UkOnlineHosting is a provider of Internet related services such as co-location, dedicated servers, webhosting and shoutcast media, and the Client may from time to time require such services. This Agreement sets out the terms which have been agreed between UkOnlineHosting and the Client for the provision of such Internet services and shall be supplemented from time to time by Schedules setting out specific details of such services requested by the Client.
In this
Agreement, unless the context requires otherwise, the following words shall have
the following meanings:
"Abuse Complaint" is a complaint, either by UkOnlineHosting or a third party,
about the Client’s use of the Services;
"Bandwidth" is the data transferred by the Client using the Services to other
equipment on the Internet. For the avoidance of doubt, this includes transfer of
data between the Services and other equipment hosted by UkOnlineHosting;
"Engineer" is defined as a UkOnlineHosting member of staff with competence in
repairing or replacing the Hardware;
"Hardware" means the servers, firewalls, equipment, cabling and systems provided
by UkOnlineHosting in connection with the Services;
"IP" means Internet Protocol;
"IPRs" means 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;
"Latency" is defined as the mean time for a packet to be transmitted between two
points in the UkOnlineHosting Network;
"Network Availability" is defined as the percentage of time the UkOnlineHosting
Network is contactable over a calendar month;
"Network Unavailable Time" is when a portion or the entirety of the
UkOnlineHosting Network is unavailable, and this affects the provision of the
Services to the Client. Network Unavailable Time excludes Scheduled Maintenance,
and those situations defined in the ‘Exclusions’ section of the Network Service
Level Agreement;
"Notified Maintenance" means essential maintenance to be carried out by
UkOnlineHosting in relation to the Services, Hardware and/or Software, which has
been notified to the Client;
"Packet Loss" is the number of packets, as a percentage, that do not reach their
destination within the UkOnlineHosting Network;
"Power Availability" is defined as the percentage of time the power is available
over a calendar month;
"Quality" refers to two metrics, Latency of the UkOnlineHosting Network and
Packet Loss within the UkOnlineHosting Network;
"UkOnlineHosting Network" refers to UkOnlineHosting’s routers, switches, cabling
and other network equipment located in the UK responsible for connecting servers
hosted by UkOnlineHosting to the outside world;
"Response Time" is defined as the time from the Client making a Support Call to
an Engineer commencing work on the Services;
"Schedule" means the schedules and/or Internet/telephone orders to this
Agreement from time to time, describing the Internet related services requested
by the Client including without limit details of the requested Bandwidth,
Hardware and Software;
"Scheduled Maintenance" is defined as maintenance necessary for the continued
provision of service, including but not limited to network upgrades and security
updates;
"Services" means the Internet related services described in any Schedule made
hereunder and which are supplied or to be supplied by UkOnlineHosting on and
subject to the terms of this Agreement and any schedules made hereunder;
"SLA" means service level agreement;
"Software" means the computer software provided by UkOnlineHosting in connection
with the Services;
"Support Call" is defined as a telephone call by the Client to UkOnlineHosting’s
telephone number, published on www.UkOnlineHosting.com;
The
Services shall be as described in this Agreement and any associated Schedules.
All Schedules shall be deemed to be an offer from the Client and shall only be
deemed accepted by UkOnlineHosting when counter-signed by an authorised
representative of UkOnlineHosting. In the event of any conflict between any
provision in this Agreement and those in the Schedule then the provision in the
Schedule shall prevail.
The Client, where the Client an individual, or the person entering into this
Agreement on behalf of the Client, where the Client is an entity, warrants that
they are 18 years of age or older, and capable and authorised to enter into this
Agreement.
