These are Datacenta's Terms & Conditions of service. If you have any questions please Contact Us.
THIS AGREEMENT is made BETWEEN 'Kimcell Ltd.' trading as 'Datacenta Secure Hosting' of Gild House 74 Norwich Avenue West Bournemouth BH2 6AW (the "Provider") and the Customer (" the Customer").
IT IS HEREBY AGREED as follows:
1 - Server Space:
The Provider shall for the Service Duration accommodate the computer server. The maximum space at the Provider's premises provided for this purpose shall be as in the Service Specification, but no rights of exclusive possession to such space shall be conferred upon the Customer.
The Provider at it sole discretion may provide additional space but in doing so it is not bound to continue to provide such additional space for the whole of the Service Duration.
2 - Access to the Internet:
The Provider shall for the Service Duration make the Server available for access from the Internet at the service levels in the Service Specification. The Provider shall not be obliged to make the Server available over the Internet in the event of any of the following:
i) Scheduled or emergency maintenance or improvement of the service by the Provider or its subcontractors or suppliers of its hardware or software: However the Provider
a) shall ensure that whenever possible any significant maintenance or improvement of the infrastructure on which the Server is located shall be undertaken during scheduled maintenance hours of 6am to 10am on Saturday,
b) reserves the right to carry out any emergency maintenance or improvement work at any time, giving to the Customer as much warning as reasonably possible;
ii) Force Majeure as defined in the FORCE MAJEURE clause;
iii) Default by the Customer in complying with the Customer's duties in this agreement;
iv) The Provider becoming aware of allegations of an infringement of the CONTENT clause, or the Provider reasonably suspecting that such an infringement has occurred: In such circumstances the Provider may, without giving notice to the Customer and without liability, suspend availability of the Server over the Internet pending clarification of such allegations or suspicion;
v) The Customer requesting a suspension of availability of the Server over the Internet
In the event of the Server becoming unavailable over the Internet based upon the Providers data for reasons other than as defined in 2b of this contract the Provider shall credit the Customer with the percentage of any charges payable for the Service in respect of that month for each hour or part hour of such unavailability.
In the event of the Server failing to respond to the Providers polling request as defined in the Service Specification, the Provider will notify the Customer of this event by an e-mail or an SMS message to the addresses and number given by the Customer.
The Provider at it sole discretion without giving notice to the Customer or without liability may restrict the access from the internet if the Provider considers excess or out of character volumes of traffic are being sent or delivered to the Server. The Provider will on approval from the Customer remove or adjust any such restrictions in accordance with the Customers instructions.
3 - Maintenance of the Server:
Except where the Customer requests the option of and the Provider agrees to provide a managed service the Provider shall not be responsible for such maintenance and other actions as are reasonably required to maintain the Server in full working order.
4 - Backup of the Server:
Except where the Customer requests the option of and the Provider agrees to provide a backup service the Provider shall not be responsible for maintaining back-up copies of the Customer's computer programs and data and the Customer hereby warrants that the Customer shall indemnify the Provider against any claim for losses howsoever arises from and as a result of the Customer not having kept up-to-date security copies.
5 - Insurance:
The Provider shall provide insurance against:
Any loss of or damage to the Customer's server due to fire or flood or theft whilst on the Provider's premises and within the Service Duration
Any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or breach of this Agreement by the Provider, its employees, agents or sub- contractors,
save that the liability of the Provider in respect of each event or series of connected events shall not (except in respect of any liability which cannot be excluded by law) exceed the price payable by the Customer under this agreement in respect of the service period in which the liability arises, the Provider agreeing to commit reasonable endeavours to allocating appropriate resources to the performance of its duties under this Agreement.
Notwithstanding anything else contained in this Agreement the Provider shall not be liable to the Customer for loss of profits or contracts, loss of goodwill or other special, indirect or consequential loss whether arising from negligence, breach of contract or howsoever.
The Provider shall not be liable to the Customer for any loss arising out of (and to the extent caused by) any failure by the Customer to keep full and up- to- date security copies of computer programs and data it uses and a full backup of the Server all in accordance with best computing practice.
