Asckey Hosting Terms and Conditions

Please see below our Hosting terms and conditions.

These terms and conditions are in addition to Asckey’s General Terms and Conditions, which can be found here as if the same were set out in full in this document. If you have any questions then please contact us.

1. DEFINITIONS

1.1 “Access” means access to the Server on which Your Site is located by means of the file transfer protocol or by other methods so as to alter the files stored on the Server.

1.2 “Access Procedures” means instructions provided by the Company relating to the use and limitations of Access.

1.3 “Agreement” means the accepted Hosting Specification and Costs document and these terms.

1.4 “Company” means Asckey Data Services Limited.

1.5 “Charges” means the combination of the charges in Clause 5.

1.6 “Customer” means the party listed on the Schedule under the heading “The Customer.”

1.7 “Equipment” means the Company’s equipment to be let to you (but which remains the property of the owner), which is listed on the Schedule.

1.8 “Expiry Period” means one month prior to the expiry of the Agreement period.

1.9 “ISP” means an Internet Service Provider.

1.10 “Materials” means text, image, audio, video, HTML language, CGI scripts, Java or JavaScript applications or language, ActiveX controls, Pearl, ASP Pages or any other information, data or software which you have on Your Site.

1.11 “Server” means a computer server administered by the Company that may be either dedicated to Your Site or shared with the Company’s other customers.

1.12 “Services” means the services listed in the Schedule. If any Equipment is listed on the Schedule, then the hire of such Equipment is included within the Services.

1.13 “Site” means a site on the World Wide Web having an individual Internet address commencing “http://” which has Materials accessible to the general Internet by means of the hypertext transfer protocol or other relevant Internet protocol and any email addresses associated with it.

1.14 “Customer Site” means the Site the Company is hosting for you in accordance with this Agreement.

1.15 ‘Normal working hours’ are between 8.30am and 5.00pm Monday to Thursday and 8.30am and 4.00pm on Friday, excluding public holidays.

1.16 “Confidential Information” means all information confidential to the Customer whether relating to the Customer’s business, customers or its customer’s business, patients, contacts, clients, suppliers or otherwise but excluding information now or at any time hereafter becoming generally known or accessible to the general public (unless due to the default of the Company hereunder) and information obtained by the Company from a third party free of restrictions on use or disclosure.

2. CUSTOMER’S OBLIGATIONS

2.1 Access – the Company will give the Customer appropriate Access to the Customer Site or Server to enable the Customer to update the Materials. Use of Access is at the Customer’s own risk. The Customer agrees to use Access only in accordance with the Access Procedures. If the Customer uses Access other than in accordance with the Access Procedures or the Customer uses Access carelessly or negligently, the Customer may cause the Customer Site or the Server to fail. In such case, the Company reserves the right to charge the Customer for repair of any damage you cause to the Server or another customer’s Site and you agree to pay such charge.

2.2 Materials – the Customer is responsible for all Materials and any materials uploaded to the Customer Site or the Server using Access. The Customer warrants that none of the Materials on the Customer Site will contain any statement or content that is obscene, indecent, libellous, seditious, offensive, defamatory, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or privacy or in respect of which the Customer is not the true and lawful owner of the copyright or trademark as the case may be or for which the Customer has not obtained all necessary licences and/or approvals. The Customer also warrants that any postings shall not be contrary to the law of, or infringe the rights of a third party enforceable in, any part of the United Kingdom, the European Union, the United States of America or the Commonwealth.

2.3 Indemnity – the Customer shall indemnify the Company and keep the Company free from and effectively indemnified against all costs, claims, expenses and liabilities arising in connection with any action, claim, demand or allegation which arises as a result of the Company providing the Services to the Customer, or breach of Clause 2.2 above or Clause 2.4 below. The Company agrees to immediately provide the Customer with notice of all such claims and the Company hereby grants the Customer full conduct of the claim with the ability to defend, settle and compromise all actions. The Company shall provide at the Customers’ expense all reasonable assistance necessary to handle any claim, any action taken in respect of such claims must be taken in consultation with the Company.

2.4 Domain Names – If the Company acquires a domain name for the Customer, the Company is acting in the capacity of the Customer’s agent, the Contract for the registration being between the Customer and the appropriate Naming Authority.

