agencies, incurred by Ekm Systems Ltd.
Client retains the copyright to data, files and graphic logos provided by the Client, and grants Ekm Systems Ltd the rights to publish and use such material in fulfilment of the Client Order. Artwork and graphic logos designed by Ekm Systems Ltd for use in the Clients Web presentation will remain the property of Ekm Systems Ltd; and at its discretion and under separate agreement, Ekm Systems Ltd will grant the Customer rights to use such material in formats other than Web presentations. Client must obtain permission and rights to use any information or files that are copyrighted by a third party and for Ekm Systems Ltd to include such materials in fulfilment of the Client Order. Client agrees to indemnify and hold harmless Ekm Systems Ltd from any and all claims resulting from the Client's negligence, intentional failure or inability to obtain proper copyright permissions. Client represents and warrants to Ekm Systems Ltd that all such permissions have been obtained, and evidence of all necessary permissions may be requested from Client.
10. Standard Media Delivery.
Unless otherwise specified in the Client Order, this Agreement assumes that all text will be provided by the Customer in electronic format (ASCII text files delivered on CD via overnight courier or via e-mail or FTP) and that all photographs and other graphics will be provided physically in high quality print suitable for scanning or electronically in .gif, .jpeg or .tiff format. Additional expenses may be incurred and will be invoiced accordingly for corrective work, conversion of media or outside facility charges. Although a reasonable attempt shall be made by Ekm Systems Ltd to return to the Client any images or printed material provided for use in creation of the Clients Web site, such return cannot be guaranteed. The Final Pages will be posted to a global access or FTP. Ekm Systems Ltd will provide the client with the user name and password. The Client may have the option to upload Web site to a host of his/her choice or provide Ekm Systems Ltd with the access code.
11. Access Issues.
(a) If Clients Web site is to be installed on a third-party server, Ekm Systems Ltd must be granted the necessary access to the Client's storage directories, and those directories must be accessible via FTP. Depending on the specific nature of the project, other resources might also need to be configured on the server.
(b) Client agrees that Ekm Systems Ltd shall have the right to remove from Clients Web Site any web pages Ekm Systems Ltd has designed which upon or following posting fail to adhere to the terms of these Web Design Terms and Conditions, including violation of any licensing agreements or failure to pay fees duly assessed.
ekmResponse may only be used for lawful purposes.
You acknowledge and accept that you are the 'sender' of any communication from your ekmResponse account.
Ekm Systems accepts no affiliation, association or responsibility for any messages you send through ekmResponse.
ekmResponse and all email marketing are also subject to Ekm Systems terms and conditions, outlined before and after the EMAIL MARKETING SECTION.
ekmResponse may not be used for unsolicited emails (otherwise known as spamming). Spamming is constituted by repeatedly sent, unwanted and unsubscribed to emails.
3. Un-subscription (opt-out)
To ensure that ekmResponse is not used for Spamming purposes, all emails transmitted from the system must contain unsubscribe links, or the ability to opt out of further communication.
False or misleading header information must not be used when sending emails through ekmResponse. Both the 'From and 'To' fields must represent the originator of the email message.
Deceptive subject lines must not be used; the subject must reflect the subject matter of the message.
5. Data protection (1998) and Privacy and Electronic Communications (EC Directive) Regulations 2003.
Any use of ekmResponse by the subject must conform to both the Data Protection Act and the Privacy and Electronic Communications (EC Directive) Regulations 2003. Data obtained or acted upon in breach of either act should not be used with ekmResponse or any other Ekm Systems services.
For use in the USA, users must conform to CAN-SPAM legislation. This also includes the points covered in (EMAIL MARKETING – Point 1).
7. Usage Policy
ekmResponse will be subject to monthly subscription fees once you have completed your free trial period or have exceeded the free subscription limit.
Free subscription applies to all users with a contact list less than 100. This is subject to scrutiny by Ekm Systems for any systematic abuse of the contact list i.e. removing lists completely and swapping/interchanging them systematically with brand new contacts. Any abuse to the free subscription service will result in cancellation of the service.
The free subscription tariff may be cancelled by Ekm Systems at any time. Users on the free subscription may send no more than 5 times per month to a maximum of 100 contacts.
ekmResponse pricing is based on usage of the system in terms of contacts communicated to. Please see www.ekmresponse.com/pricing.asp for further details.
Any paid for tariffs are subject to fair usage policy: the number of emails/messages sent may not exceed more than 15 times the number of contacts in the users account, on a monthly basis.
Ekm Systems reserves the rights to reject campaigns if they are flagged up under excessive usage. Excessive usage is defined by usage by one person or subject, which leads to detrimental performance to other users on the system.
For Those Thinking About Committing Fraud :
1. Card fraud is a crime and a felony punishable by heavy fines and jail time. Fraudulent behaviour will be prosecuted aggressively and with a passion to the fullest extent of the law.
2. The ID and address of your computer and your ISP provider have been determined, and recorded as a safeguard against fraudulent behaviour and may be used by Ekm Systems or legal entities to prosecute guilty parties.
3. All information must match card account records as provided by the card-issuing bank. Inputting intentionally false information is fraud and will not be tolerated and may subject you to prosecution.
4. Card numbers are transmitted directly to the banking network for authorization. Ekm Systems considers fraud a direct and serious threat to our business profitability. We do not take any effort to defraud lightly and will prosecute whenever and wherever possible to the fullest extent of the law.
MARKETING AND PROMOTION
Ekm Systems reserve the right to cite any of its clients business and/or feature client branding in its own marketing, advertising and/or general promotion.
This includes but is not limited to: business name, logos, product or service brand names, and any design carried out by Ekm Systems including website design, HTML design, graphic design or any other type of design which resides on or is hosted by Ekm Systems server network.
Ekm Systems will perform its own email marketing in accordance with The Privacy and Electronic Communications (EC Directive) Regulations 2003 and subject to section 2 of the "Data Protection" segment above. No unsolicited email marketing shall be carried out to promote Ekm Systems Services.
Customer agrees that it shall defend, indemnify, save and hold Ekm Systems harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against Ekm Systems, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Ekm Systems against liabilities arising out of:
(1) any injury to person or property caused by any products sold or otherwise distributed in connection with Ekm Systems server.
(2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party.
(3) copyright infringement.
(4) any defective products sold to customer from Ekm Systems server.
Neither party shall be deemed in default of this Agreement or the Client Order to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within ten (10) business days of such event or occurrence.
Ekm Systems will not be responsible for any damages your business may suffer, Ekm Systems makes no warranties of any kind, expressed or implied for services we provide.
Ekm Systems disclaims any warrantor merchantability or fitness for a particular purpose. The includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Ekm Systems and its employees.
Ekm Systems reserves the right to revise the above mentioned policies at any time.