Alpha Professional & Consulting Services, INC.
Terms & Conditions
1. Interpretation In these General Conditions, and in any Special Conditions applicable to the Contract:
1.1 The following terms shall have the following meanings unless the context otherwise requires:
Conditions: these General Conditions and the Special Conditions
which are applicable to the Contract.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Services, in accordance with these conditions.
Customer: the person, firm or company who purchases Services from the Supplier.
Customer ID: the Customer’s account number in relation to any Service which allows access to the Management Interface.
Diagnostics: analysis conducted by Supplier at the Customer’s request to identify a malfunction of the Service.
Documentation: the documentation and tools made available to the Customer on the Supplier’s website.
Hardware: the equipment, cabling and systems provided by the
Supplier in connection of the Services.
Incident: a problem or malfunction of the Service.
Keywords: those words notified to the Customer by the Supplier
which control the Customer’s access to some of the Services including without limitation a password and username.
Management Interface: the “Manager Space” which is made available to the Customer on the Website following entry by the Customer of the relevant Customer ID and Keywords.
Order: a request made by the Customer to the Supplier for
Services to be supplied under the Conditions.
Quotation: a proposal sent by the Supplier to the Customer for
the provision of certain Services at the quoted price.
Service: all services provided by the Supplier to the Customer in accordance with these Conditions.
Software: the computer software provided by the Supplier in
connection with the Services.
Special Conditions: any additional terms and conditions agreed between the Customer and the Supplier in writing.
Supplier: Alpha Professional and Consulting Services, a private company incorporated and registered in USA, Florida.
Technical Assistance: the provision by the Supplier of documentation and assistance to the Customer in relation to the installation and use of the Service by the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings do not affect the interpretation.
1.3 The singular shall include the plural, the masculine shall include the feminine, and vice versa.
1.4 In the event of any conflict between these General Terms and Conditions, and any Special Conditions applicable to the Contract, the Special Conditions shall prevail.
2.Application of conditions
2.1 The Conditions shall apply to any Contract between the Supplier and the Customer for the provision of Services and shall prevail over any inconsistent terms or conditions submitted by the Customer or implied by law, trade custom, practice or course of dealing.
2.2 The Supplier shall be entitled to amend the Conditions at any time by giving notice to the Customer at least 30 days before the changes take effect, such notice to be given by email or by notification on the Supplier’s website. Upon receipt of such notice, the Customer shall be entitled to terminate the Contract with effect from the date of the
notice, such termination to be notified to the Supplier no later than 30 days from the date of the notice (time being of the essence). The Customer shall not be entitled to any refund of the fees and shall remain liable for any fees previously due. Failure to give such notice
of termination shall be deemed acceptance of the new Conditions. Any renewal of the Services shall be subject to the Supplier’s Conditions current at the date of renewal.
2.3 The Order constitutes an offer by the Customer to purchase the Services specified in the Order. A contract on the terms set out in these
Conditions shall be created when the Supplier accepts the Order pursuant to Condition 2.4(b) or commences/executes work pursuant to the Order.
2.4 The Supplier shall send the following emails to the Customer at the Customer’s email address specified in the Order:
a) a first email acknowledging receipt of the Order;
b) a second email confirming acceptance of the Order and that the payment of the fees has been received by the Supplier;
c) a third email containing any Keywords necessary to enable the Customer to gain access to the Services;
d) a fourth email containing an invoice for the Services.
For the avoidance of doubt, the second email referred to at condition 2.4(b) shall constitute acceptance of the Order placed by the Customer.
3.1 The Supplier shall perform the Services with reasonable care and skill and in accordance with best industry practice but shall not be liable for downtime caused by routine or emergency maintenance by the Supplier or occasioned by third parties.
3.2 The Supplier 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 Services, Software and/or Hardware (and any part thereof). This includes the right to substitute Hardware with hardware of similar
specification, where necessary. The Supplier shall give reasonable notice of such modification by email.
3.3 The Supplier shall process the Customer’s personal data in compliance with the Data Protection Act 1998 and the Supplier’s privacy and Security Policy. The Customer hereby consents to such processing of such personal data for the purpose of the provision of the
4.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, failure of power supply, or default of suppliers or sub-contractors (“Force Majeure Event”).
