GENERAL TERMS AND CONDITIONS OF SERVICES
Version Date October 14 2013
1. Interpretation In these General Conditions, and in any Special Conditions applicable to the Contract:
The following terms shall have the following meanings unless the context otherwise requires:
Conditions: these General Conditions and the Special Conditions which are applicable to the Contract between the Customer and the Supplier.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Services, in accordance with these Conditions.
Customer: the person, firm or company who purchases Services from the Supplier.
Customer ID: the Customer’s account number in relation to any Service which allows access to the Management Interface. Diagnostics: analysis conducted by Supplier at the Customer’s request to identify a malfunction of the Service.
Documentation: the documentation and tools made available to the Customer on the Supplier’s website.
Hardware: the equipment, cabling and systems provided by the Supplier in connection with the Services. Incident: a problem or malfunction of the Service.
Keywords: those words notified to the Customer by the Supplier which control the Customer’s access to some of the Services, including, without limitation a password and username. Order: a request made by the Customer to the Supplier for Services to be supplied under the Conditions.
Quotation: a proposal sent by the Supplier to the Customer for the provision of certain Services at the quoted price.
Server: the computer server equipment operated by the Supplier in connection with the provision of the Services.
Services: the internet-related services described in the Order which are provided or to be provided by the Supplier under these Conditions (and any applicable Special Conditions).
Software: the computer software provided by the Supplier in connection with the Services.
Special Conditions: any additional terms and conditions agreed between the Customer and the Supplier in writing.
Supplier: DDHOSTED located at www.ddhosted.com
Technical Assistance: the provision by the Supplier of documentation and assistance to the Customer in relation to the installation and use of the Service by the Customer.
GST: Sales tax chargeable under Romanian law to all orders placed within Romania.
Working Day: means a day other than a Saturday, Sunday or a bank or public holiday in Romania.
In the event of any conflict between these General Terms and Conditions, and any Special Conditions applicable to the Contract, the Special Conditions shall prevail.
Application of conditions The Conditions shall apply to any Contract between the Supplier and the Customer for the provision of Services; and shall prevail over any terms or conditions or other contractual documents submitted by the Customer or implied by law, trade custom, practice or course of dealing. The Supplier shall be entitled to amend the Conditions at any time. Upon receipt of such notice, the Customer shall be entitled to terminate the Contract with effect from the date of the notice, such termination to be notified to the Supplier no later than 30 days from the date of the notice (time being of the essence). The Customer shall not be entitled to any refund of the fees and shall remain liable for any fees previously due. Failure to give such notice of termination shall be deemed acceptance of the new Conditions. Any renewal of the Services shall be subject to the Supplier’s Conditions current at the date of renewal. The Order constitutes an unconditional offer by the Customer to purchase the Services specified in it on the Conditions. A contract for the supply and purchase of those Services on the Conditions shall be created when the Supplier accepts the Order.
Upon receipt of a validly completed order, the Supplier shall send the following emails to the Customer at the Customer’s email address specified in the Order: a first email acknowledging receipt of the Order ; a second email confirming that the payment of the fees by the Customer has been received by the Supplier; a third email containing any Keywords necessary to enable the Customer to gain access to the Services.
The Supplier reserves the right at any time and from time to time to amend, improve or correct the Services, Software and/or Hardware (or any part thereof) provided that such modification does not materially affect the Services, Software and/or Hardware (and any part thereof). This includes the right to substitute Hardware (or any part thereof) with hardware of similar specification, where necessary. The Supplier shall process the Customer’s personal data in compliance with the Data Protection Acts 1988-2003 and the Supplier’s privacy and Security Policy. The Customer hereby consents to such processing of such personal data for the purpose of the provision of the Services.
