Terms and Conditions
Terms and Conditions
These terms apply to domain name registration and Internet services provided by Asset ICT Ltd
In the following, ‘we’, ‘our’, or ‘us’ means Asset ICT Ltd, and ‘you’, ‘your’ or ‘the customer’ means you the subscriber to our services. ‘Services’, or ‘account’ refers to services provided by us to you.
You are required to adhere to these terms and conditions or any Acceptable Use Policies (AUP) as and when these are published by us. If you breach these terms or those of our AUP we reserve the right to terminate your account with us at our sole discretion without notice or refund.
Asset ICT Ltd is an Internet Service Provider (ISP). Because we provide a wide variety of Internet-related services, we require our clients to abide by the terms of service (TOS) outlined below.
By requesting any service with us, you will be deemed to have agreed to and accepted the terms and conditions of use of the service.
We reserve the right to vary the Conditions of Use and acceptable use policy for the service at our sole discretion at any time and without prior notice. To be informed of changes please subscribe to our mailing list.
Payment
Payment for our services is required in advance. You will be notified when renewal fees become due and will be expected to pay them within 14 days of notification. Payment may be made by either: Debit/Credit card, or by Electronic Bank Transfer in UK Sterling, Debit/Credit card US Dollars, Debit/Credit card Euro’s. If payment is not received within this period the services may be suspended or cancelled. We reserve the right to charge interest at 4% above the base rate set by the Bank of England on overdue accounts. We reserve the right to charge a re-activiation fee on services suspended due to customer payment failure. We reserve the right to take legal action to recover any debts.
Failure to make payment for domains registered will result in us “Taking Ownership” of said domains.
Webhosting Cancellations
Customers can cancel their accounts at anytime by giving 7 days notice via e-mail/phone/letter. Once you receive confirmation of your request your account will be flagged for cancellation.
Customers making payment via standing order/invoice are required to give three months notice to terminate their accounts, failure to do so will result in an administration charge being applied to your account. This does not effect customers making payment via credit/debit card or paypal.
Continued use of supplied services after the pre-paid period will result in that periods fees’ becoming due with immediate effect even if a cancellation request has already been confirmed.
Dedicated Server Cancellations
Dedicated Server customers are required to give a 90 day cancellation notice in writing. The notice period will commence from the next billing cycle.
Continued use of supplied services after the pre-paid period will result in that periods fees’ becoming due with immediate effect even if a cancellation request has already been confirmed.
Activation
Your account will be activated within 48 hours of placing your order. It takes this amount of time for domain registrations and transfers to go through. 90% of new orders are processed within 4 hours. Once your account is activated we will e-mail with full instructions on how to use your account.
Webspace
Each hosting account has an agreed webspace limit. This limit is the total amount of files stored in your home directory stored on our servers. You may use up to a maximum of the amount of space for your type of account. If you exceed this limit, you will be first warned via e-mail to either remove the files or you will be charged additional fees. If the additional fees are not paid or the excess files are not removed we reserve the right to remove the files at our discretion to bring you below your agreed limit. Extra webspace costs can be found on the pricing page on the main website.
Website Design
We take no responsibility for any information contained within any website that we design. If any information is displayed incorrectly it is your responsibility to inform us of any corrections that need to be made. We accept no responsibility for loss of income or any actions taken against you for any information that is displayed on your website.
Bandwidth
Each hosting account has an agreed bandwidth limit. Bandwidth is the amount of data transmitted to/from your account (E-mail, Shell, Website). Although we will allow a customer to go over their bandwidth limit with in reason, we reserve the right to charge for excessive usage. Failure to pay for excessive bandwidth will result in suspension of the account. All bandwidth is measured between the first and last day of a given month and accounts suspended due to high bandwidth usage will be reinstated on the first day of the following month.
Excessive e-mail will also be included in the bandwidth clause. You will be liable for excess bandwidth charges if you send excessive e-mail from your account. You will be given a written notice via e-mail prior to any charges being incurred.
Dedicated servers and colo machines will be billed based on the 95th Percentile.
The e-mail facilities we provide are intended to allow you to provide a professional presence for you or your customers’ domains, they are not to be used to provide a general-purpose e-mail service like hotmail.
SPAM/E-mail
SPAM is unsolicited e-mail which is sent to individuals, usually thousands at a time. It is also the practice of posting inappropriate material to one or more Usenet newsgroups. These activities are harmful not only to the individuals receiving the messages but also to Asset ICT. It can overload our equipment and disrupt service to our clients. Because of this, SPAM is strictly prohibited. You may neither use SPAM to publicize a site that we host, nor may you use our servers to send SPAM.
Users of our service should follow Netiquette at all times. We provide e-mail services as part of the package of services. You must not send via e-mail any item which it is illegal to send or possess and you must not send Copyright material or Intellectual Property via e-mail unless you have permission to do so.