4.2 If the Force Majeure Event prevails for a continuous period of more than 30 days, any party may terminate the Contract by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination.
4.3 The Supplier shall have no liability to the Customer under the Contract if the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act, omission, fault or negligence of the Customer or the Customer’s agents, sub-contractors or employees, and in particular due to:
a)Damage to the Customer’s equipment, software or telecommunications links;
b)Wrongful use of the Software, including by the Customer or the Customer’s clients, or non-compliance with any operating instructions given by the Supplier;
c)Disclosure, unlawful or fraudulent use of the Keywords;
d)Fault, negligence or omission by a third party not connected to the Supplier;
e)Issue by a competent authority of an order which is binding on the Supplier and which affect the Services;
f)Total or partial loss of the material and/or data uploaded due to an error by the Customer; or
g)Incompatibility of the Software with any of the Customer’s equipment, software or telecommunications links.
4.4 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any:
a)breach of the Contract;
b)use made by the Customer of the Services;
c)and representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract; or
d)otherwise howsoever arising.
4.5 Subject to Condition 4.6, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted
by law, excluded from the Contract.
4.6 Nothing in the Conditions excludes the liability of the Supplier for:
a)death or personal injury caused by the Supplier’s negligence; or
b)fraud or fraudulent misrepresentation.
4.7 Subject to Conditions 4.5 and 4.6:
a)the Supplier shall not be liable, whether in tort(including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses howsoever arising; and
b)the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for that part of the Services to which the liability relates.
4.8 The Customer acknowledges that there is a risk that any material or data generated, stored, transmitted or used via or in connection with the Services may be irretrievably damaged or lost if there is a failure or on suspension or termination of the Services and that the Supplier shall be under no obligation to back-up any such material or data. The Customer shall take precautionary measures for preserving such material or data in the event of loss, or damage, however caused. The Supplier recommends customers to back up their material at least once a month.
5.1 The Customer warrants that:
a)it has the power and authority to enter into and perform its obligations under the Contract.
b)it has received all relevant information and advice from the Supplier before placing the Order and that it has satisfied itself
that the Services shall be suitable for its particular needs.
c)its use of the Services will not infringe any third party intellectual property or other rights.
5.2 The Customer shall:
a)not knowingly use the Services, Software, and/or Hardware or allow them to be used for any unlawful purpose or to send SPAM or for the publication, linking to, issue or display of any unlawful material (which shall include without limit any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including without limit intellectual property rights) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under USA law or regulation, the laws or regulations of the Customer’s country or any other place where the results of such purpose or such material can be accessed;
b)not knowingly use the Services, Software and/or Hardware or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of the Supplier may harm the Supplier or any of its clients or bring the Supplier into disrepute or may call into question any action taken by the Supplier on the Customer’s behalf;
c)not provide any technical or other information obtained from the Supplier and/or relating to the Services, these Conditions or the Contract to any person, company, firm or government which the Customer knows or ought reasonably to be aware may directly or indirectly lead to a breach of any relevant law or regulation;
d)not knowingly use the Services, Software and/or Hardware or allow them to be used in breach of the Supplier’s Acceptable Use Policy, which can be requested by email, and shall bring it to the attention of the Customer’s authorized users;
e)provide the Supplier with accurate contact details, bank details and email address, and shall promptly notify the Supplier of any changes by email;
f)comply with the Supplier’s reasonable instructions and requests concerning the Services;
g)immediately notify the Supplier by email if it becomes aware of any unauthorized use of all or any of the Services, Software and/or Hardware;
h)ensure that all Keywords are at all times kept confidential, used properly and not disclosed to unauthorized people and if the Customer has any reason to believe that any Keyword has become known to someone not authorized to use it or if any Keyword is being or is likely to be used in an unauthorized way or the Customer is aware of any other breach of security then the Client shall inform the Supplier immediately. For the avoidance of doubt, the Customer shall be solely responsible for any unauthorized and/or fraudulent use of the Keywords whether such unauthorized and/or fraudulent use is due to its agents’, sub-contractors’ or employees’ fault, omission or negligence. Any change of Keywords, at the Customer’s request, will be charged to the Customer on a time-and-material basis.
i)inform the Supplier promptly in the event of any actual or suspected security breaches in connection with the Services;
j)provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects;
k)ensure that it has all necessary consents, permissions and licenses to make use of the Services including without limit registration under the Data Protection Act 1998;
l)use the Services in a manner consistent with any and all applicable laws and regulations including but not limited to the Data Protection Act 1998;
5.3 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect
or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any act of negligence, default, or willful misconduct by the Customer, failure by the Customer to comply with its obligations under this Contract or any use made by the Customer of the Services.