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”), provided that it: (a) promptly notifies the Customer of the nature and extent of the Force Majeure Event causing its failure or delay in performance and keeps the Customer regularly informed by email or otherwise of the likely duration of the Force Majeure Event; and (b) has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
The corresponding obligations of the Customer will be suspended to the same extent as those of the Supplier affected by the Force Majeure Event. If the Force Majeure Event prevails for a continuous period of more than 30 days, any party may terminate the Contract by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination. The Supplier shall have no liability to the Customer under the Contract if the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act, omission, fault or negligence of the Customer or the Customer’s agents, sub-contractors or employees, and in particular due to: (a) (b) Damage to the Customer’s equipment, software or telecommunications links; Wrongful use of the Software, including by the Customer or the Customer’s clients, or non-compliance with any operating instructions given by the Supplier; Disclosure, unlawful or fraudulent use of the Keywords; Fault, negligence or omission by a third party not connected to the Supplier; Issue by a competent authority of an order which is binding on the Supplier and which affects the Services; Total or partial loss of the material and/or data uploaded due to an error by the Customer; or Incompatibility of the Software with any of the Customer’s equipment, software or telecommunications links.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
The Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for that part of the Services to which the liability relates.
The Customer acknowledges that there is a risk that any material or data generated, stored, transmitted or used via or in connection with the Services may be irretrievably damaged or lost if there is a failure or on suspension or termination of the Services and that the Supplier shall be under no obligation to back-up all such material or data. The Customer shall take any precautionary measures for preserving such material or data in the event of loss, or damage, however caused. (The Supplier recommends customers to back up their material at least once a month). Customer’s obligations The Customer warrants that: (a) it has the power and authority and all requisite or desirable legal consents and authorizations legally to enter into and perform its obligations under the Contract. it has received all relevant information and advice from the Supplier before placing the Order and that it has satisfied itself that the Services shall be suitable for its particular needs. its use of the Services will not infringe any third party intellectual property or other rights.
The Customer shall not knowingly use the Services, Software, and/or Hardware or allow them to be used for any unlawful purpose or to send SPAM or for the publication, linking to, issue or display of any unlawful material (which shall include without limit any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including without limit intellectual property rights) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under Canadian law or regulations, the laws or regulations of the Customer’s country or any other place where the results of such purpose or such material can be accessed; not knowingly use the Services, Software and/or Hardware or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of the Supplier may harm the Supplier or any of its clients or bring the Supplier into disrepute or may call into question any action taken by the Supplier on the Customer’s behalf; not provide any technical or other information obtained from the Supplier and/or relating to the Services, this Agreement or the Contract to any person, company, firm or government which the Customer knows or ought reasonably to be aware may directly or indirectly lead to a breach of any Canadian law or regulation; not knowingly use the Services, Software and/or Hardware or allow them to be used in breach of the Terms of Service, and shall bring it to the attention of the Customer’s authorised users; provide the Supplier with accurate contact details, bank details and email address, the Services; reasonable instructions and requests immediately notify the Supplier by email if it becomes aware of any unauthorised use of all or any of the Services, Software and/or Hardware; ensure that all Keywords are at all times kept confidential, used properly and not disclosed to unauthorised people and if the Customer has any reason to believe that any Keyword has become known to someone not authorised to use it or if any Keyword is being or is likely to be used in an unauthorised way or the Customer is aware of any other breach of security then the Client shall inform the Supplier immediately. For the avoidance of doubt, the Customer shall be solely responsible for any unauthorised and/or fraudulent use of the Keywords whether such unauthorised and/or fraudulent use is due to its own default or that of its agents, subcontractors or employees, omission or negligence. Any change of Keywords, at the Customer’s request, will be charged to the Customer on a time-and-material basis.
The Customer shall inform the Supplier promptly in the event of any actual or suspected security breaches in connection with the Services; provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects; ensure that it has all necessary consents, permissions and licences to make use of the Services including without limit registration under the Data Protection Act 1998; use the Services in a manner consistent with any and all applicable laws and regulations including but not limited to the Data Protection Acts19882003; maintain appropriate insurance cover in respect of its liability arising out of or connected with this Contract with a reputable insurance company.
The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any act of negligence, default, or willful misconduct by the Customer, failure by the Customer to comply with its obligations under this Contract or any use made by the Customer of the Services.
