HOSTING SERVICES TERMS AND CONDITIONS
The definitions and rules of interpretation in this condition apply in these conditions.
Agreement: the agreement between the Company and the Customer incorporating these Terms & Conditions and the Email, and any amendments to it from time to time.
Charges: means the charges specified by the Company in the Email, as varied from time to time in accordance with Clause 4.6.
Company: Dorset Web Limited d/b/a Radikls; Perfect Page; Waterside Designs; Freebweb and East Sussex Website Design.
Conditions: these Terms and Conditions of Supply.
Customer: the customer specified in the Email.
Effective Date: the date when the Company sends the Email to the Customer.
Email: the email sent by the Company to the Customer constituting the Company's acceptance of the Agreement pursuant to Condition 2.5 and including details of the Agreement.
Force Majeure Event: an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
Intellectual Property Rights: any and all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
Minimum Term: the initial 12 month Term of the Agreement.
Personal Data: shall have the meaning given to it in the Data Protection Act 1998.
Services: any hosting services to be performed by or on behalf of the Company for the Customer under the Agreement (including any part or parts of them). This includes client pages supplied on domain names belonging to the Company.
Supply: the provision of any Services by the Company to the Customer. For the avoidance of doubt, any Services so provided are Supplied.
Term: the period of the Agreement.
Website: the Customer’s www.website comprising all pages described.
- A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
- Words in the singular include the plural and in the plural include the singular.
- A reference to one gender includes a reference to the other gender.
- Condition headings do not affect the interpretation of these Conditions.
- APPLICATION OF CONDITIONS
- Subject to any variation under Clause 2.3, the Agreement shall be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
- No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document shall form part of the Agreement simply as a result of such document being referred to in the Agreement.
- These Conditions apply to the Supply of any and all Services by the Company and any variation to these Conditions and any representations about any Services shall have no effect unless expressly agreed in writing and signed by a Director of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Agreement. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
- Each order or acceptance of a quotation for Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Services subject to these Conditions.
- No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued and executed by the Company.
- SUPPLY OF SERVICES
- The Company will arrange hosting for the Website in consideration for the payment by the Customer of the Charges. The Company shall not, however, undertake any on-site set up of email or hosting services.
- Access details are to be used by the Customer or their immediate agents only. The Company must be notified immediately should an agent that has been given such access details cease to be appointed by the Customer, or if there is any suspicion that such access details are known to anyone not authorised by the Customer.
- Use of hosting resources by the Customer is subject to such use being reasonable; any excessive use (as decided by the Company) will be deemed to be in breach of these Conditions.
- The Company offers an unlimited use policy by maintaining very large ratios of bandwidth per Customer. However, the Company may determine that a Customer is using server resources to such an extent that the Customer risks jeopardising server performance and resources for other Customers. In any such instance, the Company reserves the right to (a) suspend the Customer’s website immediately; or (b) continue to host the Customer’s website, but require the Customer to pay an additional fee.
- The Company shall use all reasonable endeavours to respond to the Customer's notification of interruptions or other problems and to rectify any problems with reasonable diligence.
- However, the Company will not guarantee or be liable for any breaks in the continuity of the electricity supply or of the telecoms link to the web server that is provided by a third party.
- If service is suspended or interrupted the Company shall use all reasonable endeavours to restore service with minimum delay, but the Company will not be liable for any lost, corrupted or destroyed data as a result of any suspension or interruption.
- The Company accepts no responsibility for web server downtime or interruptions to service caused by circumstances beyond the Company’s control.
- The Customer undertakes that the Website shall not be used directly or indirectly for any unlawful purpose. Unlawful purposes are deemed to include but are not limited to:
- civil and criminal offences of copyright and trademark infringement;
- transmission or display or posting of indecent, obscene or pornographic material;
- commission of any criminal offence (including deliberate transmission of computer viruses) under the Computer Misuse Act 1990 or similar legislation in any country;
- any transmission or display or posting of any material which is defamatory, offensive, or is of an abusive or menacing character;
- use of the Website in any manner which is a violation or infringement of the rights of any individual, firm or company within the United Kingdom and elsewhere which, for the avoidance of doubt shall include but not be limited to the use of any materials, photographs and/or images without obtaining the prior consent of any relevant third party;
- the use of the Website for purposes generally deemed to be unacceptable, including spamming, hacking, phreaking, password cracking, pirated software, ROMS, emulators, or IP spoofing or providing "links" or "how to" information to such material.