6.1 Tools and documentation provided by the Supplier:
The Supplier provides the Customer with a set of tools and documentation available on the Website.
6.2 Incident Reporting Procedures To report an incident, the Customer shall write an email to support.
It is the Customer’s responsibility to write an email every time an incident appear and to provide sufficient information in relation to the
Incident to enable the Supplier to successfully complete the Diagnostics. To this end, the Customer authorizes the Supplier to connect to the Service and perform any act necessary to enable the Diagnostics to be performed on both the Hardware and the Software.
The Supplier reserves the right to refuse any work if it finds during the research that the Customer uses the Service in violation of these Conditions and any Special Conditions, or of any relevant laws or regulations.
6.3 Incident Support and Diagnostics Under the above procedure of Incident reporting, the Supplier will perform Diagnostics in order to investigate the origin and cause the Incident. If in the Diagnostics reveal that the Incident is caused directly by the Supplier, the cost of the Diagnostics shall be borne by Supplier in accordance with the terms applicable to the Service Contract. In the event that the Diagnostics illustrate that the Incident is not directly caused by the Supplier, then the costs associated with performing the Diagnostics (including the time
spent by the Supplier performing the Diagnostics) will be paid by the Customer at a flat rate tariff. In the event that the Supplier is unable to identify the origin or cause the Incident following performance of the Diagnostics, the cost of the Diagnostics will not be charged to the Customer. The Customer undertakes not to improperly use the Technical Assistance. The Supplier reserves the right to refuse provision of Technical Assistance or Diagnostics in circumstances where, in the Supplier’s absolute discretion, the Customer’s request is unjustified or is likely to disrupt the normal functioning of the Technical Assistance offered by the Supplier or where it relates to an Incident for which the Supplier is not liable under these Conditions.
6.4 Resolution of Incidents Following the performance of Diagnostics, and assuming that the Supplier is able to ascertain the cause of the Incident, the Supplier shall communicate technical solutions for resolving the Incident to the Customer. In circumstances where the Incident is not caused directly by the Supplier, the Supplier will send the Customer a Quotation including estimated costs for resolving the Incident, and the Customer may choose whether or not to accept the Quotation and pay the Supplier to resolve the Incident.
7.Fees and payment
7.1 The fees for the Services shall be set out in the Supplier’s price list as amended from time to time, the current version of which is available when you request it by email. The total fees for the Services shall be confirmed by the Supplier, shall be inclusive of VAT, and shall be payable in US Dollars($).
7.2 The Supplier shall be entitled to vary its price list at any time by giving notice to the Customer at least 30 days before the new price list
is to come into effect, such notice to be given by email. Upon receipt of such notice, the Customer shall be entitled to terminate the Contract with effect from the date of the notice, such termination to be notified to the Supplier no later than 30 days from the date of the notice (time being of the essence). Failure to give such notice of termination shall
be deemed acceptance of the Supplier’s new price list.
7.3 The Customer shall pay the fees upon placing the Order, and at the interval(s) specified therein and upon renewal of the Services by credit or debit card, by bank transfer, or by cheque addressed to Alpha Professional and Consulting Services. All fees shall be non-refundable unless otherwise stated.
7.4 The Supplier shall provide the Services upon receipt of the fees in full and clear funds by the Customer. The Supplier shall acknowledge receipt of the payment and inform the Customer of the commencement date of the Services. Such commencement date shall be
an estimate only and the Supplier shall not be liable to the Customer for any delay.
7.5 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date t
he Supplier may:
a)charge interest on such sum from the due date for payment at the statutory rate for the time being applicable under the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
b)suspend all Services until payment has been made in full;
c)declare that all sums due by the Customer under any contract with the Supplier are immediately payable; and
d)refuse to enter into any further contract with the Customer for the provision of any services by the Supplier.
7.6 Time for payment shall be of the essence of the
7.7 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.8 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7.9 The Customer may not dispute any fees and/or Services unless s/he notifies such dispute to the Supplier by email within 30 days from the Order.
