technology solutions for business

Terms & Conditions

  1. Definitions
    1. The words below have the following meanings:
      1. ‘Acceptable Use Policy (AUP)’: the rules governing your use of the Connection, as the same may be updated from time to time, a copy of which is available on request;
      2. ‘Agreement’ this agreement made between us including the Customer Information Sheet, these terms and conditions and all relevant schedules hereto;
      3. ‘Change Request’: a request from either of us for a change to the Services which shall be submitted to the other in the form of the pro-forma change request, an example of which is at Schedule Two;
      4. ‘Connection’: interactive connectivity with the Internet procured via Our Network;
      5. ‘Connection Fault’: any failure by us to provide the Connection which can be demonstrated at the Location by means of a ping or trace route program or other suitable means. A Connection Fault does not include a Hardware Fault, a Software Fault, Scheduled Down Time, or Third Party Faults;
      6. ‘Contact’: the member of your staff named in the Customer Information Sheet as the contact for us;
      7. ‘Customer Information Sheet’ the first part of this Agreement containing information specific to our provision of the Services to you;
      8. ‘Expiry Date(s)’: the date(s) set out in the Customer Information Sheet;
      9. ‘Fault’: a Connection Fault; or a Hardware Fault where you have asked us to provide Hardware Maintenance Services or we are providing Third Party Management Services in respect of your hardware maintenance services provider; or a Software Fault where you have a separate agreement with us to provide Software Maintenance Services or we are providing Third Party Management Services in respect of your software maintenance services provider;
      10. ‘Force Majeure’ any cause preventing either of us from performing any or all of our obligations under this Agreement which is attributable to acts events omissions or accidents beyond the reasonable control of the affected party;
      11. ‘Hardware Fault’: the failure of the Host Server to function in accordance with the manufacturer’s specification, including failures of the operating system of the Host Server;
      12. ‘Hardware Maintenance Services’: the correction of Hardware Faults;
      13. ‘Host Server’: the computer hardware connected to the Internet on which your Software is stored;
      14. ‘Hosted Security Equipment’: the equipment and its software or firmware connected to the Internet that provide a security solution;
      15. ‘Hosting Services’: the provision by us of rack space for a Host Server that is owned by you, or the provision by us to you of space on a shared Host Server, or the provision by us of a Host Server which is exclusively for use by you, as selected by you on the Customer Information Sheet;
      16. ‘Intellectual Property’: all inventions, domain names, patents (including any software patents), registered designs, design rights, copyrights, know-how and trade marks (whether registered or not) and the goodwill in them and applications for any of them and all rights of a similar nature throughout the world;
      17. ‘Location’: the premises at which the Hosting Services and/or the Connection are to be provided;
      18. ‘Network’: the communications equipment, hardware, software and circuits used together or separately and controlled by us to provide the Connection to the Host Server, or in the case of co-location Hosting Services to the rack in which a Host Server belonging to you is stored, or where a standalone Connection is provided, to your hardware;
      19. ‘Payments’: the payments listed in the Customer Information Sheet;
      20. ‘Required Consent’ means any consents or approvals required to give us the right to provide the Services to you specifically as opposed to the Services in general;
      21. ‘Scheduled Downtime’: any period during which you cannot utilise the Connection, Host Servers or Network due to our planned or routine maintenance or support;
      22. ‘Services’: the Connection, plus any other related service that you have agreed to take, as indicated on the Customer Information Sheet;
      23. ‘Software’: software that is either owned by you or licensed to you which is loaded onto the Host Server, excluding the operating system of the Host Server or any other software which is sub-licensed to you by us solely as part of the Services;
      24. ‘Software Fault’: a failure of the Software to function in accordance with its specification;
      25. ‘Software Maintenance Services’: means the correction of Software Faults;
      26. ‘Start Date(s)’: the start date(s) set out in the Customer Information Sheet;
      27. ‘Term’: from the Start Date until the Expiry Date or until earlier termination in accordance with the Agreement;
      28. ‘Third Party Fault’: a Fault which is due to the failure of the power supply to the Location, or where the Connection is via a third party telecomms provider, a Fault which is due to the failure of the connection provided by the third party telecomms provider, or any Fault which is the result of a Force Majeure situation which affects our ability to provide the Services;
      29. ‘Third Party Management Services’: the management of third party hardware maintenance, software maintenance and other information technology service providers on your behalf as your agent;
      30. ‘Working Day’: Monday to Friday between the hours of 9am and 5pm GMT excluding United Kingdom public holidays.
    2. Any phrase preceded by the terms ‘including’ and ‘in particular’ shall be construed as being illustrative and shall not limit the sense of the words preceding those terms.
  2. Appointment
    1. You appoint us to provide the Services for the Term in return for the Payments subject to the terms and conditions of the Agreement.
