1 DEFINITIONS
"Aethernet" means Aethernet (UK) Limited of 4 Tysoe Street, London, EC1R 4QR United Kingdom and/or any other group member of Aethernet (UK) Limited which shall supply Services to You.
"Agreement" means the agreement between You and Aethernet, comprising these Terms together with any Orders You may make;
“AUP” means Acceptable Use Policy which defines the acceptable terms of usage for your server or Service.
“Co-location” means the service(s) and computing infrastructure (including but not limited to; rack space, power, air conditioning facilities and bandwidth) provided to You by Aethernet.
"Fees" means the fee or fees due for the provision of the Services as set out in any Order or (if not set out) calculated by reference to the then standard Aethernet prices;
“IP Address” the unique address assigned to you by Aethernet used in order to identify and communicate with other devices over the Internet utilising the Internet Protocol, Standard.
"Order" means the sales order form or letter signed by You requesting Services;
"Server" means the computer server equipment including any required Networking equipment operated by Aethernet in connection with the provision of the Services;
"Service" or "Services" means any and all services provided by Aethernet under these Terms including, without limitation, Dedicated Hosting, Managed Hosting, and consultancy services and any other services which may be provided from time to time;
"Standard Price List" means the list(s) of the standard prices for Aethernet (UK) Ltd company products which are available on request
"Terms" means these terms and conditions of business;
“Dedicated Server” means the server(s) provided to You by Aethernet as part of the “Dedicated Hosting” service. The operation and management of the server is entirely your responsibility and You accept and agree to be bound by the terms of Aethernet's AUP.  
“Managed Server” means the server(s) provided to You by Aethernet as part of the “Managed Hosting” service. The Operation and management of the server or service will be as agreed in the Order and Service Level Agreement(s) covering the service(s) and You accept and agree to be bound by the terms of Aethernet's AUP.
“You” means the individual or organisation applying for the provision of the Services.

 

2 APPLICATION OF TERMS
2.1 These Terms apply to any or all Services provided by Aethernet to You from time to time. These Terms are made up of a number of constituent parts, including the Service-Specific Terms governing Aethernet's provision of the relevant Service to You, as well as the General Terms that govern the provision of all such Services.
2.2 These Terms together with any Service Level Agreements(s) represent the entire agreement relating to the Services and supersede any arrangements previously agreed between You and Aethernet. Save in the case of fraudulent misrepresentation or fraudulent concealment, any representation, warranty or undertaking, whether oral or written, (including in any previous correspondence or communication) and any other terms and conditions sought to be imposed by You by your own order forms or otherwise are expressly excluded.
2.3 No change to these Terms, or a subsequent version of these Terms as may be posted on the Aethernet website (www.aethernet.co.uk) from time to time, or any other part of the Agreement, shall be binding unless made with the prior written consent of a Director of Aethernet. Unless Aethernet notifies You to the contrary, no agent of, or person employed by or under contract with Aethernet, has any authority to alter or vary these Terms or the Agreement in any way.
2.4 Aethernet may alter these terms and agreement at any time without notification to You provided that the current Terms are available on Aethernet’s Web site (http://www.aethernet.co.uk/). Your sole remedy in the event that You do not agree to amendments made to the Terms shall be to serve 1 months written notice of contract termination without any right to damages or service credit.

SERVICE-SPECIFIC TERMS AND CONDITIONS

 