8.Limitation of Services
8.1 The Supplier acknowledges that given the nature of the Internet and the fluctuation of the bandwidth, the Services provided by the Supplier may be subject to variation.
8.2 The Supplier shall be entitled to restrict or suspend the Services if:
a)the Customer uses the Services for an activity which contravenes the principles contained in the Acceptable Use Policy;
b)the Customer commits any serious or persistent breach of any of its obligations under Condition 5;
c)an order which is binding on the Supplier is issued by a competent authority;
d)the Supplier wishes to carry out routine or emergency maintenance, repair or upgrade to the Services; or
e)this is permitted under any Special Conditions applicable to the Services.
9.Intellectual property rights
9.1 The Customer acknowledges that the Supplier shall retain ownership of all intellectual property rights relating to the development or supply of the Services including all methodologies, know-how and processes used and in any information, software or other data created by the Supplier as part of the Services (the “Materials”).
9.2 The Supplier shall grant a non-exclusive revocable license to use, store and view on the Customer’s own internal computer network the Materials made available to the Customer as part of the Services.
10.Right to cancel – Consumer Protection (Distance Selling) Regulations 2000 (the “Regulations”)
10.1 This Condition 10 shall apply if the Customer is a “consumer” as defined in the Regulations. The Customer shall be entitled to cancel the Contract by giving written notice to the Supplier by post or email, to arrive within 7 working days from whichever is the later of (i) the date the Contract is formed and (ii) the date that the Customer receives confirmation from the Supplier that the Contract is formed. A working day is any day other than weekends and bank or other public holidays.
10.2 The Customer hereby consents to the Supplier commencing provision of the Services, and Condition 10.1 shall cease to apply once the Supplier has commenced such provision.
11.Term and Termination
11.1 The Contract shall commence on the date notified by the Supplier in accordance with Condition 7.4 above and shall terminate automatically on the expiry date specified in the Order (the “Expiry Date”). The Supplier shall notify the Customer of the Expiry Date by sending at least 3 reminders by email to last email address notified and updated by the Customer from time to time.
a) the Supplier is entitled to terminate the Contract under Condition 11.4 or 11.5; or
b)the Supplier gives the Customer not less than 30 days notice by email that no right of renewal will apply if the Contract expires on the Expiry Date; or
c)the Special Conditions provide otherwise; the Supplier shall give notice to the Customer (a “Renewal Notice”) by email offering the Customer the opportunity to renew the Contract for a further
period as specified in the Renewal Notice, subject to the Supplier’s
Conditions current at the date of renewal, upon payment of the renewal fee specified by the Supplier in the Renewal Notice. If the Supplier receives such payment in full and in clear funds no later than the Expiry Date, the Contract shall be renewed for the further period specified in the Renewal Notice. If the Customer fails to pay the renewal fee on or before the Expiry Date (time being of the essence), the Contract shall expire automatically on the Expiry Date.
11.3 The Customer shall be entitled to terminate the Contract at its convenience at any time by giving notice to the Supplier, such notice
to be given pursuant to condition 18. For the avoidance of doubt, the Customer shall not be entitled to the reimbursement of the
fees (or part thereof) by the Supplier in such circumstances.
11.4 The Supplier shall be entitled to terminate the Contract at any time and without incurring any liability if:
a) the provision of the Services to the Client affects or may affect the safety or stability of the Supplier’s equipment or software. The Supplier shall use reasonable endeavours to notify by email the Customer in advance of such termination; or
b) there is a change of control in the Customer.
11.5 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
a)the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach; or
b)an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of com
petent jurisdiction to make a winding-up order of the other party; or
c)an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or d)a receiver is appointed of any of the other party’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 other party, or if any other person takes possession of or sells the other party’s assets; or
e)the other party 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, or becomes bankrupt; or
f)the other party ceases, or threatens to cease, to trade; or
g)the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.6 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
12.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
12.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.1 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
13.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.Status of pre-contractual statements Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract.
15.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other
manner with all or any of its rights or obligations under the Contract.
Alpha Professional & Consulting Services, INC.
SPECIAL CONDITIONS FOR WEBSITE HOSTING SERVICES
ON A DEDICATED SERVER
The Supplier provides different categories of Dedicated Server. The hardware and software configurations, and the different tariffs applicable, can be requested by email to the Supplier.
