Terms & Conditions

The following comprise the full terms and conditions of Bytemark’s services.

General Terms of Business

The contract terms available here relate to all services, excluding dedicated servers and colocation services.

For terms and conditions that relate to dedicated servers and colocation services please see our Dedicated Terms & Conditions.

The terms of the online customer order form and our Acceptable Use Policy are incorporated into these terms and conditions.

Your attention is in particular drawn to the following conditions which are of special importance:

  • 2.7 Estimated dates
  • 3 Contract Period and Renewal
  • 4.2 Your responsibility to back-up data
  • 6 Our liability to you and the Right to Cancel
  • 7 Indemnity
  • 8.9 and 8.10 Chargeback Fees
  • 9 and 10 Termination
  • Domain Registration Terms
  • General Data Protection Contractual Addendum 
  1. DEFINITIONS

1.1 References to "we", "us" and "our" are references to Bytemark Limited registered in England & Wales under company number 4484629.

1.2 The terms "you" and "your" refer to any individual, company or business to whom we provide our Services as specified in the online customer order form including a person reasonably appearing to us to act with your authority.

1.3 In these conditions the following words and expressions shall have the following meanings:

  • Commencement Date means the date of our acceptance of your order as notified to you under our account activation notice;
  • Contract means any contract between us and you for the supply of Services incorporating these conditions;
  • Domain Names means Internet addresses which have been registered with the central registration authorities on the Internet on your behalf;
  • Gigabyte means 1,073,741,824 bytes or characters of information;
  • Hosting means the making available of your Domain Name on the Internet;
  • Internet means the network of interconnected e-communications and computer systems connected by internet protocol numbers;
  • Megabyte means 1,048,576 bytes or characters of information;
  • Renewal Date means the day following the end of the first billing period specified in the online customer order form and the day following the end of the relevant billing period from time to time;
  • Services the internet services to be provided by us to you as specified in the online customer order form together with any other services which we provide, or agree to provide, to you;
  • Upload means to transfer computer files to our computer system for publication on the Internet or WWW;
  • Web Site means the area on our computer system allocated to you for the purpose of this Contract;
  • WWW means World Wide Web service available on the Internet;

1.4 A reference to a particular law is a reference to it as it is in force, for the time being, taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.5 Condition headings do not affect the interpretation of these conditions.

1.6 Any words in the singular include the plural and vice versa.

  1. APPLICATION OF CONDITIONS

2.1 Subject to any variation under conditions 2.2 or 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any order, confirmation of order or other documents).

2.2 Any variation to these conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by our authorized representative on our behalf. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this Contract. Nothing in this condition shall exclude or limit our liability for fraudulent misrepresentation.

2.3 We reserve the right to alter or amend our terms and conditions by giving you fourteen days' prior notice by email and by displaying the notice on our web site in the Terms and Conditions section. If you do not want to accept any new conditions you must inform us immediately by emailing us at sales@bytemark.co.uk otherwise you will be deemed to have accepted such new conditions.

2.4 Your order for Services from us shall be deemed to be an offer by you to buy the Services subject to these conditions.

2.5 No order placed by you shall be deemed to be accepted by us until an account activation notice is issued by us.

2.6 You shall ensure that the terms of your order are complete and accurate.

2.7 Any date proposed either by you or us for the provision of the Services is to be treated as an estimate only and we accept no liability for any failure to meet it.

2.8 These terms and conditions may change or be updated from time to time. It remains your responsibility to access and check these terms and conditions whenever you access this web site. The latest version of these terms and conditions will govern any future usage by you of this web site and the Services.

  1. CONTRACT PERIOD

3.1 Subject to termination under conditions 9 and 10 this Contract shall begin on the Commencement Date and shall automatically renew on the relevant Renewal Date for successive periods equal to the billing period set out in the online customer order form or for such period as subsequently agreed by us in writing.

  1. YOUR RESPONSIBILITIES

4.1 You agree that you will keep secure the login name and password specified on your online customer order form and not to pass that information to any unauthorised person. In the event of your login name and password being used by any unauthorised person, we accept no responsibility and you will be liable for additional charges arising therefrom.

4.2 It is your sole responsibility to make regular back-ups of your data and files used in connection with the Services. Even though we may make our own periodic back-ups for server maintenance purposes we are not responsible whatsoever for your data or files.

4.3 You agree that you will not: 4.3.1 perform any action that will reduce the performance of our servers to the detriment of other users; 4.3.2 upload any virus to the Web Site which could infect our server or other equipment; 4.3.3 allow a virus to enter the Internet by allowing Internet users to download files containing viruses or (knowingly or otherwise) from their web space which is on our server; 4.3.4 upload any material which infringes the intellectual property rights of any other party. We accept no responsibility for your actions in either uploading material to the Internet or in your transferral of any material to other Web Sites (or vice versa); 4.3.5 upload any material which may be considered to be contrary to public decency and morality including (but not limited to) pornographic, barbaric and overtly tasteless material. We reserve the right to randomly inspect the Web Site and in the event that any unauthorised material has been uploaded to that Web Site, we reserve the right to inform the relevant authorities and to terminate this Contract forthwith; 4.3.6 cause or permit or in any way assist in any unauthorised publication or any dissemination of defamatory material or any material which could be considered to be in breach of the civil or criminal laws of England and Wales; 4.3.7 commit any act whereby access is gained by you to any information or resources of any person, body corporate individual, partnership, government agency, national institution, charity or recognised organisation without first having obtained authority from those persons or institutions; 4.3.8 use our servers or network to send unsolicited or spam e-mail to other Internet users regardless of whether we are referred to or not either directly or indirectly in such postings. Failure to meet this obligation would result in the termination of this Contract without refund; 4.3.9 not to use our servers or network either directly or indirectly in a way that would have a detrimental effect on network performance; 4.3.10 do any act or omission the result of which would have the effect of bringing us into disrepute.

  1. HIGH RESOURCE USAGE POLICY

5.1 Where we do not operate a bandwidth capping policy, we maintain high ratios of bandwidth per Web Site. In the rare circumstances that a user utilizes our server resources to such an extent that it may jeopardize server performance and resources for other users then we reserve the right to implement the following High Resource User Policy at our sole discretion: Where a service is delivered with bandwidth restrictions and/or limitations we reserve the right at our sole discretion to charge you for excess bandwidth used however caused at the rate of 45 pence per gigabyte or part thereof. 5.1.1 Resources are defined as bandwidth, processor utilization or disk space; 5.1.2 We reserve the right to suspend or terminate any Web Site immediately in order to prevent the misuse of our servers and to maintain maximum availability for other users. You may be offered alternate hosting options including us hosting the Web Site for an additional fee.

