These terms and conditions apply to all contracts for the supply of internet-related services (as defined below but including servers, website hosting and online backup) by Positive Computing. They are supplemental and subject to Positive Computing’s Standard Terms and Conditions in force for the time being which shall also apply to such contracts so far as they are consistent with and not modified by these terms and conditions.
In these terms and conditions, unless the context requires otherwise, the following words shall have the following meanings:
‘Clientware’ the equipment, cabling, systems and software (if any) provided by the Client and located at Positive’s premises in connection with the Services. ‘Contract’ a contract for the provision of the Services by Positive Computing to the Customer ‘Hardware’ the equipment, cabling and systems provided by Positive Computing in connection with the Services. ‘IPRs’ any and all intellectual property rights including without limit any and all patents, design rights, database rights, copyright, know-how, moral rights, trade secrets, confidential information, trade marks, service marks, trade names and goodwill . ‘Keywords’ those words notified to the Customer by Positive Computing which control the Client’s access to some of the Services including without limit a password and username. ‘Netiquette’ generally accepted standards for use of the Internet such as (but not limited to) disallowing the following activities: sending bulk unsolicited e-mail, mail bombing, misrepresenting the holding of third party authorisation and impersonating another person ‘Notified Maintenance’ essential maintenance to be carried out by Positive Computing in relation to the Services, Hardware, Clientware and/or Software, which has been notified to the Customer at least 3 days prior to its commencement. ‘Schedule’ the Contract schedule describing the Services requested by the Customer including without limit details of the requested bandwidth, Hardware, storage space and Software. ‘Services’ the Internet related services described in any Schedule made under these terms and conditions and which are supplied or to be supplied by Positive Computing on and subject to the terms of the Contract. ‘Service Disruption’ any disruption in the Services as a result of any failure of the Hardware/Clientware, Software or Positive Computing personnel who provide the Services and which does not result from any breach by the Customer of the Contract, force majeure or any Suspension Event as referred to in clause 2.6 below. ‘Software’ the computer software programs provided by Positive Computing in connection with the Services. ‘Suspension Event’ as described in clause 2.6 below. ‘Working Days’ any day which is not a Saturday, a Sunday or a bank or public holiday in England. ‘Working Hours’ 9 a.m–5.30 p.m on each Working Day. ‘User’ any individuals and businesses who access the Internet website(s) hosted on the Hardware/Clientware in connection with the Services
2 Services, Hardware, Clientware and Software
2.1 The Services, Software and Hardware shall be as described in the Contract and any associated Schedules from time to time.
2.2 The terms of the Contract together with these terms and conditions (and Positive Computing’s standard terms and conditions so far as applicable) contain the whole agreement between Positive Computing and the Customer in relation to the Services, Hardware, Clientware and Software. All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or
otherwise, are excluded to the fullest extent permitted by law.
2.3 If either party requires any variations or additions to the Services, Hardware, Clientware and/or Software to those set out in any Contract Schedule then the parties may agree a new Schedule superseding the existing Schedule.
2.4 Subject to clause 2.3, Positive Computing reserves the right at any time and from time to time to amend, improve or correct the Services, Software and/or Hardware (or any part thereof) provided that such modification does not materially affect the Services, Software and/or Hardware (or any part thereof). This includes the right to substitute the Hardware with Hardware of similar specification, where necessary. Positive Computing shall give the Customer reasonable notice of such modifications but in any event at least 3 days advance notice of the same.
2.6 Positive Computing reserves the right at its sole discretion to suspend the Services (temporarily or permanently) on the occurrence of the following (each of the following shall be a ‘Suspension Event’): (i) Notified Maintenance (ii) issue by any competent authority of an order which is binding on Positive Computing and which affects the Services; (iii) if the Customer fails to pay any undisputed amounts due under the Contract when they are due; (iv) if any events occur which would entitle Positive Computing to terminate the Contract; (v) failure or deficiencies in the Clientware or (vi) the bandwidth used by the Customer in relation to the Services exceeds the agreed level and Positive Computing determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by Positive Computing from time to time.
