In these terms and conditions the following definitions have the following meanings:
1.1 "Agreement" means the Order Form, the Agreement made subject to these Conditions and these Conditions;
1.2 "Chargeable Day" means one person working on a calendar day for up to seven and a half hours (7.5 hours);
1.3 "Colocation” means the accommodation of customer equipment at a UKFast operated including "Colocated Equipment" is the equipment so accommodated and "Colocation Space" is the place where the Colocated Equipment is accommodated;
1.4 "Conditions" means these terms and conditions;
1.5 "Company" means UKFast.Net Limited 384 5616 of Abbey House, 32 Booth Street, Manchester, M2 4AB;
1.6 The "Company’s Network" means the network owned and operated by the Company for the purpose of connecting the Customer to the internet by means of fixed or dial-up connections;
1.7 "Customer" means any person or organisation with whom the Company enters into an Agreement subject to these Conditions;
1.8 "Internet" means the global data network comprising interconnected networks to which the company is connected and provides access to its Customers;
1.9 "Internet Protocol Address" means such sequence of alpha numeric or numeric only characters as are used from time to time by the Customer to identify himself and or his computer or computers to other users of other computers to which the Company is from time to time connecting or otherwise forwarding data to and from the Customer;
1.10 "Network Operator" means the legal entity or entities responsible for operation of a communications network;
1.11 "Order Form" means the Company's standard order form relating to the Services for the Customer;
1.12 "Password" means the alpha numeric characters chosen and used exclusively by the Customer at his own risk for the purpose of securing and maintaining the exclusivity of his access to the Company's service;
1.13 "Services" means the services described in the current Company literature together with such Value Added Services to be provided by the Company to the Customer. Representations made by the Company’s distributor will not form part of the Agreement unless confirmed in writing prior to purchase of the service;
1.14 "Service Commencement Date" means the date identified as the delivery date on the company invoice to the Customer;
1.15 "Specification" means a detailed written specification of the Services to be provided to the Customer under the Agreement;
1.16 "TCP/IP" is the abbreviation for Transmission Control protocol/Internet Protocol;
1.17 "Upgrade Usage Charges" means such charge for such predetermined unit of time and or volume of data together with any charges related to Value Added Services from time to time provided by the Company in each case at the rates set out or referred to in the Company’s published tariffs and or such as may be agreed in writing with between the Customer and the Company;
1.18 "User name" means such sequence of alpha numeric characters as are used from time to time by the Customer to identify himself to other users of other computers to which the Company is from time to time connecting or otherwise forwarding data to and from the Customer;
1.19 "Value Added Service" means the provision of a service other than Services which are agreed in writing between the Customer and the Company.
2. Acceptance of Application
The Company reserves the right to refuse any application for Services.
3. Services
3.1 The Company and Customer shall produce and agree the Specification of Services.
3.2 The Company and Customer each agree to dedicate the necessary resources and use all reasonable commercial efforts to meet their respective deadlines set forth in the Specification. Any delay or adjustment in the Specification caused by the Customer's delay shall be the responsibility of the Customer and the Customer will pay the Company for all costs for wasted time or rescheduling of booked resources at the Company's standard daily rates plus expenses.
3.3 Performance Dates. The number of Chargeable Days estimated to be required to complete the Services as set out in the Order Form shall be reviewed following finalisation of the Specification and is based upon the following assumptions: (a) the scope of the tasks performed by the Company will not exceed those stated in the Specification (b) the Customer will perform and complete its assigned tasks required by the Specification in a timely manner; (c) the Customer will not suspend or delay the project in any manner (d) Services are performed during normal working hours, i.e. Monday to Friday, 9 a.m. to 5.30 p.m. except as otherwise agreed between the parties; (e) the Specification is not amended once agreed.
3.4 Change Control:
3.4.1 The Company may at any time in writing recommend and the Customer may in writing request from time to time changes to any of the assumptions set out in clause 3.3 above or any part of the Specification or other provision of this Agreement.
3.4.2 The Company will notify the Customer in writing within 5 working days of receipt of the change request or the making of the change recommendation of the time needed to investigate the implications for the Agreement of implementing the proposed change together with the costs, if any, to be charged by the Company to the Customer for undertaking such investigation.
3.4.3 Following the investigation (if any) the Company will give a written response (a "Change Response") showing the effect of the proposed change including; a revised estimate of the number of Chargeable Days estimated to complete the Services; a revised project timeline; any additional expenses that will be incurred; and any effect on other contractual matters should the proposed change be implemented. The Company will use all reasonable endeavours to ensure that the Change Response is given within 10 working days (or such longer period as may be agreed) of receipt by the Company of a written instruction to investigate the implications of the proposed change.