  1. LIMITATION OF LIABILITY

6.1 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of (a) any breach of these conditions; (b) any use made by you of any of the Services; (c) the content of any information placed by you onto our server; (d) the failure of or any problem experienced by you in the operation of your Web Site; (e) with regard to any application, receipt of, or failure to receive Domain Name registration, the registration, renewal, non-registration, non-renewal, suspension, transfer, failure to transfer, operation, delivery, misdelivery or any and all combinations or for any errors or omissions or any other actions by the registry administrator arising out of or relating to any application, receipt of, or failure to receive a domain registration; and (f) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

6.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract save that where you are a consumer rather than a business no provision of this clause 6 or these conditions shall affect your rights as a consumer. As the Services are normally supplied immediately unless agreed otherwise with us there is not normally an opportunity to cancel under regulation 13 of the Consumer Protection (Distance Selling) regulations 2000. (http://www.legislation.gov.uk/uksi/2000/2334/contents/made)

6.3 Nothing in these conditions excludes or limits our liability: (a) for death or personal injury caused by our negligence; or (b) for any matter which it would be illegal for us to exclude or attempt to exclude its liability; or (c) for fraud or fraudulent misrepresentation.

6.4 Subject to conditions 6.2 and 6.3: (a) our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the initial total amount paid for the Services or Domain Name registration or £250 whichever is the greater; and (b) we shall not be liable to you for any: (i) pure economic loss (ii) loss of profit (iii) loss of business (iv) loss of anticipated savings (v) depletion of goodwill or otherwise in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

6.5 Each provision of this condition 6 is to be construed as a separate limitation applying and surviving even if for any reason one or other of the said provisions is held inapplicable or unreasonable.

  1. INDEMNITY

7.1 Without prejudice to any other rights or remedies which we may have against you, you agree to indemnify and keep us indemnified against 7.1.2 all costs, claims, demands, liabilities, expenses, damages or losses or expenses arising out of or in connection with any breach by you of this Contract; and 7.1.3 all costs, claims, demands, liabilities, expenses, damages or losses or expenses arising out of any action brought or threatened against us by a third party which is caused by or arises from any action or omission of ours carried out pursuant to your instructions.

  1. CHARGES AND PAYMENT

8.1 Charges are payable either monthly, quarterly or annually depending on the Service purchased as set out in the online customer order form and time for payment shall be of the essence. It is a condition of the provision of our Services that a regular credit or debit card agreement is in force for the duration of this Contract and you agree to either update your details yourself via the control panel or to inform us of any change to your credit card or contact details.

8.2 You may not make payment to us by any other means other than those detailed in condition 8.1 without our prior authority provided to you in writing or electronic mail.

8.3 In the event that we agree to accept payment from you by any means other than credit or debit card you acknowledge that payment must reach our bank account no less than five working days prior to the invoice due date and that arranging this is your sole responsibility.

8.4 You shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless you have a valid court order requiring an amount equal to such deduction to be paid by us to you.

8.5 All payments payable to us under the Contract shall become due immediately on its termination despite any other provision.

8.6 Without prejudice to our other rights we reserve the right to charge daily interest on all outstanding amounts from the due date until payment is received in full at the rate equal to 6% per annum above the Bank of England base lending rate as current from time to time whether before or after judgement. Interest shall continue to accrue notwithstanding termination of this Contract for any cause whatsoever. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

8.7 Value added Tax where applicable will be added at the appropriate rate to the total of all charges shown on your invoice.

8.8 Where payment is by credit card or debit card you expressly authorise us to charge recurring billing by such method until we receive from you a completed account cancellation notice (see condition 10.2) or the Services end.

8.9 If you dispute any payment made to us you shall contact us immediately to discuss repayment. In the event that you submit an unjustified chargeback (being a credit card or debit card chargeback or cancellation of a cheque or submission of a cheque that is returned for any reason) then the following shall be due and payable by you within 7 days for each instance of a chargeback: 8.9.1 the charges due and payable by you for the Services used in the period covered by the chargeback; and 8.9.2 such chargeback costs as are levied upon us by your bank or credit card company; and 8.9.3 a chargeback administration fee of £50; and 8.9.4 our reasonable costs and losses incurred in recovering the above-mentioned fees including debt recovery costs, legal fees and debt collection costs.

8.10 In the event of an unjustified chargeback our right to terminate this Contract as set out in condition 9 shall apply, save that the period in clause 9.2 shall be shortened to 14 days and the period in condition 9.3 shall be shortened to 10 days.

  1. TERMINATION OF THIS CONTRACT BY US

9.1 If you do not pay any charge when due or materially breach this Contract in any other way, we can terminate this Contract immediately without the requirement of prior notification.

9.2 If any sum payable under this Contract is still outstanding one month after the service of written notice to you requiring you to pay all outstanding sums in full, we may in our absolute discretion suspend the Services.

9.3 If you have still not paid within 14 days of the written notice referred to in condition 9.2 we may in our absolute discretion disconnect the Services, delete your data and terminate the Contract and, if appropriate charge you a daily rate for storage of any of your equipment. Where any charges or payments are still outstanding from you, you must pay us in full (including any outstanding interest) before we release your equipment to you.

9.4 Should we reasonably deem you a threat to the integrity of the our network whether as a result of your actions or threats of such actions or by hostility of your actions or due to any other reason which in our considered opinion would be against our business interest, then we can terminate this Contract immediately without the requirement for prior notification.

9.5 If you go into liquidation or (in the case of an individual or firm become bankrupt) make a voluntary arrangement or have a receiver or administrator appointed we can terminate this Contract immediately without the requirement of prior notification.

9.6 Termination of this Contract by us will result in the retaining by us of all monies received from you who will not be entitled to a refund of monies paid.

9.7 Upon termination of this Contract you shall nevertheless remain liable for all charges due or which would have been payable under this Contract.

9.8 On termination of this Contract we will remove all materials held on our systems and remove all your system privileges.

9.9 Subject to our sole discretion after termination, if we agree that you may once again be reconnected to the service, any reconnection will be subject to an administration charge of £50 together with any outstanding charges payable prior to the reconnection.

  1. TERMINATION OF THE CONTRACT BY YOU

10.1 You must notify us of termination by delivering to our contact address a completed account cancellation notice which can be obtained from us on request or by completing an online cancellation within our online control panels.

  1. REFUNDS

11.1 On receipt of a valid cancellation notice, we may, at our sole discretion, refund unused time paid.

11.2 A cancellation notice must be received prior to the relevant Renewal Date in order for a cancellation to be effective and processed prior to a renewal payment being taken.11.3 Whereat our sole discretion we choose to accept a late cancellation notice an administration charge may be applied to any refund issued with the sole exception of refunds issued in line with our 30 day money-back guarantee, in which case no fees are payable.

  1. FORCE MAJEURE

12.1 We are not liable for any breach of this Contract if the breach was caused by an act of God, insurrection or civil disorder, war or military operations, terrorism, national or local emergency, protests, riot, civil commotion, acts of omissions of government, highway authority or other competent authority, our compliance with any statutory obligation, industrial disputes of any kind (whether or not involving our employees), fire, lightning, explosion, flood, subsidence, weather of exceptional severity, acts of omission of persons whom we are not responsible (including in particular other telecommunication service providers), or any other cause whether similar or dissimilar outside our reasonable control provided that, if the event in question continues for a continuous period in excess of 90 days, you shall be entitled to give notice in writing to us to terminate the Contract.

  1. PROPER LAW

This Contract is to be treated as made in England and Wales according to English and Welsh Law and subject to the jurisdiction of the English and Welsh courts.

