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Terms and Conditions
Netservers TERMS AND CONDITIONS
Netservers' price is determined on the basis of the exclusions from and limitations of liability contained in this agreement. Such limitations are included because Netservers' exposure under this agreement may be disproportionate to any revenue that may be received.
Netservers is willing to arrange for additional insurance cover to enable Netservers to take on the burden of additional liability to the Customer provided that the Customer pays Netservers a commensurately higher price. Accordingly, if the Customer wishes Netservers to obtain a quotation for additional insurance cover, the Customer shall notify Netservers prior to this Agreement being entered into.
In this Agreement the following expressions shall have the following meanings:
- the "Agent" - the agent, if any, representing Netservers in the sale of the Services to the Customer, or such other agent as Netservers may nominate from time to time;
- the "Agreement" - the agreement comprised by the Order Form and these Terms and Conditions;
- the "Customer" - the customer specified in the Order Form;
- an "Event of Force Majeure" means such event as defined in clause 17.J below.
- the "Initial Term" - means a period of three (3) months from the Start Date;
- the "Order Form" - Netservers' standard order form, signed by or on behalf of the Customer by which the Customer orders the Service;
- the "Price List" - Netservers' prices for the Services from time to time subsisting;
- "Netservers" - Netservers Limited is a company registered in England under number 04028770 whose registered office is at 21 Signet Court, Cambridge, Cambridgeshire CB5 8LA
- "Netservers' Rules" - Netservers' rules concerning acceptable use of the Internet from time to time;
- "Reterminate the circuit" means relocate the termination point of the dedicated leased line circuit provided by the telephone company by which the Service is provided at the Customer's premises (where applicable);
- "RIPE" means the organisation from time to time that assigns IP Addresses for use by Internet Providers and their customers in Europe.
- the "Service" - Netservers' services.
- the "Start Date" - means the day on which packets of data can first be sent to the Customer's router using the Services;
2. Terms of Purchase
These Netservers Terms and Conditions shall apply to the subject matter of this Agreement to the entire exclusion of any documentation proposed by the Customer.
Subject to compliance by the Customer with its obligations under this Agreement, Netservers shall provide the Services to the Customer during the life of this Agreement.
This Agreement shall subsist for the Initial Term and for subsequent periods of three months until terminated by no less than thirty (30) days notice in writing by either party to the other. In the case of termination by the Customer, the Customer may give such notice to take effect only within a period of sixty (60) days commencing on the last day of the Initial Term or commencing on a subsequent three-month term. In the case of termination by Netservers, Netservers may give such notice at any time.
A. Compliance with Law and Policy. The Customer shall ensure that nothing is transmitted by or on behalf of the Customer or using the Customer's equipment through the Service or down-loaded in violation of any UK or international law, regulation or treaty or Netservers' Rules or in breach of the intellectual property rights of any person. The Customer shall fully and effectually indemnify Netservers from and against all loss, liability, damages, costs and expenses which Netservers may incur in relation to any breach by the Customer of its obligations under this Clause. A breach of this clause will also be grounds for Netservers to terminate this Agreement with immediate effect, at Netservers' discretion.
B. Offending Material. Without prejudice to any other right, Netservers shall be entitled to disable the Service or any part of it or to take such action as it may in its discretion think appropriate to ensure that any material which Netservers in its discretion considers to offend the principles set out in Clause 5.A is not capable of being transmitted or down-loaded. Netservers shall not however be obligated to take, or consider whether it should take, any such action.
C. Customer-Only Traffic. The right to use the Service is limited to the Customer, and those members of its staff and others engaged by the Customer to perform work for the Customer.
D. International Bandwidth. The Customer acknowledges that Netservers has no direct control over the availability of bandwidth over the entirety of the Internet and that while it will use such endeavours as Netservers, in its absolute discretion deems appropriate to facilitate the Service at all times, Netservers shall not be responsible for delays caused by overuse of or lack of such bandwidth.
E Indemnity. The Customer acknowledges that, by the nature of the Service being provided, information and material downloaded or used by the Customer may be kept, whether permanently or temporarily on Netservers' equipment. The Customer shall at all times ensure that such information and material complies with the laws of all applicable jurisdictions and shall keep Netservers fully and effectually indemnified from and against all costs, claims, liabilities and demands relating to or arising from:
- any breach by the Customer of this clause 5.E ; or
- any criminal or civil legal action brought against Netservers as a result of Netservers' storage of such information or material.
