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You indicate acceptance of these terms and conditions of
service by placing an order with Kimpton Computers. These
terms and conditions will not be varied for individual
customers.
1 DEFINITIONS
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, trade
marks, 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 "Kimpton Computers" means Kimpton Computers Web
Hosting
1.1.4 "IP address" stands for internet protocol address
which is the numeric address for the server;
1.1.5 "ISP" stands for internet service provider;
1.1.6 "server" means the computer server equipment
operated by Kimpton Computers in connection with the
provision of the Services;
1.1.7 "the Services" means web hosting, domain name
registration, email and any other services or facilities
provided by Kimpton Computers.
1.1.8 "spam" means sending unsolicited and/or bulk emails;
1.1.9 "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";
1.1.10
"visitor" means a third party who has accessed the Website;
1.2 Product specifications and details may be found at
http://www.kimptoncomputers.co.uk/hosting/.
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 INTRODUCTION
2.1 The Customer wishes to provide Kimpton Computers
with data that will be hosted on Kimpton Computers servers
and made accessible via the Internet.
2.2 Kimpton Computers provides web hosting services and
has agreed to host the Customer's data upon the following
terms and conditions.
3 DUTIES
3.1 Kimpton Computers shall provide to the Customer the
Services specified in their order subject to the following
terms and conditions.
3.2 The Customer shall deliver to Kimpton Computers the
website and the software used in the website which is owned
by the Customer, or licensed to him by a third party or
Kimpton Computers ("the Customer Software), in a format
specified by Kimpton Computers.
4 CHARGES ,PAYMENT AND MONEY-BACK GUARANTEE
4.1 Payment methods include credit cards (including
MasterCard and Visa), debit cards (including Switch/Maestro)
and direct debits or PayPal.
4.2 Kimpton Computers do not accept cheques, bank
transfers, postal orders, cash or any other form of payment
other than those outlined in 4.1
4.3 The Charges are inclusive of VAT, which if payable
shall be paid by the Customer.
4.4 Kimpton Computers shall be entitled to charge
interest in respect of late payment of any sum due under
this Agreement, which shall accrue from the date when
payment becomes due from day to day until the date of
payment at a rate of 8% per annum above the base rate of the
Bank of England from time to time in force.
4.5 Kimpton Computers do not provide credit facilities.
4.6 From time to time Kimpton Computers may make
enquiries on the Customers company, proprietor or directors
of the Customers company with credit reference agencies.
These agencies may record that a search has been made and
share this information with other businesses.
4.7 Kimpton Computers provide "Money-Back Guarantees" on
certain products. Should your product qualify for this
guarantee please raise a support ticket via email;
admin@kimptoncomputers.co.uk within 30 days of placing your
order for a full refund. This guarantee excludes domain
names which may not be cancelled once ordered. Customers are
limited to using the money-back guarantee once.
4.8 Pro-rata refunds will not be issued for yearly
services that are cancelled before then end of the year.
4.9
Should your chosen payment method fail Kimpton Computers
will attempt to settle your invoice using any other payment
facilities available on your account.
4.10
All services will renew until cancelled by the customer.
Kimpton Computers emails the customers primary email address
prior to renewal of services, it is the customers
responsibility to cancel services prior to renewal as no
refund can be made once renewal has occurred. Customers must
notify us at least 72 hours before a service is renewed if
they wish to cancel that service. The cancellation process
must be fully completed by you before your account is
cancelled.
5 IP ADDRESSES
5.1 Kimpton Computers 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 Kimpton Computers changes or removes any IP
address it shall use its reasonable endeavours to avoid any
disruption to the Customer.
6 SOFTWARE LICENCE AND RIGHTS
6.1 If the Customer requires use of software owned by or
licensed to Kimpton Computers ("Kimpton Computers software")
in order to use the Services, Kimpton Computers 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 Kimpton
Computers 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 Kimpton Computers Software.
6.2 In relation to Kimpton Computers obligations under
this Agreement in connection with the provision of the
Services, the Customer grants to Kimpton Computers 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 Kimpton Computers 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
Kimpton Computers Software.
6.4 Kimpton Computers may make such copies of the
Customer Content as may be necessary to perform its
obligations under this Agreement, including back up copies
of the Content. Upon termination or expiration of this
Agreement, Kimpton Computers shall destroy all such copies
of the Content and other materials provided by the Customer
as and when requested by the Customer.
7 SERVICE LEVELS AND DATA BACKUP
7.1
Kimpton Computers shall use its reasonable endeavours to
make the server and the Services available to the Customer
100% of the time but because the Services are provided by
means of computer and telecommunications systems, Kimpton
Computers makes no warranties or representations that the
Service will be uninterrupted or error-free and Kimpton
Computers shall not, in any event, be liable for
interruptions of Service or downtime of the server.