If spamming attacks or mail bombs are perpetrated and it is considered necessary, in the sole opinion of Asset ICT, then a public announcement will be made and this will include the disclosure of the SENDER’s identity. Accounts of spammers on our network will be terminated.
You must not use our servers to send Unsolicited Commercial E-mail (UCE) or Unsolicited Bulk E-mail (UBE)
You must agree to accept all e-mail addressed for the webmaster, abuse and postmaster for your account.
Domain Name Registration
We will attempt to register your domain names immediately, but it is possible for names to appear to be available when placing an order but in reality to have been registered by someone else (there is a lag in the whois database being updated after registration occurs). If you register a name that subsequently turns out to have not been available or we fail to register it we will of course issue a full refund. We will NOT issue a refund if the domains have been registered by yourself the customer somewhere else after placing an order with us. We cannot be held responsible for any other costs incurred in connection with this, you should check thoroughly that you have the domains (via whois) before publicising the name in any way.
When registering a domain name, you must have the right to use the name and by registering it you are confirming that you do have that right.
You may register a domain name on behalf of someone else, providing you have their permission prior to registration. Any dispute arising from the registration of a domain name will settled according to the dispute resolution policy of the relevant naming authority (here for .com/.net/.org and here for .uk), in addition, you agree to indemnify us for costs resulting from any such dispute.
You must also agree to the terms listed HERE
When registering co.uk,me.uk,org.uk you must agree to the following terms and conditions as supplied by Nominet Nominet Terms and Conditions
Names registered under the .uk.com, .uk.net, .gb.com and .gb.net second level domains are not actually owned by the customer, for those domains you are merely asking us to point the name at an internet address and we are charging for doing so. You must also agree with Nominations terms and conditions when registering these name types. If the domain name changes ownership the new owner must re-register the name and pay the full registration fee.
For ltd.uk and plc.uk domain names, the following stipulations apply:
Certain words must be removed from the registered company name before the domain name is generated, these are known as the “reserved” words. They are “limited”, “public limited company” and the Welsh Language versions along with the abbreviations of these words, e.g. ltd, plc, ccc. There are believed to be other “reserved” words such as “International”.
Nominet may require a copy of the certificate of incorporation of the applicant and a letter on company letterhead, signed by a director or the company secretary of the applicant. You will need to supply copies of the above and a company registration number when ordering the domain.
Currently .com/.net/.org domains are registered with ICANN approved Alabanza. If you decide to transfer the billing of a domain to another ISP you must check first that they will accept names registered with Alabanza, if not they may demand the name be moved to NSI (Network Solutions) for which a $70 transfer fee is required. You will be liable for this fee. This does not apply to simply changing the name server addresses for a domain.
As a domain owner you are responsible from the moment of registration to ensure that all contact information is current and accurate. Failure to keep this information up to date may result in the suspension of your domain name and loss of service.
You the customer are responsible to ensure your domain name is renewed prior to the time of expiry, expiry warnings are provided but due to the nature of e-mail we will not take responsibility for any lack of warning. Customer service can provide you with an expiry date for your domain upon request.
.net.uk domain names are reserved for ISPs only. Please read Nominet’s rules for .net.uk domains first before ordering.
Once an order has been received, either by telephone, fax, e-mail or via our online ordering system, all fees become due.
We will not host or advertise domain names which in themselves could be deemed offensive to others.
You must not promote services we supply, or your own sites hosted on or forwarded to by our servers, using methods such as bulk e-mailing or excessive news group postings.
Support
Support is only available for uploading, downloading, viewing pages and for services we provide. No support will be given for authoring or page design.
Passwords
It is your responsibility to keep you username and password secure. If you feel that somebody has gained access to this information please inform us immediately.
Copyright Violations
Do not include any material on your web site which may contain copyright violations. If your site contains copyrighted materials, you must have the permission of the copyright holder.
Obscene, Indecent or Illegal Materials
We do not allow adult-oriented web sites to be hosted on our servers, nor do we condone the publication of any materials which may be in violation of local ordinances or international laws. This includes but is not limited to pirated software commonly known as ‘Warez’, Pornography or other obscene material, Firearms and other weapons, Racist or other menacing material, Material which breaches a third parties intellectual property rights including copyright or other trade secrets, SPAM e-mail, including bulk e-mail software and lists of e-mail addresses, except where all of the addressees have given their permission, Other illegal activities and activities deemed to be in breach of the Data Protection Act. Transmission of obscene, indecent or illegal materials may lead to criminal penalties.
Pornography
The hosting of adult orientated material is only permitted when using the specific adult hosting account, any other sites will be shutdown without warning.
The following additional conditions apply, breach of these will result in your account being shut down without any warning or refunds
No illegal images or content
Pictures of Children or persons under the age of 18, any sites found to be displaying such pictures will be shut down immediately and the relevant authorities contacted.
No Pictures of Animals involved in any sexual acts
No pictures of forced sexual acts
Accounts will only be activated after a faxed order is received verification of the credit card holders details and signature.