6. Customer Equipment and Network
A. It is the sole responsibility of the Customer and not that of Netservers to provide security with respect to any of the Customer's facilities or the facilities of others. The Customer shall be solely responsible for establishing and maintaining user-access security and network access.
B. Notwithstanding clause 6.A, where Netservers constructs on Intranet services for the Customer as part of the Services, Netservers shall be liable, subject always to the provisions of clause 16, for any failure to exercise reasonable skill and care in doing so.
7. Domain Name and Network Number
A. Netservers will route existing IP addresses that were previously assigned to the Customer only if those addresses were assigned to the Customer directly and not through another Internet Service Provider. Netservers may not be held responsible if other Internet Service Providers refuse to accept these addresses. Netservers shall assign new or additional IP addresses as requested by the Customer upon being provided with satisfactory documentation justifying the need for those addresses. The documentation must be in accordance with the policies set forth by RIPE. In certain circumstances it may be necessary for IP addresses to be approved by RIPE, and in such cases Netservers shall not be responsible for any decision made by RIPE. When Netservers assigns addresses to the Customer, those addresses are assigned only for the duration of the Services and become invalid at such time as Netservers no longer provides Internet connectivity to the Customer. After termination or after a discretionary 30-day period Netservers may reassign those addresses to other Customers. If the Customer wishes to apply for addresses that will subsist beyond the duration of the Services, it must do so directly to RIPE. Any decision by RIPE or by another Internet Service Provider relating to IP addresses is the responsibility of RIPE or of that other Internet Service Provider and Netservers accepts no responsibility for any such decision.
B. Netservers has no control over the availability of domain names and accordingly accepts no responsibility for the availability of any domain name. If any domain name is or becomes unavailable or on a request from any domain name registration authority, the Customer shall take all steps to relinquish the relevant domain name or otherwise to abide by the order of such authority and Netservers shall be entitled to take all appropriate steps to achieve the same.
C. In respect of any actions taken by Netservers pursuant to this clause 7, Netservers may levy reasonable additional charges on the Customer as Netservers sees fit.
8. Historical Archive and Backup
While Netservers backs up its server computers as a regular part of its internal systems administration, Netservers does not guarantee any storage or backup of Customer data.
9. Service Pricing
A. Service Pricing. The Customer shall pay fees to Netservers calculated in accordance with the Price List, except that Netservers agrees not to increase the prices it charges the Customer at least until the end of the Initial Term. The Customer acknowledges that it has read and agrees the Price List. All fees are exclusive of any applicable VAT which are chargeable in addition at the then current rate.
B. Initial Commitment. The Customer shall pay Netservers the following costs upon execution of this Agreement (save where otherwise specified). These will include without limitation the following, all calculated in accordance with the Price List;
(1) Netservers' set-up fee(s), upgrade fee(s) (as applicable); (payable with order);
(2) Netservers' service fees for the Initial Term (including any options selected by the Customer on the Order Form);
(3) Domain Name Charges (as applicable);
(4) Equipment lease fees (as applicable);
(5) Equipment purchase charges (as applicable);
The fees for the Initial Term whether paid or payable, are non-refundable. They are independent of the amount of traffic or system access by the Customer.
C. Invoicing. Netservers (or the Agent on Netservers' behalf) will invoice and the Customer shall pay Netservers' setup fee and the fee for the first billing period of the Service (including any options selected in accordance with the Order Form) immediately upon the execution of this Agreement. Netservers (or the Agent on Netservers' behalf) will invoice additional periods of Service separately to the Customer. Invoices that are disputed by the Customer should be notified to Netservers within ten (10) days of the invoice date. In such event Netservers will reissue the invoice and the Customer shall pay the corrected invoice within fourteen (14) days of the date of the reissued invoice. Invoices are payable to Netservers (or the Agent, as the case may be) within fourteen (14) days of the invoice date. Netservers, (or the Agent) may, without prejudice to any other remedies it may have, charge interest on overdue payments at a rate equal to eight per cent (8%) above the base rate of Barclays Bank plc from time to time prevailing: such interest to be calculated on a daily basis.
