1. The Service
Spacetel agrees to provide the dedicated server hosting services on Monthly rental basis.
The Customer shall be responsible for the maintenance and confidentiality and security of your server account and for any/all activities that take place through your servers. You further acknowledge and accept that you should not share your account details/password with another individual. Spacetel shall not be liable for any/all losses arising out of the unauthorized use of your Account resulting from you not following the above terms and conditions.
Spacetel cannot guarantee and does not represent that the servers will be free from loss, corruption, attack, viruses, interference, hacking or other security intrusions, and Spacetel UK Limited disclaims any liability relating thereto.”
3.The Customer’ obligations
The Customer agrees with Spacetel to pay all fees and charges due to Spacetel and without limitation:
To pay the monthly installments in advance on the first day of each month, the first installment to be a proportionate amount calculated from the commencement date
To pay the Hourly Fees that will be invoiced monthly in arrears within seven (7) days after the date of Spacetel’s invoice
To pay the value added tax and any other sales taxes (if applicable) at the prevailing rate
To pay the Customer’s bank charges this may arise when paying Spacetel
This Agreement shall commence on the date hereof and shall continue for One (1) year. Thereafter, this Agreement shall renew automatically for a further period of one year, unless either party provides written notice of termination within at least Thirty (30) days prior to the end of the one-month period.
Except as otherwise stated in Clause 4 or Schedule 3, each invoice shall be paid by the Customer in advance on signing of the agreement.
Unless prior written agreement to the contrary between the Parties, Check, Bankers Draft, or Electronic Bank Transfer shall be used to make payment of all sums due under this Agreement. Payment of all such sums shall be made in full.
All payments must be made to Spacetel as specified in Schedule 1-Banking Details.
If the Customer fails to make payment within the agreed period, Spacetel shall have the right, without prejudice to any other rights it may have, to require the Customer to pay all sums due under all contracts between the Parties on demand; and
If payment is not made, then without prejudice to any other rights, Spacetel reserves the right to charge daily interest on all outstanding amounts from the due date until payment is received in full at the rate equal to 12% per annum above the Lloyds Bank PLC Base Lending Rate as current from time to time whether before or after judgement. Interest shall continue to accrue notwithstanding termination (for any reason whatsoever) of this Agreement; and/or
On three (3) days prior written notice, suspend the provision of the services.
Spacetel reserves the right to carry out periodical credit checks against the Customer and subsequent to the carrying out of such credit checks may request from the Customer a cash deposit or bank guarantee in a form to be approved by Spacetel and issued by a bank acceptable to Spacetel.
Fee schedule subject to change on thirty (30) days written notice.
In performing its obligations under this Agreement, the Parties shall at all times exercise the reasonable skill and care of a competent company. The quality of service provided here under shall be consistent with common industry standards, government regulations and sound business practices.
There are no warranties, representations or agreements, expressed or implied either by operation of law, statutory or otherwise, except those expressly set forth herein and any such implied warranties are expressly excluded.
Either Party may terminate this Agreement by written notice to the other Party, such notice to take effect:
On the expiry of a Thirty-day (30) period following delivery of such notice once the relevant service term has expired;
Forthwith if, in relation to that service, the other Party has committed a material breach which is incapable of remedy;
Forthwith if, in relation to that service, the other Party has committed a material breach which is capable of remedy but which it fails to remedy within Fifteen (15) days of having been notified of such breach;
Forthwith if, in relation to that Service, a Force Majeure event continues for a period exceeding Three (3) month;
Without prejudice to any Clause in this Agreement, Spacetel may terminate this Agreement with immediate effect on giving written notice to the Customer if:
There is a change in the Location; or
An interim order is made, or a voluntary arrangement approved, or if a petition for a bankruptcy order is presented or a bankruptcy order is made against the Customer or if a receiver or trustee is appointed of any Party estate, or a voluntary agreement is approved or an administration order is made, or a receiver or administrative receiver is appointed over any of the Customer assets or undertaking or a resolution or petition to wind you up is passed or presented (otherwise than for the purpose of reconstruction or amalgamation) or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrations receiver or administrator or to present a winding up petition or to make a winding up order; or
The Customer fails to make any payment when it is due under this Agreement or any other agreements made between the Parties; or
The Customer provides or have provided the Spacetel with false, inaccurate or misleading information for the purposes of obtaining the service; or
Spacetel has reasonable grounds to suspect fraud or misconduct in connection with the Customer use of the service (or use by any other third party whatsoever whether with or without the Customer knowledge or approval); or
Spacetel is directed by a competent authority to cease to provide or allow the provision of the service.
On termination of this Agreement, all outstanding charges shall immediately become payable by the Parties, and the Parties shall forthwith cease to use the service.
Termination or expiry of this Agreement shall not affect any of the rights accrued by the Parties prior to such termination or expiry (as the case may be).
8.Limitation of Liability
Except as expressly provided in this Agreement, the Parties shall have no other obligation, duty or liability whatsoever in contract, tort or otherwise to the other Party.
Furthermore, and without prejudice to any Clause in this Agreement, the Parties shall not be liable for negligence or for breach of statutory duty for any loss of profit, loss of revenue, business contracts, anticipated savings, or profits or for any indirect or consequential loss, howsoever arising, in this regard “anticipated savings” means any expense which the Parties expect to avoid incurring or to incur in a lesser amount than would otherwise have been the case by reason of using the Service.
