legal - terms & conditions
terms & conditions
The following terms of business apply to any or all of the domain name registration, dedicated server hosting, virtual server hosting, cloud hosting, email, colocation and managed services (together "Services" and individually "Service") to be provided by FirstServ to you from time to time.
DEFINITION OF TERMS
"Server" means the computer server equipment made available by us in connection with the provision of the Services. "Web Site" means the area on the Server allocated by us to you for use by you as a site on the Internet. "Dedicated Server" means the server operated that is provided for your sole use. “Virtual Server” and “Cloud Hosting” means the space on the server operated that is provisioned for your sole use. “Streaming server” means the computer used in the provision of online delivery of video and/or audio. "Colocation” is the service whereby we provide the location and connectivity for your server.
We specifically exclude any warranty as to the accuracy or quality of information received by any person via the Server and in no event will we be liable for any loss or damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any loss or damage to data stored on the Server and you must ensure that you have taken out adequate all-risks insurance for any collocated equipment.
You warrant to us that you will only use your assigned Web Server for lawful purposes. In particular, you further warrant and undertake to us that: You will not, nor will you authorise or permit any other party to, use the Server in violation of any law or regulation; you will not knowingly or recklessly post, link to or transmit: Any material that is unlawful, threatening, abusive, harmful, malicious, libellous, defamatory, obscene, pornographic, profane or otherwise objectionable in any way; or any material containing a virus or other hostile computer program; You will not post, link to or transmit any material that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person, firm or company under the laws of any jurisdiction; You will conform to the standards made available by us from time to time and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other customers.
You are responsible for sending mail in accordance with any relevant legislation (including data protection legislation) and for sending the same in a secure manner. Where applicable, will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or misrouting or any other failure of email.
You will keep secure any identification, password and other confidential information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information.
Whilst we shall use reasonable endeavours to ensure the integrity and security of the network, we do not guarantee that the Server will be free from unauthorised users or hackers. All costs related to the securing of servers shall be borne by you.
DOMAIN NAME REGISTRATION
We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
The registration of the domain name and its ongoing use is subject to the relevant naming authority's terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by you to us shall be non-refundable in any event.
We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.
We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server and related services beyond the provisions specified in the Service Level Agreement supplied with our contract.
INTELLECTUAL PROPERTY RIGHTS AND OTHER CONSENTS
You are solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisations in respect of the Services, including without limitation, clearance and/or consents in respect of your proposed domain name and merchant services agreements between you and the relevant banks in respect of your operation of an Online Store.
You agree to indemnify and keep indemnified and hold us on demand harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Server, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in each case, in consequence of your breach or non-observance of these terms of business.
Unless otherwise agreed, in the event that the Client’s employees attend the datacenter during the course of your Agreement, the Client shall have comprehensive general liability insurance covering public liability, employer’s liability, professional indemnity, personal injury or death and property damage insurance with a combined single limit of at least £2 million. The Client shall also maintain insurance covering Goods leased or owned by the Client against loss or physical damage whilst at FirstServ Ltd premises. The Client shall, as and when requested, provide FirstServ Ltd with such evidence as it may require in relation to the Client’s insurance.
Client warrants and represents that it has all necessary right, title and interest in the Content, and that it has obtained all consents, licenses, permissions and releases necessary to grant FirstServ Ltd the right to distribute the Content.
The Client shall comply at all times with all applicable laws and regulations including but not limited to any relevant UK Data Protection legislation and with FirstServ Ltd’s Acceptable Use Policy as may be in effect from time to time.
TERMINATION AND DURATION OF CONTRACTS
We may terminate your agreement if you fail to pay any sums due to us as they fall due.
We may suspend your agreement if you post any material that is considered to be illegal, critical of our services or you offer to resell any of our services in direct competition to us without FirstServ reseller accreditation.
We may terminate your agreement upon written notice if you breach any of these terms and conditions and you fail to correct the breach within 14 days following written notice from us specifying the breach, or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.