  1. LIMITATION ON ASSIGNMENT

14.1 You must not assign the benefit of this Contract in whole or in part.

14.2 We reserve the right to assign the benefit of this Contract by giving prior written notice of any assignment to you.

14.3 Except with our prior written consent the Service shall not be used by or on behalf of any person other than you or a third party specified on the application form and no condition shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act.

VAT and Payment Currency:

UK and EU clients will be billed in GBP (Pounds Sterling) and prices include VAT. Clients in the rest of the world will be billed in USD with VAT not applicable to our USD pricing.

If you are a VAT registered business in another EU member state, then you must supply your VAT registration number for VAT to be zero-rated. If your VAT registration number is not supplied or cannot be confirmed as valid then VAT at the UK rate will apply.

GENERAL DATA PROTECTION CONTRACTUAL ADDENDUM

This Addendum dated 3rd May 2018 (the “Addendum”) amends, with effect from and including 25 May 2018 (the “Effective Date”), the General Terms and Conditions between Bytemark Limited (registered in England and Wales under company number 4484629) trading as Bytemark (“Bytemark”) and you, (“Controller”) and any other agreements entered into between the parties (the “Agreement”). To the extent this Addendum is not consistent with any terms of the Agreement the terms of this Addendum shall prevail. Other than as indicated herein, capitalized terms and definitions contained herein shall have the same meaning as specified in the Agreement.

BACKGROUND (A) As of 25 May 2018 the General Data Protection Regulation (EU) 2016/679 (“GDPR”) will apply in the EEA replacing Directive 95/46/EC and it's local implementing legislation in the UK, the Data Protection Act 1998 (“DPA 1998”). Accordingly, the parties can no longer rely on compliance with the DPA 1998 in the UK as being sufficient for controlling, processing or protecting data. (B) In order to comply with its legal and regulatory obligations, the parties wish to update the terms of the Agreement to comply with the GDPR on the terms as set out in this Addendum. Therefore, the parties, intending to be legally bound, and in consideration of the needs for both parties to comply with their respective obligations under the GDPR, agree that any data controller, processing and protection provisions (and/or any other provisions in the Agreement relating to the DPA 1998) shall, as at the Effective Date, be deleted and the following clause shall be incorporated into the Agreement:

  1. DATA PROCESSING

1.1 For the purposes of this Agreement the following defined terms shall have the following meanings: “Data Protection Law” shall mean (a) Data Protection Act 1998; or (b) from 25th May 2018, the General Data Protection Regulation ((EU) 2016/679 (“GDPR”), read in conjunction with and subject to any applicable UK national legislation that provides for specifications or restrictions of the GDPR’s rules; or (c) from the date of implementation, any applicable legislation that supersedes or replaces the GDPR in the UK or which applies the operation of the GDPR as if the GDPR were part of UK national law, which may include the Data Protection Act 2017; “personal data”, “controller”, “processor”, “data subject”, and “processing” (and other parts of the verb ‘to process’) shall have the meaning set out in the Data Protection Law.

1.2 Each party shall comply at all times with Data Protection Law and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Data Protection Law.

1.3 In the context of this Agreement, Bytemark will act as “processor” to the Controller who may act as either “processor” or “controller” with respect to the personal data. Notwithstanding the foregoing, the parties acknowledge that: 1.3.1 where Bytemark only provides colocation services under the Agreement Bytemark will not be a Processor; and 1.3.2 where personal data is not accessible to Bytemark it shall not be a Processor, and therefore, in either case, the obligations of clause 1.7 shall not apply to Bytemark.

1.4 The Controller represents and warrants to Bytemark that with respect to any personal data processed pursuant to this Agreement: 1.4.1 all personal data is necessary for the purpose for which it is processed, accurate and up-to-date (and Controller shall at all times comply with Bytemark’s standard acceptable use policy); 1.4.2 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Controller has implemented appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the personal data; 1.4.3 the Controller has obtained all the necessary consents from data subjects to process the personal data and to outsource the processing of any personal data to Bytemark and the Controller covenants that it shall notify Bytemark in writing if there are any material changes to these consents or to the personal data that Bytemark processes under this Agreement; and 1.4.4 it is not aware of any circumstances likely to, and will not instruct Bytemark to process the personal data in a manner that is likely to, give rise to a breach of the Data Protection Law (or any other applicable data protection or privacy laws).

1.5 The Controller acknowledges and agrees that pursuant to its obligation under Article 28(1) of the GDPR to only appoint processors providing sufficient guarantees to implement appropriate technical and organisational measures to meet the requirements of the GDPR, it has assessed Bytemark’s applicable technical and organisational measures and considers them to be sufficient, taking into account the nature, scope, context and purpose of the processing undertaken pursuant to the Agreement.

1.6 Controller acknowledges and agrees that it is responsible for ensuring the compliance of any of its businesses, affiliates or subsidiaries located in a territory outside the EEA with Data Protection Law in relation to transfers of personal data from Bytemark to Controller.

1.7 Where Bytemark processes personal data on behalf of Controller, with respect to such processing, Bytemark shall: 1.7.1 process the personal data only in accordance with the Agreement (as amended by this Addendum) and the documented instructions of the Controller given from time to time. The Controller acknowledges that Bytemark is under no duty to investigate the completeness, accuracy or sufficiency of such instructions and any additional instructions outside the scope of this Agreement (as amended by this Addendum) require prior written approval between Bytemark and Controller (including agreement on any fees payable by Controller to Bytemark for carrying out such instructions); 1.7.2 only permit the personal data to be processed by persons who are bound by enforceable obligations of confidentiality and take steps to ensure such persons only act on Bytemark’s instructions in relation to the processing; 1.7.3 protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the personal data and having regard to the nature of the personal data which is to be protected (and the Controller shall notify Bytemark immediately if the nature of such personal data changes in a material way); 1.7.4 remain entitled to appoint third party sub-processors. Where Bytemark appoints a third party sub-processor, it shall, with respect to data protection obligations: (a) ensure that the third party is subject to, and contractually bound by, at least the same obligations as Bytemark; and (b) remain fully liable to Controller for all acts and omissions of the third party, and all sub-processors engaged by Bytemark as at the effective date of this Addendum shall be deemed authorized; 1.7.5 in addition to the sub-processors engaged pursuant to paragraph 1.7.4 (above), be entitled to engage additional or replacement sub-processors, subject to (a) the provisions of paragraph 1.7.4(a) and 1.7.4(b) being applied; and (b) Bytemark notifying the Controller of the additional or replacement sub-processor, and where Controller objects to the additional or replacement sub-processor, the parties shall discuss the objection in good faith; 1.7.6 notify Controller without undue delay after becoming aware that it has suffered a personal data breach; 1.7.7 at Controller’s cost and not more than once in any 12 month period permit Controller (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit (during business hours and on reasonable notice) Bytemark’s data processing activities to enable Controller to verify and/or procure that Bytemark is complying with its obligations under clause 1.2. Controller shall ensure that its adheres to any applicable Bytemark site and security policies in the performance of such audit or inspection; 1.7.8 on Controller’s reasonable request and at Controller’s cost, assist Controller to respond to requests from data subjects who are exercising their rights under the Data Protection Law (insofar as it is reasonable for Bytemark to do so); 1.7.9 save where such countries have been deemed by the European Commission to be providing an adequate level of protection pursuant to the relevant provisions of Data Protection Law, not process personal data outside the EEA without the prior written consent of Controller and, where Controller consents to such transfer, to comply with any reasonable instructions notified to Bytemark by it. Notwithstanding the foregoing, Bytemark is expressly permitted to and instructed by Controller that it may transfer personal data to any Bytemark subsidiary and any Bytemark subcontractor, subject to first ensuring that adequate protections are in place to protect the personal data consistent with the requirements of Data Protection Law; 1.7.10 on Controller’s reasonable request and at Controller’s cost, assist (insofar as it is reasonable to do so, taking into account the nature of the information available to the Bytemark and any restrictions on disclosing the information, such as confidentiality) Controller to comply with the Controller’s obligations pursuant to Articles 32-36 of the GDPR (or such corresponding provisions of the Data Protection Law), comprising (if applicable): (a) notifying a supervisory authority that Controller has suffered a personal data breach; (b) communicating a personal data breach to an affected individual; (c) carrying out an impact assessment; and (d) where required under an impact assessment, engaging in prior consultation with a supervisory authority; and 1.7.11 unless applicable law requires otherwise, upon termination of the Agreement delete or return all personal data provided by Controller to Bytemark (except to the extent this is not reasonably technically possible or prohibited by law).

