Globegate
Internet Service Agreement
Globegate Limited is a company incorporated in England & Wales, having an address Dark Lane, Backwell, Bristol, BS48 3NP ("Globegate", "we" or "us"). Globegate provides access to the Internet and related services ("Internet Service"). This Agreement sets out the respective rights and obligations of both Globegate and the subscriber to its Internet Service ("Subscriber" or "you").
1. Overview of Subscriber's Relationship with Globegate
1.1
In consideration of the payment by the Subscriber of the charges in accordance
with this Agreement, Globegate shall allow the Subscriber to use its Internet
Service. Where more than one access to the Internet Service is made by the
Subscriber under this Agreement (by, for example, employees of the Subscriber),
then references to you are deemed to include a reference to those other
accesses and the people who make them.
1.2 You acknowledge and agree: -
1.2.1 that this Agreement comprises the entire agreement
between you and Globegate in relation to its subject-matter, to the exclusion
of all prior understandings, agreements, representations (save for any made
fraudulently) and statements whatsoever;
1.2.2 that you are responsible for obtaining and correctly
storing backup copies of your website.
1.2.3 that Globegate has no responsibility for the performance
or content of Internet Service afforded under this Agreement (including, without
limitation, for the speed with which e-mail is conveyed or access to any Web-site
effected) and that Globegate shall have no liability whatsoever to the Subscriber
or any of the Accounts in relation thereto.
2. Conditions of Use
2.1
The Subscriber shall not use Internet Service (and shall ensure that Internet
Service is not used):
2.1.1 to send, receive, make available, copy, retransmit,
broadcast or publish (whether directly or indirectly, and whether in cached,
mirrored or proxy form or otherwise) any statements or material which, in any
territory in which they are (or may be) accessed or made available, are likely
to: (a) infringe any intellectual property right or other right of any person
or entity (including, without limitation, rights in any domain name), (b)
breach any law or regulation whatsoever, (c) be regarded as offensive, abusive,
indecent, obscene, or menacing or which may encourage anything which is in any
way unlawful, or to promote or facilitate prostitution, or (d) cause annoyance,
inconvenience, or needless anxiety;
2.1.2 other than in conformance with Internet-related
standards;
2.1.3 in a manner which occupies communications capacity or bandwidth
frivolously, veraciously or in a manner which is intended to or may inhibit any
other person's use thereof (including, without limitation, by use of facilities
intended to substantially fill the communications capacity of leased lines,
such as TCP Sprayers and Flood Ping); Globegate will not be liable for the loss
of emails.
2.1.4 in connection with the sending or retransmission of any junk e-mail or
'Spam' (unsolicited e-mail, sent in bulk).
2.1.5 to ensure that any transmitted emails are kept to a
minimum size to avoid mail server bottlenecks.
2.2
The Subscriber undertakes:
2.2.1 to use its best endeavours to remove or prevent
access to any statements or material which causes or is likely to any breach of
Clause 2.1, as soon as is reasonably possible (and in any event, within 24
hours) following notification by Globegate or any appropriate government,
judicial or regulatory body.
2.2.2 to allow and assist Globegate in the removal or prevention of access to
any such statements or material, irrespective of whether or not such removal or
prevention of access involves impairment to Internet Service.
2.2.3 to indemnify and keep Globegate free from and indemnified against all
claims, proceedings, demands, liabilities, costs and expenses whatsoever
arising out of, brought or threatened against Globegate by any person or entity
in connection with (a) any breach of Clause 2.1 or 2.2; or (b) your use of
Internet Service or transmission or accessing of any content or services made
available through or by means of Internet Service.
3. Charges
3.1
The Subscriber shall pay all charges due to Globegate in both the amount and in
the manner set out at the Globegate Charges page of Globegate web site at http://www.globegate.com/costs.htm("Globegate
Internet Charges"). In the event of any failure to pay Charges, Globegate
shall be entitled to suspend your Internet Service, in whole or in part (in
Globegates discretion) from the date when payment was due. Charges are paid in
advance and are non-refundable, except in limited circumstances where you
properly terminate this Agreement under Clause 5.1 of this Agreement and
Globegate is the "Defaulting Party".
3.2 Any outstanding charges must be paid at the cessation of your account and
you agree that Globegate will retain control of any or domain names associated
with the account until any such payments have been received, except in limited
circumstances where this Agreement is properly terminated by you under Clause
5.1 of this Agreement and Globegate is the "Defaulting Party".
3.3 Globegate shall be entitled to vary the Charges by notice given no less
than 30 days notice prior to the end of any annual or monthly period (as the
case may be) for which you pay Charges. Such notice will be given [by e-mail
sent to the e-mail address which you first register during sign-up for the
Internet Service. In the event that you do not agree to any such variation
by Globegate, you shall be entitled to terminate this Agreement upon written
notice to Globegate. Globegate shall incur no liability whatsoever to the
Subscriber or any third party in respect of any termination of this Agreement.
4. GLOBEGATE's Liability
4.1
Nothing in this Agreement shall limit either party's liability to the other for
death or personal injury caused by its negligence or that of its employees.
4.2
Except for Globegates liability to the Subscriber under Clause
4.3
(to which no limit applies), Globegates liability arising under or in
connection with this Agreement (whether such liability arises from negligence,
breach of contract or howsoever) shall be in damages only, and during each
calendar year commencing with the date when you first receive Internet service
under this Agreement or any anniversary of such date, shall not exceed in
aggregate the total amount of the Charges paid or payable by the Subscriber
pursuant to Clause 3 of this Agreement in such calendar year.
