In these TOS, unless the context requires otherwise, the following words shall have the following meanings:
"Contact Person" shall mean TH's designated employee which name and contact details appear in the Schedule, and which serves the purpose of communicating with the parallel Contact Person at the Client's establishment, all destined to assist in the fulfillment of this Agreement and the proper and continuous rendering of the Services.
"Hardware" shall mean the equipment, cabling and systems provided by TH in connection with the Services;
"IPRs"shall mean any and all intellectual property rights including without limitation any and all patents, design rights, database rights, copyrights, know-how, moral rights, trade secrets, confidential information, trade marks, service marks, trade names, business methods and goodwill;
"Keywords" shall mean those words, passwords or keys notified to the Client by TH which control the Client's access to some of the Services including without limitation a password and username and/or other means of identification and access.
"Notified Maintenance" shall mean essential maintenance to be carried out by TH in relation to the Services, Hardware and/or Software, which has been notified to the Client;
"Party" or "Parties" shall mean TH and/or the Client and/or both if plural.
"Schedule" shall mean the schedule describing the Internet related Services requested by the Client including without limit details of the requested Bandwidth, Hardware, Storage Space, Term of Service, Software and Contact Person;
"Service(s)" shall mean the Internet related services described in any Schedule made hereunder and which are supplied or to be supplied by TH on and subject to the terms of this Agreement and any schedules made hereunder;
"Server(s)" shall mean the disk space which is designated to store the Client's files and/or any other relevant date designated at the premises of TH, and which is intended to allow safe and continuous operation and proper provision of the Services;
"TOS" shall mean this Agreement and the Terms and Conditions of Service specified henceforth.
2.1. The Services shall be as described in this Agreement and any associated Schedules from time to time. All Schedules shall be deemed to be an offer from the Client and shall only be deemed accepted by TH when counter-signed by an authorized representative of TH. 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, but subject to the Schedule being duly signed by TH
2.2. TH 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 (Collectively hereinafter: "Modification").
2.3. A Modification event includes the right to substitute the Hardware and the Software, as a whole or portions of, with new and/or improved items of similar specification and where TH finds necessary. TH shall endeavor to provide the Client reasonable notice of such Modification; however the Client acknowledges that such notice may not always be possible.
2.4. TH shall not be held liable towards the Client and/or to any third parties for any such Modification, whether that be due to any reason whatsoever that might arise from introducing the Modification or from the avoidance of such action, and/or whether that be due to any failure to give the proper notice upon introducing the Modification.
2.5. TH 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 deemed a "Suspension Events"): (i) Notified Maintenance of any sort, including but limited to Modifications as described above; (ii) Issue by any competent authority of an order which is binding on TH and which affects the Services; (iii) In situations where Client fails to pay any amounts due under this Agreement upon proper notice by TH; (iv) In the occurrence of any event which would entitle TH to terminate the Agreement, whether that be an event which would enable TH's exclusive right of termination or whether such termination has been conducted in accord with the Client ; (v) If situations when the Bandwidth used by the Client in relation to the Services exceeds the agreed level and TH determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by TH from time to time.
2.6. It is The Client's responsibility to keep the Server files up to date and in adequate operating condition. The Client acknowledges his liability in relation to any legal undertakings, such as but limited to various agreements, contracts, written understandings and/or deeds, and different types of end user license agreements Client gives his consent to, and all collectively as a result of any third party software installed by The Client. Notwithstanding the abovementioned condition, TH will make reasonable efforts to keep the software installed up to date with security patches and other updates, but make no guarantee.
2.7. In the event of a Server crash, once notified, TH will endeavor to restart 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. TH makes no guarantee as to the functionality of the reboot switch, but will take reasonable endeavors that the reboot switch would function properly.
3. TERM and TERMINATION
3.1. The Term of this Agreement is of a minimum of 30 (thirty) days, beginning at the due date agreed upon in writing between the Parties and mentioned in the Schedule and if not mentioned, then the effective period of this Agreement will begin at the due date of the first regular invoice under given by TH to the Client under the specific conditions mentioned in the Schedule (Collectively: "the Term").
3.2. This Agreement shall be effective when signed by both Parties and thereafter shall remain in effect for at least one month. This Agreement shall automatically be renewed beyond the Initial Term for additional month terms unless earlier terminated as provided in this Agreement.
