Full Terms of Supply
Definitions
In this Agreement, unless the context requires otherwise, the following words shall have the following meanings:
"Open Mind Servers" is a division of Open Minded Solutions Limited
"Abuse Complaint" is a complaint, either by Open Mind Servers or a third party, about the Client’s use of the Services;
"Bandwidth" is the data transferred by the Client using the Services to other equipment on the Internet. For the avoidance of doubt, this includes transfer of data between the Services and other equipment hosted by Open Mind Servers;
"Build Room" means the facilities provided by Open Mind Servers, subject to availability, for the Client to perform physical maintenance on their equipment;
"Control Panel" is the online portal that the Client may access at http://www.helmcontrolpanel.net or another address advised to the Client by Open Mind Servers from time to time;
"Engineer" is defined as a Open Mind Servers member of staff with competence in repairing or replacing the Hardware;
"Hardware" means the servers, firewalls, equipment, cabling and systems provided by Open Mind Servers in connection with the Services;
"IP" means Internet Protocol;
"IPRs" means any and all intellectual property rights including without limit any and all patents, design rights, database rights, copyright, know-how, moral rights, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;
"Latency" is defined as the mean time for a packet to be transmitted between two points in the Open Mind Servers Network;
"Network Availability" is defined as the percentage of time the Open Mind Servers Network is contactable over a calendar month;
"Network Unavailable Time" is when a portion or the entirety of the Open Mind Servers Network is unavailable, and this affects the provision of the Services to the Client. Network Unavailable Time excludes Scheduled Maintenance, and those situations defined in the ‘Exclusions’ section of the Network Service Level Agreement;
"Notified Maintenance" means essential maintenance to be carried out by Open Mind Servers in relation to the Services, Hardware and/or Software, which has been notified to the Client;
"Packet Loss" is the number of packets, as a percentage, that do not reach their destination within the Open Mind Servers Network;
"Power Availability" is defined as the percentage of time the power is available over a calendar month;
"Quality" refers to two metrics, Latency of the Open Mind Servers Network and Packet Loss within the Open Mind Servers Network;
"Open Mind Servers Network" refers to Open Mind Servers’s routers, switches, cabling and other network equipment located in the UK responsible for connecting servers hosted by Open Mind Servers to the outside world;
"Response Time" is defined as the time from the Client making a Support Call to an Engineer commencing work on the Services;
"Schedule" means the schedules and/or Internet/telephone orders to this Agreement from time to time, describing the Internet related services requested by the Client including without limit details of the requested Bandwidth, Hardware and Software;
"Scheduled Maintenance" is defined as maintenance necessary for the continued provision of service, including but not limited to network upgrades and security updates;
"Services" means the Internet related services described in any Schedule made hereunder and which are supplied or to be supplied by Open Mind Servers on and subject to the terms of this Agreement and any schedules made hereunder;
"SLA" means service level agreement;
"Software" means the computer software provided by Open Mind Servers in connection with the Services;
"Support Call" is defined as a telephone call by the Client to Open Mind Servers’s telephone number, published on www.openmindhosting.com;
General
The Services shall be as described in this Agreement and any associated Schedules. All Schedules shall be deemed to be an offer from the Client and shall only be deemed accepted by Open Mind Servers when counter-signed by an authorised representative of Open Mind Servers. In the event of any conflict between any provision in this Agreement and those in the Schedule then the provision in the Schedule shall prevail.
The Client, where the Client an individual, or the person entering into this Agreement on behalf of the Client, where the Client is an entity, warrants that they are 18 years of age or older, and capable and authorised to enter into this Agreement.
Open Mind Servers reserves the right at any time and from time to time to amend, improve or correct the Services, Software and/or Hardware (or any part thereof) provided that such modification does not materially affect the overall quality of the Services. This includes the right to substitute the Hardware with Hardware of similar specification, where necessary. Open Mind Servers shall endeavour to give the Client reasonable notice of such modifications but this may not always be possible and Open Mind Servers shall not be liable to the Client or to any third party for any such modification or any failure to give such notice
Open Mind Servers reserves the right at its sole discretion to suspend the Services (temporarily or permanently) on the occurrence of any unscheduled maintenance or any of the following (each of the following shall be a "Suspension Events"): (i) Notified Maintenance; (ii) issue by any competent authority of an order which is binding on Open Mind Servers and which affects the Services and which can only be dealt with properly by suspension of the Services; (iii) if the Client fails to pay any amounts due under this Agreement when they are due; (iv) if any events occur which would entitle Open Mind Servers to terminate this Agreement; (v) the Bandwidth used by the Client in relation to the Services exceeds the agreed level and Open Mind Servers determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by Open Mind Servers from time to time.
