Our legal information & notices.Last Update: 18/06/2019
In this agreement, unless the context requires otherwise, the following words shall have the following meanings:
- ‘Abuse Complaint’ is a complaint, either by Netwise 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 Netwise;
- ‘Build Room’ means the facilities provided by Netwise, subject to availability, for the Client to perform physical maintenance on their equipment;
- ‘Client’ refers to You, the Customer;
- ‘Engineer’ is defined as a Netwise member of staff with competence in repairing or replacing the Hardware;
- ‘Hardware’ means the servers, firewalls, equipment, cabling and systems provided by Netwise 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 Netwise Network;
- ‘Netwise’ refers to Us, the Company;
- ‘Netwise Network’ refers to Netwise's routers, switches, cabling and other network equipment located in the UK responsible for connecting servers hosted by Netwise to the outside world;
- ‘Network Availability’ is defined as the percentage of time the Netwise Network is contactable over a calendar month;
- ‘Network Unavailable Time’ is when a portion or the entirety of the Netwise 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 Service Level Agreement;
- ‘Notified Maintenance’ means essential maintenance to be carried out by Netwise 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 Netwise 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 Netwise Network and Packet Loss within the Netwise Network;
- ‘Response Time’ is defined as the time from the Client making a Support Call to an Engineer commencing work on the Services;
- ‘Service Information Contract’ 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 Service Information Contract made hereunder and which are supplied or to be supplied by Netwise 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 Netwise in connection with the Services;
- ‘Support Call’ is defined as a telephone call by the Client to Netwise's telephone number, published on www.netwisehosting.co.uk;
- ‘Us, We, Our, Company’ refers to Netwise;
- ‘You, Your, Customer’ refers to the Client.
The Services shall be as described in this Agreement and any associated Service Information Contracts. All Service Information Contracts shall be deemed to be an offer from the Client and shall only be deemed accepted by Netwise when counter-signed by an authorised representative of Netwise. In the event of any conflict between any provision in this Agreement and those in the Service Information Contract then the provision in the Service Information Contract 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.
Netwise 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. Netwise shall endeavour to give the Client reasonable notice of such modifications but this may not always be possible and Netwise shall not be liable to the Client or to any third party for any such modification or any failure to give such notice.
Netwise reserves the right at its sole discretion to suspend the services temporarily on the occurrence of any of the following: (i) Notified Maintenance; (ii) the Bandwidth used by the Client in relation to the Services exceeds the agreed level and Netwise determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by Netwise from time to time. Further to that, Netwise reserves the right at its sole discretion to suspend the Services permanently on the occurrence of any of the following: (i) issue by any competent authority of an order which is binding on Netwise and which affects the Services and which can only be dealt with properly by suspension of the services; (ii) if the Client fails to pay any amounts due under this Agreement when they are due; (iii) if any events occur which entitle Netwise to terminate this Agreement exclusively limited to the seven (7) points in the "Duration and Termination" section of this Agreement.
It is The Client's responsibility to keep the server files up to date. 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, Netwise 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. Netwise 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.
Netwise 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 Service Information Contract 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 Netwise is entitled, Netwise 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 Netwise.
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 Netwise 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 Netwise provides the Client with the access details of the Services.
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 Netwise 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 Netwise. 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 Netwise 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 £50 per 30 minutes, or part thereof. For any work that will take more than two hours Netwise will seek prior authorisation from the Client by telephone, email, fax, or post.
Delivery and collection of colocated equipment
The Client accepts full responsibility for the delivery and collection of their equipment to the data centre, and shall ensure that it reaches Netwise in working condition. Netwise do not accept any liability for any loss or damage caused in transit to and from the data centre. When the server is delivered, the packaging it is delivered in will be disposed of. If the Client wishes the packaging to be stored, they must explicitly inform Netwise by writing in advance, and this will be charged at a standard rate of £10 per week, or part thereof.
The Client shall not be entitled to collect their server for maintenance or otherwise unless all unpaid fees for the Services are paid in full prior to such collection.
Where the Services are terminated, Netwise will store the Client's equipment without charge for 7 days but recommend it is collected as soon as practicable. If the equipment is stored beyond this period, there will be a storage charge of £10 per week per item of equipment.
On the termination of an Agreement Netwise shall have a contractual lien over Client equipment at the date of termination until all amounts due from the Client to Netwise have been paid. If a contractual lien arises, where Client equipment includes servers, these may be removed from racks by Netwise and stored securely on Netwise's premises. A storage charge of £10 per week per item of equipment shall be payable by the Client from and including the termination date until payment of the amounts due and the storage fees. If all amounts due have not been paid to Netwise within 14 days after the termination date, Netwise may, without notice, sell the Client equipment for fair market value and use the proceeds to satisfy in whole or part all debts due from the Client to Netwise. If the sale proceeds after the costs of sale exceed the amounts due to Netwise, Netwise shall account to the Client for the balance. If the sale proceeds are less than the amounts due to Netwise, the Client shall remain liable for the balance.
Netwise shall not be obliged to exercise its right of sale under the contractual lien arising from this Clause. If the Client equipment or any part thereof has no market value or no buyer can be found within 28 days of the right to sale being exercisable, Netwise shall advise the Client accordingly and may dispose of or retain what is not saleable as it sees fit and without having to account to the Client. The Client shall remain liable for all amounts outstanding, including storage fees up to a maximum of 28 days from the termination date and the costs of disposal. In the event of Netwise electing to retain what is not saleable, equipment shall pass to Netwise on notification to the Client of this election.
