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Terms & Conditions
In this Contract:
"Authorised User" means anyone the Customer allows to use the Service.
"DataGate" means DataGate Network Solutions Limited of Ealing Studios, Building D, Ealing Green, Ealing, London W5 5EP registered in England No 3577856.
"Contract" means, in order of precedence, this Service Agreement and the on-line Order Form.
"Customer" means the person named on the Order Form and anyone reasonably appearing to DataGate to be acting with that person's authority or permission.
"Helpdesk" means the e-mail helpdesk facility provided by DataGate to handle enquiries and administration for the Service.
"Internet" means the global data network comprising interconnected networks using the TCP/IP protocol suite.
"Service" means the domain name registration service, the web hosting service, the e-mail service, and any other related or ancillary services provided by DataGate in conjunction therewith.
"basic monthly mailbox charge" means the standard mailbox charge as described on http://www.datagate.co.uk/exchangehosting/pricing.html including any discounts applied for multiple mailbox accounts.
"storage space" means the total storage space used for all mailboxes and public folders for a particular account.
"Account" means to the combination of services and users related to one customer organisation. This could be one or any number of mailboxes and users.
"Customer Administrator" means the single user per account who has authority to access the control panel, order, amend or cancel services.
This Contract begins on the date that the Customer completes the on-line registration process and will continue until terminated in accordance with this Contract.
3 Provision of the Service
3.1 DataGate will provide the Customer with the Service on the terms of this Contract.
3.2 DataGate will use reasonable endeavours to provide the Service by any date agreed with the Customer but all dates are estimates and DataGate has no liability for any failure to meet any date.
3.3 DataGate will provide the Service with the reasonable skill and care of a competent provider of services which are the same or similar to the Services.
3.4 It is technically impracticable to provide a fault free Service and DataGate does not undertake to do so. DataGate will however use its best efforts to procure the repair any reported faults as soon as it reasonably can.
3.5 Occasionally DataGate may: (a) change the technical specification of the Service; (b) suspend the Service for operational reasons such as repair, maintenance or improvement of the Service or because of an emergency.
3.6 The Customer is responsible for providing suitable computer hardware, software and telecommunications equipment and services necessary to access and use the Service. This Contract does not include the provision of telecommunications services necessary to connect to the Service or to obtain access to the Internet.
3.7 The Customer is responsible for the acts and omissions of all Authorised Users in connection with the Service and is liable for any failure by any Authorised User to perform or observe the terms and conditions of this Contract.
4.1 The Customer is responsible for the security and proper use of all user names and passwords used in connection with the Service (including changing passwords on a regular basis) and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised people.
4.2 The Customer must immediately inform DataGate if there is any reason to believe that a user name or password 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.
4.3 DataGate reserves the right to suspend user name and password access to the Service if at any time DataGate considers that there is or is likely to be a breach of security.
4.4 DataGate reserves the right (at its sole discretion) to require the Customer to change any or all of the passwords used by the Customer in connection with the Service
4.5 The Customer must immediately inform DataGate of any changes to the information the Customer supplied when registering for the Service.
5 Use of the Service
5.1 The Service must not be used by the Customer or any Authorised User:
(a) fraudulently, in connection with a criminal offence, or otherwise unlawfully;
(b) to send, receive, upload, download, use or re-use any information or material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of confidence, copyright, trademark, service mark, patent, privacy or any other rights;
(c) to cause annoyance, inconvenience or needless anxiety;
(d) to transmit knowingly or recklessly any electronic material (including viruses) through the Service which shall cause or is likely to cause detriment or harm, in any degree, to computer systems owned by DataGate or other Internet users;
(e) to send or provide unsolicited advertising or promotional material or to receive responses to any unsolicited advertising or promotional material sent or provided using the Service by any third party; or
(f) other than in accordance with the acceptable use policies of any connected networks.