  1. INDEMNITY

2.1 Controller shall indemnify and hold harmless on demand Bytemark for any loss, damage, liabilities, penalties, expenses or fines incurred (whether foreseeable or unforeseeable or direct or indirect) (“Losses”) as a result of 2.1.1 the Controller breaching its obligations under clause 1 (Data Processing); 2.1.2 any unsuccessful claim by a data subject when such claim holds both Controller and Bytemark as jointly and severally liable under the Data Protection Laws.

2.2 Where under Data Protection Law (including without limitation Article 82 of the GDPR) Bytemark and Controller incur joint and several liability (as Controller and Processor with any other person) and, as such, Bytemark incurs Losses (other than for damage caused by processing where it has not complied with obligations under Data Protection Law specifically directed to Processors or where it has acted outside or contrary to Controller’s lawful instructions under the Agreement), Controller shall indemnify Bytemark on demand against all such Losses, save for such liability as corresponds directly to Bytemark’s part of the responsibility for the damage caused by Bytemark’s breach of the obligations of Data Protection Law or under this Agreement.

  1. LIMITATION OF LIABILITY

3.1 Neither party excludes or limits liability to the other party for any matter for which it would be unlawful for the parties to exclude liability.

3.2 Subject to Clause 3.1, with respect to any claim relating to a breach of Data Protection Law or a breach of this Addendum, Bytemark shall not in any circumstances be liable to the Controller whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for: 3.2.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; and 3.2.2 any loss or corruption (whether direct or indirect) of personal data or information;

3.3 Subject to Clause 3.1, Bytemark’s total aggregate liability to the Controller in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with a breach of Data Protection Laws or a breach of this Addendum or any collateral contract shall in all circumstances be limited to the greater of: 3.3.1 the Charges paid or payable by Controller to Bytemark under the relevant Agreement in the Initial Term; or 3.3.2 the total Charges paid or payable by the Controller to Bytemark under the relevant Agreement in the contract year concerned.

  1. GOVERNING LAW AND JURISDICTION

This Addendum and any dispute or claim arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England. The parties agree that the courts of England will have exclusive jurisdiction to settle any dispute (whether contractual or non-contractual) arising from or in connection with the Addendum.

Domain Registrations

When registering a domain name customer are entering into an agreement with not only Bytemark but also the domain registry.

Bytemark has wholesale agreements with a number of domain registries. Please refer to the Domain Registration terms page.

Special Offer Terms & Conditions

These are the additional terms that apply to special offers as they occur from time to time.

Service Level Agreement

  1. GENERAL

1.1 This document is a service level agreement (SLA) setting out the levels of services to be provided by Bytemark to the Customer under this agreement and compensation for failure to meet those service levels.

1.2 In this SLA a reference to a paragraph, unless stated otherwise is a reference to a paragraph of this SLA.

1.3 In this SLA words, abbreviations and expressions have the meanings given in the Bytemark General Terms and Conditions except as set out below:

(a) Availability All the time in any calendar month for which the network and any service equipment is not subject to any service affecting faults and is therefore available.

(b) Business Day Shall mean every day excluding Saturdays and Sunday and national holidays in England

(c) CDR Means the committed data rate for each port set out in the Service Order Form and provided as part of a service.

(d) Fault Shall mean a material defect, fault or impairment in a service, which causes an interruption in the provision of the service

(e) Non-Service Affecting Means not materially affecting the performance or quality of the service

(f) Service Affecting Means causing a full or partial loss of the ability to transmit or convey Data

(g) Third Party System Means a telecommunication system that is neither owned nor operated on behalf of Bytemark

1.4 This SLA only applies to the service to the extent that it is provided by means of systems and equipment that are either owned or operated by or on behalf of Bytemark. All references in this SLA to network and service equipment shall be construed as references to such systems and equipment.

1.5 Bytemark shall not be liable to pay compensation under this SLA where its failure to meet any of its obligations under this SLA is a caused by a force majeure event, by a failure in the customer equipment, or by any act or omission of the customer, or a third party acting on its behalf.

1.6 Credits or other compensation under this SLA shall only be payable where.

(a) The Customer has submitted to Bytemark a claim in writing identifying the circumstances in which the customer claims that the credit or compensation arose, within five working days of the date the aforementioned circumstances arose, and

(b) Bytemark has agreed in writing, acting reasonably and without undue delay, to that claim.

(c) The Customer is within credit terms at the time of the claim.

1.7 All credits so payable shall be applied to the customer’s account to be reconciled at an agreed time following Bytemark’s agreement to the claim. All claims for credits or compensation must be submitted promptly and in any event within 10 business days, after the circumstances giving rise to the claim.

(a) The maximum monthly credit available under this SLA is limited to an amount not greater than one month’s fees; furthermore, residual credits will not be carried over to subsequent 12-month periods.

1.8 The service credit shall be the customers sole and exclusive remedy for any Bytemark service outage or any failure to meet the service objectives.

(a) Bytemark reserves the right to amend the SLA from time to time. Bytemark shall give the customer not less than 1 months’ notice of any changes in the SLA. Customers will be notified by email and details of the SLA will be updated on the web site.

  1. PROVISIONING OF SERVICE

2.1 Bytemark shall provide the service by the service commencement date set out in the service order form. If Bytemark is unable to commence provisioning of the service by the service commencement date, it shall credit the customer with 10% of the activation charge set out in the service order form.

2.2 For every further business day that Bytemark is unable to commence provisioning of the service, it shall credit the customer with an additional 5% of the connection charge, up to a maximum of 25%.

