In these terms and conditions of business the following words shall have the following meanings:
1.1 “Agreement” means the Order Form, the Conditions, the Domain Terms, the AUP and the SLA;
1.2 “AUP” means the Acceptable Use Policy of the Company, a copy of which may be found on the Company’s website and as may be updated from time to time;
1.3 “Change Recommendation” means the change(s) which may be recommended by the Company at any time in writing in accordance with the mechanism set out in Clause 3.2;
1.4 “Change Request” means the change(s) which may be requested by the Customer at any time in writing in accordance with the mechanism set out in Clause 3.2;
1.5 “Change Response” means the written response provided by the Company to the Customer in accordance with Clause 3.2 following an investigation into the effect(s) of the proposed change(s);
1.6 “Company” means Datacentre Monkey Ltd (Company Registration Number 07605558) whose registered office is situated at 87a Warwick Street, Leamington Spa, Warwickshire, CV32 4RJ;
1.7 “Company’s Network” means the network owned and operated by the Company for the purpose of connecting the Customer to the Internet;
1.8 “Conditions” means these terms and conditions;
1.9 “Customer” means any person or organisation with whom the Company enters into the Agreement and as stated on the Order Form;
1.10 “Domain Terms” means the domain terms applicable to the Customer, a copy of which may be found on the Company’s website;
1.11 “Initial Term” the minimum term stated on the Order Form commencing from the date upon which the Services are made available to the Customer (being when server details are provided in writing to the Customer once the server build is completed);
1.12 “Internet” means the global data network comprising interconnected networks to which the Company is connected and provides access to its Customer(s);
1.13 “Internet Protocol Address” means such sequence of alphanumeric or numeric only characters as assigned by the Company to the Customer;
1.14 “IPv4/IPv6” means Internet Protocol Version 4 or Version 6 (as the case may be);
1.15 “Order Form” means the Company’s Order Form (which is signed by the Customer) relating to the Services to be provided by the Company to the Customer;
1.16 “Parties” means the Customer and the Company;
1.17 “Password” means the alphanumeric characters chosen and used exclusively by the Customer at its own risk for the purpose of securing and maintaining the exclusivity of its access to the Company’s Services;
1.18 “Sanctions” means any trade, economic or financial sanctions laws, regulations or restrictive measures administered, enacted or enforced by the Security Council of the United Nations and/or the governments and official institutions of any of the United States of America, the European Union and/or the United Kingdom from time to time;
1.19 “Services” means the services to be provided by the Company described in the Order Form and the SLA to be provided by the Company to the Customer;
1.20 “SLA” means the Service Level Agreement of the Company (being either the standard SLA or SLA+ (as the case may be)) as set out on the Order Form), a copy of which has been made available to the Customer prior to signature of the Order Form;
1.21 “Term” the Initial Term and any extension to this Agreement thereafter subject to clause 11.2;
1.22 “User” means any person, organisation or other entity that employs the Services provided by the Company and is in most cases the Customer; and
1.23 “Username” means a sequence of alphanumeric characters as are used by the Customer to identify itself.
2. ACCEPTANCE OF AGREEMENT
2.1 The Customer acknowledges that the Conditions prevail over any of the Customer’s own standard terms and conditions whether set out on the Customer’s own standard order form or otherwise. In the event of any conflict between the Conditions and the Agreement for the Services then the Conditions shall prevail.
3.1 The Company shall provide the Services to the Customer in accordance with the Agreement. The Customer warrants that the signatory to the Order Form has all requisite and due authority to bind the Company to the Agreement.
3.2 Without prejudice to Clause 28, changes can only be effected in accordance with the following change control mechanism:
(a) either the Company may recommend, or the Customer may request, at any time in writing changes to the Services or other provisions of the Agreement; the Customer shall make such request by raising a support ticket or notifying its Datacentre Monkeyaccount manager;
(b) the Company will notify the Customer in writing within 10 working days of either the Company making a change recommendation (known as “a Change Recommendation”) or receiving a written request for changes from the Customer (known as “a Change Request”) of the time needed to investigate the implication(s) of the proposed change(s) together with the costs (if any) to be charged by the Company to the Customer for undertaking such an investigation;
(c) assuming the investigation proceeds (since it is for the Customer to give the Company a written instruction to investigate the implication(s) of the proposed change(s) by first having agreed to pay any costs to be charged by the Company to the Customer for undertaking it) the Company will give a written response (known as “a Change Response”) showing the effect(s) of the proposed change(s) including:
(i) a project timeline;
(ii) any additional expenses and/or charges that will be incurred;
(iii) any effect(s) on other contractual provisions of the Agreement should the proposed change(s) be implemented and in so doing the Company shall use all reasonable endeavours to ensure that the Change Response is given within 10 working days (or such longer period as may be reasonably agreed between the Parties) of receipt by the Company of a written instruction to investigate the implication(s) of the proposed change(s);
(d) should the Customer wish to proceed with the proposed change(s), it will instruct the Company in writing of its wish as soon as reasonably practicable after receipt of the Change Response but in any event not later than 10 working days of receipt of the Change Response (or such longer period as may be reasonably agreed between the Parties) and in such a case those parts of the Agreement affected by the proposed change(s)once implemented will then be deemed to be varied in accordance with the details set out in the Change Response which will then form part of the Agreement; and
(e) until any change is agreed in writing and implemented the Parties shall continue to perform their respective obligations under the Agreement as if the change had not been proposed. The Company shall use reasonable endeavours to implement the proposed change(s) in accordance with any agreed project timeline.
