"Agreement" shall refer to the agreement between Chipmonk Computing and the customer for the provision of services by Chipmonk Computing to the customer;
"Bandwidth" shall refer to the rate of data transmission in bits per second, using Fasthosts's equipment;
"Confidential Information" shall refer to information which is identified as confidential or proprietary by either party or the nature of which is clearly confidential or proprietary;
"Customer" shall refer to you, an individual or entity which has accepted these Terms of Service;
"Fees" shall refer to the fees for the services, the pricing of which will be communicated to the customer in writing;
"Intellectual Property Rights" shall refer to any and all patents, trade marks, service marks, copyright, know-how, design rights, or any other intellectual or similar rights, whether or not registerable in any country, together with all or any goodwill relating to the same;
"Services" shall mean web design, web hosting, domain name registration, email and any other services provided by Chipmonk Computing , the details of which are as shown on www.chipmonkcomputing.co.uk;
"You", "Your" and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or beneficial interest.
2. SERVER USE
2.1 Chipmonk Computing hosted websites must not contain any of the following content. Illegal Material - This includes copyrighted works, commercial audio, video, or music files, and any material in violation of any UK legislation. Adult Material - Includes all pornography, erotic images, or otherwise lewd or obscene content. The designation of "adult material" is left entirely to the discretion of Chipmonk Computing . This also includes any sites which provide "links to" or "how to" information about such material. The customer shall ensure that no such material is supplied to Chipmonk Computing for incorporation into any web site.
3. UNLIMITED USER POLICY
3.1 High Bandwidth usage: Chipmonk Computing offers an unlimited use policy by maintaining very large ratios of bandwidth per customer. In rare cases, Chipmonk Computing may find a customer to be using server resources to such an extent that he or she may jeopardize server performance and resources for other customers. In such instances, Chipmonk Computing reserves the right to impose the High Resource User Policy for the consideration of all customers.
4. HIGH RESOURCE USER POLICY
4.1 Resources are defined as bandwidth, processor utilization or disk space. Chipmonk Computing may implement the following policy to its sole discretion: when a website is found to be monopolising the resources available, Chipmonk Computing reserves the right to suspend that site immediately. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers. Customers may be offered an option whereby Chipmonk Computing continues hosting the website for an additional fee.
5. FEES & PAYMENT TERMS
5.1 All fees for services are payable within 28 days of invoice.
5.2 All fees must be paid in UK Pounds Sterling, and all prices are subject to Value Added Tax (VAT);
5.3 Although Chipmonk Computing reserves the right to change the prices for the services at any time, all pricing is guaranteed at the price originally quoted. Any changes to the prices of services will be clearly communicated to customers, with one month's notice being given for such changes. Notice will be served via email, to the default email address provided by Chipmonk Computing ;
5.4 Customers purchasing web design will be entitled to a free .co.uk domain registration for the first two years of registration. Thereafter, all .co.uk domains which are renewed will be charged for at the prevailing price.
5.5 If payment is not made within 28 days of invoicing, the .co.uk domain may be suspended until payment has been received;
6. TERM & TERMINATION
6.1 The term of service for all annually billed services is annual.
6.2 In order to ensure continuity of service, Chipmonk Computing operates an auto renewal policy on all the services it provides to customers. Upon expiration of your initial term, your services shall be automatically renewed for the same period as your initial term, at which point Chipmonk Computing shall invoice you for a further term;
6.3 You agree that you, the customer are solely responsible for ensuring that your services are renewed, and that Chipmonk Computing shall have no liability to you or to any third party in connection with the renewal or any attempt to renew the services, including, but not limited to, any failure or errors in renewing or attempting to renew the services;
6.4 Chipmonk Computing reserves the right to terminate a customer's agreement at any time. In this event, You will be entitled to a pro-rata refund based on the unexpired term of service, unless you have contravened these Terms of Service, in which case you may not be entitled to a refund;
6.5 Chipmonk Computing shall have the right to terminate this agreement immediately should the customer fail to make payment for any service, when such payment becomes due to Chipmonk Computing .;
6.6 Either party may terminate this agreement by giving notice in writing to the other party if the other party (i) is in material breach of this agreement and fails to remedy such breach within 30 days of the receipt of a request in writing to remedy such breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the agreement, (ii) becomes the subject of a voluntary arrangement under Part 1 of the Insolvency Act 1986, (iii) is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, (iv) has a receiver, liquidator or administrator appointed over all or part of its assets or income or (v) has ceased to trade.