Customer enters into the Contract as a consumer, at the rate that would be applicable thereunder were the Customer not a consumer, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; suspend all Services until payment has been made in full; declare that all sums due by the Customer under any contract with the Supplier are immediately payable; and refuse to enter into any further contract with the Customer for the provision of any services by the Supplier.
Time for payment shall be of the essence of the Contract. All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract. The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer. The Customer may not dispute any fees and/or Services unless the Customer notifies such dispute to the Supplier by email at: email@example.com within 30 days from the Order. Limitation of services The Supplier acknowledges that given the nature of the Internet and the fluctuation of the bandwidth, the Services provided by the Supplier may be subject to variation. The Supplier shall be entitled to restrict or suspend the Services if: the Customer uses the Services for an activity which contravenes the principles contained in the Acceptable Use Policy; the Customer commits any serious or persistent breach of any of its obligations under Conditions; an order which is binding on the Supplier is issued by a competent authority; the Supplier wishes to carry out routine or emergency maintenance, repair or upgrade to the Services; or this is permitted under any Special Conditions applicable to the Services.
Intellectual property rights
The Customer acknowledges that the Supplier shall retain ownership of all intellectual property rights relating to the development or supply of the Services including all methodologies, know-how and processes used and in any information, software or other data created by the Supplier as part of the Services (the “Materials”). The Supplier shall grant a non-exclusive revocable licence to use, store and view on the Customer’s own internal computer network the Materials made available to the Customer as part of the Services. The Customer shall be entitled to cancel the Contract by giving written notice to the Supplier by email at firstname.lastname@example.org. The Customer hereby consents to the Supplier commencing provision of the Services, shall cease to apply once the Supplier has commenced such provision. Term and Termination The Contract shall commence on the date notified by the Supplier and shall terminate automatically on the expiry date specified in the Order (the “Expiry Date”). The Supplier shall notify the Customer of the Expiry Date by sending at least 1 reminders by email to the last email address notified and updated by the Customer from time to time. Unless: the Supplier is entitled to terminate the Contract under general conditions; or the Supplier gives the Customer not less than 30 days notice by email that no right of renewal will apply if the Contract expires on the Expiry Date; or the Special Conditions provide otherwise; the Supplier shall give notice to the Customer (a “Renewal Notice”) by email offering the Customer the opportunity to renew the Contract for a further period as specified in the Renewal Notice, subject to the Supplier’s Conditions current at the date of renewal, upon payment of the renewal fee specified by the Supplier in the Renewal Notice. If the Supplier receives such payment in full and in clear funds no later than the Expiry Date, the Contract shall be renewed for the further period specified in the Renewal Notice. If the Customer fails to pay the renewal fee on or before the Expiry Date (time being of the essence), the Contract shall expire automatically on the Expiry Date.
The Customer shall be entitled to terminate the Contract at its convenience at any time by giving notice to the Supplier, such notice to be given pursuant. For the avoidance of doubt, the Customer shall not be entitled to the reimbursement of the fees (or part thereof) by the Supplier in such circumstances. The Supplier shall be entitled to terminate the Contract at any time and without incurring any liability if: (a) the provision of the Services to the Client affects or may affect the safety or stability of the Supplier’s equipment or software. The Supplier shall use reasonable endeavors to notify by email the Customer in advance of such termination; or there is a change of control in the Customer.
Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if: (a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach; or an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or an order is made for the appointment of an examiner to the other party, or a petition is filed with a court of competent jurisdiction for the appointment of an examiner to the other party; or a receiver is appointed over any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or the other party ceases, or threatens to cease, to trade; or the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
Status of pre-contractual statements
Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract.
The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way(including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Third party rights
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
Unless otherwise provided, any notice under the Contract shall be in writing and shall be delivered by email to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes.