D. Equipment. Where the Service Order Form indicates that equipment is to be leased to the Customer, the provisions of the attached Lease Schedule shall apply.
A. For Nonpayment. If any Netservers invoice remains unpaid thirty (30) days after its due date, Netservers may without further notification or prejudice to any other remedy, suspend or disable the Service or, at its option, terminate this Agreement. Termination for non-payment shall not relieve the Customer of its responsibilities under this Agreement, including the responsibility to pay all fees up to the date of termination.
B. For Default. Netservers may terminate this Agreement at any time if the Customer materially breaches this Agreement and in the case of a breach capable of remedy fails to remedy the breach within thirty (30) days of a notice from Netservers requiring the breach to be remedied.
11. Additional Service Terms
A. Customer-provided Equipment. To enable Netservers to provide the Service, the Customer agrees to abide by Netservers' recommendations and specifications regarding the existence, configuration and maintenance equipment used by the Customer (if any), the software used by the Customer and cabling required to integrate the Customer's host or local area network (LAN) into Netservers' wide area network (WAN). The Customer's equipment must comply with the relevant portions of such recommendations and specifications.
B. Such recommendations and specifications, if any, are given solely for the protection of Netservers' equipment and not the Customer's and the Customer may not therefore rely upon such recommendations and specifications in the design, maintenance or service of the Customer's equipment or system.
C. Support. Netservers' customer service staff will provide reasonable telephone support on problems experienced by the Customer relating to the service. Requests for advice and assistance can be sent by e-mail to "firstname.lastname@example.org".
12. Service Adjustments
If there is a failure in Netservers' point-of-presence (POP) because Netservers' equipment fails or because circuits between POPs fail (or if there is any failure of the Cammail network (except where any such failure is wholly or partly due to an Event of Force Majeure)), and in any such case this failure results in the disruption of the Service, then the following adjustments will be made. If after four (4) hours Netservers does not have an alternative access point available for the Customer, Netservers will provide an additional Service day to the Customer beyond the then current service term for each calendar day or portion thereof of such disruption in the Service. To be eligible, the Customer must apply to Netservers in writing for this remedy within a reasonable time (and in any case no longer than thirty (30) days) after the failure. This shall be the sole remedy available to the Customer for service disruptions.
13. Retermination of Circuit
If the Customer considers it necessary to reterminate the circuit, the Customer shall be responsible for all associated costs. Netservers will not be responsible for any disruption to the Service attributable to the retermination.
From time to time Netservers may upgrade its network infrastructure. This may require the Customer to upgrade its equipment if the Service is to be continued. In that event, the Customer agrees to make within thirty (30) days such reasonable upgrades to its hardware or software as Netservers' technical staff may from time to time reasonably specify by written notice to the Customer. Netservers shall not be responsible for degradation of or disruption to the Service if the Customer does not make the upgrade required.
15. Limited Warranty
A. Netservers warrants that the Service will not be substantially different from any written description of the Service previously supplied by Netservers to the Customer.
B. The Customer is responsible for assessing its own commercial needs, how the Service relates to the Customer and how the Customer should use the Service. The Customer warrants that it is familiar with services of this type and that it understands the level of service to be provided and the implications for the Customer's own business of the choices which the Customer made in completing the Order Form. Netservers makes no warranty as to the value of the Service in the Customer's business or the results to be obtained from the use of the Services.
C. The Customer is solely responsible for the use of any information or other material obtained through the Service. Netservers specifically excludes any responsibility for the accuracy or quality of information obtained through the Service, or that any other material obtained through the Service may be used in any way by the Customer without infringing the rights of any third parties. The Customer further acknowledges that these matters are outside the control of Netservers.
16. Limitation of liability
16.1 Without prejudice to the express warranties contained in clauses 6 and 15 above and to the maximum extent permissible in law, all conditions and warranties which are to be implied by statute or otherwise by general law into this Agreement or relating to the Services are hereby excluded.
