Netplan Standard Agreement
These terms and conditions of service shall constitute the whole of the contract between the customer (herein after referred to as the buyer, customer) This agreement is made between Netplan Internet Solutions Limited. (registered in England & Wales under number 4099685 ) of 5 The Cobalt Centre, Siskin Parkway East, Middlemarch, Coventry, CV3 4PE (Netplan) and the CUSTOMER, as specified on the SERVICE ORDER FORM.
The service, services, product means the electronic transmission of information, graphics, sound and any other form of information transfer through the Netplan Internet Solutions Ltd. servers and lines of telecommunication.
Netplan agrees to provide Internet Services as specified under this agreement.
In this agreement (which includes the appendices hereto) the following terms shall have the following meanings:
“AGENT” – The agent, if any, representing Netplan in the sale of the service to the customer.
“AGREEMENT” – The agreement comprising the SERVICE ORDER FORM, these TERMS AND CONDITIONS, the SERVICE LEVEL AGREEMENT attached as Schedule 1 and all other documentation referred to in any of the terms.
“SERVICE ORDER FORM” – the order form which specifies the SERVICE and forms part of this agreement
“CUSTOMER” – the customer specified on the SERVICE ORDER FORM.
“SERVICE” – Netplan’s services as detailed on the SERVICE ORDER FORM
“START DATE” – the day that the SERVICE becomes fully functional and is handed over to the CUSTOMER.
“INITIAL TERM” – a period of twenty-four (24) months from the START DATE.
“EVENT OF FORCE MAJEURE” – such event as defined in clause 16.10 below.
“INSOLVENCY EVENT ” – if a party becomes insolvent, has a receiver appointed over the whole or any part of its assets, enters into any compound with creditors, or has an order made or resolution for it to be wound up (otherwise than in the furtherance of a scheme for amalgamation or reconstruction) or if ownership or control shall pass into the hands of any other legal person (other than assignment under clause 16.1), or an event analogous occurs in respect of a party in any jurisdiction to which that party is subject.
“ACCEPTABLE USE POLICY” – Netplan’s rules concerning acceptable usage of the Netplan network, attached as Schedule 2.
“RIPE” – (Réseau IP Européens) The organisation that assigns TCP/IP addresses to Internet Service Providers and their customers in Europe.
"AVAILIABILITY” means the availability of Netplan Internet Solutions Ltd network demonstrated by means of either a ping or traceroute program.
"BUSINESS HOURS” means 09.30 a.m. to 5.30 p.m. on a day other than a Saturday, Sunday, bank or other public holiday in England and Wales.
"DOWNTIME" means in respect of any month the total time during which theService is not available (other than as a result of planned Outages).
"OUTAGE" means any period during which any user cannot process an application transaction or send or receive e-mails utilizing the Service.
"PLANNED OUTAGE" means any period during which any user cannot process an application transaction or send or receive e-mails utilizing the Service caused by work for the purpose of maintenance or support.
"SERVICE MINUTES" means minutes of connectivity to Netplan Internet Solutions Ltd.
2. Terms of Purchase These Netplan Terms and Conditions shall apply to the subject matter of this AGREEMENT to the entire exclusion of any documentation proposed by the customer.
Subject to compliance by the CUSTOMER with its obligations under this agreement, Netplan Internet Solutions Ltd. shall provide the services to the CUSTOMER during the currency of this AGREEMENT with reasonable care and skill. Netplan Internet Solutions Ltd. reserves the right to vary the SERVICE at any time. However, Netplan Internet Solutions Ltd. will inform the CUSTOMER of such variations where Netplan Internet Solutions Ltd. deems it necessary to do so and where reasonably practicable in the circumstances.
3.1 Acknowledgement. Netplan Internet Solutions Ltd. accepts the customer's acknowledgement of these terms and conditions breach of any of which may result in termination and or suspension of the customer’s right to use the service.
3.2 Payment. All services supplied must be paid for in full prior to the provision of any service unless agreed in writing with Netplan Internet Solutions Ltd. the price being quoted as the list price of Netplan Internet Solutions Ltd. agreed on it's behalf at the time of contract or order with the customer.
3.3 Quotes. All prices quoted verbally or in writing (prices being the Netplan Internet Solutions Ltd. list price at exchange of contracts) for provision of service are excluding VAT at the standard rate for the service supplied and are subject to change without notice.
3.4 Alterations in the standard price of service supplied will only be accepted by Netplan Internet Solutions Ltd. in writing on a Netplan Internet Solutions Ltd. authorised order form signed by an agent or employee of Netplan Internet Solutions Ltd.
3.5 Cancellations. A Order that has been accepted by Netplan Internet Solutions Ltd. and signed by the customer or his/her representative may be cancelled by the customer or his/her representative within 14 working days at any time of signing of order and on terms that the customer will indemnify Netplan Internet Solutions Ltd. in full against any loss, costs (including the cost of goods ordered for the customer by Netplan Internet Solutions Ltd. on behalf of the customer for the supply of service ordered), damages, charges and expenses incurred by Netplan Internet Solutions Ltd. as a result of cancellation.
