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CLIENT
AGREEMENT FOR THE PROVISION OF HOSTING
SERVICES-TERMS AND CONDITIONS
AKA Internet Ltd
1. Definitions
In these Conditions unless otherwise stated:
1.1 “the Charges" means the annual fee to be paid by
the Customer for the Services.
1.2 “Confidential Information” means all business, technical,
financial or other information created or exchanged between the
parties.
1.3 “Contact Details” means the contact details for
the Parties representatives including fax number and email address
as notified to each other by the Parties via e-mail.
1.4 “the Content” means all text graphics logos, photographs,
images, moving images, sounds illustrations and other material and
related documents featured and displayed or used in relation to
the Website.
1.5 “the Customer” means the person or organisation
requiring the Services and words denoting or referring to any gender
includes all genders.
1.6 “the Customer Software” means the software used
in the Website owned by the Customer or licensed to him by a third
party or the Supplier but shall not include the Supplier Software.
1.7 “the Initial Term” means the initial term for the
supply of the Services for a period of one year from the inception
of the Services
1.8 “Intellectual Property means all patents, copyright, design
rights Rights (IPR)” know- how, confidential information,
database rights, trademarks and service marks together with applications
to register any of the above.
1.9 “the Migration Services” means the Services described
in clause 9
1.10 “the Parties means the Supplier and the Customer.
1.11 “the Price List” means the prices for the Services
requested
by the Customer which will be supplied to the Customer by the Supplier
on request.
1.12 “the Service Co-ordinator” means the person from
time to time being duly appointed by the Customer to act as the
Customer’s principal representative for the purpose and supervision
of the Services as set out in the Contact Details.
1.13 “the Service Manager” means the person from time
to time being duly appointed by the Supplier to act as the Suppliers
principal representative for the purpose and supervision of the
Services as set out in the Contact Details.
1.14 “the Services” means the provision of the Services
including additional services requested by the Customer chosen by
the Customer from the Supplier’s Price List.
1.15 “the Supplier” means AKA internet Ltd company Registration
number 06316428.
1.16 “the Supplier Network” means that part of the Internet
that is directly under the control of the Supplier.
1.17 “the Terms of Payment” means the annual payment
in advance by the Customer for the Services
2. Services
2.1 Subject to the terms and conditions of this agreement the Supplier shall provide the Services to the Customer.
3 Charges and payment
3.1 The Customer shall pay the Charges to the Supplier in according
to the
Terms of Payment.
3.2 The Charges are exclusive of VAT
3.3 Additional Charges will be made by the Supplier for any Additional
Services requested by the Customer.
3.4 The Supplier may charge the Customer interest in respect of
the late payment of any sum due under this Agreement at a rate of
4% a year above the base rate from time to time of Barclays bank
or the assignee or successor in title, from the due date for payment
until payment is received.
4. Maintenance and interruptions
4.1 The Supplier shall make all reasonably endeavours to provide
the Customer with notice on its website of any planned maintenance
that might affect the provision of the Service to the Customer.
4.2 The Supplier shall make all reasonable efforts to ensure that
planned maintenance work are undertaken as soon as reasonably practicable
and completed with minimum interruption(s) of the use of the Services
to the Customer.
5 Website content and data
5.1 The Customer shall not distribute in the Content on the Website
any
material or information that:
5.1.1 infringes any intellectual property rights;
5.1.2 is in breach of any law, statute or regulation;
5.1.3 is defamatory, libellous, unlawful threatening or harassing;
5.1.4 is obscene, pornographic or indecent;
5.1.5 contain any viruses or other computer programs intended to
damage, detrimentally interfere with, surreptitiously intercept
or expropriate any personal information; or
5.1.6 is not solicited.
5.2 Where the Supplier decides that the Customer is in breach of
clauses
5.1.1-51.6, the Supplier may either-:
5.2.1 suspend the Services to the Customer for a period not exceeding
12 months or;
5.2.1 terminate the Services to the Customer immediately
5.3 No refund will be made to the Customer where the Services are
terminated or suspended under clause 5.2. 1-5.2.2 above.
5.4 For the avoidance of doubt, the Supplier does not monitor, and
will have no liability for the contents of, any communications transmitted
by virtue of the Services.
5.5 The Customer grants to the Supplier a royalty-free world wide
non? exclusive licence, to use, store and maintain the Content on
a server for the purposes of providing the Services in accordance
with the Agreement. The Supplier may make such copies as may be
necessary to perform his obligations under this Agreement, including
back up copies of the Content.
5.6 Upon termination or expiration of this Agreement, the Supplier
on request by the Customer, shall destroy or deliver, subject to
the Customer meeting the costs of destruction or delivery, all such
copies of the Content and other materials provided by the Customer.
6. Confidentiality
6.1 During the term of this Agreement the Parties may not disclose
any information as to the Terms and Conditions of this Agreement
to a third party with out the written consent of the other.
