These terms and conditions shall have legally binding effect between the Companyand the Customer and shall be deemedto have been accepted by the Customerupon placing an Order with the Company.
“The Company” means Midshire Business Systems Northern Limited, a company registered in England with company registration number 3545609. “The Customer” means any person (whether a company, sole trader, individual or partnership) who purchases Services from the Company. “Order” means an order made by the Customer to the Company to purchase Services from the Company and includes the set up of users on Hosted Desktop Service (Desktop Monster). “Software” means the software describedin the Order.“Services” means each and every service provided by the Companyto the Customer as set out in the Order. “Contract Term” means the initial contract term set out in the Order forprovision of the Service(s) plus anyextension of the term under the operationof this Agreement.
In consideration of the payment of the fees set out in the Order, the Company will provide the Service(s) to the Customer as set out in the Order in accordance with these terms and conditions and in accordance with the terms of the Company’s Service Level Agreement which will be provided upon request.
The Company will provide the Services for the Contract Term specified in the Order and thereafter will continue to provide the Service(s) until the Company, or the Customer in accordance with the termination provisions set out herein terminates the Agreement or the Service.
Payment by direct debit to our bank account is mandatory unless other payment terms are agreed in writing at the time of this Agreement. The Company requires payment monthly in advance for use of the hosted desktop services, which are bundled as a single monthly subscription. Any services outside of the bundle require to be paid within 7 days after the month end invoice. Failure to make payment on time will result in the services being suspended until cleared funds have been received. The Customer acknowledges that Services in respect of which a Contract Term is specified are charged at a rate calculatedon the basis of the Contract Term. If the Customer terminates this Agreement or one of the Services provided hereunderprior to the expiry of the Contract Term, the Customer will be liable to pay the fees for such Services for the remainder of the Contract Term. The company has the right to pass-on price increases inline with our suppliers; we will endeavor to give 30 days notice. All payments are quoted exclusive of VAT, which will be added at the standard rate in accordance with current VAT law.
The Customer’s rights to use the Software are subject to the usage rights granted by the third party software supplier, such asMicrosoft, Sage or Adobe. The Customer acknowledges that the usage rights of third party software may vary from product to product and agrees to abide by such rights. The Customer is deemed to accept the usage rights in relation to the Software set out in the Order by placing an Order with the Company.
The Customer will be invoiced monthly in advance for this Service. The charges will include the following: (a) a per user, per month charge as set out in the order, (b) a charge for company storage based on the actual amount of storage used multiplied by the price per GB (GigaByte) agreed with the Customer and set out in the order and (c) a charge for any additional hosted applications as set out in the Order or added subsequently.
The Customer’s charges for the Hosted Desktop will be based on the actual usage of user numbers and storage, provided that this usage is within the usage levels set out in the Order. Additional charges will be levied for usage above greater than those agreed in the Order.
Acceptable Usage Policy
The Customer agrees to abide by the following Acceptable Usage Policy (“AUP”). The Customer warrants and undertakes to us that it will not by itself or others: a) use its web site (where the Company is providing the hosting service for the website) for unlawful purposes; b) knowingly or recklessly post, link to or transmit, or permit third party users to post, link to or transmit: a. any material that is abusive, threatening, harmful, malicious, defamatory, obscene, pornographic, profane or otherwise unlawful;b. any material containing a virus or other hostile computer program; c. it will not post, link to or transmit any material that constitutes or encourages a criminal offence, gives rise to civil liability or infringes the intellectual property rightsof any third parties. c) knowingly or recklessly transmit, or permit third party users to transmit any form of bulk email or unsolicited email.
The Company may suspend the Customer’s Service(s) immediately and without notice to the Customer in its sole discretion if inthe Company’s opinion the Customer has or has knowingly, recklessly or negligently permitted any breach of the AcceptableUsage Policy, or if it receives any complaint that unsolicited email has been transmitted by the Customer, or by the Customer’s agents or customers, or if any material hosted on the Customer’s web site(s) or server(s) (in respect of which the Company is providing a hosting service) may be unlawful, harmful or defamatory.
The Company may disclose the Customer’s name and address to a complaining third party if in our reasonable discretion it is necessary or appropriate to do so, for example if there is evidence of a prima facie case that the Customer’s website(s) or server(s) in respect of which the Company is providing a hosting service is infringing the rights of a third party.
The Company uses third party anti-virussoftware to protect the servers and emailfrom viruses. Although all reasonable careis taken by the Company to ensure thatthe anti-virus software is up to date, theCompany makes no warranty as to theeffectiveness of its third party anti-virussoftware and excludes any loss or damagecaused by a virus which infects anyelectronic device, computer, PC, server ornetwork owned or used by the Customer.
