1.1. The terms used in this Agreement shall be defined as follows:
Means any computer server equipment operated by ProserveUK for the provision of Hosting and Internet Services.
Means a domain and sub domains of the website www. ProserveUK.com as owned and operated by Rivatech Solutions Ltd .
Means any agreement between ProserveUK and the Customer under which ProserveUK provides services to the Customer including any schedules as referenced.
Means any and all fees which ProserveUK may charge to the Customer for any Service or associated services provided or due pursuant to this Agreement or otherwise.
Means these terms and conditions, and those incorporated by reference.
Means a person nominated by the Customer and retained by ProserveUK as a Customer contact.
Means any Website of the Customer which is the subject of Hosting and Internet Services.
Means the customer to whom ProserveUK has agreed to provide the Services and whose details appear on the Service Order, in addition to all employees, agents, subcontractors thereof.
Means a Denial of Service attack that is designed to bring a network or service down by flooding it with large amounts of traffic.
Hosting and Internet Services
Means Shared Hosting, Web-Hosting, Email Services, and rental of associated IP Addresses.
Means The Internet Corporation for Assigned Names and Numbers (ICANN) is an internationally organized, non-profit corporation that has responsibility for Internet Protocol (IP) address space allocation, protocol identifier assignment, generic (gTLD) and country code (ccTLD) Top-Level Domain name system management, and root server system management functions.
Intellectual Property Rights
Means any and all trade marks, rights in designs, get-up, trade, business or domain names and patents in each case, future copyrights (whether registered or not and any applications to register or rights to apply to registration for any of the foregoing) rights in inventions, know-how, trade secrets and other confidential information and all other intellectual property rights of a similar or corresponding nature that may now or in the future subsist in any part of the world.
Minimum Contract Period
Means the contract duration for which the Customer agrees to subscribe to the services.
Normal Office Hours
Means, Monday to Friday 0900 till 1700 excluding all public holidays.
Means the Customers application for the Services.
Means any service provided by ProserveUK to the Customer under this Agreement.
Means written or electronic communications by authorised personnel on behalf of ProserveUK.
1.2. The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 Where relevant words denoting a singular reference shall include the plural and vice versa and words referring to an individual shall include bodies corporate, unincorporated associations as appropriate and vice versa.
1.4 Reference in these Conditions to any statutory provision shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.5 Reference to clauses and schedules in these Conditions are references to clauses and schedules to this Agreement.
2. Conditions of Service
2.1. ProserveUK employees or agents are not authorised to make any representations concerning the Services unless confirmed by ProserveUK in Writing. In entering into the Agreement the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.2. Any advice or recommendation given by ProserveUK to the Customer as to the storage, application or use of the Services which is not confirmed in Writing by ProserveUK is followed or acted upon entirely at the Customer's own risk, and accordingly ProserveUK shall not be liable for any such advice or recommendation which is not so confirmed.
2.3. The Customer warrants that there are no representations outside of this Agreement that have induced it into the Agreement and that this Agreement represents the entire understanding between the parties for the provision of Services. All other terms and conditions express or implied by statute or otherwise are hereby excluded to the fullest extent permitted by law.
2.4. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by ProserveUK howsoever generated shall be subject to correction without any liability on the part of the ProserveUK.
2.5. This Agreement and reference documents agreed in Writing ProserveUK supersede any terms as purported by the Customer in any negotiation or course of dealings between ProserveUK and the Customer.
2.6. ProserveUK may amend the terms and conditions contained herein including any and all Charges, and any such amendment will be displayed on the ProserveUK Website at least 30 (THIRTY) days prior to the implementation of the amendment. In the event that the Customer is a consumer, they may be entitled to terminate this Contract at any time up until any amendments are put into force. In the event a Customer places a further Order or continue to use the Services following the implementation of any amendment they will be deemed to have accepted such amendment unconditionally.
3. ProserveUK Obligations
3.1. ProserveUK will provide internet connectivity for Services as agreed within the Service Order for the duration and under the terms of this Agreement.
3.2. ProserveUK will provide technical support services as defined herein or within any Service Order for Services of the Customer.
3.3. Should the Customer submit any Order or undertake any activity within the provision of Services in such a way as in ProserveUK sole opinion expose ProserveUK to the risk of legal or other proceedings, regardless of locality or remoteness or expose ProserveUK to loss of any kind ProserveUK reserve the rights to refuse any Order submitted, suspend or cancel any services or take any other action as in its sole discretion it sees fit to undertake.