3.3. TH reserves its right upon its sole discretion to issue refund and/or reimbursements of any sort to Client for payments carried out by Client in relation with this Agreement and after the Term have been elapsed.
3.4. Either party may terminate this Agreement by giving not less than 5 (five) working days notice in writing to the other Party, subject to the minimum Agreement Term period having elapsed (Collectively: "the Termination"), while the date on which such notice have been received by the relevant Party would be regarded as the "Termination Date".
4. DISTANCE SELLING REGULATIONS
4.1. Under Regulation 10 of The Consumer Protection (Distance Selling) Regulations 2000, Client is entitled to cancel the Agreement within 7 (seven) working days after the day the Agreement had been concluded ("the Cancellation Period").
4.2. However, it is acknowledged and agreed between the Parties that the Service may commence prior the end of the Cancellation Period, and then Client will lose his cancellation right from the date that TH had provided Client with the access details of the Service and so forth.
5. SUPPORT AND MAINTENANCE
5.1. Maintenance and support shall not include the rendering of various Services indented to resolve problems which arise out of: (a) Tampering, Modification, amendment, alteration, upgrades or addition to the Hardware or Software, which is undertaken by persons other than TH or its authorized representatives; or (b) Software and/or Hardware supplied by Client, which installation was carried out upon Client's instructions and/or request, whether such installation was approved or not by TH.
5.2. The Client acknowledges his exclusive role in documenting and promptly reporting all errors or malfunctions of any form or nature of the Services, Hardware or Software directly to the relevant Contact Person in charge of matters of such capacity at TH.
5.3. Notwithstanding the abovementioned on clause 5.2, 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 TH 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 and its Contact Person in particular in the use of the Services, Hardware and Software.
5.4. Any disturbing, delaying or damaging events which were caused by the Client to the Hardware or Services, and which include, but are not limited to, deletion of necessary operating system files, any sort of damage to the Software, and/or accidental or intentional infection of the Servers by a virus/Trojan and any other similar damage may result in extra charges to the Client, for support and repair duties carried out by TH ("Duties"). The rendering of the Duties would be carried out at the rate of £60 per hour, or part thereof during routine office hours (i.e. 9am-5:30pm, Mon-Fri, excluding public holidays/holidays) and at the rate of £120 per hour, or part thereof, outside of these hours. If such Duties are expected to consist of more than two working hours, TH shall seek prior authorization from the Client upon commencing work.
6. DELIVERY AND COLLECTION OF COLOCATED SERVERS
6.1. The Client accepts full responsibility for the delivery and collection of its Server to the data centre, and shall ensure that it reaches TH in good working condition. TH shall not accept any liability for any loss or damage caused in transit to and from the data centre.
6.2. TH is entitled to dispose the packaging in which the Server is delivered. If the Client wishes such packaging to be stored, Client must explicitly inform TH prior to receipt of the Server at the premises of TH. For the safekeeping of the Server package, TH is entitled to charge Client a standard rate of £35 per week.
6.3. Where the Client terminates this Agreement, TH is committed to store the Client's Server without charge for not less than 3 (three) working days ("Initial Server Storage Period"). If the Server is stored beyond the Initial Server Storage Period, TH would be entitled to charge Client a standard charge of £35 per week per Server. Subject to a period of 30 (thirty) days following the Initial Server Storage Period having elapsed, TH would be discharged of any liability or responsibility in relation to the condition of the Server and would not be held accountable for any damage that might occur to the Server of any nature or extent.
6.4. TH reserves the right to exercise a lien over the Client's Server(s) and/or any other equipment belonging to the Client, 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.
7. PHYSICAL ACCESS
7.1. Physical access to shared racks used by more than one TH Client is not permitted under any circumstance. However, at TH's sole discretion, TH may allow physical access on a chargeable basis at the rate of £60/hour for support during routine office hours (9am-5:30pm, Mon-Fri, excluding public holidays) and at the rate of £120/hour outside of these hours.
