You indicate acceptance of these terms and conditions of service by placing an order with Dave Higham. These terms and conditions will not be varied for individual customers.
1.1 In this Agreement the following words and expressions shall have the following meanings:
1.1.1 “downtime” means any service interruption in the availability to visitors of the Website;
1.1.2 “intellectual property rights” means patents, trade marks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, whether registrable or not in any country;
1.1.3 “Dave Higham” means Dave Higham
1.1.4 “IP address” stands for internet protocol address which is the numeric address for the server;
1.1.5 “ISP” stands for internet service provider;
1.1.6 “server” means the computer server equipment operated by Dave Higham in connection with the provision of the Services;
1.1.7 “the Services” means web hosting, domain name registration, email and any other services or facilities provided by Dave Higham.
1.1.8 “spam” means sending unsolicited and/or bulk emails;
1.1.9 “virus” means a computer programme that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user’s files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as “worms” or “trojan horses”;
1.1.10 “visitor” means a third party who has accessed the Website;
1.2 Product specifications and details may be found at http://breezyinternet.com/hosting.html.
1.3 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.4 The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
2.1 The Customer wishes to provide Dave Higham with data that will be hosted on Dave Higham’s servers and made accessible via the Internet.
2.2 Dave Higham provides web hosting services and has agreed to host the Customer’s data upon the following terms and conditions.
3.1 Dave Higham shall provide to the Customer the Services specified in their order subject to the following terms and conditions.
3.2 The Customer shall deliver to Dave Higham the website and the software used in the website which is owned by the Customer, or licensed to him by a third party or Dave Higham (“the Customer Software), in a format specified by Dave Higham.
4 CHARGES ,PAYMENT AND MONEY-BACK GUARANTEE
4.1 Payment methods include credit cards (including MasterCard and Visa), debit cards (including Switch/Maestro), cash and Paypal payments.
4.2 Dave Higham do not accept direct debits, bank transfer, cheques, postal orders, or any other form of payment other than those outlined in 4.1
4.3 The Charges are exclusive of VAT, which if payable shall be paid by the Customer.
4.4 Dave Higham shall be entitled to charge interest in respect of late payment of any sum due under this Agreement, which shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the base rate of the Bank of England from time to time in force.
4.5 Dave Higham do not provide credit facilities.
4.6 From time to time Dave Higham may make enquiries on the Customers company, proprietor or directors of the Customers company with credit reference agencies. These agencies may record that a search has been made and share this information with other businesses.
4.7 Dave Higham provide “Money-Back Guarantees” on certain products. Should your product qualify for this guarantee please raise a support ticket at http://breezyinternet.com/contact-support within 30 days of placing your order for a full refund. This guarantee excludes domain names which may not be cancelled once ordered. Customers are limited to using the money-back guarantee once.
4.8 Pro-rata refunds will not be issued for yearly services that are cancelled before then end of the year.
4.9 Should your chosen payment method fail Dave Higham will attempt to settle your invoice using any other payment facilities available on your account.
4.10 All services will renew until cancelled by the customer. Dave Higham emails the customers primary email address prior to renewal of services, it is the customers responsibility to cancel services prior to renewal as no refund can be made once renewal has occurred. Customers must notify us at least 72 hours before a service is renewed if they wish to cancel that service. The cancellation process must be fully completed by you before your account is cancelled.
5 IP ADDRESSES
5.1 Dave Higham shall maintain control and ownership of the IP address that is assigned to the Customer as part of the Services and reserves the right in its sole discretion to change or remove any and all IP addresses.
5.2 Where Dave Higham changes or removes any IP address it shall use its reasonable endeavours to avoid any disruption to the Customer.
6 SOFTWARE LICENCE AND RIGHTS
6.1 If the Customer requires use of software owned by or licensed to Dave Higham (“Dave Higham’s software”) in order to use the Services, Dave Higham grants to the Customer and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use Dave Higham Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Customer any right, title, interest or intellectual property rights in Dave Higham Software.
6.2 In relation to Dave Higham’s obligations under this Agreement in connection with the provision of the Services, the Customer grants to Dave Higham a royalty-free, world-wide, non-exclusive licence to use the Customer Software and all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the website (“the Content”). For the avoidance of doubt, this Agreement does not transfer or grant to Dave Higham any right, title, interest or intellectual property rights in the Customer Software or the Content.
6.3 The Customer undertakes that he will not himself or through any third party, sell, lease, license or sublicense Dave Higham Software.
6.4 Dave Higham may make such copies of the Customer Content as may be necessary to perform its obligations under this Agreement, including back up copies of the Content. Upon termination or expiration of this Agreement, Dave Higham shall destroy all such copies of the Content and other materials provided by the Customer as and when requested by the Customer.
7 SERVICE LEVELS AND DATA BACKUP
7.1 Dave Higham shall use its reasonable endeavours to make the server and the Services available to the Customer 100% of the time but because the Services are provided by means of computer and telecommunications systems, Dave Higham makes no warranties or representations that the Service will be uninterrupted or error-free and Dave Higham shall not, in any event, be liable for interruptions of Service or downtime of the server.
7.2 Dave Higham carries out data backups for use by Dave Higham in the event of systems failure. Dave Higham do not provide data restoration facilities for individual customers. Even though every effort is made to ensure data is backed up correctly Dave Higham accepts no responsibility for data loss or corruption.