3.4.4 Should the Customer wish to proceed with the proposed change, it will instruct the Company in writing of its wish as soon as reasonably practicable after receipt of the Change Response but not later than 10 working days (or such longer period as may be agreed) of receipt of the Change Response. Those parties of the Agreement affected by the change will then be deemed to be modified in accordance with the Change Response.
3.4.5 Until any change is formally agreed between the Company and the Customer each party shall continue to perform its obligations under the Agreement as if the change had not been proposed unless otherwise agreed by the parties in writing.
3.5 Key Personnel/Subcontractors. All personnel and subcontractors provided by the Company to perform services pursuant to the Agreement shall have the appropriate technical and application skills to enable them to adequately perform their duties. All services shall be performed in a competent and workmanlike manner. The Company will use all reasonable efforts to assure continuity in staffing of its key personnel.
4. Third Party Software & Hardware
4.1 Third Party Software and Hardware. All third party software shall be sold subject to the Customer's acceptance of the relevant supplier's software licence for such third party software. The Company shall to the extent that it is able pass through to the Customer any and all representations and warranties it receives from the respective third party software supplier.
4.2 Pricing. The pricing set forth in the Order Form for third party software is estimated; accordingly, the actual cost therefore may differ based upon the Customer specifications, changes to functionality, and changes in pricing by the third party software vendors as of the date the third party software is ordered.
4.3 Support Services. To the extent that third party software is supplied by the Company, the Customer may procure support services in accordance with the terms set out in the Order Form. The Company's offer to provide these support services is contingent upon the Company's ability to obtain such support from the appropriate third party software supplier.
5. Right to change Username, Internet Protocol Address and Password
The Company shall have the right from time to time to change the User name, Internet Protocol Address and or Password allocated by the Company for the purpose of essential network maintenance enhancement modernisation or other work deemed necessary to the operation of the internet.
6. Payments
6.1 Charges for the Services, as set out in the Order Form, shall be paid by the Customer to the Company in advance annually unless otherwise agreed in writing between the Company and the Customer in the Order Form.
6.2 The Company reserves the right to vary from time to time all charges with one month's notice to the Customer and any variation shall take effect on the contract renewal date or the anniversary of the contract commencement date.
6.3 Itemised details of excess usage of band width and any other relevant charges may be made available to the Customer if ordered in advance and the Company reserves the right to make an additional charge for this Service.
6.4 All payments shall be due to the Company on presentation of invoice or as stated on the Order Form and payments shall be sent to the Company's main office or at such other address as may from time to time be specified by the Company in writing.
6.5 The Company reserves the right to charge interest on late payments at the rate of 8% in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
6.6 Charges and tariffs are quoted exclusive of Value Added Tax.
7. Usage
7.1 The Customer hereby agrees to:
a) accept and abide by the Ukfast.net Acceptable Usage Policy as published on the UKFast.net website at http://www.ukfast.net/site/terms and as may from time to time be changed;
b) refrain from transferring any illegal material to or from other users of the Service and the other privately owned and operated services to which the Company may from time to time provide access;
c) refrain from sending menacing, offensive, abusive or annoying messages whilst using the service via the Company or any other internet service provider;
d) not divulge their password to any third party and use all reasonable endeavours to keep the same confidential and inaccessible to third parties;
e) keep the Company informed of any change to the Customer's address and other such information as may effect the payment of charges due;
f) immediately cease to use any Internet Protocol Addresses allocated by the Company and acknowledge that the Company may re allocate the Internet Protocol Addresses to a third party upon termination of the Agreement;
g) refrain from announcing by any means any and all Internet/- addresses allocated to or by the Customer as part of an autonomous system. Customers hosting with the Company who submit their site to autonomous systems agree to pay or be responsible for any direct costs that are incurred by the Company as a result;
h) refrain from using or permitting the usage of the Service in an unlawful manner or in contradiction of regulations governing the internet;
i) procure the agreement and understanding of its own customers where the Services are to be sold to third parties and procure that such customers agree in writing to terms and conditions no less onerous than contained in these Conditions;
j) not to resell a bandwidth greater than that purchased from the Company unless linked to the internet through another provider [in addition the bandwidth provided by the Company (dual homed) when the restriction will apply at the aggregated data rate].
8. Equipment
8.1 Colocated Equipment shall at all times be at the Customer's risk. The Customer shall be responsible for insuring the Colocated Equipment against all risks.
8.2 Equipment leased from the Company shall at all times remain the property of the Company.
8.3 The Customer agrees to maintain, at Customer's expense comprehensive general liability insurance for any leased equipment supplied by the Company.
9. Liability
9.1 Nothing in the Agreement shall limit the Company’s liability to the Customer for the death or personal injury resulting from the Company’s negligence.
