Terms and Conditions
1.1 In this agreement, unless the context otherwise requires:
"Charges" means the monthly charges to be paid by you for the Services as specified on the Chestnut Corporation Website from time to time;
"Confidential Information" means all business, technical, financial or other information created or exchanged between the parties;
"Content" means 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 your Web Solution;
"DNS" stands for domain name server;
"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, in each case whether registrable or not in any country;
"IP address" stands for an internet protocol address;
"ISP" stands for internet service provider;
"Migration Services" means the services described in clause 15.2;
"Our Software" means the software and related documentation owned by or licensed to us including any upgrades or related documentation that we use for the provision of the Services;
"Outage" means router package loss in excess of 50% sustained for more than 60 seconds;
"Services" means the hosting services as set out on the Chestnut Corporation Website from time to time;
"Terms of Payment" means the terms of payment of the charges specified in the payment schedule below or as indicated on the Chestnut Corporation Website;
"Upgrades" includes all updates, upgrades, enhancements, corrections, modifications, new releases, new versions and bug fixes in object code from time to time issued or made available by us;
"URL" stands for universal resource locator;
"Virus" means a computer program 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 ';
"Visitor" means a third party who has accessed to your Web Solution; and
"Web solution" incorpates the complete software solution owned by you, or licensed to you by a third party or by us and that is hosted by us and made available on the Internet, but that does not include Our Software
2.1 In this agreement unless otherwise specified:
2.1.1 reference to 'a party' is reference to a party to this agreement and includes its permitted assignees and the respective successors in title to substantially the whole of its undertaking;
2.1.2 words denoting the singular include the plural and vice versa and words denoting any gender include all genders;
2.1.3 reference to a numbered clause, paragraph or schedule is to that clause, paragraph or schedule of this agreement.
3. Provision of services
3.1 The Services will be provided by Chestnut Corporation, whose office is at 16 Church Street, Kingsbridge, Devon TQ7 1DD ("we" or "us", and the use of the word "our" shall be construed accordingly). The Services will be provided subject to the terms and conditions of this agreement. 3.2 This agreement is subject to your right of cancellation as set out in the Schedule.
4. Charges and payment
4.1 You shall pay the Charges for the Services according to the Terms of Payment.
4.2 The Charges are inclusive of all labour and materials but exclude VAT and other applicable sales taxes, which if payable shall be paid by you.
4.3 Subject to credit clearance, payment for the Services shall be made either by credit card or debit card.
4.4 We may charge you interest in respect of late payment of any Charges due under this agreement, monthly, at a rate of 2% of any invoice amounts outstanding for 28 days or more.
5. IP addresses
5.1 You acknowledge that you have no right, title or interest in the IP address allocated to you, and that any IP address allocated to you is allocated as part of the Services and is not portable or otherwise transferable by you in any manner whatsoever.
5.2 If an IP address is renumbered or reallocated by us, we shall use reasonable endeavours to avoid any disruption to you.
5.3 You agree that you will have no right, title or interest to the IP address upon termination of this agreement, and that the acquisition by you of a new IP address for your Web Solution following termination of this agreement shall be the exclusive responsibility of you.
6. Software licence and rights
6.1 If and to the extent that you require use of Our Software in order to use the Services, we grant to you a royalty-free, non-transferable, non-exclusive licence to use Our Software in object code form only. You have the right to authorise your employees, agents and third party consultants and contractors to use Our Software provided that such use is consistent with the terms of this agreement.
6.2 Except as expressly set out in clauses 6.1, this agreement does not transfer or grant to you any right, title, interest or Intellectual Property Rights in Our Software.
6.3 You agree that you will not, or through any parent, subsidiary, affiliate, agent or other third party:
6.3.1 copy Our Software except as expressly permitted under this agreement or by law;
6.3.2 sell, lease, license or sublicense Our Software or the documentation connected with it; or
6.3.3 use any of our Confidential Information.
6.4 If you are permitted to make any copies of Our Software, you must reproduce all proprietary notices, if any, on the copies.
7. Service levels ? standards and interruptions
7.1 Your Web Solution shall be available to Visitors pursuant to the Services 99.9% of the time.
7.2 If your Web Solution has a physical downtime that is not within the 99.9% uptime you may receive one month of credit in relation to your use of the Services. Approval of the refund is at our sole discretion, but we will take into account any justification you provide. Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor's network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system of the server which may differ from the uptime reported by individual services.