In these Special Conditions, the terms defined in the General Conditions shall have the same meanings and the following terms shall have the following meanings unless the context otherwise requires:
Content: the text, information, image, audio or video material and other data placed on the Dedicated Server by or on behalf of the Customer, including data which the Customer permits third parties to place on the Dedicated Server.
the person, firm or company who purchases Services from the Supplier.
Dedicated Hosting Services: the hosting of the Website on a Dedicated Server for the Customer’s exclusive use.
(D)DOS: (distributed) denial-of-service attack; an attempt to make a machine or network resource unavailable to its intended users.
General Conditions: the Supplier’s general terms and conditions of services from time to time.
Internet Relay Chat (IRC): a protocol for live interactive internet texmessaging.
ISP/Access Provider: internet service provider/internet access provider.
PRO Option: the pro utilisation option of Services as specific
ally subscribed for by the Customer.
SMTP: simple mail transfer protocol; an internet standard for e-mail transmission across internet protocol networks.
SQL: structured query language; a special-purpose programming language designed for managing data.
Supplier: Alpha Professional and Consulting Services
Website: the Customer’s website(s) to be hosted on the Dedicated Server (including all data on such website(s) which is necessary for the publication and exchange of information via the internet).
2. APPLICATION OF THE CONDITIONS
These Special Conditions (together with the GeneralConditions) shall apply to any Contract between the Supplier and the Customer for the provision of Dedicated Hosting Services and shall prevail over any inconsistent terms or conditions submitted by the Customer or implied by law, trade custom, practice or course of dealing. In the event
of conflict between these Special Conditions and the General Conditions, these Special Conditions shall prevail.
3. DEDICATED SERVER
3.1The Dedicated Server shall remain the property of the Supplier at all times. The Customer shall not be entitled to sell, transfer, lease, charge, assign by way of security or otherwise deal in or encumber the Dedicated Server.
3.2 In order to maintain adequate security levels of the Dedicated Server and of all the servers hosted by the Supplier, the Supplier shall inform the Customer by email of the availability of Software upgrades for which a high level security failure has been noticed. The Supplier shall be entitled to disconnect the Dedicated Server if such upgrades are not carried out by the Customer following the Supplier’s notification.
4. SUPPLIER‘S OBLIGATIONS
4.1 The Supplier shall provide the Dedicated Hosting Services with reasonable care and skill and in accordance with best industry practice.
4.2 The Supplier shall provide the Hardware and Software necessary for the provision of the Dedicated Hosting Services.
4.3 The Supplier warrants that the Hardware, Software and the Dedicated Server shall perform in accordance with the specifications set out in the Order.
4.4 The Supplier shall use its reasonable endeavors to ensure that:
the Hardware and Software is maintained in good working order and in accordance with best industry practice; any defect, error or malfunction of the Hardware or Software is remedied as soon as is reasonably practicable, and the Customer is informed immediately if such repair or replacement requires the Dedicated Hosting Services to be suspended;
any disruption to the Dedicated Hosting Services which does not result from any breach by the Customer shall be rectified as soon as is reasonably practicable following a request from the Customer; and subject to conditions 4.5 and 5 below, the Customer shall have access to the Dedicated Server via the Internet 24 hours a day, 365 days a year on the basis of the level of activity on the Website specified in the Order. If the level of activity on the Website exceeds that specified in the Order, the parties shall meet and agree an increased bandwidth usage and the corresponding additional fees.
4.5 The Supplier shall inform the Client by email as soon as reasonably practicable if any maintenance, repair or upgrade requires the Dedicated Hosting Services to be suspended and shall inform the Customer of the likely duration of such suspension.
5. SUPPLIER‘S LIABILITY
5.1 The Customer acknowledges that the Supplier shall not be responsible for any failure or malfunction of the Dedicated Server.