2.7 Where Clientware is located at Positive’s premises, Positive, upon arrangement of an appointment during Working Hours, allow the Client reasonable access to the Clientware.
3 Obligations of the Customer
3.1 The Customer agrees that it shall:
3.1.1 immediately notify Positive Computing if it becomes aware of any unauthorised use of all or any of the Services, Software, and/or Hardware/Clientware;
3.1.2 not knowingly use the Services, Software, and/or Hardware/Clientware or allow them to be used for any unlawful purpose or for the publication, linking to, issue or display of any unlawful material (which shall include without limit any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including without limit IPRs) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under English law or regulation, the laws or regulations of the Client’s country or any other place where the results of such purpose or such material can be accessed;
3.1.3 not knowingly use the Services, Software, and/or Hardware or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of Positive Computing may harm Positive Computing or any of its clients or bring Positive Computing into disrepute or may call into question any action taken by Positive Computing on the Client’s behalf;
3.1.4 not knowingly use the Services, Software, and/or Hardware/Clientware or allow them to be used in breach of good Netiquette practices;
3.1.5 remove or prevent access to any material which is hosted on any of the Hardware, Clientware and/or and which causes or is likely to cause the Customer to be in breach of the Contract;
3.1.6 ensure that it has all necessary consents, permissions and licences to make use of the Services including without limit registration under the Data Protection Act 1998;
3.1.7 not provide any technical or other information obtained from Positive Computing and/or relating to the Services, these terms and conditions or the Contract to any person, company, firm or government which the Customer knows or ought reasonably to be aware may directly or indirectly lead to a breach of any English law or regulation;
3.1.8 be responsible for keeping regular back ups of all material and data hosted by Positive Computing on any website operated by the Customer from time to time using the Hardware, Clientware and/or Software;
3.1.9 ensure that all Keywords are at all times kept confidential, used properly and not disclosed to unauthorised people and if the Customer has any reason to believe that any Keyword has become known to someone not authorised to use it or if any Keyword is being or is likely to be used in an unauthorised way or the Customer is aware of any other breach of security then the Customer shall inform Positive Computing immediately;
3.1.10 be entirely liable for all activities conducted and charges incurred under its Keywords whether authorised by it or not and the Customer acknowledges that Positive Computing shall not be liable for any loss of confidentiality or for any damages arising from the Client’s failure to comply with clause 3.1.9 unless such loss or damages arise as a result of Positive Computing’s negligence in handling the Keywords;
3.1.11 ensure that all its communication details which are provided to Positive Computing are at all times true, current, accurate and complete and the Customer shall promptly notify Positive Computing of any such details and the Customer acknowledges that Positive Computing shall not be liable for any costs, damages or loss which the Customer may suffer or incur as a result of failure to notify such changes.
3.2 The Customer acknowledges that in order to make proper use of the Services it should have a basic knowledge of how the Internet functions and what types of use are and are not acceptable. The Customer acknowledges that Positive Computing shall have no obligation to: (a) manipulate any material which the Customer wishes to and/or does post on any website it operates or any communication which it issues or sends in connection with any of the Services; or (b) validate or vet such material for usability, legality, content or correctness.
4 Positive Computing’s obligations
4.1 Positive Computing will provide the Services on an ‘as available’ basis with reasonable care and skill; Positive Computing does not guarantee internet access, upload or download speeds, bandwidths or other service levels nor does not it represent or warrant that the Services will be free from interruptions, errors, viruses or other harmful components
4.2 Software and Hardware are supplied on the basis set out in Positive Computing’s standard terms and conditions in force for the time being.
4.3 All other conditions, warranties or other terms whether express or implied, statutory or otherwise not set out in these terms and conditions or Positive Computing’s applicable standard terms and conditions are hereby expressly excluded to the fullest extent permitted by law.
