GENERAL DATA PROTECTION CONTRACTUAL ADDENDUM
This Addendum dated 3rd May 2018 (the “Addendum”) amends, with effect from and including 25 May 2018 (the “Effective Date”), the General Terms and Conditions between Simple Servers LTD (registered in England under company number 06813119) trading as Simple Servers (“Simple Servers”) and you, (“Controller”) and any other agreements entered into between the parties (the “Agreement”).
To the extent this Addendum is not consistent with any terms of the Agreement the terms of this Addendum shall prevail. Other than as indicated herein, capitalized terms and definitions contained herein shall have the same meaning as specified in the Agreement.
(A) As of 25 May 2018 the General Data Protection Regulation (EU) 2016/679 (“GDPR”) will apply in the EEA replacing Directive 95/46/EC and its local implementing legislation in the UK, the Data Protection Act 1998 (“DPA 1998”). Accordingly, the parties can no longer rely on compliance with the DPA 1998 in the UK as being sufficient for controlling, processing or protecting data.
(B) In order to comply with its legal and regulatory obligations, the parties wish to update the terms of the Agreement to comply with the GDPR on the terms as set out in this Addendum. Therefore, the parties, intending to be legally bound, and in consideration of the needs for both parties to comply with their respective obligations under the GDPR, agree that any data controller, processing and protection provisions (and/or any other provisions in the Agreement relating to the DPA 1998) shall, as at the Effective Date, be deleted and the following clause shall be incorporated into the Agreement:
1 DATA PROCESSING
1.1 For the purposes of this Agreement the following defined terms shall have the following meanings:
“Data Protection Law” shall mean (a) Data Protection Act 1998; or (b) from 25th May 2018, the General Data Protection Regulation ((EU) 2016/679 (“GDPR”), read in conjunction with and subject to any applicable UK national legislation that provides for specifications or restrictions of the GDPR’s rules; or (c) from the date of implementation, any applicable legislation that supersedes or replaces the GDPR in the UK or which applies the operation of the GDPR as if the GDPR were part of UK national law, which may include the Data Protection Act 2017;
“personal data”, “controller”, “processor”, “data subject”, and “processing” (and other parts of the verb ‘to process’) shall have the meaning set out in the Data Protection Law.
1.2 Each party shall comply at all times with Data Protection Law and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Data Protection Law.
1.3 In the context of this Agreement, Simple Servers will act as “processor” to the Controller who may act as either “processor” or “controller” with respect to the personal data. Notwithstanding the foregoing, the parties acknowledge that:
1.3.1 where Simple Servers only provides colocation services under the Agreement Simple Servers will not be a Processor; and
1.3.2 where personal data is not accessible to Simple Servers it shall not be a Processor, and therefore, in either case, the obligations of clause 1.7 shall not apply to Simple Servers.
1.4 The Controller represents and warrants to Simple Servers that with respect to any personal data processed pursuant to this Agreement:
1.4.1 all personal data is necessary for the purpose for which it is processed, accurate and up-to-date (and Controller shall at all times comply with Simple Servers standard acceptable use policy);
1.4.2 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Controller has implemented appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the personal data;
1.4.3 the Controller has obtained all the necessary consents from data subjects to process the personal data and to outsource the processing of any personal data to Simple Servers and the Controller covenants that it shall notify Simple Servers in writing if there are any material changes to these consents or to the personal data that Simple Servers processes under this Agreement; and
1.4.4 it is not aware of any circumstances likely to, and will not instruct Simple Servers to process the personal data in a manner that is likely to, give rise to a breach of the Data Protection Law (or any other applicable data protection or privacy laws).
1.5 The Controller acknowledges and agrees that pursuant to its obligation under Article 28(1) of the GDPR to only appoint processors providing sufficient guarantees to implement appropriate technical and organisational measures to meet the requirements of the GDPR, it has assessed Simple Servers applicable technical and organisational measures and considers them to be sufficient, taking into account the nature, scope, context and purpose of the processing undertaken pursuant to the Agreement.
1.6 Controller acknowledges and agrees that it is responsible for ensuring the compliance of any of its businesses, affiliates or subsidiaries located in a territory outside the EEA with Data Protection Law in relation to transfers of personal data from Simple Servers to Controller.