3.3 All key personnel and subcontractors provided by the Company to perform the Services pursuant to the Agreement shall have the appropriate technical and application skills to enable them to adequately perform their duties. The Company will use reasonable endeavours to ensure continuity in staffing of its key personnel. The Services shall be performed in a good and workmanlike manner and in accordance with all applicable laws.
3.4 The Customer agrees to procure the agreement and understanding of the Customer’s own customers where the Services are to be sold to third parties and procure in writing the agreement of such customers that they agree to terms and conditions no less onerous than those contained in the Conditions.
3.5 The Customer agrees not to oversell the Services (or any part thereof) under the Agreement to any third party
3.6 Total data sent and received within the Company’s network is calculated monthly per customer and measured in Gigabytes rounded up to the next 1 Gigabyte. The total bandwidth for the solution is stated on the Order Form and the Company reserves the right to charge the Customer for additional bandwidth in excess of the stated bandwith per month.
3.7 The Company does not warrant that the Company’s technology or the Services will be compatible with any equipment, software or other technology not furnished by the Company.
4. THIRD PARTY SOFTWARE AND HARDWARE/ LICENCES
4.1 All third party software and hardware shall be sold subject to the Customer’s acceptance of the relevant suppliers’ software licence(s) for such third party software and the Customer confirms acceptance of such terms by entering into this Agreement. The Company aims, wherever possible, to pass onto the Customer the benefit of any and all representations and warranties it receives from third party software suppliers but is under no obligation to do so given that such matters lie outside the Company’s control.
4.2 The Customer shall inform the Company as soon as practicable of any new Users who at any time during this Agreement have access to any Microsoft® product under a subscriber access licence. The Customer warrants to the Company that it shall notify the Company promptly if at any time during the Agreement it installs any non-Company Microsoft® provided software on its system. The Customer shall not at any time amend the Datacentre Monkey.support credentials on its system without the prior consent of the Company or transfer images of the Company’s Windows Servers outside of the Company’s Network. If a Customer wishes to use “License Mobility”, the Customer shall notify Microsoft® by submission of a “License Mobility” form within 10 days of deployment thereof. The Customer agrees that the Company shall be entitled to disclose details of its identity to Microsoft® and other third party software vendors where the Company is contractually obligated to do so for licencing purposes.
4.3 If the Customer uses any non-Company provided software on its system the Customer warrants to the Company that it is duly licensed to use the software, that the licence grants sufficient rights to the Company to enable the Company to provide the Services in accordance with the Agreement and is a party to an appropriate written licence agreement with the software vendor. As the Company acts as a reseller for various third party software vendors, the Customer agrees to provide evidence of such licence(s) and/or compliance with such non-Company provided licence(s) upon the Company’s reasonable request. If the Customer fails to provide reasonable evidence of licencing, the Company, at its discretion, may terminate the agreement, suspend the Services pursuant to clause 10 or charge the Customer the standard fee and any related penalty which the Company is liable for under its licensing agreement with the relevant software vendor. The Customer shall indemnify the Company for any costs, claims, losses, damages, liabilities, demands and/or expenses including legal costs incurred and/or suffered as a result of any failure by the Customer to be appropriately licenced in respect of non-Company provided software.
4.4 The Company is subject to rights of audit where it acts as a reseller for third party software. Accordingly the Customer acknowledges and agrees that the Company may regularly run a series of scripts on the Customer’s server(s) to determine what software is held on the server, how many Users have access to each piece of software and assess any additional fees that may be payable and shall provide reasonable and prompt assistance in relation to any information or audits requested by such third party software suppliers.
4.5 The Customer’s non-Company licensed software may not be compatible with the Company’s standard process for deploying the Services. The Customer agrees that the Company will not be in breach of any SLA or other obligation under this Agreement that would not have occurred but for the Customer’s use of non-Company licensed software.
4.6 The pricing set out in the Order Form for third party software is estimated to the extent that the actual cost during the term of the Agreement may vary based upon a number of variables including (but not limited to) the Customer’s specific requirements, changes to the number of Users, changes to functionality, changes in exchange rates and changes in pricing by the third party software vendors on or after the date on which the software is ordered all of which said matters lie outside the control of the Company.