7.2. In order to allow Client access to their Hardware, Client must give at least one (1) hours notice to the Contact Person and by telephone, in order to allow TH to take the Hardware out of the rack and put into a build room ("the Facility"), away from other equipment, and/or any other arrangements TH sees fit at its sole discretion. Usage of the Facility will be charged for on a per incident basis at the rate of £60 per day.
8. ACCEPTABLE USE POLICY
8.1. TH's Acceptable Use Policy ("Policy") is intended among other things to help protect the TH network, TH Clients and the Internet community in general from irresponsible, inappropriate or, in some cases, illegal activities.
8.2. The Client and its end users shall not, nor shall they permit or assist others, to use the Services granted by TH 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:
8.2.1. Civil infringement of and/or criminal offences relating to copyright, trade marks or any other intellectual property right in any jurisdiction; or
8.2.2. Commission of any criminal offence (including but not limited to deliberate transmission of computer viruses) under the Computer Misuse Act 1990 (UK) or any similar legislation in any country; or
8.2.3. 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
8.2.4. 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 TH 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
8.2.5. Use of the TH enabled Service 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
8.2.6. Unauthorized access to the network management equipment of TH or other Internet providers; or
8.2.7. Forgery of Internet addresses or other fields in IP packets by the Client; or
8.2.8. Any sending of unsolicited email messages or any mass mailing (a.k.a "SPAM") of unsolicited advertising material by the Client; or
8.2.9. Any activity that potentially could harm TH's network, its chattels, its Client's networks or other networks, without limitation.
8.2.10. Use or any other activity of any sort, kind, purpose or nature that involves child pornography and/or any other sexually explicit conduct which involves children, adolescents under the age of 18 (even if unclear of their actual age) violent pornography or any kind, shape or form and/or any other explicit adult, abusive and pornographic materials, whether that be in such images, photographs, video files, sound files of any extension or type, and which are regarded inappropriate or illegal by UK standards and without limitation.
8.3. The Client is responsible for:
8.3.1. Maintaining email addresses (preferably as an email alias) 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.
8.3.2. The activities of its customer base or end-users and, by accepting Service from TH, is agreeing to ensure that its customers abide by this Policy. If irresponsible or illegal activity continues, even after TH tries to communicate with the Client, then the Client may be subject to an appropriate action in order to stop those activities.
8.3.3. All complaints related to network misuse - including email abuse ("SPAM") are to be sent to firstname.lastname@example.org.
8.3.4. No IRC services or IRC-related services are permitted. This includes, but is not limited to: "IRCd servers," "eggdrops," "bots," and "bouncers". TH blocks all TCP ports in the range 6660 to 6680 to prevent these from being used accidentally.
8.4. Any continuing breach of the Policy would entitle TH all remedies from the Client, while inter alia, TH would have the absolute and exclusive right to: (i) Terminate the Agreement upon first knowledge on any sort of breach and/or alleged breach of the Policy; (ii) Demand compensation for any cause TH sees fit for such breach of the Policy; (iii) Take any other immediate and exclusive steps TH sees fit at its own discretion and without giving rise to any claim whatsoever or liability for damage such action might inflict on the Client, his business or reputation, without limit.
9.1. The Client shall pay the price for the Services as set out in the Schedule. An initial payment is required prior to any setup work carried out. Regular payments are due on the first day of the period to which they apply.
9.2. The price for the Service covers permitted bandwidth (agreed connection rate) as stated in the Schedule. If the Client exceeds this limit, whether that be in a single limited incident, continuously or during several incidents of this sort, then TH would be entitled to demand additional charges for usage above the limit at it's then prevailing charge rate. TH will endeavor to bring update and inform the Client if its bandwidth use exceeds the agreed level; however, it is the Client's responsibility to monitor the bandwidth being used by it from time to time using the Control Panel. When the client exceed the traffic allotment as specified in the server options, the client will be chraged at the rate of £0.04 per gigabyte or £8 per Mbit/sec. There are no exceptions to this.
9.3. All prices quoted to the Client for the provision of services by TH are exclusive of any Value Added Tax for which the Client may be additionally liable at the applicable rate. Where the Services are purchased with a monthly payment plan comprising a setup fee, this fee is payable immediately. Where a long term Agreement is purchased, the setup fee would be included within the total payment.
9.4. The price and all other amounts due under the Schedule shall be paid by the Client not later than the due date as specified in the respective invoice sent to Client by TH.