7. Liability
7.1 Notwithstanding any other provision in this Agreement, the Supplier’s
liability to the Customer for death or injury resulting from his
own negligence or that of his employees, agents or sub- contractors
shall not be limited.
7.2 The Supplier’s liability to the Customer in respect of
any breach of his contractual obligations, any breach of warranty,
any representation, statement or tortuous act or omission including
negligence arising under or in connection with this Agreement shall
be limited to the equivalent one month Charge.
7.3 The Supplier shall not be liable to the Customer for any indirect
or consequential loss the Supplier may suffer even if the loss is
reasonably foreseeable or the Supplier has been advised of the possibility
of the Customer incurring it.
8. Term and Termination
8.1 This Agreement shall commence on the date of the provision of
the Services to the Customer for the Initial Term and thereafter.
8.2 Without prejudice to any other rights of the Supplier to terminate
this Agreement, the Supplier may terminate this Agreement with immediate
effect by written notice to Customer on or at any time after the
occurrence of the following events:
8.2.1 the Customer being in breach of an obligation under this Agreement
and if the breach is capable of remedy, failing to remedy the breach
within 7 days after receipt of a written notice of the breach and
requiring its remedy;
8.2.2. the Customer becomes bankrupt,
8.2.3 the Customer passing a resolution for winding up, a court
of competent jurisdiction making an order for the Customer’s
winding up or the presentation of a petition for the Customers winding
up which if not dismissed within 7 days (other than in each case
for the purposes of solvent amalgamations or reconstruction where
the entity resulting from the amalgamation or reconstruction effectively
agrees to be bound by or assumes the Customer’s obligation
under this agreement);
8.2.4 the making of an administration order in relation to the Customer;
or
8.2.5 the Customer making an arrangement or composition with his
creditors generally or making an application to a court of competent
jurisdiction for protection from his creditors generally.
8.3 Termination of this Agreement for whatever reasons shall not
affect:
8.3.1 the accrued rights and liabilities of the Customer and Supplier
arising in any way out of this Agreement as at the date of termination
and in any particular but without limitation the right to recover
damages against the other; or
8.3.2 provisions expressed to survive this Agreement, which shall
remain in full force and effect.
9. Migration services
9.1 Prior to expiration or termination of this Agreement for any
reason the
Customer may request the Supplier to provide the Migration Services
to the Customer, or to a third party service provider identified
by the Customer.
9.2 Depending on the complexity of the Customer’s request,
the Supplier may charge for the Migration Services at his prices
for such services current at that date.
10. Assignment
10.1 The Customer shall not assign transfer, or sub-contract the
benefit and or the burden of this Agreement, make it the subject
matter of a trust or in any other manner make it over to a third
party without the prior written consent of the Supplier, which consent
shall not be unreasonably withheld.
10.2 The Supplier may assign transfer, or sub-contract the benefit
and
or the burden of this Agreement, make it the subject matter of a
trust or in any other manner make it over to a third party.
11. Force majeure
11.1 “An event of force majeure” means in relation to
either party, an event or circumstance beyond the reasonable control
of that party including (without limitation) any act of God, inclement
weather, failure or shortage of power, supplies, flood drought,
lightning or fire, strike, lock-out or trade dispute or labour disturbance,
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, war, military
operations, act of terrorism or riot, delay or failure of manufacture,
production or supply by third parties of equipment or services.
11.2 The Party suffering the event of force majeure shall not be
deemed to
be in breach of this Agreement or otherwise liable to the other
party for any delay in the performance or non-performance of any
obligations under this Agreement (and the time for performance shall
be extended accordingly) if and to the extent that the delay or
nonperformance is due to an event of force majeure.
11.3 If the event of force majeure in question prevails for a continuous
period of 3 months after the date on which it began the other party
may give notice to the party suffering the vent of force majeure
termination this Agreement. The notice to terminate must specify
the terminate date, which must not be less than 30 clear days after
the date on which the notice to terminate is given. Once a notice
to terminate has been validly given, this Agreement will terminate
on the termination date set out in the notice.
12. Dispute resolutions
12.1 All disputes at any time arising out of or in
connection with any terms of this Agreement between the parties
that cannot be resolved by the Service Manager and the Service Co-ordinator
will in the first place be referred to the managing directors of
the Customer and the Supplier.
12.2 If these persons are unable to resolve the dispute using the
Company’s complaints procedure then you must refer your complaint
to CISAS which is an independent dispute resolution services of
which the Supplier is a member. CISAS address is: www.cisas.org.uk
12.3 The decision by CISA shall be final and binding upon each of
the Parties.
12.5 For the avoidance of doubt the provisions of this clause provides
for a form of advanced dispute resolution and is not a reference
to arbitration.
13. Conflict of terms
Except as otherwise expressly provided in this Agreement and in
the event of a conflict between the terms of this Agreement and
the standard terms and conditions of the Customer or Supplier the
terms of this Agreement shall prevail.