7.2 Kimpton Computers carries out data backups for use
by Kimpton Computers in the event of systems failure.
Kimpton Computers do not provide data restoration facilities
for individual customers. Even though every effort is made
to ensure data is backed up correctly Kimpton Computers
accepts no responsibility for data loss or corruption.
8 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 (for the avoidance of doubt
this includes licensed software distributed as Warez), 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 Kimpton Computers network or the Services
which are identified as restricted or confidential. This
includes leaving your home directory whilst using SSH access
to servers.
8.1.8 operate or attempt to operate IRC bots or other
permanent server processes.
8.2 The Customer has full responsibility for the content
of the Website. For the avoidance of doubt, Kimpton
Computers 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 Kimpton Computers shall be
entitled to withdraw the Services and terminate the
Customer's account without notice.
9 ALTERATIONS AND UPDATES
All alterations and updates to the website shall
be made by the Customer using the online account management
facility, FTP access or SSH access where available. The
Customer will be issued with a user name and password in
order to access the account. The Customer must take all
reasonable steps to maintain the confidentiality of this
user name and password. If the Customer reasonably believes
that this information has become known to any unauthorised
person, the Customer agrees to immediately inform Kimpton
Computers and the password will be changed.
10 WARRANTIES
10.1 The Customer warrants and represents to Kimpton
Computers that Kimpton Computers 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 Kimpton Computers 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, Kimpton
Computers shall not be liable to the Customer as a result of
any viruses introduced or passed on to the Customer.
11 INDEMNITY
The Customer agrees to indemnify and hold Kimpton
Computers 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 Kimpton Computers 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.
12 LIMITATION OF LIABILITY
12.1 Nothing in these terms and conditions shall exclude
or limit Kimpton Computers liability for death or personal
injury resulting from Kimpton Computers negligence or that
of its employees, agents or sub-contractors.
12.2 The entire liability of Kimpton Computers 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 Kimpton Computers 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 Kimpton Computers had
been made aware of the possibility of the Customer incurring
such a loss.
13 TERM AND TERMINATION
13.1 This Agreement will become effective on the date the
service is ordered and shall continue until terminated by
either party in writing of its intention to terminate the
Agreement.
13.2 Kimpton Computers 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.
13.5 On termination all data held in the customers
account will be deleted.
14 ASSIGNMENT
14.1 Kimpton Computers 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 Kimpton Computers
prior written consent.
15 FORCE MAJEURE
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 SEVERANCE
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 NOTICES
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 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
2 days following the date of posting.
18 ENTIRE AGREEMENT
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. This Agreement may be updated without notice.
19 GOVERNING LAW AND JURISDICTION
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 DOMAIN NAME REGISTRATION
20.1 Domain names are not deemed to be successfully
registered until they appear in the relevant whois database
of the top level domain name registrar. In the event that a
domain name is unavailable when we attempt to register it
Kimpton Computers will provide a full refund for that domain
name.
20.2 Please return to the main terms and conditions area
of this website to view terms and conditions for individual
domain name registrars.
21 SCRIPTING
Kimpton Computers are not responsible for customer
programming issues other than ensuring that programming
languages such as Perl, PHP and ASP are installed and
functioning on the web hosting system.
22 PRIVACY
To
protect your privacy we will not distribute your details to
third parties, unless required to do so by law.
23 DATA TRANSFER
23.1 Web hosting accounts include a certain amount of
data transfer, if you exceed this amount in any one month
your account will be deactivated until you have upgraded to
an account that has more data transfer included.
23.2 Web hosting accounts are prohibited from hosting
file distribution websites (including but not limited to
music, video and software), adult content orientated
websites, hosting banners, graphics or cgi scripts for other
websites, storing pages, files or data as a repository for
other websites or personal computers, giving away web space
under a domain, sub domain or directory.
24 SERVER USAGE
Should
your account use more than 5% of the servers processing
power and as a result have a detrimental effect on other
customers we will discuss with you alternative solutions for
your hosting requirements.
25 AFFILIATE PROGRAMME
Commission earned via the affiliate programme will only be
paid by using a valid direct debit/credit mandate on your
account. It is the customers responsibility to ensure they
have this facility. In the event of the customer not being
able to obtain this facility then no commission will be
paid.
26 EMAIL NEWSLETTER
Kimpton Computers communicates with it's customers via email
and as such you agree to receive by email our regular
newsletter which contains amongst other things changes to
our terms and conditions, notification of major outages,
updates to our products & features and special offers.
27 WEBSPACE USAGE
Unlimited web space is available for genuine web site
content, content must be linked into web pages. Customers
are prohibited from using the server as a file
repository. Customers are expected to employ good house
keeping when maintaining their account.
28 MAIL BOXES
Mail
boxes not accessed for 100 days or more will be deleted from
the system. |
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