3 MANAGED AND DEDICATED SERVER HOSTING AND CO-LOCATION SERVICES
3.1 Services are provided on the basis of an initial and minimum term of 12 months. Thereafter the services will automatically continue until terminated by either You or Aethernet by each party giving to the other 30 days notice in writing. Any such termination or cancellation will be subject to the payment of any outstanding charges.
3.2 Aethernet will invoice You, take regular credit card payment authorised by You or direct debit payments authorised by You monthly in arrears unless otherwise agreed. Purchased servers must be fully paid for before the service will commence. Subsequent monthly invoices will include charges at the rates then in place for co-location, bandwidth, machine(s) rental (if any) and service management (if any).
3.3 You acknowledge that the fee payable for the hosting package you use is based on a set bandwidth allowance. If, in any calendar month, you obtain any bandwidth usage over that basic allocation then Aethernet will charge you its standard over usage charge, which will be invoiced one calendar month in arrears and payable in accordance with clause 5.
3.4 Aethernet’s Service Level Agreement sets out the hosting performance you can expect and your right to credits in the event of non-performance. Our Service Level Agreement can be found on the web site at http://www.aethernet.co.uk/
3.5 In providing services to You Aethernet assigns to You one or more IP Addresses for your use. When the agreement between You and Aethernet is terminated for whatever reason, the IP addresses revert to Aethernet and may be assigned to another customer.

GENERAL TERMS AND CONDITIONS

4 ORDERS
4.2 Each Order for Services by You shall be deemed to be an offer by You to buy the Services from Aethernet subject to these Terms. No Order shall be deemed to be accepted by Aethernet until Aethernet issues a written acknowledgement or (if earlier) the Services are provided.
4.3 Aethernet shall be under no obligation to deliver any Services in addition to those identified in the Order without the prior written consent of a duly authorised representative of Aethernet
4.4 You shall provide to Aethernetat at your cost, any information, resources or facilities reasonably requested by Aethernet for the delivery of the Services and, where necessary, ensure that your employees, contractors and other suppliers co-operate fully and promptly with Aethernet
4.5 Any instructions supplied by You to Aethernet in relation to the Services must be complete, accurate and clearly legible. Aethernet reserves the right to make a charge for any costs and any additional work incurred by Aethernet from any failure by You to comply with this provision and shall not be liable for any errors caused by such failure.
4.6 Aethernet reserves the right to increase prices with thirty (30) days prior written notice should it’s third party costs increase. Upon receipt of such notice you have 14 days in which to cancel your services in writing. 
4.7 No purported cancellation of any Order or part of an Order will be effective unless and until Aethernet gives written acknowledgement of cancellation. Aethernet may, as a condition of such acknowledgement, or otherwise on early termination in accordance with clause 14, impose such reasonable charge for cancellation as it shall consider appropriate including a charge for any costs and for any work incurred by Aethernet at the date cancellation is acknowledged.
4.8 You acknowledge and agree that our services commence upon the sending of our notice of confirmation, pursuant to clause 5.1 above, and that there is no right to cancel the contract between us under the Council Directive 97/7/EC on the protection of consumers in respect of distance contracts or associated local laws.

 

5 PAYMENT
5.1 Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we reserve the right, forthwith and at our sole discretion, to suspend the provision of Services to You. 
5.2 Subject to an increase in third party costs such as Power costs, the Fee for the Services shall be in accordance with the relevant scale of charges and rates detailed on your order form. Aethernet reserves the right to alter the Fees payable for Services at any time and any provision of Services after such time shall be deemed to have been made in acceptance of such new Fees. Subject to clause 4.3 such alterations will not affect any previously accepted Order or quotation given under 4.5 below.
5.3 You acknowledge that increases in third party fees beyond Aethernets control may result in Aethernet increasing it’s fees and You agree to pay the increased fees if higher than those set out in the Order.
5.4 Unless otherwise expressly specified in the Order, all quotations given by Aethernet for Aethernet’s Fees are valid for a period of 30 days only from the date upon which they are given, after which time the quotation shall automatically expire.
5.5 The price of the Services is exclusive of Value Added Tax or its equivalent and all other tax or duty which, if applicable, shall be payable by You in addition at the appropriate rate.
5.6 Aethernet reserves the right to demand payment on account in advance of providing any Services and unless otherwise specified in the Order may invoice in respect of work completed or to be carried out, before, during and after completion of such work as it sees fit.
5.7 Invoices are payable within 30 days of the date of the invoice without deduction or set-off. Unpaid invoices shall attract interest at a rate of 4% above the base rate of Barclays Bank plc per annum without prior notice (such interest being payable both before and after any judgment may be obtained) and Aethernet reserves the right to suspend the Services until payment is made. Time for payment is of the essence.

