TERMS AND CONDITIONS FOR HOSTED DESKTOP SERVICES
1 Introduction
These terms and conditions shall have legally binding effect between the Company and the Customer and shall be deemed to have been accepted by the Customer upon placing an Order with the Company.
2 Definitions
“Agreement” means the contract for the provision of the Services by the Company on the terms set out in the Order, these terms and conditions and the SLA.
“Business Day” means Monday to Friday excluding UK bank holidays.
“Company” means Optim IP Limited, a company registered in England and Wales with company registration number 06666299 whose registered office is at The Mill House Boundary Road Loudwater High Wycombe Bucks HP10 9QN.
“Contract Term” means the initial contract term set out in the Order for provision of the Services plus any extension of such term under the operation of this Agreement.
“Customer” means any person (whether a company, sole trader, individual, partnership or LLP) who purchases Services from the Company.
“Force Majeure” means war, rebellion, civil commotion, strikes, lock outs, industrial disputes, fire, explosion, earthquake, acts of God, flood, drought, bad weather, failure of internet connections, hardware or third party software, or the requisitioning or other act or order by any government department, council or other constituted body.
“Order” means an order made by the Customer to the Company to purchase Services from the Company.
“Services” means each and every service provided by the Company to the Customer as set out in the Order including without limitation the set up of users on Hosted Exchange, Hosted Desktop and Blackberry through the Company’s Customer Portal.
“SLA” means the Company’s standard Service Level Agreement for Hosted Desktop Services.
“Software” means the software described in the Order
3 Agreement
In consideration of the payment of the fees set out in the Order the Company will provide the Services to the Customer as set out in the Order in accordance with these terms and conditions and the SLA.
4 Contract Term
The Company will provide the Services for the Contract Term and thereafter will continue to provide the Services until the Agreement or the Services are terminated in accordance with clause 16.
5 Payment Terms
5.1 The charges for Hosted Desktop Services will include:-
5.1.1 a per user per month charge as set out in the Order;
5.1.2 a charge for company storage based on the actual amount of storage used multiplied by the price per GB (GigaByte) as set out in the Order; and
5.1.3 a charge for any additional hosted applications as set out in the Order.
5.2 The charges for Hosted Desktop Services will be based on actual usage of user numbers and storage provided that this usage is greater than the estimated usage set out in the Order.
5.3 The charges for Hosted Exchange will depend on the billing method agreed by the parties:-
5.3.1 if the Customer has agreed to a Company Storage Tariff the Customer will be invoiced the agreed flat price per user multiplied by the number of users on the Hosted Exchange platform during the month, plus a fee at the agreed storage price for the actual storage used which is the sum of the total storage used by all of the users plus any public folder storage. The Customer accepts that the number of users may vary from time to time as may the actual storage used. The Customer agrees to pay the per user fees for each mailbox and the per GB storage fee for the actual storage used;
5.3.2 if the Customer has agreed to a User Storage Tariff with hard limits the Customer will be invoiced at the end of each month for the actual mailboxes on Hosted Exchange. The Customer acknowledges that the actual number of mailboxes can vary from month to month depending on the Customer’s usage in adding or removing users from Hosted Exchange. The monthly invoice will set out the mailboxes and the tariff for each mailbox; and
5.3.3 if the Customer has agreed to a User Storage Tariff without hard limits the Customer will be invoiced at the end of each month the Customer for the actual mailboxes on Hosted Exchange with a charge for each mailbox being based on the actual storage used by that mailbox. Each user will slot into one of the following storage bands:-
5.3.3.1 250MB storage band if the storage is less than 250MB;
5.3.3.2 500MB storage band if the storage is 250MB or more but less than 500MB;
5.3.3.3 1GB storage band if the user’s storage is greater than 500MB but less than 1GB;
5.3.3.4 2GB storage band if the user’s storage is greater than 1GB but less than 2GB;
5.3.3.5 3GB storage band if the user’s storage is greater than 2GB but less than 3GB;
5.3.3.6 4GB storage band if the user’s storage is greater than 3GB but less than 4GB; and
5.3.3.7 5GB storage band if the user’s storage is greater than 4GB but less than 5GB.