2.4.1 The Customer, shall not use a Domain Name that infringes or may infringe the intellectual property rights of any other person. The Customer confirms and warrants that they are the owner of, or have been and are duly authorised by the owner of, any trademark or other name requested as part of a Domain Name or which is similar to a Domain Name that has been requested. The Customer acknowledges that the Company cannot guarantee that any Domain Name requested will be available or approved for use. In particular, the Company gives no warranty that the Domain Name requested will not infringe the rights of any third party and the Customer indemnify the Company in respect of any such infringements. Any Internet Protocol address allocated by the Company to the Company shall at all times remain the sole property of the Company and the Customer shall have a personal non-transferable licence to use such address for the duration of this Agreement. In the event of termination of this Agreement for whatsoever reason, the Customer’s licence to use the Internet Protocol address shall automatically terminate and thereafter the Customer shall not use such address.

2.5 If the Customer’s application and/or database contain Person Identifiable Data (PID) then it is the Customer’s responsibility to inform the Company of this fact before the application can be accepted for a hosting service. If you fail to disclose this information and the application/database is subsequently discovered to contain PID, the Customer’s hosting service will be suspended immediately pending investigation and contract adjustment at the expense of the Customer. If any data relates to NHS or NHS patients and the Customer requires live access to the application or associated database, the Customer will be required to prove their compliance with the Data Security and Protection Toolkit (DSPT). Failure to provide such information upon request may mean a refusal to provide a hosting connection.

3. COMPANY’S OBLIGATIONS

3.1 In consideration of the Charges in Clause 5, the Company shall for the term, and on the terms and conditions of this Agreement, provide you with the following Services:

3.1.1 Allocate space on a Server for the Customer Site and administering (that is “Hosting”) Customer Site from a Server so that it is capable of being accessed over the Internet.

3.1.2 Maintain Servers at its UK located datacentre for the use of the Customer.

3.1.3 Back-up the Materials on Servers on a weekly or otherwise agreed basis noted in the Schedule and restoring Customer Site from that backup in the event of a hardware or software failure.

3.1.4 Maintain what it considers to be optimum performance for all the Sites (Customer Site and those of its other customers) and Servers it hosts.

3.2 The Company shall, at its own expense, maintain Professional Indemnity, Public Liability and Product Liability insurance policies for the duration of the contract of a minimum of £1,000,000. The Company shall, upon request, produce to the Customer copies of its policies of insurance, together with the receipt for the payment of the last premium in respect of each policy, or produce documentary evidence that the policy is in force.

4. BOTH PARTIES AGREE

4.1 The Company may temporarily take the Servers off-line or suspend the Services from time to time for essential maintenance work, repair or improvement to its facilities. The Company will notify the Customer at least 48 hours in advance of this necessary work and will use its reasonable endeavours to cause minimum disruption to the Customer Site or Server. Scheduled work will normally take place out of normal working hours unless previously agreed with the Customer. However, there may be temporary access restrictions to the Customer Site or Server from the general internet while this maintenance work is taking place.

4.2 It is technically impracticable to provide the Services free of faults and the Company does not undertake to do so. Upon receipt of a fault report (by telephone, written notice or email) relating to a fault in the Services, the Company will take reasonable steps to correct the fault.

4.3 The Company will use its best endeavours to provide general service cover 24 hours a day 7 days a week. Notwithstanding this, due to the nature of the internet and the involvement of many third parties in it, such as ISPs and other providers of telecommunications, the Company cannot warrant that the Services will be uninterrupted or error-free.

4.4 The Company may need to vary the technical specification of the Services for operational reasons provided that the Customer has given consent.

4.5 The Company will not be responsible for any inability of the Customer to access the Services provided by the Company.

4.6 Breach or dispute of any part of this Agreement should be notified to the other party in writing and respond within 14 days giving the opportunity to remedy or provide a solution that both parties agree to before taking other actions i.e. Termination.

4.7 Where the provision is for the NHS HSCN networks both parties must maintain the relevant compliance and environment in accordance with the Data Security and Protection Toolkit (DSPT) requirements issued by NHS Digital for the duration of the Contract.

5. CHARGES AND PAYMENTS

5.1 The Company shall perform any calculations necessary to compute the correct annual charges. Any adjustment to bring any previously invoiced estimated charges in line with the correct charges will be invoiced at the earliest opportunity.

5.2 The Customer shall pay to the Company the Charges for the Services. The Company shall be entitled to suspend performance of any of the Services in the event that the Customer fails to pay in accordance with this Clause 5.

5.3 The Company will invoice the annual Charges in advance of the month in which they are to be performed for the first time and the Customer will pay in advance of the commencement of the supply of services.

5.4 In the event that the Company agrees to accept monthly payments for the supply of services the Company will invoice the charges in advance of the month in which they are to be performed and the Customer will pay by standing order to reach our account no later than 30 days of the invoice date.