Defamation
If your site contains any material which defames an individual, organization, race, colour, creed, ethnic group, country, etc., you may be in violation of international laws. We do not condone these activities and prohibit our clients from publishing such materials on the sites which we host.
Illegal Advertisements
You may not advertise your web site, or cause another person to advertise it, by techniques that would be classified as abuse if they were carried out from you account. This includes, but is not limited to, bulk e-mailing and excessive news posting. Such action may be treated as a violation of the Terms and Conditions.
Network Tampering
Any client found tampering with our network or found using our network to tamper with another network faces potential civil and criminal penalties. Any attempts to crash our servers or otherwise disrupt service will lead to immediately termination of service and possible criminal charges. Illegal or unauthorized access (often known as “cracking” or “hacking”) is strictly prohibited. You will also be liable for any costs incurred. Any unauthorised use of our equipment is a criminal offence under current UK law.
Shell Accounts
Eggdrop is a popular ‘bot’ used on Internet relay chat networks, primarily used to maintain control for the patrons of various IRC channels.
A IRC bouncer allows you to maintain a specific hostname when you connect to an IRC network, this redirects your connection via our servers.
Liability
We accept no responsibility for loss of data, information in any form or other matters whatsoever which result from the use of this service.
We shall not be held liable for any loss however occasioned as a result of the suspension, removal or unavailability of a customer’s web site or material stored within it.
We reserve the right to change the service at any time. We shall not be liable for any consequential losses you may suffer. We are not responsible for any use you make of our services, for any charges that you incur with any third party, nor for any software running on your host, except as documented within a separate written agreement. You indemnify us against the effects of any misuse or any claims resulting from that misuse.
Supply of Service
We will use our reasonable endeavours to maintain all our services. You will only be eligible for compensation for service failures if our service is offline for more than a total of 72 hours in any 30 day period, or if the service is unavailable for more than seventy two consecutive hours. Compensation will be limited to a maximum of the monthly fee for that period.
Backups
You are responsible for any material stored on our servers. We shall not be held responsible for any loss, however caused, of this material.
While we may provide backup services (Free as well as paid services) we cannot guarantee the integrity of the backed up data.
Restore fees are only charged on a suscessful restore, failure to provide restores from our paid backup service will result compensation limited to a maximum of the monthly fee for that period
Contact Information
You are required to keep the contact details you provided to us up to date. We may use these addresses to contact you by post or e-mail from time to time, but these addresses will not be passed to any other companies, unless required in order to register a domain name.
Refunds
Any refunds due from us to you with regards to failure of service or inability to register a domain name will be via a UK Sterling Check. No refunds will be paid via our credit card company.Refunds on duplicate payments (Where the customer clicks refresh on the final payment screen) will be refunded minus 10% to cover our credit card processing costs.
Other Activities
Any activities, whether lawful or unlawful, which are harmful to our operations, reputation, or other clients, especially activities which may restrict or inhibit others from using and enjoying the services which we provide, are strictly prohibited.
We do not monitor the communications of our clients to ensure that they comply with our TOS or applicable law. However, if we become aware of harmful communications, we may take any of a variety of actions, including termination of a client’s account with us and notification of local law enforcement. We also reserve the right to claim for any costs incurred.
We provide Telnet and FTP access to our clients to enable certain modifications in relation to their own sites. You may not use this to access, view or modify the accounts of any other client, or our root server information.
We wish to emphasize that all our clients are required to comply with the above terms of service. In so doing, clients indemnify us for any violation by the client of these terms of service or of law that results in loss to our network or the bringing of any claim against us. This means that if we are sued because of activities of the client that violate any law or this policy, the client will pay any damages awarded against us, plus costs and reasonable legal fees.
If any part of these terms and conditions or any associated Acceptable Use Policies shall be held invalid or unenforceable, this shall not affect the enforceability of any other part of these terms and conditions and Acceptable Use Policies
These terms and conditions shall be governed by and construed in accordance with the laws of England and the customer agrees to submit to the exclusive jurisdiction of the English courts.
Hosted Exchange and Microsoft Office 365 End User Agreement
1. Definitions
1.1 In these Terms and Conditions we use words that have defined meanings. These are as follows:
| Control Panel | means the control panel interface which we make available to you from time to time to enable you to manage your account and otherwise configure certain aspects of your use of the service. |
| Microsoft Licence | means the Microsoft licence set out at Appendix 1 |
| Policies | means our acceptable use and data protection policies as set out in clause 4 as we may amend from time to time by notice. |
| Server | means the server or servers on which we provide the Service to you. |
| Service | means the service set out in the Schedule |
2. Term of Agreement
2.1 The Agreement shall commence in accordance with the Schedule and thereafter shall continue in force unless and until terminated in accordance with clause 9 or unless as otherwise noted in the Schedule.