    2. These terms and conditions apply to all supplies of the Services unless we agree otherwise in writing.
  3. Fault Reporting
    1. We will provide telephone Fault logging and Fault resolution services in accordance with Schedule One.
  4. Hardware Maintenance Services
    1. If you have indicated on the Customer Information Form that we are to provide Hosting Services on either a shared or a dedicated Host Server, we will provide Hardware Maintenance Services in respect of those Host Servers within the time spans laid down in Schedule One.
    2. We will monitor the availability of the hardware every 15 minutes using remote management tools.
  5. Software Maintenance Services
    1. We will provide Software Maintenance Services in respect of Software that has been developed by us, subject to the terms of a separate Support and Maintenance Agreement between us.
    2. We will provide Software Maintenance Services in respect of Software that has not been developed by us subject to the terms of Schedules Six, Seven and Eight
  6. Performance Reporting
    1. We will provide you with a performance report in the form attached at Schedule Nine.
    2. We may from time to time publish management information on a private web site. You may require additional hardware or software to access this information.  We will provide such additional hardware and Software to you at a fee to be agreed.
  7. Review of Services
    1. We will conduct a review of the Services with you in accordance with the terms in Schedule Ten.
  8. Change Management
    1. If, at any time there may be a need to change all or any part of the Services as part of the Fault resolution procedure or as a result of a Change Request issued by one of the parties, we will raise a change ticket and send it to you by email to the address provided in the Customer Information Sheet.
    2. We will accept Change Requests on a Working Day.
    3. We will then agree with you the scope of the work required to implement the Change Request and perform an assessment of the impact of the Change Request.
    4. If the change requested in Our reasonable opinion would involve minor or negligible change to the Services or impact on either of us, then we will perform the work in the Change Request within eight working hours of the Change Request being submitted.  For the avoidance of doubt, a Change Request which if implemented would result in an increase in Payments by you will not be classified as involving a minor or negligible change to the Services or impact on either of us.
    5. Where the change requested is not minor or negligible or of minor or negligible impact, we will propose and agree with you a work plan and any costs that will be associated with the implementation of the Change Request.
    6. If the Change Request originated with you, on receiving the work plan and the details of the costs associated with implementing the Change Request, you will be entitled to withdraw the Change Request, or to accept it, in which case the Change Request will be implemented within a reasonable period of time.
    7. If the Change Request originated with us, you will not unreasonably withhold or delay consent to any Change Request that was submitted by us to remedy a Fault in the Services or in Our Network in general.
    8. Until such time as a Change Request is formally agreed between us, we will continue to perform our respective obligations under this Agreement without taking account of the Change Request.
    9. We reserve the right to make a charge for considering a Change Request submitted by you at our then current rates in force, and we will not be liable for any delay to the Services directly arising from a Change Request submitted by you.
    10. We may make changes to this Agreement as necessary to allow us to comply with any legislation or regulation affecting the provision of the Services.  We will not require your consent to make these changes, but we agree to notify you as reasonably possible after making any such change.
  9. Data Protection
    1. We understand that you may have obligations under the Data Protection Act 1998.
    2. You understand and accept that as a consequence of providing the Services we may have access to and process personal data that you hold. You authorise us to do so and confirm that this is necessary for the purposes of your legitimate business interests.
    3. If in the course of providing the Services we have access to personal data you hold, we will only access and use this to supply the Services and will stop this access and use immediately on termination of the Agreement
    4. We shall treat all personal data held by you as confidential information and will process it in accordance with the Data Protection Act 1998
  10. Regulation of Investigatory Powers
    1. You understand and accept that in providing the Services we may intercept communications on the Network in the course of their transmission.
    2. You confirm that in doing so we will be acting with your consent and that the interception is authorised for the purpose of the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 and any subsequent or similar applicable legislation.
    3. You warrant that you have made all reasonable efforts to inform all users authorized by you to make communications using the Services that communications so made may be intercepted by us.   
  11. Additional Required Consents
    1. You will be responsible for promptly obtaining and providing to us all Required Consents.
    2. You will indemnify, defend and hold us harmless from and against any and all claims, losses, liabilities and damages (including reasonable legal fees and costs) arising from or in connection with any claims made against us alleged to have occurred as a result of your failure to provide any Required Consents.
    3. We will be relieved of the performance of any obligations that may be affected by your failure to promptly provide any Required Consents to us.
  12. Our Breach of the Agreement
    1. If we are in material breach of the Agreement you must give us written notice of the breach within three Working Days of it coming to your attention or in any event within 28 days of the end of the Term.
    2. We will as soon as reasonably possible remedy the breach as far as possible, or provide a workaround solution in accordance with standard industry practice.