9.2 Except for the Company’s liability to the customer under clause 9.1 (to which no limit applies), the Company’s liability arising under or in connection with the Agreement or Services (whether such liability arises from negligence, breach of contract or howsoever) shall not exceed the greater of:
9.2.1 Ł5000 (five thousand pounds)
9.2.2 the total amounts paid by the Customer under clause 6.1 in the month when such event (or the first event in any series of connected events) occurs.
9.3 Notwithstanding clause 9.3, in no case will the Company be liable to the Customer or any third party for or in respect of any indirect of consequential loss or damage (whether financial or otherwise), or for any loss of data, profit, revenue, contracts or business howsoever caused (whether arising out of any negligence or breach of the Agreement or otherwise), even if the same was foreseeable by, or the possibility thereof is or has been brought to the attention of the Company.
9.4 No action or proceeding against the Company arising out of or in connection with the Agreement shall be commenced more than one year after the Services rendered, and the parties acknowledge that this clause constitutes an express waiver of any rights under any otherwise-applicable longer statute of limitations.
10. Suspension
10.1 The Service may be suspended or suspended during peak times by the Company 7 days after a notification of suspension has been issued and without prejudice to the Company’s rights of termination under Clause 11 in the event of.
(a) failure by the Customer to make any payment to be made to the Company on its due date for payment;
(b) the Customer doing or allowing anything to be done which jeopardises the Services or any network to which it is from time to time connected;
(c) the Customer exceeding its credit limit without prior approval of the Company or if the Customer is otherwise in breach of these Conditions;
10.2 No such suspension shall affect the liability of the Customer to pay charges and other amounts to the Company. During suspension the Company reserves the right to refuse to release the Customer’s Internet Protocol Address as issued by the Company;
10.3 At times of suspension a user will be directed to a webpage showing a suspension notice.
11. Term and Termination
11.1 The Agreement shall remain in force for a minimum period of 12 months from acceptance of Customers application being the date on which the Company’s order form was signed by the Customer.
11.2 Termination can be effected as follows:
(a) by the Customer: The Customer may terminate the Agreement by giving 3 months' written notice, which may expire at any time after 12 months from the initial date of commencement of service or on any anniversary date of the initial date of commencement. Email notification will not be accepted as notice of termination of Agreement
(b) by the Company: The Company may terminate the Agreement at any time forthwith if the Customer commits any breach of the Agreement including but without limitation non-payment of any fees due. The company will have the right to terminate the Agreement upon 30 days written notice at its sole discretion for any reason.
11.3 The Company reserves the right to invalidate any Customer’s User name and Internet Protocol Address issued to the Customer following termination of the Agreement and to reallocate to another customer
11.4 Domain name hosting and transfer request for domain name server records must be in writing with the authorised signature of the domain owner. There is no charge for the transfer, but a small charge may be made for administration. Domain name transfers will not be made until all outstanding amounts have been paid by the Customer until this time domain names remain the property of the Company.
11.5 The Customer shall at his own cost return to the Company all equipment cables and literature belonging to the Company within 5 days of final termination of the Agreement and ensure that it arrives in good working order.
12. Rights on termination
12.1 Termination of the Agreement shall not affect any pre-existing liability of the Customer or affect any right of the Company to recover damages or pursue any other remedy in respect of any breach by the Customer of the Agreement.
12.2 On termination of the Agreement the right to the use of the Internet Protocol Address allocated by the Company shall revert to the Company under the European Internet Registry Reseaux IP Europeans ("RIPE") terms or agreement except where specific agreement has been reached in writing between the RIPE and the Customer for the transfer of the Internet Protocol Address and the fee or other payment required by the Company in connection with such transfer has been paid for by the Customer.
12.3 In the event of termination of the Agreement by the Company on account of any breach of these Conditions by the Customer the Company shall be entitled to the balance of all payments which would but for such termination have accrued due up to the earliest date on which the Agreement could have been terminated by the Customer in accordance with the terms hereof.
13. Release of Information
The Company shall not be required to release any User name, domain name or review Internet Protocol Address and may refuse to do so until the Agreement has been lawfully brought to an end and all sums due hereunder have been received by the Company, and the Customer has complied with all its obligations hereunder. Domain names remain the property of the Company until all sums due have been received.
14. Intellectual Property
14.1 Licence. The Company grants to the Customer a perpetual, royalty-free, non-exclusive, non-sublicensable and non-transferable licence to use to use the Services at the Customer's site set out in the Order Form for the term of the Agreement and subject to the restrictions set forth in the Agreement, solely for the Customer's internal purposes. The licence granted hereunder does not entitle the Customer to receive any updates, modifications, or new releases to the deliverables or software.
14.2 Rights Reserved. The Company reserves any and all of its copyright, trade marks, trade names, patents and other intellectual property rights created, developed, subsisting or used in or in connection with any deliverables, software, Services or the Specification which are the sole property of the Company.
