South Midlands Internet Services is a trading name of SMIS Ltd. Company Number 05896461
1.a In this Contract unless the context otherwise requires:
"S.M.I.S." means South Midlands Internet Services;
"Contract" means these conditions, the Price List and the Contract Form;
"Customer" means the person named as such on the Contract Form and anyone reasonably appearing to S.M.I.S. to be acting with that Customer's authority or permission;
"Information" means the visual, textual or other information published or otherwise made available (directly or indirectly) on the Internet using the Service;
"Internet" means the global data network comprising interconnected networks using TCP/IP ("Transmission Control Protocol/Internet Protocol");
"Internet Standards" means the protocols and standards defined in Internet documents RFC 1009, 1122, 1123 and 1250 and any future such protocols and standards as applicable;
"Minimum Period of Service" means the first twelve months of the Service;
"Price List" means the schedule of charges for the Service, copies of which can be seen or obtained from S.M.I.S.
"Contract Form" means the S.M.I.S. contract form identifying the Service required by the Customer;
"Service" means the service provided by any Service Provider as appropriate, comprising the provision of server capacity on the World Wide Web and, where applicable, any other services and facilities provided by S.M.I.S. for the Customer in connection with the Service;
"Third Party Information" means any visual, textual or other information not owned or generated by the Customer published on the web site established by the Customer on the Internet using the Service;
"URL" means a uniform resource locator, which is the full address for the Customer's web site on the World Wide Web
1.b The Price List contains explanations and notes concerning the charges which form part of this Contract.
1.c In the event of any conflict between the documents forming this Contract, the documents will take the same order of precedence as that in which they appear in the definition of Contract in paragraph 1.1.
2. PROVISION OF THE SERVICE
2.a S.M.I.S. agrees to provide the Customer with the Service on the conditions of this Contract.
2.b If the Service is to be provided by a date specified by the Customer or S.M.I.S., such date shall be treated as an estimate only and S.M.I.S. does not accept any liability for any failure to meet the date.
2.c It is technically impracticable to provide the Service free of faults and S.M.I.S. does not undertake to do so. S.M.I.S. will correct reported faults as soon as it reasonably can.
2.d Occasionally S.M.I.S. may:
2.d.1 for operational reasons change the technical specification of the Service (provided that it does not materially affect the performance of the Service);
2.d.2 temporarily suspend the Service for repair, maintenance or improvement of the Service. S.M.I.S. will restore Service as soon as it reasonably can after temporary suspension;
2.d.3 give instructions about the use of the Service which S.M.I.S. thinks are reasonably necessary in the interests of health, safety or the quality of the Service to the Customer or any other customer.
3. MINIMUM PERIOD OF SERVICE
The Minimum Period of Service begins on the date when the Service is first made available to users of the Internet
4.a The Customer agrees to pay all charges for the Service as specified in the Price List.
4.b Charges are payable in advance. Unless S.M.I.S. notifies the Customer to the contrary, the Customer's liability for hosting charges will start from the first day of the Minimum Period of Service.
4.c Charges for the Service are exclusive of Value Added Tax and any other applicable sales taxes, which will be added to the Customer's bill at the prevailing rate.
4.d All deposits taken are non-refundable.
5.a The Customer is responsible for the security and proper use of user names, passwords and security checkwords used in connection with the Service and must take all necessary steps to ensure that they are kept confidential, used properly and not disclosed to unauthorised people. The security checkwords must not be disclosed to any third parties.
5.b The Customer must immediately inform S.M.I.S. if there is any reason to believe that a user name, password or security checkword has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
5.c S.M.I.S. reserves the right to suspend user name and password access to the Customer's web site if at any time S.M.I.S. considers that there is or is likely to be a breach of security.
5.d The Customer must immediately inform S.M.I.S. of any changes to the Customer's details, which the Customer supplied when registering for the Service.
6. USE OF SERVICE
6.a The Customer warrants that the Information supplied for use on their web-site, or used in the development of their web-site by S.M.I.S, is accurate and will not include any information or material. including images, any part of which, or the accessing of which would be a criminal offence or otherwise unlawful. In particular the Customer warrants that all necessary licences and consents (including but not limited to those from owners of copyrights or performing rights) have been obtained.
6.b The Customer warrants that it will comply with all consumer and other legislation, instructions or guidelines issued by regulatory authorities, relevant licences and any other codes of practice which apply to the Customer or S.M.I.S. and which relate to the provision of Information, provided that S.M.I.S. has given notice to the Customer of those which only apply to S.M.I.S.