UkOnlineHosting 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 overall quality
of the Services. This includes the right to substitute the Hardware with
Hardware of similar specification, where necessary. UkOnlineHosting shall
endeavour to give the Client reasonable notice of such modifications but this
may not always be possible and UkOnlineHosting shall not be liable to the Client
or to any third party for any such modification or any failure to give such
notice
UkOnlineHosting reserves the right at its sole discretion to suspend the
Services (temporarily or permanently) on the occurrence of any unscheduled
maintenance or any of the following (each of the following shall be a
"Suspension Events"): (i) Notified Maintenance; (ii) issue by any competent
authority of an order which is binding on UkOnlineHosting and which affects the
Services and which can only be dealt with properly by suspension of the
Services; (iii) if the Client fails to pay any amounts due under this Agreement
when they are due; (iv) if any events occur which would entitle UkOnlineHosting
to terminate this Agreement; (v) the Bandwidth used by the Client in relation to
the Services exceeds the agreed level and UkOnlineHosting determines in its sole
discretion that such suspension is necessary to protect all and any Internet
solutions provided by UkOnlineHosting from time to time.
It is The Client’s responsibility to keep the server files up to date. The
Client is liable for any legal contracts or end user license agreements as a
result of any third party software installed by The Client.
In the event of a server crash, once notified, UkOnlineHosting will endeavour to
reboot the Client’s server as soon as possible but offer no timed guarantee. The
Client may have access to an automatic reboot switch, in which case an
instantaneous reboot may be possible. UkOnlineHosting make no guarantee as to
the functionality of the reboot switch, but will make all reasonable endeavours
that the reboot switch is functioning properly.
It is the Client’s responsibility to maintain and to enter a contact email
address, postal address and telephone number for the Client on the Control
Panel, and to ensure such contact details are current and up to date at all
times.
UkOnlineHosting may provide the Services to the Client from verbal or email
order received by it from any authorised person. A person shall be an authorised
person for the purpose of this clause if his name is listed at the time of order
on the Control Panel.
This Agreement together with the Schedule constitutes the whole and only
agreement and understanding between the parties relating to its subject matter
and supersedes and extinguishes any drafts, agreements, undertakings,
representations, warranties and arrangements of any nature whatsoever, whether
or not in writing, between the parties in connection with the subject matter of
this Agreement whether existing prior to or at the same time as this Agreement.
The Agreement will be on these conditions only, to the exclusion of any other
terms and conditions (including any terms and conditions which the Client
purports to apply under any purchase order, confirmation of order, specification
or other document). The Client’s terms and conditions shall not apply to this
Agreement.
This
Agreement shall come into effect upon the date of this Agreement and, subject to
the provisions of this Agreement shall continue in force for an initial term of
1 month from the date the Services are available to the Client and indefinitely
after that until terminated by either party giving not less than 30 days prior
written notice to expire on or after the expiry date of the initial term.
Without prejudice to any other rights to which UkOnlineHosting is entitled,
UkOnlineHosting may give notice in writing to the Client terminating this
Agreement with immediate effect if:
1) the Client commits any material breach of any of the terms of this Agreement
and (if such a breach is remediable) fails to remedy that breach within 30 days
of being notified of the breach;
2) an order is made or a resolution is passed for the winding up of the Client;
3) an order is made for the appointment of an administrator to manage the
affairs, business and property of the Client or documents are filed with a court
of competent jurisdiction for the appointment of an administrator of the Client
or notice of intention to appoint an administrator is given by the Client or its
directors or by a qualifying floating charge holder (as defined in paragraph 14
of Schedule B1 to the Insolvency Act (1986);
4) a receiver is appointed of any of the Client’s assets or undertaking or if
circumstances arise which entitle a court of competent jurisdiction or a
creditor to appoint a receiver or manager of the Client or if any other person
takes possession of or sells the Client’s assets;
5) the Client makes any arrangement or composition with its creditors or makes
an application to a court of competent jurisdiction for the protection of its
creditors in any way;
6) there is a change of the ability to direct the affairs of the Client whether
by virtue of the ownership of shares, contract or otherwise of the Client;
7) the Client purports to assign its rights or obligations under this Agreement.
For the avoidance of doubt and without limitation, a breach of any of any of the
payment provisions contained in this Agreement, or a breach of the Acceptable
Use Policy is a material breach for the purposes of this Agreement.
Refunds will be given only at the discretion of UkOnlineHosting.