3.5. Further to clause 3.4 above, in order to safeguard ProserveUK interests and that of its other customers, ProserveUK reserve the right without limitation to forward and provide contact details and other related Customer information onto the police, other regulatory authority or to any third party where so requested to do so or in the event that ProserveUK be made aware of any circumstance concerning the Customers use of Services provided which is deemed by ProserveUK inconsistent with this Agreement or normal user activity.
3.6. In the event that ProserveUK make software available that has been designed and manufactured by a third party, the Customers use of the software is licensed to the Customer pursuant to separate third party terms, and the Customer unequivocally agrees that he has been afforded the opportunity to review any associated third party license and agrees to comply in full with its respective conditions. ProserveUK do not endorse any software made available, and the client holds ProserveUK harmless for its use and applicability.
4 Customer Obligations
4.1. The Customer agrees to pay all charges levied by ProserveUK by the invoice due date.
4.2. The Customer agrees to a Minimum Contract Period for the relevant Services obtained.
4.3. The Customer agrees to abide by the regulations set forth in this Agreement.
4.4. The Customer agrees not to use Services under the provision of the Agreement in methods that may violate any governing laws, regulations or other treaty as may be applicable to the activities undertaken. Furthermore, the Customer agrees that they themselves are solely responsible for all actions and activities which utilise their accounts or associated connections or services provided by ProserveUK.
4.5. The Customer acknowledges and agrees specifically to the limitations of liability and associated disclaimers contained herein unequivocally.
4.6. The Customer, directly or indirectly alone or in association with others specifically agrees and warrants that they shall;
4.6.1. Not attempt, nor reverse engineer, de-code or in any way disassemble any software provided by ProserveUK in relation to the provision of any Services;
4.6.2. Not use any technology provided by ProserveUK or any Services to relay, send, upload, post or receive replies to any unsolicited or unauthorised e-mail messages, mobile phone or data message or any other form of messaging, promotional materials, junk mail, spam, chain letters or other forms of solicitation;
4.6.3. Not enter any incorrect or incomplete name, address, email address or other requested details or other details on an Service Order or otherwise enter information with the intention to obscure a Customers identify. The client also acknowledges that it is the Customers sole responsibility to notify ProserveUK of any changes to its details and ensure that those are furnished to ProserveUK to ensure the accuracy of its records;
4.6.4. Not procure any order for service that it knows or should (after reasonable enquiry) have discovered infringes or might reasonably be considered to infringe the Intellectual Property Rights of others;
4.6.5. Not use the Services in any way that may be reasonably construed to infringe the rights of any third party, including but not limited to trade mark infringement, copyright infringement, passing off and defamation;
4.6.6. Not advertise any Website or domain or product or service offered by or through an alternative customer Website or domain hosted by ProserveUK using unsolicited or unauthorised means including junk mail, spam, chain letters or any other form of solicitation;
4.7. The Customer warrants to ProserveUK that it has assessed the risk of using the Services, understand the liability and warranties contained within the Agreement and has given due consideration to the purchase of adequate insurance. The Customer further warrants that where applicable it has in place and will continue to maintain through the provision of this Agreement adequate liability insurance covering damage in accordance with and appropriate to the nature and extent of its business activities, including but not limited to, damage to ProserveUK facilities or clients thereof or theft, physical damage, business interruption, consequential loss or any other Internet and commercial liabilities that may be relevant from time to time to time.
4.8. The Customer acknowledges that the Internet is not guaranteed to be a complete secure medium for communications, and, whilst ProserveUK has taken steps to safeguard the security of relevant information ProserveUK cannot be held responsible for any damages the Customer may suffer as a result of a loss of confidentiality (or other effect on information or data) utilised on the Internet.
4.9. The Customer shall at its own expense apply for and possess and maintain any authorisation, license, registration and/or other permit which is required to enable it to conduct its respective business and to the use of the Services. The Customer is required to comply with any conditions contained within any license or agreement (in so far as any requirement does not conflict with this Agreement) and shall keep ProserveUK fully indemnified in the event of non-compliance.
5. Security Obligations of the Customer
5.1 The Customer shall utilise all Services in Accordance with ProserveUK Acceptable Use Policy.
6.1. The Customer agrees to pay to ProserveUK the Charges, inclusive of any variation and additions from time to time as notified to the Customer in processing and in relation to the provision of Services. All charges issued to the Customer are subject to UK Value Added Tax at the prevailing rate.
6.2. The full amount of the initial cost as reflected in the Service Order, plus charges for the first billing period of Services are due and payable to ProserveUK upon acceptance of the Service Order. Thereafter, all charges will be raised in advance of the service provision for each billing period.