5.2 The Supplier shall have no liability to the Customer under the Contract in the event of:
any act, omission, fault or negligence of a third party not connected to the Supplier, and in particular any unauthorised access to the Website or the Content; any act of piracy, viruses, worms, trojan horses or other harmful codes that affect or may affect the Dedicated Server, the Website and/or the provision of the Dedicated Hosting Services; any actual or suspected security breaches in connection with the Dedicated Hosting Services;
any loss following the uploading of the Website to another server or IT system;
any modification (or attempted modification) of the Software by the Customer or a third party not authorised by the Supplier;
any loss caused by the operation or non-operation, use or non-use of the Website or the Content;
downtime caused by routine or emergency maintenance, repair or upgrade to the Dedicated Hosting Services provided that, if such maintenance, repair or upgrade requires the Dedicated Hosting Services to be restricted or suspended, the Supplier shall use reasonable endeavours to notify the Customer by email as soon as reasonably practicable in advance of the likely duration of such restriction or suspension and shall endeavour to resume the Dedicated Hosting Services as soon as reasonably practicable;
any interruption, partial or total failure of the Dedicated Hosting Services due to any variation of the bandwidth or any failure of the Supplier’s ISP/Access Provider.
5.3 If the Supplier detects that the security or integrity of the Website has been compromised, the Supplier shall inform the Customer by email that the Content must be re-installed, and the Supplier shall be entitled to protect the integrity of the Dedicated Server by disconnecting it from the internet until the Website has been reinstated.
The Customer shall be responsible for re-installing the Content. The Supplier’s sole responsibility shall be to reconnect the Website to the internet once it has been reinstated.
5.4 In so far as the Supplier is susceptible to receiving notifications of illicit use of an internet protocol address (“IP Address”) attributed to a Customer, said Customer will be assessed according to the law applicable to the location of the Customer and the Supplier can offer the Customer an IP address corresponding to the state/country to which they are established and/or to which the Customer must move their service.
5.5 The Customer is therefore required, when using an IP address corresponding to a particular state/country, to comply with all laws and regulations of that state/country. In the case where the Supplier receives notification stating the violation by the Customer of the applicable law of the state/country for their corresponding IP address, the Customer must take all necessary measures to cease the violation in question. Otherwise, the Supplier reserves the right to suspend service.
6. CUSTOMER‘S OBLIGATIONS
6.1 The Customer shall be solely responsible for:
uploading the Content onto the Server and checking that it functions satisfactorily. The Supplier shall not be responsible for any failure of the Customer to upload the Content correctly, and shall not be responsi
ble for providing support in relation to the control and operation of the Content;
the Content, for the conception or development of the Website, and for the Customer’s equipment, systems or software necessary for the management of the Website. The Supplier shall have no obligation to validate or vet the Content for usability, legality, content or correctness and shall not, in any event, be liable towards the Customer or any third party for any loss arising from or in connection with the Content;
complying with all applicable laws and regulations concerning the Content, including (without limitation) for ensuring that the Website contains all information concerning the Customer, its products and the conduct of its business which are required;
ensuring that the Content, any material linked to the Website and any activity conducted via the Website do not breach the rights of any third parties including without limitation any intellectual property rights;
and making regular back ups of the Content on any website from time to time.
6.2 The Customer shall use its best endeavours to ensure that all Content on the Website does not contain any viruses and/or other harmful code.
6.3 The Customer shall be solely liable in respect of any and all data it makes available to web users. The Supplier shall not be liable for any losses, claims or damages (howsoever arising, including negligence) in
relation to such data.
6.4 The Customer shall not undertake or attempt to undertake, any intrusive web activities whatsoever through the Server, such as, without limitation, port scanning, sniffing and spoofing.
6.5 In the event that the Customer is in breach of
either clauses 6.3 or 6.4, it shall not be entitled
to claim any refund from the Supplier of amounts already paid.
6.6 The Customer shall be solely responsible for any Server malfunction arising from any use by any other person to whom the Customer may have provided its password(s). The Customer shall also be solely responsible for any loss of the above mentioned password(s).
6.7 In order to preserve the existing level of security of the Customer’s server and of all servers forming part of its platform, the Supplier undertakes to notify the Customer, by e-mail, of the availability of updates for applications maintained by the Supplier, for which a security issue is observed. If the update of these applications is not performed by the Customer promptly following the Supplier’s notification, the Supplier reserves the right to suspend the Server’s connection to the internet.
6.8 Where the Supplier detects that the Customer’s computer has been hacked or a similar event has occurred, an e-mail will be sent to the Customer within a reasonable period of time, informing it that re-installation is necessary to maintain the integrity of the Server and of all servers on the platform. The Customer may then carry out such re-installation through its management interface, after having backed up all its data.