1.7 Where Simple Servers processes personal data on behalf of Controller, with respect to such processing, Simple Servers shall:
1.7.1 process the personal data only in accordance with the Agreement (as amended by this Addendum) and the documented instructions of the Controller given from time to time. The Controller acknowledges that Simple Servers is under no duty to investigate the completeness, accuracy or sufficiency of such instructions and any additional instructions outside the scope of this Agreement (as amended by this Addendum) require prior written approval between Simple Servers and Controller (including agreement on any fees payable by Controller to Simple Servers for carrying out such instructions);
1.7.2 only permit the personal data to be processed by persons who are bound by enforceable obligations of confidentiality and take steps to ensure such persons only act on Simple Servers instructions in relation to the processing;
1.7.3 protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the personal data and having regard to the nature of the personal data which is to be protected (and the Controller shall notify Simple Servers immediately if the nature of such personal data changes in a material way);
1.7.4 remain entitled to appoint third party sub-processors. Where Simple Servers appoints a third party sub-processor, it shall, with respect to data protection obligations:
(a) ensure that the third party is subject to, and contractually bound by, at least the same obligations as Simple Servers; and
(b) remain fully liable to Controller for all acts and omissions of the third party, and all sub-processors engaged by Simple Servers as at the effective date of this Addendum shall be deemed authorized;
1.7.5 in addition to the sub-processors engaged pursuant to paragraph 1.7.4 (above), be entitled to engage additional or replacement sub-processors, subject to:
(a) the provisions of paragraph 1.7.4(a) and 1.7.4(b) being applied; and
(b) Simple Servers notifying the Controller of the additional or replacement sub-processor,and where Controller objects to the additional or replacement sub-processor, the parties shall discuss the objection in good faith;
1.7.6 notify Controller without undue delay after becoming aware that it has suffered a personal data breach;
1.7.7 at Controller’s cost and not more than once in any 12 month period permit Controller (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit (during business hours and on reasonable notice) Simple Servers’s data processing activities to enable Controller to verify and/or procure that Simple Servers is complying with its obligations under clause 1.2. Controller shall ensure that its adheres to any applicable Simple Servers site and security policies in the performance of such audit or inspection;
1.7.8 on Controller’s reasonable request and at Controller’s cost, assist Controller to respond to requests from data subjects who are exercising their rights under the Data Protection Law (insofar as it is reasonable for Simple Servers to do so);
1.7.9 save where such countries have been deemed by the European Commission to be providing an adequate level of protection pursuant to the relevant provisions of Data Protection Law, not process personal data outside the EEA without the prior written consent of Controller and, where Controller consents to such transfer, to comply with any reasonable instructions notified to Simple Servers by it. Notwithstanding the foregoing, Simple Servers is expressly permitted to and instructed by Controller that it may transfer personal data to any Simple Servers subsidiary and any Simple Servers subcontractor, subject to first ensuring that adequate protections are in place to protect the personal data consistent with the requirements of Data Protection Law;
1.7.10 on Controller’s reasonable request and at Controller’s cost, assist (insofar as it is reasonable to do so, taking into account the nature of the information available to the Simple Servers and any restrictions on disclosing the information, such as confidentiality) Controller to comply with the Controller’s obligations pursuant to Articles 32-36 of the GDPR (or such corresponding provisions of the Data Protection Law), comprising (if applicable): (a) notifying a supervisory authority that Controller has suffered a personal data breach; (b) communicating a personal data breach to an affected individual; (c) carrying out an impact assessment; and (d) where required under an impact assessment, engaging in prior consultation with a supervisory authority; and
1.7.11 unless applicable law requires otherwise, upon termination of the Agreement delete or return all personal data provided by Controller to Simple Servers (except to the extent this is not reasonably technically possible or prohibited by law).
2.1 Controller shall indemnify and hold harmless on demand Simple Servers for any loss, damage, liabilities, penalties, expenses or fines incurred (whether foreseeable or unforeseeable or direct or indirect) (“Losses”) as a result of:
2.1.1 the Controller breaching its obligations under clause 1 (Data Processing);
2.1.2 any unsuccessful claim by a data subject when such claim holds both Controller and Simple Servers as jointly and severally liable under the Data Protection Laws.
2.2 Where under Data Protection Law (including without limitation Article 82 of the GDPR) Simple Servers and Controller incur joint and several liability (as Controller and Processor with any other person) and, as such, Simple Servers incurs Losses (other than for damage caused by processing where it has not complied with obligations under Data Protection Law specifically directed to Processors or where it has acted outside or contrary to Controller’s lawful instructions under the Agreement), Controller shall indemnify Simple Servers on demand against all such Losses, save for such liability as corresponds directly to Simple Servers part of the responsibility for the damage caused by Simple Servers breach of the obligations of Data Protection Law or under this Agreement.