6 - Guaranteed Bandwidth:
Except where the Customer requests the option of a Guaranteed Bandwidth the Provider shall not be responsible for providing any minimum level of bit transfer rate from the Net.
The Provider warrants that save as in 2(e) of this contract it will allow the Service to achieve burstable bit transfer rates as specified in the Service Specification.
7 - Traffic Throughput Guarantee:
The Provider shall allow the Server to transfer the Inclusive Traffic volumes as specified in the Service Specification in each calendar month.
Where the contracted Service Duration covers part of a calendar month then pro rata Inclusive Traffic volumes will be applied.
The Provider shall where possible give the Customer advance warning that it expects the Server to or has exceeded the Inclusive Traffic volumes.
8 - IP addresses:
The Provider shall loan the Customer a number of IP addresses as specified in the Service Specification. The IP address are for the exclusive use of the Customer for the Service Duration while the Server has accessibility from the Net as defined in 2 of this contract.
The Provider retains the right to change the allocated IP numbers, giving the Customer as much notice in writing as reasonably possible.
9 - Firewall:
The Provider shall place the Server behind a Firewall.
The Provider shall be responsible for maintaining the configuration and software build of the Firewall.
The Provider shall configure the Firewall rules as detailed in the Service Specification or as agreed with the Customer at the time the Service Order is signed.
The Provider shall charge the Customer for all changes to the Firewall during the Service Duration.
The Provider reserves the right to reject a Customer-requested rule change to the Firewall if it considers there to be a risk that the change may compromise the integrity of its own infrastructure or of Servers belonging to other Customers.
10 - Customer Access:
The Provider shall for the Service Duration, subject to Customer complying with the Customer's duties in this Agreement and subject to the Customer having given 24 hours notice, provide the Customer physical access to the Server between the Support Hours as defined in the Service Specification provided.
The Provider shall provide reasonable facilities including Keyboard, Screen and Mouse and other equipment that is necessary to enable the Customer to access their Server.
The Provider may at its sole discretion monitor and record the actions of the Customer and if in its own view considers the Customer to be in breach of the Customer's duties may remove the Customer from its premises.
The Provider shall for the Service Duration provide the Customer with secure remote access to the Server as defined in the Service Specification.
11 - Customer Contact:
The Customer during this Agreement shall keep the Provider supplied with: a list in writing of such authorised personnel of the Customer who shall alone, on behalf of the Customer, be responsible for managing all issues relating to the performance of this Agreement.
12 - Fees:
The Provider may alter the amount of the Fees or of any of its charges at any time after the initial Service Duration and shall notify the Customer in writing of any alteration (either increase or decrease) and such change shall take effect from the date specified in such notification which shall not be less than 30 days after the giving of such notice. The fees are not refundable, except where otherwise stated herein. Fees paid in advance at a discounted rate are also not refundable should the Customer terminate this Agreement before they have been fully used. Cheques and direct debits returned unpaid by the Customer's bank may incur an administration charge which in any event shall be paid by the Customer.
The Provider, in agreement with the Customer, may allow deferment or suspension of installation and setup Fees subject to the Customer's compliance with the minimum term of Service Duration and the commencement of the Service Duration within 30 days of signing the Providers Order.
13 - Provided Server:
The Customer shall provide the Provider with the Server and load it with such of the Customer's Material and information as the Provider shall reasonably require for it to perform its duties under this Agreement within 30 days of signing the Provider's Order.
The Customer shall warrant that the Server meets all applicable European safety standards.
a) shall be solely responsible for the accuracy, legality, and compliance with the relevant rules and regulations;
b) warrants that any material contained on the Server and contained in any discussion group, chat room or bulletin board which forms part of the Server will not be illegal, obscene, threatening, defamatory, discriminatory, promote illegal or unlawful activity, or be otherwise actionable or in violation of any rules, regulations or laws to which the Server is subject;
c) warrants that it has obtained all necessary consents, approvals and licences for the use of Third Party Property and the use of such Third Party Property will not violate any intellectual property rights belonging to any third party.
d) shall grant the Provider permission to operate on the Customer's behalf and use the licences so licensed to the Customer and not the Provider.
e) shall indemnify the Provider, save as provided herein, against any claims, proceedings, losses, liabilities, damages (including reasonable costs), charges and expenses of whatever nature arising out of or in connection with any claim or action made against the Provider relating to a breach of this clause.
f) shall be responsible for ensuring that the Servers are, and remain, virus-free.