2.2 You agree during any evaluation period that may be noted in the Schedule:
2.2.1 to maintain your existing services which provide the same functions and capabilities as the Service;
2.2.2 not to rely solely upon the Service to scan your data for viruses or any other harmful or inappropriate content and not to store your data emails on a permanent basis;
2.3 To the extent only that any evaluation period is applicable, you acknowledge and agree that this Agreement and the provision of the Service shall terminate automatically on the earlier of (i) the expiry of any applicable evaluation period as noted in the Schedule or (ii) unless we receive prior written notice from you that you wish this Agreement to continue, in which case you shall then be committed to pay for the Service for at least the minimum period in accordance with the terms of this Agreement.
3. Provision of the Services
3.1 We agree to provide the Service in accordance with the Terms of the Agreement.
3.2 Time for provision of the Service shall not be of the essence.
3.3 We shall provide the Service to the standard to be reasonably expected from a competent provider of services in the nature of the Service.
3.4 Due to the complex nature of the Service and public telecommunications networks generally we cannot warrant that the Service will be provided without interruption or error, but we will use reasonable skill and care to ensure that the Service is properly managed.
3.5 We will use reasonable endeavours to correct faults in the Service which you report to us as soon as reasonably practicable. If you become aware of a fault in the Service you agree to report the fault to our technical helpdesk without delay.
3.6 We may temporarily and immediately suspend provision of the whole or any part of the Service to enable us to carry out any repair, maintenance or improvement or in the event of an emergency. We will restore provision of the Service as soon as reasonably practicable after any such temporary suspension.
3.7 You acknowledge that in order to make proper use of the Service you will require a working knowledge of the Internet, the web and email communications functions. It is your responsibility to obtain and maintain appropriate telecommunications facilities to enable you to access the Service and to configure your systems correctly, including but not limited to enabling files and emails to be received and transmitted correctly using the Service.
3.8 We may vary the specification, including any service usage restrictions, of the Service at any time on 90 days’ notice.
4. Acceptable Use and Data Protection Policies and Microsoft Licence
4.1 You undertake to procure that those of your employees, agents and sub-contractors who access the Service comply with the provisions of this clause 4 and agree that you shall be liable for failure on the part of such employees, agents and sub-contractors to comply.
4.2 You agree that you will use the Service within the limitations set out in this clause 4.
4.3 You acknowledge that services in the nature of the Service necessarily have finite storage, speed, resilience and operating capacity which must be shared and balanced between our clients and that the Fees have been calculated with reference to the capacity of the Service.
4.4 You agree that it is reasonable for us to impose limitations on the manner in which you may use the Service and, if necessary, withdraw your authorisation to use the Service if we deem that it is reasonable to do so with regard to our other clients. You agree to comply with any limits of the Service as set out in the Schedule.
4.5 You further acknowledge that if you exceed any service limit as set out in the Schedule without our prior written consent data previously saved using the Service may be not be stored or deleted, and some or all emails which are intended to be sent to or received by you may not reach their intended recipient and stored emails may be deleted on a “first in, first out basis” Once deleted neither we nor you will be able to retrieve data stored pursuant to the Service.
4.6 You acknowledge that the speed at which data is transmitted to and from the Service is largely dependent on factors which are outside our control, including but not limited to the capacity constraints of the public telecommunications network.
4.7 Your use of the Service must be for lawful purposes and you shall comply with all legal requirements including but not limited to respecting third parties’ copyright, trade marks and software licences and all application legislation and codes of practice throughout the world relating to the processing of personal information, including but not limited to the Data Protection Act 1998. You further acknowledge that it is your responsibility to take appropriate legal advice in relation to all applicable laws.
4.8 You may not copy, rent, lease, sublicense, display, reverse engineer, modify or alter any software owned or developed by us.
4.9 You agree that you will not use the Service in any way to:
4.9.1 publish, post, distribute or disseminate defamatory, infringing, obscene, indecent or other unlawful material or information;
4.9.2 threaten, harass, stalk, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
4.9.3 engage in illegal or unlawful activities; or
4.9.4 transmit spam or distribute viruses, or otherwise deliberately abuse any part of the Service.
4.10 We take the security of personal information very seriously. We will only use the personal information provided by you and relating to your employees, agents and sub-contractors in accordance with the Data Protection Act 1998 and any consents you grant to us from time to time. You acknowledge that we may use your information in order that we can provide an efficient service to you and to compile statistics which do not identify you.
4.11 By entering into the Agreement you are consenting to our using and/or disposing of your personal information for the following purposes:
4.11.1 providing, or arranging for third parties to provide, the Service, which may involve disclosing your and/or your employees’, agents’ or sub-contractors’ personal information to third parties; and
4.11.2 as required or permitted by law from time to time.
4.12 We may record any telephone call you make to or receive from us, and store the emails you send to or receive from us, for the above purposes and in order to monitor service standards.
4.13 We reserve the right (but shall not be obliged) to access the data stored on the Server to monitor your compliance with the Policies and to disclose any information, data, graphics, video, sound, files and other content sent by, provided by, accessed by, or sent to you in order to comply with applicable laws and lawful requests, to operate our business properly and to protect our clients as a whole but at all times will ensure compliance with the Data Protection Act 1998.