6.3. ProserveUK reserve the right to charge to the Customer any charges to include but not limited to sales tax, excise and ad valorem, gross receipts or any other tax or fees howsoever imposed, directly or indirectly, by any government authority agency or recognised institution, body or corporation with respect to associated services.
6.4. The Customer waives all rights to setoff or suspends any respective payment obligation for whatsoever reason.
6.5. The Customer agrees to hereby notify ProserveUK in writing to ProserveUK of any disputed Charges within 30 (THIRTY) days of the billing date for such Charges. In the event the Customer fails to dispute the invoice within the respective time period, the Customer has waived any right to dispute any amounts either directly or indirectly.
6.6. All accounts which are overdue by 30 (THIRTY) days will be charged interest from the due date of the lesser of;
(i) 2% per month on the due amount; or
(ii) the highest legal rate of interest.
6.7. ProserveUK may suspend, interrupt, or terminate Services on any account (or related account) that is overdue for payment, howsoever occurring. Activation will only be undertaken during Normal Office Hours, unless otherwise agreed in Writing by ProserveUK.
6.8. ProserveUK reserves the right to forward outstanding debts to a collection agency or their legal representatives for collection. The Customer is responsible for paying all costs associated with the collection, including but not limited to reasonable legal fees.
7. Indemnifications and warranties
7.1. The Customer agrees hereby to notify ProserveUK in the receipt of any third party claim or legal action arising out of or relating to this Agreement or the provision of Services by ProserveUK.
7.2. The Customer agrees and warrants that it shall indemnify ProserveUK and keep fully indemnified from and against all liability, claims, costs, losses, loss of profits, expenses, business interruption and other pecuniary or consequent loss to include all legal costs and expenses incurred by ProserveUK as a direct or indirect result of:-
(i) Any breach by the Customer of any of the provisions of this Agreement (or related agreement) or of any law, code or regulation thereto and/or to the Internet or Services or any application thereto;
(ii) Access to and/or use of the Service by the Customer or others;
(iii) All information, data or material stored, processed, produced, transmitted or downloaded by the Customer or others.
(iv) Any breach of intellectual property or copyright or similar infringement of third party rights.
7.3. ProserveUK reserve the right, but not the obligation, to take control of and conduct any litigation to which it may be subject to directly or indirectly by virtue of the Agreement. The Customer hereby acknowledges and agrees not to make any statement in relation to ProserveUK and/or its Services, nor any other related information, nor undertake any action or omission which may prejudice ProserveUK, without prior written approval from a director of ProserveUK.
7.4. All associated rights under the Agreement for the Customers Indemnity and obligations to ProserveUK shall continue perpetually after the termination of this Agreement for any services provided by ProserveUK to the Customer in connection with this Agreement.
8 Limitation of Liability
8.1. Except as expressly stated within this Agreement, ProserveUK specifically disclaims all implied warranties, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. Except as otherwise provided in this Agreement, any written materials provided by ProserveUK or information available from ProserveUK Website shall be for information purposes only, whether delivered or disseminated before or after the date of this Agreement, shall not create any express or implied warranties, guarantee of performance or contractual obligation.
8.2. ProserveUK entire liability under this contract to the Customer (either directly or as any third party defendant in any action proceeding or otherwise) for any claim arising out of this Agreement or Services and the provision thereof shall be limited to the amount of fees so paid to ProserveUK by the Customer under the Agreement within one year proceeding when any valid claim arose.
8.3. In no event shall ProserveUK be liable in Contract, Tort (including negligence or breach of statutory or related duty) or otherwise howsoever and regardless of the cause to include but not be limited to:
(i) Any changes to ProserveUK operations, procedures, products or other services which render obsolete or require modification or alternation to any of the Customers hardware or software;
(ii) Increased costs or expenses;
(iii) Any error or interruption to Services;
(iv) Any claim that a domain name, Website content or other information utilised in the Services by the Customer as may be provided by ProserveUK infringe any Intellectual Property Rights;
(v) Loss of any profits, contracts, business opportunities, revenues or related savings;
(vi) The consequence of any failed or unsuccessful domain name, registration or renewal, e-mail communication or related information or data transfer; or
(vii) Any failure of any Service, e-mail, non-receipt and mis-routing of communications.
8.4. The Customer acknowledges that the provisions of clause 8 satisfy the requirements of reasonableness specified in the Unfair Contract Term Act 1977 and that it shall be stopped from claiming to the contrary at any future date in the event of any dispute with ProserveUK concerning ProserveUK liability. In the event that the Customer is an individual as defined under Consumer Transactions (Restrictions on Statements) Order 1976, the statutory rights of the Customer are not affected by this provision.
