Last updated 28th June 2012
1.1 The definitions and rules of interpretation in this Clause apply in these terms and Clauses ("Clauses").
"Client" means the party placing an order
"Commencement Date" means 24 hours after the order has been placed using The Order Form.
"DNS" means Domain Name System or Service.
"Fees" means all the amounts payable by the Client.
"Force Majeure Event" means any event outside the reasonable control of the party liable to perform, including without limitation, act of God, industrial disputes, fire, flood, lightning, war, act of terrorism, riot, failure of power supplies or any service provided by a third party which affects the Supplier's ability to provide services to the Client.
"Intellectual Property Rights" means all patents, rights to inventions, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"IP Address" means an internet protocol address.
"Recurring Fees" means the Fees payable monthly as set out in The Order Form.
"RIPE NCC" means the Réseaux IP Européens Network Co-ordination Centre.
"RIPE IP Address" means the Provider Independent Resource IP Address or IP Addresses obtained directly from RIPE NCC.
"Service Level Agreement" or "SLA" means the service level agreement set out in clause 18.
"Service Period" 12 months immediately following the Commencement Date.
"Services" means any storage service, backup service, Virtual Server, Dedicated Server, IP Address or any other service provided by the Supplier to the Client as specified in The Order Form.
"Set Up Fees" means the initial one off charges as shown in The Order Form.
"Supplier" SC Limited, Reg. No. 03713255.
"The Order Form" means the initial or any subsequent order placed by the client via email or this website.
2. Application of Clauses
2.1 These Clauses shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Client's purchase order, confirmation of order, or implied by law, trade custom, practice or course of dealing.
2.2 No offer placed by the Client shall be accepted by the Supplier other than:
(a) by a written acknowledgement issued and executed by the Supplier; or
(b) (if earlier) by the Supplier starting to provide the Services,
The Client's standard terms and conditions attached to, enclosed with or referred to in any purchase order or other Document will not form any part of this contract.
3. Commencement and Duration
3.1 The Contract and the Services to be supplied under it shall commence once the Services have been supplied. Services will only be supplied after the first invoice is cleared in full.
3.2 Subject to Clause 13, the Services supplied under the Contract shall continue to be supplied for the duration of the Service Period and, after that, shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than 1 year's written notice.
3.3 Neither party shall be entitled to terminate the Contract until the expiry of the Service Period, other than in accordance with Clauses 7 and 13.
4. Supplier's Obligations
4.1 The Supplier shall provide the Services in accordance with all material respects with the Service Level Agreement.
4.2 The Supplier shall be entitled to require relocation of its own Equipment within any of its facilities on 30 day's written notice to the Client. The Supplier shall use its reasonable endeavours to ensure that the disruption caused to the Client's business is kept to a minimum. The Supplier shall reimburse the Client for any direct costs incurred in relocating the Equipment, but shall not be liable for any consequential or economic losses caused by disruption to the Client's business.
5. Client's Obligations
5.1 The Client shall:
(a) co-operate with the Supplier in all matters relating to the Services.
(b) maintain at its own cost with a reputable insurance company insurance cover against all risks which would normally be insured against by a prudent business person.
(c) not publish or cause anything to be published, whether in hard copy or by any electronic medium, that might imply a partnership between the Client and Supplier.
(d) not publish or cause anything to be published, whether in hard copy or by any electronic medium, which contains adverse or derogatory comments about the Supplier or any of its affiliates.
(d) use only DNS for all of their internet based services and not use IP addresses, thus mitigating any risk of downtime should the Supplier choose to relocate their equipment as in clause 4.2 and in doing so acquire and issue new IP addresses.
5.2 The Client hereby indemnifies the Supplier against any liability under Section 63 of the Criminal Justice and Immigration Act 2008;
5.3 The Client will not carry out any of the following:
(a) Upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene (illegal pornography), libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable. Contact us for clarification where needed.
(b) Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity. Forge headers or spoof or monitor/sniff IP packets.
(c) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content or Third Party Content transmitted via the Site.
(d) Harm minors or animals in any way.
(e) Upload, post or otherwise transmit any Third Party Content that you do not have a right to transmit under Law or under contractual relationships.
(f) Upload, post or otherwise transmit any Third Party Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
(g) Upload, post or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas of the Site that are designated for such purpose.
(h) Upload, post or otherwise transmit any Third Party Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
(i) Promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals.