7.1 Customers may not cancel their service/s during the term of service;
7.2 Customers may cancel their Service/s at the end of the term of service by providing 30 days' written notice, before the end of the term of service, for that particular service on a service by service basis;
7.3 Chipmonk Computing may permanently delete all content relating to the customer's services on cancellation;
7.4 Customers will not be entitled to cancel any service if there are outstanding payments associated with that service.
8. DISCLAIMERS AND WARRANTIES
8.1 Although Chipmonk Computing regularly backs up your website and whilst every attempt would be made in the unlikely event of any corruption or hardware failure, Chipmonk Computing cannot guarantee to be able to replace lost data. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Chipmonk Computing and its employees;
8.2 Chipmonk Computing makes no warranties or representations that any service will be uninterrupted or error-free. You accept all services provided hereunder "as is" without warranty of any kind;
8.3 All implied conditions, warranties and terms (whether express or implied by statute, common law, custom or otherwise) including, but not limited to, those relating to the exercise of reasonable care and skill, fitness for purpose and satisfactory quality (where applicable) are hereby excluded in relation to each of the services to be provided hereunder to the fullest extent permitted by law;
8.4 Chipmonk Computing shall not be liable for any services or products to be supplied by any third party;
8.5 Chipmonk Computing shall not be liable for any loss or damage of whatsoever nature suffered by you arising out of or in connection with any breach of this agreement by you or any act, misrepresentation, error or omission made by you or on your behalf;
8.6 Chipmonk Computing will not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by you or for any wasted management time or failure to make anticipated savings or liability you incur to any third party arising in any way in connection with this agreement or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss;
8.7 No matter how many claims are made and whatever the basis of such claims, Chipmonk Computing 's maximum aggregate liability to you under or in connection with this agreement in respect of any direct loss (or any other loss to the extent that such loss is not excluded by other provisions in this agreement) whether such claim arises in contract or in tort shall not exceed a sum equal to the fees paid by you for the services in relation to which your claim arises during the 12 month period prior to such claim;
8.8 Chipmonk Computing shall not be liable for any interruptions to the services or outages arising directly or indirectly from (i) interruptions to the flow of data to or from the internet, (ii) changes, updates or repairs to the network or software which it uses as a platform to provide the services, (iii) the effects of the failure or interruption of services provided by third parties, (iv) factors outside of Chipmonk Computing 's reasonable control, (v) Your actions or omissions (including, without limitation, breach of your obligations set out in the agreement) or those of any third parties, (vi) problems with your equipment and/or third party equipment, or (vii) interruptions to the services requested by you.
9.1 You agree that you shall defend, indemnify, save and hold Chipmonk Computing , its officers, employees, agents, sub-contractors and affiliated companies harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against Chipmonk Computing , its agents, its customers, officers and employees, that may arise directly or indirectly as a result of any service provided or performed or agreed to be performed or any product sold by you, your agents, employees or assigns;
9.2 You agree to defend, indemnify and hold harmless Chipmonk Computing against liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed, (ii) any material supplied by you infringing or allegedly infringing the proprietary rights of a third party, (iii) Intellectual Property Right infringement, (iv) any defective products sold by you, and (v) any breach of any of your obligations or the warranties given by you in this agreement.
10. FORCE MAJEURE
10.1 Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supranational authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use or access to the IT systems of Chipmonk Computing or Fasthosts or the customer, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party's workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.
11. ENTIRE AGREEMENT
11.1 This agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and neither relied on any representation made by the other party unless such representation is expressly included herein;
11.2 Nothing in this clause shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or arbitrator may allow reliance on the same as being fair and reasonable;
11.3 This agreement supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein.
12.1 In the event that any provision of this agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this agreement unenforceable or invalid as a whole;
12.2 Chipmonk Computing will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of Chipmonk Computing as reflected in the original provision.
13.1 Each of the parties agrees not to disclose any confidential information received from the other party or make any use of any such confidential information other than for the purposes of performance of this agreement, except that (i) each party may disclose confidential information received from the other to its responsible employees, consultants, sub contractors or suppliers who need to receive the information in the course of performance of this agreement, (ii) the confidentiality obligations set out above shall not apply to any information which is or subsequently becomes available to the general public other than through a breach by the receiving party, or is already known to the receiving party before disclosure by the disclosing party or is developed through the independent efforts of the receiving party, or (iii) the receiving party rightfully receives from a third party without restriction as to use.