7.3 To request a refund, please contact firstname.lastname@example.org with justifications for any such refund. All requests must be made in writing via email.
7.4 Outages, including emergency and previously scheduled windows for router, switch or server maintenance, are not to be included in downtime calculations. We shall make all commercially reasonable efforts to provide you with previous email notification of all scheduled and emergency Outages.
7.5 We shall notify you of any report of downtime, and investigate it using suitably qualified personnel, as soon as reasonably practicable after becoming aware of it, and shall remedy the downtime as soon as reasonably practicable.
8. Web solution content and data
8.1 You shall not use your Web Solution to distribute Content that:
8.1.1 infringes any Intellectual Property Rights of third parties;
8.1.2 is in breach of any law, statute or regulation;
8.1.3 is defamatory, libellous, unlawfully threatening or harassing;
8.1.4 is obscene, pornographic or indecent;
8.1.5 contains any Viruses or other computer programs intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any personal information; or
8.1.6 is not solicited.
8.2 For the avoidance of doubt, we do not monitor, and will have no liability for the contents of, any communications transmitted by virtue of the Services.
8.3 You grant to us a royalty-free, non-exclusive licence during the term of this agreement, to use, store and maintain the Content on our server for the purposes of providing the Services in accordance with this agreement.
8.4 We may make such copies as may be necessary to perform our obligations under this agreement, including back up copies of the Content.
8.5 Upon the termination or expiration of this agreement, we shall destroy or deliver to you all such copies of the Content and other materials provided by you as and when requested by you.
8.6 This agreement does not transfer or grant to us any right, title, interest in any Intellectual Property Rights in the Content, except for the rights expressly granted in this agreement.
9.1 You are allocated a monthly bandwidth allowance and this allowance varies depending on the hosting Service you purchase from us.
9.2 Should your use of the Service pass your allocated bandwidth we reserve the right to: 9.2.1 suspend the Service until the start of the next bandwidth allocation;
9.2.2 suspend the Service until more bandwidth is purchased by you at an additional Charge;
9.2.3 suspend the Service until you upgrade to a higher level of package; or
9.2.4 terminate this agreement and/or charge you for the bandwidth overage.
9.3 Unused bandwidth in one month cannot be carried over to the next month.
10. Alterations to the Website and security
10.1 All additions or amendments to your Web Solution shall be first submitted to us and we shall check the Content for any Viruses and approve it and then (once approved) make such requested additions or amendments.
10.2 We will perform support services and day-to-day maintenance to the website on a 'by request' basis. Any services used will be billed at our current range of hourly charge out rates. Out of hours telephone support will be charged at higher rates. Our rates are subject to annual review. These rates are provided in our initial proposal to you and any changes will be communicated to you by e-mail or on this website."
11.1 We warrant to you that all Services provided to you by us shall be provided with due care and skill.
11.2 You warrant to us that:
11.2.1 our use of the Content or your Web solution, in accordance with this agreement, will not infringe the Intellectual Property Rights of any third party.
11.3 Subject as expressly provided in this agreement, and except where the Services are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all representations, warranties, terms and conditions whether oral or written, express or implied by law, custom, statute or otherwise and including but not limited to satisfactory quality or fitness for any particular purpose are excluded to the fullest extent permitted by law. Your statutory rights are unaffected.
11.4 Without prejudice to that generality of clause 11.3, whilst we shall take reasonable care to avoid passing on any Viruses or introducing them to you we shall not be liable to you as a result of any Virus introduced or passed on to you. You are advised to check your Web Solution regularly for Viruses.
12.1 During the term of this agreement and after termination or expiration of this agreement for any reason, the following obligations shall apply to the party disclosing Confidential Information ('the Disclosing Party ') to the other party ('the Receiving Party').
12.2 Subject to clause 12.3, the Receiving Party:
12.2.1 may not use any Confidential Information for any purpose other than the performance of its obligations under this agreement;
12.2.2 may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and
12.2.3 shall make every effort to prevent the use or disclosure of the Confidential Information.