3 LIMITATION OF LIABILITY
3.1 Neither party excludes or limits liability to the other party for any matter for which it would be unlawful for the parties to exclude liability.
3.2 Subject to Clause 3.1, with respect to any claim relating to a breach of Data Protection Law or a breach of this Addendum, Simple Servers shall not in any circumstances be liable to the Controller whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
3.2.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; and
3.2.2 any loss or corruption (whether direct or indirect) of personal data or information;
3.3 Subject to Clause 3.1, Simple Servers total aggregate liability to the Controller in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with a breach of Data Protection Laws or a breach of this Addendum or any collateral contract shall in all circumstances be limited to the greater of:
3.3.1 the Charges paid or payable by Controller to Simple Servers under the relevant Agreement in the Initial Term; or
3.3.2 the total Charges paid or payable by the Controller to Simple Servers under the relevant Agreement in the contract year concerned.
4 GOVERNING LAW AND JURISDICTION
This Addendum and any dispute or claim arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England. The parties agree that the courts of England will have exclusive jurisdiction to settle any dispute (whether contractual or non-contractual) arising from or in connection with the Addendum.
Free Management Promotion – June 17
This offer can only be used on orders with a minimum terms of 12 months
This offer is subject to removal at any time
“Fully Managed and Monitored for life – FREE” means for the lifetime of the contract
If you are unsatisfied with the service you have received, and you have not been able to reach a resolution via our online help desk, you can make a formal complaint by writing to the following address, including your account information, including the full details regarding the complaint.
Simple Servers Ltd
3 Chestnut Court, Jill Lane, Sambourne, Redditch. B96 6EW
We will acknowledge your complaint within five working days, an investigation will be carried out into the issues raised and a full response will be provided within ten working days. Where the issue is complex it may take longer to respond. If this is likely, we will provide full information on the action which will be taken and advise you when you can expect a full response.
This abuse policy set outs the procedure you will need to follow to report an abuse and/or complaint connected to our services and/or that constitute a breach of our terms and conditions.
The abuse and/or complaint must be reported by sending an email to [email protected] The report should be as detailed as possible in order to allow us to investigate the matter.
Upon receipt of the abuse and/or complaint report we will investigate the matter with a view of seeking a resolution, as soon as reasonably possible, in the matter.
You will receive confirmation of receipt of the abuse and/or complaint report within three working days of submitting such a report.
We may contact you for additional information should this be required to resolve the matter.
Nominet (.UK domain names)
Please visit https://www.nominet.uk/complaints/ to view the registrar reports complaint procedure.
Terms and Conditions of Domain Name Registration https://s3-eu-west-1.amazonaws.com/nominet-prod/wp-content/uploads/2018/05/22141655/Ts-and-Cs-of-Domain-Name-Registration.pdf
We will respond to all enquiries within a maximum of 2 business days, but normally this is much quicker.
By registering a domain names ending in .uk (with some very limited exceptions), you enter into a contract of registration with us (Nominet UK). The contract includes conditions limiting our liability and relating to our use of your personal information. This contract is just for the domain name and separate to any arrangement you may have with any other organisation for providing internet services.
Terms and Conditions of Domain Name Registration https://s3-eu-west-1.amazonaws.com/nominet-prod/wp-content/uploads/2018/05/22141655/Ts-and-Cs-of-Domain-Name-Registration.pdf
You indicate acceptance of these terms and conditions of service by placing an order with Simple Servers Ltd. These terms and conditions will not be varied for individual customers.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following terms have the following meanings:
as defined in condition 5.2;
the terms and conditions set out in this document;
any agreement between the Supplier and the Customer for the provision of the Services incorporating these Conditions;
the person who agrees to purchase the Services from the Supplier subject to these Conditions whose details are set out in the Order or Quotation;
any documents, information, data, software and/or other materials provided by the Customer and/or uploaded to the Hosted System by or on behalf of the Customer;
the data centre facility at which the Hosted System is held;
the combination of hardware, software and networking elements that comprise the information technology system provided under the Contract which may be dedicated to the Customer or which may be part of a shared system maintained for other customers depending on the level of the Services;
|“Intellectual Property Rights”||
any patent, copyright, database right, design right (registered and/or unregistered), trade mark (registered and/or unregistered), know how, Confidential Information or other industrial or intellectual property right subsisting anywhere in the world whether in existence at the date of the Contract or arising after the date of the Contract and all rights to apply for the same and any application for any of the foregoing and all rights of priority derived from any of the forgoing or from which any of the foregoing are derived;
liability for any actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), demands, expenses, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities;
the Customer’s order;
means any material which is defamatory of any person, or which promotes sexually explicit material, or violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, any illegal activity, or which is threatening, abuse, invasive of another’s privacy, or which may cause any other person harassment, annoyance, upset, alarm, annoyance inconvenience or needless anxiety, or which misrepresents the Customer’s identity or affiliation with any person, or which advocates, promotes or assists any unlawful act;
an estimate of the cost of supply of the Services by the Supplier;
the services which the Supplier is to supply to the Customer as detailed or referred to on the Order or Quotation;
the Supplier’s service level agreement available on the Website at the date of the Contract;
as defined in condition 7;
the start date for provision of the Services specified in the Order or Quotation;
value added tax chargeable under English law for the time being and any similar additional tax; and
the Supplier’s website at www.simpleservers.co.uk.
