1 TOTAL HOSTING NEEDS LIMITED incorporated and registered in Scotland with company number 090758815 whose registered office is at
1st Floor Airmed House, Edinburgh Way, Harlow, Essex, CM20 2ED ("Us" or "We" or "Our");
2 The individual or organisation applying for the provision of the Goods or Services ("You").
(A) We are in the business of providing voice over internet protocol services, webhosting solutions,and wish these terms and conditions to apply to Our provision of Goods and/or Services.
(B) These terms and conditions together with the Customer Order Form embody the whole agreement between the parties (the "Conditions").
Table of Contents
- 1. Interpretation
- 2. Changes to the Conditions
- 3. Terms for Consumers
- 4. Security
- 5. Services
- 6. Your obligations
- 7. Restrictions
- 8. Data
- 9. Personal Data
- 10. Limitation of liability
- 11. Indemnity
- 12. Payment
- 13. Termination
- 14. Confidentiality
- 15. Notices
- 16. General
- 17. Choice of law
- 18. Refund policy
- 19. Force majeure
1.1 The definitions and rules of interpretation in this clause apply in these Conditions:
1.1.1 "Acceptable Use Policy" means Our guidelines for acceptable use made available at Acceptable use Policy which may be amended from time to time;
1.1.2 "Commencement Date" means the date on which a Customer Order Form is submitted by You to Us via our Website;
1.1.3 "Customer Order Form" means the order form on Our Website completed by You for the supply of Goods and/or Services;
1.1.4 "Data" includes information, documents, text, software, music, sound, photography, messages, and other material of any kind in any form;
1.1.5 "Goods" means the goods described on the Website and which We agree to sell to You as requested by You in the Customer Order Form;
1.1.6 "Internet" means the global data network comprising interconnected networks to which We are connected and provide access to You via the Services;
1.1.7 "Personal Data" means Data about any identified or identifiable living person;
1.1.8 "Registry" means either Nominet UK Limited, CentralNIC Limited or Tucows Inc, or any other domain names registry that We choose to use from time to time;
1.1.9 "Regulations" means the Consumer Protection (Distance Selling) Regulations 2000 (as amended);
1.1.10 "Services" means the services described on the Website and which We agree to provide to You as requested by You in the Customer Order Form; and
1.1.11 "Website" means Our web presence at https://totalhostingneeds.co.uk and other locations We advertise from time to time.
1.2 We explain in the headings what each clause covers. These headings are for guidance only and are not intended to be legally binding.
1.3 These Conditions take precedence if inconsistent with the material on Our Website.
2 Changes to the Conditions
2.1 We reserve the right on giving prior notice on the Website to alter these Conditions at any time (including altering Our Acceptable Use Policy and other policies).
2.2 We will give You at least forty-five (45) days notice of such alteration which shall take effect at the end of the forty-five (45) day period.
2.3 Where We have given You notice of an alteration to the Conditions which may have a material adverse effect on You, You shall be entitled to terminate these Conditions by giving Us no less than thirty (30) days prior notice in writing to that effect provided that the thirty (30) day notice period given by You must have expired before the modification to the Conditions has taken effect.
2.4 Any renewal of the Services will in any event be subject to Our then current Conditions.
3 Terms for Consumers
3.1 This clause 3 applies only if You are a "Consumer", which for the purposes of these Conditions shall mean any natural person who is acting for purposes that are outside his or her trade, profession or business.
3.2 For the purposes of this clause 3 and the Regulations:
3.2.1 We are "the Supplier";
3.2.2 the address of the Supplier shall be the correspondence address as set out in clause 3.6 below;
3.2.3 prices on the Website are updated periodically and cannot be guaranteed for any period of time and every effort is made to ensure prices are correct at the point at which the Consumer places an order;
3.2.4 any complaints should be sent in writing to the Supplier's correspondence address; and
3.2.5 the Supplier will provide the Consumer with a written confirmation (by post or by email) of order following purchase of Goods or Services.
3.3 A Consumer will, subject to any exceptions or exclusions set out in the Regulations, be entitled to cancel these Conditions by serving a written notice of cancellation on Us at any time during the following periods:
3.3.1 In the case of Goods, within seven working days after the day on which the Consumer receives the Goods, and in accordance with clause 20 (Refund and RMA policy); or
3.3.2 In the case of Services, within seven working days after the date the Commencement Date, being the date the Consumer enters into a contract with the Supplier, and in accordance with clause 20 (Refund and RMA policy).