4.7 To the extent that third party software is supplied by the Company, the Customer may procure support services in accordance with the details set out in the Order Form but the Company’s offer to provide these support services is contingent upon the Company’s ability to obtain such support from the appropriate third party software supplier as a result of which the Company cannot and does not warrant that such third party software is or will be supported by the Company because such matters lie outside the control of the Company.
5. RIGHT TO CHANGE USERNAME, INTERNET PROTOCOL ADDRESS AND PASSWORD
The Company shall have the right at any time to change the Username, Internet Protocol Address and/or Password allocated by the Company to the Customer for the purpose of essential network maintenance, enhancement modernisation or other work deemed necessary for the effective operation of the Company’s Network. The Customer acknowledges that the Company cannot guarantee the availability of Internet Protocol Addresses under IPv4 and in future it may be necessary for the Company to allocate additional Internet Protocol Addresses which are requested under IPv6.
6.1 All charges for the Services shall be detailed on the Order Form. Invoices shall be raised and be payable in sterling unless otherwise agreed in writing with the Company. Set up fees and any monthly fees which are agreed to be paid in advance as stated on the Order Form will be invoiced following signature of the Order Form. Invoicing of fees for subsequent months shall commence 30 days after the Services are made available to the Customer (monthly in advance) unless otherwise agreed and stated on the Order Form. All payments shall be due to the Company on presentation of invoice or as otherwise stated on the Order Form.
6.2 The Company reserves the right to vary all charges to the Customer with one month’s notice but any such variation shall only take effect on the date of expiry of the Initial Term or in each year on the anniversary of the date of the Order Form (whichever is the earlier). Any discount agreed at commencement of the Services (as specified on the Order Form) shall apply to the Initial Term only.
6.3 Itemised details of excess usage of bandwidth and any other relevant charges may only be made available to the Customer if ordered in advance but the Company in any event reserves the right to make reasonable additional charges for the provision of these details.
6.4 The Company reserves the right to charge interest on late payments at the rate of 5% above the Bank of England Base Rate in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 as amended by the Late Payment of Commercial Debts Regulations 2002.
6.5 All charges and tariffs are quoted exclusive of Value Added Tax.
6.6 The Company reserves the right to change payment terms and require deposits if the Customer is more than 30 days late in making payments during the term of the Agreement in addition to or in lieu of any other remedies set out in the Conditions or otherwise available at law or in equity.
The Customer hereby agrees to accept and abide by the AUP.
8.1 Equipment leased from the Company shall at all times remain the property of the Company. The Customer shall indemnify the Company for any costs, claims, losses, damages, liabilities, demands and/or expenses including legal costs incurred and/or suffered by the Company as a result of any failure by the Customer to abide by the AUP.
9. LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Nothing in the Agreement shall limit the Company’s liability to the Customer for
9.1.1 death or personal injury resulting from the Company’s negligence; or
9.1.2 any other act or omission of the Company for which liability may not be limited in law.
9.2 Except for the Company’s liability to the Customer listed in Clause 9.1 (where no limit applies), the Company’s liability arising under or in connection with the Agreement for the provision of the Services whether in contract, tort, negligence, breach of statutory duty or otherwise howsoever arising shall not exceed the greater of:
(a) £5,000 (FIVE THOUSAND POUNDS): or
(b) the total amounts paid by the Customer under Clause 6.1 in the month when the event giving rise to the liability occurs (or the first event in any series of connected events) occurs.
9.3 Notwithstanding Clause 9.2, in no case shall the Company be liable either to the Customer or to any third party for or in respect of any
9.3.1 indirect, consequential, special or economic loss; or
9.3.2 loss of profit, loss of business, loss of goodwill, loss of turnover, loss of reputation, loss of anticipated savings or loss of margin (in each case whether direct or indirect);
arising from its performance or non-performance of its obligations in connection with the Agreement whether arising from breach of contract, tort, breach of duty, negligence or any other cause of action even if the event was foreseeable by the Company or the possibility thereof is or had been brought to the attention of the Company.
9.4 Except for the purposes of Clause 9.1, no action or proceedings against the Company arising out of or in connection with the Agreement shall be commenced by the Customer more than one year after the Services have been rendered and in this respect the Customer acknowledges that this clause constitutes an express waiver of any and all of its rights under any otherwise applicable statute of limitations.
10.1 Subject always to the provisions of Clause 15, the Services may be suspended by the Company 5 days after a notification of suspension has been issued by email and without prejudice to the Company’s rights of termination under Clause 11 in the event of the Customer:
(a) failing to make any payment to the Company on the relevant due date for payment;
(b) doing or allowing anything to be done which contravenes the AUP; or
(c) being in breach of clause 4.3; or
(d) being otherwise in breach of the Conditions.
Back-up services shall cease to be provided upon suspension of your Datacentre Monkey area which may take place before the server is switched off.
10.2 Suspension shall not affect the liability of the Customer to pay charges and other amounts to the Company.