12.3 The obligations of confidence referred to in all provisions of this clause shall not apply to any Confidential Information which:
12.3.1 is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;
12.3.2 is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
12.3.3 is required to be disclosed by any applicable law or regulation;
12.3.4 is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other party to this agreement in respect of the information and who imposes no obligations of confidence upon the Receiving Party.
12.4 Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which it may be entitled.
13.1 Notwithstanding any other provision in this agreement, our liability to you for fraud, or death or personal injury resulting from our own negligence or that of our employees, agents or sub-contractors, shall not be limited.
13.2 Our entire aggregate liability to you in respect of any breach of our contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this agreement shall be limited to an amount equivalent to 100% of the Charges we receive from you for the Services in the 12 months before the breach complained of.
13.3 We shall not be liable to you for any indirect or consequential loss (including, loss of profits, loss of data and business interruption) you may suffer even if the loss is reasonably foreseeable or we have been advised of the possibility of you incurring it.
13.4 You agree to indemnify us, and defend and hold us harmless, against any and all demands, liabilities, losses, costs and claims, including reasonable legal fees, that may, directly or indirectly, arise or result from:
13.4.1 any service provided or performed or agreed to be performed or any product sold by you using the Services; and
13.4.2 any Content supplied by you that infringes or allegedly infringes the Intellectual Property Rights of a third party.
14. Term and termination
14.1 Either party may terminate this agreement at any time for any reason by giving to the other 30 days prior written notice.
14.2 We may terminate this agreement with immediate affect in accordance with clause 9.2.4 if you exceed your monthly bandwidth allowance.
14.3 Either party may terminate this agreement with immediate effect by written notice to the other party on or at any time after the occurrence of any of the following events:
14.3.1 the other party being in breach of an obligation under this agreement and, if the breach is capable of remedy, failing to remedy the breach within 28 days after receipt of a written notice of the breach and requiring its remedy;
14.3.2 the other party becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party;
14.3.3 the other party passing a resolution for winding up, a court of competent jurisdiction making an order for the other party's winding up or the presentation of a petition for the other party's winding up which is not dismissed within seven days (other than, in each case, for the purposes of solvent amalgamation or reconstruction where the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the other party's obligations under this agreement);
14.3.4 the making of an administration order in relation to the other party or the appointment of a receiver over or an encumbrancer taking possession of or selling an asset of the other party; or
14.3.5 the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally.
14.4 Termination of this agreement for whatever reason shall not affect:
14.4.1 the accrued rights and liabilities of the parties arising in any way out of this agreement as at the date of termination and in particular but without limitation the right to recover damages against the other; or
14.4.2 provisions expressed to survive this agreement, which shall remain in full force and effect.
15. Migration services
15.1 On the expiration or termination of this agreement for any reason you may request us to provide the Migration Services to you, or to a third party service provider identified by you. We may charge for the Migration Services at the price specified on the Chestnut Corporation Website from time to time.
15.2 Where you requests the Migration Services in accordance with clause 15.1, we shall:
15.2.1 deliver your Web Solution and the Content to you, or to any successor ISP at addresses and locations designated by you;
15.2.2 update its DNS to reflect the new IP addresses corresponding to your Web Solution URLs as soon as reasonably practicable following receipt of notice from the successor ISP that it has established DNS service for your Web Solution URLs; and
15.2.3 continue to provide a DNS service for your Web Solution URLs for a period of 30 days following the date of expiry or termination of this agreement.
15.3 You shall be deemed to have accepted the Migration Services on the expiry of 60 days after delivery of the Content and your Web Solution to you or your nominee as provided for in this agreement or on notice of acceptance to us whichever is the earlier, unless otherwise notified by you.
16.1 You shall not assign, transfer, or sub-contract the benefit and/or burden of this agreement, make it the subject matter of a trust or in any other manner make it over to any third party without the prior written consent of us, which consent shall not be unreasonably withheld.
16.2 We may assign, transfer, or sub-contract the benefit and/or burden of this agreement, make it the subject matter of a trust or in any other manner make it over to any third party.
17. Force majeure
17.1 'An event of force majeure' means, in relation to either party, an event or circumstance beyond the reasonable control of that party including (without limitation) any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out or trade dispute or labour disturbance, 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, war, military operations, act of terrorism or riot, delay or failure in manufacture, production or supply by third parties of equipment or services.