    3. We will not be required to fulfil our obligations under the Agreement if at any time we are prevented from doing so by any of your acts or omissions or those of your employees, consultants or contractors.
  13. Your obligations
    1. In return for the Services we are providing under the Agreement you agree:
      1. to make the Payments within 14 days of  invoice without demand deduction or set-off;
      2. to make available an appropriately skilled Contact to liaise with us;
      3. to comply with the Acceptable Use Policy.
  14. VAT
    1. All sums payable under this Agreement are exclusive of VAT and other duties or taxes unless otherwise stated.
    2. Any VAT or other duties or taxes payable in respect of such sums shall be payable in addition to such sums.
  15. Liability
    1. We warrant that the Services will be provided with due skill and care.
    2. We warrant that the Services will be provided in accordance with this Agreement.
    3. Any other condition or warranty that might otherwise be implied or incorporated within the Agreement by statute or common law or otherwise is expressly excluded. We do not warrant that the Service shall be virus free or free from error.
    4. We both agree that the limitations of liability in this Clause 15 are reasonable bearing in mind the nature of the Services and represent a fair and commercial allocation of risk between us.
    5. We accept liability for any death or personal injury caused by our negligence in performing the Services and for fraudulent misrepresentation.
    6. We will not be liable for any of the following losses which may arise because of any breach of the Agreement or any implied warranty, condition or other term, any representation or any duty of any kind imposed on us by operation of law
      1. loss of profits, anticipated profits or expected future business;
      2. damage to reputation or goodwill;
      3. consequential loss;
      4. loss or corruption of data or reconstruction and reconstruction of data;
      5. business interruption including interruption to the Network;
      6. claims by employees, contractors or partners
      7. any damages or costs payable by you  to any third party with which you have a contractual relationship in connection with your IT systems.
      8. If, notwithstanding the provisions of this Clause, liability attaches to us in no circumstances will our aggregate liability to you for a breach or breaches of any express or implied terms of the Agreement or any other duty of any kind imposed on us by law arising out of or in relation to the Agreement exceed the Payments received by us for the Services in the 12 months prior to the breach.
    7. You understand and accept that we require you to perform certain acts (including but not limited to the obtaining of authorisations) and supply certain information to us to enable us to supply the Services.
    8. With reference to Clause 15.7 and without prejudice to any other provision of the Agreement you agree to indemnify us in respect of any loss, damage cost or expense that we may incur as a result of you failing to perform such acts or acquiring such authorisations.
    9. The provisions of this Clause shall survive the termination of the Agreement for whatever reason.
  16. Termination for breach
    1. The following are situations which allow us to terminate the Agreement immediately:
      1. you fail to pay any sum due to us under the terms of the Agreement on time;
      2. you go into liquidation either compulsory or voluntary (unless it is for a reconstruction or merger) or if an administrator, administrative receiver or receiver is appointed over You or the whole or any part of your assets or if you make a composition with your creditors generally or threaten to do any of these things or any judgment is made against you or any similar occurrence under any jurisdiction affects you.
      3. you cease to carry on business or threaten to do so;
    2. If the Agreement is terminated for any reason you shall immediately pay us all arrears of Payments and all other sums due to us under the Agreement shall immediately become due and payable.
  17. Termination Payments
    1. If we terminate this Agreement in accordance with clauses 11.3 or 16.1 you agree to pay us, and we reserve the right to claim, a fee equivalent to our costs in providing the Service, less any sum paid under this Agreement
    2. If you terminate this Agreement without notice, or otherwise in breach of this Agreement, you agree to pay us a fee equivalent to our costs in providing the Service, less any sum paid under this Agreement
  18. Warranty and Authorisation
    1. Each of us warrants our power to enter into the Agreement and that we have both obtained all necessary approvals to do so.
    2. You warrant and accept that you have obtained all necessary approvals and authorities required to allow us to provide the Services to you specifically and that our actions undertaken in connection with the Agreement will be authorized by you for the purposes of any applicable legislation in any jurisdiction in which you operate and in which the Services are performed (including but not limited to the Computer Misuse Act 1990 and Regulation of Investigatory Powers Act 2000) and any contract governing the use of such network and systems.
    3. You warrant and accept that we will be entitled to act upon all information and directions supplied to us by any of your employees.
  19. Non-solicitation
    1. During the Term and for a period of six months after the termination of the Agreement (however caused) you will not initiate or engage in discussions with any person who is or was an officer, employee or consultant of ours during the Term, or encourage them to end their relationship with us.
  20. Interest
    1. You will pay interest on all sums due which are not paid on the due date (without prejudice to our rights under the Agreement) from day to day at the annual rate of 4% over the base lending rate of National Westminster Bank plc.