5 Intellectual property, licence and ownership
5.1 All IPRs relating to the Services, Hardware, Clientware and/or Software including without limit any Internet Protocol Addresses assigned to the Customer are and shall remain the property of Positive Computing. Positive Computing reserves the right to change the Internet Protocol Address assigned to the Customer at any time, however Positive Computing shall endeavour to give reasonable notice of the change and shall use reasonable endeavours to reduce disruption to the Customer resulting from such changes.
5.2 Title to the Hardware and Software (both legal and equitable) is and shall at all times remain with Positive Computing and the Customer shall keep the Software and Hardware free of all charges, liens and encumbrances and protect it from any and all judicial process.
5.3 Positive Computing grants to the Customer a non-exclusive non-transferable licence to use the Software on the Hardware/Clientware in conjunction with the Services and except as provided for in the Contract the Customer is not permitted to sub-license any rights granted under the Contract to any third party. The Customer agrees that it will not itself, or through a third party:
5.5.1 copy the Software, except as is necessary to install on the Hardware/ Clientware for internal, archiving purposes. In the event that the Customer makes any copies of the Software, the Customer shall reproduce all proprietary notices on such copies;
5.5.2 reverse engineer, decompile, disassemble or otherwise attempt to derive source code from the Software except as permitted by law;
5.5.3 sell, lease, license, transfer or sub-license the Software or associated documentation; or
5.5.4 write or develop any derivative or other software programs based, in whole or in part upon the Software or any confidential information belonging to Positive Computing.
5.6 Positive Computing warrants that it is the exclusive owner or licensee of any IPRs in the Hardware and Software (subject to the licences granted to the Client) and that the use of the Software or Hardware shall not infringe the rights of any third party.
5.7 Positive Computing shall defend, at Positive Computing’s expense, any claim brought against the Customer alleging that the Software infringes an IPR of a third party (the ‘Claim’). Positive Computing shall pay all costs and damages awarded or agreed to in settlement of the Claim, provided that the Customer furnishes Positive Computing with prompt written notice of the Claim and provides Positive Computing with reasonable assistance and sole authority (taking into account the Client’s reasonable commercial interests) to defend or settle the Claim.
6 Service disruption
6.1 The Customer shall immediately notify Positive Computing if any Service Disruption arises and Positive Computing shall then use its reasonable endeavours to rectify such Service Disruption as soon as reasonably practicable.
6.2 Upon the occurrence of any Service Disruption Positive Computing shall, subject to the Customer continuing to perform its obligations under the Contract, credit the Customer with the price paid under and in accordance with the applicable Schedule.
6.3 In the unlikely event that the Customer has reason to make a complaint about the quality of Services, such complaint should be addressed in writing to the Managing Director of Positive Computing.
7 Managed services
7.1 This clause 8 applies only in the case where managed services are expressly being provided to the Customer by Positive Computing.
7.2 Positive Computing provides various managed services including, as part of its portfolio of products, online backup and security services. Positive Computing does not guarantee the full security of its servers and does not guarantee that it will be impossible to ‘hack’ into any servers.
7.3 Where security services are provided, Positive Computing agrees to provide such services using reasonable skill and care by suitably qualified and experienced personnel. Positive Computing further guarantees that security patches will be applied within two working days of their release by the software vendor. Positive Computing will not be responsible for any attack on a server if for any reason, it is unable to apply a security patch properly due to the Client’s custom configuration, or if the Customer tampers in any way with the security patch that is applied thereby undermining its ability to work correctly.
