Terms of Service
WEBSITE HOSTING TERMS AND CONDITIONS OF DMS Web Services Ltd
Version 1.0: Issued 28/02/2017
This agreement is made between the supplier DMS Web Services of International House, 12 Constance Street, London, United Kingdom, E16 2DQ and any client raising an order to host website or services with “The Supplier”
1.1 In this Agreement the following words and expressions shall have the following meanings:
1.1.1 “Downtime” means any service interruption in the availability to visitors of the Website;
1.1.2 “Intellectual property rights” means patents, trademarks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, whether registrable or not in any country;
1.1.3 “IP address” stands for internet protocol address which is the numeric address for the server;
1.1.4 “ISP” stands for internet service provider;
1.1.5 “Server” means the computer server equipment operated by the Supplier in connection with the provision of the Services;
1.1.6 “The Services” means web hosting, email and any other services or facilities provided by the Supplier as outlined in Schedule 1 to this Agreement;
1.1.7 “Spam” means sending unsolicited and/or bulk emails;
1.1.8 “Virus” means a computer programme that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user’s files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as “worms” or “Trojan horses”;
1.1.9 “Visitor” means a third party who has accessed the Website;
1.1.10 “the Website” means the customer’s website, which is hosted by the Supplier.
1.2 The Schedules form part of the operative provisions of this Agreement and references to this Agreement shall, unless the context otherwise requires, include references to the Schedules.
1.3 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.4 The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
2.1 The Customer wishes to provide the Supplier with data that will be hosted on the Supplier’s servers and made accessible via the Internet.
2.2 The Supplier provides web hosting services and has agreed to host the Customer’s data upon the following terms and conditions.
3.1 The Supplier shall provide to the Customer the Services specified in Schedule 1 to this Agreement subject to the following terms and conditions.
3.2 The Customer shall deliver to the Supplier the Website and the software used in the Website which is owned by the Customer, or licensed to him by a third party or the Supplier (“the Customer Software), in a format specified by the Supplier.
CHARGES AND PAYMENT
4.1 The Customer shall pay the Charges for the Services in accordance with the Terms of Payment as specified in Schedule 2 to this Agreement.
4.2 Invoiced amounts shall be due and payable within the stated number of days on the Supplier’s invoice. Time for payment shall be of the essence in relation to these Terms and Conditions. The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date of payment at a rate of 20% of the total invoice or minimum of £2.50. The Supplier may claim interest and costs under the Late Payment of Commercial Debts (Interest) Act 1998. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to allow payment, the Customer shall be responsible for issuing such purchase order before the Services are rendered and no payment terms shall be extended as a result of the Customer’s failure to supply such purchase order.
4.3 For services such as SSL and domain provision, we reserve the right to automatically renew the service with our supplier(s) to ensure we can maintain the service without interruption.
4.4 Payments can be made via Credit or Debit Card. Where prior agreed BACS may also be accepted.
4.5 The Customer understands that an annual package comes with 2 months free. Should they wish to switch to a monthly package then the two months will be billable over the course of the next 12 months.
5.1 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 in its sole discretion to change or remove any and all IP addresses.
5.2 Where the Supplier changes or removes any IP address it shall use its reasonable endeavors to avoid any disruption to the Customer.
SOFTWARE LICENCE AND RIGHTS
6.1 If the Customer requires use of software owned by or licensed to the Supplier (“the Supplier’s software”) in order to use the Services, the Supplier grants to the Customer and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use the Supplier Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Customer any right, title, interest or intellectual property rights in the Supplier Software.
6.2 In relation to the Supplier’s obligations under this Agreement in connection with the provision of the Services, the Customer grants to the Supplier a royalty-free, world-wide, non-exclusive licence to use the Customer Software and all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the Website (“the Content”). For the avoidance of doubt, this Agreement does not transfer or grant to the Supplier any right, title, interest or intellectual property rights in the Customer Software or the Content.