  1. NETWORK AVAILABILITY

3.1 Bytemark guarantees that the network shall have 100% Availability. If the availability falls below 100% in any month, Bytemark will credit the customer with one day’s free service for each accumulated hour when the network is not available, subject to the maximum of the standard monthly service charge for that service.

3.2 Bytemark shall not be obliged to pay compensation in accordance with this paragraph 3 where availability falls below 100% because of routine or emergency maintenance on the network or the service equipment pursuant to paragraph 7.

  1. INFRASTRUCTURE GUARANTEE

4.1 Bytemark guarantees that the critical infrastructure systems, including power and HVAC, will be available 100% of the time in a given month, excluding scheduled maintenance. Bytemark will refund the customer 10% of the monthly fee for each hour of downtime (up to 100% of customer's monthly fee).

4.2 Critical infrastructure includes functioning of all power and HVAC infrastructure including UPSs, PDUs and cabling, which form part of the co-location facility.

4.3 Infrastructure downtime exists when a particular server is shut down due to power or heat problems and Bytemark records such failure in the Bytemark monitoring system.

  1. HARDWARE GUARANTEE

5.1 The hardware guarantee covers hardware provided by Bytemark on a rental basis.

5.2 Bytemark guarantees the functioning of all rented hardware components and will replace any failed component at no cost to the customer. Hardware replacement will begin once Bytemark identifies the cause of the problem. Hardware replacement is guaranteed to be completed within 4 hours of problem identification. In the event that it takes us more than 4 hours to replace the faulty hardware, Bytemark will refund the customer 5% of the monthly fee per additional hour of downtime (up to 25% of customer's monthly fee). Hardware is defined as the Processor(s), RAM, hard disk(s), motherboard, NIC card and other related hardware included under the server lease. This guarantee excludes the time required to rebuild a RAID array.

5.3 In the event of a hard disk or fatal operating system failure Bytemark will perform an initial install of standard operating system distributions and supported preinstalled software only in order to restore the server to the state that we supplied the server in originally. Any additional work required by the customer by our engineers may be chargeable.

5.4 In the event that replacement of a failed hardware component is unavailable Bytemark reserves the right to opt to substitute the entire customer server with a similar replacement either as a temporary replacement while replacement hardware is being sourced, or if deemed appropriate by Bytemark as a permanent replacement.

5.5 The security of the Dedicated Server and customer data remain the sole responsibility of the customer, who should perform such backups and maintenance to software running on the Server to maintain its integrity. Bytemark will perform upgrades of Dedicated server software if we deem necessary to provide continued service, we accept no responsibility for damage to data or loss of service however caused (for instance, as a result of hardware failure or malicious "hacking").

  1. SOFTWARE

6.1 Except where a maintenance contract is in place for software maintenance and/or management clearly detailing the software managed or maintained Bytemark are in no way responsible for either the operating or any software installed on a dedicated server once the server has been handed over to the customer at commission time.

6.2 In the event of a fatal operating system failure Bytemark will only carry out remedial work once instruction to do so has been issued by the Customer and any such work may be chargeable.

6.3 Any work performed in connection with clause 6.2 above will be on a best endeavour basis only and then only within the time and price limits agreed with the Customer. If it is deemed not possible to repair the operating system Bytemark will perform an initial install of standard operating system distributions and supported preinstalled software only in order to restore the server to the state that we supplied the server in originally. Any additional work required by the customer by our engineers may be chargeable.

  1. FAULT HANDLING / RESPONSE TIME AGREEMENTS

7.1 Bytemark offers response time agreements, during the business day (9:00 am to 5:00 pm, Monday to Friday) as follows: (a) You can call us on 01904 890890 and expect a prompt answer, you will be able to speak to a member of the Technical Support team who will be familiar with your account and services. You can expect to be able to speak to a network engineer normally straight away and always within 4 hours. You can expect an initial response within four hours of a logged service interruption call.

7.2 Bytemark offers response time agreements, outside of the business day 24x7 as follows:

7.3 Outside of our normal business hours you can email our urgent support address at urgent@bytemark.co.uk. Support tickets are monitored by a duty support engineer

7.4 If the duty support engineer is unable to resolve your problem immediately, a network engineer will contact you normally straight away and always within 2 hours.

7.5 You can expect an initial response within two hours of a logged service interruption call.

7.6 Third-party Interconnects - Any connections provided by a 3rd party supplier in order to complete the solution will be governed by the SLA offered by that supplier. Bytemark has carefully chosen our preferred suppliers based on their ability and track record, in order to provide good quality, reliable solution.

7.7 Where the whole or any part of any Service is provided by means of a third-party system, Bytemark shall, to the extent that it is able to do so, pass on the benefit of any service levels to which it is entitled from that provider of that third party system in accordance with paragraph 1.6 but shall not otherwise be liable to meet the service levels set out in this SLA in respect of that Service (or the relevant part thereof).

  1. NETWORK AND SERVICE EQUIPMENT MAINTENANCE

8.1 Bytemark may suspend the Service to carry out Periodic maintenance or upgrade work on the Network or Service Equipment; this will be carried out during the maintenance windows as defined in paragraph 8.4.

8.2 Except in the case of an emergency Bytemark shall provide the Customer with 5 business days' notice of any suspension of the service under paragraph 8.1. If it fails to provide the appropriate notice, the customer shall be entitled to a credit of one day of free Service.

8.3 As far as possible Bytemark shall endeavour to ensure that any disruption or interruption to the service is kept to a minimum. Bytemark shall endeavour not to suspend the service for planned maintenance or upgrade work more than 12 times in any calendar year and the Customer shall be entitled to one day of free service for each additional service suspension for such work. Bytemark shall endeavour to ensure that planned maintenance or upgrade work does not exceed a total of 24 hours in any calendar year and the customer shall be entitled to a credit of one day of free service for each additional hour of service suspension for such work.

8.4 The standard for the Bytemark maintenance window for planned outages is between 22.00 and 07.00, local time as at node location in question. Bytemark will try to accommodate the customer requirements in terms of outage times; however, depending on the circumstances this may not always be possible. Outage times will be quoted in GMT/BST to prevent mistakes being made over the various time zones.

  1. AMENDMENTS

9.1 This Agreement may be amended from time to time upon giving the Customer reasonable prior written notice.

Acceptable Use Policy

Your use of the Services means that you accept, and agree to abide by, all the policies in this acceptable use policy, which are incorporated into our General Terms and Conditions. Words defined in our General Terms and Conditions shall have the same meaning in this acceptable use policy.

  1. If you breach the following clauses we may temporarily or permanently disconnect your Services. We will always endeavour to warn you where a breach is inadvertent. Only where we suspect deliberate contravention, or where severe network abuse is involved, you may be cut off without notice

1.1           The customer may not use our site or services:

  • In any way that breaches any applicable local, national or international law or regulation;
  • In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
  • For the purpose of harming or attempting to harm minors in any way;
  • To transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
  • To knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
  • To send, knowingly receive, upload, download, use or re-use any material which: is defamatory of any person; is obscene, offensive, hateful or inflammatory; promotes sexually explicit material; promotes violence; promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; infringes any copyright, database right, trademark or other intellectual property right of any other person; is likely to deceive any person; promotes any illegal activity; is likely to harass, upset, embarrass, alarm or annoy any other person; advertises for sale substances that are legal in law but are known to be abused; is used to impersonate any person, or to misrepresent your identity or affiliation with any person; or gives the impression that it emanates from us if this is not the case;
  • For the hosting or promotion of any software or services designed for network abuse.
  1. You also agree not to access without authority, interfere with, damage or disrupt:
  • any part of our site;
  • any equipment or network on which our site is stored;
  • any software used in the provision of our site; or
  • any equipment or network or software owned or used by any third party.