Dispute Resolution If any dispute arises in connection with the Services, the parties shall first attempt to resolve such dispute amicably between themselves. Should such attempts fail to lead to a solution satisfactory to both parties, the parties shall attempt to settle the dispute by mediation in accordance with the Model Mediation Procedure of the Centre for Effective Dispute Resolution (CEDR). Unless otherwise agreed between the parties, the mediator will be nominated by CEDR and the mediation will take place in Dublin, Ireland. To initiate the mediation a party must give notice in writing (“ADR notice”) to the other party to the dispute requesting mediation. A copy of the request should be sent to CEDR.
Governing law and jurisdiction
The Contract and any disputes or claims arising out of or in connection with its subject matter, including its existence and validity, are governed by and construed in accordance with the laws of Ireland. The parties irrevocably agree that the courts of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.
SPECIAL CONDITIONS FOR WEBSITE HOSTING SERVICES ON A DEDICATED SERVER
Version Date October 14 2013
The Supplier provides different categories of Dedicated Servers. The hardware and software configurations, and the different tariffs applicable, are specified on the Supplier’s website at www.ddhosted.com.
In these Special Conditions, the terms defined in the General Conditions shall have the same meanings and the following terms shall have the following meanings unless the context otherwise requires:
Content: the text, information, image, audio or video material and other data placed on the Dedicated Server by or on behalf of the Customer, including data which the Customer permits third parties to place on the Dedicated Server.
Dedicated Hosting Services: the hosting of the Website on a Dedicated Server for the Customer’s exclusive use.
Dedicated Server: the Supplier’s server at www.ddhosted.com on which the Website shall be hosted for the purpose of the Dedicated Hosting Services, and which shall have a fixed IP address assigned to it.
Website: the Customer’s website(s) to be hosted on the Dedicated Server (including all data on such website(s) which is necessary for the publication and exchange of information via the Internet).
2. Application of Conditions
These Conditions (together with the General Conditions) shall apply to any Contract between the Supplier and the Customer for the provision of Dedicated Hosting Services and shall prevail over any terms or conditions or other contractual documents submitted by the Customer or implied by law, trade custom, practice or course of dealing. In the event of conflict between these Conditions and the General Conditions, these Conditions shall prevail.
3. Dedicated Server
The Dedicated Server shall remain the property of the Supplier at all times. The Customer shall not be entitled to sell, transfer, lease, charge, assign by way of security or otherwise deal in or encumber the Dedicated Server.
In order to maintain adequate security levels of the Dedicated Server and of all the servers hosted by the Supplier, the Supplier shall inform the Customer by email of the availability of Software upgrades for which a high level security failure has been noticed. The Supplier shall be entitled to disconnect the Dedicated Server if such upgrades are not carried out by the Customer within the timeframe specified in the Supplier’s notification.
4. Supplier’s obligations
The Supplier shall provide the Dedicated Hosting Services with reasonable care and skill and in accordance with best industry practice. The Supplier shall provide the Hardware and Software necessary for the provision of the Dedicated Hosting Services. The Supplier warrants that the Hardware, Software and the Dedicated Server shall perform substantially in accordance with the specifications set out in the Order.
The Supplier shall use its reasonable endeavours to ensure that:
(a) the Hardware and Software is maintained in good working order and in accordance with best industry practice;
(b) any defect, error or malfunction of the Hardware or Software is remedied as soon as is reasonably practicable, and the Client is informed promptly if such repair or replacement requires the Dedicated Hosting Services to be suspended;
(c) any disruption to the Dedicated Hosting Services which does not result from any breach by the Customer shall be rectified as soon as is reasonably practicable following a request from the Customer;
If the level of activity on the Website exceeds that specified in the Order, the parties shall seek to agree an increased bandwidth usage and the corresponding additional fees. In default of agreement, the Supplier may suspend Hosting Services;
The Supplier shall inform the Client by email as soon as reasonably practicable if any maintenance, repair or upgrade requires the Dedicated Hosting Services to be suspended and shall inform the Customer of the likely duration of such suspension.