3.6 Suspension of services. Netplan Internet Solutions Ltd. reserves the right to suspend any/all services until such time as full payment has been made. Non-payment of an overdue account may result in the suspension of all services indefinitely and credit facilities.
3.7 Services & Goods. All services and goods supplied by Netplan Internet Solutions Ltd. including domain names which may be registered in the actual name of a third party remain the property of Netplan Internet Solutions Ltd. until full and final payment has been made to Netplan Internet Solutions Ltd. by you the vendor.
Service Level Agreement
3.8 Where the Service originates from Netplan Internet Solutions Ltd. and is delivered to customer, the Service will be available for not less than 100% of each calendar month. Availability will be calculated and reported in accordance with the rules set out below. If in any calendar month Netplan Internet Solutions Ltd. does not meet this standard of availability, we will compensate the customer. The amount of compensation will be determined in accordance with the rules set out below. Netplan Internet Solutions Ltd. will provide this compensation by making further services or discounts available to you up to the amount of compensation at the applicable rate. This compensation will be the limit of our liability for the non-availability of the Service.
This agreement shall subsist for the INITIAL TERM and thereafter may be terminated by no less than thirty (30) days notice in writing by either party to the other.
5.1 Improper Use. The CUSTOMER shall use it’s reasonable endeavours to ensure that nothing is transmitted by or on behalf of the CUSTOMER or using the CUSTOMER’s equipment through the SERVICE or downloaded in violation of any UK or International law, regulation or treaty or Netplan’s A CCEPTABLE USE POLICY or in breach of the intellectual property or rights of any person. The CUSTOMER shall fully and effectually indemnify Netplan from and against all loss, liability, damages, costs and expenses which Netplan Internet Solutions Ltd. may incur in relation to any breach by the CUSTOMER of its obligations under this clause. The CUSTOMER acknowledges that, by the nature of the SERVICE being provided, information and material downloaded or used by the CUSTOMER will be kept, whether permanently or temporarily, on Netplan’s equipment. The CUSTOMER shall at all times ensure that such information and material complies with the laws of all applicable jurisdictions and shall keep Netplan Internet Solutions Ltd. fully and effectually indemnified from and against all costs, claims, liabilities and demands relating to or arising from:
(a) any breach by the customer of this clause 5.1; or
(b) any criminal or civil legal action brought against Netplan Internet Solutions Ltd.
(c) as a result of Netplan’s storage of such information or material.
A breach of this clause and/or Netplan’s ACCEPTABLE USE POLICY will also be grounds for Netplan Internet Solutions Ltd. to terminate this AGREEMENT without notice and with immediate effect, at Netplan’s discretion.
5.2. Offending Material. Without prejudice, to any other right, Netplan Internet Solutions Ltd. shall be entitled to disable the SERVICE or any other part of it immediately and without notice or to take such action as it may in its discretion think appropriate to ensure that any material which Netplan Internet Solutions Ltd. in its reasonable opinion considers to offend the principles set out in Clause
5.1 is not capable of being transmitted or down-loaded. Netplan Internet Solutions Ltd. shall not however be obligated to take, or consider whether it should take any such action. Netplan Internet Solutions Ltd. s hall inform the CUSTOMER of any such action and the reasons for the same.
5.3 Customer-Only Traffic. The right to use the SERVICE is limited to the CUSTOMER, and those members of its staff and others engaged by the CUSTOMER to perform work for the CUSTOMER.
5.4 International Bandwidth. The CUSTOMER acknowledges that Netplan Internet Solutions Ltd. has no direct control over the availability of bandwidth over the entirety of the Internet and that while it will use such endeavours as Netplan Internet Solutions Ltd. , in its absolute discretion deems appropriate to facilitate the SERVICE at all times. Netplan Internet Solutions Ltd. shall not be responsible for delays caused by overuse or lack of such bandwidth.
5.5 ACCEPTABLE USE POLICY. Netplan Internet Solutions Ltd. reserves the right to make reasonable amendments to the ACCEPTABLE USE POLICY from time to time, effective upon notice to the CUSTOMER of such changes.
6.CUSTOMER Equipment and Network
6.1 The CUSTOMER agrees that from the START DATE, it will have available all necessary CUSTOMER equipment for which it is responsible, to allow effective installation and continuation of the SERVICE.
6.2 It is the sole responsibility of the CUSTOMER and not Netplan Internet Solutions Ltd. to provide security with respect to and of the CUSTOMER’s facilities or the facilities of others. The CUSTOMER shall be solely responsible for maintaining user access security and network access.
All work for the purpose maintenance or support as part of Planned Outages will take place outside Business Hours. Planned Outages will be notified to you wherever possible on 5 days prior notice unless otherwise agreed. Netplan Internet Solutions Ltd. shall wherever possible ensure that there are no more than 2 planned Outages each month.
Availability is calculated at the end of each month in accordance with the following formula:
A = T - D
"A": means the Availability of the Service (expressed as a percentage).
"D": means Downtime in the respective month - (expressed in minutes).
"T": means the Total Number of Service Minutes in the respective month.