5.2 The Customer must not use a user name or alias which infringes the rights of any person in a corresponding trade mark or name. DataGate reserves the right to require the Customer to select a replacement user name or alias and may either refuse to provide or may suspend Service if, in DataGate opinion, there are reasonable grounds for DataGate to believe that the user name or alias is, or is likely to be, used for a dishonest purpose, offensive, abusive, defamatory, obscene, or in violation of any person's intellectual property or similar rights.
5.3 If the Customer, an Authorised User or anyone else, with or without the Customer's knowledge or approval, uses the Service in contravention of paragraphs 5.1, 5.2, or
5.4 DataGate may treat the contravention as a material breach of this Contract which cannot be remedied for the purposes of paragraph 13.
5.5 Bulk email distribution:
If DataGate finds that a customer is using excessive bandwidth for Bulk Email Distribution, DataGate reserves the right to:
(a) Immediately suspend the customer's account(s) pending DataGate's express written approval of mailing
(b) Impose additional charges for high-bandwidth use.
(c) Terminate the customer's contract for repeat offenders.
6 Space Allocation
6.1 The size of a mailbox is not restricted by default. The Customer Administrator may restrict individual mailbox sizes through the control panel provided.
6.2 The space used by the Customer is aggregate across all mailboxes and public folders for that account. Thus a 10 mailbox account has 10 x 200 MB (2 GB) total space allowance by default.
6.3 Customers who wish to upgrade their included aggregate storage space mid-billing period will be invoiced pro-rata at the next monthly billing day. Thus, if a Customer is paying half yearly and after 1 month they wish to upgrade their included aggregate storage space, they will receive an invoice in month 2 for additional space up to month 6.
7 Migration of legacy data to DataGate
7.1 If DataGate is required to carry out migration of legacy data into Exchange accounts, administration charges may apply. This will be decided on case by case basis, please contact us for further details. If after considering your particular case charges needs to be applied it will be priced at our usual rate and should take into account the actual time spent by our Exchange System Administrators for data planning and migration.
7.2 Customers should be provided with a fixed quote for migration based on the above charges to be presented by the sales person on the account. Approval by Purchase Order or email from an account authority is required before migration can proceed.
7.3 Customers will be provided with free advice on carrying out their own migration as an alternative.
8 Payment terms
The customer agrees to pay DataGate the current prices as published on the price list on www.datagate.co.uk for services provided. DataGate may change its prices from time to time and will notify all existing customers by email to the account administrator of such changes.
8.1 Price breaks
When a new price break point is reached, the lower pricing is available to all mailboxes on the account from the next billing date.
8.2 Payment methods
The customer accepts that there are different payment methods acceptable to DataGate with regards to payment for services:
8.2.1 Automatic monthly credit card billing
188.8.131.52 The customer grants DataGate the right to deduct monthly in advance, the basic monthly mailbox charge directly from the customer's credit card 7 days after notification has been sent by email to the Customer.
184.108.40.206 The customer grants DataGate the right to deduct monthly in arrears, any additional charges accrued during the previous month. Additional storage space charges will be calculated based on the peak storage space used during the preceding month, subject to a minimum space requirement defined as the basic monthly mailbox allowance (see Basic Feature description on www.datagate.co.uk/exchangehosting/features.html).
220.127.116.11 If the Customer agrees to pay half yearly or yearly in advance for basic monthly mailbox charges, the Customer will receive a 5% or 10% discount respectively on the basic monthly mailbox charges.
8.2.2 Cheque payments by invoice
18.104.22.168 The customer agrees to pay half yearly or yearly in advance for basic monthly mailbox charges. The customer will receive a 5% or 10% discount respectively on the basic monthly mailbox charges.
22.214.171.124 The Customer agrees to pay DataGate by cheque within 14 days of receipt of invoices for additional charges accrued during the previous month.
8.2.3 Direct Debit payments
126.96.36.199 You can set up Direct Debit payments for any DataGate service.
To arrange payment by Direct Debit you must be acting as the person whose bank account will be debited.