6 INTELLECTUAL PROPERTY RIGHTS AND OTHER CONSENTS
6.1 Aethernet retains ownership of all intellectual property rights in any information, reports, documents, software or other materials created by Aethernet as part of the Services, including all methodologies, know-how and processes used to do so (together, the "Materials"). Aethernet grants to You a limited licence to store and view the Materials delivered to You on your internal computer network. Unless done so strictly for your internal business use, the Materials may not be otherwise reproduced, transmitted, broadcast or displayed in public without Aethernet's prior written consent. Aethernet is the proprietor of the Aethernet trade mark in the UK and other countries. All other trade marks, product names and company names or logos used in our site are our property of that of their respective owners. No permission is given by us in respect of the use of any such trade marks, get-up, product names, company names, logos or titles and You acknowledge that such use may constitute an infringement of the holder's rights.
6.2 You are solely responsible for obtaining all intellectual property rights clearances and/or other consents and authorisations necessary in respect of the names, marks or other materials which are the object of the Services and You warrant that Aethernet use of such names, marks or materials and any other information, documents or software which You supply to Aethernet under this Agreement (together, the "Objects") shall not infringe any third party's intellectual property rights or be otherwise unlawful or illegal.
6.3 On becoming aware of any dispute between You and any other individual or organisation regarding the Objects, Aethernet reserves the right, at its sole discretion and without notice or liability to You, to cease any further use of such Objects including, without limitation, deleting or suspending them from its computer systems and/or to make appropriate representations or provide information to any relevant authority or interested party.

 

7 LIABILITY
7.1 Whilst Aethernet shall use reasonable skill and care in the delivery of the Services You acknowledge that the delivery of the Services:
(a) is subject to the inherent technical and operational limitations of the Internet, including, but not limited to, the lack of security and unreliability of its communications, the evolving nature of its organisational, legal and regulatory framework, and the potential inaccuracy and variable standards of its relevant data repositories, such as national domain name registries, and is therefore made without guarantee as to accuracy or completeness for which Aethernet shall have no liability to You or any third party;
(b) may, in whole or in part, be prohibited, restricted or otherwise subject to relevant third party contractual provisions, such as the terms and conditions of Internet naming authorities, for which Aethernet shall have no liability to You and You warrant that You shall ensure that You are made aware of, and comply with, such provisions.
7.2 We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server, except to the extent set out in the Service Level Agreement applicable to the Services you have ordered.
7.3 Aethernet shall not be liable for any delay or failure to perform its obligations under this Agreement where such delay or failure is due to circumstances beyond its reasonable control including, without limitation, any act or omission by You or providers of internet connectivity and other events of force majeure. Any time deadlines set out in the Order or otherwise agreed are estimates only.
7.4 All conditions, terms, representations (other than fraudulent representations) and warranties relating to the Services, whether implied by law or otherwise, which are not expressly stated in this Agreement including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are excluded to the fullest extent possible by law.
7.5 Aethernet's total aggregate liability to You for any claim in contract, tort, negligence or otherwise arising out of or in connection with this Agreement and the provision of the Services shall be limited to the price paid by You in respect of the Services which are the subject of any such claim and provided that You notify Aethernet of any such claim within one year of it arising. In no event shall Aethernet be liable to You for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
7.6 Nothing in this Agreement shall limit or exclude Aethernet’s liability for death or personal injury resulting from Aethernet’s negligence or any other liability, the limitation or restriction of which is prohibited by law.
7.7 The Services are provided by Aethernet for your exclusive use. Aethernet does not accept any liability or obligation towards any third party or generally towards any person and the Contract (Rights of Third Parties) Act 1999 shall not apply to the relationship between You and Aethernet.