9.5. Payment shall only be deemed received by TH upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any grounds.
9.6. TH reserves the right to suspend The Service in case of late payment, as mentioned above in relation to Suspension Events and/or to exercise a lien over the Client's Server and/or any other equipment belonging to the Client, as mentioned on abovementioned clause 6.4.
9.7. TH understands and will exercise its statutory right to interest under the Late Payment of Commercial Debts (Interest) Act 1998 if not paid according to agreed terms.
9.8. TH reserves the right to send overdue accounts to a collection agency.
10. CONSEQUENTIAL LOSSES
10.1. The Parties clearly acknowledge that TH is in no 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 TH, nor is TH in the capacity to insure against such theoretical damage and liability. Hence therefore, the Parties agree that the appropriate and accurate allocation of risk resulting from this Agreement and all measures relating to such risks provision are vested with the Client. In accordance to this mutual agreement, the Parties agree that it is the responsibility of the Client to properly assess any consequential loss that the Client and/or its customers and/or any third parties may suffer and to obtain and maintain adequate insurance in relation to such losses.
10.2. Furthermore, it is in the exclusive responsibility of the Client to ensure the installation of an adequate insurance cover in relation to any loss or damage which may be caused to TH and/or its other clients, network and chattels through the negligence or default of the Client, its employees, agents, Hardware or equipment. The Client shall, as and when requested, provide TH with such evidence as TH may require in relation to the Client's insurance.
The Client agrees to fully indemnify and keep TH, its subsidiaries, affiliates, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liabilities, claims and expenses (including but not limited to legal fees) whatsoever incurred by Client or by these abovementioned entities and arising from any of the following: (i) The Client's 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 Client's use or misuse of the Services; (iv) the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs).
12.1. The Client acknowledges that the allocation of risk in the Agreement reflects the price paid for the Services, Hardware and Software and that it is not within the control of TH how or for what purposes they are used. If any exclusion or limit of liability in the Agreement is held to be invalid and TH 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.
12.2. TH shall have no liability towards 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.
12.3. No action, claim or demand arising out of or in connection with this Agreement or the Schedule may be brought by the Client against TH more than 1 (one) year after the cause of action has occurred.
12.4. In addition to any covenant expressed in this Agreement, TH would not be regarded or held 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.
12.5. Neither TH 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, the Schedule 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 TH from and against any claim which may be made against TH 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.
13.1. Unless expressly stated otherwise elsewhere in this Agreement, all notices which are required to be given shall be in writing and shall be sent to the addressee at the address stated below or such other address as the addressee shall have for the time being notified to the Party giving the notice.
13.2. Any such notice may be delivered personally or by first class prepaid letter, or facsimile transmission and shall be deemed to have been served, if by hand when delivered, if by post 48 hours after posting, if by facsimile transmission, when dispatched provided the same was on a working day in England and Wales (being Monday - Friday excluding bank and public holidays) between the hours of 9.30am and 5.30pm and such party has a receipt showing the entire notice was sent to the facsimile number below.
13.3. Any notice which affects the validity or existence of this Agreement shall be delivered personally or sent by recorded delivery first class letter post only.
14.1. It is acknowledged and agreed that TH would be able from time to time to add further covenants and conditions and/or replace those currently in use, all in order to clarify Schedules setting out specific details of the Services requested by the Client and provided by TH under the terms of this Agreement.
14.2. No amendment, waiver, or modification of this Agreement or any provision of this Agreement shall be valid unless in writing, stating with specificity the particular amendment or modification to be made, and duly executed by the Parties.
15. ILLEGALITY OR SEVERANCE
If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under that provision, but only to the extent that such provision is illegal, unenforceable or void. This Agreement shall be amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent, or if that is not possible, by substituting therefore another provision that is legal and enforceable and which achieves the same objective.
16. RIGHTS OF THIRD PARTIES
A person who is not a Party to this Agreement has no right to enforce any terms of this Agreement under the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties regarding its subject matter and supersedes any prior proposals, agreements and understandings between the Parties whether oral or written. Unless made in writing and executed by a duly authorized representative of both Parties no amendment or modification to this Agreement shall be binding.
18. LAW & JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the competent courts of the city of London.