16.2 The following provisions in this clause 16 set out Netservers' entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:
16.2.1 a breach of Netservers' contractual obligations;
16.2.2 a tortious act or omission for which Netservers is liable;
16.2.3 an action arising out of a misrepresentation by or on behalf of Netservers; arising in connection with the performance or contemplated performance of this Agreement or out of an act done or omission made as a consequence of the entry into by Netservers of this Agreement.
16.3 The total liability which Netservers shall owe to the Customer and in respect of all claims shall not exceed the sum of one thousand pounds (£1,000).
16.4 The Customer acknowledges that the Netservers network has not been designed for use in circumstances where its failure could cause pure economic loss, loss of profit, loss of business or like loss.
16.5 Netservers shall in no circumstances be liable to the Customer for any pure economic loss, loss of profit, loss of business or like loss.
16.6 Netservers shall in no circumstances (whether before or after termination of this Agreement) be liable to the Customer for any loss of or corruption to data or programs held or used by or on behalf of the Customer and the Customer shall at all times keep adequate back-up copies of the data and programs held or used by or on behalf of the Customer.
16.7 The Customer shall only be entitled to bring a claim against Netservers where the Customer issues legal proceedings against Netservers within the period of twenty-four (24) months commencing on the date upon which the Customer ought to have known of its entitlement to bring such a claim.
16.8 Notwithstanding anything to the contrary herein contained Netservers' liability to the Customer for:
- 16.8.1 death or personal injury resulting from the negligence of Netservers, its employees, agents or sub-contractors;
- 16.8.2 damage suffered by the Customer as a result of a breach by Netservers of the condition as to title or the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; and
16.8.3 damage for which Netservers is liable to the Customer under Part I of the Consumer Protection Act 1987;
shall not be limited save that nothing in this clause 16 shall confer a right or remedy upon the Customer to which the Customer would not otherwise be entitled.
16.9 The exclusions from and limitations of liability set out in this clause 16 shall be considered severably. The validity or unenforceability of any one clause, sub?clause, paragraph or sub-paragraph of this clause 16 shall not affect the validity or enforceability of any other part of this clause 16.
16.10 The provisions of this clause 16 shall survive the termination of the whole or a Part of this Agreement.
17. General Terms
A. Assignment. The Customer may not sell, transfer or assign its rights or obligations under this Agreement without Netservers' written consent. No such assignment, even if consented to, shall relieve the Customer of its obligations under this Agreement prior to the date of the assignment.
B. Waiver. The waiver or failure of Netservers to exercise any right provided for in this Agreement shall not be deemed a waiver of that or any other right in this Agreement.
C. Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
D. Whole Agreement. This Agreement represents the complete agreement and understanding of the parties as to its subject matter, and supersedes any other agreement or understanding, written or oral. If there is any conflict between the Order Form and the Netservers Terms, the Order Form shall take precedence. This Agreement may be modified only in writing signed by an authorised representative of the Customer and an authorised representative of Netservers.
E. Notices. Notices sent pursuant to this Agreement shall be in writing and may be delivered by hand, sent by post or faxed with hard copy confirmation by post to the recipient at its address as shown on the Order Form or at such other address as may be notified in accordance with this clause or, in the case of a company, to its registered office. Notices hand-delivered or faxed shall be deemed received on delivery and those posted on the second working day after they are posted.
F. Headings. The headings shall be disregarded in construing this Agreement.
G. Law. This Agreement shall be governed by English law. The parties submit to the non-exclusive jurisdiction of the English courts.
H. Capacity. Both parties acknowledge that they have read and understood this Agreement and agree to be bound by its terms.
I. Representations. The parties acknowledge that in entering into this Agreement they have not relied upon any representations other than those reduced to writing in this Agreement. The provisions of this clause 17.I shall not apply in the case of any fraudulent misrepresentation.
J. Force Majeure
Any delay in or failure of performance of any obligation by either party (save an obligation in respect of the payment of monies) shall not constitute a breach of such obligation to the extent that such delay or failure is caused by an event (including without limitation an event such as a strike, lock-out or other industrial action or trade dispute occurring to the party taking advantage of this clause 17.J) outside the control of that party and which that party is not reasonably able to prevent or to circumvent ("an Event of a Force Majeure"). The party otherwise in default shall take all reasonable steps to circumvent and mitigate the effect of such event and to reduce any delay in the performance of such obligation.