6.3 The Customer undertakes that he will not himself or through any third party, sell, lease, license or sublicense the Supplier Software. If the Customer is permitted under this Agreement or by law to make any copies of the Supplier Software, the Customer must reproduce all proprietary notices of the Supplier, if any, on the copies.
6.4 The Supplier may make such copies of the Customer Content as may be necessary to perform its obligations under this Agreement, including backup copies of the Content. Upon termination or expiration of this Agreement, the Supplier shall destroy or deliver to the Customer all such copies of the Content and other materials provided by the Customer as and when requested by the Customer.
6.5 In order for the supplier to provide a domain name ending in “.uk”, the Nominet terms and conditions must be met. These can be found from Nominets terms and conditions page at: https://www.nominet.uk/resources/policy/policies-rules/. The supplier reserves the right to withdraw provision of a domain (including public access to a website and/or e-mail) without notice if requested to do so by Nominet.
7.1 The Supplier shall use its reasonable endeavours to make the server and the Services available to the Customer 99.50% of the time but because the Services are provided by means of computer and telecommunications systems, the Supplier makes no warranties or representations that the Service will be uninterrupted or error-free and the Supplier shall not, in any event, be liable for interruptions of Service or downtime of the server.
ACCEPTABLE USE POLICY
8.1 The Website and use of the Services may be used for lawful purposes only and the Customer may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Customer agrees not to:
8.1.1 Use the Services or the Website in any way to send unsolicited commercial email or “spam”, or any similar abuse of the Services;
8.1.2 Send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities;
8.1.3 Publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights, via the Services or on the Website;
8.1.4 Threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
8.1.5 Engage in illegal or unlawful activities through the Services or via the Website;
8.1.6 Make available or upload files to the Website or to the Services that the Customer knows contain a virus, worm, trojan or corrupt data; or
8.1.7 Obtain or attempt to obtain access, through whatever means, to areas of the Supplier’s network or the Services which are identified as restricted or confidential.
8.2 The Customer has full responsibility for the content of the Website. For the avoidance of doubt, the Supplier is not obliged to monitor, and will have no liability for, the content of any communications transmitted by virtue of the Services.
8.3 If the Customer fails to comply with the Acceptable Use Policy outlined in Clause 8.1 the Supplier shall be entitled to withdraw the Services and terminate the Customer’s account.
ALTERATIONS AND UPDATES
9.1 All alterations and updates to the Website shall be made by contacting the host support team at Head Office.
10.1 The Customer warrants and represents to the Supplier that the Supplier’s use of the Content or the Customer Software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Customer has the authority to license the Content and the Customer Software to the Supplier as set out in Clause 6.2.
10.2 All conditions, terms, representations and warranties that are not expressly stated in this Agreement, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, the Supplier shall not be liable to the Customer as a result of any viruses introduced or passed on to the Customer.
11.1 The Customer agrees to indemnify and hold the Supplier and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against the Supplier arising out of any breach by the Customer of the terms of this Agreement or other liabilities arising out of or relating to the Website.
LIMITATION OF LIABILITY
12.1 Nothing in these terms and conditions shall exclude or limit the Supplier’s liability for death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or subcontractors.
12.2 The entire liability of the Supplier to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
12.3 In no event shall the Supplier be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Customer incurring such a loss.
TERM AND TERMINATION
13.1 This Agreement will become effective on the date on the purchase order and shall continue for a period of not less than 12 months and thereafter shall continue until terminated by either party by giving at least 1 months’ notice in writing of its intention to terminate the Agreement, with no termination earlier than the initial period. Termination will occur at the end of the month following notification of termination.
13.2 The Supplier shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due.
13.3 Either party may terminate this Agreement forthwith by notice in writing to the other if:
13.3.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
13.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
13.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
13.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
13.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
14.1 The Supplier may assign or otherwise transfer this Agreement at any time.
14.2 The Customer may not assign or otherwise transfer this Agreement or any part of it without the Supplier’s prior written consent.
