Ambleton Computing Term of Service Agreement

TERMS OF SERVICE AGREEMENT BETWEEN AMBLETON COMPUTING LTD (the "Company") trading as "Ambleton Web Hosting Services", of 261 Southcroft Road, London, SW16 6QT; and
("the Customer")
This Agreement sets out the terms and conditions under which the Company will provide and the Customer will receive the Services (as defined below) details of which are set out in the Service Order Form of even date which has been accepted by the Customer and accepted by the Company. This Agreement should be read in conjunction with the Acceptable Use Policy and Privacy Statement.

1. Definitions

In this Agreement the following words and expressions shall have the following meanings :
"Acceptable Use Policy" means the rules for hosting which can be found at http://www.easyinternetsolutions.co.uk/legal/aup.php
"Privacy Policy" means the manner in which the Company uses, maintains and discloses information collected from customers and users of our websites which can be found at http://www.easyinternetsolutions.co.uk/legal/privacy.php
"Fees" means all fees payable by the Customer to the Company for the Services as set out in the Service Order Form
"Initial Term" means the minimum term for which the Company will provide the Services
"One Time Install Fee" means the one off charge made by the Company as set out on the Service Order Form or as otherwise agreed in writing between the parties
"Professional Services" means any non-standard professional consulting or support services provided by the Company to the Customer
"Company Rules and Regulations" means without limitation this Agreement, and the Acceptable Use Policy.
"Company Technology" means the Company's proprietary technology including without limitation the Services, software tools, hardware designs algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects, database rights, trademarks registered or unregistered and documentation (both printed and electronic) network designs know-how trade secrets and any related intellectual property rights throughout the world (whether owned by the Company or licensed to the Company from a third party) and also including any derivatives improvements enhancements or extensions of the Company Technology conceived reduced to practice or developed during the term of this Agreement by either party
"Packages" means the different packages offered by the Company for the provision of the Services.
"Renewal Term" means any term following the Initial Term
"Servers" means the servers to which the Customer shall send and receive to and from information
"Service Order Form" shall mean the online order form which has been accepted by the Customer specifying inter alia the Services to be provided by the Company and which is to be read in conjunction with the terms herein
"Services" means the standard services, Professional Services and Supplemental Services provided by the Company to the Customer as set out in the Service Order Form
"Service Commencement Date" means the date on which the Company will commence providing the Services to the Customer being the date the Company generates an e-mail to the Customer which includes the information required to allow the Customer to send and receive information to and from the Servers
"Supplemental Fees" means all fees payable by the Customer to Company in respect of Supplemental Services, Professional Services including without limitation reinstatement of service fees, fees for switching or upgrading services and/or packages and additional bandwidth fees which fees shall be in accordance with the Company's then current prices and pricing policy.
"Supplemental Services" means the provision of certain limited services and equipment needed by the Customer on a "one-off" or emergency basis where such services are not included within the scope of the Services as set out in the Service Order Form. A non-exhaustable list of supplemental services and fees can be found at http://www.easyinternetsolutions.co.uk/legal/supplementalfees.php.

2. Acceptance and Delivery

This Agreement shall be entered into by the parties once the Customer has accepted and agreed the Service Order Form and accepted by an authorised representative of the Company, by email, contingent only upon credit approval of the Customer being obtained by the Company. Communication of this acceptance will be given to the Customer by the Company generating an e-mail to the Customer which includes the information required to allow the Customer to send and receive information to and from its servers. For the avoidance of doubt by accepting and confirming the Service Order Form, the Customer agrees to be bound by the terms and conditions set out in this Agreement.

3. Fees and Provision of Services

3.1 The Customer hereby authorises the Company to perform the Services throughout both the Initial Term and any Renewal Term and agrees to pay the Fees for the same.

3.2 The Customer hereby agrees to pay the Supplemental Fees for the Supplemental Services throughout both the Initial Term and any Renewal Term.