  21. Conflict
    1. In the event of a conflict between these terms and conditions and the provisions of Schedules One to Ten and the provisions of the Customer Information Sheet the priority of the documents shall be as follows unless we agree in writing:
      1. The Customer Information Sheet;
      2. Schedules One to Ten;
      3. These terms and conditions.
  22. Severance
    1. If any part of the Agreement is found to be void, voidable, illegal or otherwise unenforceable the remaining parts of the Agreement will remain in full force and effect.
  23. Supersedes prior agreements
    1. The Agreement supersedes any prior agreement between us for the provision of Services and any such agreements are cancelled as at the Start Date but without prejudice to any rights which have already accrued to either of us.
  24. Change of address or Contact
    1. Each of us shall give to the other notice of the change of any address or telephone or similar number at the earliest possible opportunity but in any event within 48 hours of the change.
    2. If you wish to replace the person named as the Contact in the Agreement you will give us seven days prior written notice of such change.
  25. Rights cumulative
    1. All rights granted to either of us shall be cumulative and no exercise by either of us of any right under the Agreement shall restrict or prejudice the exercise of any other right granted by the Agreement or otherwise available to it.
  26. Survival of terms
    1. No term shall survive expiry or termination of the Agreement unless expressly provided.
  27. Assignment
    1. You may not assign, sub-contract or transfer to any third party the benefit and/or burden of the Agreement without our prior written consent.
    2. The Agreement will be binding upon our respective successors and assigns.
  28. Governing Law and Jurisdiction
    1. The Agreement shall be governed by the law of England and Wales.
    2. We both irrevocably agree the Courts of England shall have exclusive jurisdiction in relation to any claim dispute or difference concerning the Agreement.
  29. Force Majeure
    1. If either of us is prevented or delayed in the performance of any of our obligations under the Agreement by Force Majeure that party shall immediately serve notice in writing on the other specifying the nature and extent of the circumstances giving rise to Force Majeure and shall subject to service of such notice and to clause 29.3 have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure events during the continuation of such events.
    2. If either of us is prevented from performance of our obligations for a continuous period in excess of one month the other party may terminate the Agreement immediately on service of written notice upon the party so prevented in which case neither party shall have any liability to the other except that rights and liabilities which accrued before termination shall continue to subsist.
    3. The party claiming to be prevented or delayed in the performance of any of its obligations under the Agreement by reason of Force Majeure shall use its reasonable endeavours to bring the Force Majeure event to a close or to find a solution by which the Agreement may be performed despite the continuance of the Force Majeure event.
  30. Amendment
    1. Subject to Clause 8 the Agreement shall not be amended modified varied or supplemented except in writing signed by both of us.
  31. Waiver
    1. The failure to exercise or delay in exercising a right or remedy provided by the Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.
  32. Entire Agreement
    1. In relation to its subject matter the Agreement represents the entire understanding and constitutes the whole agreement. 
    2. Nothing in this clause shall exclude liability for any fraudulent misrepresentation.
  33. Third Party Rights
    1. Nothing in the Agreement shall create any third party rights.
  34. Notices
    1. A notice or other communication in connection with the Agreement:
      1. must be in writing; and
      2. must be left at the address of the addressee or sent by prepaid ordinary post (airmail if posted to or from a place outside the United Kingdom) to the address of the addressee or sent by electronic mail to the electronic mail address of the addressee which is specified in the Customer Information Sheet or if the addressee notifies another address or electronic mail address then to that address or electronic mail address.
    2. A letter or electronic mail is deemed to be received:
      1. in the case of a posted letter on the third (seventh if posted to or from a place outside the United Kingdom) day after posting; and
      2. in the case of electronic mail of the time specified in a message receipt from the machine from which the electronic mail was sent which indicates that the electronic mail was sent to the correct electronic mail address of the recipient.
    • Complaints
      • If you wish to make a complaint, you will contact our Customer Service Manager in the first instance.
      • The Customer Services Manager will give an initial written response within five Working Days of receipt of the complaint, detailing the actions proposed to remedy the complaint and the proposed time scales for those actions to be carried out.
      • We will use reasonable endeavours to resolve any complaint within twenty Working Days of receipt of that complaint.  If we cannot resolve your complaint within that twenty Working Day period we will refer your complaint to a director of Centric Networks Ltd.
      • If a director is unable to resolve your complaint within a further 20 Working Days, the complaint will be referred to arbitration in accordance with clause 35.5
      • All disputes or differences which shall at any time arise between us whether during the Term or afterwards in relation to the Agreement which cannot be resolved in accordance with the foregoing Clauses of this Clause 34 shall be referred to a single arbitrator to be agreed upon by the parties or in default of agreement to be nominated by the President for the time being of the British Computer Society in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of it for the time being in force. Such decision shall not be binding upon us, and shall not prevent either of us from referring a dispute to the English Courts if the decision made by the arbitrator so appointed is not acceptable.

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