4.4
Notwithstanding Clause 4.2, in no event will Globegate be liable to the
Subscriber or any other person for or in respect of any indirect or
consequential loss or damage, or for any loss of data, profit, revenue,
contracts or business, howsoever caused (whether arising out of any breach of
this Agreement, any negligence of Globegate or any other person or otherwise),
even if the same was foreseeable by, or the possibility thereof is or has been
brought to the attention of, Globegate advises the Subscriber to obtain
suitable insurance against any business risks associated with use of Internet
Service.
4.5
The Subscriber's use of Internet Service (and that of any other person or
entity) is at the Subscriber's (and such person's or entity's) sole risk. In no
event shall Globegate be liable for any losses or damages suffered or incurred
by the Subscriber as a result of such access or use or as a result of any
commercial reliance placed by the Subscriber on Internet Service.
4.6
The Internet is inherently insecure, and the Subscriber acknowledges that it
must make its own arrangements for the security (through, for example,
encryption) of messages it sends or receives.
4.7
from time to time Globegate will need to implement periodic maintenance this
will carried out where possible outside normal office hours. Notice of intent
will be sent via email to your appointed representative
4.8
Globegate will not guarantee any period of up time. Due to the inherent nature
of how the Internet works many conditions that are contributed to downtime
are out of the control of Globegate.
5. Termination
5.1
Either party to this Agreement ("the Aggrieved Party") shall be
entitled forthwith to terminate this Agreement by written notice to the other
party ("the Defaulting Party") if: -
5.1.1 the Defaulting Party commits any breach of any of
the provisions of this Agreement and fails to remedy the same within 30 days
after receipt from the Aggrieved Party of a written notice giving particulars
of the breach and requiring it to be remedied;
5.1.2 an encumbrance takes possession of, or a receiver is appointed over, any
of the property or assets of the Defaulting Party;
5.1.3 the Defaulting Party makes any voluntary arrangement with, or any
assignment in favour of, its creditors or becomes subject to an administration
order;
5.1.4 the Defaulting Party goes into liquidation or is declared insolvent;
5.1.5 a Court makes any composition in satisfaction of the debts of, or a
scheme of arrangement of the affairs of, the Defaulting Party;
5.1.6 any event analogous to any of the foregoing under the law of any
jurisdiction occurs in relation to the Defaulting Party; or
5.1.7 the Defaulting Party ceases, or threatens to cease, to carry on business.
5.2
The rights to terminate this Agreement under this Clause 7 shall be without
prejudice to any other right or remedy of either party arising under this
Agreement.
5.3 Notwithstanding the expiration or the determination of this Agreement
under any of its provisions, this Clause 7 and all the provisions of this
Agreement which are expressed to have effect on, or at any time after, the
expiration or determination of this Agreement shall survive such expiration
or determination, and each of the parties to this Agreement shall perform
and observe their respective obligations and discharge their respective liabilities
under all such provisions of this Agreement.
6. Consequences of Termination
6.1
Upon the termination of this Agreement for any reason, Globegate shall
forthwith cease to provide Internet Service, and the Subscriber shall cease to
use any software provided by Globegate that facilitates or assist such Internet
Service.
6.2 The Subscriber shall upon written demand pay to Globegate all costs, expenses
and disbursements incurred by Globegate as a result of the termination of
this Agreement, save where such termination is properly made under Clause
5.1 and Globegate is the Defaulting Party.
7. Assignment
7.1
Globegate shall be entitled to assign this Agreement or any of its obligations,
rights and benefits under this Agreement to any other entity.
7.2 The Subscriber shall not be entitled to assign this Agreement or any of
its rights and obligations under this Agreement to any other person or entity
without first obtaining the written consent of Globegate thereto.
8. Subscriber Representative
Globegate
may require you to establish a specific Subscriber Representative who shall
act as the principal point of contact for Globegate in connection with this
Agreement. You will be entitled to change the Subscriber Representative by
giving notice to Globegate. The Subscriber agrees irrevocably to be bound
by all acts and omissions of the Subscriber Representative.
9. Notices
9.1
All notices given under this Agreement shall be given in writing, and will have
been given (i) in the case of notice sent by fax, on the next following
business day after the day of successful transmission (where proof of such
successful transmission is retained), provided that confirmation of such notice
is sent by first class post to the party to be notified; (ii) in the case of
notice sent by first class post, 5 business days after the date of posting
(provided proof of posting in accordance with this Agreement is retained); and
(iii) by electronic mail sent by means of Internet Service provided under this
Agreement one business day following the proven delivery of such mail to its
intended recipient.
9.2 Notices given by Globegate shall be sent to your Subscriber Representative
(if any) or to you at the contact address, fax or e-mail addresses specified
during registration for the Internet Service (as amended by notice given to
Globegate under this Agreement), and notices given by the Subscriber must be
sent to the contact address, fax or e-mail address then specified at the
Globegate Terms page at http://www.globegate.com/contact-tech.htm
10. Force Majeure
Globegate
shall not be responsible or liable for any failure or delay in performance
of its obligations under this Agreement caused by matters beyond its reasonable
control.
11. No Waiver
If you
or Globegate fail to exercise any right or remedy under this Agreement, that
failure won't operate as a waiver of that right or remedy, or prevent it from
being exercised subsequently.
12. Governing Law and Jurisdiction
English
law shall govern this agreement. The parties hereby submit to the non-exclusive
jurisdiction of the English Courts.