Please open the form using Adobe Acrobat Reader, print it, and send it back to us at:
DataGate Ealing Studios, Building D Ealing Green London W5 5EP
Please don't forget to sign the form.
8.3 The Customer accepts that no action can be taken with respect to activating accounts or additional services until payment has been received by DataGate.
8.4 DataGate operates a no-cash refund policy for payments made in advance. If a customer reduces the amount of space or mailboxes required after payment has been made, the customer will be refunded by extending the service for additional time.
8.5 Addition and removal of mailboxes
8.5.1 New mailboxes opened by the Customer Administrator using the online control panel are subject to a minimum charge of 30 days.
8.5.2 If a customer wishes to reduce the number of mailboxes below the number stated in the Customerís original order, DataGate must be notified 30 days in advance by writing or by fax from an account authority on company-headed paper.
The Service does not provide or include access to the Internet. The Customer's use of the Internet is solely at the Customer's risk and subject to all applicable laws, and DataGate has no responsibility for any information, software, services or other materials accessed or obtained by the Customer using the Internet.
10.1 The Customer hereby agrees to indemnify and to hold DataGate harmless from and against any claim brought by a third party resulting from the use of the Service or by the Customer and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered or incurred by DataGate in consequence of the Customer's breach or non-observance of the Contract.
10.2 The Customer shall defend and pay all costs, damages, awards, fees (including any reasonable legal fees) and judgements awarded against DataGate arising from the above claims and shall provide DataGate with notice of such claims, full authority to defend, compromise or settle such claims and reasonable assistance necessary to defend such claims, at the Customer's sole expense.
10.3 This paragraph 10 shall remain in effect for three years after the termination of this Contract.
11.1 DataGate will keep in confidence any information provided to it by the Customer when registering for the Service or otherwise under this Contract and will not disclose that information to any person (other than its employees, contractors, or professional advisers, or the employees or contractors of a DataGate Company who need to know the information) without the Customer's consent.
11.2 This paragraph 11 will not apply to:
11.2.1 any information which has been published other than through a breach of this Contract;
11.2.2 information lawfully in the possession of the recipient before the disclosure under this Contract took place;
11.2.3 information obtained from a third party who is free to disclose it;
11.2.4 information which a party is requested to disclose and if it did not could be required by law to do so; or
11.2.5 information which has been reduced by DataGate to anonymous, non-personal form before disclosure.
11.3 This paragraph 11 will remain in effect for 2 years after the termination of this Contract.
12 Limitation of Liability
12.1 DataGate accepts unlimited liability for death or personal injury resulting from its negligence and paragraphs 12.2 and 12.3 do not apply to such liability.
12.2 DataGate is not liable to the Customer, either in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings, nor for any indirect or consequential loss or damage or for any destruction of data.
12.3 DataGate's liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Contract is limited to amount paid by the Customer for Service in any twelve month period
12.4 DataGate excludes all liability of any kind in respect of any material on the Internet which can be accessed using the Service and is not responsible in any way for any goods (including software) or services provided by third parties advertised, sold or otherwise made available by means of the Service or on the Internet.
12.5 DataGate 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 domain name registration authorities) or for faults in or failures of their equipment.
12.6 Each provision of this Contract, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
13 Matters Beyond Reasonable Control
If DataGate 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, or events beyond the reasonable control of its suppliers, it will have no liability for that failure to perform.
14 Domain Names
14.1 The Customer confirms and warrants that it is the owner of, or that the Customer has been and is duly authorised by the owner to use, any trade mark or name requested or allocated as its Name.
14.2 The Customer acknowledges that DataGate cannot guarantee that any Name the Customer requests will be available or approved for use.
14.3 DataGate has the right to require the Customer to select a replacement Name and may suspend the Service if, in the opinion of DataGate, there are reasonable grounds for DataGate to believe Customer current choice of Name is, or is likely to be, in breach of the provisions of this Agreement and law.