14.3 In the event of circumstances described in 14.4, the client may express it dissatisfaction at the level of service and provide the supplier with one months’ notice to improve the service, if this does not occur the service can be terminated at the end of the current calendar month;
14.4 The issues which can instigate point 14.3 are:
14.4.1 The quality of the service deteriorates significantly;
14.4.2 The supplier fails to meet its response time more than three times in a 12 month period;
14.4.3 Failure to attend to issues, following a service review by the client, within a reasonable time (determined depending on the priority/impact of the issue);
15.1 Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
16.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
17.1 Any notice to be given by either party to the other must be sent by email which can be found on the suppliers website and the customers user details.
18.1 This Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
20.1 Any dispute between the parties arising out of or in connection with these Terms and Conditions (other than in relation to the payment of any money) shall in the first instance be referred to a project manager of each party for resolution. The parties agree to work together in good faith to reach an agreed settlement of any such dispute.
20.2 If within 14 days of the meeting of the project managers pursuant to Clause 20.1 the dispute has not been resolved, the parties agree to submit the dispute to a director of each of the Supplier and the Customer each of which shall have authority to settle such dispute on behalf of the Customer. The parties shall meet within 7 days of the reference to them of any dispute and shall work together in good faith to resolve the dispute. The dispute resolution meeting will occur via an online meeting.
20.3 If within 14 days after a reference under Clause 20.2 the dispute has not been resolved, the dispute may be referred, by either party, to an expert to be agreed in writing between the parties or in default of such agreement to such expert as shall be nominated at the request of either party by the President of the British Computer Society at the time of the application in accordance with and subject to the provisions of the Arbitration Act 1950. The costs, charges and expenses incurred in respect of such arbitration including the legal costs of each of the parties will be at the discretion of the arbitrator.
KEYTERMS – DOMAIN REGISTRATION, RENEWAL, AND CANCELLATION OF .UK DOMAINS
21.1 In order to register for a domain ending in .uk, you agree to abide by the terms and conditions of the UK domain registrar, Nominet. Details can be found on their website, at http://www.nominet.uk/.
21.2 All domains are renewed on an annual basis, DMS Web Services Ltd will send out an e-mail confirmation 60 days prior to your domain name expiring to the billing contact e-mail address registered with DMS Web Services Ltd. It is the registrant’s responsibility to make sure their contact details are up to date. If you do not wish to renew a domain please make sure you contact us a minimum of 35 days before your domain expires by e-mailing or phoning us. Unless requests to the contrary are received, all domains are renewed automatically approximately 30 days before the domain name expires.
21.3 If you request that you no longer wish to have your domain name renewed by us, it will be left to expire and may no longer function correctly. Your domain name will then go into a 30 day protected period. After 30 days, your domain will be suspended by Nominet and it will go into a 60 day grace period. If you change your mind and still wanted to retain your domain name, you can still renew at the original renewal price. This must be requested by email before the 80th day after your domain has expired. After 90 days, your domain will be cancelled and deleted from the register and made available for resale through a third party registrar by Nominet. DMS Web Services Ltd will not guarantee the renewal of a domain name after this happens.
21.4 If you no longer wish to carry on hosting your domain with DMS Web Services Ltd, please email us no less than 30 days before your services are due to be renewed. DMS Web Services Ltd will not charge you for transferring a domain(s) away to another registrar’s tag, but your account with DMS Web Services Ltd may need to be cleared. The customer acknowledges that termination of the agreement for any reason will result in ceasing to provide the applicable services, with the consequences that flow from such cessation, including (but not limited to), deletion of data .e.g. hosting account(s), website pages, images, product information, and e-mail boxes.
22.1 By ordering any of the services offered by the supplier you enter automatic agreement of the Terms of Service outlined above.
22.2 Placing an order is an automatic agreement to abide to the Terms of Service above.