2. Basis of Contract
2.1. These Conditions apply to all Contracts for the provision of Services entered into by the Supplier. By placing an Order with the Supplier or accepting the Supplier’s Quotation, the Customer agrees to deal with the Supplier on these Conditions, subject to any terms specified in writing by the Supplier and to the exclusion of all other terms, conditions, warranties or representations (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, acceptance of Quotation, specification or any other document or implied by trade custom or course of dealing).
2.2. No terms or conditions endorsed on, delivered with or contained in the Customer’s Order, specification or other document shall form part of the Contract save where these Conditions (and where applicable the terms which are to be overridden) are specifically referred to in that document and the document is signed by both the Customer and the Supplier.
2.3. No variation to these Conditions shall be binding unless made in accordance with condition 2.2 above or in writing specifying both which condition is to be varied and full details of such variation and signed on behalf of each of the Customer and the Supplier.
2.4. The Supplier’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed. The Customer irrevocably and unconditionally waives any right it may have to claim damages for and/or to rescind the Contract as a result of any misrepresentation whether or not contained in the Contract unless such misrepresentation was made fraudulently.
2.5. Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acceptance of Order, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
3. SUPPLY OF SERVICES
3.1. The Supplier agrees to supply the Services to the Customer on the terms of these Conditions, in consideration of payment of the charges by the Customer.
3.2. Each Order or acceptance of a Quotation for Services by the Customer from the Supplier shall be deemed to be an offer by the Customer to purchase the Services subject to these Conditions and shall be binding on the Customer, but shall not bind the Supplier until the Contract comes into existence in accordance with condition 3.4.
3.3. The Customer shall ensure that the terms of its Order and any applicable specification are complete and accurate.
3.4. Any Quotation is given on the basis that no Contract shall come into existence until the Supplier dispatches an acceptance of the Order to the Customer or (if earlier) the Supplier commences supply of the Services to the Customer. Any Quotation is valid for a period of 30 (thirty) days only from its date, provided that the Supplier has not previously withdrawn it.
3.5. The Customer shall not be entitled to cancel in whole or in part any Order which the Supplier has accepted or any Quotation which the Customer has accepted in either case whether orally or in writing, except where such cancellation has been accepted by the Supplier subject to reasonable cancellation charges.
3.6. The Supplier shall use its reasonable efforts to commence the provision of the Services to the Customer on the Start Date, but time of performance shall not be of the essence.
4.1. TRIAL PERIOD
4.1.1 These Conditions will apply to any trial period which the Supplier has agreed to provide to the Customer in respect of the Services.
4.2. If the Customer does not notify the Supplier in writing within 24 hours of the end of the trial period that it wishes to terminate its use of the Services at the end of the trial period then the Services will automatically continue to be supplied at the end of the trial period and the Customer shall pay for the Services in accordance with these Conditions until the Contract is terminated in accordance with condition 10.
5. CUSTOMER’S OBLIGATIONS
5.1. The Customer hereby confirms that it purchases the Services from the Supplier in the course of business and not as a consumer. The Customer further confirms that it is not purchasing the Services wholly or mainly outside its trade, business, craft or profession.