3.3 The Company shall use all reasonable endeavours to provide the Services to the Customer.

3.4 The Company reserves the right to control, direct and establish technical procedures for the use of the Services and the Customer agrees to follow the reasonable instructions and procedures of the Company with respect to the use of the same, Company also reserves the right to make operational changes to the Services and URL's.

3.5 The Company shall use reasonable endeavours to maintain a 24 hour Internet presence for the Customer's website but cannot guarantee continuous, uninterrupted use especially where the Company must carry out routine maintenance, repairs, reconfigurations or upgrades or in circumstances beyond its control including force majeure.

3.6 The Company reserves the right but does not assume the obligation to monitor, intercept and delete any content belonging to the Customer or user's of the Customer's website for the purposes of ensuring that the Service's are at all times used for lawful purposes.

3.7 The Customer shall be responsible for obtaining and maintaining their own compatible computer system being all such equipment, software and communications lines, including any public lines required by the Customer properly to access the Customer's website. The Company has no responsibility for or liability with respect to any equipment belonging to the Customer.

3.7 The Services are provided subject to the condition that there will be no abuse or fraudulent use of the same.

4. Term

4.1 The Initial Term of this Agreement will commence on the Service Commencement Date and will be dependant on the Package chosen.

4.2 Upon the expiration of the Initial Term the terms and conditions of this Agreement shall be automatically extended until either party gives to the other not less than 14 days notice of termination in writing via either http://www.diyhost.co.uk/orders/clogin.php, a signed letter headed fax to the company (including your account password) or a signed letter headed postal letter to the company (including your account password) - or the Company otherwise terminates the agreement in accordance with the terms herein.

4.3 Termination by the Customer of any particular Service will not affect the Customer's obligation to pay for the remaining Services.

5. Payment Terms

5.1 Payment for the Services and any Supplemental Services shall become due on acceptance of the Service Order Form. Payment shall be made online using the Company's online payment system. Subsequent payments are due on the anniversary date of the billing cycle for the forthcoming period. If you select to pay by "Paypal" (an eBay company) services, then these services will automatically attempt to rebill you on the anniversary date. Payments made via cheques, postal orders or similiar methods of "mail in payments" must be for annual amounts of the hosting fees.

5.3 Invoices with respect to payments of all monthly, quarterly, or yearly recurring charges and in respect of all Supplemental Fees are available upon request.

5.4 All payments will be made by the Customer to the Company in £ (sterling) as agreed in writing between the parties at the exchange rate prevailing at the date of the invoice.

5.5 The Company reserves the right to vary the Fees and Supplemental Fees and/or amend its payment terms by giving notice to the Customer by email.

5.6 The Customer hereby agrees to indemnify the Company in respect of all costs charges expenses and professional fees incurred by the Company in exercising any of its rights under this Agreement in respect of any default or other breach by the Customer.

5.7 Where applicable the Company will charge to the Customer Value Added Tax at the prevailing rate and all other relevant taxes levied in respect of this Agreement, the Services, and/or Supplemental Services.

5.8 No refunds shall be due unless agreed in writing with the Company.

6. Ownership of Intellectual Property and Grant of Licence

6.1 The parties hereby agree that this Agreement shall not transfer from the Company to the Customer any Company Technology and all rights title and interest in and to Company Technology will remain solely with the Company. The Customer agrees and acknowledges that it will not at any time during the Initial Term or Renewal Term or at anytime thereafter directly or indirectly reverse engineer decompile disassemble or otherwise attempt to derive source code or other trade secrets from the Company and/or its Third Party Vendors (as defined in this Agreement).

6.2 The Customer hereby grants to the Company a non-exclusive worldwide and royalty free licence for the Initial Term and for however long this Agreement shall continue thereafter to edit modify adapt translate exhibit publish transmit participate in the transfer of reproduce create derivative works from distribute perform display and otherwise use the Customer's content as necessary for the purposes of rendering and operating the Services and Supplemental Services to the Customer under this Agreement.