8.5. ProserveUK will provide any Service to the Customer with reasonable skill and care.
9. Relationships and assignments
9.1. The Customer acknowledges that there is no contract between ProserveUK and any customers or agents of the Customer as a result of this Agreement and the use of ProserveUK Services. The Customer agrees to indemnify and hold harmless ProserveUK for any claim sought by any agents or customers of the Customer against ProserveUK howsoever arising.
9.2. This Agreement does not create nor shall it be deemed to construe any partnership, joint understanding or any other joint venture between the Customer and ProserveUK. The Customer has no authority, express or implied to hold itself out as an agent or otherwise servant of ProserveUK or to make any representations or similar activity on the behalf of ProserveUK.
9.3. ProserveUK deem this contract as personal with the Customer, and the Customers rights may not be assigned, sub-licensed or transferred in any manner without the Written agreement of ProserveUK.
9.4. ProserveUK shall be entitled to transfer this Agreement in addition to all rights and liabilities or any parts thereof arising out of such and without limitation.
10 Termination of the agreement
10.1. The Customer shall furnish on ProserveUK Written notice of intention to cancel within the respective notification period, after any applicable Minimum Contract Period defined under this Agreement.
10.2. ProserveUK reserve the right to cancel this Agreement (or any other with the Customer) for any reason and at any time by the provision of 14 days written notice, unless otherwise stated within the Agreement. Written notice will be furnished to the Customer at their specified contact address and e-mail account and services will be deemed delivered;
(i) By e-mail, one day after issue;
(ii) By facsimile, the same business day; or
(iii) By Post - two days after day of postage.
to the Customer at their specified contact address and e-mail account. Any outstanding fees which are paid in advance of cancellation will be pro-rated and refunded by ProserveUK if ProserveUK execute their right of cancellation and the Customer is not in violation of any Agreement with ProserveUK.
10.3. ProserveUK reserves the right and without liability to immediately and devoid of notice suspend or otherwise terminate any Service for any material breach (or perceived breach) or repeated breach of the Agreement, or to safeguard the interests of ProserveUK against the actions of the Customer howsoever occurring.
10.4. ProserveUK reserve the right to issue 14 (FOURTEEN) days notice to the Customer to request compliance with any breach or activity which may cause in ProserveUK sole opinion damage to itself or others. ProserveUK reserve the right to investigate a breach and undertake whatever action necessary to resolve all matters. ProserveUK reserve the right to charge all associated costs and professional fees to the Customer howsoever incurred in relation to any investigation and consequential action stemming from this Agreement, regardless of its nature.
10.5. ProserveUK may terminate this agreement in the event the Customer shall be unable to pay its debts or enters into voluntary or compulsory liquidation or in the event that any manager or administrator be appointed to administer the Customers affairs or for any other reason under which ProserveUK may deem the Customer unable to pay any debts or future liabilities which may be payable under this Agreement.
11. Force Majeure
11.1. ProserveUK shall not be responsible or liable for any failure or delay or consequence thereof in the performance of its obligation under this Agreement owing to strikes, lockouts or other industrial disputes (whether or not involving the workforce of any party), Act of God, embargo, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, direction, regulation, accident, breakdown of plant or machinery, fire, flood or storm or to any other cause whatsoever beyond ProserveUK reasonable control or after the effects of the foregoing. If any such delay occurs then (unless the cause therefore shall frustrate or render impossible or illegal the performance of the relevant Agreement which shall otherwise discharge the same) the period for ProserveUK to perform its obligations hereunder shall be extended by such period (which for the avoidance of any doubt is not limited to the lengths of delay) as ProserveUK may reasonably require to complete such performance obligations.
11.2. In the event that ProserveUK shall have cause to rely on clause 11.1 above, ProserveUK shall upon becoming aware of an occurrence of Force Majeure furnish such notice to the Customer in addition to details of the circumstances where relevant.
11.3. In the event that a Force Majeure occurrence shall continue or may be reasonable expected to continue for a period of more than 1 (ONE) calendar month, ProserveUK may mutually agree with the Customer to terminate this Agreement.
12. Governing law and jurisdiction
12.1. This Agreement is made under the laws of England and Wales and the Customer hereby unequivocally accepts and consents to the exclusive jurisdiction of the courts of England and Wales.
12.2. No waiver by ProserveUK of any breach of the Agreement by ProserveUK shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3. If any terms of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.