6.5 Calculation of Downtime
Downtime is calculated from the time of notification of a fault by either customer or Netplan Internet Solutions Ltd., and ends when the Service is restored to full working order as determined and certified by us. However, downtime is to be disregarded to the extent it is attributable to customer failing to keep equipment in standard office environment levels of humidity and temperature, or to any other abuse, misuse, or modification of equipment or software by customer.
6.6 Compensation Calculations
If availability falls below the guaranteed levels in any particular month then we shall credit customer by reference to the following table.
Monthly Network Availability Reimbursement of Monthly Service Fee
99.00 - 100.00%= 5%
97.00 - 98.99%= 10%
95.00 - 96.99%= 15%
90.00 - 94.99%= 20%
Under 89.99%= 25%
7. Domain Name and Network Number
7.1 Netplan Internet Solutions Ltd. shall apply on behalf of the CUSTOMER for one domain name only, if requested, for all services with the exception of Netplan Dial and Netplan Virtual Server. Netplan Internet Solutions Ltd. shall cover all the charges incurred from the managing organisation in charge of the domain name for the duration of the SERVICE. If the CUSTOMER so requests, Netplan Internet Solutions Ltd. shall apply for additional domain names at an additional cost per domain name. All costs incurred in applying for such additional domain names shall be for the account of the CUSTOMER.
7.2 Netplan Internet Solutions Ltd. will route IP addresses that were previously assigned to the CUSTOMER only if those addresses were assigned to the CUSTOMER directly and not through another Internet Service Provider. Netplan Internet Solutions Ltd. will not be held responsible if other Internet Service Providers refuse to accept these addresses. Netplan Internet Solutions Ltd. shall assign new or additional TCP/IP addresses as requested by the CUSTOMER upon being provided with satisfactory documentation justifying the need for those addresses. The documentation must be in accordance with the policies set forth by RIPE. In certain circumstances, it may be necessary for TCP/IP addresses to be approved by RIPE, and in such cases those addresses are only assigned for the duration of the SERVICE and become invalid at such time as Netplan Internet Solutions Ltd. no longer provides the SERVICE to the CUSTOMER. Netplan Internet Solutions Ltd. shall not be responsible for any decision made by RIPE. When Netplan Internet Solutions Ltd. assigns addresses to the CUSTOMER, a temporary extension (usually thirty (30) days after the end of the SERVICE) may be granted at Netplan’s sole discretion. After termination or after such period (if any) those TCP/IP addresses may be reassigned to other customers by Netplan Internet Solutions Ltd . If the CUSTOMER wishes to apply for addresses that will subsist beyond the duration of the SERVICE, it must do so directly to RIPE. Any decision by RIPE or by another Internet Service Provider relating to TCP/IP addresses is the responsibility of RIPE or of that other Internet Service Provider and Netplan Internet Solutions Ltd. accepts no responsibility for such decision.
7.3 Netplan Internet Solutions Ltd. has no control over the availability of domain names and accepts no responsibility for the availability of any domain name.
7.4 In respect of any actions taken by Netplan Internet Solutions Ltd. pursuant to this clause 7, Netplan Internet Solutions Ltd. may levy additional charges on the CUSTOMER as agreed in advance.
8. Historical Archive and backup
While Netplan Internet Solutions Ltd. backs up its server computers as a regular part of its internal systems administration, Netplan Internet Solutions Ltd. does not guarantee any storage or backup of CUSTOMER data; however separately Netplan Internet Solutions Ltd. does offer such services, for additional fees.
9. Service Pricing
9.1 Service Pricing. The CUSTOMER shall pay fees to Netplan Internet Solutions Ltd. as specified on the SERVICE ORDER FORM. Such fees may be varied by Netplan Internet Solutions Ltd. from time to time with the prior agreement of the CUSTOMER. Netplan Internet Solutions Ltd. agrees not to increase the prices it charges to the CUSTOMER during the INITIAL TERM. The customer acknowledges that it has read and agreed the fees on the SERVICE ORDER FORM. All fees are exclusive of any applicable VAT which are chargeable in addition at the then current rate.
9.2 Initial Commitment. Upon execution of this AGREEMENT, the
CUSTOMER’s fees shall include without limitation the following (save where otherwise specified):
(1)Netplan’s set up fee(s), upgrade fee(s) (as applicable);(payable with order);
(2)Netplan’s service fees for the INITIAL TERM (including any options selected by the CUSTOMER on the SERVICE
(3)Domain Name Charges (as applicable)
(4)Equipment Lease Fees (as applicable)
(5)Equipment Purchase Charges (as applicable)
The fees for the INITIAL TERM whether paid or payable, are non-refundable. They are independent of the amount of traffic or systems access by the CUSTOMER.