14.1 The failure or delay by either party in exercising any right, power or remedy of that party under the agreement will not in any circumstances impair such right, power or remedy, nor operate as a waiver of it;
14.2 The single or partial exercise by either party of any right, power or remedy under the agreement will not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy;
14.3 Any waiver by either party of a breach of or default under any of the terms of the agreement by the other party is not deemed a waiver of any subsequent breach or default and in no way affects the other terms of the agreement.
15.1 You shall not assign, sub-license or transfer your rights or obligations under this agreement to any third party without the prior written consent of Chipmonk Computing . However, in the event that Chipmonk Computing consents to such an assignment, sub-license or transfer, then this agreement shall ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns;
15.2 Chipmonk Computing may sub-contract or assign any or all of its rights and obligations under this agreement.
16.1 This agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of Chipmonk Computing .
17.1 You agree that any notice or communications required or permitted to be delivered under this agreement by Chipmonk Computing to you shall be deemed to have been given immediately if delivered by e-mail or 24 hours after despatch if sent by overnight mail in accordance with the contact information You have provided.
18. GOVERNING LAW
18.1 This agreement, and Your rights and obligations under this Agreement, shall be governed by the laws of the England, subject to the exclusive jurisdiction of the courts of England and Wales.
19 DOMAIN REGISTRATION
19.1 Chipmonk Computing registers all domain names in the name of Chipmonk Computing unless specifically asked otherwise by the customer at the time of registration;
19.2 Chipmonk Computing will accept all new registrations onto our system and register them as soon as possible after requested. However, until the domain is showing as registered to Chipmonk Computing or the customer via a WHOIS search, we do not guarantee a domain has been secured for a Customer;
19.3 The domain name registration period for domains runs for two years from the date of registration. After the initial registration period has elapsed, renewal of your domain name registration may be made upon payment of the renewal fees by you to Chipmonk Computing ;
19.4 Once a registration request has been completed, no refunds can be made by Chipmonk Computing . In addition, no refunds can be made if registration attempts have been made by the registrant within 48 hours of attempting to register the domain through Chipmonk Computing ;
19.5 Until You receive confirmation of registration from Chipmonk Computing , there is no guarantee that the domain name requested will be registered;
19.6 You agree that all details submitted in respect of a domain name registration are true and correct. You make certain to Chipmonk Computing that the registration of a domain name and the way in which it is used (directly or indirectly) does not infringe the legal rights of any third party. Chipmonk Computing not accept any responsibility for the use of registered domain names especially where there may be conflict over rights to ownership;
19.7 You agree to indemnify, defend and hold harmless, Chipmonk Computing , intermediary registrars and the registry administrators themselves, including our and their employees, directors, officers, representatives, agents and affiliates, from and against any claim, action, suit, demand, loss, damages, costs (including reasonable legal fees, expert witness fees and expenses), or other proceedings related to or arising out of the registration or use of the domain name registered through Chipmonk Computing ;
19.8 By registering a .uk domain name, you enter into a contract of registration with Nominet, on the following terms and conditions, at http://www.nominet.org.uk/registrants/aboutdomainnames/legal/terms/ and http://www.nominet.org.uk/registrants/aboutdomainnames/rules/. This is a separate contract to any arrangement You may have with any third party (i.e. Chipmonk Computing ) for the provision of services. Please read the Nominet terms before proceeding with your order;
20 DOMAIN NAME DISPUTE
20.1 The customer acknowledges that any disputes arising out of the use of its domain name/s requested by the customer will be resolved in accordance with the Nominet Dispute Resolution Service (which can be accessed at http://www.nic.uk/ref/drs.html), which may impose restrictions on the termination or transfer of a domain name/s with its current host during or pending the settlement of such a dispute.
21 WEB HOSTING
21.1 Chipmonk Computing reserves the right to suspend or cancel a customer's access to any or all services provided by Chipmonk Computing , where Chipmonk Computing decides that the account has been inappropriately used. Chipmonk Computing reserves the right to refuse service and /or access to its servers to anyone;
21.2 If Chipmonk Computing disables a site or server, we will: (i) provide follow up correspondence during office hours, detailing the reasons for the suspension and what actions, if any, You should take to rectify the situation; (ii) work with you to suggest a resolution to the issue at hand and arrange for the restoration of services in the shortest timescale possible once an agreement has been reached; (iii) not re-enable any domain or server that has a history of similar misuse; (iv) pass the account to the appropriate department to resolve any outstanding issues such as account balance or closure;
21.3 For other issues, such as email problems, Chipmonk Computing will contact you to inform you of any changes made to your account and the reasons for those changes;
21.4 If an action is taken against a site or server, you should communicate directly with Chipmonk Computing within office hours;
21.5 Restoration of any and all services suspended during a Misuse Department investigation will be considered on a case-by-case basis;
21.6 Chipmonk Computing are committed to assisting and cooperating with all law enforcement and government agencies in helping to reduce internet crime.