Except where a contractual lien arises in accordance with the preceding Clause, all Client equipment shall be removed from Netwise's premises on or before the termination date. Servers that form part of Client equipment not removed by the Client on or before the termination date may be removed from racks by Netwise and stored securely on Netwise's premises. A storage charge of £10 per week per item of equipment shall be payable until the equipment is removed from Netwise's premises.
If Client equipment is not removed from Netwise's premises within 28 days of the termination date Netwise may dispose of or retain the Client equipment as it sees fit and without having to account to the Client. The Client shall remain liable for all amounts outstanding, including storage fees up to a maximum of 28 days from the termination date and the costs of disposal. In the event of Netwise electing to retain Client equipment, equipment shall pass to Netwise on notification to the Client of this election.
Before Client equipment is disposed of by sale or otherwise or where equipment in Client equipment passes to Netwise, Netwise shall so far as practicable ensure that any software or data stored on the Client equipment is permanently deleted from all data storage devices forming part of the Client equipment.
If the Client has notified Netwise in writing that in the normal course of the Client's business the Client may from time to time have within Netwise's Premises equipment belonging to third parties ("Third Party equipment"), any Third Party equipment identified as such before or when a contractual lien might otherwise arise will not be subject to any contractual lien imposed on the Client's equipment but shall be subject to any storage fees accruing.
Upon request by the Client, whether or not in dispute with Netwise, Third Party equipment will be made available for collection by the named third party on production of reasonable evidence of ownership. Netwise may charge a reasonable fee for supervision of third party technical staff while on Netwise's premises. If equipment is removed from Netwise's premises under the terms of this Clause, the Client shall not make any subsequent claim against Netwise in respect of the equipment in question.
Physical access to colocated equipment
Physical access to shared racks used by more than one Netwise Client is strictly escorted only. To gain physical access, the Client may request access via the My Netwise Control Panel, or by direct contact with a member of the Netwise team. There is no charge for access. Where agreed, clients with fully segregated enclosures (not shared) have 24x7 unescorted access to their Equipment.
Service Level Agreement
This SLA sets out Netwise's aims with regard to the level of service provided. Failure to meet an aim set out in the SLA will not constitute a breach of this contract.
Netwise aim to provide an uptime internet connectivity and power supply guarantee of 99.99% to the Client's Services. If Netwise's connectivity and/or power supply fails to meet the 99.99% uptime guarantee then the Client will be eligible to claim a refund of one day's service fee for every hour that Netwise's internet connectivity or power supply is unavailable. Please note that Scheduled Maintenance is not covered and any compensation will be limited to the total fees that the Client has paid in any one month.
Events which do not constitute downtime covered by this SLA include but are not limited to:
A problem in the Client's access provider's network or that of their upstream providers which prevents the Client from accessing the network, outages resulting from denial of service attacks, virus attacks, hacking attempts, or any other circumstances that are not within our control.
The Client shall pay the price for the Services as set out in the Service Information Contract. An initial payment is required before any set-up work is carried out. Netwise invoices for regular payments monthly in advance, unless otherwise agreed in writing.
The price for the Service covers Bandwidth as stated in the Service Information Contract. If the Client exceeds this limit then Netwise reserves the right to make additional charges for usage above the limit at its then prevailing charge rate. Netwise 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 Netwise 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 unless stated otherwise.
The price and all other amounts due under the Service Information Contract shall be paid by the Client by the due date as specified in Netwise's invoice. Payment shall only be deemed received by Netwise upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any grounds. Netwise reserves the right to suspend the Services in case of late payment.
Any exercise by Netwise 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 Netwise 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. Netwise 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.
Netwise reserves the right to exercise a lien over the Client's equipment in respect of any unpaid fees and shall be entitled to sell the equipment after the expiry of thirty (30) days from the termination date in order to recoup any unpaid fees.
Netwise 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.
Netwise 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 Netwise and it would be impractical and uneconomic for Netwise 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 Netwise 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 Netwise with such evidence as Netwise may require in relation to the Client's insurance.
The Client agrees to fully indemnify and keep Netwise, 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:
- the Clients breach of this Agreement or its negligence or other act, omission or default;
- the operation or break down of any equipment or software owned or used by the Client but not the Hardware and/or Software;
- the Clients use or misuse of the Services;
- the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs).
Nothing in the Agreement shall exclude or limit the liability of Netwise 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 Netwise how or for what purposes they are used. If any exclusion or limit of liability in this Agreement is held to be invalid and Netwise 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.
Netwise 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 Netwise more than one year after the cause of action has occurred.
Netwise 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 Netwise 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:
- economic loss of any kind whatsoever;
- loss of profit, data, business contracts, revenues or anticipated savings;
- damage to the Client's reputation or goodwill;
- loss resulting from any claim made by any third party;
- special, indirect or consequential loss or damage of any nature whatsoever, and the Client shall indemnify Netwise from and against any claim which may be made against Netwise 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.
Please note that Netwise provides internet based services - dedicated servers, colocation, backup solutions, server management and additional internet services. Netwise reserves the right to suspend or cancel a Client's access to any or all Services provided when an account has been inappropriately used or otherwise.
Netwise reserves the right to change these Terms and Conditions when necessary due to the continual evolving nature of Netwise's business, except where specific modifications have been agreed with the Client at the outset. It is the Client's responsibility to ensure that they are up to date with our Terms and Conditions.
By signing up for any Services the Client agrees to be bound by all Terms and Conditions irrespective of the mode or manner of ordering employed by the Client when ordering the Services.
This Agreement is made between Netwise and the Client as defined above. The date of this Agreement is the date the Client orders Netwise's Services.