- The Customer will indemnify the Company against all and any losses and costs that the Company may incur as a result of any breach of Clause 3.9 above.
- The Customer will ensure that the Website complies with the laws, regulations and requirements of any country from which it can be accessed.
- If the Company has reasonable grounds for believing that there has been or that there may be a breach of these Conditions, the Company reserves the right to monitor any and all communications passing through the server.
- Without prejudice to any of the provisions of Clause 6, if the Website is used for any unlawful use the Company may suspend or terminate service immediately and at the same time as suspension or termination occurs, the Company shall notify the Customer. Where suspension or termination occurs, the Company reserves the right to delete all of the Customer’s files (including web pages) without prior notice.
- The Company will advise clients on selecting domain names and can act as the Customer’s agent in registering these at the Company’s stated rates, but cannot guarantee a certain name will be available. The Customer will be bound by the standard terms of the naming authority. The Company gives no warranty that any domain name will not infringe the intellectual property rights of any third party. Renewals are the sole responsibility of the Customer and accordingly the Company accepts no responsibility if a domain fails to be re-registered. The Company reserves the right to levy a charge for any administrative work associated with subsequent hosting or domain name transfers into the Company’s facilities.
- The Company allows domain names to be transferred from the Company free of charge, subject to the provisions of Conditions 3.15 - 3.17. Domain names must normally be paid in full for a 2 year period, but if there is a prepaid period of more than 9 months remaining on the domain name registration that has not yet been paid by the Customer, then this will be invoiced to the Customer and must be paid for before the name will be released.
- If the Customer transfers more than 5 names in a one month period, a charge of £5 per domain name will be payable as an administration fee for these transfers. The transfer of the first 5 names will be free.
- Although a domain name may be transferred or not renewed at any time by the Customer (subject to the Company receiving written notice thereof at least one month before the renewal invoice due date), the correct transfer procedures must be followed in all cases and if any domain name is to be transferred within two months of its renewal date, it will not be transferred until the Company has received full payment for that renewal.
- Once an invoice has been sent to the Customer for any domain name renewal, that invoice is due and payable within 14 days.
- If requested by the Customer, the Company will provide an email account on the domain within the quoted costs (or as an alternative, forwarding to an existing email account elsewhere can be arranged). The Customer will be given the appropriate user name and password details for the account and the incoming mail server name, along with written instructions for setting up the account in Outlook or Outlook Express. Requests for changes to user/password combinations may be made by email or telephone and will be actioned within 24 hours.
- The Company accepts no responsibility for email server downtime or interruptions to service. Email accounts must not be used for "spam" emailing operations.
- The Company is not responsible for establishing or troubleshooting the Customer’s Internet broadband facility, which provides the Customer’s Internet connection and outgoing mail server. This is the responsibility of the Customer’s own individual ISP which normally provides appropriate telephone support.
- The Company reserves the right to feature the Website in future promotions without seeking prior consent.
- The Customer grants the Company a non-exclusive licence to use the Website to the extent required for the Company to perform its obligations and exercise its rights under the Agreement.
- All Intellectual Property Rights in any works arising in connection with the performance of the Services by the Company will be the property of the Company.
- The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under the Agreement, and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of the Agreement will not breach any applicable laws (including the Data Protection Act 1998).
- The Company warrants that:
- it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Company on behalf of the Customer; and
- it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Company on behalf of the Customer.
- CHARGES AND PAYMENT
- The Company will issue invoices by email to the Customer in respect of the Charges, and the Customer will pay the Charges, no later than one month in advance.
- The provision of Services by the Company to the Customer under the Agreement may, at the Company's discretion, be subject to the prior receipt of all payments due under invoice, and Services may be suspended or terminated where any amount is unpaid by the due date. Where suspension or termination occurs, the Company reserves the right to delete all of the Customer’s files (including web pages) without prior notice. Charges must be paid by debit or credit card, cheque or by bank payment.