8 ACCEPTABLE USE POLICY
8.1 The website and use of the Services may be used for lawful purposes only and the Customer may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Customer agrees not to:
8.1.1 use the Services or the website in any way to send unsolicited commercial email or “spam”, or any similar abuse of the Services;
8.1.2 send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities;
8.1.3 publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights (for the avoidance of doubt this includes licensed software distributed as Warez), via the Services or on the Website;
8.1.4 threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
8.1.5 engage in illegal or unlawful activities through the Services or via the Website;
8.1.6 make available or upload files to the website or to the Services that the Customer knows contain a virus, worm, trojan or corrupt data; or
8.1.7 obtain or attempt to obtain access, through whatever means, to areas of Dave Higham’s network or the Services which are identified as restricted or confidential. This includes leaving your home directory whilst using SSH access to servers.
8.1.8 operate or attempt to operate IRC bots or other permanent server processes.
8.2 The Customer has full responsibility for the content of the Website. For the avoidance of doubt, Dave Higham is not obliged to monitor, and will have no liability for, the content of any communications transmitted by virtue of the Services.
8.3 If the Customer fails to comply with the Acceptable Use Policy outlined in Clause 8.1 Dave Higham shall be entitled to withdraw the Services and terminate the Customer’s account without notice.
9 ALTERATIONS AND UPDATES
All alterations and updates to the website shall be made by the Customer using the online account management facility, FTP access or SSH access where available. The Customer will be issued with a user name and password in order to access the account. The Customer must take all reasonable steps to maintain the confidentiality of this user name and password. If the Customer reasonably believes that this information has become known to any unauthorised person, the Customer agrees to immediately inform Dave Higham and the password will be changed.
10.1 The Customer warrants and represents to Dave Higham that Dave Higham’s use of the Content or the Customer Software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Customer has the authority to license the Content and the Customer Software to Dave Higham as set out in Clause 6.2.
10.2 All conditions, terms, representations and warranties that are not expressly stated in this Agreement, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, Dave Higham shall not be liable to the Customer as a result of any viruses introduced or passed on to the Customer.
The Customer agrees to indemnify and hold Dave Higham and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against Dave Higham arising out of any breach by the Customer of the terms of this Agreement or other liabilities arising out of or relating to the Website.
12 LIMITATION OF LIABILITY
12.1 Nothing in these terms and conditions shall exclude or limit Dave Higham’s liability for death or personal injury resulting from Dave Higham’s negligence or that of its employees, agents or sub-contractors.
12.2 The entire liability of Dave Higham to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
12.3 In no event shall Dave Higham be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or Dave Higham had been made aware of the possibility of the Customer incurring such a loss.
13 TERM AND TERMINATION
13.1 This Agreement will become effective on the date the service is ordered and shall continue until terminated by either party in writing of its intention to terminate the Agreement.
13.2 Dave Higham shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due.
13.3 Either party may terminate this Agreement forthwith by notice in writing to the other if:
13.3.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
13.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
13.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
13.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
13.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
13.5 On termination all data held in the customers account will be deleted.
14.1 Dave Higham may assign or otherwise transfer this Agreement at any time.
14.2 The Customer may not assign or otherwise transfer this Agreement or any part of it without Dave Higham’s prior written consent.
15 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served 2 days following the date of posting.
18 ENTIRE AGREEMENT
This Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. This Agreement may be updated without notice.
19 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
20 DOMAIN NAME REGISTRATION
20.1 Domain names are not deemed to be successfully registered until they appear in the relevant whois database of the top level domain name registrar. In the event that a domain name is unavailable when we attempt to register it Dave Higham will provide a full refund for that domain name.
20.2 Please return to the main terms and conditions area of this website to view terms and conditions for individual domain name registrars.
Dave Higham are not responsible for customer programming issues other than ensuring that programming languages such as Perl, PHP and ASP are installed and functioning on the web hosting system.
To protect your privacy we will not distribute your details to third parties, unless required to do so by law.
23 DATA TRANSFER
23.1 Web hosting accounts include a certain amount of data transfer, if you exceed this amount in any one month your account will be deactivated until you have upgraded to an account that has more data transfer included.
23.2 Web hosting accounts are prohibited from hosting file distribution websites (including but not limited to music, video and software), adult content orientated websites, hosting banners, graphics or cgi scripts for other websites, storing pages, files or data as a repository for other websites or personal computers, giving away web space under a domain, sub domain or directory.
24 SERVER USAGE
Should your account use more than 5% of the servers processing power and as a result have a detrimental effect on other customers we will discuss with you alternative solutions for your hosting requirements.
25 AFFILIATE PROGRAMME
Commission earned via the affiliate programme will only be paid by using a valid direct debit/credit mandate on your account. It is the customers responsibility to ensure they have this facility. In the event of the customer not being able to obtain this facility then no commission will be paid.
26 EMAIL NEWSLETTER
Dave Higham communicates with it’s customers via email and as such you agree to receive by email our regular newsletter which contains amongst other things changes to our terms and conditions, notification of major outages, updates to our products & features and special offers.
27 WEBSPACE USAGE
Unlimited web space is available for genuine web site content, content must be linked into web pages. Customers are prohibited from using the server as a file/backup repository. Customers are expected to employ good house keeping when maintaining their account.
28 MAIL BOXES
Mail boxes not accessed for 100 days or more will be deleted from the system.