3.4 In the event of cancellation by the Consumer, Goods should be returned to the Supplier's correspondence address. The Consumer will be liable for the costs of returning such Goods or the costs of the Supplier in recovering such Goods unless the Consumer has a right to reject the Goods under a term of these Conditions or under statutory right (including any right under the Unfair Terms in Consumer Contract Regulations).
3.5 The Services will commence immediately after the Commencement Date.
3.6 You can contact us by post at Total Hosting Needs Limited, 1st Floor Airmed House, Edinburgh Way. Harlow. Essex. CM20 2ED
or e-mail us at firstname.lastname@example.org.
4.1 You must:
4.1.1 keep Your username and password secure (We will not disclose Your username and password to any third parties, but may change the username and password at any time for good reason);
4.1.2 if requested use Your username and password when giving instructions (and We are authorised to comply with instructions containing Your username and password);
4.1.3 take reasonable steps in respect of matters in Your control to minimize any risk of security breaches in connection with the Services and take responsibility for all users of the Services using your user name and password;
4.1.4 notify Us of any unauthorised access to Your account which You believe may affect the overall security of Our systems; and
4.1.5 comply with Our security checks.
5.1 We will supply the Services with reasonable skill and care.
5.2 However, We do not warrant or represent:
5.2.1 that the Services will be uninterrupted, secure or error-free; or
5.2.2 that any Data generated, stored, transmitted or used via or in connection with the Services will be complete, accurate, secure, up to date, received or delivered correctly or at all.
5.3 We do not provide a back-up of Your Data or guarantee the integrity of Your Data, however, We will use Our reasonable endeavours to provide copies of Data for disaster recovery purposes.
5.4 We may have to suspend the Services:
5.4.1 for repair, maintenance or improvement;
5.4.2 to comply with a request or order from a governmental or administrative authority or emergency service;
5.4.3 in the event of problems with the broadband network either at Your premises or in the public Internet Protocol environment;
5.4.4 if We have a reasonable belief that suspension is necessary to prevent fraud or unauthorised access taking place; or
5.4.5 if You fail to pay any outstanding fees within 14 days of the due date If so, We will restore the Services as quickly as is reasonably possible, other than in the case of failure by You to pay any outstanding fees.
5.5 By purchasing VoIP Services You confirm that You understand that Our Services:
5.5.1 may sometimes be unavailable as a result of things over which We have no control, for example, the weather, power disruptions, or failures of your internet service provider (ISP) or broadband connection and you understand that in such circumstances all services will be unavailable.
6 Your obligations
6.1 You must comply with Our reasonable instructions and requests concerning the Services.
6.2 You must provide Us with up to date contact details of one or two named representatives with whom We are authorised to deal (including email addresses) and promptly notify Us of any changes. We rely on this information for various reasons including the transmission of renewal notices and other important information concerning the Services.
6.3 You must comply with Our Acceptable Use Policy and bring it to the attention of Your authorised users.
6.4 You are responsible for all persons who use Your username and password to access the Services, whether authorised or not, unless acting on Our behalf.
6.5 There is a risk that Data generated, stored, transmitted or used via or in connection with the Services may be irretrievably damaged or lost if there is a fault or on suspension or termination.
6.6 You shall be responsible for arranging the internet connection required by the Services. Our Services are dependent on your connection to the data network and the data network itself. Our Services may therefore cease to function if there is a power failure or a failure in the underlying data network.
6.7 If the Services are to be used principally at a single, fixed location, You must register with Us the address of the place where the service will be used.
7.1 You must refrain from transferring any illegal material or engage in unlawful activities via Your use of the Services.
7.2 You must refrain from sending menacing, offensive, defamatory, obscene, indecent or abusive messages or telephone calls whilst using the Services.
7.3 You must not use or permit the usage of the Services in a manner that is inconsistent with any and all applicable laws and regulations.
7.4 You must not make available or upload Data via Your use of the Services that contain a virus, worm, trojan or other malicious Data or download any disabling or harmful devices.
7.5 You must not use the Services to send bulk unsolicited commercial emails or telephone calls.
7.6 You warrant that Your use of the Services will not infringe any third party intellectual property or other rights.
7.7 You must not embark on any course of action, whether by use of Your website, telephone or any other means, which may cause a disproportionate level of activity (for example, causing mail bombs, denial of service attacks or encouraging large numbers of inbound phone calls) without providing Us at least seven day's prior notice in writing. If You give notice or We otherwise become aware of such disproportionate use We may:
7.7.1 move Your service to a dedicated service and charge Our then current rate as detailed on Our Website; or
7.7.2 terminate some or all of the Services forthwith.
