Service Agreement

This Agreement (“Agreement”) is between Havenswift Hosting and the person (individual or legal person) who signs Havenswift Hosting’s order form (“Order”) incorporating this Agreement by reference (“Customer”).

This Agreement governs Customer’s use of Havenswift Hosting’s Web Hosting and/or related services.

1. Services

Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Havenswift Hosting’s credit approval requirements, Havenswift Hosting agrees to provide Customer with web hosting and / or related services selected by Customer from Havenswift Hosting’s then published list of services (“Services”) and as described in the Order, for the fees stated in the Order.

The Services to be provided initially to Customer shall be as selected in the Order and thereafter as established through correspondence between Customer and Havenswift Hosting.

2. Term

The initial term of the Agreement shall begin on the date that Havenswift Hosting generates an order confirmation e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the number of months or years stated in the Order (the “Initial Term”).

However, no service shall commence unless and until Havenswift Hosting receives and accepts a completed Order from Customer, plus payment in full for Services to be rendered during the Initial Term and any set up charges.

Havenswift Hosting reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by Havenswift Hosting.

Upon expiration of the Initial Term, this Agreement shall automatically renew for successive terms of the same length as the Initial Term (“Renewal Term”) unless Havenswift Hosting or Customer provides the other with written notice of non-renewal at least fourteen (14) days prior to the expiration of the Initial Term or then current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”

3. Payments

Fees

All fees for Services rendered or provided to Customer shall be in accordance with Havenswift Hosting’s prices.

Customer’s billing cycle shall be monthly, quarterly, annually or biennially as indicated on the Order, beginning on the Service Commencement Date. Havenswift Hosting may require payment for the first billing cycle before beginning service. Fees for the Renewal Term are payable seven (7) days in advance of each billing cycle.

If the Order provides for credit / debit card billing, Customer authorises Havenswift Hosting to bill subsequent fees to the credit / debit card before, on or after the first day of each successive billing cycle during the Term of this Agreement otherwise Havenswift Hosting will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order.

Payments must be made in Great British Pounds or by prior arrange, payment in Euros is also possible. Customer is responsible for providing Havenswift Hosting with changes to billing information (such as credit card expiration, change in billing address).

Payment in full of such invoiced amount is due upon receipt of the invoice. Should payment in full of any invoice not be received, Havenswift Hosting may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. In addition Havenswift Hosting may terminate this Agreement and / or suspend Services without notice if payment for Services is overdue.

Fees not disputed within thirty (30) days of due date are conclusively deemed accurate. Customer agrees to pay Havenswift Hosting’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Havenswift Hosting’s reasonable costs of collection of overdue amounts, including collection agency fees, legal fees and court costs.

Fee Increases

Havenswift Hosting may amend the Services and / or the fees it charges for Services by giving at least fourteen (14) days notice to Customer, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee and for any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).

Taxes

At Havenswift Hosting’s request Customer shall remit to Havenswift Hosting all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Havenswift Hosting) regardless of whether Havenswift Hosting fails to collect the tax at the time the related services are provided.

Early Termination

Customer acknowledges that the amount of the fee for Services is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Havenswift Hosting terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Havenswift Hosting’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due seven (7) business days following termination of the Agreement.

4. Law / AUP

Customer agrees to use the services in compliance with applicable law and Havenswift Hosting’s Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement.

Customer agrees that Havenswift Hosting may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services.

Amendments to the AUP are effective on the earlier of Havenswift Hosting’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment.

Customer agrees to cooperate with Havenswift Hosting’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Havenswift Hosting and Customer regarding the interpretation of the AUP, Havenswift Hosting’s commercially reasonable interpretation of the AUP shall govern.

5. Customer Information

Customer represents and warrants to Havenswift Hosting that the information he, she or it has provided and will provide to Havenswift Hosting for purposes of establishing and maintaining the service is accurate.