7. Warranties

7.1 Unless specifically advised to the contrary on the Service Order Form, the Company will provide access to a Server to the Customer within 24 hours or within the time limit as otherwise agreed in writing between the parties of the Service Commencement Date. The Company shall be deemed to have provided such Server access upon generating an e-mail to the Customer which includes the information to allow the Customer to send and receive information to and from such Server.

7.2 The warranty referred to in clause 7.1 above shall be null and void if the Customer fails to follow the Company's Rules and Regulations or otherwise breaches this Agreement in any way.

7.3 The Customer agrees and acknowledges that the Company Technology used in the provision of the Services in general is not error-free and agrees that the existence of such errors shall not constitute a breach of this Agreement by the Company. In the event that the Customer discovers a material error which substantially affects the Customer's use of the Services and notifies the Company of the error. The Company shall use all reasonable endeavours to correct by patch or new release (at its option) that the part of the Services.

7.4 Although the Company does not warrant that the Services or the Company Technology used in the provision of the Services will be free from all known viruses it has used all reasonable endeavours to check for the presence of viruses using the latest virus checking software.

7. Except for the express warranties set out in this Agreement all other warranties with respect to the Services and the Company Technology either express or implied including but not limited to any implied warranties or merchantability or fitness for any particular purpose are excluded.

8. Disclaimer

8.1 The Parties hereby agree that the Company does not monitor or exercise control over the content of the information transmitted over its facilities. Use of the Services or any information that may be obtained from the Services is specifically at the Customer's own risk. Except as provided for in clause 7.1 and save as provided for by statute, the Company does not give to the Customer any other express and/or implied warranties including but not limited to warranties relating to satisfactory quality fitness for a particular purpose or infringement of title warranties arising from a course of dealing usage or trade practice or that the Services will be uninterrupted error free or completely secure.

8.2 The Parties hereby further agree that the Company does not and cannot control the flow of information to or from the Company's own network and other portions of the Internet. Such flow depends on the performance of Internet services provided or controlled by third parties outside the control of the Company whose actions or failures may impair or disrupt the Customer's connections to the Internet or parts thereof.

8.3 The Customer agrees that the disclaimers in clauses 8.1 and 8.2 are fair and reasonable and accepts to be bound by the same.

9. Customer's Obligations

9.1 The Customer represents and warrants to the Company that where applicable he or she is at least 18 years of age and has the necessary authority to enter into this Agreement and carry out the various obligations and use of the Services and Supplemental Services required by the Customer under this Agreement.

9.2 The Customer undertakes that it shall at all times ensure that:

9.2.1 the Customer's content and material in the Customer's files, e-mails and postings to ensure that none of the content is defamatory, illegal, obscene, infringes any third party's intellectual property rights or otherwise would bring the Company's name into disrepute or breaches any laws, regulations or codes applicable to this Agreement. In the event of any breach or purported breach, the Company will be entitled to permit any law enforcement or other relevant authority to inspect the same;

9.2.2 at all time that it's use of the Services is in accordance with all applicable data protection and other laws, licences, codes of practice and regulations;

9.2.3 it does not to send any messages, e-mail or other communication which under any applicable law, international convention, code or regulation applicable to the Internet;

9.2.3 it does not carry out or engage in activities on its website which may:

9.2.3.1 be in breach of applicable laws, codes or regulations (including without limitation infringement of copyright and other intellectual property rights)

9.2.3.2 cause defamation;

9.2.3.3 involve theft, fraud, drug-trafficking, money-laundering and/or terrorism;

9.2.3.4 may incite violence, sadism, cruelty or racial hatred

9.2.3.5 may facilitate prostitution or paedophilia; and

9.2.3.6 be pornographic, obscene, indecent, abusive, offensive or menacing.

9.2.4 it does not create or introduce intentionally or knowingly into the Service any virus, worm, trojan horse, cancelbolt or other destructive or contaminating program or advise any other party how to do so.