14.4 If the Service includes the registration of an Internet domain name the Customer acknowledges and agrees that:
14.4.1 DataGate does not represent, warrant or guarantee that any domain name applied for by the Customer or on its behalf will be registered in its requested name or is capable of being registered by it or that the use of such domain name by it will not infringe any third party rights. Accordingly, the Customer should take no action in respect of its requested domain name(s) until it has been notified that its requested domain name has been duly registered and DataGate will not be liable for any such action taken by the Customer.
14.4.2 the registration of the domain name and its ongoing use by the Customer is subject to the relevant naming authority's terms and conditions of use and the Customer undertakes to DataGate that it will comply with such terms and conditions. The Customer hereby irrevocably waives any claims it may have against DataGate in respect of any decision of a naming authority to refuse to register a domain name and, without limitation, the Customer acknowledges and agrees that refunds for domain registration fees will be given at the discretion of the DataGate Management.
14.4.3 DataGate accepts no responsibility in respect of the use of a domain name by the Customer and any dispute between the Customer and any other individual or organisation regarding a domain name must be resolved between the parties concerned and DataGate will take no part in any such dispute. DataGate reserves the right, on becoming aware of such a dispute concerning a domain name, at its sole discretion and without giving any reason, to either suspend or cancel the relevant service associated with the domain name, and/or to make such representations to the relevant naming authority as it deems appropriate.
14.4.4 Any Internet Protocol address allocated by DataGate to the Customer shall at all times remain the sole property of DataGate and the Customer will have a non-transferable licence to use such address for the duration of this Agreement. If this Agreement is terminated for whatever reason, the Customer's licence to use the Internet Protocol address shall automatically terminate and thereafter it will not use such address.
14.4.5 Notwithstanding anything to the contrary contained herein, it is expressly understood and agreed by the Customer and DataGate that the Uniform Domain Name Dispute Resolution Policy as approved and adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) is hereby incorporated by reference in this Service Agreement and is legally binding on the Customer and DataGate with respect to all registrations in the .com, .net and .org. top level domains. Click here to go to ICANN Uniform Domain Name Dispute resolution Policy.
15 Termination of this Contract by Notice
Either party may terminate this Contract on 30 days' written notice to the other prior next billing cycle, without prejudice to any rights that may have accrued before termination. Upon termination (for whatever reason), DataGate may re-allocate any user names and aliases associated with the terminated Service.
15.1 If the service is not canceled within the cancellation period this Contract will automatically be renewed for another Contract term, the lenght of the Contract term depending on your current billing cycle or otherwise written Contracts.
15.2 Customer will automatically be invoiced at the Contract renewal date and is liable for all money owed on the account, unless cancellation notice is received by Datagate as outlined in paragraph
16 Changes to this Contract
DataGate can change the Conditions of this Contract at any time on 30 days' notice to the Customer.
Neither party may assign or transfer any of its rights or obligations under this Contract, without the written consent of the other.
18 Entire Agreement
This Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
Notices given under this Contract may be delivered on-line or by e-mail. Additionally, DataGate may publish notices to the Customer via the DataGate website; notices will be deemed effective on the date of publication, or otherwise as notified to the Customer by DataGate. A notice from DataGate which is sent by e-mail to the Customer's e-mail address will be deemed effective 3 days after the date it is sent. A notice from the Customer to DataGate will be deemed effective when received by DataGate at the e-mail address notified by DataGate to the Customer.
20 Data Protection Consent
By accepting the terms and conditions of this Contract, the Customer grants DataGate and its agents processing data on DataGate's behalf, permission, in accordance with the Data Protection Acts 1984 and 1998, to send the Customer unsolicited advertising and promotional material pertaining to other DataGate products and services and to third-party products and services selected by DataGate. The Customer may revoke permission to DataGate and its agents to send the Customer unsolicited advertising and promotional material pertaining either to other DataGate products and services or to third party products and services, or both, by notifying DataGate by e-mail of said revocation.
This Contract is governed by the law of England and Wales, and the Customer submits to the exclusive jurisdiction of the Courts of England and Wales.
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