Terms and Conditions
This document published by 5wire Networks Limited details the Terms and Conditions for unmanaged servers from 5wire Networks Limited. The latest version can be obtained by sending an email to email@example.com an electronic a hard copy.
This Agreement (“Agreement”) is between 5wire Networks Limited and the customers of our servers and related services.
Definitions in this Agreement
- “5wire Networks”, “the company”, “us” or “we” means 5wire Networks Limited, a registered company in England and Wales with registration number 9105675;
- “You” and “your” means you, the person entering into this agreement with 5wire Networks Limited;
- “Charges” means any or all charges to you, whether for Internet Bandwidth, equipment rental, space rental and/or Customer Support and any other services or goods you wish to acquire from us;
- “Customer Support” means supported provided by the 5wire Networks Limited Staff and authorised agents on behalf of 5wire Networks Limited;
- “the Internet” means the global data network comprising of interconnected networks using TCP/IP;
- “Service” means the service provided by 5wire Networks Limited whereby we host a dedicated machine for you in our Data Centre and provide it with access to the Internet and, where applicable, any services and facilities provided by 5wire Networks Limited for you in connection with the Service;
- “Equipment” means any computer hardware including systems, components and cables supplied, leased or rented to you by 5wire Networks Limited;
- “Sites” means any web sites associated with 5wire Networks Limited or the Service;
- “Data Protection Legislation” means, for such time as they are in force in England and Wales, the Data Protection Act 1998, the GDPR and all related legislation which may supplement, amend, implement or replace them and which relates to the protection of individual’s rights in their personal data and the protection of their privacy; and
- “GDPR” means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales.
- Conditions of Use
- Your access to the Service is subject at all times to our right to terminate under the provisions of clause 7 below;
- 5wire Networks Limited will under no circumstances be liable for any loss of data or consequential losses incurred due to a connectivity or systems failure.
- 5wire Networks Limited utilises MaxMind to screen new orders for previous fraudulent activity and report existing clients who violate our Terms of Service. In case of a violation, you may be reported to MaxMind for misbehaviour using non-identifiable anonymous information.
- The Service
Any suggested date of connection or commencement of any Service provided by us is not binding upon us and we give no undertaking whatsoever that we will connect the Equipment or enable any Service on, or by, a certain date and/or time, and we will not be liable to you for any delay in connecting the Equipment or Service. We are not obliged to connect equipment or commence service if:
- You do not qualify under the current credit policy 5wire Networks has in place; or
- You are prohibited from being a Customer due to prior abuse of our Services.
In either of these events, this Agreement will be terminated, and you will not be liable for any payments due under this Agreement. We will refund without delay any currency paid in advance to us by you relating to this Agreement.
- Your Obligations
- Be responsible for the configuration of your server;
- Ensure that your server software is kept up to date and all relevant security patches are installed;
- Ensure any change in license usage is reported;
- Pay the monthly charges in advance;
- Pay for bandwidth used over and above the level detailed in your Internet Service Agreement. Bandwidth will be charged at the rate shown on your Internet Service Agreement, or at our advertised rate if no prior rate has been agreed;
- Rectify without delay any malfunction or other problem with any Equipment that we host for you upon notification from a member of 5wire Networks Limited Staff or 5wire Networks Limited authorised agents. If you are unable to correct the problem within 12 hours you agree that 5wire Networks Limited may suspend the Service, or may charge for an Engineer to repair the Equipment at our standard advertised rate.
- At all times comply with Data Protection Legislation, including without limitation the obligations set out in the Data Protection Schedule.