The Customer will be charged for the appropriate storage tariff for each user (i.e. the storage tariff for the storage band in to which the user’s mailbox falls).
5.4 The Customer’s charges for Hosted Exchange will be based on actual usage of user numbers and storage at the charges set out in the Order.
5.5 All charges are quoted exclusive of VAT which will be added at the standard rate in accordance with current VAT law.
5.6 The Customer will be invoiced monthly in arrears.
5.7 The Customer will pay the Company’s invoice within 14 days of the date of the invoice unless otherwise agreed in the Order. Time is of the essence for payment of all invoices.
5.8 In the event of late/non-payment of any charges the Company reserves the right without liability to bar the Customer access to the Services by whatever means it deems appropriate until such time as payment is received in full.
5.9 Notwithstanding clause 5.8, the Company reserves the right to charge interest on overdue invoices at a rate of the greater of 4% per annum above the base rate of Barclays Bank Plc and the rate applicable under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until the total invoice sum has been paid.
5.10 The Customer acknowledges that Services in respect of which a Contract Term is specified are charged at a rate calculated on the basis of the Contract Term. If the Customer terminates this Agreement or one of the Services provided hereunder prior to the expiry of the Contract Term the Customer will be liable to pay the fees for such Services for the remainder of the Contract Term.
6 Software Licences
The Customer’s rights to use the Software are subject to the usage rights granted by the third party software supplier, such as Microsoft, Sage or Adobe. The Customer acknowledges that the usage rights of third party software may vary from product to product and agrees to abide by such rights.
7 Web Hosting
7.1 The Company shall use reasonable skill and care to ensure continuing up-time of the web server(s) hosting the Customer’s website and other applications. However the Customer acknowledges that internet connections, technical hardware and third party software are used by the Company to provide the Services and that 100% reliability cannot therefore be guaranteed. Subject to the terms of the SLA, which sets out additional terms under which the Company provides the Services, the Company will not be liable for service interruptions or down-time of the server whether resulting from technical failure or howsoever arising. Where the Customer has ordered a dedicated server or co-located server service from the Company a separate service level agreement will provide additional terms and conditions under which those services are provided.
7.2 Whilst the Company will use reasonable skill and care to ensure the security of its web servers, the Company does not guarantee that its web servers or those co-located with the Company will be free from unauthorised users or hackers and excludes any liability that results from such abuse.
8 Domain names
8.1 The Company will use its best endeavours to ensure that, once an Order to register a domain name has been received, an application to register the domain name is made within a reasonable time period. However, the Customer accepts that between the time of Order for a domain name and the time the Company (whether by itself or through a third party instructed by the Company) applies to register the requested domain name, another third party may have registered the domain name which are registered by naming authorities on a first come first served basis. If this happens the Company will not be liable for any resulting loss or damage to the Customer.
8.2 The registration of the domain name and its on-going use is subject to the relevant naming authority’s terms and conditions. For UK domain names including .co.uk, .plc.uk, ltd.uk, org.uk and .me.uk the Customer agrees to abide by Nominet’s Terms and Conditions for Domain Name Registration (see below).
8.3 The Customer acknowledges and agrees that, when it places an Order for a UK domain name with the Company, the Company is acting as an agent of the Customer (who will be the applicant for the domain name) and that the Customer will enter into a direct contractual relationship with Nominet subject to Nominet’s Terms and Conditions for Domain Name Registration which can be read by clicking on the following link:http://www.nominet.org.uk/ReferenceDocuments/Terms AndConditions/TermsAndConditions.html.
8.4 The Customer is solely responsible for its use of a domain name and must abide by the naming authority’s terms and conditions. Any dispute between the Customer and any other person regarding the rights relating to the domain name is a matter between the Customer and such third party.