5.5 The Company reserves the right to invoice for commissioned work additional to the specified hosting contract and undertaken by the Company but not completed as a result of any delays or changes to the requirement or specification initiated by the Customer. All invoices relating to said commissioned work must be settled by the Customer within 30 days of the date of the invoice.

5.6 The Customer must notify any disputed item to the Company within 14 days.

6. TERMINATION

6.1 The Customer may terminate this Agreement by giving notice a minimum of 30 days prior to the expiry date of this Agreement. If a termination notice in writing to the Company’s Commercial Director is not received then the Agreement will be automatically renewed for a further period of the same duration. During the Expiry Period the contract can be renegotiated on new terms.

6.2 Either party may terminate forthwith if the other party adopts a resolution for its winding up (unless the same be part of a solvent reconstruction or amalgamation) or if any petition is presented for the appointment of an administrator or a receiver or to wind up the other party or a receiver or an administrative receiver is appointed in respect of any part of the other party’s undertaking or assets or if the other party suffers any other action in consequence of debt or if the other party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 (or any re-enactment or further enactment thereof) or if the other party makes or attempts to make any arrangement or composition with or for the benefit of its creditors or ceases to carry on business or if any event analogous to any of the foregoing under any foreign jurisdiction occurs.

6.3 Either party may terminate if the other party is in breach of this Agreement and in the case of a breach capable of remedy fails to remedy the same or in the case of a breach not capable of remedy to pay reasonable compensation in either case within 14 days of a written notice requiring the defaulting party to remedy such breach or (as the case may be) pay such reasonable compensation (which shall be specified in such notice).

6.4 The Company may terminate immediately if the Customer misuses the Services in any way or misuses or allows misuse of Access (which includes but is not limited to the implantation of computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data on the Company’s Servers) or other practices of misuse (which shall include but not be limited to hacking) provided that the Company will always contact the Customer and seek to resolve and rectify any issues before exercising such right of termination.

6.5 The Company may terminate the Agreement at any time by giving notice of 3 months. The Customer accepts that they will have no claim for any compensation as a result of the Company’s decision to terminate the Agreement.

6.6 On termination or expiry of the Contract the Company shall provide reasonable transition assistance free of charge

7. LIABILITY

7.1 The Company warrants that it will perform its obligations under this Agreement with the reasonable care and skill of a competent Internet Hosting Service and that it will endeavour to meet is SLA targets.

7.2 Subject to 7.1 other than this express warranty, to the maximum extent the Company is permitted by law, the Company will provide the Customer with the Services on the basis that it excludes all representations (excluding fraudulent representations), warranties, conditions and other terms (including without limitation the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which but for this Agreement would have effect in relation to the Services.

7.3 The Customer acknowledges that the Company has no control over the Materials or over the information and/or software transmitted via the Services and that the Company does not examine the use to which customers put the Services or the nature of the Materials, information and/or software they are sending or receiving. The Company hereby excludes all liability of any kind for the transmission or the reception of any Materials, information and/or software of whatever nature and all liability for the accuracy or inaccuracy of any such Materials, information and/or software.

7.4 In no event shall the Company be liable to the Customer or any third party for any indirect, special, incidental or consequential loss or damage, or loss or damage of data, loss of profit, loss of anticipated savings, loss of contract or loss or other economic advantage, arising out of or in connection with or in relation to this Agreement or any collateral contract, or the Services or Equipment even if the Customer has previously been advised of the possibility of the same.

7.5 If for any reason The Company is liable to the Customer, then subject to clauses 7.2, 7.3, 7.4 and 7.6, the Company’s liability to the Customer or any third party arising out of or in connection with or in relation to this Agreement or any collateral contract or out of the supply, purported supply or non-supply of the Services or Equipment, whether based upon contract, tort (including negligence) or otherwise, shall not exceed the amounts paid to the Company for the Services over the 12 months prior to the event that gave rise to the liability concerned.

7.6 However, nothing in this Agreement shall have the effect of limiting or excluding the Company’s liability for death or personal injury resulting from its own negligence.

8. PROPERTY RIGHTS

Unless otherwise agreed in writing, the Customer shall own and be responsible for all the intellectual property in the Materials on the Customer’s Site or Server and the Company shall not be responsible for the Materials or the intellectual property in them. However, the Equipment will remain the property of the Company at all times.

9. NON-ASSIGNMENT

The benefits and obligations conferred by this Agreement upon the Customer shall not be and shall not be capable of being assigned, delegated, transferred, sub-contracted or otherwise disposed of.

 

Copyright © 2020 Asckey Data Services Limited. All rights reserved.

(Version 11 – 24/07/2020)