It is The Client’s responsibility to keep the server files up to date unless Open Mind Servers are providing a managed service. The Client is liable for any legal contracts or end user license agreements as a result of any third party software installed by The Client.
In the event of a server crash, once notified, Open Mind Servers will endeavour to reboot the Client’s server as soon as possible but offer no timed guarantee. The Client may have access to an automatic reboot switch, in which case an instantaneous reboot may be possible. Open Mind Servers make no guarantee as to the functionality of the reboot switch, but will make all reasonable endeavours that the reboot switch is functioning properly.
It is the Client’s responsibility to maintain and to enter a contact email address, postal address and telephone number for the Client on the Control Panel, and to ensure such contact details are current and up to date at all times. Open Mind Servers may provide the Services to the Client from verbal or email order received by it from any authorised person. A person shall be an authorised person for the purpose of this clause if his name is listed at the time of order on the Control Panel.
This Agreement together with the Schedule constitutes the whole and only agreement and understanding between the parties relating to its subject matter and supersedes and extinguishes any drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, between the parties in connection with the subject matter of this Agreement whether existing prior to or at the same time as this Agreement. The Agreement will be on these conditions only, to the exclusion of any other terms and conditions (including any terms and conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document). The Client’s terms and conditions shall not apply to this Agreement.
Duration and Termination
This Agreement shall come into effect upon the date of this Agreement and, subject to the provisions of this Agreement shall continue in force for an initial term of 1 month from the date the Services are available to the Client and indefinitely after that until terminated by either party giving not less than 30 days prior written notice to expire on or after the expiry date of the initial term.
Without prejudice to any other rights to which Open Mind Servers is entitled, Open Mind Servers may give notice in writing to the Client terminating this Agreement with immediate effect if:
- the Client commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified of the breach;
- an order is made or a resolution is passed for the winding up of the Client;
- an order is made for the appointment of an administrator to manage the affairs, business and property of the Client or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act (1986);
- a receiver is appointed of any of the Client’s assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Client or if any other person takes possession of or sells the Client’s assets;
- the Client makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
- there is a change of the ability to direct the affairs of the Client whether by virtue of the ownership of shares, contract or otherwise of the Client;
- the Client purports to assign its rights or obligations under this Agreement.
For the avoidance of doubt and without limitation, a breach of any of any of the payment provisions contained in this Agreement, or a breach of the Acceptable Use Policy is a material breach for the purposes of this Agreement. Refunds will be given only at the discretion of Open Mind Servers.
Distance Selling Regulations
Under Regulation 10 of The Consumer Protection (Distance Selling) Regulations 2000, the Client may have the right to cancel this Agreement for seven working days after the day after this Agreement has been concluded. However, it is agreed between Open Mind Servers and the Client that the Services may commence before the end of that cancellation period, and then the Client will lose the right to cancel from the date that Open Mind Servers provides the Client with the access details of the Services. In any event there shall be no refund for purchased software nor set-up fees as set out in this agreement.
Support and Maintenance
Maintenance and support shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than Open Mind Servers or its authorised representatives; or (b) software programmes or hardware supplied by the Client.
The Client shall document and promptly report all errors or malfunctions of the Services, Hardware or Software to Open Mind Servers. The Client shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Open Mind Servers provided the procedures specified are reasonable. The Client shall maintain a current archive copy of all software and data, and shall properly train its personnel in the use of the Services, Hardware and Software.
Any problems caused by the Client to the Services, (which include, but are not limited to, deletion of necessary operating system files, accidental or intentional infection by a virus/Trojan) may result in extra charges to The Client at £40 per 60 minutes, or part thereof. For any work that will take more than two hours we will seek prior authorisation from the Client by telephone, email, fax, or post.
Payment
The Client shall pay the price for the Services as set out in the Schedule. An initial payment is required before any set-up work is carried out. Open Mind Servers invoices for regular payments monthly in advance, unless otherwise agreed in writing.