14.3 Restrictions. The Customer shall not transfer its licence nor sublicense the deliverables or the software, except where permitted pursuant to the terms of the Agreement. The Customer shall not (and shall not allow any third party to) (i) remove any product identification, copyright, trademark, or other notices, (ii) sell, provide, lease, lend, distribute over the internet or (iii) load or use portions of the software (whether or not modified or incorporated into or with other software) on or with any machine or system that is not physically kept at the facilities of the Customer or within third party facilities contracted by Customer.
14.4 Customer shall not disassemble, decompile, or otherwise reverse engineer the Services provided however, that in the case of decompilation, Customer may incidentally decompile the Services only if it is essential so to do in order to achieve interoperability of the Services with another software program ("Permitted Purpose") and provided the information obtained by the Customer during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party to whom it is not necessary to disclose or communicate such information without the Company prior written consent and is not used to create any software which is substantially similar to the Services nor used in any manner which would be restricted by copyright.
15. Force Majeure
Should either party be unable to perform any non-monetary obligations required of it pursuant to the Agreement because of any cause beyond that party's reasonable control, including without limitation, industrial disputes of whatever nature, power loss, telecommunications failures, acts of God, or any other force majeure event, then the non-performing party's obligation to perform shall be suspended for such period as that party is unable to perform, provided that written notice of such force majeure event is given within ten (10) days of the party's first recognition of delays arising from the occurrence of such event.
16. Notices
16.1 Any notices under or in connection with the Agreement shall be in writing and shall be delivered by royal mail post to the relevant address given in the Agreement or to such address as the recipient may have notified in writing to the other party for that purpose.
16.2 Suspension notices for non-payment of charges will be deemed as delivered by facsimile to such number as the Customer may have notified.
16.3 Any notice shall be duly given, if given by pre-paid first class mail, at the expiration of 48 hours after the envelope containing the same shall have been posted. In proving such service it shall be sufficient to prove that delivery was made or that the envelope containing such communication was properly addressed and posted as a pre-paid first class letter.
17. Expenses of the Company
The Customer shall pay to the Company all costs and expenses (so that any legal fees shall be based on an indemnity basis) incurred by the Company in enforcing any of these Conditions, or exercising any of its other rights and remedies under the Agreement, including (without prejudice to the generality) all costs incurred in tracing the Customer in the event that legal processes cannot be enforced at the address last notified to the Company.
18. Non-Waiver
The allowance of time to pay or any other indulgence or waiver by the Company shall in no manner affect or prejudice its right to payment together with interest provided under these Conditions.
19. Invalidity
If these Conditions or any part thereof shall be adjudged for any reason to be void, unenforceable or ineffective but would be adjudged to be valid effective and enforceable if part of the wording were deleted or a provision were reduced in scope the Agreement shall continue with such modifications as may be necessary to make its provisions (or if such be the case its remaining provisions) valid effective and enforceable.
20. Confidentiality
Each party hereto undertakes to the other that it shall keep, and shall procure that its directors and employees shall keep secret and confidential and shall not use or disclose to any other person any information or material of a technical or business nature relating in any manner to the business, products or services of the other party which the receiving party may receive or obtain in connection with or incidental to the performance of the Agreement, provided that:
20.1 the receiving party shall not be prevented from using any general knowledge, experience and skills not treated by the disclosing party as confidential or which do not properly belong to the disclosing party and which the receiving party may have acquired or developed at any time during the Agreement;
20.2 the receiving party shall not be prevented from using the information or material referred to above to the extent such information or material comes into the public domain otherwise than through the default or negligence of the receiving party;
20.3 notwithstanding the above, either party shall have the right to communicate any information concerning the other party to any Government department or body or other authority established required by law or under court or Governmental order to disclose (but only to the extent required by such law or order).
21 Assignment
The Customer shall not assign or transfer any of its rights or obligations under these Conditions or the Agreement without the prior written consent of the Company.
22. Clause Headings
Clause headings are for ease of reference and are not part of the Agreement and accordingly shall not affect its Conditions.
23. Entire Agreement
All Services are provided on the foregoing conditions to the exclusion of any other terms and conditions and no terms and conditions contained in any document sent by the Customer to the Company shall be of any effect with respect to the Agreement unless expressly accepted by a duly authorised officer of the Company in writing. The Customer acknowledges that the Customer has not relied on and shall not be entitled to rescind the Agreement or to claim damages or any other remedy on the basis of any representation, warranty, undertaking or statement which is not set out in these Conditions or the Agreement including any representation made by or on behalf of the Company in relation to the Services which has induced the Customer to enter into the Agreement with the Company.
24. Variation
The Company reserves the right to vary these Conditions as a result of changes required by its insurers, operation or administration problems, new legislation, statutory instruments, Government regulations or licences.
25. Law and Arbitration
These Conditions and the Agreement are subject to and governed by the laws of England under the jurisdiction of the Courts of England.
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