You may not register for an account with us or sign up or use our services for the purposes of testing or vetting security measures in any way or format without our express written consent to do so. 

  1. Resource Usage

In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing.

  1. Proxy Services

Proxy services are often used to hide the originating users true IP address or location.  Unfortunately, this presents us with a number of issues relating to our obligations relating to security, finance and taxation and so accessing our services via proxy services is expressly prohibited.  Where we find proxy services have been used to sign up for an account or to otherwise disguise the location of the account holder we reserve the right to terminate any accounts and services used in this manner without notice.

  1. Suspension and Termination

5.1 We will determine, in our sole discretion, whether you have breached this acceptable use policy. When a breach of this policy has occurred, we may take such action as we deem appropriate. 

5.2 Failure to comply with this acceptable use policy constitutes a material breach of our Standard Terms and Conditions and, in addition to our rights contained therein, may result in our taking all or any of the following additional actions:

(a) legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;
(b) further legal action against you;
(c) disclosure of such information to law enforcement authorities as we reasonably feel is necessary.

We exclude liability for actions taken in response to breaches of this acceptable use policy. The responses described in this policy are not limited, and we may take any other action we reasonably deem appropriate.

  1. Changes to our acceptable use policy

We may revise this acceptable use policy at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we make, as they are legally binding on you and form part of your contract with us. Some of the provisions contained in this acceptable use policy may also be superseded by provisions or notices published elsewhere on our site.

Domain Name Registration

We support the following domains:

  • .uk ( .co .org .me )
  • .at
  • .be
  • .ch
  • .eu
  • .cc
  • .info
  • .com
  • .net
  • .org
  • .biz
  • .me
  • .name
  • .tv
  • .mobi

Domain names have a variety of basic rules for registration including acceptable characters. Whilst these vary in some respects from registry to registry, there are some fundamental rules which apply to all.

Permitted Characters Permitted Length Additional Rules
.com, .net, .org, .info Letters (a-z), Numbers (0-9) and Hyphens (-) From 3 to 63 characters (Not including the extensions) May not begin or end with a hyphen
.biz Letters (a-z), Numbers (0-9) and Hyphens (-) From 3 to 63 characters (Not including the extensions) Only for bona-fide business use
.tv Letters (a-z), Numbers (0-9) and Hyphens (-) From 3 to 63 characters (Not including the extensions) May not begin or end with a hyphen
.co.uk Letters (a-z), Numbers (0-9) and Hyphens (-) From 3 to 63 characters (Not including the extensions) May not begin or end with a hyphen

Note. Domain names are not case sensitive. This means that an uppercase and a lowercase letter are considered to be the same (AAA.com., aaa.com and AaA.com are all the same domain name).

This list is not exhaustive. We make every effort to ensure that our registration systems do not allow you to bypass these registration rules however there are some occasions where this may not be possible, and our checking procedures may fail.

Clients are always advised to seek guidance if they are at all unsure about the domain name they have chosen and its validity. Due to the variety of possible causes for the failure of the domain name validity checker, we cannot be held responsible if a customer attempts to register an invalid domain and that this request is subsequently accepted by our systems. Acceptance of the invalid order by our systems does not constitute acceptance of the registration of the domains by the relevant domain registry.

All registrations are subject to entering into a contract with the relevant registry. For more information please contact our support team.

Charges

A full list of up to date pricing for domain registrations is available on our pricing page.

There are no charges for transferring domain names to a new registrar, you can do this via our control panel. Changing the tag puts the tag outside of Bytemark’s control and ends your domain management contract with us.

Dedicated Servers & Colocation

  1. DEFINITIONS

1.1 In these terms the following words and expressions shall have the following meanings:

“Bytemark” means Bytemark Limited doing business as Bytemark, Company Registration No. 4484629 in England and Wales;

“Agreement” means the contract made between you and us, which incorporates these terms and conditions and any documents referred to herein;

 “Apparatus” means any apparatus which is owned or leased by you and located at the service location and which you use in conjunction with the service;

“Billing Period” means each period as specified in your Service contract from the Service Commencement Date;

“Customer Assistance” means the Customer Assistance telephone help desk, Tel. 01904 890890;

 “Holding Company” and “Subsidiary” means as defined by Sections 736 and 736A of the Companies Act 1985;

“Initial Charges” means the charges payable by you in connection with the service as set out in the order details or as
otherwise agreed;

“Initial Period” means the period as specified on the front cover of the Agreement from the Service Commencement Date;

“Internet” means a network of interconnected e-communications and computer systems connected by Internet Protocol
Numbers;

“IP address” means a unique address for routing information on the Internet;

“Network” means the telecommunication system(s) used by us for the provision of the service;

“Recurring Charges” means the recurring charges payable in connection with the service as set out in the order details;

“Service Commencement Date” means the date on which the service is installed at the service location;

“Service Equipment” means equipment and apparatus, including but without limitation, any multiplexer, telecommunication
apparatus, computer hardware, communication channel, routers or software embodied therein, to be installed at the service
location by us in order to make available the service to you;

“Service Location” means the location where the service is to be provided;

“Service” means any/all Service Equipment and services provided by us as specified on page one of this Agreement or any
agreed amendment thereto;

“Service Level” means a guarantee of service for Internet connectivity and Bytemark supplied and “managed” equipment as shown in the order details of this Agreement only;

“the Act” means the Telecommunications Act 1984 as amended or modified from time to time;

“we” or “us” or “our” means Bytemark;

“you” the Customer entering into this Agreement.

1.2 In these terms any undertaking by you not to do any act or thing shall be deemed to include an undertaking not to permit or suffer the doing of that act or thing.

1.3 In these terms the expressions “you” and “we” shall include your and our respective successors and permitted assigns and our and your respective employees and agents.

  1. FORM OF CONTRACT

2.1 The following are the only terms and conditions on which we supply the services and all offers, quotations, orders, acknowledgements of orders and every contract for the provision by us and the purchase by you of the services shall be subject to these terms and conditions.

2.2 Your order for services from us shall be deemed to be an offer by you to buy the services subject to these conditions.

2.3 No variation to these terms and conditions shall bind us unless the same is agreed in writing signed by our authorised representative on our behalf and by you or your authorised representative on your behalf.

2.4 No representation made by any of our employees or agents concerning any services shall bind us unless the same is confirmed in writing signed by our authorised representative.

2.5  No order will result in a binding contract of sale unless and until we have accepted it in writing signed by our authorised representative.