(j) Do anything that in the opinion of the Supplier is likely to bring the network into disrepute, after warnings from the Supplier's NOC (Network Operations Centre).
(k) Exceed or allow to be exceeded the combined inbound and outbound Internet transfer total to be more than 50% of the storage quota specified for each server in The Order Form. Example: A server's storage quota being 1000GB per month. The allowed combined inbound and outbound Internet transfer will be no more than 500GB (50%). If this total is exceeded the Supplier reserves the right to charge an over-usage fee of 5p per GB and \ or cap the speed of the Internet connection to match the 50% limit. This policy is implemented so that the Supplier can maintain low costs to the Client, provide a fast network and keep illegal file sharers and spammers of its network.
6. Obligations in respect of RIPE IP
If the Client obtains a RIPE IP Address via the Supplier as the sponsoring LIR, then the Client understands the Supplier does not own the RIPE IP Address and is obligated to revoke the RIPE IP Address at any time if the terms of its use are not adhered to as follows:
(a) If the RIPE IP Address is not being used in accordance with the guidelines stated at http://www.ripe.net/
(b) Any clauses are broken in this contract.
7. Charges and Payment
7.1 In consideration of the provision of the Services by the Supplier, the Supplier shall invoice and the Client shall pay the Fees set out in The Order Form.
7.2 The due date for the payment of any Fees shall be 7 days from the date of the Supplier's invoice. The Supplier reserves the right to charge interest using the guidelines in the 'Late Payment of Commercial Debts (Interest) Act 1998' on any invoices supplied to the Customer which remain unpaid after the due date.
7.3 The Supplier shall be entitled to increase the Fees in respect of the cost of power as a result of market increases but the Supplier hereby confirms that any such increase will be limited to actual cost plus 5%.
7.4 The parties agree that the Supplier may review and increase the Fees in line with the published UK interest rate increases on 1st January every year.
7.5 Non payment actions
(a) in the event that the Client remains in default of not less than 7 days after being notified via email that such sum is overdue then the Supplier may suspend all Services; and
(b) in the event that the Client remains in default for a further 7 days then the Supplier may terminate the provision of the Services until payment has been made in full.
8. Intellectual Property Rights
As between the Client and the Supplier, all Intellectual Property Rights in relation to the Services shall be owned by the Supplier. The Supplier licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Services. If the Contract terminates, this licence shall automatically terminate.
9. Third party copyright
9.1 The Client is not permitted to install any Microsoft® software which is not freeware or shareware unless the Client already owns the software outright or rents it from Microsoft and has a valid Microsoft Software Assurance on the software being installed by the Client. The Client must show proof of a right-to-use upon request to the Supplier..
9.2 If the requirements in clause 9.1 are not fulfilled, then all Microsoft® software must be licensed from the Supplier in strict accordance with the licensee's instructions.
10. Confidentiality and the Supplier's Property
10.1 Both parties shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the one party (the "Receiving Party") by the other party (the "Disclosing Party"), its employees, agents, consultants or subcontractors and any other confidential information concerning the Disclosing Party's business or its services which the Receiving Party may obtain.
11. Limitation of Liability
11.1 This Clause 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of:
(a) any breach of the Contract;
(b) any use made by the Client of the Services, or any part of them;
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract;
11.2 Nothing in these Clauses limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Supplier.
11.3 The management and backing up of all electronic data within the Client's Services stated in The Order Form are the sole responsibility of the Client.
(a) At no time is the Supplier liable for recovery of the Client's data nor does the Supplier offer to backup or retain any of the Client's applications or data.
(b) The supplier is not responsible for, nor offers support for remedying Windows operating faults on the Client's Services.
(a) the Supplier shall not be liable to the Client for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; or,
(x) any consequences arising from a Minor's use of the Supplier's Premises or Services or any consequence arising from the Minor's age or legal incapacity.
(b) the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the lesser of 125% of the price paid for the Services (excluding VAT or similar taxes) by the Client during the 12 month period immediately preceding the date that the relevant claim is made or £1,500.
11.5 Subject to the provisions of Clause 4, the Supplier does not warrant, guarantee or undertake on behalf of any third party supplier that any internet access will be uninterrupted or error free or of any particular level of availability or quality of internet access, and shall not under any circumstances be liable for any interruptions or downtime of any server.