6.c The Service must not be used:
6.c.1 fraudulently or in connection with a criminal offence;
6.c.2 to send, receive, upload, download, use or re-use any Information or material which is offensive, abusive, defamatory, obscene or menacing, or in breach of confidence, copyright, privacy or any other rights ; it is specifically prohibited to serve content to, host, or link to sites containing illegal files, adult services, pornography, escort services, "pirate" files, "warez", "serialz", "crackz", MP3 files, slander, libel, impersonations, promotion of violence or terrorism, racial, sexual, or political discrimination;
6.c.3 in breach of instructions S.M.I.S. has given under paragraph 2.d.3;
6.c.4 to cause annoyance, inconvenience or needless anxiety;
6.c.5 to send or provide unsolicited advertising or promotional material; or
6.c.6 other than in accordance with the acceptable use policies of any connected networks and the Internet Standards.
6.d The Customer must ensure that a contact name and telephone number are included in clear and legible form on its web site for receipt of any enquiries or complaints that may arise in relation to Information, Third Party Information or other material published on the web site. S.M.I.S. reserves the right to disclose to any person with an enquiry or complaint the contact name and telephone number if such person cannot locate these details on the Customer's web site.
7.a The Customer shall keep in confidence any information of a confidential nature relating to the Service obtained from S.M.I.S. under this Contract and must not disclose such information to any other person without S.M.I.S. prior written consent, provided that this restriction does not apply to information which is:
7.a.1 in the public domain otherwise than in breach of this Contract;
7.a.2 lawfully obtained from a third party which is free to disclose it;
7.a.3 required to be disclosed by law or a competent authority;
7.a.4 in the lawful possession of the Customer prior to disclosure.
7.b The restrictions in this paragraph shall survive the termination or expiry of this Contract.
8. BREACHES OF THE CONTRACT
8.a.1 the Customer:
(a) does not pay any charge within 28 (twenty-eight) days of it falling due; or
(b) commits a breach of this Contract and if it is possible to remedy, fails to remedy the breach within a reasonable time of written notice to do so or if it is not possible to remedy the breach; or
8.a.2 S.M.I.S. believes the Service is being used in a manner prohibited under paragraph 6 even if the Customer is unaware that the Service is being used in such a way
S.M.I.S. can terminate this Contract or suspend the Service or any part of the Service (or both) without notice, and claim for the resulting losses or expenses. If S.M.I.S. suspends the Service under this paragraph, S.M.I.S. can refuse to restore the Service until S.M.I.S. receives an acceptable assurance from the Customer that there will be no further breach of this Contract.
8.b S.M.I.S. can also terminate this Contract if the Customer is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors or if any of its assets are the subject of any form of seizure or goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory, or if a receiver or administrator is appointed over its assets.
8.c On termination under paragraphs 8.1 or 8.2, the Customer shall pay to S.M.I.S. all charges which are due for the Service under this Contract, including any unpaid charges for the remainder (if any) of the Minimum Period of Service.
8.d The Customer will remain liable to pay all charges which are due for the Service during any period in which the Customer does not comply with this Contract.
8.e If S.M.I.S. waives a breach of this Contract by the Customer, that waiver is limited to that particular breach. S.M.I.S. delay in acting upon a breach is not to be regarded in itself as a waiver.
9. TERMINATION BY NOTICE
9.a Either party can terminate this Contract after the Minimum Period of Service on giving 30 days notice to the other party.
9.b If notice is given under paragraph 9.a, the Customer shall pay all charges due for the Service up to the expiry of the notice.
9.b Termination by notice under this paragraph 9 does not avoid any liability for Service already provided.
10. S.M.I.S. LIABILITY
10.a S.M.I.S. duty in performing any obligation under this Contract is only to exercise the reasonable skill and care of a competent Internet services provider.
10.b The Customer accepts that S.M.I.S. is under no obligation to monitor or approve Information and Third Party Information and that S.M.I.S. does not examine the use to which customers put the Service.
10.c S.M.I.S. excludes all liability of any kind for all material comprising Information or Third Party Information and is not responsible for the provision or delivery of any goods and services (including Information) advertised, sold or otherwise made available by means of the Service.
10.d S.M.I.S. is not liable to the Customer either in contract, tort (including negligence) or otherwise for the acts or omissions of other providers of telecommunications or Internet services (including Internet registration authorities) or for faults in or failures of their equipment.
10.e S.M.I.S. is not liable to the Customer either in contract, tort (including negligence) or otherwise for loss (whether direct or indirect) of profits, business or anticipated savings, or for any indirect or consequential loss whatever.
10.f S.M.I.S. liability to the Customer either in contract, tort (including negligence) or otherwise in relation to this Contract is limited to £10 for any one incident or series of related incidents in any period of 12 months and up to a maximum of £50 in any one 12 month period.