9.2.5 it uses an up to date virus-scanning program on all material downloaded from the Services.

9.2.6 it does not to interfere with or breach the privacy of other users of the Services or the Internet in general, including sending unsolicited e-mails ("spamming") nor to collect or transfer personal data on individuals without their consent.

9.2.7 it maintains confidentiality of its login names, passwords and other confidential information relating to the Customer's access to the Services (for the avoidance of doubt the Company shall not be responsible for maintaining such confidentiality).

9.2.8 it does not to tamper with routing and domain name services in order to "spoof" other computer networks and users.

9.2.9 when it gives any payment or credit card information via the Services, to ensure that the same is accurate, complete and up-to-date and the Customer has the authority to give such information.

9.3 The Customer further warrants that it will not violate any applicable laws regulations or cause a breach of any agreements between the Company and any third parties or unreasonably interfere with other Company customers' use of Company services. The Customer agrees that it will use the Services only for lawful purposes and in accordance with the terms of this Agreement.

9.4 The Customer agrees that at all times it will comply with the Company Rules and Regulations which shall be in force from time to time. The Company may change the Company Rules and Regulations by giving 15 days' notice of such change to the Customer by posting any amendments and alterations to the existing Company Rules and Regulations on the Company website at http://www.easyinternetsolutions.co.uk/legal/. Prior to entering into this Agreement the Customer acknowledges that it has read and understood and agrees to be bound by the current version of the Company Rules and Regulations. The Customer acknowledges that the Company Rules and Regulations contain certain restrictions on its and its users' online conduct (including prohibitions against unsolicited commercial e-mail). The Customer further agrees and acknowledges that the Company exercises no control over the content of the information passing through the Customer's website(s) and that it is the sole responsibility of the Customer to ensure that the information that it and its users transmit and receive complies with all applicable laws and regulations and the Company Rules and Regulations.

10. Limitation of Liability

10.1 The Company shall have no responsibility for and shall accept no liability in respect of the selection use and suitability of the Services and Company Technology by the Customer which shall be at the Customer's sole discretion.

10.2 The Company shall not be liable for any loss of data resulting from delays corruption of data non-deliveries mis-deliveries or service interruptions. Neither the Company nor its network services supplier(as used by the Company from time to time) shall be liable for any unauthorised access to the Company's or the Customer's transmission facilities or premise equipment or for any unauthorised access to or alteration theft or destruction of a Customer's data files programmes procedures or information through accident fraudulent means or devices or any other method provided that such damage does not occur as a result of the Company's or its Network Service Suppliers' default or negligence.

10.3 In no circumstances shall the Company be liable in contract tort (including negligence or breach of statutory duty) or otherwise howsoever caused for :

10.3.1 any increased costs or expenses;

10.3.2 any loss of profit business contracts revenues or anticipated savings; or

10.3.3 any special indirect or consequential damage of any nature whatsoever;

arising directly or indirectly out of the provision by the Company of the Services or Supplemental Services or of any error or defect therein or of the performance non-performance or delayed performance by the Company of this Agreement;

11. Third Parties

11.1 The Company may provide to the Customer access to other third party software and/or services ("Third Party Products") through re-seller relationships that the Company has established with such parties, including without limitation, Microsoft Corporation ("Third Party Vendors"). Unless otherwise notified, the Customer understands that product support for Third Party Products is not provided by the Company, unless otherwise specifically stated in writing.

11.2 The Company makes no representations and gives no warranties express or implied regarding any Third Party Products. The Customer expressly acknowledges and agrees that the use of Third Party Products is at the Customer's sole risk and the terms of the Company's disclaimer as set out in clauses 8.1 and 8.2 above shall specifically apply to all Third Party Products and Third Party Vendors.
11.3 The Customer shall be fully liable to Third Party Vendors and the Company with regard to any improper use of Third Party Products by the Customer or violation of licence agreements and or end user subscriber agreements entered into between the Customer and any Third Party Vendor.