5. Supplier’s liability
The Customer acknowledges that the Supplier shall not be responsible for any failure or malfunction of the Dedicated Server. The Supplier shall have no liability to the Customer under the Contract in the event of:
any act, omission, fault or negligence of any third party, and in particular any unauthorised access to the Website or the Content;
any act of piracy, viruses, worms, trojan horses or other harmful codes that affect or may affect the Dedicated Server, the Website and/or the provision of the Dedicated Hosting Services;
any actual or suspected security breaches in connection with the Dedicated Hosting Services; any loss following the uploading of the Website to another server or IT system;
any modification (or attempted modification) of the Software by the Customer or a third party not authorised by the Supplier;
any loss caused by the operation or non-operation, use or non-use of the Website or the Content;
downtime caused by routine or emergency maintenance, repair or upgrade to the Dedicated Hosting Services provided that, if such maintenance, repair or upgrade requires the Dedicated Hosting Services to be restricted or suspended, the Supplier shall use reasonable endeavours to notify the Customer by email as soon as reasonably practicable in advance of the likely duration of such restriction or suspension and shall endeavour to resume the Dedicated Hosting Services as soon as reasonably practicable;
any interruption, partial or total failure of the Dedicated Hosting Services due to any variation of the bandwidth or any failure of the Supplier’s ISP/Access Provider.
If the Supplier becomes aware that the security or integrity of the Website has been compromised, the Supplier shall inform the Customer by email and, at its sole discretion, the Supplier may require that the Content be re-installed. The Supplier shall be entitled to protect the integrity of the Dedicated Server by disconnecting it from the Internet until the Website has been reinstated. The Customer shall be responsible for reinstalling the Content. The Supplier’s sole responsibility shall be to reconnect the Website to the Internet once it has been reinstated.
The Supplier cannot guarantee that the Dedicated Hosting Services will be maintained in the event the Customer’s usage of the bandwidth exceeds 101Mbps, although the Supplier shall use its reasonable endeavours to do so. The Customer shall, on demand, provide evidence of compliance with the warranties contained in Conditions of the General Conditions and shall not be entitled to avail of the guarantee if it cannot provide such evidence.
6. Customer’s obligations
The Customer shall be solely responsible, to the satisfaction of the Supplier, for: (a) managing the Dedicated Server, and for any loss or damage to the Dedicated Server, and shall put in place appropriate insurance cover to cover the risk of any such loss or damage. The Customer may not claim any reimbursement, replacement, or compensation from the Supplier in any circumstances; any loss or damage to the Website, and shall put in place appropriate insurance cover to cover the risk of any such loss or damage. The Customer may not claim any reimbursement, replacement, or compensation from the Supplier in any circumstances; uploading the Content onto the Server and checking that it functions satisfactorily.
The Supplier shall not be responsible for any failure of the Customer to upload the Content correctly, and shall not be responsible for providing support in relation to the control and operation of the Content; the Content, for the conception or development of the Website, and for the Customer’s equipment, systems or software necessary for the management of the Website. The Supplier shall have no obligation to validate or vet the Content for usability, legality, content or correctness and shall not, in any event, be liable towards the Customer or any third party for any loss arising from or in connection with the Content; complying with all applicable laws and regulations concerning the Content, including (without limitation) for ensuring that the Website contains all information concerning the Customer, its products and the conduct of its business which are required or are desirable under applicable laws;ensuring that the Content, any material linked to the Website and any activity conducted via the Website do not breach the rights of any third parties including without limitation any intellectual property rights. making regular back ups of the Content on any website from time to time.
The Customer shall use its best endeavours to ensure that all Content on the Website does not contain any viruses and/or other harmful code.
The Supplier shall be entitled to terminate the Dedicated Hosting Services without cause at any time and without incurring any liability. The Supplier shall be entitled to suspend the Dedicated Hosting Services without incurring any liability if, in the Supplier’s view, the Customer commits a breach of these Conditions and of the General Conditions, any breach of Conditions shall be deemed to be a material breach of the Contract. The Supplier shall be entitled to disconnect the Dedicated Server and/or to erase the Content and any material uploaded on the Dedicated Server at the Expiry Date or forthwith upon the termination of the Contract for any other reason whatsoever without incurring any liability towards the Customer.