9 Acceptable Usage Policy
9.1 The Customer agrees to abide by the following Acceptable Usage Policy. The Customer warrants and undertakes to us that it will not by itself or others:-
9.1.1 use its website (where the Company is providing the hosting service for the website) for unlawful purposes;
9.1.2 knowingly or recklessly post, link to or transmit, or permit third party users to post, link to or transmit:-
9.1.2.1 any material that is abusive, threatening, harmful, malicious, defamatory, obscene, pornographic, profane or otherwise unlawful;
9.1.2.2 any material containing a virus or other hostile computer program;
9.1.3 it will not post, link to or transmit any material that constitutes or encourages a criminal offence, gives rise to civil liability or infringes the intellectual property rights of any third parties; or
9.1.4 knowingly or recklessly transmit, or permit third party users to transmit, unsolicited email in breach of UK law including the Privacy and Electronic Communications (EC Directive) Regulations 2003.
9.2 The Company may suspend the Customer’s Services immediately and without notice to the Customer in its sole discretion if in the Company’s opinion the Customer has or has knowingly, recklessly or negligently permitted any breach of the Acceptable Usage Policy, or if it receives any complaint that unsolicited email has been transmitted by the Customer, or by the Customer’s agents or customers, or if any material hosted on the Customer’s website(s) or server(s) (in respect of which the Company is providing a hosting service) may be unlawful, harmful or defamatory.
9.3 The Company may disclose the Customer’s name and address to a complaining third party if in its reasonable discretion it is necessary or appropriate to do so, for example without limitation if there is evidence of a prima facie case that the Customer’s web site(s) or server(s) in respect of which the Company is providing a hosting service is infringing the rights of a third party.
10 Anti-Virus
The Company uses third party anti-virus software to protect the servers and email from viruses. Although all reasonable care is taken by the Company to ensure that the anti-virus software is up to date, the Company makes no warranty as to the effectiveness of its third party anti-virus software and excludes any loss or damage caused by a virus which infects any electronic device, computer, PC, server or network owned or used by the Customer.
11 Liability
11.1 The Company undertakes to use all reasonable endeavours to provide the Services in accordance with the SLA and if any material errors occur they will be addressed in accordance with the SLA.
11.2 The fees charged to the Customer under this Agreement are determined on the basis of the following limitations and exclusions of liability.
11.3 Save as provided in clause 11.1 and the SLA, the Company excludes and shall not be liable for any damage or loss resulting from:-
11.3.1 any technical or other failure resulting in unavailability of the website or applications hosted by the Company’s servers (or the servers of third parties which the Company, on behalf of the Customer, has engaged to provide the whole or part of the Services); or
11.3.2 any unauthorised access to the Company’s servers (or the servers of third parties which the Company, on behalf of the Customer, has engaged to provide the whole or part of the Services).
11.4 The Company excludes all representations (other than fraudulent representations) and warranties relating to the Services under this Agreement, whether imposed by statute or operation of law that are not expressly stated in this Agreement.
11.5 If the Customer suffers any loss or damage other than as a result of the matters stated above for which all liability is excluded then the Company’s total liability for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of Services to the Customer shall be limited to the total amount of the charges payable by the Customer to the Company for the Services upon which the claim is based.
11.6 In no event shall the Company be liable for any loss of business, contracts, profits or anticipated savings or for any indirect or consequential or economic loss whatsoever.
11.7 The Customer undertakes full and effectively to indemnify and keep indemnified at all times the Company against any and all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including without limitation legal and other fees and disbursements) sustained, incurred or paid by the Company directly or indirectly in respect of any breach by the Customer of any of the provisions of this Agreement.
12 Intellectual Property
12.1 The Customer acknowledges that any and all of the copyright, patents, trade marks and other intellectual property rights subsisting or used in connection with the Services are (unless another owner is specified in relation thereto, being hereinafter referred to as the “Owner”) the property of the Company or the Owner (as the case may be) and the Customer shall not at any time during or after the Contract Term on any way question or dispute the ownership by the Company or the Owner (as the case may be) of such rights.
12.2 The Customer shall not, during of after the Contract Term without the prior written consent of the Company or the owner (as the case may be) or to the extent only permitted by the applicable law, abuse or permit the abuse of such rights or use or adopt any trade mark, trade name or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name or commercial designation used by the Company or the Owner (as the case may be).