Under Regulation 10 of The Consumer Protection (Distance Selling) Regulations 2000, the Client may have the right to cancel this Agreement for seven working days after the day after this Agreement has been concluded. However, it is agreed between UkOnlineHosting and the Client that the Services may commence before the end of that cancellation period, and then the Client will lose the right to cancel from the date that UkOnlineHosting provides the Client with the access details of the Services.
Maintenance
and support shall not include services for problems arising out of (a)
tampering, modification, alteration, or addition to the Hardware or Software,
which is undertaken by persons other than UkOnlineHosting or its authorised
representatives; or (b) software programmes or hardware supplied by the Client.
The Client shall document and promptly report all errors or malfunctions of the
Services, Hardware or Software to UkOnlineHosting. The Client shall take all
steps necessary to carry out procedures for the rectification of errors or
malfunctions within a reasonable time after such procedures have been received
from UkOnlineHosting provided the procedures specified are reasonable. The
Client shall maintain a current archive copy of all software and data, and shall
properly train its personnel in the use of the Services, Hardware and Software.
Any problems caused by the Client to the Services, (which include, but are not
limited to, deletion of necessary operating system files, accidental or
intentional infection by a virus/Trojan) may result in extra charges to The
Client at £30 per 30 minutes, or part thereof. For any work that will take more
than two hours we will seek prior authorisation from the Client by telephone,
email, fax, or post.
The Client
accepts full responsibility for the delivery and collection of their equipment
to the data centre, and shall ensure that it reaches us in working condition.
UkOnlineHosting do not accept any liability for any loss or damage caused in
transit to and from the data centre. When the server is delivered, the packaging
it is delivered in will be disposed of. If the client wishes the packaging to be
stored, they must explicitly inform us by writing in advance, and this will be
charged at a standard rate of £35 per week, or part thereof.
The Client shall not be entitled to collect their server for maintenance or
otherwise unless all unpaid fees for the Services are paid in full prior to such
collection.
Where the Services are terminated, UkOnlineHosting will store the Client’s
equipment without charge for 7 days but recommend it is collected as soon as
practicable. If the equipment is stored beyond this period, there will be a
storage charge of £35 per week per item of equipment.
UkOnlineHosting reserves the right to exercise a lien over the Client’s server(s)
in respect of any unpaid fees and shall be entitled to sell the server(s) if it
is not collected after one (1) month from the termination date in order to
recoup any unpaid fees.
Physical access to shared racks used by more than one UkOnlineHosting client is not permitted under any circumstance. To gain physical access, the Client may request usage of the Build Room. This is subject to availability, and is charged for at £30 per hour or part thereof. If available, UkOnlineHosting will remove the Client’s equipment to the Build Room, and allow the Client access to the equipment in the Build Room.
UkOnlineHosting’ Acceptable Use Policy ("Policy") is intended to help protect
the UkOnlineHosting service, UkOnlineHosting clients and the Internet community
in general from irresponsible or, in some cases, illegal activities, and the
Client agrees to be bound by the Policy.
1. The Client and their end users shall not, nor shall they permit, enable, or
assist others, to use the Services for any breach of any applicable law or
generally accepted transmission or application protocols applicable to the
Internet or any part of it or to anything connected to it or to any user of it.