The Supplier reserves the right to suspend the Server’s connection to the internet pending the Customer’s full and complete re-installation of the computer. The Customer is solely responsible for transferring the data from the hacked system to the new one and the Supplier’s sole responsibility is to install the new system.
6.9 For security reasons, Alpha Professional and Consulting Services reserves the right to proceed with the immediate suspension without notice, of any Server on which there is a public service Proxy
, IRC, VPN or TOR which is available free of charge or for a
fee, and for which Alpha Professional and Consulting Services has knowledge of its fraudulent or illegal misuse.
6.10 The Customer is responsible for taking all measures necessary to back up its data.
6.11 In the event that the Customer does not pay any licence or subscription fees when due to the Supplier or any third party, the Supplier reserves the right to suspend the Services without prior notice.
6.12 The Supplier reserves the right to audit the Customer’s compliance with the Services and with the provisions contained in these Special Conditions and the General Conditions at any point during the term of these Special Conditions with 5 Working Days’ prior written notice to the Customer. The Supplier may have access to and take copies of the Customer’s records and any other information held at the Customer’s
premises and to meet with the Customer’s personnel to audit the Customer’s compliance with its obligations under these Special Conditions and the General Conditions. Such audit rights shall continue for three years after termination of these Special Conditions. The Customer shall give all necessary assistance to the conduct of such audits during the term of these Special Conditions and for a period of three years after termination of these Special Conditions.
6.13 The Supplier reserves the right to suspend the Services without prior notice, and to terminate the private server rental agreement:
i) where the Customer’s Server poses a significant risk to the Supplier’s infrastructure; and
ii) in the event of any non-compliance by the Customer with the Supplier’s special and standard terms and conditions; and in accordance with any applicable statutory and regulatory provisions, and pursuant to any contract it has with any third party.
6.14 The Supplier’s obligation in relation to private servers is limited to the installation of the server and the opportunity for the Customer to rent the infrastructure. The Supplier has no control over the content of data held on the hosted websites. The Customer shall hold and preserve, for a period of 12 months from its creation, all data (“Web Data”) that would enable the identification of any party that has contributed in anyway whatsoever to the creation of any content contained on any hosted website that may be accessed via the Server. The Customer shall be solely responsible and liable in respect of the holding and preserving of all Web Data.
6.15 Further to clause 6.14, the Customer shall implement an easily accessible and visible structure that enables any person to notify it of any offence or potential offence whatsoever that may have occurred on any website or contained in any data transmitted across the Server network, including, but not limited to, data which constitutes incitement to racial hatred, child pornography, incitement to violence, as well as violation of human dignity or illicit gambling activities. The Customer shall ensure that all required notices are set out on the website and that it is clear that the Customer is the hosting service provider in any legal notices presented by its contracting parties editing a website.
7. Measures for the prevention of spamming from the Supplier’s network.
7.1 The Supplier shall implement a system of technical measures intended to prevent the dispatch of fraudulent emails and spam from its infrastructure.
7.2 Further to 7.1, the Supplier shall monitor outgoing traffic from the Server towards port 25 (SMTP server) on the internet, which shall involve monitoring traffic by means of automatic tools.
7.3 The outgoing traffic referred to in 7.2 shall be monitored by the Supplier with a delay of a few seconds, rather than being filtered or intercepted. These operations shall be conducted by the Supplier in parallel between the Server and the internet.
7.4 The Supplier shall not conduct any tagging of e-mails, and shall not modify e-mails sent by the Customer in anyway whatsoever. No information shall be stored by the Supplier during these operations aside from statistical data.
7.5 The operation in 7.4 shall be conducted regularly and in a fully-automated manner by the Supplier and the Customer acknowledges that no human intervention is involved during the monitoring of traffic to port 25 (SMTP port).
7.6 In the case of outgoing traffic from the Customer’s server, including e-mails, being identified as spam or fraudulent e-mails, the Supplier shall inform the Customer by e-mail and block the Server’s SMTP port.
7.7 The Supplier shall not keep any copy of e-mails sent from the Server’s SMTP port, even when they are identified as spam.
7.8 The Customer may request unblocking of the SMTP port through its management interface.
7.9 Any new e-mail identified as spam will entail a new blocking of the SMTP port by the Supplier for a longer period to be determined at the Supplier’s reasonable discretion.