4.14 We reserve the right to view data held on the Server in the course of maintaining and developing the Service but at all times will ensure compliance with the Data Protection Act 1998.
4.15 We reserve the right in our sole discretion, but shall not be obliged, to remove any data from the Server which we reasonably believe contravene the Policies. We will, unless prohibited by law or any enforcement agency, give you 72 hours’ notice before removing such data. We will fully co-operate with all applicable law enforcement authorities in investigating suspected lawbreakers, and reserve the right to report to such authorities any activity of which we become aware where we reasonably suspect you have contravened the law.
4.16 It is your responsibility to implement suitable policies with your employees, agents and sub-contractors who access the Service and to obtain all necessary consents from them for your and our processing of their information pursuant to the Agreement.
4.17 You agree at all time to comply with the terms of the Microsoft Licence attached as an appendix to this Agreement. You shall further indemnify us in full and on demand for any losses we may suffer as a result of any breaches by you, your employees or agents of this Microsoft Licence.
5. Fees and Payment
5.1 You agree to pay the Fees specified in the Schedule, in accordance with the payment terms in the Schedule.
5.2 We shall be entitled to charge interest at a rate of two percent (2%) per month above the base rate of Bank of England on all sums outstanding from you from the date such sum falls due to the date of payment.
5.3 The Fees and any additional charges payable under the Agreement are exclusive of VAT which shall be paid in addition by you.
5.4 We may vary the Fees at any time on 90 days’ notice to take effect on expiry of our notice where you pay Fees on a monthly basis, or on the next due date for payment where you pay Fees on an annual basis or on a fixed fee basis (hosted exchange only). Microsoft Office 365 fees are in line with Microsoft pricing structure, although we offer the option of annual payments, Microsoft reserve the right to increase or decrease the fees for the packages at anytime. Asset ICT pays for all subscriptions on a monthly basis as an annual subscription is not available from Microsoft; if Microsoft should increase or decrease the cost of the monthly license fee during your annual period, a payment request or credit will be issued for the difference.
6. Passwords and Security
6.1 We will provide you with usernames and passwords to access the Service and a control panel which enables you to configure certain aspects of the Service. You undertake to keep your usernames and passwords confidential and not disclose them to any third party other than those of your employees, agents and sub-contractors who you authorise to access the Service on your behalf. You agree to contact us immediately if you suspect that anyone else knows your usernames and/or passwords.
6.2 We will use reasonable endeavours to keep information held on the Service secure.
6.3 You undertake to only provide us with accurate information (including but not limited to information about you, your identity and contact details, your business, and your anticipated usage of the Service) whether on the Schedule, control panel or otherwise and to inform us immediately if that information becomes misleading or inaccurate.
7. Viruses and Spam Filters
7.1 We will endeavour to ensure that any materials which we send to you will be free from viruses and corrupt files but we cannot guarantee this. If we discover any defect in any materials we have sent to you we will inform you as soon as reasonably practicable.
7.2 Where the Service relates to an email service Virus scanning engines are used to filter emails received into the Service if we have agreed to provide such virus scanning service as part of the Service. In any event, we cannot guarantee that the Service and emails received will be free from viruses or other harmful content. We do not accept liability for any damage caused to your computer systems, network, business or reputation as a result of an undetected virus that passes through the Service.
7.3 If we have agreed to provide a spam filtering service as part of the Serviceby using the Service you acknowledge that not all spam will be successfully identified and may pass to your computer systems or network.
7.4 You acknowledge that by attempting to identify spam and potential viruses and other harmful content, we may delete false positives whereby emails you deem to be legitimate may be deleted. We shall not be liable for any loss or damage caused to your business by the deletion of emails.
7.5 We shall not be liable for any loss or corruption of data saved and emails sent, received or saved using the Service.
7.6 If we have agreed to provide a spam filtering service as part of the Service you acknowledge and agree that not all spam will be successfully identified and may pass to your computer systems or network. You acknowledge and agree, and agree that by attempting to identify spam, potential viruses and other harmful content, the Service may identify and delete false positives whereby emails that you would have deemed to be legitimate may be deleted. You acknowledge and agree that we shall not be liable for any loss or damage caused to your business by the deletion of any email.
8. Archiving, Data Storage and Backups
8.1 If the Service includes data storage/archiving you acknowledge that such service is a service of last resort and that you will continue or implement separate backup procedures so that in the event that our storage/archiving service fails you will still be able to access all of your data using your alternative backup procedures. You agree to have external systems in place to manage this aspect of the service.
8.2 We can not and shall not be liable for any loss or damage suffered by you as a result of any failure in our storage of your data.
9. Termination
9.1 Unless an evaluation period is applicable, in which case clause 2.3 shall apply, either party may terminate the Agreement on 60 days’ prior written notice to expire at any time after expiry of the Minimum Period.