5.2. The Customer shall:
5.2.1. co-operate fully with the Supplier;
5.2.2. comply with all applicable technology control or export laws and regulations;
5.2.3. provide the Supplier with any information that it reasonably requires;
5.2.4. provide the Supplier with access to any information that it reasonably requires;
5.2.5. obtain all necessary licences, permissions and consents which may be required in relation to the use of the Services and the use of Customer Materials by the Supplier in all cases before the date on which the Services are to start;
5.2.6. ensure that the Customer Materials do not contain Prohibited Content;
5.2.7. notify the Supplier immediately if at any time it becomes aware or suspects, or should reasonably suspect that it is in breach of its obligations in respect of any Customer Materials; and
5.2.8. indemnify and keep indemnified the Supplier against any Liability arising out of the Supplier’s use of the Customer Materials;
5.2.9. treat all identification codes, passwords and any other pieces of information used to access the Hosted System (Access Codes) as confidential, and not disclose them to any third party;
5.2.10. use all reasonable endeavors to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier;
5.2.11. immediately notify the Supplier if the Customer believes or suspects that its Access Codes have been disclosed or become known to any third party;
5.2.12. comply fully with the Supplier’s acceptable use policy on the Website and as amended from time to time;
5.2.13. be responsible for making all arrangements necessary for it to have an internet connection to access the Hosted System;
5.2.14. be responsible for ensuring that all persons who access the Hosted System using the Customer’s access details comply with the Customer’s obligations under these Conditions;
5.2.15. deliver the Customer Materials in a format specified by the Supplier;
5.2.16. ensure that it backs up the data which it stores on the Hosted System;
5.2.17. ensure that it does not swear or use any verbally abusive or threatening behavior towards the Supplier or its personnel;
5.2.18. use the Hosted System for genuine web site content only; and;
5.2.19. employ good housekeeping when maintaining their account.
5.3. If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under the Contract, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
5.3.1. the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer’s behalf; and
5.3.2. the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
5.4. The Customer shall not:
5.4.1. introduce any viruses, worms, trojan horses, logic bombs or other similar destructive code to the Hosted System, attempt to gain unauthorised access to the Hosted System or any server, computer or database connected to the Hosted System, or attack the Hosted System using a denial of service attack. To the extent that the Customer does any of these things, the Supplier may report such activities and disclose personal data relating to the Customer to any relevant law enforcement agency;
5.4.2. send unsolicited mail (with or without the Customer’s knowledge);
5.4.3. alter any of the security protections set on the Hosted System;
5.4.4. exceed the bandwidth allocated to the Customer as part of the Services;
5.4.5. if the Hosted System is not specified to be dedicated to the Customer, use more than 5% of the Hosted System’s processing power;
5.4.6. attempt to host any proxy site on the Hosted System;
5.4.7. provide any Customer Materials in contravention with the Supplier’s acceptable use policy on the Website as amended from time to time;
5.4.8. use the Hosted System as a file repository or backup repository.
5.4.9. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (a) and except to the extent expressly permitted under these Conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; and/or
5.4.10. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party.
5.5. If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants or employees the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.6. The Customer shall be liable to pay to the Supplier, on demand, all Liabilities sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.7. If the Customer exceeds the bandwidth allocated to the Customer as part of the Services the Services will automatically be suspended until the Customer has upgraded to an account that has sufficient bandwidth included for the Customer’s use or until the start of the following month (if earlier).
5.8. If the Hosted System is not specified to be dedicated to the Customer and the Customer uses more than 5% of the Hosted System’s processing power then the Services will not perform correctly and the Supplier will not incur any Liability in respect of any such failure and the Customer will be required to continue to pay for the Services. In these
circumstances, the Supplier recommends that the Customer contact the Supplier to discuss upgrading to a dedicated server.
5.9. Subject to condition 5.7 and 5.8 if the Customer breaches any of its other obligations under these Conditions then without prejudice to its rights the Supplier shall be entitled to suspend the further provision of Services to the Customer without incurring any Liability.
5.10. The Supplier may also suspend Services without incurring any Liability where:
5.10.1. there is an attack on the Hosted System or the Customer’s Hosted System is accessed without the Customer’s consent; and/or
5.10.2. required to do so by law or regulatory body.
5.11. The Supplier will not incur any Liability in relation to any suspension permitted under this condition 5 and the Customer will be required to continue to pay for the Services during any period of suspension.
6. CHARGES AND PAYMENT
6.1. The charges for the supply of the Services shall be the charges specified by the Supplier at the time the Customer’s Order is placed or, if not specified, the charges quoted by the Supplier or, if not specified and no charges have been quoted (or a quoted charge is no longer valid), the charges listed in the Supplier’s published charge list on the Website at the date of commencement of the Services.