  1. DURATION

3.1 Unless otherwise stipulated, the Agreement shall commence on the Service Commencement Date and shall continue subject to these terms for the Initial Period and thereafter for the further period of twelve months until terminated by either party giving the other not less than three clear billing months' prior written notice to expire at the end of the Initial Period or any subsequent renewal term.

  1. PROVISION AND USE OF SERVICE

4.1 We shall provide the service from the Service Commencement Date.

4.2 You shall only use the service in accordance with these conditions or such amendment thereto as we may notify you in writing from time to time.

4.3 You acknowledge that we are unable to exercise control over the content of material transmitted or received using the service.

4.4 You shall not use the service:

a)  for the transmission of any material which is of a defamatory, offensive or abusive nature or of an obscene or menacing character; or

b)  to violate or infringe any third party’s rights.

4.5 You shall hold us harmless from and indemnify and keep us indemnified against all liabilities, claims, damages, losses, costs and proceedings that we may suffer or incur howsoever arising from or in any way connected with your use of the service.

4.6 You shall ensure that the apparatus shall at all times conform to the relevant standard or approval and comply with the conditions of such standard or approval.

4.7 We may disconnect any apparatus if you do not fulfil your obligations to obtain approvals and licences under the Agreement or if, in our reasonable opinion, it is liable to impair the quality of any telecommunication service provided by means of our network.

4.8 In any given month we guarantee a service level of 100% Internet availability.

  1. PROVISION OF INFORMATION

5.1 You will promptly provide us (free of charge) with all information and co-operation, which we may reasonably require from time to time to enable us to proceed uninterrupted with the performance of our obligations under the Agreement.

5.2 You will inform us promptly of any change of address, telephone numbers or any other details, which you originally provided to us.

5.3 You shall ensure that all requests for assistance are only made to our Customer Assistance tel. (01904 890890), email (support@bytemark.co.uk) or secure contact form, 9.00am to 5.30pm Monday to Friday or by email at urgent@bytemark.co.uk at any other times.

 

  1. CHARGES
  • In consideration of the provision of the service you shall pay to us:

    a)  Initial charges
    b) Recurring charges
    c) Domain Name charges

6.2 Bytemark retain ownership of all Domains advertised by Bytemark until the service is paid for by the customer, all as specified in the order details.

6.3 Initial charges shall be payable before the Service Commencement Date.

6.4 Recurring charges shall be payable monthly in advance: the first payment shall be due on the Service Commencement Date, and subsequent payments at the beginning of each billing period.

6.5 Except for any software supplied under Service Provider Licensing the price for service is fixed for one year from the Service Commencement Date. We shall be entitled to increase or decrease the recurring charges at any time thereafter. We shall give you at least one month's prior written notice of any increase.

6.6 Service Provider Software Licensing. Where Bytemark provides software via a rental model using Service Provider Licensing Agreements, we reserve the right to pass on to you any price increase imposed by the relevant Software Provider where the software provided is solely used for the provision of the Services to you. Bytemark will give you advance written notice of any such increase, together with any equivalent price increase notice received from the supplier concerned

6.7 The time for payment shall be of the essence.

6.8 No payment shall be deemed to have been received until we have received cleared funds

  1. PAYMENT

7.1 Payment of all sums due under the Agreement shall be made within 15 days of the date of the relevant invoice. If you fail to make payment when due and payable and written notice has been served but not remedied within 14 working days all sums due under all Agreements between us are payable on demand.

7.2  Payment of all sums due under the Agreement shall be made by credit card, debit card, cheque or such other method as we may reasonably specify from time to time and payment of all such sums shall be made in full(without any set-off, deduction or withholding whatsoever).

7.3 Without prejudice to our other rights, we reserve the right to charge daily interest on all outstanding amounts from the due date until payment is received in full at the rate equal to 6% per annum above the Bank of England base lending rate as current from time to time whether before or after judgement. Interest shall continue to accrue notwithstanding termination of the Agreement for any cause whatsoever. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. to the subject matter of this agreement (all of which shall be deemed to have been terminated by mutual consent with effect

7.4 Charges are exclusive of Value Added Tax and any other taxes applicable from time to time, which you shall pay.

  1. CANCELLATION

8.1 The Agreement may not be cancelled or varied by you without our prior written consent signed by our authorised representative. Such consent not to be unreasonably withheld.

8.2 In the event of our giving consent you will thereupon be immediately liable to pay us in the case of cancellation, a fee equal to the sum of the price payable pro-rata for the unexpired term of the service under clause 6 above and such amounts as may be necessary to indemnify us from and against any and all expenses and other losses arising out of, and all charges incurred by us in connection with, the cancellation or variation.

  1. TERMINATION

9.1 Without prejudice to our other rights, we may terminate the Agreement on giving written notice to you, taking immediate effect, if:

a) an interim order is made, or a voluntary arrangement approved, or if a petition for a bankruptcy order is presented or a bankruptcy order is made against you or if a receiver or trustee is appointed of your estate, or (you being a company) a voluntary arrangement is approved or an administration order is made, a receiver is appointed in respect of any of your assets or undertaking or a resolution or petition to wind you up is passed or presented (otherwise than for the purpose of reconstruction or amalgamation) or if any circumstances arise which entitle a court or a creditor to appoint a receiver, administrator or to present a winding-up petition or make a winding-up order; or

b)  you fail to make any payment when it is due under the Agreement or any other Agreements made between you and us; or

c)  you default in due performance or observance of any material obligation under the Agreement and (in case of a remediable breach) fail to remedy the breach within such reasonable time as we specify; or

d)  you provide us with false, inaccurate or misleading information for the purposes of obtaining the service, or

e)  we have reasonable grounds to suspect fraud or misconduct in connection with your use of the service or by any other third party whatsoever, with or without your knowledge or approval; or

f)  We are directed by Director General of OFTEL or other competent authority to cease to provide or allow the provision of the service or any part of the service; or

g)  you are in breach of clause 15 below.

9.2 Without prejudice to your other rights, you may terminate this Agreement on giving written notice to us, taking immediate effect, if we are in breach of a material obligation under the Agreement and fail to remedy the breach within 30 days after receipt of a written notice giving full particulars of the breach and 30 days to remedy to avoid termination.

  1. CONSEQUENCES OF TERMINATION

10.1 If the agreement is terminated by us pursuant to our rights under clause 9 you shall pay all charges in respect of the agreement, up to the date of termination.
10.2 Upon termination of the agreement for any reason you shall forthwith disconnect and cease to use the service.

  1. TITLE TO SERVICE EQUIPMENT

11.1 For so long as you remain in possession of any service equipment whilst title thereto remains with us:

a) you shall be fiduciary agent and bailee of such service equipment for us;

b)  you shall mark the service equipment so that it is identifiable as our property;

c)  you hereby grant us an irrevocable right and licence to enter upon any part of your premises to repossess the service equipment;

d)  you shall insure such service equipment with a reputable insurance company and hold the proceeds of any claim upon trust for us to settle outstanding payments; and

e)  whilst title to the service equipment shall remain vested in us you shall not either pledge or in any other way charge by way of security for any indebtedness any of such service equipment and shall ensure that service equipment does not become subject to any charge, lien or other encumbrance.