On termination of the agreement we shall be entitled immediately to block your Server and to remove all data located on it. We will hold such data for a period of 30 days and allow you to collect it at your expense, failing which we shall be entitled to delete all such data. At the Client’s request, we will copy such data to standard DVD-R Disks and make this available for the Client to collect after 7 Days following termination of the agreement at no cost to the client. However we make no guarantees or warranties with regards to the integrity of all such data.
Unless otherwise agreed, the minimum duration of all contracts is 12 months, all renewals (including auto-renewals) and upgrades are for a minimum term of 12 months from renewal date and/or upgrade date. In the event that the client continues to use any FirstServ Ltd service after the expiration of a contract, it will be deemed that the client has entered into a new annual contract at the existing rates and terms.
In the event that The Client were to terminate this 12 Month contract due to any reason during the term, no sum would be repaid to the client and the balance of any monies being owed on an annual contract must be paid to FirstServ Ltd. In the event that FirstServ Ltd were to terminate the contract, except in the case of an un-remedied breach of our terms and conditions (or in the event of default by FirstServ), FirstServ, would return the full balance of any unused service period charges.
CHARGES & PAYMENT
All charges payable by you to us for the Services are fixed in accordance with this agreement and are exclusive of Value Added Tax which shall be paid by you at the rate and in the manner for the time being prescribed by law and shall be due and payable within the time specified but not more than thirty 30 days of receipt of our invoice thereof.
The provision by us of the Services is contingent upon our having received payment in full from you in respect of the relevant Services. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, forthwith and at our sole discretion, to suspend the provision of Services to you. FirstServ reserves the right to exercise a lien over the Client’s collocated Equipment in respect of any unpaid Fees beyond the termination date and shall be entitled to sell the Equipment if it remains on the Premises after the expiry of 2 months from the termination date in order to recoup any unpaid Fees.
If any payment or part thereof which is properly due and owing is in arrears for more than 30 days of invoice date then FirstServ Ltd shall be entitled to charge interest on a daily basis on the amount outstanding at the rate of 4% per annum above the base rate of Natwest Bank Plc from the date of the invoice until receipt of payment, without prejudice to any other rights of FirstServ Ltd.
Prices for Goods and/or the Service are stated exclusive of VAT which shall be additionally payable by the Client and the Client shall pay any additional or substitute taxes or charges imposed by any competent authority from time to time. Unless otherwise agreed by the parties in writing, the charges for technical support and consultancy assume that such services will be performed between the hours of 9am and 6pm Monday to Friday inclusive (excluding public holidays). In the event that such services are performed outside these hours upon the Client’s request then such services shall be subject to additional charges in accordance with FirstServ Ltd standard charges to be updated from time to time. FirstServ Ltd may provide additional services (Subject to Availability), upon request and if appropriate resources are available at FirstServ Ltd’s standard rates to be updated from time to time.
FirstServ Ltd shall be entitled to increase charges for the Goods and/or Service every 12 months starting after the Commencement Date of your Agreement by the percentage increase in the Retail Price Index (All Items) (as published by the Department of Employment) (or any replacement index) in the previous twelve months.
LIMITATION OF LIABILITY
We hereby exclude all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Services supplied under this agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose. Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising. In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
RESELLER TERMS & CONDITIONS
If you are or become a reseller of our Services you must ensure that you continue to comply with these terms and conditions by making your customers bound to no less comprehensive and protective terms and conditions than these. You agree that in your capacity as reseller of our services you will not incur any liability on our part or in any way pledge or purport to pledge our credit or purport to make any contract binding on us.
We do not accept the liability or default of your own customers as affecting or limiting your obligations under this agreement and we suggest that you require your customers to sign a form of this agreement.
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
These terms and conditions shall be governed by and construed in accordance with English law and you hereby submit to the exclusive jurisdiction of the English Courts.
These terms and conditions together with any document expressly referred to in them, contain the entire agreement between us relating to the subject matter covered and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions.
You confirm that, in agreeing to these terms and conditions, you have not relied on any representation save insofar as the same has expressly in these terms and conditions been made a representation and you agree that you shall have no remedy in respect of any misrepresentation (other than a fraudulent misrepresentation) which has not become a term of this agreement.