9.2 You may terminate this Agreement on 60 days’ prior written notice to expire at any time if we give you notice that we intend to:
9.2.1 increase the Fees in accordance with clause 5.4;
9.2.2 amend the specification of the Service; or
9.2.3 modify the terms of the Agreement in accordance with clause 14.1 where such modification results in terms which are less favourable to you than the terms of the Agreement which applied immediately prior to such modification;
.
9.3 We may at our option suspend provision of the whole or part of the Service or terminate the Agreement immediately without liability to you:
9.3.1 if you commit any breach of any term of the Agreement (or in the case of any breach capable of remedy you do not remedy such breach within 72 hours of a request to do so);
9.3.2 if you convene any meeting of creditors or pass a resolution for winding up or suffer a petition for winding up or have an administrative receiver or receiver appointed over the whole or part of your assets or suffer the appointment of an administrator or go into liquidation or in our reasonable opinion are unlikely to be able to pay your debts as they fall due;
9.3.3 in any circumstances where we are entitled to suspend or terminate noted anywhere in the Agreement or the Schedule;
9.3.4 if you provide, or if we discover that you have provided, us with misleading or inaccurate information in breach of clause 6.3;
9.3.5 if we are directed by any competent authority to cease the provision of the Service or any part of it; or
9.3.6 in the event of an emergency and we are unable to contact any of your emergency contacts within thirty minutes of attempting to do so.
9.3.7 in the event of any actual or suspected security breach.
10. Consequences of Termination
10.1 Upon termination of the Agreement for any reason we will suspend your access to the Service and delete all data stored on the Server.It is your responsibility to transfer data stored on the Server prior to the date of termination and when using email services to arrange for any incoming and outgoing emails received or sent after termination to be directed to an appropriate server. We shall not be liable for loss or damage suffered by you in connection with any failure by you to comply with this clause 10.1.
10.2 You acknowledge that once deleted, data cannot be retrieved by you or us from the Server.
10.3 All fees and any other sums due and payable under this Agreement shall become immediately due and payable and all rights and usage in respect of the Microsoft Licence shall cease immediately in the event of termination for any reason whatsoever. Any provision which expressly or by implication is intended to continue in full force and effect shall continue in full force and effect.
10.4 In the event that this Agreement is terminated for whatever reason we may at our discretion permit you to access the Service for a period of 24 hours following termination solely for the purpose of transferring stored emails out of the server. We may at our discretion offer to transfer such data subject to us agreeing terms with you and we will charge for doing so.
11. Intellectual Property Rights
11.1 We and our technology and licensing partners own any intellectual property rights in all aspects of the Service. You agree that you will not, and procure that your employees will not, copy, redistribute, publish, modify or revise any part of the Service without our prior written consent. This provision shall survive termination.
12. Liability
12.1 You acknowledge that:
12.1.1 the value of data stored using the Service and the amount of any direct, indirect or consequential loss which you may suffer or incur as a result of any loss, corruption or damage to such data can only be known or ascertained by you and are disproportionate to the Fees which are not related to the value the information or data contained in such emails;
12.1.2 we are not able to accept unlimited liability for our potential liability under the Agreement;
12.1.3 in the interests of keeping the Fees to a reasonable level we cannot cover every risk normally associated with services in the nature of the Service; and
12.1.4 it is reasonable for us to limit our liability under the Agreement.
12.2 We may agree to accept greater levels of liability only if we expressly do so in writing and only if such increased liability is covered by an additional insurance policy taken out by us at your expense.
12.3 You acknowledge that:
12.3.1 it is your responsibility to ensure that the facilities and functions of the Service meet your requirements. We shall not be liable for any failure of the Service to provide any facility or function not specified by us; and
12.3.2 email communication and software in general is not error free and you agree that the existence of such errors shall not constitute a breach of the Agreement.
12.4 No warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance, merchantability or fitness for purpose of the Service is given or assumed by us and all such warranties, conditions, undertakings and terms are hereby excluded to the fullest extent permitted by law.
12.5 Nothing in the Agreement shall exclude or restrict our liability for fraudulent misrepresentation or for personal injury or death resulting from our negligence or the negligence of our employees while acting within the course of their employment.
YOUR ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 12.6
12.6 Notwithstanding anything else in the Agreement, our liability in contract, tort (including negligence), misrepresentation (other than fraudulent misrepresentation) or otherwise arising out of or in connection with the provision of the Service or otherwise in relation to the Agreement, or other performance or non performance of our obligations under the Agreement shall, unless the subject of clause 12.5:
12.6.1 at all times not exceed a sum equal to 500% of the Fees payable under the Agreement in any annual period; and
12.6.2 in any event not extend to loss or corruption of data, indirect loss of profits, loss of revenue, business, goodwill, contracts, anticipated savings or for any type of special, indirect or consequential loss or damage whatsoever sustained by you or any other person even if we have been advised of the possibility of such loss.