8.1 We may access, copy, preserve, disclose, remove, suspend or delete any Data:
8.1.1 if We are required to do so by applicable law or competent authority;
8.1.2 for the purposes of registration of domain names with a Registry;
8.1.3 if it is otherwise permitted under these Conditions; or
8.1.4 if such Data is prohibited under these Conditions.
9 Personal Data
10 Limitation of liability
10.1 Nothing in these Conditions in any way excludes or restricts Our liability for negligence causing death or personal injury or for fraudulent misrepresentation or for anything which may not legally be restricted. Nor does it affect consumers' statutory rights.
10.2 Our liability in contract, tort (including negligence) or otherwise in connection with the Services provided under these Conditions for any one event or a series of events is limited to the price of the Services, or 125% of the payment We received from You for the Services in the 12 months before the event(s) complained of.
10.3 In no event (including Our own negligence), and even if We have been advised of the possibility of such losses, will We be liable for any:
10.3.1 economic loss (including, without limitation, loss of revenue, profit, contract, business or anticipated savings);
10.3.2 loss of goodwill or reputation;
10.3.3 special, indirect or consequential loss; or
10.3.4 damage to or loss of Data.
10.4 We have no liability for goods or services provided by third parties.
10.5 To the extent allowed by law, We exclude all conditions, terms, representations and warranties, whether imposed by statute or by law or otherwise, that are not expressly stated in these Conditions including, without limit, the implied warranties of satisfactory quality and fitness for a particular purpose. Consumers' statutory rights are unaffected.
You will indemnify Us against all claims, damages, liabilities, costs (including reasonable legal fees) directly or indirectly related to use of the Services and/or Goods in breach of clause 4 or clause 7 of these Conditions.
12.1 You must pay the fees (together with VAT and any applicable taxes) specified on Our Customer Order Form when You order or renew any Services.
12.2 Payment for services may be made:
12.2.1 by Direct Debit, BACS, credit card or debit card; and
12.2.2 in advance or, if We agree to credit terms, within 14 days of Our invoice.
12.3 Payment for the Services may be made:
12.3.1 monthly or annually, by Direct Debit, credit card or debit card;
12.3.2 annually by Direct Debit, BACS, credit card or debit card; or
12.3.3 in advance or, if We agree to credit terms, within 14 days of Our invoice.
12.4 Payment must be made without deduction or set-off.
12.5 All fees are non refundable unless otherwise stated.
12.6 All fees remain payable where We suspend the Services in accordance with these Conditions.
12.7 We may impose a credit limit on Your account and/or require a deposit as security for paying bills.
12.8 In addition to any other rights under these Conditions We may charge You interest on any overdue fees from the date payment is due until the fees are paid in full at a rate of 10% over the prevailing monthly Bank of England base lending rate.
12.9 If a Direct Debit collection fails and We have a credit card or debit card on file, then payment will be collected using that credit card or debit card.
13.1 All Services paid for either annually, semi-annually, quarterly, or monthly will be subject to initial contract period, commencing on the Commencement Date, and unless You are a Consumer as defined in clause 3, shall continue thereafter on a rolling basis unless and until terminated in accordance with clause 14.2 and/or 14.3.
13.2 Subject to clause 14.1, either party may terminate these Conditions (as regards some or all of the Services) at any time for any reason by giving a written notice.
13.3 We may terminate these Conditions (as regards some or all of the Services) or suspend some or all of the Services immediately on written notice:
13.3.1 if You breach any the terms and obligations under these Conditions and, if remediable, having received from us a written notice stating the intention to terminate these conditions if not remedied, fail to remedy the breach within 14 days;
13.3.2 if You are subject to a resolution for winding up or a petition for bankruptcy or liquidation or there is a proposal or You enter into any arrangement or composition with Your or for Your creditors or a receiver or liquidator or trustee in bankruptcy is appointed over You or any of Your assets or any similar circumstances;
13.3.3 if We are required to do so by a competent or regulatory authority;
13.3.4 If any supplier to us of the relevant Services, or a component of the relevant Services from, terminates our contract with that supplier;
13.3.5 You fail to pay any fees due under these Conditions after receiving fourteen (14) days written notice from Us; or
13.3.6 a regulatory approval required by Us to provide the Services and/or Goods is revoked or amended and not replaced by an equivalent approval.
