THE Gardening WEBSITE
General Terms and Conditions
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LIMITATION OF LIABILITY
Limitation on Liability
In no event shall The Gardening Website be liable to client, client's users or any other third party for any indirect, consequential, special, incidental, punitive or noncontractual damages or lost profits arising out of or related to this agreement or any services, even if The Gardening Website has been advised of the possibility thereof. The Gardening Website's liability, if any, to client or to any third party hereunder shall in no event exceed the total after tax profits earned by The Gardening Website under this agreement in the last twelve months. The parties acknowledge that The Gardening Website has set its prices and entered into this agreement in reliance upon the limitations of liability and the disclaimers of warranties set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitation and exclusions of liability will survive and apply even if found to have failed of their essential purpose.
In no event shall The Gardening Website be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the services.
Client will indemnify, defend and hold The Gardening Website, and its officers, directors, employees, agents and affiliates (each, an "indemnified party") harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys' fees (collectively, "losses") resulting from or arising out of any claim, suit, action, arbitration or proceeding (each, an "action") brought by a third party against indemnified party relating to: (i) a breach or alleged breach by client of any of its representations, warranties, covenants or obligations hereunder, (ii) infringement or misappropriation of any intellectual property rights, including but not limited to rights of privacy, patent, copyright, trade secret, trademark rights and/or licenses, (iii) injury caused by any negligence or willful misconduct of client, or (iv) use of the services, including use of the services without the consent of client
8.2 Any person who is not a party to this Contract shall have no right to enforce any term of this Contract against the Company under the Contracts (Rights of Third Parties) Act 1999.
9.1 Either party may give written notice to the other to terminate this Contract immediately if that other party commits any material breach of its duties and fails to remedy that breach within 28 days of written notice of that breach.
9.2 The licence shall terminate immediately if the End User has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over any of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.
10.1 This Contract shall be governed by the laws of England and Wales.
10.2 If a dispute has not been resolved by an ADR procedure within 30 days of the initiation of that procedure, or if either party will not participate in an ADR procedure, the dispute shall be decided by the High Court of England and Wales and the parties submit to its exclusive jurisdiction for that purpose.
11.Acceptable Use Policy
11.1 You shall not post, publish transmit, re-transmit or store material on or through any of the The Gardening Website systems services or products which:
i. is in violation of any law or regulation which is enforceable in the United Kingdom; or
ii. is threatening, obscene, indecent, defamatory, or blasphemous; or
iii. is calculated to incite hatred against any ethnic, religious or other minority or is otherwise calculated to affect any individual, group or entity (collectively, "Persons") adversely; or
iv. violates the rights of any Person, including rights of privacy, rights of personality;
v. infringes or breaches any third party intellectual property rights (which shall include but not be limited to copyrights, trade marks, design rights, trade secrets patents, moral rights and performance rights).
For the avoidance of doubt, the installation or distribution of "pirated" software or other software products that are not appropriately licensed to the customer will constitute a violation of intellectual property rights. In the event of any disagreement as to whether materials posted, transmitted, re-transmitted or stored by a customer are in contravention of this section, the decision of The Gardening Website shall be final.
11.2 You shall not post, transmit, re-transmit or publish:
i. unsolicited promotional or advertising material; or
ii. chain letters or pyramid selling schemes.
iii. any material which The Gardening Website deems to be unfit for general public viewing or that may cause offence to others.
The Gardening Website retains the right to refrain from publishing such pages as a part or a whole of a website and may at its discretion delete any material it finds to be offensive.
12.1 This Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to that subject matter.
12.2 The End User shall not assign or otherwise transfer this contract. The Company may assign this contract by giving the End User written notice.