12.7 You acknowledge that we have no control over, and exclude all liability for loss or damage to, or caused by, material stored on the Server.
13. Warranty and Indemnity
13.1 You warrant that your and your employees’, agents’ and sub-contractors’ use of the Service will be for lawful purposes and within the scope of the Agreement.
13.2 You warrant that your and your employees’, agents’ and sub-contractors’ use of the Service will not violate any applicable law, regulation or treaties and that such use will not be infringe the intellectual property rights of any person.
13.3 You shall indemnify and hold us harmless against all claims, liabilities, losses, damages, costs and expenses incurred or suffered by us (including, but not limited to claims in respect of defamation, breach of copyright or other intellectual property right infringement) arising out of or in connection with any breach of clauses 13.1 and 13.2 or any breach of any of your obligations under the Agreement.
14. Variation of Agreement
14.1 We may modify any provision of the Agreement on 90 days’ written notice.
15. Confidentiality
15.1 You acknowledge that the Server and any materials provided by us in connection with our provision of the Service contain confidential information belonging to us and you undertake to keep and maintain as confidential and not disclose any and all information contained in the Server or otherwise received from us in connection with the Service or the performance of our obligations under the Agreement (collectively referred to as “the Information”) and you shall not use the same for purposes other than in relation to your legitimate use of the Service in accordance with the Agreement.
15.2 You shall not without our prior written consent divulge any part of the Information to any person except:
15.2.1 your own employees who need to know the same for use of the Service; or
15.2.2 your auditors, professional advisors or other persons or bodies having a right, duty or obligation to know your business and then only in pursuance of such right, duty or obligation.
15.3 You undertake to ensure that prior to the disclosure of any Information to any of the persons or bodies mentioned in clause 15.2 such persons or bodies are made aware that the Information is confidential and that they owe a duty of confidence to us. You shall indemnify us against any loss or damage which we may sustain or incur as a result of your failure to comply with such undertaking.
15.4 You shall promptly notify us if you become aware of any breach of confidence by any person or body to whom you divulge all or any part of the Information and shall give us all reasonable assistance in connection with any proceedings which we may institute against such person or body for breach of confidence.
15.5 Subject to the terms of the Agreement we shall treat as confidential all information supplied by you under the Agreement which is designated as confidential by you or which is by its nature clearly confidential provided that this obligation shall not extend to any information which was rightfully in our possession prior to the commencement of the negotiations leading to the Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause 15.5). Subject to the terms of the Agreement, we shall not divulge any confidential information to any person except to our own employees who need to know the same and our shareholders, auditors and professional advisors and other persons or bodies having a right, duty or obligation to know the same. We shall ensure that all such persons and bodies are aware of the provisions of this clause 15.5.
15.6 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Agreement.
16. Emergency Contacts
16.1 You undertake to provide us with details that we may request in respect of emergency contacts and procure that we will always be able to communicate with your emergency contacts within thirty minutes of attempting to do so.
17. Force Majeure
17.1 We shall not be liable to you for any failure to provide the Service or any aspect of it or for any breach by us of the Agreement, where such failure or breach is due to a reason outside our reasonable control, including, but not limited to, failure of a third party telecommunications provider or your information or communications technology systems, lightning, exceptionally severe weather, fire, explosion, war, riots, industrial disputes, acts of terrorism, government action or regulation or national or local emergency. If such failure to deliver continues for more than 90 days after the commencement of such failure, then either party may terminate the Agreement on notice in writing to the other party.
18. General
18.1 You shall not be entitled to assign, sub-license or otherwise transfer the Agreement in whole or in part without our prior written consent. We shall be free to assign the Agreement and to sub-contract our obligations in the Agreement without notice.
18.2 The Service is personal to you and you may not permit any third party other than employees, agents and sub-contractors authorised by you to use the Service without our prior written consent.
18.3 You warrant that you have not relied on any oral representation made by us or upon any descriptions, illustrations or specifications contained in any catalogues, websites and publicity material produced by us which are only intended to convey a general idea of the software, products and services mentioned in such material.
18.4 Any delay by us in enforcing the provisions of the Agreement shall not prejudice or restrict our rights and any waiver of rights by us shall not operate as a waiver of any subsequent breach and any right, power or remedy conferred upon or reserved for us in the Agreement shall be exclusive of any other right, power or remedy available to us and each such right, power or remedy shall be cumulative.
18.5 The Agreement supersedes all prior agreements, arrangements and undertakings between you and us in relation to the Services listed in the Schedule and constitutes the entire agreement between you and us relating to its subject matter. Subject to the terms of this Agreement, no addition to or modification of any provision of the Agreement shall be binding upon the parties unless made in writing and signed by a duly authorised representative of each of you and us.
18.6 In the event that any provision of the Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable the parties shall amend that provision in such reasonable manner as achieves the commercial intention of the parties without illegality or at our discretion may be severed from the Agreement and the remaining provisions of the Agreement shall remain in full force and effect.