You will not:
- Use our Service to commit or encourage a criminal offence;
- Use our Service to store, send proactively, receive, upload, download, use or re-use any information or material which we believe may be offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of confidence, copyright, privacy or any other rights;
- Use our Service to insert or knowingly or recklessly transmit or distribute a virus or worm;
- Use our Service to send or provide any unsolicited advertising or other promotional material, commonly referred to as “spam” by electronic mail or by any other electronic means;
- Use our Service to send electronic mail or any other type of electronic message with intention or result of affecting the performance or functionality of any computer facilities;
- Employ a misleading electronic mail address or name or falsify information in the header, footer, return path or any part of any communication, including without limitation any electronic mail transmitted through our Service;
- Use any IP (Internet Protocol) addresses which are not assigned to you by us for use with our Service;
- Hack, or gain access by unauthorised means to any aspect or system of our Service;
- Circumvent, or attempt to seek to circumvent, any of our security safeguards or monitoring systems;
- Knowingly corrupt data;
- Use our Service to cause annoyance, inconvenience or needless anxiety to any third party person or organisation;
- Hold us or any of our third party contractors liable in relation to accuracy, reliability, availability and performance of resources accessed through the Internet which, you acknowledge, are beyond their control and are not in any way warranted or supported by us or our third party contractors;
- Use our Service in a way that does not comply with the terms of any legislation or any license applicable to you or what that is in any way unlawful, immoral or unethical by definition of 5wire Networks Limited;
- Permit any third party to do any of the above.
4. Obligations of 5wire Networks Limited
- From time to time schedule maintenance periods where communication may be lost or your server restarted. Wherever possible we will provide advanced notification of such planned work by electronic mail;
- Make every effort to fix any problem that arises in our systems causing outage in the least possible time;
- Replace any part of your server that fails whilst the server is hosted in our data centre; provided that all due charges have been paid and the failure was not due to negligence on your behalf or the misuse of the hardware by you or any third party.
- Comply at all times with Data Protection Legislation, and the obligations set out in the Data Protection Schedule.
We will not:
- Change or maintain any aspect of your system configuration without an explicit request from you, the account holder;
- Keep password lists, hidden accounts, backdoors or any other means of accessing your server. We may be able to reset your primary password if you lose it, but we reserve the right to charge a fee for this service. Any such fee will be agreed by advance of any work;
- Provide physical access to the customer owned hardware in the Data Centre whilst it is in the racks. If required, we will remove the hardware and give you access to it in a system build room. We reserve the right to make a charge for this service;
- Backup any data or configuration of any machine that we host for you. It is your responsibility to provide adequate protection for your data in the event of any loss, event if the loss is caused by the actions of an employee of 5wire Networks Limited or one of our agents;
For any and all cheques payable to 5wire Networks Limited you will:
- Pay with cash, cheque, or bank transfer within 14 days of the date of the invoice;
- Ensure that there are sufficient funds available in your account to pay for services charged by 5wire Networks Limited to you;
- Refund to 5wire Networks Limited the cost of collecting outstanding payments owed or charges incurred due to failed or referred transaction(s) including but not limited to stopped payments and bounced cheques.
5wire Networks Limited:
- will not issue paper business invoices but we will provide invoices by electronic mail to the e-mail address that you register with us;
- Reserves the right to increase or decrease fees. Details of any changes in our fees will be communicated to you at least 1 month in advance post by electronic mail. Your right to cancel the Service shall apply, as set out in clause 6;
- May exercise its statutory right to interest under the Late Payment of Commercial Debts (Interest) Act 1998 for any invoices that are not paid by their due date.
6. Minimum Term, Cancellations and Refunds
Please be advised that once you use the Service in any way, unless agreed in writing otherwise, you will not have the right under Regulation 10 of the Consumer Protection (Distance Selling) Regulations 2000 to cancel this Agreement within 7 days of entering into it as if the Agreement has not been made.
This Agreement has a minimum period (“initial term”) of 12 (“twelve”) months. During this initial period you may not cancel this Agreement without paying all fees due for the period, regardless of whether invoices for these charges have been raised or not. Any account cancellation after the initial term must be notified (“Notification”) to 5wire Networks Limited by telephone on the normal customer support telephone number, or, by electronic mail to firstname.lastname@example.org, or by submitting a cancellation request via our billing system.
You acknowledge that cancellation of your account shall only be valid if notified to 5wire Networks Limited in accordance with above provisions. Any and all cancellations of accounts shall be effective after a period of 30 (“thirty”) days from the first working day on which 5wire Networks Limited receives the Notification (“Effective Date of Cancellation”). 5wire Networks Limited will notify you by electronic mail of this date once your request has been processed.