17.2 The party suffering the event of force majeure shall not be deemed to be in breach of this agreement or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under this agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an event of force majeure.
17.3 If the event of force majeure in question prevails for a continuous period in excess of 3 months after the date on which it began, the other party may give notice to the party suffering the event of force majeure terminating this agreement. The notice to terminate must specify the termination date, which must be not less than 30 clear days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, this agreement will terminate on the termination date set out in the notice.
18.1 A waiver of any term, provision or condition of this agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which it is given.
18.2 No failure or delay on the part of any party in exercising any right, power or privilege under this agreement shall operate as a waiver of it, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise of it or the exercise of any other right, power or privilege.
18.3 No breach of any provision of this agreement shall be waived or discharged except with the express written consent of the parties.
19.1 If any provision of this agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction, whether pursuant to any judgment or otherwise:
19.1.1 the validity, legality and enforceability under the law of that jurisdiction of any other provision; and
19.1.2 the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision, shall not be affected or impaired in any way.
19.2 If any provision of this agreement is held to be void or declared illegal, invalid or unenforceable for any reason whatsoever, that provision shall be divisible from this agreement and shall be deemed to be deleted from it and the validity of the remaining provisions shall not be affected. If any such deletion materially affects the interpretation of this agreement, the parties shall use their best endeavours to negotiate in good faith with a view to agreeing a substitute provision as closely as possible reflecting the commercial intention of the parties.
20.1 The rights and remedies provided for by this agreement are cumulative with and not exclusive of any rights or remedies provided by law.
21. Written communications
21.1 Applicable laws require that some of the information or communication we send to you should be in writing.
21.2 You accept that communication with us will be mainly electronic.
21.3 We will contact you by email or provide you with information by posting notices on the Chestnut Corporation Website.
21.4 For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirements that such communication be in writing. Your statutory rights are unaffected.
22.1 All notices shall be given to us via email at email@example.com or by post at our correspondence address set out at clause 3.1; or to you at either the email address or postal address you provide to us when you enter into this agreement.
22.2 Notice will be deemed received when an email is received (or else on the next business day if it is received on a weekend or a public holiday in the place of receipt) or 3 days after the date of posting.
23. Entire agreement
23.1 This agreement embodies and sets forth the entire agreement and understanding of the parties and, save in the case of fraud, supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this agreement.
23.2 Unless otherwise expressly provided elsewhere in this agreement, this agreement may be varied only by a document signed by both of the parties.a
24.1 Both parties agree not to disclose to any third party, other than to their respective bankers or other professional advisers on appropriate conditions of confidentiality, the fact of or details of this agreement or any other agreement referred to in this agreement. The text of any press release or other communication to be published by or in the media concerning the subject matter of this agreement shall require the approval of each party.
25. Relationship of the parties
25.1 Nothing in this agreement and no action taken by the parties pursuant to this agreement shall constitute, or be deemed to constitute, the parties a partnership, association, joint venture, the agents of each other or any other co-operative entity.
26. Governing law and jurisdiction
26.1 This agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to it or its formation, shall be governed by and construed in accordance with the laws of England, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.
27. Exclusion of third party rights
27.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement and no person other than the parties to this agreement shall have any rights under it, nor shall it be enforceable under that Act by any person other than the parties to it.
Terms of Payment
1. You agree to supply appropriate payment for the Services, monthly in advance of the period during which the Services are provided to you. You agree that unless and until you notify us of your desire to cancel any or all Services received, those Services will be billed on a recurring basis.
2. We reserve the right to change the Charges at anytime, and such change will be posted on the Chestnut Corporation Website.
Cancellations and Refunds
1. Subject to paragraph 2 below, you may cancel this agreement in accordance with clause 14.1 at any time via a cancellation form.
2. If you are not completely happy with the Service we give you an unconditional 30 day money back guarantee on the Services provided in relation to your Web Solution. Such cancellation shall be made via a cancellation form.
3. Only first-time users of our Services are eligible for a refund. If you have used our Services before, cancelled and signed up again or if you have opened a second account with us, you will not be eligible for a refund.
4. Violations of this agreement will waive the refund policy.