6.2. The Supplier reserves the right, by giving notice to the Customer at any time to increase the charges of the Services to reflect any increase in the cost to the Supplier which is due to any factor beyond its control, any change in specifications for the Services which is requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
6.3. The charges are exclusive of any applicable VAT, which the Customer shall be additionally liable to pay to the Supplier.
6.4. The Supplier shall be entitled to invoice the Customer for the Services monthly in advance.
6.5. The Customer shall pay any invoice in relation to charges by the due date stated on the invoice.
6.6. If the Services do not include access to a Hosted System dedicated to the Customer shall pay all charges by credit card. If the Services do include access to a dedicated Hosted System the Customer shall pay all charges by the method agreed in writing with the Supplier.
6.7. If payment is to be made by credit card, before commencement of the Services the Customer shall provide the Supplier with valid details of a credit card in the Customer’s name (Payment Card). The Customer hereby warrants that it is entitled to provide the Payment Card details to the Supplier and to authorise the Supplier to charge the invoiced charges to the Payment Card. The Customer hereby irrevocably consents to the Supplier charging the invoiced charges to the Payment Card at any time on or after the date of the
6.8. Time for payment shall be of the essence.
6.9. If full payment is not received by the Supplier by the due date then without prejudice to its rights or remedies the Supplier shall be entitled to:
6.9.1. charge the Customer by way of liquidated damages a late payment charge of £20 for each overdue payment. The Supplier and the Customer both acknowledge and confirm that any such deduction is a genuine pre-estimate of the administrative costs which the Supplier will incur as a result of the delay in payment. The payment of the late fee shall be without prejudice to any other right or remedy of the Supplier including but not limited to the right of the Supplier to recover damages from the Customer if the Supplier’s damage and/or loss exceeds the amount of the liquidated damages;
6.9.2. charge the Customer interest (both before and after judgment) on the amount unpaid at the rate of 4% above the base rate from time to time of the Supplier’s bank being compounded with monthly rests from the due date for payment until the outstanding amount is paid;
6.9.3. suspend performance of any Services and cease any Services in progress pending payment by the Customer; and/or
6.9.4. terminate the Contract without incurring any Liability.
6.10. All payments payable to the Supplier under the Contract shall become due immediately on its termination despite any other provision.
6.11. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Supplier to the Customer.
6.12. All payments shall be applied to invoices and to the Services listed in such invoices in the border determined in its discretion by the Supplier.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. If the Customer requires use of software owned by or licensed to the Supplier (“Software”) in order to make reasonable use of the software the Supplier grants to the Customer a nonexclusive, royalty free, non-transferable, terminable licence to use such software in object code form only for the purposes only of making reasonable use of the Services during the term of the Contract and subject to any third party licence terms applicable to the Software.
7.2. The Customer hereby licences the Supplier to use and make back-up copies of any Customer Materials free of charge and on a non-exclusive worldwide basis.
7.3. The Contract shall not be deemed to assign to any party any Intellectual Property Rights belonging to the other.
7.4. Each party retains all of its own Intellectual Property Rights, whether owned or licensed, in any documents, data, text, trade marks, brands, logos, information, specifications, drawings or other materials as one party may provide to the other parties from time to time.
7.5. No party may use the trade mark or logo of the other party except with the prior written permission of the other party.
8. SUPPLIER’S RIGHTS AND OBLIGATIONS
8.1. Access to the Data Centre is only permitted with the Supplier’s advance written permission. Notwithstanding any permission granted by the Supplier, the Supplier reserves the right to refuse access to the Data Centre or remove from the Data Centre any employees and subcontractors of the Customer whose admission or presence is or would be in the opinion of the Supplier detrimental to the security of the Data Centre or in respect of whom the Customer has failed to request a right of access from the Supplier and the Supplier will not be responsible for the consequences of any such refusal or failure or delay by the Customer in notifying it of its access requirements.
8.2. The Supplier shall maintain control and ownership of the IP address that is assigned to the Customer as part of the Services and reserves the right at its sole discretion to change and/or move any and all IP addresses.
8.3. The Supplier will ensure that appropriate programming languages are installed on the Hosted System as at the Start Date, but shall not be responsible for any programming of any website hosted on the Hosted System or for any fault in the programming languages caused by the actions of the Customer.
8.4. The Supplier has the right, without incurring any Liability, to disable any Access Codes whether chosen by the Customer or allocated by the Supplier if in the Supplier’s opinion the Customer has failed to comply with any of the provisions of the Contract.