12. Customer's Indemnity

12.1 The Customer agrees to indemnify and hold harmless the Company and all individuals or entities controlling controlled by or under common control with the Company and their respective officers directors professional advisers agents and employees against any losses costs expenses claims damages liabilities penalties actions proceedings or judgments which they may become subject to relating to or arising from:

12.1.1 the infringement or misappropriation or alleged infringement or misappropriation of any intellectual property right including without limitation copyrights trade secrets patents trademarks or other proprietary rights related to any hardware or software utilised by the Customer or otherwise in connection with any of the Services or Supplemental Services;

12.1.2 any breach or violation of or failure to comply with this Agreement or the Rules and Regulations or any other policies of the Company of which the Customer has been given notice;

12.1.3 any violation of any applicable law rule or regulation; and

12.1.4 any third party claims related to any content provided by the Customer or customers or clients of the Customer.

13. Termination

13.1 At the end of the Initial Term either party to this Agreement may terminate this Agreement without cause by giving to the other not less than 14 days' notice in writing to expire at the end of that period whereupon all Fees and Supplemental Fees due by the Customer up to and including the date of termination will become due and payable forthwith by the Customer to the Company. Notification of termination must be supplied in writing via a signed letter headed fax to the company (including your account password) or a signed letter headed postal letter to the company (including your account password).

13.2 The Company may by notice in writing immediately terminate this Agreement if the Customer shall:

13.2.1 breach this Agreement and in the case of a breach capable of being remedied shall not have remedied the same within 7 days of receipt of a notice from the Company identifying such breach and requiring its remedy; or

13.2.2 be unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the Company means that the Customer may be unable to pay its debts.

13.3 Termination of this Agreement for whatever reason shall be without prejudice to any rights or obligations which have accrued prior to termination.

13.4 On termination of this Agreement for any reason all information of a confidential nature documentation and items issued by the Company and in the possession of the Customer shall be promptly returned to the Company and the Customer shall further relinquish any internet protocol numbers addresses or address blocks assigned to the Customer by the Company or its network services suppliers but not the URL or top level domain connected with the same). The Company reserves in its sole discretion the right to change or remove any and all such internet protocol numbers addresses or address blocks.

13.5 In the event that this Agreement is terminated by the Company pursuant to clause 13.2 above then the Company shall have no obligation to provide the further Services or Supplemental Services to the Customer.

14. Force Majeure

14.1 The Company shall not be deemed to be in default of any provision of this Agreement or be liable for any delay failure of performance or interruption of the provision of the Services to the Customer resulting directly or indirectly from any weather conditions, natural disasters, labour disputes, lockouts, overtime bars, wars or other acts of God, action of any government or military authority, failure caused by hacking or a telecommunications provider or other internet service provider or other force or occurrence beyond the Company's reasonable control including without limitation mechanical electronic communications or third party supplier failures.

15. Relationship of Parties

15.1 None of the provisions of this Agreement shall be deemed to constitute a partnership between the parties and neither party shall be responsible for any act or omission of the other or have the right or authority to bind the other in any way.

15.2 Nothing in this Agreement shall confer any rights on any person pursuant to the Contracts (Rights of Third Parties) Act 1999.

16. Governing Law

16.1 This Agreement shall be governed by and construed in accordance with English law.

16.2 Each of the parties to this Agreement irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the Courts of England.

17. Dispute Resolution

17.1 The Parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement promptly through negotiations between their representatives.

17.2 If the matter is not resolved through negotiation the parties will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution ("ADR") procedure.

17.3 The performance of obligations under the Agreement shall not cease or be delayed by the application of an ADR procedure pursuant to clause 17.2 above.

17.4 If the matter has not been resolved by an ADR procedure within 2 months of the initiation of such procedure or if either Party will not participate in an ADR procedure the dispute shall be referred to the Courts of England in accordance with clause 16.2 above.