- All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise.
- If the Customer does not pay any amount properly due to the Company under or in connection with the Agreement, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5 % above the base lending rate from time to time of Lloyds TSB Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Clause 4.4.
- The Company may vary the applicable Charges by giving to the Customer not less than 30 days' written notice of the variation expiring on any anniversary of the Effective Date.
- Throughout the Term, the Customer shall be responsible for ensuring that the Company is furnished with the Customer’s complete, correct and current contact details (including but not limited to the Customer’s email address) since the non-receipt of any invoice shall not excuse any payment obligation of the Customer under the Agreement.
- WARRANTIES AND LIABILITY
- The Company warrants that (subject to the other provisions of these Conditions) any Services will be performed with reasonable skill and care.
- If any of the Services do not conform with the warranty in Clause 5.1, the Company shall re-perform any Services which are proved to the reasonable satisfaction of the Company not to have been performed with reasonable skill and care, or at the Company’s option, shall refund any monies already paid by the Customer for any such Services.
- All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982 ) are, to the fullest extent permitted by law, excluded from the Agreement.
- Nothing in these Conditions excludes or limits the liability of the Company:
- for death or personal injury caused by the Company's negligence; or
- under section 2(3), Consumer Protection Act 1987; or
- for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
- for fraud or fraudulent misrepresentation.
- Subject to Clause 5.4, the Company's liability to the Customer under or in connection with the Agreement, whether in contract or tort (including negligence), will be
- limited as follows:
- the Company will not be liable for any:
- loss of profits, income or anticipated savings,
- loss or corruption of any data, database or software,
- reputational damage or damage to goodwill;
- loss of any commercial opportunity, or
- indirect, special or consequential loss or damage;
- the Company will not be liable for any losses arising out of a Force Majeure Event; and
- the Company's liability in relation to any event or series of related events will not exceed the amount payable (or which would be payable) by the Customer to the Company in respect of 12 months of Services purchased by the Customer.
- TERM AND TERMINATION
- The Agreement will come into force on the Effective Date and will continue in force for the Minimum Term and thereafter indefinitely, unless and until terminated in accordance with this Clause 6.
- Unless the Customer gives written notice of termination to the Company at least 30 days prior to the last day of the Minimum Term, the Term of the Agreement shall continue indefinitely beyond the expiry of the Minimum Term for successive periods of 12 months duration, until such time as the Customer gives the Company 30 days written notice of termination, such notice period to expire on the last day of the relevant 12 month period.
- The Agreement will terminate upon the first to occur of the following:
- the Agreement is terminated under Clause 6.2 or 6.4; or
- the Customer has failed to make any payment due under Clause 4 of this Agreement within 14 days of its due date or is otherwise in breach of the Agreement; or
- the Customer gives written notice to the Company that the Company is in breach of the Agreement and the Company does not remedy such breach within 30 days of receipt of the notice; or
- the Company gives the Customer 30 days written notice of termination.
- The Agreement will terminate without further action or notice by the Company if the Customer becomes bankrupt, goes into liquidation, suffers or makes any winding up petition, makes an arrangement with the Customer’s creditors, has an administrator, administrative receiver or receiver appointed or suffers or files any similar action in consequence of debt (or any other similar action in any jurisdiction).
- On termination of the Agreement for any reason:
- the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt; and
- the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
- The waiver by the Company of a breach or default of any provision of this Agreement by the Customer shall not be construed as a waiver of any succeeding breach of the same or other provisions of this Agreement.
- The Customer shall not assign, sub-contract or otherwise transfer this Agreement without the prior written consent of the Company. For the avoidance of doubt, the provisions of this Condition shall not apply to the Company.
- ENTIRE AGREEMENT
GOVERNING LAW AND JURISDICTION
- This Agreement sets out the entire agreement of the parties and supersedes all prior agreements and understandings relating to its subject matter.
- This Agreement shall be governed by English law and the parties shall submit to the exclusive jurisdiction of the English Courts.