8.5. The Supplier has the right, without incurring any Liability, to remove any Customer Materials from the Hosted System if, in the Supplier’s opinion, such material does not comply with any of the provisions of the Contract.
8.6. The Supplier has the right to remove, without incurring any Liability, any Customer Materials from the Hosted System where at any time there is more than one back up copy of the relevant Customer Materials on the Hosted System.
8.7. The Supplier does not warrant or undertake that the Services will be uninterrupted or error free. The Supplier shall not have any Liability to the Customer for any interruptions in the Services or downtime of the Hosted System.
8.8. The Supplier carries out data backups for use by the Supplier in the event of systems
failure. The Supplier does not however provide data backup or restoration for Customers as part of the Services.
8.9. The Supplier does not warrant that the Services will be completely secure and the Customer acknowledges that there are inherent risks in relation to the internet which could result in the loss of Customer Materials.
9. WARRANTY AND LIABILITY
9.1. Subject to the remaining provisions of this condition 9, the Supplier warrants that the Services will, subject to any exclusions in the SLA, be performed in accordance with the SLA. Any valid claim under the SLA will be dealt with in accordance with the SLA and the Supplier shall have no further liability to the Customer and any remedy under the SLA shall be the Customer’s sole and exclusive remedy in respect of the breach.
9.2. The Supplier does not warrant or undertake that the Services will cause the Customer’s equipment to operate without fault or interruption.
9.3. The Supplier does not warrant or undertake to perform any back-up on the Customer Materials and shall have no Liability for any loss or damage to the Customer Materials.
9.4. The Supplier is not responsible for any unauthorised access to the Customer Data unless this was caused by the Supplier’s failure to meet any security requirements set out on the Website.
9.5. Unless otherwise specified in the SLA the Supplier shall have no Liability if for any reason if the Hosted System is unavailable at any time or for any period.
9.6. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.7. The Supplier does not oversee, monitor or moderate any Customer Materials or other data on the Hosted System, and the Supplier expressly excludes Liability for any loss or damage arising from the use of any Customer Materials or other data on the Hosted System.
9.8. The Customer is liable for any telephone charges and any charges made by its internet service provider as a result of the Customer’s use of the Hosted System.
9.9. The Supplier expressly excludes to the maximum extent permitted by law, any Liability for any virus or similar destructive code which computer equipment and/or software used by the Customer may suffer as a result of your accessing the Hosted System and/or any other communication via the Internet between the Supplier and the Customer.
9.10. Subject to condition 8.6, the Supplier does not restrict the Customer’s ability to back up the Customer Materials and the Customer acknowledges and agrees that it is the Customer’s responsibility to back up the Customer Materials. The Supplier expressly excludes to the maximum extent permitted by law, any Liability for lost or damaged data or Customer Materials.
9.11. The Supplier does not seek to exclude or limit its liability for:
9.11.1. death or personal injury resulting from negligence; or
9.11.2. any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
9.11.3. any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability.
9.12. The Supplier shall not be liable to the Customer for:
9.12.1. loss of contracts or goodwill; or
9.12.2. any type of economic loss (including loss of profit, loss of revenue, loss of anticipated savings or loss of business); or
9.12.3. loss of or damage to data or Customer Materials; or
9.12.4. indirect, consequential or special loss, damage or liability even if such loss or damage was reasonably foreseeable.
9.13. The total Liability of the Supplier to the Customer under any Contract in any period of 12 months shall not exceed 150 % of the charges actually paid by the Customer during such period of 12 months for the Services under that Contract, but excluding any late payment charges.
9.14. Each of the limitations and/or exclusions in the Contract shall be deemed to be repeated and apply as a separate provision for each of:
9.14.1. Liability in contract (including fundamental breach);
9.14.2. Liability in tort (including negligence);
9.14.3. Liability for breach of statutory duty; and
9.14.4. Liability for breach of Common Law and/or under any other legal basis; except that condition 9.13 above placing financial caps the Supplier’s liability shall apply once in respect of all of the said types of Liability.
9.15. The Customer acknowledges that given the nature of the Data Centre and the Services and its own obligations under the Contract, it is reasonable for the Supplier to exclude or limit their liability as set out in this condition 9.