8 Data Protection
8.1 In respect of online backup services provided by under the Contract:
8.1.1 Positive Computing will store Customer data in the United Kingdom, but is not a data controller in relation to such data as it has no access to nor ability to process such data other than to release it pursuant to the Customer’s instructions;
8.1.2 The Customer acknowledges that, as holder of the decryption keys associated with its data, the security of the data is entirely within the Customer’s control;
8.1.3 Positive Computing will use all reasonable endeavours not to permit anyone who does not have the appropriate access keys to have access to the data (and then only in encrypted form) and the Customer acknowledges and confirms that this satisfies the requirements of the seventh Data Protection Principle (concerning security)
8.2 In respect of hosting services other than online backup, Positive Computing:
8.2.1 undertakes to the Customer that it will comply with obligations equivalent to the obligations of a ‘data controller’ under the provisions of the Data Protection Act 1998;
8.2.2 warrants that it has appropriate technical and organisational measures in place against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data held or processed by it and that it has taken reasonable steps to ensure the reliability of any of its staff who have access to personal data processed in connected with these terms and conditions;
8.2.3 undertakes that it will act only on the instructions of the Customer in relation to the processing of any personal data in connection with these terms and conditions.
9.1 Nothing in these terms and conditions or the Contract shall exclude or limit the liability of either party for death or personal injury resulting from its negligence or fraudulent misrepresentation nor affect the statutory rights of consumers.
9.2 The parties acknowledge that the allocation of risk in the Contract reflects the price paid for the Services, Hardware and Software and that the exclusions and limitations contained in these terms and conditions are fair and reasonable in all the circumstances notwithstanding that they may have the effect of protecting Positive Computing from losses for which it may be insured (and the parties acknowledge that there are sound commercial reasons for so doing, such as maintaining a good insurance claims record).
9.3 If either party becomes liable for loss or damage that may lawfully be limited (including where any exclusion or limitation of liability in the Contract or the terms and conditions is held to be invalid) then such liability shall be limited to the amount paid by the Customer for the Services plus damages limited to 25% of the same amount for any additional costs directly, reasonable and necessarily incurred by the Customer in obtaining alternative products and/or services.
9.4 Positive Computing shall have no liability to the Customer for any loss arising from any material, data or instructions supplied whether digitally or otherwise by the Customer or on its behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from late arrival or non-arrival or any other fault by the Customer or on its behalf.
9.5 Positive Computing shall not be liable to the Customer or any other person for any loss in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof by reason of or in connection with these terms and conditions, the Contract or the Services, Hardware or Software for any: (i) economic loss of any kind whatsoever, or (ii) loss of profit, data, business contracts, revenues or anticipated savings, or (iii) damage to either party’s reputation or goodwill, or (iv) loss resulting from any claim made by any third party (with the exception of IPR Claims), or (v) special, indirect or consequential loss or damage of any nature whatsoever, whether such damages or losses were reasonably foreseeable or actually foreseen
10.1 For the duration of the Contract and after its termination, the parties shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper performance of these terms and conditions, use or disclose to any person, firm or company, any confidential information belonging to the other party or its clients, suppliers or customers (‘Confidential Information’), nor permit its use or disclosure. In particular, both parties shall maintain any source code provided by the other party under maximum security conditions.
10.2 The provisions of clause 10.1 shall not apply where Confidential Information is divulged to:
10.2.1 either party’s own employees and then only to those employees who need to know the same;
10.2.2 either party’s auditors, an officer of Inland Revenue, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.
10.3 Both parties undertake to ensure that persons and bodies referred to in clause 10.2 are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.
10.4 Each party to these terms and conditions shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
10.5 The provisions of this clause shall survive the termination of these terms and conditions but the restrictions contained in clause 10.1 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.
10.6 Nothing in this clause 10 shall prevent Positive Computing from exploiting any inventions or software that it develops during the term of these terms and conditions.
11 Term, duration of services and termination
11.1 Unless otherwise agreed in writing by Positive Computing (in the Contract or otherwise), the minimum period of each Contract for the provision of the Services detailed in its corresponding Schedule is 12 months from the date of the Contract.