Such prohibited use includes but is not limited to the following:
a. civil infringement of and/or criminal offences relating to copyright, trade
marks or any other intellectual property right in any jurisdiction; or
b. commission of any criminal offence (including deliberate transmission of
computer viruses) under the Computer Misuse Act 1990 (UK) or any similar
legislation in any country; or
c. knowingly or recklessly transmitting, displaying or posting to a publicly
accessible service any material which is unlawful or actionably defamatory or an
invasion of privacy, breach of an intellectual property right or breach of a
right of publicity in any jurisdiction with which any publicly accessible
service reasonably appears to have any connection or from which it may
reasonably be apprehended that a publicly accessible service is likely to be
significantly accessed; or
d. transmitting, transferring, displaying or posting to a publicly accessible
service any material in breach of the Data Protection Act 1998 (UK) or similar
legislation in any other country or of any material which is confidential or is
a trade secret or which affects the national security of the United Kingdom or
the said territory or which may expose UkOnlineHosting to any retribution or
penalty under the laws and/or regulations and/or decrees of the United Kingdom
or any other country relating to the export of or dealing with military or
potentially military resources; or
e. use of the Services or the Internet in any manner which is a violation or
infringement of any rights of any kind or nature (whether like to any of the
foregoing or otherwise) of any person, firm or company; or
f. unauthorised access to the network management equipment of UkOnlineHosting or
other Internet service providers; or
g. forgery of Internet addresses or other fields in IP packets by the Client; or
h. any sending of unsolicited email messages or any mass mailing of unsolicited
advertising material by the Client; or
i. any activity that potentially could harm the UkOnlineHosting Network, its
clients’ networks or other networks, including but not limited to traffic
flooding, malicious overflows, etc; or
j. any activity that UkOnlineHosting decides at its absolute discretion is an
unsuitable use of the Services.
2. The Client is responsible for:
a. Maintaining email addresses of the forms postmaster@client.domain and abuse@client.domain
for receiving complaints of network abuse activities, as suggested by Internet
Official Protocol Standard RFC 2142. Typically, these email addresses will
forward emails to the real user accounts of the responsible persons for treating
the network misuse complaints.
b. The activities of its customer base or end-users and, by accepting service
from UkOnlineHosting, is agreeing to ensure that its clients abide by this
Policy. If irresponsible or illegal activity continues, even after
UkOnlineHosting tries to communicate with the Client, then the Client may be
subject to an appropriate action in order to stop those activities.
3. All complaints related to network misuse - including email abuse - are to be
sent to abuse@UkOnlineHosting.com
4. IRC services or IRC-related services are permitted only with prior written
permission from UkOnlineHosting management. This includes, but is not limited
to: “IRCd servers,” “eggdrops,” “bots,” and “bouncers.” The purpose of this
restriction is to prevent attacks on the UkOnlineHosting service due to
malicious activity that has been known to occur on IRC networks like EFnet and
Undernet.
5. The Client warrants that it will respond to any Abuse Complaints within 48
hours.
The Client
shall pay the price for the Services as set out in the Schedule. An initial
payment is required before any set-up work is carried out. UkOnlineHosting
invoices for regular payments monthly in advance, unless otherwise agreed in
writing.
The price for the Service covers Bandwidth as stated in the Schedule. If the
Client exceeds this limit then UkOnlineHosting reserves the right to make
additional charges for usage above the limit at its then prevailing charge rate.
UkOnlineHosting will endeavour to let the Client know if its bandwidth use
exceeds the agreed level, however it is the Client's responsibility to monitor
the bandwidth being used.
All prices quoted to the Client for the provision of services by UkOnlineHosting
are exclusive of any value added tax (VAT) for which the Client may be
additionally liable at the applicable rate. Where the Services are purchased
with a monthly payment plan comprising a set up fee, this fee is payable
immediately. Where a long term contract is purchased, the set up fee is included
within the total payment.
The price and all other amounts due under the Schedule shall be paid by the
Client by the due date as specified in UkOnlineHosting's invoice. Time for
payment shall be of the essence. Payment shall only be deemed received by
UkOnlineHosting upon receipt of cleared funds. Payment shall be made in full
without any abatement, set off or deduction on any grounds. UkOnlineHosting
reserves the right to suspend the Services in case of late payment. Any exercise
by UkOnlineHosting of its right to suspend the Services in the case of late
payment shall be without prejudice to any other of its rights under this
agreement. Notwithstanding suspension of the Services by UkOnlineHosting the
Client shall continue to pay the price for the Services in accordance with the
terms of this Agreement until this Agreement is terminated in accordance with
the terms of this Agreement. UkOnlineHosting understands and will exercise its
statutory right to interest and debt recovery costs under the Late Payment of
Commercial Debts (Interest) Act 1998 if not paid according to agreed terms.
UkOnlineHosting reserves the right to exercise a lien over the Client’s
equipment in respect of any unpaid fees and shall be entitled to sell the
equipment after the expiry of thirty (30) days from the termination date in
order to recoup any unpaid fees.