Effect of Account Cancellation determines that you are responsible for all Charges relating to your account up until the Effective Date of Cancellation and the Initial Term. Any data, configuration and DNS entries will be deleted and we regret to inform you that this data will be unable to retrieve. 5wire Networks Limited will reimburse you for any day’s service which have been paid for but are no longer required. This is calculated as the time period between the Effective Date of Cancellation and your next billing date, provided that the account is not in arrears.
5wire Networks Limited may terminate this agreement and the Service or may suspend all or a part of the Service by immediate notice if:
- You are in breach of any of the terms of this Agreement;
- You become or are deemed insolvent, have a receiver, manager, administrator or administrative receiver appointed in respect of the whole or any part of your assets or business, make any composition or arrangement with its creditors, or take or suffer any similar action in consequence of debt, or an order or resolution is made for your dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction).
5wire Networks Limited may otherwise terminate this Agreement without notice if it deems, in its sole discretion, such termination necessary, provided that 5wire Networks Limited will reimburse you upon such termination of account, for any day’s service that you have already paid for in advance but cannot use. This is calculated as the number of days between the date of termination of the service and your next billing date, provided that the account is not already in arrears. Where data has been deleted or barred, we will not store or reserve either your data or your DNS names.
Upon termination, any data held on equipment provided by 5wire Networks Limited will be deleted and regret to inform you, that this data will not be retrievable once this has taken place.
- Service Level
5wire Networks Limited makes certain commitments as to the level of service that will be provided to you in connection with your account. In the event that, for any reason, 5wire Networks Limited is not able to meet those terms of the service level guarantee our liability shall be limited to the total amount of fees prepaid by you, excluding any setup fees paid.
- No Warranty
5wire Networks Limited is providing the Service on an “as is” basis and makes no representations or warranties of any kind with respect to the reliability of the Service of fitness for a particular purpose and disclaims such representations and warranties. We will not be responsible for any damages your business may suffer, including data loss, due to any shortcomings or failures of the Service, or errors caused by 5wire Networks Limited or it’s employees. Subject to clause 10.I below, 5wire Networks Limited’s maximum aggregate liability under this agreement whether arising from negligence, breach of contract or otherwise shall be limited in respect of one incident or series of two or more related incidents to an amount equal to the cover provided to 5wire Networks Limited under its policies of insurance. The cover provided by our policies of insurance shall not be less than £5million for public liability claims and £10million for employer’s liability claims. 5wire Networks Limited is not liable to you either in contract, tort (including negligence) or otherwise for the acts or omissions of other services (including domain name registration authorities) or for faults or failures in their equipment. 5wire Networks Limited reserves the rights to revise its policies at any time.
- You acknowledge that you are solely responsible for the use to which you put the Service, and all information, data and results you obtain from using it and that all warranties, conditions, undertakings, representations and terms whether expressed or implied, statutory or otherwise are hereby excluded to the fullest extent permitted by law.
- 5wire Networks Limited hereby disclaim and exclude to the fullest extent permitted by law all liability for any loss or damage whatsoever and howsoever incurred including any consequential, special, secondary or indirect loss or damage or any damage to goodwill or profits or any loss of anticipated savings incurred by you, whether arising in tort, contract, equity or otherwise, and arising out of or in relation to or in connection with your access to or use of or inability to use the Sites, the Service or any software or content supplied to you in connection with the Service, or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure even if 5wire Networks Limited or its employees or agents are advised of the possibility of such damages, losses or expenses.
- You will indemnify and hold harmless 5wire Networks Limited from and against all losses, liabilities, damages, costs, reasonable expenses, actions and claims suffered or incurred by 5wire Networks Limited and/or it’s employees and/or authorized agents arising out of or in connection with any breach by you of these Terms and Conditions.
If any part of our Terms and Conditions is unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of these conditions will not be affected. 5wire Networks Limited shall endeavour to replace any invalid or unenforceable provisions in such a way that the new clause shall differ as little as possible from the scope and intended purpose of the invalid or unenforceable provisions taking into account the object and purpose of this Agreement.
- Governing Law
These terms and conditions shall be governed by and interpreted in accordance with English law and the courts of England and Wales shall have jurisdiction to resolve any disputes between us.