 

8 INDEMNITY
8.1 You agree to indemnify and keep indemnified and hold Aethernet and our directors, officers, employees and agents and the registry operator for .com, .net and .org domain names (Network Solutions, Inc) on demand harmless from and against any claim brought against Aethernet or them by a third party resulting from the provision of Services by Aethernet to You and/or your use of the Server and/or any domain name registered, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by Aethernet or them in consequence of your breach or non-observance of these terms of business.

 

9 CONFIDENTIALITY AND PUBLICITY
9.1 Both You and Aethernet undertake not to disclose to a third party any confidential information which You or Aethernet receives relating to the contents or performance of this Agreement or the other's business in general, and shall procure that each of its directors and employees shall not do so, except with the prior consent in writing of the other, as required by law, or to the extent to which that information is publicly available or already known to the receiving party at the date of receipt other than through any unauthorised disclosure by any person.
9.2  Without prejudice to clause 10.1, Aethernet shall be entitled to mention your name as a client of Aethernet and the name(s) of products in respect of which Aethernet provides Services on publicity and promotional material on and off-line without your prior consent unless You send notice in writing to Aethernet referencing this clause and requesting no publicity. Any request will only apply to publicity material to be prepared after such notice is given and Aethernet will be under no obligation to cease using material printed or published prior to such notice.

 

10 TERMINATION
10.1 We may terminate this Agreement forthwith if You fail to pay any sums due to Aethernet as  they fall due or if, in our reasonable opinion, You do not have sufficient technical expertise to use the service without excessive ongoing technical support.
10.2 We may terminate this Agreement upon written notice if You breach any of these terms and conditions and You fail to correct the breach within thirty (30) days following written notice from Aethernet specifying the breach, or if You are a company You go into insolvent liquidation, or if You are a person You are declared bankrupt.
10.3 Upon completion of the initial contract Term either party may terminate the agreement by each party giving to the other 30 days notice in writing. Any such termination or cancellation will be subject to the payment of any outstanding charges.
10.4 On termination of the Agreement we shall be entitled immediately to block your Web Site and to remove all data located on it. We will hold such data for a period of 14 days and allow You to collect it at your expense, failing which we shall be entitled to delete all such data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we think fit.

11 NOTICES
11.1 Any notice to be given by either party to the other may be sent by email, fax or recorded delivery to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.

 

12 LAW
12.1  Subject to clause 14.1 above:-
(a) the Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its promotion) shall be governed by and construed in accordance with English law.
(b) each of the parties to this Agreement irrevocably agrees that the courts of England  and Wales shall have exclusive jurisdiction to hear and decide any suit, action or proceedings and/or to settle any disputes which may arise out of or in connection with this Agreement and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of England and Wales.

 

13 ENTIRE AGREEMENT
13.1 These Terms together with any Order and any document expressly referred to in them, contain the entire agreement between You and Aethernet relating to the subject matter covered and, save in the case of fraudulent misrepresentation or fraudulent concealment, supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between You and Aethernet in relation to such matters. We may alter these terms at any time without notification to You provided the current terms are always available on our website. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions.
13.2 You confirm that, in agreeing to these terms and conditions, You have not relied on any representation save insofar as the same has expressly in these terms and conditions been made a representation and You agree that You shall have no remedy in respect of any misrepresentation (other than a fraudulent misrepresentation) which has not become a term of this Agreement.

 

14 MISCELLANEOUS
14.1 If any provision of this Agreement or part thereof shall be void for whatever reason, the offending words shall be deemed deleted and the remaining provisions shall continue in full force and effect.
14.2 Your rights and obligations under this Agreement are personal to You and You undertake that You shall not nor purport to: assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
14.3  Aethernet reserves the right to sub-contract any of the work required to fulfil the Services and to assign this Agreement upon notice to You.
14.4  Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority
14.5  Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
14.6  Clause headings have been included in this Agreement for convenience only and shall not be considered part of, or be used in interpreting, this Agreement.