18.7 Nothing in the Agreement confers on any party other than you and us any benefit or any right to enforce any of the terms of the Agreement.
18.8 The Agreement shall be governed by and construed in accordance with the laws of England and the parties submit to the non-exclusive jurisdiction of the Courts of England.
Appendix 1
Microsoft Licence
This document governs the use of Microsoft software, which may include associated media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by Giacom World Networks Limited (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.
1. DEFINITIONS.
“Client Software” means software that allows a Device to access or utilize the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or other electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a server.
“Software Documentation” means any end user document included with server software.
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.
2. OWNERSHIP OF PRODUCTS.
The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). All title and intellectual property rights in and to the Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products) are owned by Microsoft or its suppliers. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
3. USE OF CLIENT SOFTWARE.
You may use the Client Software installed on your Devices by Customer only in accordance with the instructions, and only in connection with the services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during your use of the Client Software.
4. USE OF REDISTRIBUTION SOFTWARE.
In connection with the services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software”). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO CUSTOMER, WHICH TERMS MUST BE PROVIDED TO YOU BY CUSTOMER. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Customer.
5. COPIES.
You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.
You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7. NO RENTAL.
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of software services in accordance with the terms of this agreement and any agreement between you and Customer.
8. TERMINATION.
Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts.
9. NO WARRANTIES,
LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY CUSTOMER AND NOT BY MICROSOFT, ITS AFFILIATES OR SUBSIDIARIES.
10. PRODUCT SUPPORT.
Any support for the Products is provided to you by Customer and is not provided by Microsoft, its affiliates or subsidiaries.
11. NOT FAULT TOLERANT.
THE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRICTIONS.
The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH.
In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
Appendix 2
Service levels and service credits
1. Definitions
For the purpose of this Appendix 2:
“Downtime” shall mean a period commencing when an incident which you have reported to us in writing has been verified by us as rendering the Service unusable and ending when we notify you that the incident has been cleared but in any event shall not include any period of scheduled maintenance that we notify to you in advance.
“Monthly Fees” shall mean, with respect to any given Service Measurement Period, the fees paid with respect to our provision of the Service during that Service Measurement Period.
“Service Measurement Period” shall mean a complete calendar month during the duration of this Agreement, each calendar month consisting of the relevant number of 24 hour days (which in the case of a 30 day month shall consist of 720 hours).
“Service Availability” shall mean the aggregate period when the Service is not in a period of Downtime, expressed as a percentage of time during the Service Measurement Period. The following formula shall be used to calculate the Service Availability:
| Service Availability % = | H – zh | x 100 |
| H |
Where: H is the number of hours in a complete calendar month; and
zh is the number of complete hours during that calendar month when the Service is in a period of Downtime.
Working example: If the Service experiences 1.5 hours of Downtime in the Service Measurement Period of January in any year during this Agreement, the Service Availability shall be deemed to be 99.86559%, which is calculated as follows:
| Service Availability % = |
744 – 1 |
x 100 |
|
744 |
2. Service Level
We shall use reasonable endeavours to procure that the Service Availability for each Service Measurement Period during this Agreement shall be not less than that stated in the Service Levels section (if any) of the Schedule attached to this Agreement.
3. Service Credits
Subject to paragraph 4 below, if the Service Availability for any Service Measurement Period is less than that stated in the Service Levels section (if any) of the Schedule attached to this Agreement, then we shall pay you:
(a) A service credit of 3% of the Monthly Fees with respect to that Service Measurement Period; plus
(b) A further service credit of 3% of the Monthly Fees with respect to that Service Measurement Period for the second and each subsequent complete hour that the Service experiences Downtime during that Service Measurement Period.
4. Limitations on Service Credits
You agree that your right to receive service credits pursuant to this Schedule 2 with respect to any Service Measurement Period is subject to the following provisions:
(a) In the event that you contend that we are liable to pay service credits to you pursuant to this Appendix 2 you shall within 7 days of expiry of the Service Measurement Period notify us in writing that you contend that a liability to pay service credits has arisen, the period of Downtime which you consider to have occurred in the Service Measurement Period and any other information reasonably requested by us to enable us to verify your contentions. We shall within 7 days of receipt of your notice investigate whether such liability has arisen and the extent of such liability and, if the liability has arisen, pay the service credits due in accordance with paragraph 4(b) below.
(b) In the event that we are due to pay service credits to you pursuant to paragraph 4(a) above, the amount of such service credits shall be credited against the amount of the Fees due to be paid by you to us under this Agreement on the next invoice issued by us or, in the event of this Agreement terminating or expiring for any reason prior to the issue of such invoice, paid to you in cash.
(c) Our liability to pay service credits in respect of any Service Measurement Period shall not in any event exceed:
(i) the Monthly Fees paid to us for the provision of the Service to you with respect to that Service Measurement Period;
(ii) the Monthly Fees paid to us for the provision of the Service to you with respect to that Service Measurement Period.
(d) We are not obliged to pay service credits to any Customer under any circumstances.