22.1 If Chipmonk Computing identifies a mailbox or domain that is causing problems, we will either remove the offending mailboxes or change their settings to resolve the issue. In extreme cases, we will disable email or suspend all services to the domain as appropriate;
22.2 Common issues that cause problems are: (i) where a mailbox receives large volumes of undeliverable mail; (ii) where mailboxes have forwarders set to other mailboxes where mail cannot be delivered or (iii) where mailboxes have forwarders and/or auto-responders that generate circular mail loops;
22.3 You may not use Chipmonk Computing email services for any of the following: (i) to send messages or communications, which are unsolicited, offensive, abusive, indecent or obscene; (ii) to send messages causing annoyance, inconvenience or anxiety to another user of the internet or (iii) to send messages for the purpose of fraud and /or with the intention of committing a criminal offence;
22.4 To prevent the sending of bulk unsolicited mail, SMTP traffic to and from a server may be blocked in the following scenarios: (i) where we identify a server that has an open mail relay; (ii) where a significant volume of mail is sent from a domain in a 10 minute period or (iii) where we have received significant volumes of complaints concerning unsolicited mail originating from a Fasthosts hosted server;
2.5 To prevent Fasthosts's IP addresses being blocked by IP address blocking, a domain held on Fasthosts's servers may be disabled where we have received significant volumes of complaints concerning unsolicited mail originating from a Fasthosts server, or unsolicited email being sent to promote sites being hosted on a Fasthosts server;
23. REPORTING MISUSE
23.1 In order to efficiently process your report we need you to send as much information as possible and your contact email address and phone number. Below are the details that we will need from you when investigating internet misuse. Reports will not be investigated until the details below have been received. If any of the information below is missing from your report, please re-send the information;
23.2 Reporting port scanning, attempted hacking and firewall activity: (i) where your report is based upon information obtained from a firewall, please ensure that you send the relevant unedited firewall log (or excerpt). Please ensure that the log includes the time, date and time zone; (ii) You also need to confirm that the clock on your PC is accurate and that You are using the correct time zone for your locale. If your clock is inaccurate please indicate how many minutes and seconds wrong it is (there is an online clock website to check Your PC clock, at http://www.timeticker.com/main.htm); (iii) Screenshots or image files will not be accepted as evidence of a system intrusion; (iv) If you see any other misuse on your own servers, then please send us the following information: Your URL, our web server log (showing the IP address, time, date and time zone of the IP address logging into your server), and any details of the misuse that has taken place.
23.3 Reporting email / newsgroup misuse (including spam): (i) We require the full header and content of the email / newsgroup post. The header enables us to trace the journey that an email / newsgroup post has made from the computer it originated from to the computer it was downloaded to. Please see below for instructions on retrieving full mail headers within Microsoft Outlook. If You use another mail client, please check your provider's support documentation for this information;
23.4 Reporting virus activity: (i) If You have received or been infected by a virus, worm or Trojan please note that Chipmonk Computing are unable to offer any support in their removal. We recommend that you install anti-virus software and ensure that it is updated regularly; (ii) please include the following information in your complaint: the header of the email (if one is available) and the content of the email; (iii) the email attachment that was sent to you (if any). The attachment may need to be placed in an archived file (.zip, .rar etc) for our email software to receive it.
23.5 Reporting web space abuse: (i) If you become aware of any web space hosted by Chipmonk Computing that you feel is in contravention of our Terms of Service or our Acceptable Use Policy, then please email us with the details; (ii) please send the following information: the URL, the time and date that you noticed the infringement, any details regarding how you came to view the material, and a precise description of why you believe the domain to be in breach;
23.6 Fasthosts actively reports any illegal activities that take place on our servers to the police.
24.1 At Chipmonk Computing we try our best to keep all customers happy. However, if Your complaint has not been resolved to your satisfaction, or have called us and your call has not been dealt with to your satisfaction ,then please follow the steps below in order to escalate the issue;
24.2 Stage 1: Contact us, putting your complaint in writing to the Complaints Department, at: Chipmonk Computing , 5 Lindale Drive, Wombourne, Wolverhampton, WV5 8DZ. England;
24.3 Stage 2: We will respond to your complaint, following receipt of your letter. Our Complaints Department will thoroughly investigate any issues raised and propose a course of action for resolution. You should receive our response within 14 days of us receiving your letter;