7.10 On the occurrence of the Supplier blocking the SMTP port for a third time, the Supplier reserves the right to deny any new request for the unblocking of the SMTP port.
8. Mitigation (protection against DOS and DDOS attacks)
8.1 The Supplier shall implement protection against DOS and DDOS-type hacking attempts provided that these attacks are conducted in a manner reasonably considered to be serious enough by the Supplier to warrant such protection. In implementing such protection, the Supplier shall use reasonable endeavours to ensure that the operation of the Customer’s Services is maintained throughout the duration of a DOS or DDOS attack.
8.2 The function in clause 8.1 involves monitoring the traffic sent to the Customer’s Services from outside the Supplier’s network. The traffic identified as illegitimate shall then be rejected by the Supplier prior to reaching the Customer’s infrastructure, thus allowing legitimate users to access the applications offered by the Customer in spite of the attack.
8.3 The protection measures outlined in clauses 8.1and 8.2 shall not apply in the case of attacks such as SQL injection, brute-force, abuse of security flaws or in similar-type attacks.
8.4 Given the nature of a potential DOS or DDOS attack and their complexity, the Supplier shall implement different levels of traffic protection in order to preserve its infrastructure and the Services.
8.5 Mitigation of a DOS or DDOS attack is only activated on detection of the attack by the Supplier’s tools and for a minimum period of 26 hours. Until activation of the mitigation, the Services shall bear the attack directly, which may lead to the temporary unavailability of the Services.
8.6 Once the attack is identified and mitigation is automatically activated, mitigation shall not be deactivated prior to the end of the 26-our period.
8.7 While mitigation is activated, the Supplier shall not guarantee the accessibility of the Customer’s applications but it shall endeavour to limit the impact of a DOS or DDOS attack on the Customer’s Services and on the Supplier’s infrastructure.
8.8 If, in spite of the activation of mitigation, a DOS or DDOS attack is of such a nature as to adversely affect the integrity of the Supplier’s infrastructure or the infrastructure of the other customers of the Supplier, the Supplier shall strengthen its protection measures which may lead to the deterioration of the Customer’s Services or impact its availability for which the Supplier shall not be liable.
8.9 Where part of the traffic generated by a DOS or DDOS attack is not detected by the Supplier’s equipment and reaches the Customer’s Services, the effectiveness of the mitigation shall also depend on the appropriate configuration of the Customer’s Services. In this regard, the Customer must ensure that it has the adequate resources to administer the configuration of the Customer’s Services properly.
8.10 The Customer will be protected by Firewall and IPS (Intrusion Protection System) provided by our Partner Gonkar IT Security LTD.
Conditions for Firewall and IPS implementation:
For IPS protection customer has to request the service for each VM(Virtual Machine) or Physical Machine and install the agent within the OS(Operating System) to allow the protection system perform his work.
The IPS is protecting against SQLi, XSS, LFI, RFI and integrate a FIM(File Integrity Monitor).
The Firewall will be Accessible for the customer to allow him to create the rules necessary for his environment.
The Supplier is not responsible of the bad practices of the customer since the customer can always ask for help when they want to create a new rule.
9. Term and Termination
9.1 Notwithstanding condition 11.1 of the General Conditions, the Supplier shall send the Customer at least 6 reminders on the following dates:
1st reminder 60 days before Expiry Date;
2nd reminder 30 days before Expiry Date;
3rd reminder 15 days before Expiry Date;
4th reminder 7 days before Expiry Date;
5th reminder 3 days before Expiry Date.
9.2 The Supplier shall be entitled to terminate the Dedicated Hosting Services for its own convenience at any time and without incurring any liability by giving 30 days’ written notice to the Customer.
9.3 The Supplier shall be entitled to suspend the Dedicated Hosting Services without incurring any liability if the Customer commits a breach of condition 6 of these Special Conditions and, for the purpose of condition 11.5(a) of the General Conditions, any breach of condition 6 of these Special Conditions shall be deemed to be a material breach of the Contract.
9.4 The Supplier shall be entitled to disconnect the Dedicated Server and/or to erase the Content and any material uploaded on the Dedicated Server 5 days after the Expiry Date or forthwith upon the termination of the Contract for any other reason whatsoever without in curring any liability towards the Customer.