If Customer is an individual, Customer represents and warrants to Havenswift Hosting that he or she is at least 18 years of age, and Havenswift Hosting reserves the right to ask for proof of age (in the form of a valid passport or photo driving licence) and to carry out checks to verify the information provided.

Havenswift Hosting may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.

6. Indemnification

Customer agrees to indemnify and hold harmless Havenswift Hosting, Havenswift Hosting’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.

7. Disclaimer of Warranties

CUSTOMER AGREES TO USE ALL HAVENSWIFT HOSTING’S SERVICES AND ANY INFORMATION OBTAINED THROUGH OR FROM HAVENSWIFT HOSTING AT CUSTOMER’S OWN RISK.

HAVENSWIFT HOSTING DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW HAVENSWIFT HOSTING DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.

8. Limitation of Damages

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF HAVENSWIFT HOSTING AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

9. Suspension / Termination

Suspension of Service

Customer agrees that Havenswift Hosting may suspend services to Customer without notice and without liability if: (i) Havenswift Hosting reasonably believes that the services are being used in violation of any Terms and Conditions or the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Havenswift Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Havenswift Hosting’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

Havenswift Hosting operate a Banned Services Policy in the instance of a chargeback or misuse of a Havenswift Hosting product or service.

If a customer requests a chargeback on a Havenswift Hosting Web Hosting package, E-commerce package or Dedicated Server the service will be cancelled and customers will no longer have access to control panels and any associated websites will be taken down.

If a customer requests a chargeback on a Havenswift Hosting registered Domain Name, the Domain Name will be banned and customers will no longer have access to control panels and any associated websites will be taken down.

To release a banned Domain Name a customer must pay a £60 inc. VAT release fee.

Termination

The Agreement may be terminated by either party, without cause, by giving the other party fourteen (14) days prior written notice.

The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Havenswift Hosting fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail.

The Agreement may be terminated by Havenswift Hosting prior to the expiration of the Initial Term or any Renewal Term without liability as follows:

  1. without notice if Customer is overdue on the payment of any amount due under the Agreement;
  2. if Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within ten (10) days of a written notice from Havenswift Hosting describing the violation in reasonable detail;
  3. without notice if Customer’s service is used in violation of a material term of the AUP more than once, or
  4. upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement.

Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

10. Requests for Customer Information

Customer agrees that Havenswift Hosting may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that Havenswift Hosting believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

11. Back Up Copy

Customer agrees to maintain a current copy of all content hosted by Havenswift Hosting notwithstanding any agreement by Havenswift Hosting to provide back up services.

12. Changes to Havenswift Hosting’s Network

Upgrades and other changes in Havenswift Hosting’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. Havenswift Hosting reserves the right to change its network in its commercially reasonable discretion, and Havenswift Hosting shall not be liable for any resulting harm to Customer.

13. Notices

Notices to Havenswift Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on www.havenswift-hosting.co.uk. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

14. Force Majeure

Havenswift Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Havenswift Hosting’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, theft, destruction, terrorist activity, acts of God or other events of a magnitude or type for which precautions are not generally taken in the industry.

15. Governing Law

The Agreement shall be governed by the laws of England and all claims concerning this Agreement shall be brought exclusively in English courts located in England. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defences concerning said forum. The Customer is deemed to have agreed to this Agreement, when commencing use of any of Havenswift Hosting’s services.

16. Miscellaneous

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer / employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority.

Havenswift Hosting reserves the right to amend this Agreement and the AUP and Customer shall be bound by any such amendments. Customer shall have the obligation to periodically visits Havenswift Hosting’s website www.havenswift-hosting.co.uk to review the AUP and make certain Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern.

The terms on Customer’s purchase order or other business forms are not binding on Havenswift Hosting unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.

The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.

There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Havenswift Hosting’s prior written consent. Havenswift Hosting’s approval for assignment is contingent on the assignee meeting Havenswift Hosting’s credit approval criteria. Havenswift Hosting may assign the Agreement in whole or in part.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.

The Customer is deemed to have agreed to this Agreement when commencing use of any of Havenswift Hosting’s Services.

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