1. Glossary of Terms
We refers to Datalibrium, a Limited company with head offices Rivermead Drive, Westlea, Swindon, Wiltshire ,SN5 7EX. You (“you”, “your”, “Customer”) includes the person purchasing the services or any party acting on the customer’s instructions. Server means the computer server equipment operated by us in connection with the provision of the Services. In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement
The Client, where the Client an individual, or the person entering into this Agreement on behalf of the Client, where the Client is an entity, warrants that they are 18 years of age or older, and capable and authorised to enter into this Agreement.
Datalibrium is a provider of Information Technology and Datacentre management related services such as Network maintenance , hardware provision and IP transit services, and the Client may from time to time require such services. This Agreement sets out the terms which have been agreed between Datalibrium and the Client for the provision of such services and shall be supplemented from time to time by Schedules setting out specific details of such services requested by the Client.
Datalibrium reserves the right at its sole discretion to suspend the Services (temporarily or permanently) on the occurrence of any unscheduled maintenance or any of the following (each of the following shall be a “Suspension Events”): (i) Notified Maintenance; (ii) issue by any competent authority of an order which is binding on Datalibrium and which affects the Services and which can only be dealt with properly by suspension of the Services; (iii) if the Client fails to pay any amounts due under this Agreement when they are due; (iv) if any events occur which would entitle Datalibrium to terminate this Agreement; (v) the Bandwidth used by the Client in relation to the Services exceeds the agreed level and Datalibrium determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by Datalibrium from time to time.
2. Server Hosting And Email “Out of hours Support”
2.1 Our out of hours support services will only be valid for users who are the point of contact as stipulated by contract and provide an eligible username and password.
2.2 Out of hours support is designed to provide assistance in the event of a critical business process issue and does not provide cover for the same range of services covered during normal operating hours. Out of hours support is restricted to:
Changes to a servers physical or virtual hardware environment including changes to:
- Hard Disk Space
- IP Allocation
- Inserting and mounting media
And the machine state such as:
- Stopping of device
- Starting of device
- Restarting of device
2.3 Out of hours support can by agreement between parties at the point of diagnosis or by prior arrangement made during normal hours of support also include tasks that require administration of the device not available by remote services such as:
- Recovery of passwords
- Initiation of operating system recovery tools
- Restoration of “whole disk” server environments or “snapshots”
3. Server Hosting, Digital Communications and Applications
3.1 We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server.
3.2 You shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server.
3.3 You represent, undertake and warrant to us that you will use the Server allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that.
3.3.1 You will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorise or permit any other person to do so.
3.3.2 You will not post, link to or transmit:
(a) any material which is unlawful or actionably defamatory or an invasion of privacy, breach of an intellectual property right or breach of a right of publicity in any jurisdiction with which any publicly accessible service reasonably appears to have any connection or from which it may reasonably be apprehended that a publicly accessible service is likely to be significantly accessed; or
(b) to a publicly accessible service any material in breach of the Data Protection Act 1998 (UK) or similar legislation in any other country or of any material which is confidential or is a trade secret or which affects the national security of the United Kingdom or the said territory or which may expose Datalibrium to any retribution or penalty under the laws and/or regulations and/or decrees of the United Kingdom or any other country relating to the export of or dealing with military or potentially military resources; or
(c) any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
(d) commission of any criminal offence (including deliberate transmission of computer viruses) under the Computer Misuse Act 1990 (UK) or any similar legislation in any country
3.3.3 You will not send bulk email whether opt-in or otherwise from our network. Nor will you promote a site hosted on our network using bulk email.
3.4 We reserve the right to remove any material which we deem inappropriate from your Server without notice.
3.5 You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorised use of your account or breach of security, including loss, theft or unauthorised disclosure of your password or other security information.
3.6 You shall observe the procedures which we may from time to time prescribe and shall make no use of the Server which is detrimental to our other customers.
3.7 You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
3.8 While we will use every reasonable endeavour to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers and we shall be under no liability for non-receipt or misrouting of email or for any other failure of email.
3.9 You are responsibility to ensure that you are in possession of valid licences for all software used on any of your servers. You are required to report accurately and in a timely manner the number of licences you are making use of as defined within the terms of the Microsoft Service Provider License Agreement.
4. Service Availability
4.1 We shall use our reasonable endeavours to make available to you at all times the Server and the Services but we shall not, in any event, be liable for interruptions of Service or down-time of the Server.
4.2 We shall have the right to suspend the Services at any time and for any reason, generally without notice, but if such suspension lasts or is to last for more than 4 hours you will be notified of the reason.
4.3 The Services provided to you hereunder and your account with us cannot be transferred or used by anyone other than you. No more than one log-in session under any one account may be used at any time by you. If you have multiple accounts, you are limited to one login session per system account at any time; user programs may be run only during log-in sessions. If your account is found to have been transferred to another party, or shows other activity in breach of this sub clause, we shall have the right to cancel the account and terminate the Services and/or this Agreement immediately.