14 - Payment:
The Customer shall pay the Provider 7 days in advance of the Service Duration the Fees as stated in the Customer Order or as notified in writing as per Clause 12 of this Agreement.
All charges are exclusive of Value Added Tax which shall additionally be paid by the Customer as prescribed by law.
If any sum payable under this Agreement is not paid within the payment period, then (without prejudice to the Provider's other rights and remedies) the Provider reserves the right to charge interest on such sum on a day-to-day basis (as well after as before any judgment) from the last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 2 per cent above the base rate of the Barclays PLC (or such other London Clearing Bank as the Provider may nominate in writing to the Customer) from time to time in force, compounded quarterly. The Customer shall pay such interest on demand.
In the case of a termination under the FORCE MAJEURE clause by the Provider, the Provider shall be entitled to receive from the Customer a reasonable sum in respect of any work carried out by the Provider prior to such termination and for that purpose the Provider may deduct such sum from any amounts previously paid by the Customer under this Agreement (whether paid by way of a deposit or otherwise) and shall have a lien over any of the Customer's Material or other property in the Provider's possession therefore.
15 - Assignment:
This agreement is personal to the Customer and accordingly the Customer may not assign, transfer or "sub-let" its rights under this Agreement or any part of the Service itself without the prior written consent of the Provider.
16 - Indemnity:
The Customer shall indemnify the Provider and keep the Provider fully and effectively indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or breach of this Agreement by the Customer, its employees, agents or sub- contractors.
17 - Confidentiality:
Each party shall treat as confidential all Confidential Information and shall not divulge such Confidential Information to any person without the other party's prior written consent and ensure that its employees comply with the provisions of this Clause, and these obligations as to confidentiality shall survive any termination or expiry of this Agreement.
However, either party may divulge such Confidential Information to such party's own employees who need to know it and if the Provider shall appoint any sub-contractor then the Provider may disclose Confidential Information to such sub- contractor, subject to such sub-contractor giving the Provider an undertaking in similar terms to the provisions of this Clause.
The Provider shall have the right to examine the use(s) to which the Server is put by the Customer and to disclose such use to third parties for legal or statutory purposes, in order to identify misuse or abuse of the Internet, or to ensure the smooth running of and identify faults in its network and the rest of the Internet.
"Confidential Information" means this Agreement and all information obtained by one party from the other pursuant to this Agreement which is expressly marked as confidential or which is manifestly confidential or which is confirmed in writing to be confidential within 7 days of its disclosure;
18 - Force Majeure:
A party (" the non- performing party") shall not be liable for any delay or interruption in performing its obligations (" the non- performance") in the circumstances set out below and the following provisions shall apply:
a) The said circumstances shall be that:
i) there is nothing to the contrary contained in this Agreement, and
ii) in respect of the Customer, the non- performance does not consist of non- payment, and
iii) the non- performance is caused by circumstances beyond the reasonable control of the non- performing party, including without limitation non- performance caused by any act or omission of the other party or a sub- contractor or supplier of the non- performing party, and
iv) subject to the non- performing party promptly notifying the other party in writing of the reasons for non- performance and its likely duration;
b) During the period that the non- performing party is not so liable:
i) the performance of the non- performing party's obligations shall be suspended and such party shall be granted an extension of time for performance equal to the period of the non- performance and any costs arising from such non- performance shall be borne by the party incurring the same; and
ii) both parties will in any event use all reasonable endeavours to mitigate the impact of any event of force majeure and to recommence performance of their obligations under this Agreement as soon as reasonably possible, and
c) Where the non- performance by the non- performing party is caused by the act or omission of the other party, the rights and remedies of the non- performing party and liabilities of the other party shall be those conferred and imposed by the other terms of this Agreement and by law.