10. DURATION AND TERMINATION
10.1. In respect of Contracts for the provision of Services involving a dedicated Hosted System, the Contract shall commence on the Start Date and unless terminated earlier in accordance with these Conditions, the Contract shall continue for 24 months (Dedicated Initial Term) and shall automatically extend for 24 months (Dedicated Extended Term) at the end of the Dedicated Initial Term and at the end of each Dedicated Extended Term. Either party may give written notice to the other party not later than 3 months before the end of the Dedicated Initial Term or the relevant Dedicated Extended Term, to terminate the Contract at the end of the Dedicated Initial Term or the relevant Dedicated Extended Term, as the case may be.
10.2. In respect of Contracts for the provision of Services including only non-dedicated Hosted System(s), the Contract shall commence on the Start Date and unless terminated in accordance with these Conditions, the Contract shall continue for 1 month (Initial Term) and shall automatically extend for 1 month (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party not later than 24 hours before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.
10.3. The Supplier shall be entitled to terminate the Contract immediately by notice in writing to the Customer if:
10.3.1. the Customer commits an irremediable breach of the Contract, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 (thirty) days of receipt of notice of the breach requiring remedy of the same; or
10.3.2. the Customer makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere; or
10.3.3. the Customer ceases or threatens to cease to carry on business; or
10.3.4. there is at any time a material change in the management, ownership or control of the Customer; or
10.3.5. if the Supplier reasonably apprehends that any of the events specified in conditions 10.3.2 to 10.3.4 is about to occur in relation to the Customer and notifies the Customer accordingly.
10.4. The Supplier shall be entitled to terminate the Contract at any time on 7 days written notice to the Customer.
10.5. On termination or expiry of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and in respect of Services supplied but for which no invoice has been submitted the Supplier may submit an invoice, which shall be payable immediately on receipt.
10.6. If the Contract is terminated by the Supplier in accordance with condition 10.3 or by the Customer other than in accordance with condition 10.1 or 10.2 (as applicable) the Supplier shall be entitled to charge the Customer a sum equal to the monthly charges which would have been payable in respect of the Services for the period between the date of actual termination of the Contract and the date on which the Contract would have terminated had it been terminated by the Customer in accordance with condition 10.1 or 10.2 (as applicable). The Customer shall pay the invoice for such sum by the due date specified on the invoice.
11. FORCE MAJEURE
The Supplier reserves the right to defer the date of provision of the Services or to cancel the Contract without incurring any Liability if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 (one hundred and eighty) days, the Customer shall be entitled to give notice in writing to the Supplier to terminate the Contract.
12.1. Without prejudice to any other right or remedy the Supplier may have, the Customer agrees to indemnify and keep indemnified the Supplier against any and all Liability and increased administration and professional and legal costs on a full indemnity basis suffered by the Supplier (without set-off, counterclaim and/or reduction) and arising out of or in connection with any breach of contract by the Customer, any act and/or omission by the Customer and/or any breach of statutory duty by the Customer.
12.2. The remedies available to the Supplier under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the
12.3. The failure or delay of the Supplier to enforce or to exercise, at any time, or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect the Supplier’s right later to enforce or exercise it, nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
12.4. The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
12.5. Any notice or written communication required or permitted to be served on or given to either party under the Contract shall be delivered by hand or sent by recorded delivery mail to the other party at its address set out above or to such other address which it has been previously notified to the sending party and shall be deemed to have been given on the day of delivery.
12.6. The Contract is personal to the Customer and the Customer may not assign, transfer, subcontract or otherwise part with the Contract or any right or obligation under it without the prior written consent of the. The Supplier shall be entitled to assign, transfer, sub-contract or otherwise part with the whole or any part of the Contract or any right or obligation under it to any third party.
12.7. Condition headings are purely for ease of reference and do not form part of or affect the interpretation of the Contract.
12.8. The Conditions and the documents referred to in these Conditions contain all the terms agreed by the parties relating to the subject matter of the Contract and supersede any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation (unless made fraudulently), undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the Contract except as set out in these Conditions or the documents referred to in these Conditions.
12.9. No variation or amendment to the Contract shall be effective unless in writing signed by authorised representatives of the parties.
12.10. The parties to the Contract do not intend that any term of the Contract shall be enforceable
by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.11. Any reference in the Contract to any statute, law, statutory instrument, enactment, order, regulation or other similar instrument having the force of law shall be deemed to include any lawful amendment, re-enactment, extension, replacement, modification, consolidation and/ or repeal thereof.
12.12. The formation, existence, construction, validity and performance and all aspects of the Contract (including any associated non-contractual disputes or claims) are governed by the laws of England and the parties accept the exclusive jurisdiction of the English Courts