10.g Each provision of paragraph 10 limiting or excluding liability operates separately. If any part is held unreasonable or inapplicable in any circumstances the other parts shall continue to apply.
The Customer must indemnify S.M.I.S. against any claims or legal proceedings that anyone (other than the Customer) threatens or makes against S.M.I.S. because of the way the Service is used or because the Service is faulty or cannot be used.
Neither party may assign any rights or obligations under this Contract without the written consent of the other, save that S.M.I.S. may assign or transfer its rights or obligations to any S.M.I.S. Group Company without consent.
13. GIVING NOTICE
Notices given under this Contract must be in writing and delivered by hand, or sent by prepaid post or electronic mail as follows:
13a To S.M.I.S.: to the address shown on the Registration Form, or any alternative address which S.M.I.S. notifies to the Customer at any time;
13.b To the Customer: the address specified by the Customer when entering into this Contract, or any alternative address which the Customer notifies to S.M.I.S. at any time.
14. MATTERS BEYOND THE PARTIES' REASONABLE CONTROL
14.a If either S.M.I.S. or the Customer is unable to perform any obligation under this Contract because of a matter beyond its reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving its employees), or acts of local or central Government or other competent authorities, it will have no liability to the other party.
14.b In the event of the Service failing for financial or technical reasons which are beyond S.M.I.S reasonable care then S.M.I.S shall not be liable for the continuation of services to its Customer, including none receipt of required web design information from the customer.
15.a Intellectual property rights in any software or documentation supplied by S.M.I.S. to the Customer remain the property of S.M.I.S. or its licensors.
15.b The Customer agrees to comply with the terms of any agreements reasonably required by the owner of intellectual property rights in any such software or documentation relating to the protection of those rights. Subject to the terms of this Contract, S.M.I.S. grants the Customer the non-exclusive right to use such software or documentation in connection with the Service.
15.c Without affecting any applicable statutory rights under the Copyright (Computer Program) Regulations 1992 the Customer must not and must not permit any other person to:
15.c.1 disassemble, reverse engineer, decompile or in any other way interfere with the software;
15.c.2 copy or modify the software ; or
15.c.3 create any new software partly or wholly based on the software.
15.d The Customer must not transfer or assign the right to use the software or attempt to do so.
16 SUSPENSION OF SERVICE
S.M.I.S. reserves the right to suspend service without notice if any, or all, but not limited to the following circumstances.
16.a Virtual Domains which are known to be causing problems to the network, which would cause problems to either the companies own equipment or other clients of the company.
16.b Any script intended to be publicly or by limited rights of access available which may cause harm, defect or malfunction when executed to either the company's computer equipment, to that of any other client of the company or to any outside party legitimately accessing the services provided by the company.
16.c Following any unsolicited bulk e-mailing (spamming) or complaints thereof from any third party.
16.d False representation of the company's services.
16.e Use of our services to facilitate attacks on external equipment.
16.f Public discussion or advertising of any known or unknown vulnerabilities in our services.
16.g Re-selling of services
17 DATA INTEGRITY AND LIABILITY
17.a Under normal contractual service circumstances, the company provides no warranty or accepts any liability for any data either lost or damaged which is stored on any of the company's equipment or stored on the Service Provider's equipment. It is the responsibility of the client to keep security copies of information when using hosting services.
17.b The company will not install 3 rd party software to any of it's systems which may cause harm to, or be known to cause harm to it's servers or any other servers in it's network or the Service Provider's servers, nor shall it do so where software licenses or possible disruption to synchronisation of such shall ensue by requirement of such.
18 FORMATION OF CONTRACT
18.a It shall not be necessary for the company to provide authorising signatures on documentation which is to be completed by the client but it shall be accepted that the raising of an invoice from the company to the client will be decisive formation of a contract for any period of term as set out in any documentation for which goods and/or services are being applied for.
19. VARIATION OF TERMS AND CONDITIONS
S.M.I.S. may change the conditions of this Contract at any time and will give the Customer notice of such changes at least 14 days before they take effect.
20. ENTIRE AGREEMENT
20.a This Contract contains the whole agreement between the parties relating to its subject matter and supersedes all previous written or oral agreements relating to it.
20.b The parties acknowledge and agree that:
20.b.1 they have not been induced to enter into this Contract by any representation, warranty or other assurance not expressly incorporated into it; and
20.b.2 in connection with this Contract, and except in the case of fraud, their only rights and remedies in relation to any representation, warranty or other assurance shall be for breach of the terms of this Contract and that all other rights and remedies are excluded.
This Contract is governed by the laws of England and Wales.
Version 3.1 dated 15/7/2008