18. General

18.1 This Agreement together with the Service Order Form, the Company's Rules and Regulations, the Company's Acceptable Use Policy and the Company's Privacy Policy shall constitute the entire agreement and understanding between the parties in respect of the subject matter of this Agreement and supersedes any prior or contemporaneous agreement whether written or oral. Any changes modifications or amendments to this Agreement to be binding must be signed by an authorised officer of both parties. This Agreement does not supersede or terminate any non-disclosure or confidentiality agreement in existence between the parties

18.2 If any of the provisions of this Agreement are found to be void or unenforceable it shall be deemed to be deleted from this Agreement and the remaining provisions shall continue to apply. The parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision found to be void or unenforceable

18.3 The Customer may not sell assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the Company and any such attempted assignment or delegation without such consent will be void. The Company may assign this Agreement in whole or in part and may also delegate the performance of certain Services or Supplemental Services to third parties including the Company's wholly owned subsidiaries. This Agreement will bind and inure to the benefit of each party's successors and permitted assignees

18.4 Except as otherwise expressly provided within the Agreement no notice or other communication from one party to the other shall have any validity under the Agreement unless made in writing by or on behalf of the party concerned

18.5 Any notice or other communication which is to be given by the Company to the Customer shall be given by email. Any notice or other communications given by the Customer to the Company should be given by the online helpdesk provided. If the other party does not acknowledge receipt of such email, it shall be deemed to have been given 3 working days after the day on which the email was sent

18.6 The failure of either party to exercise any right or remedy shall not constitute a waiver of that right or remedy

18.7 No waiver shall be effective unless it is communicated to the other party in writing

18.8 A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Agreement

18.9 The Customer agrees that throughout the duration of this Agreement and for a period of 1 calendar year after its termination it will not and will further assure that its affiliates do not directly or indirectly solicit or attempt to solicit for employment any persons employed by the Company or contracted by the Company to provide Services or Supplemental Services to the Customer

18.10 All information, Company Technology, data, drawings, specifications, documentation, which the Company may have imparted and may from time to time impart to the Customer relating to the Services is proprietary and confidential. The Customer agrees and acknowledges that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of this Agreement, disclose the same, whether directly or indirectly, to any third party without the Company's prior written consent.

18.11 Clause 18.10 shall not prevent the disclosure or use by the Customer of any Information which is or through no fault of the Customer becomes public knowledge or to the extent permitted by law.

18.12 Each party gives the other its consent to publicise in a positive light only, the fact that the parties have a business relationship, but not to disclose the terms of this Agreement. For this purpose each party grants to the other a non-exclusive royalty free licence to use the logos and trademarks of the other party provided always that such use shall be for the purposes of publicising the relationship of the parties.

18.13 Under the terms of the Consumer Protection (Distance Selling) Regulations 2000, consumers have a "cooling off" period of 7 working days from the date the order is placed in which they may cancel orders placed by distance contract. Services and/or Supplemental Service shall be deemed to commence once Acceptance has occurred.

19. Uptime Guarantees: (applicable only to web hosting packages which include a money back uptime guarantee):
If, for some reason, your site is offline and this is not subject to:
1. your error (such as non-payment, excessive resource usage or breach of our terms and conditions),
2. maintenance work (announced and/or emergency work)
3. factors outside our control (such as unexpected hardware failure and routing issues outside our network)
4. or malicious activity (such as Denial Of Service 'DoS' attacks or customer error),

then we agree to issue (upon request) a pro-rated refund to you based on the actual amount of time offline.
For example: if the server is not serving web pages for 60 minutes then we reimburse you a maximum of 60 minutes worth of your payment to us.
Reimbursements, due to bank and transaction charges, cannot be issued for amounts less than £1 (one pound sterling). Downtime is monitored by a independent third party and is based on a MySQL driven HTML file being able to be retrieved from each server via normal HTTP protocols.