13.4 On termination of this agreement or suspension of Services for any reason:
13.4.1 We will immediately stop supplying, and will terminate access to, the relevant Services and shall not be liable for any further supply of the Services. This may involve irretrievable damage to or loss of Data generated, stored, transmitted or used via or in connection with the Services and / or We may destroy any such Data;
13.4.2 all licences granted by Us to You will terminate;
13.4.3 any fees due remain payable and, if already paid, will be non-refundable unless You have cancelled these Conditions in accordance with clause 3.1;
13.4.4 Your accrued rights and liabilities will be unaffected; and
13.4.5 clause 15 (Confidentiality) of these Conditions shall continue in force.
14.1 Both parties agree not to disclose any Confidential Data received from the other party for any purpose apart from the proper performance of these Conditions, unless ordered to do so by law. If Confidential Data if disclosed or transferred to third parties for the purpose of proper performance of these Conditions such disclosure or transfer shall be subject to legally compliant onward transfer agreements. "Confidential Data" means Data identified as, or which clearly is, confidential.
14.2 This clause does not apply to Data which:
14.2.1 enters the public domain other than through breach of this clause;
14.2.2 is or becomes independently known to the receiving party free from any confidentiality restriction;
14.2.3 is required to be disclosed by applicable law or competent authority;
14.2.4 is reasonably disclosed to employees, suppliers or others for the proper performance of these Conditions;
14.2.5 is reasonably disclosed to professional advisers; or
14.2.6 We are otherwise permitted to disclose in accordance with these Conditions.
14.3 You agree to promptly provide Us (free of charge) with any information We may reasonably require to enable Us to activate and provide the Services and/or Goods.
15.1 You should send any notices under these Conditions to the correspondence address, fax or email address given at the top of these Conditions.
15.2 We shall send any notices in accordance with the most recent contact information which You have provided to Us.
15.3 Notices may be sent by hand, recorded delivery, fax or email and shall be deemed to be received:
15.3.1 by hand, when delivered provided handed to a senior employee;
15.3.2 recorded delivery, five days after posting;
15.3.3 fax, when the sender receives an error-free transmission report; or
15.3.4 email, on the day sent unless the contrary is proved.
16.1 These Conditions represent the entire agreement of the parties relating to its subject matter. These Conditions supersede all prior agreements and representations (unless fraudulent). No party shall have any right of action (except in the case of fraud) against any other party to this Agreement arising out of or in connection with any Pre-contractual Statement except to the extent that such Pre-contractual Statement is repeated in these Conditions. The parties agree that, to the fullest extent permitted by law (save in the case of fraud), any rights or remedies available under the Misrepresentation Act 1967 shall be excluded. We are not bound by, nor should You rely on, any oral representations or representations by any agent or employee of any third party You may use to apply for the Services.
16.2 If any part of these Conditions is deemed void for any reason, the offending words shall be deemed deleted and the remainder shall continue in full force.
16.3 You may not assign these Conditions or subcontract or resell any of the Services without Our prior written consent. We may assign , subcontract or otherwise deal with all or any of Our rights and obligations arising under these Conditions.
16.4 We shall not be liable for failure to perform or delay in performing any obligation under these Conditions if the failure or delay is caused by any circumstances beyond Our reasonable control, including but not limited to failure of any communications, telecommunications or computer system.
16.5 No firm, person or company which is not a party to these Conditions shall have any right to enforce any provision of these Conditions.
16.6 The failure to exercise or delay in exercising a right or remedy under these Conditions shall not constitute a waiver of the right or remedy.
16.7 Nothing in these Conditions shall be construed as creating a partnership or joint venture of any kind between the parties.
17 Choice of law
17.1 These terms will be governed by English Law and subject to the exclusive jurisdiction of the courts of England.
17.2 If any dispute arises in connection with these Conditions, the parties will attempt to settle it by mediation in accordance with the Communications and Internet Services Adjudication Scheme (CISAS) ("ADR Scheme"). You can approach the ADR Scheme once You have exhausted the complaints procedure set out in Our Code of Practice. Alternatively, You can approach the ADR Scheme if Your complaint has been ongoing for over 8 weeks. We will abide by any decision made under the ADR Scheme. You are not bound by any decision made under the ADR Scheme and participation in the ADR Scheme by You will not prevent You commencing court proceedings.
18 Refund policy
If you have changed Your mind about any Services ordered, and You wish to cancel them, You can do so provided You inform Us of Your decision in accordance with clause 16 (Notices).
19 Force majeure
Neither party will be obliged to carry out any obligation under these Conditions where performance of such obligation is prevented due to any cause beyond the first party's reasonable control including but not limited to any act of God, severe weather, failure or shortage of power supplies, flood, lightning or fire, labour shortage or labour dispute, the act or omission of Government, highways authorities, other telecommunications operators or administrations or other competent authority, or a similar type of force majeure event.