19 - Term:
The term of this Agreement shall commence on the date of the signed Customer Order and continue for the Initial Service Duration set out in the Customer Order (subject to the right of earlier termination by the Provider under the clauses of this Agreement) and shall continue thereafter for the further Service Durations unless and until terminated by either party in accordance with the terms of this Agreement.
This Agreement shall be terminated forthwith
a) on one of the parties giving to the other party written notice to terminate:
i) if the other party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding- up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business, or
ii) if there is a non- performance under the FORCE MAJEURE clause in respect of which the non- performing party shall not be liable for the non- performance and it continues for more than the non- performance period in the Service Duration and the party who gives the notice has not caused by act or omission the non- performance, or
iii) if the other party is in material breach of the terms of this Agreement and, in the case of a breach capable of being remedied has failed to rectify such breach within 30 days of receiving a written notice requiring it to do so,
b)and any such termination shall subject to any provision in this agreement to the contrary, discharge the parties from any liability for further performance of this Agreement.
The Provider may terminate the Customer's access to the whole or any part of the services at any time by providing not less than the 30 days Notice and returning the unused portion of the Service fees.
The provider may terminate the Customer's access to the whole or any part of the service if the Customer fails to pay the Provider in accordance with the PAYMENT clause.
The Customer may terminate the Service by providing not less than 30 days notice, which notice may be given at any time but which may only take effect on or after the expiry of the active Service Duration.
Upon termination of this Agreement, however brought about, the Customer shall remain liable for all outstanding obligations and Fees.
The Customer shall within 7 days of termination of this Agreement, however brought about, at their own cost remove the Server from the Providers premises save that all fees are discharged. Servers not removed within 7 days will be placed in storage the cost of which must be discharged by the Customer before the Servers can be released. The Provider may without giving notice to the Customer and without liability dispose of the Server if it is not collected within 30 days of termination of this Agreement.
20 - Entire Agreement:
This Agreement and the Service Specification which forms part of it supersede all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof (save that neither party seeks to exclude liability for any fraudulent pre- contractual misrepresentation upon which the other party can be shown to have relied). The Headings to clauses in this agreement do not form part of the Agreement.
The Provider may modify the Agreement where it is required to do so. This would include where changes to the law, rules applied by Internet authorities and collaborative Internet bodies require the Provider to modify its procedures, policies or services.
No addition to or modification of any provision of this Agreement shall be binding upon the parties and of any effect unless made by a written instrument signed by a duly authorised representative of each of the parties.
21 - Waiver:
No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
22 - Law:
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
The Customer shall observe the requirements of the Data Protection Acts 1984 and 1998 regarding any personal data related to the Providers employees, customers and agents that comes into its possession and shall indemnify the Provider against any claims related to the Data Protection Acts which result from the negligence of the Customer or its employees
23 - Dispute Resolution:
Any dispute which may arise between the parties concerning this Agreement shall be determined as follows.
a) If the dispute shall be of a technical nature, then such dispute shall be referred for final settlement to an expert.
i) The expert shall be nominated jointly by the parties or, failing such nomination within 14 days after either party's request to the other therefor, nominated at the request of either party by the President from time to time of the British Computer Society.
ii) The expert shall be deemed to act as an expert and not an arbitrator.
iii) The expert's decision shall (in the absence of clerical or manifest error) be final and binding on the parties.
iv) The expert's fees for so acting shall be borne by the parties in equal shares unless the expert determines that the conduct of either party is such that such party should bear all of such fees.
b) In any other case, by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts for such purpose.
24 - Severability:
Notwithstanding that the whole or any part of any provision of this Agreement may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall remain in full force and effect.
25 - Third Party Rights:
The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply to this Agreement.
26 - Domains:
Kimcell Ltd's General Terms and Conditions regarding domains may be found within the following document:
Domain Terms and Conditions
Data Quality Policy
Nominet Terms and Conditions - Domain Name Registration