9.3 Invoicing. Netplan Internet Solutions Ltd. (or the AGENT on Netplan’s behalf) will invoice and the CUSTOMER shall pay Netplan’s set up fee and any other one off fees (including any options selected on the SERVICE ORDER FORM) immediately upon the execution of this AGREEMENT (at Netplan’s sole option the CUSTOMER will also pay the fee for the first billing period upon execution of the AGREEMENT) and shall pay the fee for the first billing period of the service immediately upon the START DATE, subject to satisfactory credit checking results. Should the CUSTOMER fail the Netplan Internet Solutions Ltd. credit checking procedure, the CUSTOMER shall be pro-forma invoiced immediately for Netplan’s set up fee and any other one off fees and the fee for the first billing period (including any options selected on the SERVICE ORDER FORM). The AGREEMENT will be executed upon receipt of payment in full of this pro-forma invoice.
Netplan Internet Solutions Ltd. (or the AGENT on Netplan’s behalf) will invoice subsequent periods of SERVICE separately to the CUSTOMER. Payment is due within thirty (30) days from the date of issue of the invoice. Late payment of invoices will result in interest being charged at 2% above the then current Lloyds TSB base rate.
9.4 Set Off. Notwithstanding any other provision of this AGREEMENT, Netplan Internet Solutions Ltd. shall be entitled to set-off against an amount due for payment by any entity controlled by, controlling or under common control with the CUSTOMER.
9.5 Netplan Internet Solutions Ltd. Equipment. The CUSTOMER is responsible for any Netplan equipment located at its premises and will only use the Netplan equipment and any associated software in accordance with any instructions and/or software license provided from time to time. The CUSTOMER may not add to, modify, or in any way interfere with the Netplan’s equipment and Netplan Internet Solutions Ltd. will not be liable for any repairs of the Netplan’s equipment other than those arising as a result of its normal and proper use. The CUSTOMER will insure any Netplan’s equipment located on its premises from all risks equal to the full replacement value of the equipment.
10.1 For Non-payment. If any Netplan Internet Solutions Ltd. invoice remains unpaid thirty (30) days after its due date, Netplan Internet Solutions Ltd. may without further notification or prejudice to any other remedy, suspend or disable the SERVICE or, at its option, terminate this AGREEMENT.
Termination for non-payment shall not relieve the CUSTOMER of its responsibilities under this AGREEMENT, including the responsibility to pay all fees up to the date of termination.
10.2 For Default. Either party may terminate this AGREEMENT at any time if the other materially breaches this AGREEMENT and in the case of a breach capable of remedy fails to remedy the breach within thirty (30) days of a notice requiring the breach to be remedied.
10.3 INSOLVENCY. Where one party suffers an INSOLVENCY event, then the other may, without prejudice to any other right or remedy, terminate this AGREEMENT.
Where the CUSTOMER suffers an INSOLVENCY event, and this occurs during the INITIAL TERM, the CUSTOMER shall be liable for the balance of payments outstanding for the first year.
11. Additional Service Terms
11.1 Customer provided equipment. To enable Netplan Internet Solutions Ltd. to provide the SERVICE, the CUSTOMER agrees to abide by Netplan’s prior agreed recommendations and specifications regarding the existence, configuration and maintenance of equipment used by the CUSTOMER (if any), the software used by the CUSTOMER and cabling required to integrate the CUSTOMER’s host or local area network (LAN) into Netplan’s wide area network (WAN). The CUSTOMER’s equipment must comply with the relevant portions of such recommendations and specifications. Such recommendations and specifications, if any, are given solely for the protection of Netplan’s equipment and not the CUSTOMER’s and the CUSTOMER may not therefore rely upon such recommendations and specifications in the design, maintenance, or service of the CUSTOMER’s equipment or system.
11.2 Support. Netplan’s helpdesk will provide reasonable telephone support on problems experienced by the CUSTOMER in relation to the SERVICE. Requests for advice and assistance can be sent to email@example.com
12. USE OF SERVICE
12.1 Under no circumstances will the storage and transmission of pornographic materials in any form what so ever be allowed through or on Netplan Internet Solutions Ltd's servers and data transmission cables. The term pornographic material is purely at the discretion of the Directors of Netplan Internet Solutions Ltd. and their decision in such matters is full and final.
12.2 The customer accepts sole liability for any material including but not restricted to, data, graphic, photo supplied to Netplan Internet Solutions Ltd. which is subject to copyright or is judged to be of an unlawful nature or is judged to be in violation of UK or international law or regulation.
12.3 The customer acknowledges that the service may only be used for lawful purposes any information including but not restricted to, graphic, image, photograph, text in violation of any UK law or regulation including but not restricted to material which is obscene, indecent, judged to be unlawful in the UK and or abroad, threatening, damaging (to include transfer of computer virus), copyright, trade secret, is prohibited whether or not the customer was aware of the content, material and or the laws pertaining to the material.
12.4 The purpose of the services provided to you the customer by Netplan Internet Solutions Ltd. are for the storage and transmission of standard web sites, this means that the space provided on Netplan Internet Solutions Ltd. Internet network must not be used as an FTP area for the transmission of demo software and other high bandwidth applications, these applications are at the discretion of the Directors of Netplan Internet Solutions Ltd. and their decision in such matters is full and final. If such applications are required on a web site then it is suggested that these are posted on dedicated FTP sites which can be reached by appropriate links on the web sites stored on Netplan Internet Solutions Ltd. Internet network.