14. Waiver
14.1 A waiver of any term, provision or condition of this agreement
shall be effective only if given in writing and signed by the waving
party and then only in the instance and for the purpose it was given.
14.2 No failure or delay on the part of any Party in exercising
any right, power or privilege under this Agreement shall operate
as a waiver of it, nor shall any single or partial exercise of any
right, power or privilege preclude any other or further exercise
of it or the exercised of any right, power or privilege.
14.3 No breach of any of the provision of this Agreement shall be
waived or
discharged except with the express written consent of the Parties
15. Invalidity
15.1 If any provision of this Agreement is or becomes invalid, illegal
or unenforceable in any respect under the laws of any jurisdiction,
whether pursuant to any judgement or otherwise:
15.1.1the validity, legality and enforceability under the law of
that
jurisdiction of any other provision; and
15.1.2 the validity, legality and enforceability under the law of
any other jurisdiction of that or any other provision, shall not
be affected.
15.2 If any provision of this Agreement is held to be void or declared
illegal, invalid or unenforceable for any reason whatsoever, that
provision shall be divisible from this Agreement and shall be deemed
to be deleted from it and the validity of the remaining provisions
shall not be affected. If any such deletion materially affects the
interpretation of this Agreement, the Parties shall use their best
endeavours to negotiate in good faith with a view to agreeing a
substitute provision as closely as possible reflecting the commercial
intention of the Parties.
16 Remedies
16.1 The rights and remedies provided for by this Agreement are
cumulative
with and not exclusive of any rights or remedies provided by law.
16.2 Without prejudice to any other rights and remedies of the Parties,
each party acknowledges for the benefit of the other that damages
might not be an adequate remedy for any breach of the provisions
of this Agreement and that accordingly, either Party shall be entitled
without proof of special damage to the remedies of injunction and
specific performance and other equitable remedies for any threatened
and actual breach of the provisions of this Agreement by the other.
17. Notices
17.1 Any notice, demand or other communications given or made under
or in connection with the matters contemplated by the Agreement
shall be in writing and shall be sent by pre paid first class post
(air mail of post from and to a place outside the United Kingdom)
in the case of the Supplier to:
AKA Internet Ltd 54 Wargrove Drive, GU470DU
Attention of: the Company Secretary or to the Suppliers e-mail address
which is www.akainternet.co.uk
In the case of the Customer to: To the Registered office of the
Customer or the e-mail address as provided by the Customer and shall
be deemed to have duly given or made as follows:
17.1.1 if personally delivered, upon delivery at the address of
the relevant party,
17.1.2 if sent by first class post, five business days after the
date of posting,
17.1.3 if sent by air mail, 15 working days after the date of posting,
17.1.4 if sent by e-mail when confirmation that the e-mail has been
sent to the recipient.
provided that if, in accordance with the provision, any such notice,
demand or other communication would otherwise be deemed to be given
or made after 17.00 hours, it shall be deemed to be given or made
at the start of the next business day.
17.2 A party may notify the other Party to this Agreement of a change
to his name, relevant addressee, address, or fax number for the
purpose of the above clause provided that such notification shall
only be effective on:
17.2.1 the date specified in the notification as the date on which
the change is to take place; or
17.2.2 if no date is specified or the date specified is less than
5 business days after the date on which notice is given, the date
falling 5 business days after that date.
18. Entire agreement
18.1 This Agreement embodies and set forth the entire agreement
and understanding of the Parties and supersedes all prior oral or
written agreements, undertakings or arrangement relating to the
subject matter of this agreement. Neither Party shall be entitled
to rely on any agreement, understanding or arrangement not expressly
set forth in this Agreement save for representation made fraudulently.
18.2 Unless otherwise expressly provided elsewhere in this Agreement,
this Agreement may be varied only by a document signed by both Parties
19. Announcements
Both Parties agree not to disclose to any third party, other than
to their respective bankers or other professional advisers on appropriate
conditions of confidentiality, the fact of details of this Agreement
or any other agreement referred to in this Agreement. The text of
any press realises or other communication to be published by or
in the media concerning the subject matter of this Agreement shall
require the approval of each Party.
20. Relationship between the Supplier and
Customer
Nothing in this Agreement and no action taken by the Parties pursuant
to this Agreement shall constitute, or be deemed to constitute,
a partnership, association, joint venture or agency of each other
or any other co-operative entity.
21. Governing law and jurisdiction
21.1 This Agreement any any dispute controversy, proceedings or
claim of whatever nature arising out of or in any way relating to
it or its formation shall be governed by and construed with the
laws of England.
21.2 The Parties irrevocably submit to the jurisdiction of the Courts
of England to hear and determine any suit or action or proceedings
or settle any disputes arising out of or in connection with this
Agreement and to enforce any judgement against their respective
assets.
22. Exclusion of third party rights
The Contracts (Rights of Third Parties) Act 1999 shall not apply
to this Agreement and no person other than the Parties to this Agreement
shall have any rights under it, nor shall it be enforceable under
the Act by any person other than the parties to it.
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