  1. SUSPENSION OF THE SERVICE

12.1 We may at our own discretion suspend immediately the provision of the service until further notice on notifying you either orally (confirming such notice in writing) or in writing if:

a)  we are entitled to terminate the agreement; or

b)  we are instructed or requested to do so by Government or other competent authority.

12.2  Any suspension of service shall not exclude our right subsequently to terminate the Agreement.

  1. RECONNECTION OF SERVICE

13.1 If we suspend service as a result of your breach, fault or omission and we subsequently agree to reconnect the service; you shall reimburse us for all reasonable costs and expenses incurred in suspending and recommencing provision of the service. There shall be a reconnection administration fee of £50 payable by you at our discretion prior to reconnection.

13.2 If any sum payable under this Agreement is still outstanding 14 days after the service of written notice to you requiring, you to pay all outstanding sums in full we may in our absolute discretion suspend the service.

13.3 If we still do not hear from you within 14 days of the written notice referred to in condition 12.1 we may in our absolute discretion:
a) disconnect the service;
b) terminate the agreement;
c) delete any data held on either the apparatus or service equipment (including third party data and you shall indemnify us against all claims, liabilities, costs expenses, damages or losses incurred by us and arising from such deletion);
d) charge you a daily rate for storage of any apparatus;
e) sell some or all of your equipment for the best price reasonably available (and pass good title to the buyer);
f) discharge any outstanding sums due to us and to cover the costs of sale but if the proceeds of sale are insufficient to discharge your outstanding sums due to us then you will remain liable for the balance and we may take action to recover the outstanding amounts (we will pay to you the balance, if any, still remaining); and
g) treat any apparatus not sold in accordance with condition 13.3(f) as abandoned and destroy or otherwise dispose of it.

  1. ALLOCATION AND USE OF ADDRESSES

14.1 Where we allocate IP addresses to you, they are for your use for the duration of this Agreement and do not belong to you. You accept that you do not and will not acquire any rights whatsoever in such IP addresses and they shall revert to us on termination.

14.2 We shall be entitled, for commercial, operational or technical reasons or to comply with an obligation imposed on us, to withdraw or change any IP addresses allocated to you provided that we give you reasonable notice.

14.3 Standard allocation is eight IP addresses for leased lines and three for Hosted Server, unless a detailed request for more is received in the form of a fully completed Network Policy Document.

  1. CONFIDENTIALITY OF CUSTOMER INFORMATION

15.1 All information obtained by us from you which belongs to you and is of a confidential nature will be dealt with by us in a confidential and proper manner.

15.2 You undertake that you will keep, at all times, confidential any information concerning our business (including the technology used) which may come within your knowledge during the life of the Agreement.

  1. WARRANTY/LIMITATION OF LIABILITY

16.1 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:

a)  any breach of these conditions;

b)  any use made by you of any of the service;

c)  the content of any information placed by you onto the apparatus or service equipment;

d)  the failure of or any problem experienced by you in the operation of the service;

e)  any representation, statement or tortious act or omission including negligence arising under or in connection with the agreement.

16.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the agreement save that where you are a consumer rather than a business no provision of this clause 13 or these conditions shall affect your rights as a consumer.

16.3 Nothing in these conditions excludes or limits our liability:

a) for death or personal injury caused by our negligence, or
b) for any matter which it would be illegal for us to exclude or attempt to exclude its liability; or c) for fraud or fraudulent misrepresentation.

16.4  Our aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise howsoever arising out of or in connection with the performance of our obligations under the agreement shall be limited to the annual charge for service in respect of any incident, or any series of incidents arising from a common cause in any twelve-month period.

16.5  You shall indemnify us against all claims for personal injury, loss or damage to property brought against us by third parties arising from the presence of service equipment at the service location unless such loss or damage is solely attributed to the negligence of us, our employees or our agents.

16.6 The provisions of this clause 16 shall continue to apply notwithstanding the termination or expiry of the agreement.

16.7 Each provision of this clause 16 is to be construed as a separate limitation applying and surviving even if for any reason one or other of the said provisions is held inapplicable or unreasonable.

  1. NOTICES

17.1 Any notices to be given under the agreement shall, unless otherwise expressly stated, be in writing and shall be given by sending the same by first class post or by facsimile transmission to the party’s address stipulated in the agreement or such other address as may be designated in writing from time to time or if no such address is stipulated or designated then to the registered office or other usual business address of that party.

17.2 Any notice sent by first class post shall be deemed (in the absence of evidence of earlier receipt) to have been delivered seven days after its dispatch.

17.3 Any notice given by facsimile transmission shall be deemed to have been delivered on the next working day following transmission subject to receipt of the appropriate confirmation of transmission.

  1. ASSIGNMENT/SUBCONTRACTING

18.1 You shall not assign or delegate or otherwise deal with any of your rights and obligations under the agreement without our prior written consent, such consent not to be unreasonably withheld.

18.2 We shall have the right to assign or otherwise delegate all or any of our rights and obligations under the agreement to an associated company or other person upon serving written notice on you.

18.3 We may use subcontractors to install and maintain service equipment.

  1. FORCE MAJEURE

19.1 Neither party shall be liable for any loss or damage, which may be suffered due to, including, without limitation, any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act of omission of Government, highways authorities, other telecommunications operators or administrations or other competent authority, the obstruction of a third party of line of sight between microwave installations, war, military operations, acts of terrorism or riot, difficulty, delay or failure in manufacture, production or supply by third parties of the service equipment.

19.2 Should any such event occur, both parties reserve the right to suspend all or any part of the agreement, without incurring any liability for any loss or damage thereby occasioned.

  1. 20 ENTIRE AGREEMENT

20.1 this agreement and the documents referred to in it, constitutes the entire agreement and understand between us and supersedes any previous agreements made or existing between us before or simultaneously with the agreement and relating to the subject matter of this agreement (all of which shall be deemed to have been terminated by mutual consent with effect from the commencement date of this agreement but without prejudice to our rights and liabilities accrued before such date).

20.2  You and us both acknowledge and agree that in entering into this agreement, and the documents referred to in it, does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) or any person (whether party to this agreement or not) other than as expressly set out in this agreement.

20.3 The only remedy available for breach of this agreement shall be for breach of contract under the terms of this agreement.

20.4 Nothing in this clause 20 shall, however, operate to limit or exclude any liability for fraud.

  1. MODIFICATION

21.1 We shall have the right by notice in writing to you to modify the agreement at any time so as to comply with any regulations or other requirements applicable to or imposed upon us by any competent authority.

  1. NO WAIVER

22.1 Our failure to exercise or enforce any right conferred by the agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or the enforcement thereof or of any other right on any later occasion.

    SEVERABILITY

23.1 If any provision of the agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect any other provisions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.

  1. THIRD-PARTY RIGHTS

24.1 A person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement but this does not affect any right or remedy of a third party which exists or is available apart from the Act.

  1. GOVERNING LAW

This agreement shall be governed by and constructed and interpreted in accordance with English and Welsh law, and the parties hereby submit to the exclusive.

Management Definition

For a full explanation of the remit of Bytemark managed services, please read our Management Definition:

Management Definition PDF