12.5 Netplan Internet Solutions Ltd. reserve the right to limit the transfer of data if such transfer of data are deemed to cause high traffic demands by way of download of files whether through the size of file and or the number of users of a particular service. The customer acknowledges their obligation to inform Netplan Internet Solutions Ltd. of the exact nature of files by size, type, content and understand that a surcharge may be levied for the additional bandwidth required to accommodate the traffic, the customer has the right under these conditions to terminate the service contract and an appropriate refund will be made which will be a percentage of the initial invoice minus admin charges.
12.6 The customer acknowledges that they shall be solely responsible for any violation of UK law with regard to the remote loading of information of any kind onto the Netplan Internet Solutions Ltd. server/computer, to view, download to and or by a third party, Netplan Internet Solutions Ltd. will retain the right to suspend and or terminate any remote service which they deem to be in breach of UK law or is of a nature which may be damaging, threatening or judged to include but not restricted to material which is obscene, indecent, libellous, subject to copyright whether or not the customer was aware of the content or the laws or regulations pertaining to it both in the UK and Internationally.
12.7 The customer acknowledges sole liability with regard to any claim by third parties alleging any infringement of rights of any kind due to transmission of any information to view by the customer and shall include any infringement of rights under UK and International law and or regulation and as such agree to pay to Netplan Internet Solutions Ltd. any costs incurred in the defence of any action brought against them by a third party arising from such claims.
12.8 Knowledge of the Internet - The Customer agrees to obtain a basic knowledge of the Internet and its operating principles and procedures.
12.9 Improper Uses - The Customer will avoid violation of certain generally accepted guidelines on Internet usage such as restrictions on mass mailings, mass advertisements, pirating or copying of software, mail bombing or other methods of attempting to deny service or access to other users, and attempts to violate security.
12.10 Security The Customer is required to protect the security of its Internet account and usage. The Customer's security policies and procedures, their implementation and their connection to the Internet are the Customer's responsibility. The Customer will treat its password as private and confidential and will not disclose or share it with any third parties. Any packet filtering services provided by Netplan Internet Solutions Ltd. provide a base level of protection and cannot be considered to render comprehensive security of any kind. The customer is responsible for securing its own enterprise network via its own security policies and procedures.
12.11 Service Level.
The customer can apply for SERVICE credits for SERVICE disruptions or failures in accordance with Schedule 1. This shall be the sole remedy available to the CUSTOMER for service disruptions or failures.
13. Network Infrastructure
From time to time Netplan Internet Solutions Ltd. may upgrade its network infrastructure. This may require the CUSTOMER to upgrade some of its equipment if the SERVICE is to be continued. In that event, the CUSTOMER agrees to make within thirty (30) days such reasonable upgrades to its hardware or software as Netplan’s technical staff may from time to time reasonably specify by written notice to the CUSTOMER. Netplan Internet Solutions Ltd. shall not be responsible for degradation of or disruption to the SERVICE if the CUSTOMER does not make the required upgrade.
14. Limited Warranty
14.1 Subject to Clause 3, Netplan Internet Solutions Ltd. warrants that the SERVICE will not be substantially different from any written description of the SERVICE previously supplied by Netplan Internet Solutions Ltd. to the CUSTOMER.
14.2 Responsibility. The CUSTOMER is responsible for assessing its own commercial needs, how the service relates to the CUSTOMER and how the CUSTOMER should use the SERVICE. The CUSTOMER warrants that it is familiar with services of this type and that it understands the level of service to be provided and the implications for the CUSTOMER’s own business of the choices which the CUSTOMER made when completing the SERVICE ORDER FORM. Netplan Internet Solutions Ltd. makes no warranty as to the value of the SERVICE in the CUSTOMER’s business or the results to be obtained from the use of the SERVICE.
14.3 Information. The CUSTOMER is solely responsible for the use of any information or other material obtained through the SERVICE. Netplan Internet Solutions Ltd. specifically excludes any responsibility for the accuracy or quality of any information obtained through the SERVICE, or that any other material obtained through the SERVICE may be used in any way by the CUSTOMER without infringing the rights of any third parties. The CUSTOMER further acknowledges that these matters are outside the control of Netplan Internet Solutions Ltd.
15. Limitation of Liability; Limited Liability.
15.1 Any liability arising from, including but not restricted to damages caused or allegedly caused by any failure to provide the agreed service, error, omission, interruption of service and or delay of transmission of service, loss of electronically stored information due to, theft, fire, destruction, or by means of unauthorised access to electronic information stored on Netplan Internet Solutions Ltd. equipment or third party providers utilised By Netplan Internet Solutions Ltd., shall be restricted to a maximum of the amount paid by the customer for the service/s provided by Netplan Internet Solutions Ltd. or agent of Netplan Internet Solutions Ltd. minus administration costs.
15.2 You agree that, in view of their nature, your use of the Services is at your sole risk. Whilst we will endeavour to ensure that the Services are of a high quality, neither we nor any of our agents, contractors, licensees, employees or information providers involved in providing the Services, give any guarantee that the Services will be uninterrupted or free from error. Where necessary for commercial, technical, or other reasons:
(a) a network or service provider connected to the Services may suspend or terminate its connection to the Services; and
(b) the Services may suspend or terminate their connection to another network or service provider.
15.3 You agree that any such suspension or termination referred to above will not constitute a breach by us of the Agreement and that the Services are provided on an "as is" basis without guarantee of any kind.
15.4 You further agree that we will not be held liable for any costs, expenses, losses, damages or other liabilities (howsoever arising) which you may incur as a result of a suspension of the Services in accordance with Clause 3.6(a) above.
15.5 You acknowledge that the Internet is separate from the Services and that use of the Internet is at your own risk and subject to any applicable Laws. We have no responsibility for any goods, services, information, software, or other materials which you may obtain from a third party when using the Internet.
15.6 You also acknowledge that we may exercise editorial control over the content of our servers, but that we do not have the resources to ensure, nor are we capable of checking, the full content of our servers at all times. Neither we, nor any of our agents, contractors, licensees, employees and information providers, involved in providing the Services, are able to control the content of the Internet. You, therefore, agree that we shall not be held responsible for the publication, transmission, or reception of any defamatory material or information of any kind, other than information which is inserted by us. You specifically acknowledge that we have given no warranties as to the quality, content, or accuracy of information received through, or as a result of the use of, the Services.
15.7 You agree and acknowledge:
(a) that you are in a better position than us to foresee and evaluate any potential damage or loss which you may suffer in connection with the Equipment and/or the Services and/or any other service provided to you under the Agreement;
(b) that we cannot adequately insure our potential liability to you; and
(c) that the sums payable by you under the Agreement have been calculated on the basis that we shall exclude liability in accordance with the Agreement.
15.8 In no circumstances whatsoever will we be liable to you (whether in contract, or for breach of duty, or negligence or otherwise) for any indirect, incidental or special loss or damage or any loss of business or of contracts, profit, opportunity, goodwill, reputation, or anticipated savings, or for any loss or corruption of data which arises out of or in connection with any use of, or inability to use, the Services and/or the Equipment.
15.9 In any event:
(a) Our liability to you for any failure of the Services or other event in any Minimum Cancellation Notice Period shall not exceed the Charges payable in respect of such Minimum
Cancellation Notice Period.
(b) Our aggregate liability to you of any sort (including for breach of contract and negligence) in connection with this Agreement shall not exceed the amount of Charges paid by you to us in accordance with this Agreement.
15.10 Nothing in this Agreement will limit our liability under Part I of the Consumer Protection Act 1987 or for death or personal injury caused by our negligence.
The headings in these conditions are intended for reference only and shall not effect their construction.
DEFINITION OF Netplan Internet Solutions Ltd. RESPONSIBILITY
15.11 Connection - Netplan Internet Solutions Ltd. provides the Customer with a connection to the Internet through its equipment and facilities. Information which passes to or from the Customer over the Internet passes through equipment and facilities which Netplan Internet Solutions Ltd. does not own and has no control over. Netplan Internet Solutions Ltd. does not provide exchange or monitor data or information on the Internet. Thus, it follows that: Content - Other than "packet filtering" at the customer's request on an Netplan Internet Solutions Ltd. provided router or firewall, which will deny entry to unregistered, addressed packets, Netplan Internet Solutions Ltd. does not check, scan or verify content of information and data transmitted on the Internet. Netplan Internet Solutions Ltd. does not make judgments with regard to appropriateness of material for transmission, or guarantee the nature, content, truth, accuracy or reliability of such material.
15.12 Security - Netplan Internet Solutions Ltd. does not warrant or guarantee the security or confidentiality of any such information or data.
15.13 Opinions - Netplan Internet Solutions Ltd. takes no opinion and expresses no views on the nature or content of any such information or data.
Without prejudice to the express warranties contained in clause 14 above and to the maximum extent permissible in law, all conditions and warranties which are to be implied by statute or otherwise by general law into this AGREEMENT or relating to the SERVICE are hereby excluded.
15.14 The following provisions in this clause 15 set out Netplan’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the CUSTOMER in respect of:
15.14.1 a breach of Netplan’s contractual obligations;
15.14.2 a tortious act or omission for which Netplan Internet Solutions Ltd. is liable;
15.14.3 an action arising out of a misrepresentation by or on behalf of Netplan Internet Solutions Ltd. ; arising in connection with the performance of this AGREEMENT or out of an act done or omission made as a consequence of the entry into by Netplan Internet Solutions Ltd. of this AGREEMENT.
15.15 Subject to clauses 15.6 and 15.7, the total liability which Netplan Internet Solutions Ltd. shall owe to the CUSTOMER and in respect of all claims shall not exceed the then current annual fee for the SERVICE.
15.16 The CUSTOMER acknowledges that the Netplan Internet Solutions Ltd. network has not been designed for use in circumstances where its failure could cause pure economic loss, loss of profit, loss of business or like loss.
15.17 Netplan Internet Solutions Ltd. shall in no circumstances be liable to the CUSTOMER, whether in tort or otherwise, for loss, whether direct or indirect, of business, revenues, profits, anticipated savings or wasted expenditure or for any indirect or consequential loss whatsoever, or for the acts or omissions of other providers of telecommunications services or for faults or failures in their apparatus.
15.18 Netplan Internet Solutions Ltd. shall in no circumstances (whether before or after termination of this AGREEMENT) be liable to the CUSTOMER for any loss of or corruption to data or programs held or used by or on behalf of the CUSTOMER and the CUSTOMER shall at all times keep adequate back up copies of the data and programs held or used by or on behalf of the CUSTOMER.
15.19 Notwithstanding anything to the contrary herein contained Netplan’s liability to the CUSTOMER for:
15.19.1 death or personal injury resulting from the negligence of Netplan Internet Solutions Ltd. or its employees, agents or subcontractors;
15.19.2 damage suffered by the CUSTOMER as a result of a breach by Netplan Internet Solutions Ltd. of the condition as to title or the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; and
15.20 The exclusions from and limitations of liability set out in this clause 15 shall be considered severable. The validity or unenforceability of any one clause, sub-clause, paragraph or sub paragraph of this clause 16 shall not affect the validity or enforceability of any other part of this clause 15.
15.21 The provisions of this clause 15 shall survive the termination of the whole or a part of this AGREEMENT.
16. General Terms
16.1 Breaching of these terms and conditions in any form will allow the Directors of Netplan Internet Solutions Ltd. to terminate the contract between you the customer and the company trading as Netplan Internet Solutions Ltd., monies outstanding or owed to either parties will be decided by the Directors of Netplan Internet Solutions Ltd. and their decision in such matters will be full and final.
16.2 Use of Netplan Internet Solutions Ltd. services and goods including domain names constitutes acceptance of these terms and conditions. All services provided are stipulated on this invoice, if any additions advertised or inferred by Netplan Internet Solutions Ltd. or an agent of Netplan Internet Solutions Ltd. do not appear in writing on this invoice then Netplan Internet Solutions Ltd. must be informed in writing by you the customer within 14 days.
16.3 Assignment. The CUSTOMER cannot sell, transfer, or assign its rights or obligations under this AGREEMENT without the written consent of Netplan Internet Solutions Ltd . No such assignment, even if consented to, shall relieve the other party of its obligations under this AGREEMENT prior to the date of such assignment.
16.4 Waiver. The waiver or failure of either party to exercise any right provided for in this AGREEMENT shall not be deemed a waiver of that or any other right in this AGREEMENT.
16.5 Invalidity. If any provision of this AGREEMENT is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this AGREEMENT will remain in full force and effect.
16.6 Whole AGREEMENT . This AGREEMENT, together with any document expressly referred to in any of its terms, contains the entire AGREEMENT between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information or e-mail given by any party shall alter the interpretation of this AGREEMENT. The CUSTOMER confirms that, in agreeing to enter into this AGREEMENT, it has not relied on any representation save insofar as the same has expressly in this AGREEMENT been made a representation and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this AGREEMENT save the agreement of the CUSTOMER contained in this Clause shall not apply in respect of any fraudulent or negligent misrepresentation whether or not the same has become a term of this AGREEMENT.
16.7 Notices. Notices sent pursuant to this AGREEMENT shall be in writing and may be delivered by hand or sent by post or faxed with hard copy confirmation by post to the recipient at its address shown on the SERVICE ORDER FORM or at such other address as may be notified in accordance with this clause or, in the case of a company, to its registered office. Notices hand delivered or faxed shall be deemed received on delivery and those posted on the second working day after they are posted.
16.8 Headings . The headings shall be disregarded in construing this AGREEMENT.
16.9 Law. This AGREEMENT shall be governed by English Law. The parties submit to the non exclusive jurisdiction of the English courts.
16.10 Capacity . Both parties acknowledge that they have read and understood this AGREEMENT and agree to be bound by its terms.
16.11 Representations . The parties acknowledge that in entering into this AGREEMENT they have not relied upon any representations other than those reduced to writing in this AGREEMENT. The provisions of this clause 16.9 shall not apply in the case of any fraudulent misrepresentation.
16.12 FORCE MAJEURE . Neither party shall be liable for any breach of this AGREEMENT due to any cause beyond its reasonable control (save obligation in respect of the payment of monies) including but not limited to Acts of God, inclement weather, flood, lightening or fire, industrial action, act or omission of government, or other competent authority, riot, war or act or omission of any other party for whom that party is not responsible (“an event of FORCE MAJEURE”).
16.13 Data Protection. The CUSTOMER hereby consents that any CUSTOMER information (“Data”) collected by Netplan Internet Solutions Ltd. in the fulfilment of this AGREEMENT (including but not limited to Data collected during order processing, delivery, installation, support and maintenance of the SERVICE) may for the purposes of fulfilling the contract be processed by Netplan Internet Solutions Ltd. its provisioning entities affiliates and agents both within and outside the European Economic Area, and outside the country or countries where the Data is collected.
Service Level Agreement
Netplan Internet Solutions Ltd. Network Availability Service Level Guarantee
Netplan’s Network Availability Service Level Guarantee is that the
Netplan network will be available 100% of the time. The Netplan network is the combination of Netplan Internet Solutions Ltd. operated equipment, servers, circuits, and other data transmission facilities. Netplan’s network guarantee will be measured on the number of minutes that the Netplan Internet Solutions Ltd. network was not available as reasonably determined by Netplan Internet Solutions Ltd .
If Netplan determines that the network is unavailable for one (1) or more consecutive hours during any calendar month, Netplan, upon the CUSTOMER’s request, will credit the CUSTOMER’s invoice the prorated charges of one (1) day of the Netplan Internet Solutions Ltd. service fee for each consecutive hour, up to a maximum of 30 hours.
In the event of a tail circuit failure (the circuit connection to the
CUSTOMER) a discretionary credit may be made by Netplan to the CUSTOMER providing that Netplan Internet Solutions Ltd. is able to secure an equivalent amount from the circuit provider. Credits for tail circuit failures are at Netplan’s sole discretion.
Netplan Latency Service Level Guarantee
Netplan’s Latency Service Level Guarantee is based on an average round trip transmission across the Netplan backbone network for the Netplan services listed under Guarantee Coverage. Latency shall be measured by Netplan averaging sample measurements taken during a calendar month.
UK Network 60 Milliseconds or less
Transatlantic Link 140 Milliseconds or less
To receive the credit if any of the guarantees has not been met, the CUSTOMER must e-mail firstname.lastname@example.org within 30 days of the end of the month for which the credit is requested.
The CUSTOMER shall only be entitled to claim under one section of the Guarantee per day.
Network Unavailability will not include any Network Unavailability of an hour or less, or any unavailability resulting from:
(a) Network maintenance
(b) Circuits provided by telcos or common carriers
(c) Any external Internet Service Provider or an Internet exchange point
(d) Acts or omissions of CUSTOMER or an unauthorised user
(e) Behaviour of CUSTOMER equipment, facilities or applications
(f) Acts of god, civil disorder, natural cataclysm or other occurrences beyond the reasonable control of Netplan.
CUSTOMERs are covered for the following Netplan services:
Cobalt RAQ hosting.
Acceptable Use Policy
The CUSTOMER acknowledges that Netplan Internet Solutions Ltd. provides the telecommunications network facilities underlying the SERVICE provided. The use of Netplan’s telecommunications network facilities is subject to the following terms, breach of which may result in suspension or termination of the end-user’s right to use the SERVICE:-
1. The Netplan network may only be used for lawful purposes. Transmission of any material through the Netplan network, or use of any part of it, in violation of any UK law or regulation is prohibited. Such prohibited transmission might include, but is not limited to: copyright material, material legally judged to be threatening or obscene, material protected by trade secret, whether or not the end user was aware of the content of the material or of the relevant law.
2. The CUSTOMER shall be issued with a password to access the services and shall take all reasonable steps to keep such password private and confidential, and ensure that it does not become known to other persons. If the password becomes known to any other person the CUSTOMER will immediately inform Netplan and the password shall be changed immediately be changed.
The CUSTOMER shall not knowingly use the service for transmission of computer viruses, for transmission of any material which is defamatory, offensive or abusive or of an obscene or menacing character, or which may cause annoyance, inconvenience or needless anxiety, or for the posting of any such material to bulletin boards or newsgroups in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to intellectual property rights).
3. The CUSTOMER acknowledges that Netplan Internet Solutions Ltd. is unable to exercise control over the content of any information passing over the Netplan network and that Netplan does not monitor or exercise any editorial control over the information passing over the Netplan network. The CUSTOMER further acknowledges that Netplan Internet Solutions Ltd. hereby excludes all liability in respect of any transmission or reception of information of whatever kind, or the accuracy of the contents thereof, or the scrambling of any information or data.
4. The Netplan network may be used by the CUSTOMER to access other networks world-wide and the end user agrees to conform to any acceptable use policies of Netplan and any such other networks. In addition the CUSTOMER undertakes to conform to any published Internet protocols and standards. In the event that communications by CUSTOMER do not conform to these standards, or if the CUSTOMER makes profligate use other than in accordance with this AGREEMENT of the Netplan network to detriment of Netplan Internet Solutions Ltd. or other Netplan customers, Netplan Internet Solutions Ltd. reserves the right to restrict passage of the CUSTOMER communications until the CUSTOMER complies with such standards or protocol or provides undertakings acceptable to Netplan Internet Solutions Ltd. in respect of the CUSTOMER’s future use.
In the provision that the end user is in breach of any provision of this schedule, Netplan Internet Solutions Ltd. shall be entitled to suspend services forthwith without notice.
Netplan Internet Solutions Ltd. reserves the right to amend / alter these Terms and Conditions without notice.
CANCELLATION OF SERVICE
Cancellation of service must me given in writing 28 days before service is due for renewal. If cancellation is not received in writing within 28 days of renewal then the customer will be liable for the full renewal fee.