Exclusion and Limitationof Liability
The fees charged to the Customer underthis Agreement are determined on the basisof the following limitations and exclusionsof liability.Subject only to any terms agreed in a ServiceLevel Agreement, which sets out additionalterms under which the Company providesthe Service(s) and in particular sets outthe terms of a Service Credit, the Companyexcludes and shall not be liable for anydamage or loss resulting from any technicalor other failure resulting in unavailabilityof the website or applications hosted by theCompany’s servers (or the servers of thirdparties which the Company, on behalf of theCustomer, has engaged to provide thewhole or part of a Service);unauthorisedaccess to the Company’s servers (or theservers of third parties which the Company,on behalf of the Customer, has engaged toprovide the whole or part of a Service); TheCompany excludes all representations(other than fraudulent representations) andwarranties relating to the Services suppliedby the Company under this Agreement,whether imposed by statute or operationof law that are not expressly stated in thisAgreement.
If the Customer suffers any loss or damageother than as a result of the matters statedabove for which all liability is excludedthen the Company’s total liability forany claim in contract, tort, negligence orotherwise arising out of or in connectionwith the provision of Services under thisAgreement to the Customer shall be limitedto the total amount of fees paid by theCustomer to the Company for the Serviceupon which the claim is based.In no event shall the Company be liable forany loss of business, contracts, profits oranticipated savings or for any other indirector consequential or economic loss whatso ever.
The Customer agrees to indemnify theCompany against any and all claimsbrought against the Company as a resultof the Customer, through its website,domain name or other Services purchasedfrom the Company, infringing the rights ofthird parties.
In order to provide the Service(s) theCompany will be hosting email and otherdata on behalf of the Customer. In order toprovide the Service(s), respond to supportrequests and test systems it may benecessary for employees of the Companyto have access to such email and data.Each employee who has such access has aconfidentiality clause in their Contractof Employment with the Company thatprohibits them from disclosing to thirdparties any confidential information saveas required by the general law (CourtOrder or government authority such aspolice). The Company warrants that allemail and data of the Customer will betreated as confidential and will not bedisclosed or supplied to any third partyunless the Company is ordered to do so bya Court Order or to comply with agovernment agency.
All email and other data hosted by theCompany as part of the Hosted Exchangeor Hosted Desktop service is owned by theCustomer and, in the event of terminationof any service, will be provided to theCustomer, provided that the Customer haspaid in full any outstanding monies owedunder this Agreement. The return of data tothe Customer will incur standard supportcharges plus expenses unless such chargesare waived by separate written agreement.Historical copies of the Customer’s dataheld in the Company’s back up systemwill be deleted in accordance with theCompany’s data retention policy.
This Agreement may be terminated by eitherparty giving the other 3 clear monthswritten notice following the minimumterm. Usage is invoiced for a full monthirrespective of the number of days usageduring such month and therefore anytermination notice will mean the Servicewill be terminated at the end of themonth following the month during whichnotice has been served. This is necessarybecause the Company must account forlicense fees for any usage during the month.Subject to the above conditions oftermination, the Customer may terminatea particular Service under this Agreementwithout terminating the Agreement itselfby giving one clear month’s written notice.
If the Customer terminates a Service thisAgreement will continue in force in respectof any other Services provided by theCompany to the Customer. Furthermore,the obligation of the Customer to pay feesfor the Contract Term in respect of theService terminated continues to subsistin accordance with this Agreement.If the Agreement or a Service is terminatedprior to the expiry of the Contract Termfor a Service the Customer is liable to paythe remaining fees for the Service for thefull Contract Term.
The Company may terminate thisAgreement and/or suspend any and allservices to the Customer without noticeand with immediate effect if:the Customer fails to abide by theCompany’s payment terms or is infundamental breach of this Agreement orthe Customer manifests an intention notto comply with the terms of this Agreementor not to pay fees due.
Either party may terminate this Agreementwith immediate effect and without notice ifthe other party goes into insolventliquidation or other form of administrationor bankruptcy.
Notices under this Agreement must be inwriting but can be transmitted by emailor post. In the case of post notices will bedeemed to have been received 1 businessday after sending if posted first class or2 business days after posting if postedsecond class; in the case of fax or email,notice will be deemed to have beenreceived on the same business day providedthat the fax or email are sent before 5pm.Hardware support is not included underthe terms of this agreement.Any waiver by the Company of any of itsrights under these terms and conditionsshall not prevent the Company from laterenforcing that right or enforcing any ofits rights pursuant to these terms andconditions.
If any provision of these terms and conditionsis held void, illegal or unenforceablefor any reason, such provision shall besevered and the remainder of the provisionshereof shall continue in full force andeffect as if the terms and conditions hadbeen agreed with the void provision(s)eliminated.Neither party will be liable for any breachof its obligations resulting from an Eventof Force Majeure.These terms and conditions shall begoverned by and construed in accordancewith English law and the parties herebysubmit to the exclusive jurisdiction ofthe English Courts.