The price for the Service covers Bandwidth as stated in the Schedule. If the Client exceeds this limit then Open Mind Servers reserves the right to make additional charges for usage above the limit at its then prevailing charge rate. Open Mind Servers will endeavour to let the Client know if its bandwidth use exceeds the agreed level, however it is the Client's responsibility to monitor the bandwidth being used by it from time to time using the Control Panel.
All prices quoted to the Client for the provision of services by Open Mind Servers are exclusive of any value added tax (VAT) for which the Client may be additionally liable at the applicable rate. Where the Services are purchased with a monthly payment plan comprising a set up fee, this fee is payable immediately. Where a long term contract is purchased, the set up fee is included within the total payment.
The price and all other amounts due under the Schedule shall be paid by the Client by the due date as specified in Open Mind Servers' invoice. Time for payment shall be of the essence. Payment shall only be deemed received by Open Mind Servers upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any grounds. Open Mind Servers reserves the right to suspend the Services in case of late payment. Any exercise by Open Mind Servers of its right to suspend the Services in the case of late payment shall be without prejudice to any other of its rights under this agreement. Notwithstanding suspension of the Services by Open Mind Servers the Client shall continue to pay the price for the Services in accordance with the terms of this Agreement until this Agreement is terminated in accordance with the terms of this Agreement. Open Mind Servers understands and will exercise its statutory right to interest and debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 if not paid according to agreed terms.
Open Mind Servers reserves the right to send overdue accounts to a debt collection agency. All charges involved in the collection of overdue accounts will be payable by the Client.
Consequential Losses
Open Mind Servers is not in a position to assess any consequential loss which the Client may suffer as a result of any failure of the Services, or any other default on the part of Open Mind Servers and it would be impractical and uneconomic for Open Mind Servers to insure against such liability. Accordingly it is the responsibility of the Client to properly assess any consequential loss that it and/or its clients may suffer and to obtain and maintain adequate insurance in relation to such losses. The Client shall also ensure that it has adequate insurance cover in relation to any loss or damage which may be caused to Open Mind Servers and/or its clients through the negligence or default of the Client, its employees, agents, or equipment. The Client shall, as and when requested, provide Open Mind Servers with such evidence as Open Mind Servers may require in relation to the Client’s insurance.
Indemnity
The Client agrees to fully indemnify and keep Open Mind Servers, its subsidiaries, affiliates, officers, partners and employees fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following: (i) the Clients breach of this Agreement or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Client but not the Hardware and/or Software; (iii) the Clients use or misuse of the Services; (iv) the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs).
Disclaimer
Nothing in the Agreement shall exclude or limit the liability of Open Mind Servers for death or personal injury resulting from its negligence or fraudulent misrepresentation nor affect the statutory rights of consumers.
The Client acknowledges that the allocation of risk in this Agreement reflects the price paid for the Services, Hardware and Software and that it is not within the control of Open Mind Servers how or for what purposes they are used. If any exclusion or limit of liability in this Agreement is held to be invalid and Open Mind Servers becomes liable for loss or damage that may lawfully be limited then such liability shall be limited to the amount paid by the Client for the Services.
Open Mind Servers shall have no liability to the Client for any loss arising from any material, data or instructions supplied whether digitally or otherwise by the Client or on its behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from late arrival or non-arrival or any other fault by the Client or on its behalf. No action, claim or demand arising out of or in connection with this Agreement may be brought by the Client against Open Mind Servers more than one year after the cause of action has occurred.
Open Mind Servers is not responsible for any delay, malfunction, non performance and/or other degradation of performance of any of the Services, Hardware or Software caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Client whether or not beyond those already supplied.
Neither Open Mind Servers nor anyone else who has been involved in the creation, production or supply of the Services, Hardware or Software shall be liable to the Client or any other person for any loss in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof by reason of or in connection with this Agreement or the Services, Hardware or Software for any: (i) economic loss of any kind whatsoever, or (ii) loss of profit, data, business contracts, revenues or anticipated savings, or (iii) damage to the Client's reputation or goodwill, or (iv) loss resulting from any claim made by any third party, or (v) special, indirect or consequential loss or damage of any nature whatsoever, and the Client shall indemnify Open Mind Servers from and against any claim which may be made against Open Mind Servers in respect thereof. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for consequential or incidental damages and therefore the above may not apply to the Client.