12.3 The Customer undertakes not to reproduce, adapt, translate, arrange or make available to any third party, either directly or indirectly, any part of the Services except to the extent that and for so long as the Customer is expressly permitted to do so in accordance with this Agreement or as permitted by any mandatory provisions of law.
12.4 The Customer shall not, other than as expressly permitted by this Agreement, reutilise the Services for any commercial purpose including without limitation reselling or redistributing the Services.
12.5 The Customer acknowledges that civil and criminal penalties may be incurred in the event of the infringement of the copyright and/or other rights subsisting or used in connection with the Services and that such infringement may result in incalculable damage and/or loss to the Company and/or the Owner and accordingly agrees that, in addition to any other right or remedy of the Company or the Owner, the Company and/or the Owner shall be entitled to immediate injunctive relief to restrain any actual or apprehended infringement thereof. The Customer undertakes to indemnify the Company and/or the Owner in full against all loss, damage, costs and expenses (including without limitation loss of profit) which may be incurred by the Company and/or the Owner by reason of any such infringement by the Customer.
13 Confidentiality
13.1 In order to provide the Services the Company will be hosting email and other data on behalf of the Customer. In order to provide the Services, respond to support requests and test systems it may be necessary for employees of the Company to have access to such email and data. The Company agrees to keep such data confidential and will not knowingly disclose it to a third party unless required to do so by law or on an appropriate authority.
13.2 The Company will use reasonable endeavours to ensure that those of its employees who have access to such data observe the confidentiality obligations in clause 12.1.
14 Data
14.1 All email and other data hosted by the Company as part of the Hosted Exchange or Hosted Desktop Service is owned by the Customer and, in the event of termination of any Service, will be provided to the Customer provided that the Customer has paid in full any outstanding monies owed under this Agreement.
14.2 The return of data to the Customer will incur standard support charges plus expenses unless such charges are waived by separate written agreement.
14.3 Historical copies of the Customer’s data held in the Company’s back up system will be deleted in accordance with the Company’s data retention policy.
15 Data Protection
The Company is registered under the Data Protection Act and the Company warrants that this registration will be kept up to date each year through the notification department of the Information Commissioner’s Office.
16 Termination
16.1 This Agreement may be terminated by either party giving the other 30 days’ month’s written notice.
16.2 The Customer may terminate a particular Service under this Agreement without terminating the Agreement itself by giving 30 days written notice. If the Customer terminates a Service this Agreement will continue in force in respect of any other Services provided by the Company to the Customer and the provisions of clause 5.10 will apply in respect of the terminated Service.
16.3 The Company may terminate this Agreement and/or suspend any and all services to the Customer (including web hosting and email) without notice and with immediate effect if:-
16.3.1 the Customer fails to comply with the Company’s payment terms or is in fundamental breach of this Agreement; or
16.3.2 the Customer manifests an intention not to comply with the terms of this Agreement.
17 Either party may terminate this Agreement with immediate effect and without notice if the other party goes into liquidation or administration or enters into a voluntary arrangement with its creditors or is unable to pay its debts as they fall due.
18 General
18.1 Notices under this Agreement must be in writing but can be transmitted by fax, email or post. Notices will be deemed to have been received 1 Business Day after sending if posted first class or 2 Business Days after posting if posted second class. Notices by fax or email will be deemed to have been received on the same Business Day provided that the fax or email is sent before 5pm.
18.2 Any waiver by the Company of any of its rights under this Agreement shall not prevent the Company from later enforcing that right or enforcing any of its rights pursuant to this Agreement.
18.3 If any provision of this Agreement is held void, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Agreement had been agreed with the void provision eliminated.
18.4 Neither party will be liable for any breach of its obligations resulting from an event of Force Majeure.
18.5 This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts.
18.6 The Customer shall not, without the prior written consent of the Company, assign or transfer this Agreement or any of its right under it to any other company, sole trader, individual, partnership or LLP.
18.7 Except in so far as this Agreement expressly provides that a third party may in its own right enforce a term of this Agreement a person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) to rely on or enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