Nothing in this Agreement shall limit the Parties liability for death or personal injury resulting from any Party’s negligence or the negligence of their employees while acting in the course or their employment or any other liability to the extent that law cannot limit it.
Each provision of this Clause is to be construed as a separate limitation applying and surviving even if for any reason one or other of the provisions of this Clause is held inapplicable or unreasonable or in any circumstances shall remain in force notwithstanding termination of this Agreement.
The Parties are not responsible in any way for any act or omission that is not under their control.
Neither Party shall be liable to the other under this Agreement for any loss or damage which maybe suffered by the other Party due to any cause beyond the first Party’s reasonable control, including (without limitation) any act of God, inclement weather, failure or shortage of power supplies, flood drought, lighting or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of Government, highways authorities, other telecommunications operators or administrations or other competent authority, the obstructions by a third parties of line of sight between microwave installations, war, military operations acts of terrorism or riot, difficulty, delay or failure in manufacture, production or supply by third parties of any equipment (but this clause shall not in any way affect any such liability accruing before the date of any such act).
Notwithstanding anything herein to the contrary, neither Party shall be liable for any delay or failure in performance or any part of this Agreement (other than the payment obligations set in this Agreement) to the extent that such delay or failure is attributable to a Force Majeure event. Any such delay or failure shall suspend this Agreement until the Force Majeure event ceases and the length of the suspension shall extend the Service Term of any Service affected by such Force Majeure Event.
Any and all notices or other communications required or permitted under this Agreement may, unless otherwise expressly stated, be given in writing.
Any notice given in writing shall be sent by first class post or facsimile transmission or other means of electronic communication to the address of the party for which it is intended as stipulated in the Application Form or such other address as may be designated in writing from time to time or if no such address is stipulated or designated then to the individual(s) listed in Schedule 4.
Any and all notices or other communications shall be deemed served:
In the case of a notice or communication sent by first class post, on the second business day after its dispatch (in the absence of evidence of earlier receipt); and
In the case of a notice or communication sent by facsimile transmission or electronic communication, on the next business day following transmission.
For the purpose of this clause, “business day” means any day other than a Saturday, Sunday or day that is a public holiday in the place to which the notice or communications is addressed.
The Parties agree that they may only use Confidential Information to a third party with prior written consent of the other Party; and ensure that any third party to whom Confidential Information is disclosed executes a confidentiality undertaking in the terms of this Clause.
The provisions of this Clause shall not apply to any Confidential Information which is in or comes into the public domain other than by breach of this Clause; or is in or has been independently generated by the recipient Party; or is properly disclosed pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulatory body.
The provisions of this section will be effective as of the date of this Agreement and remain in full force and effect for a period equal to the longer of (i) one (1) year following the effective date of this Agreement; or (ii) six (6) months following the termination of all service here under.
Neither Party may assign this Agreement without the written consent of the other Party (which consent shall not be unreasonably withheld or unduly delayed), except that the Parties may assign any and all of its rights and obligations here under (i) to any of its Affiliates, (ii) pursuant to any sale or transfer of substantially all the assets of the Party, or (iii) pursuant to any financing, merger, or re organisation of the Party.
Failure by either Party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor to operate so as to bar the exercise or enforcement of any such or other right on any later occasion. If either Party shall expressly waive any breach, such waiver shall not operate as a waiver of a similar breach on another occasion or as a waiver of any other breach.
All rights, remedies and powers conferred upon the Parties are cumulative and shall not be deemed to be exclusive of any other rights, remedies or powers now or subsequently conferred upon the Parties by the law or otherwise.
If any provision of this Agreement is held by a court or any Governmental agency or authority to be invalid, void, or unenforceable, the remainder of this Agreement shall to the extent possible remain legal, valid and enforceable.
15.Third Part Rights
A person who is not a party to this Agreement shall have no rights pursuant to the Contracts (Right of Third Parties) Act 1999 (“the Act”) to enforce any terms under this Agreement. Any right or remedy of a third party which exists, or is available apart from the Act, shall not be affected.
16.No Joint Venture or Partnership
This Agreement does not constitute either Party as the agent or legal representative of the other. Further it does not create a partnership or joint venture between the Parties and neither Party will have the authority to bind the other Party in any way whatsoever.
Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute or be deemed to constitute between the Parties a partnership, association, joint venture, or other co-operative entity.
17.Law and Jurisdiction
English law shall govern this Agreement and the Parties irrevocably agree to the exclusive jurisdiction of the English courts.
The Parties by agreement may from time to time amend or modify in whole or in part this Agreement by a document referring expressly to this Clause and signed by a duly authorized representative from each Party.
This Agreement represents the entire understanding between the parties in relation to its subject matter and supersedes and invalidates all and any prior agreements, understandings or arrangements made by either party, whether oral or written.
Each party acknowledges and warrants to the other that it has not entered into this Agreement in reliance of any representation of the other except those contained in this Agreement and in the event of misinterpretation (other than fraudulent misinterpretation) the only remedy available shall be a claim for breach of contract.