(a) The client is made aware the Supplier uses data centres owned and operated by any UK based data centre operator who is registered in the UK for VAT and is ISO accredited.
11.6 The Supplier accepts no liability for, and the Client will hold harmless and indemnify the Supplier in the event that the Supplier's staff (in good faith) act, or fail to act, in accordance with a telephone instruction given using a valid telephone verification password which was issued by Client to Supplier.
11.7 The Supplier accepts no liability for, and the Client will hold harmless and indemnify the Supplier in the event that the Supplier's employees (in good faith) act, or fail to act, in accordance with an instruction given in a ticket which was issued using the SC online portal ticketing system either from an e-mail address which is, or from a person who is authorised in issue such a ticket.
11.8 The Client is solely responsible for all paperwork and documentation in respect of, and payment of, customs duties, imposts, levies or taxes.
11.9 The Client acknowledges and agrees that the allocation of risk in this Clause 11 is fair and reasonable having regard to all the circumstances and in particular to:
(a) the price to be paid by the Client for the Services;
(b) the Supplier has no control over how and for what purpose the Services are used by the Client; and
(c) the Client is able to rely upon its own insurances to bear or recover any losses that it incurs.
In entering into the Contract the Client acknowledges and confirms that it has had reasonable opportunity to take independent legal advice regarding the limitations of liability contained herein and that the Client has had the opportunity to discuss such limitations with the Supplier and amend them where possible.
12. Data Protection
The Supplier recognises its obligations under both Data Protection legislation and under contract to maintain the confidentiality of the Client's data so far as it is known to it. However, there are circumstances in which such data may need to be disclosed to third parties as follows:
12.1 The Client acknowledges and agrees that details of the Client's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services.
12.2 The Client acknowledges and agrees that details of the Client's name, address and assigned IP Addresses may be released to law enforcement agencies upon production of valid notices and/or to third parties upon service of a valid disclosure notice issued by a court of competent jurisdiction.
12.3 The Client acknowledges and agrees that details of the Client's name, address, telephone and fax numbers together with email address(es) and assigned IP Addresses may be released to the RIPE NCC to ensure that both Supplier and Client fulfil their obligations under prevailing RIPE policies and that such data may be published in whole or in part in the RIPE WHOIS database.
13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if any of the following occur:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract.
14. Force Majeure
14.1 A party, provided that it has complied with the provisions of Clause 14.2, shall not be in breach of the Contract, nor liable for any failure or delay in performance of its obligations under the Contract (other than a payment of money where some part of the Service is not affected by the Force Majeure Event) arising from a Force Majeure Event.
14.2 A party that is subject to a Force Majeure Event shall not be in breach of the Contract provided that:
(a) it notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance within 2 Business Days of the first happening of the Force Majeure Event; and
(b) it has used reasonable endeavours to mitigate the effect of the Force Majeure Event to carry out its obligations under the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
14.3 If the Force Majeure Event continues for a continuous period of more than 6 months, either party may terminate the Contract by giving 14 days' written notice to the other party. On the expiry of this notice period, the Contract will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination.
15.1 The Supplier may, from time to time change the Services or any part of the Clauses, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, it will give the Client at least 30 days' notice of any change either on the internal Client portal on the Supplier's website or by email (to the last address provided by the Client).
16. Entire Agreement
16.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
16.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
16.3 Any typographical, clerical or other error in any sales literature, marketing materials, quotation, price list or other Document issued by the Supplier or contained on any part of the Supplier's website shall be subject to correction without any liability on the part of the Supplier. For the avoidance of doubt, the Supplier's brochure and other sales literature or marketing materials either appearing on the Supplier's website or in printed form are not incorporated into and do not form part of the Contract.
16.4 Nothing in this Clause shall limit or exclude any liability for fraud.
17. Rights of Third Parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
18. SERVICE LEVEL AGREEMENT
(a) The Supplier shall ensure the Services are available to the Client at all times and guarantees the availability time to be not less than 99.9%. This figure excludes planned maintenance which the Supplier will make the Client aware of not less than 7 days in advance.
(b) The Supplier will from time-to-time be required to replace, repair or upgrade the Services which are provided to the Client. In any such event the Supplier shall provide at least 7 days notice and the estimated time the Services will be unavailable.
(c) If The Supplier is unable to provide a 99.9% SLA within any one calendar month, it will credit the Client 50% of the fee paid for the period of the outage following a claim made by the client within seven days of the failed SLA.