11.2 In the event of cancellation or termination by the Customer part way through the minimum period, the Customer remains obliged to pay for the Services for the entire minimum period except where such termination was due to a default by Positive Computing.
11.3 Thereafter, if the Customer or Positive Computing wishes to cancel or terminate, at least one month’s written notice must be given.
11.4 Either party shall be entitled to immediately terminate these terms and conditions and any other contract between itself and the other party upon the termination of the Contract. Any termination of these terms and conditions and/or a Contract shall be without prejudice to the continuing obligations of either party under these terms and conditions and under a Contract not expressly terminated by either party which shall continue is full force and effect.
11.5 Upon termination or expiry of the Contract all undisputed amounts payable by the Customer to Positive Computing shall become immediately due and Positive Computing shall be entitled to immediately cease the provision of the Services.
11.6 Upon termination of the Contract whereby the Customer transfers the provision of Services out to another Internet Positive Computing provider, Positive Computing reserves the right to remove and destroy the Client’s data from its Hardware and the Clientware after 30 Working Days. In the case of such a transfer, Positive Computing agrees to provide reasonable assistance to the Customer to enable a smooth transfer of the Services.
11.7 Where a disconnection of Services has occurred solely as a result of actions of the Customer under clause 11.8 below, a £100 reinstatement fee will apply to reactivate the Services, in addition to all payment of the balance due on the account. Reactivation of the Services will only be performed during Working Hours.
11.8 In addition to termination permitted elsewhere in these terms and conditions, the Contract may also beterminated:
11.8.1 immediately by Positive Computing if the Customer fails to pay any undisputed sums due under the Contract within 14 days of their due date;
11.8.2 immediately by either party to the other if the other commits any material breach of any these Conditions and which (in the case of a breach capable of being remedied) has not been remedied within a reasonable time period as may be specified in a formal request in writing or by electronic email to remedy the same;
11.8.3 immediately by written notice from Positive Computing if the Customer commits any material breach of any these Conditions which may impact the Services or servers of Positive Computing or the ability of Positive Computing to provide the Services;
11.8.4 immediately by either party if the other shall convene a meeting with its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme of arrangement with (or the assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee receiver or administrative receiver or similar officer is appointed in respect of all or any of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or any other steps are taken for the winding up or the making of an administrative order (otherwise than for the purposes of a solvent amalgamation or reconstruction).
11.9 Positive has a general and particular lien over all Clientware until all claims and money payable by the Client to Positive on any account whatsoever have been received in full. If the Client fails to satisfy any lien within a reasonable time from the date of notice of exercise then the Clientware may be sold in or towards satisfaction of every such lien and the Host will account to the Client for any excess
12. Additional Provisions relating to specific Services
12.1 Hosting and Email Services
12.1.1 During the term of this Agreement, Positive has the right to change prices, or add or delete product features of any existing product or service relating to email or web hosting and online services. The right to change products or services extends to any software supporting a product or service. Positive has the right to discontinue products or services and the right to remove or reassign IP addresses of a customer’s web site. From time to time Positive may impose reasonable rules and regulations regarding the use of the Services.
12.1.2 In order to access and use the Services, you may be required to subscribe to other Services. In addition, you acknowledge that in order to access certain of the Services, you may have to agree to and execute agreements with third party providers who may charge additional fees and charges in addition to Positive.
12.2 Domain name registration and administration
12.2.1 The terms and conditions of ICANN’s Uniform Domain Name Dispute Resolution Policy (the “UDRP”) and Nominet’s’s Terms and Conditions Policy, as amended from time to time, are incorporated and made a part of this Agreement by reference for all .com, .net and .org domain name registrations or renewals. (This can be found on the WWW respectively at www.icann.org/dndr/udrp/policy.htm and www.nominet.org.uk/ReferenceDocuments/TermsAndConditions/TermsAndConditions.html)
12.2.2 Positive does not guarantee that the Customer will be able to register or renew a desired domain name, even if an inquiry indicates that domain name is available or whether there are any inaccuracies or errors in the domain name registration or renewal process or related databases, including the various WHOIS databases.