5. Service Payments
5.1 All payments must be in UK Pounds Sterling.
5.2 Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date agreed, we shall be entitled forthwith to suspend the provision of Services to you.
5.3 If an account goes unpaid for 10 working days, the account and its associated services are suspended.
5.4 Once an account has a suspended status, Access to files, databases and other content is explicitly denied.
5.5 Should access to files, databases and other content be required before they are deleted, account reactivation will be required.
Without prejudice to any other rights to which Datalibrium is entitled, Datalibrium may give notice in writing to the Client terminating this Agreement with immediate effect if:
6.1 the Client commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified of the breach;
6.2 an order is made or a resolution is passed for the winding up of the Client;
6.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the Client or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act (1986);
6.4 a receiver is appointed of any of the Client’s assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Client or if any other person takes possession of or sells the Client’s assets;
6.5 the Client makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
6.6 there is a change of the ability to direct the affairs of the Client whether by virtue of the ownership of shares, contract or otherwise of the Client; 7) the Client purports to assign its rights or obligations under this Agreement.
For the avoidance of doubt and without limitation, a breach of any of any of the payment provisions contained in this Agreement, or a breach of the Acceptable Use Policy is a material breach for the purposes of this Agreement
Refunds will be given only at the discretion of Datalibrium.
7.1 You shall indemnify us and keep us indemnified and hold us harmless from and against any breach by you of these terms of business and any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Services and the Server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by us in consequences of your breach or non-observance of this Agreement.
8. Limitation of Liability
Nothing in this Agreement shall exclude or limit Datalibrium Liability for (i) death or personal injury caused by Breach of Duty; (ii) the tort of deceit, or any act of fraud; (iii) any breach of any obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or (iv) any other Liability to the extent that such Liability cannot be excluded or limited by law.
Subject to the above, Datalibrium shall have no Liability for any of the following;
- loss or damage incurred by the Customer as a result of third party claims;
- loss of actual or anticipated profits;
- loss of business opportunity;
- loss of anticipated savings;
- loss of goodwill;
- injury to reputation; or
- any indirect, special or consequential loss or damage howsoever caused even if Datalibrium was advised of the possibility of them in advance.
Any such Liability is excluded whether it is foreseeable, known, foreseen or otherwise.
Save as provided in above and without prejudice, Datalibrium’s total aggregate Liability in relation to any single event or series of related events shall be limited to 125% of the Charges paid to Datalibrium in the 12 months immediately prior to the date that such event or the first of such series of events occurred. If such date occurs during the first Year of this Agreement, such total aggregate Liability shall be calculated by using the actual Charges paid and/or payable up to such date, divided by the number of calendar days since the Commencement Date, multiplied by 365 (or 366 in the case of a leap year).
Without prejudice to the above and save as provided in the above, Datalibrium’s total aggregate Liability for all claims under this Agreement shall be limited to the aggregate Charges paid to Datalibrium under this Agreement during the previous two years.
Datalibrium shall have no Liability to the Customer for any claim brought more than two years after the first accrual of the cause of action which the relevant circumstances or events have given rise to.
The terms of this Agreement are in lieu of all other conditions, warranties or other terms concerning the supply or purported supply of, failure to supply or delay in supplying the Services and any goods which are provided or supplied in the course of performing the Services, which might but for this have effect between Datalibrium and the Customer or would otherwise be implied into or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, all of which are hereby excluded (including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose).
8.1 CONSEQUENTIAL LOSSES
Datalibrium is not in a position to assess any consequential loss which the Client may suffer as a result of any failure of the Services, or any other default on the part of Datalibrium and it would be impractical and uneconomic for Datalibrium to insure against such liability. Accordingly it is the responsibility of the Client to properly assess any consequential loss that it and/or its clients may suffer and to obtain and maintain adequate insurance in relation to such losses. The Client shall also ensure that it has adequate insurance cover in relation to any loss or damage which may be caused to Datalibrium and/or its clients through the negligence or default of the Client, its employees, agents, or equipment. The Client shall, as and when requested, provide Datalibrium with such evidence as Datalibrium may require in relation to the Client’s insurance.
8.2 Datalibrium will operate the nominated backup process for the client on a best efforts basis and have no responsibility for failure of any backup process. It is the sole responsibility of The Client to insure that they maintain their own backup copy of any materials placed on Datalibrium servers.
9.1 Datalibrium reserves the right to revise, amend, or modify these Terms and Conditions, and any of our other policies and agreements at any time and in any manner. Notice of any revision, amendment, or modification will be posted in accordance with our Terms and Conditions.
10.1 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.
11. Applicable Law
11.1 This Agreement shall be governed by and construed in accordance with English law and you hereby submit to the non-exclusive jurisdiction of the English courts.
12.1 Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
13. Entire Agreement
13.1 These terms and conditions together with any documents 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. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement