Hosting Services

                                 PART 4

Chess Digital Limited

Hosting Agreement

between

(1) CHESS DIGITAL LIMITED, a company incorporated in Scotland under registration number SC296800 and whose registered office is at 17 Glasgow Road, Paisley, PA1 3QS (“the Company”).

And

(2) THE CLIENT, details of which are set out below.

We are Chess Digital Ltd (Known as Chess Digital) having our principal place of business at 17 Glasgow Road, Paisley, PA1 3QS. These are the standard terms and conditions for our web hosting services. Additional company terms and conditions may be included in the Project Proposal – a copy of which can be made available by written request.

All contracts for the supply of Website Hosting Services made by or on behalf of Chess Digital are subject to the following terms and conditions:

1. Conditions

1.1 The contract constitutes an offer by Chess Digital to supply Website Hosting Services subject to the Conditions. The Conditions shall apply to the contract to the exclusion of any other terms and conditions of the Customer. 

Variation or amendments must be confirmed by Chess Digital in writing.

2. Services

2.1 Our standard web hosting services are listed below. Any additional services we are to provide will be in the Project Proposal. The standard services are:

• 50Mb Disk space on a shared web server for storing your data for a web site;
• ¼ Gb limited data transfer per month;
• Access to a technical support engineer as per our Support and Service Levels, to assist with issues relating to the web hosting services; and
• Initial set-up of the website on the hosting server.
• Log files will be held only for the duration of the hosting contract.

2.2 Unless included in the Project Proposal, the web hosting services will not include the following:

• installation of any additional software packages;
• support or disaster recovery
• website design;
• e-business consultancy;
• anonymous Fixed Transfer Protocol (FTP) services;
• disaster recovery;
• any programming; or
• monitoring of individual websites.

3. Prices

3.1          The price for web hosting services will be as detailed in the Project Proposal. Unless otherwise stated, this price will be for the provision of the web hosting services for a 12-month period from the date of the initial set-up on the hosting server.

3.2          If you request additional support, service, training or maintenance, we will be entitled to charge for this separately.

3.3          All prices are exclusive of VAT and outlays.

4. Payment

4.1          You must make payment of the price shown in the Project Proposal in advance. We cannot commence provision of any of the web hosting services until this payment has been made.

4.2          We will issue invoices for any additional work on a monthly basis. Invoices must be paid in full within 28 days from the invoice date.

4.3          Any sum that you believe we owe you is a separate matter and cannot be offset in payment against any of our invoices.

4.4          If you fail to make payment when due we shall be entitled to:

• charge interest on any overdue amount at the rate of 2% per calendar month until paid in full;
• charge the administration and legal costs we incur in recovering amounts from you; and
• suspend or disconnect the hosting service. In such circumstances we may agree to resume the web hosting services once you have paid us a reconnection fee of £250 together with the overdue payment.

5. Hosting Conditions and Undertakings

5.1          You agree that you will not use the website for any unlawful purpose or in breach of Scots Law or any other law applicable to your use of the website. These prohibited uses include but are not limited to:

• civil and criminal offences of copyright and trademark infringement; or
• transmission or display or posting to a bulletin board, discussion group or chat room of any material of a defamatory, abusive, offensive, indecent or pornographic nature; or
• transmission or display or posting to a bulletin board, discussion group or chat room of any material in breach of the Data Protection Act 1998; or
• commission of any offence including but not limited to offences under the Computer Misuse Act 1990; or
• the sending of unsolicited mass communications (spam mail)
• use of the website in any manner which is a violation or infringement of the rights of any individual, firm or company within the United Kingdom or elsewhere; or
• violating the security of any website or engaging in unauthorised decryption of protected material.

5.2          You agree to indemnify us against all losses we may incur as a result of any breach by you of clause 5.1 above.

5.3          We are entitled at any time and without notice to remove the website from its server and/or bar access to it if you are in breach of any of the provisions of clause 5.1 above. In such circumstances we may agree to resume the web hosting services once you have paid us the reconnection fee of £250 and provided us with suitable undertakings regarding future compliance with these provisions. The removal of the website in these circumstances shall not entitle you to a refund, nor shall it affect your liability to pay for the web hosting services provided.

5.4          If we have reasonable grounds for believing that there has been a breach of these terms and conditions by you then we reserve the right to monitor any and all communications passing through our systems in connection with the web hosting services.

5.5          You acknowledge and agree that we may be required by a law enforcement agency to monitor website content and traffic and if necessary give evidence of this together with use of the logon ID to support or defend any dispute or actionable cause or matter which may arise in this connection.

6. Your Responsibilities

6.1          If requested by us, you must provide us with a fixed IP address before we can start to provide any of the File Transfer Protocol (FTP) services which may be detailed in the Project Proposal. We use security software to enhance the security of the services and a fixed IP address allows us to maximise this protection.

6.2          You will be solely responsible for the accuracy, legality, currency and compliance with data protection requirements, of all material on your website and will be solely liable for false, misleading, inaccurate, infringing or other actionable material contained or referred to on it.

6.3          You will be solely responsible for maintaining the confidentiality and security of your Internet account and usage including use of its unique logon ID.

6.4          Online transactions conducted via your website, and the honouring of such transactions are the responsibility of you and no claim can be made against Chess Digital in the event of any losses incurred by any individual / company.

6.5          Where website hosting services are inclusive of FTP services, you will be responsible for ensuring that no virus infected files or similar illegal files are uploaded to the web server. If you require to upload files with the following extensions: - .bat .exe .hta .js .vb? .wsf .wsh .shs .pif .scr .com .lnk you will: -

• supply a copy of the file to Chess Digital for review
• request in writing, approval from Chess Digital to allow the upload of such file.
• Failure to request approval will allow Chess Digital the right to remove all such files from the web server without prior notice.

6.6          Chess Digital reserve the right to amend the list of file extensions listed in 6.5, a written amended list of file extensions will be supplied to you, in such an event.

7. Software

7.1          Where the web hosting services we provide include software, you receive a non-exclusive non-transferable license to use the software. We undertake to ensure that all software provided is properly licensed.

7.2          Where the web hosting services include our software you must:

• not copy, distribute, transmit, transcribe, translate, adapt, vary, modify, disassemble, de-compile or reverse engineer our software or our software manuals without our express written permission; and
• obey the extra license terms, if any, shown in our software and our software manuals.

7.3          Where the web hosting services include third party software, you must obey the third party licence terms as shown in the third party software and third party software manuals.

8. Support and Service Levels (where part of the contract)

8.1          We will provide a helpdesk to deal with issues relating to the web hosting services. This helpdesk will be open weekdays from 9am to 5pm, UK time, except on public holidays. We will log all your calls to our helpdesk notifying us of any interruptions in connection, or other service problems. We will do our best to respond to any queries as quickly and efficiently as we can – no response time will be guaranteed unless stated in the Project Proposal.

8.2          The availability of some of our web hosting services may depend on the level of performance of our Internet Service Provider (ISP). To provide you with as much customer care and security as we can, we will provide you with the same service levels that our ISP have agreed to give us. A copy of our ISP’s Service Level Agreement can be supplied if requested by you in writing.

8.3          Our target level for availability of our standard web hosting services is 99%, 24 hours per day, seven days a week.

8.4          We will track and calculate any non availability on a yearly basis, measuring the periods of non availability from the time we log your call under Clause 8.1 until the connection is restored. Periods of non-availability beyond our or our ISP’s control or responsibility will not be included in calculating this total. Examples of situations beyond our or our ISP’s control include, but are not limited to, power failures and breakdown in telecoms services or equipment not supplied by us.

8.5          If in any year, the level of availability (other than for reasons beyond our or our ISP’s control) falls below 99%, (calculating periods of non-availability in complete hours) you will be entitled to a credit against the yearly payment made by you for that year as follows:

For each whole percentage point by which the level of availability in the year in question falls below the target level of 99%, we will give you a credit equivalent to 10% of the yearly payment made, subject to a maximum of 50% in any year. Your credit entitlement will be applied to the next yearly payment.

If the agreement to provide web hosting services is not renewed then we will reimburse you for this credit entitlement. 

9. Liability

9.1          We shall not be liable to you for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with these terms and conditions or the web hosting services we provide to you, except to the extent to which it is unlawful to exclude such liability.

9.2          In the event that any exclusion contained in these terms and conditions shall be held to be invalid for any reason and we become liable for loss or damage that it may otherwise have been unlawful to limit, this liability shall be limited to the amount of fees paid by you for the web hosting services in the year in which the liability occurred.

10. Intellectual Property Rights

10.1        You acknowledge that any and all of the copyright, trademarks, trade names, patents and other intellectual property rights created, developed, subsisting or used in or in connection with the web hosting services we provide are and shall remain our sole property. This will include any computer program or component, written or developed by us in connection with the web hosting services.

10.2        You agree to indemnify us fully against all liabilities, costs and expenses which we may incur as a result of work done in accordance with your instructions in hosting of the website involving infringement of any copyright, patent or other proprietary right, including, but not limited to, framing or linking to third party websites and/or third party proprietary material.

11. Termination

11.1        Without prejudice to any rights we may have for damages or compensation, we may by written notice terminate a contract with you if you:

• fail to make any payment on the due date;
• are in material breach of your obligations to us and do not remedy this within seven days of us asking you in writing to do so; or
• become apparently insolvent, are unable to pay your debts, call a meeting of your creditors, pass a resolution for winding up, have a liquidation petition served on you, go into liquidation or have a receiver or administrator appointed.

11.2        You cannot cancel any contract with us, without our prior written consent (90 days minimum), unless we are in material breach of our obligations to you.

11.3        Within seven (7) days after the date of termination for whatever reason, we will remove all digital versions of your website from the hosting server.

11.4        You must return to us on termination, all and any software provided to you in relation to the web hosting services.

12. Force Majeure

12.1        We will not be liable for any breach of contract due to force majeure or any circumstances beyond our reasonable control including, but not limited to, act of God, industrial action, act of war or terrorism, supervening illegality, power failures and breakdowns in any telecom service or equipment or anything else which commonly comes within the definition of force majeure.

13. No Waiver

13.1        We may choose not to act upon any breach by you of these terms and conditions. However this will not prevent us from acting in relation to any future breach of any of the terms and conditions.

14. Miscellaneous

14.1        If a court or other competent authority finds any clause of these terms and conditions invalid or unenforceable (in whole or in part) the rest of these terms and conditions will remain fully effective.

14.2        Scots law will apply to these terms and conditions. All parties agree to accept the non-exclusive jurisdiction of the Scottish Courts.