12.2.3 Positive is not liable or responsible in any way for any errors, omissions or any other actions by any registry administrator arising out of or related to the Customer’s application for and registration of, renewal of, or failure to register or renew a particular domain name. The Customer agrees to indemnify, defend and hold harmless Positive and its directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, its application for and registration of, renewal of, or failure to register or renew, a particular domain name.
12.2.4 By applying to register a domain name, or by asking Positive to maintain or renew a domain name registration, the Customer hereby represents and warrants that (a) the Customer’s statements in connection with such application for registration, maintenance, or renewal are complete and accurate; (b) to the Customer’s knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) the Customer is not registering the domain name for an unlawful purpose; and (d) the Customer will not knowingly use the domain name in violation of any applicable laws or regulations. It is the Customer’s responsibility to determine whether domain name registration infringes or violates someone else’s rights including, but not limited to, whether any foreign language translations of the domain name, infringe or violate someone else’s rights.
12.2.5 In addition to the information the Customer provides (the “User Information”), Positive may maintain records relating to any domain name application received by Positive, as well as any domain name registered through, administered, or renewed by Positive and the Services. These records may include, but are not limited to: (i) the original creation date of a domain name registration, renewal, or request for service; (ii) the submission date and time of a registration or renewal application; (iii) communications (electronic or paper form) constituting submissions, forwarding, modifications, or terminations of service and related correspondence between the parties; (iv) records of the Customer’s account, including dates and amounts of all payments and refunds; (v) the IP addresses of the primary nameserver and any secondary nameservers for the domain name; (vi) the corresponding names of those nameservers; (vii) the name, postal address, email address, voice telephone number, and where available, fax number of the zone contact for a domain name; (viii) the expiration date of a domain name registration; and (ix) information regarding all other activity between the parties regarding use of the Services (collectively, “Other Information”). To process the Customer’s registration or renewal application, Positive may provide the User Information and the Other Information to its registrar and to such public or private third parties as applicable laws require or permit. The Customer is deemed to have irrevocably waived any and all claims and causes of action it may have
arising from such disclosure or use of information by Positive.
12.2.6 In the event that (i) in applying for the registration of a domain name the Customer provides information about a third party, or (ii) the Customer licenses a domain name registered in its name to a third party, the Customer hereby represents and warrants that it has (a) provided notice to that third party of the disclosure and use of that party’s information, and (b) that obtained that third party’s express consent to the disclosure and use of that party’s information
In these terms and conditions unless the context otherwise requires:
13.1 words importing any gender include every gender;
13.2 words importing the singular number include the plural number and vice versa;
13.3 words importing persons include firms, companies and corporations and vice versa;
13.4 references to numbered clauses are references to the relevant clause in these terms and conditions;
13.5 the headings to the clauses, schedules and paragraphs of these terms and conditions will not affect the interpretation;
13.6 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bye-law made under that enactment;
13.7 any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
13.8 any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
14 Agency, partnership
These terms and conditions shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these terms and conditions.
15.1 The Contract is personal to the parties and, subject to clause 19.2 below, neither the Contract nor any rights, licences or obligations under these terms and conditions may be assigned by the Customer without the prior written approval of Positive Computing.
15.2 Notwithstanding the foregoing, The Customer may assign the Contract to any acquirer of all or of substantially all of the Customer’s equity securities, assets or business relating to the subject matter of these terms and conditions or to any entity controlled by, or that controls, or is under common control with a party to these terms and conditions. Any attempted assignment in violation of this clause will be void and without effect.
If any provision of these terms and conditions is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these terms and conditions and rendered ineffective as far as possible without modifying the remaining provisions of these terms and conditions, and shall not in any way affect any other circumstances of or the validity or enforcement of these terms and conditions.