Notices (if any) given under this agreement shall be delivered by hand or sent by prepaid first class post or electronic mail in the case of either party. Electronic mail shall be deemed to be delivered when it is sent.
- Entire Agreement
These terms and conditions along with the Internet Service Agreement and the Data Protection Schedule set out the whole of our Agreement relating to our supply of the Service. They cannot be varied except in writing by a director of 5wire Networks Limited. In particular nothing said by any sales person on behalf of 5wire Networks Limited should be understood as a variation of these Terms and Conditions or an authorized representation about the Service or the nature and quality of items displayed thereon. 5wire Networks Limited shall have no liability for any such representation being untrue or misleading.
DATA PROTECTION SCHEDULE
- Data Protection
For the purpose of this Schedule, in addition to the definitions set out in the main body of this Agreement, the following terms shall have the following meanings:
- Data Controller: shall have the meaning of ‘data controller’ set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(7) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK.
- Data Processor: shall have the meaning of ‘data processor’ set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning of ‘processor’ set out in Article 4(8) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK.
- Data Subject: an individual who is the subject of Personal Data.
- DPA: means the Data Protection Act 1998.
- Personal Data: has the meaning set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
- Processing and Process: have the meaning set out in section 1(1) of the DPA.
2. Processor’s obligations
You agree with 5wire Networks that for the Purposes of Data Protection Legislation that You shall be the Data Controller and 5wire Networks shall be the Data Processor in respect of any Personal Data which is transferred from You to 5wire Networks under the terms of this Agreement.
As a Data Processor 5wire Networks shall Process the Personal Data only to the extent necessary to perform its obligations pursuant to this Agreement and/or in accordance with your instructions from time to time, and shall not Process the Personal Data for any purpose other than enabling it to fulfil its obligations pursuant to this Agreement or to perform any other activity which may be authorised by You from time to time.
Where a party is a Data Processor pursuant to this Agreement it shall take steps to ensure that its employees or agents are informed of their obligations in relation to Personal Data and that it collects, transfers or holds.
3. Data Protection Warranties
Each party to this Agreement warrants to the other that it will Process the other’s Personal Data in compliance with all applicable Data Protection Legislation.
Where a party to this Agreement becomes a Data Processor pursuant to it, it warrants that in relation to the Personal Data in respect of which it is a Data Processor that:
- having regard to the reasonably available state of the art of technological development, the nature of the Processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, the Data Processor shall take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful Processing and against the accidental loss or destruction;
- it will not transfer any Personal Data outside of the European Economic Area without the prior authorisation of the Data Controller or as is necessary for the performance of its obligations hereunder;
- it will assist the Data Controller, insofar as reasonably possible, in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subject’s rights under the GDPR, subject to the Data Controller reimbursing it for the cost of the same;
- it will report to the Data Controller any suspected data breach concerning the Personal Data which comes to its attention and shall provide reasonable assistance to the Data Controller in informing the relevant regulator and/or affected Data Subjects, subject always to the Data Controller reimbursing it for the cost of the same; and
- it will, on request, take reasonable steps to demonstrate to the Data Controller, to the extent that is reasonable given the nature of the Processing in question, that it complies with Data Protection Legislation.
- Each party to this Agreement agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations pursuant to sections 2 and 3 of this Schedule. In order to avail itself of this indemnity the claiming party must: promptly notify the indemnifier of any relevant claim of which the indemnified party becomes aware; not make any admission of liability or offer to settle in respect of any relevant claim without the prior written permission of the indemnifier; grant the indemnifier full control of all relevant proceedings on request, and; provide the indemnifier with such assistance in dealing with such claims as it may reasonably request.
- The parties acknowledge that to the extent that either party is a Data Processor pursuant to this Agreement it will be reliant on the other, the Data Controller, for direction as to the extent to which the Data Processor is entitled to use and Process the relevant Personal Data. Consequently, the Data Processor will not be liable to the Data Controller for any loss or damage which arises from any claim brought by a Data Subject or any fine levied by any relevant regulatory authority which results from any action or omission by the Data Processor, to the extent that such action or omission resulted directly from the Data Controller’s instructions.