UkOnlineHosting reserves the right to send overdue accounts to a debt collection
agency. All charges involved in the collection of overdue accounts will be
payable by the Client.
UkOnlineHosting accepts the following payment methods:
1) UK
Cheque
2) Credit Card* - 1.5% Fee
3) BACS Transfer
4) Standing Order
5) Paypal* - 3.4% + 0.20p Fee
Where the client uses a payment method in which transaction fees are associated then the client agrees to pay these fees as part of the transaction.
* Fees are associated with this transaction
UkOnlineHosting will insure all servers and associated equipment against the risks of accidental damage (including fire and theft) for as long as such equipment is under UkOnlineHosting’s control, and located at UkOnlineHosting’s data centre at 1st floor, Technical Building, Priors Way, Maidenhead. UkOnlineHosting will not be responsible for any loss of data and/or software from any Client’s server or associated equipment. The insurance of any loss of data and/or software is not part of this Agreement. UkOnlineHosting does not insure its clients against loss of data and/or software or any consequential loss arising from a loss of data and/or software. All insurance arranged for clients’ servers and equipment will be subject to the terms and conditions of the insurance policy arranged by UkOnlineHosting at the time of any loss or damage.
UkOnlineHosting is not in a position to assess any consequential loss which the Client may suffer as a result of any failure of the Services, or any other default on the part of UkOnlineHosting and it would be impractical and uneconomic for UkOnlineHosting to insure against such liability. Accordingly it is the responsibility of the Client to properly assess any consequential loss that it and/or its clients may suffer and to obtain and maintain adequate insurance in relation to such losses. The Client shall also ensure that it has adequate insurance cover in relation to any loss or damage which may be caused to UkOnlineHosting and/or its clients through the negligence or default of the Client, its employees, agents, or equipment. The Client shall, as and when requested, provide UkOnlineHosting with such evidence as UkOnlineHosting may require in relation to the Client’s insurance.
The Client agrees to fully indemnify and keep UkOnlineHosting, its subsidiaries, affiliates, officers, partners and employees fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following: (i) the Clients breach of this Agreement or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Client but not the Hardware and/or Software; (iii) the Clients use or misuse of the Services; (iv) the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs).
Nothing in the Agreement shall
exclude or limit the liability of UkOnlineHosting for death or personal injury
resulting from its negligence or fraudulent misrepresentation nor affect the
statutory rights of consumers.
The Client acknowledges that the allocation of risk in this Agreement reflects
the price paid for the Services, Hardware and Software and that it is not within
the control of UkOnlineHosting how or for what purposes they are used. If any
exclusion or limit of liability in this Agreement is held to be invalid and
UkOnlineHosting becomes liable for loss or damage that may lawfully be limited
then such liability shall be limited to the amount paid by the Client for the
Services.
UkOnlineHosting shall have no liability to the Client for any loss arising from
any material, data or instructions supplied whether digitally or otherwise by
the Client 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 Client or on its behalf.
No action, claim or demand arising out of or in connection with this Agreement
may be brought by the Client against UkOnlineHosting more than one year after
the cause of action has occurred.
UkOnlineHosting is not responsible for any delay, malfunction, non performance
and/or other degradation of performance of any of the Services, Hardware or
Software caused by or resulting from any alteration, modification and/or
amendments due to changes and specifications requested or implemented by the
Client whether or not beyond those already supplied.
Neither UkOnlineHosting nor anyone else who has been involved in the creation,
production or supply of the Services, Hardware or Software shall be liable to
the Client 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 this Agreement 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 the Client's reputation or goodwill, or (iv) loss resulting from
any claim made by any third party, or (v) special, indirect or consequential
loss or damage of any nature whatsoever, and the Client shall indemnify
UkOnlineHosting from and against any claim which may be made against
UkOnlineHosting in respect thereof. Some jurisdictions do not allow the
exclusion or limitation of implied warranties or of liability for consequential
or incidental damages and therefore the above may not apply to the Client.