Terms of Service

Please note. Our Terms of Service are in the process of revision and will be re-posted again asap.

[Service Agreement-General Terms]

• We do not allow Warez or illegal MP3 sites.
• Adult content is not permitted
• Users must not participate in any form of unsolicited bulk e-mailing or spam.
• IRC services are not allowed.
• Data stored on our systems is not guaranteed to be backed up unless you make a specific agreement. It is recommended that you keep an independent copy of all data stored on your server.
• You must not divulge your passwords to any other person, and you should take reasonable precautions to ensure that it is not discovered by other people.
• We shall not be held liable for any loss or damages caused by the use or misuse, unavailability or removal of services.
• We reserve the right to cancel your services at any time without notice in the event of a breach in these Terms and Conditions.
• Should your account be closed, all files (including web pages etc.) will be deleted.
• We reserve the right to amend and update these Terms and Conditions and the Acceptable Use Policy at any time without notice.

[Definition]

• “Johnstone Kinnear” or “we” means Johnstone Kinnear.
• “Customer” or “you” means the person, firm or company that has requested any Services.
• “Service” or “Services” means any services supplied or to be supplied by Johnstone Kinnear, including but not limited to the provision of Internet hosting services.
• “Order” means the electronic Service order annexed herein by reference.
• “Server” means an Internet-connected server, virtual or otherwise, provided by Johnstone Kinnear for the Customer’s use.

[Service agreement]

This agreement is made by and between Johnstone Kinnear and the Customer:

Overview

This agreement is intended to cover any and all Services provided by Johnstone Kinnear and received by the Customer. This agreement contains the entire understanding between Johnstone Kinnear and Customer with respect to the Services described in the Order and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between Johnstone Kinnear and the Customer. The Customer acknowledges and agrees that its entire right relating to Johnstone Kinnear Services are as set forth in this agreement.

1. Services

Subject to the terms and conditions of this agreement, Johnstone Kinnear agrees to provide the Internet hosting services specified in the Order. Subject to Customer’s right to terminate this agreement in accordance to Section 4.2 of this agreement, Johnstone Kinnear may expand or contract the scope of Johnstone Kinnear’s services by issuing an amended order form to the Customer in advance of such change.

2. Initial Term

The initial term of this Agreement is stated in the Order (“Initial Term”). The Initial Term shall not commence until Johnstone Kinnear accepts the Order from the Customer and until first payment as set out in the Order is made in full by the Customer for Services to be provided during the Initial Term.

3. Renewal Term

Unless terminated by Johnstone Kinnear or in accordance with Section 4.2 of this Agreement, this Agreement will automatically renew for successive terms of equal length to the Initial Term at the applicable rate and discounts.

4. Fees and Payment

The Customer agrees to pay Johnstone Kinnear, without limitation, for the Services it uses. Johnstone Kinnear reserves the right to charge the Customer standard hourly rates as specified for support, to cover the resolution of excessive or unusual problems or complaints.

4.1 Invoices – Invoices are emailed to the current billing email address. Monthly Service Fees are invoiced thirty-seven (37) days in advance and due thirty (30) days in advance.

• Clients are fully responsible to ensure payment of all amounts due are paid on time independently of receiving invoice or billing notifications by email from Johnstone Kinnear. Overdue accounts may be disconnected at any time after the expiry date. All data will be deleted after 2 weeks unless alternative arrangements are made with Johnstone Kinnear.

4.2 Cancellation Policy – All Service contracts, unless otherwise negotiated, are month-to-month. In order to cancel a Service contract the Customer must notify Johnstone Kinnear via the online cancellation form. The minimum contract term is 30 days, therefore if a service is cancelled with less than 30 days remaining an invoice will be issued for the additional days. There are no partial refunds or credits for early cancellations. All payments to Johnstone Kinnear are final and non-refundable.

4.3 Overdue payments – All invoices are due within 14 days of the stated invoice date. At our discretion we may refer overdue payments to our debt collections agency, and in that event an administration charge will be added to the outstanding amount. The value of the administration charge is discretionary, but would be a minimum of 25% of the overdue amount.

5. Acceptable Use Policy

Customers shall at all times comply with and help ensure that they and their clients comply with the terms of the current version of the Acceptable Use Policy (AUP). Customer agrees that Johnstone Kinnear may amend the terms of the AUP from time to time by posting a new or different version of the Acceptable Use Policy at www.memset.com. For existing customers, changes shall come into effect one month after they are published on the Johnstone Kinnear website. The Customer shall include the terms and conditions set out in the Acceptable Use Policy in an Acceptable Use Policy with its own clients.

6. Response Times, Guarantees

i) Firewall Management; “Managed” means that Johnstone Kinnear is responsible for the set up and the ongoing setting of rules and policies of this with guidance from the Customer. Changes to the Firewall are at the customer’s request and these changes are guaranteed to be put in place within twelve hours during normal office hours Monday to Friday 9-5.30pm and outside of office hours within 24 hours. The only exceptions to this would be if the Firewall rules need to be changed due to any current security issue eg: DOS or attempted hack and this would then mean a response time of 2 hours. Johnstone Kinnear will advise if a Firewall change would cause disruption to the customer’s server.

ii) Response Times; Response time is defined as the time it takes to identify a fault and report back to the customer by either of the following methods; E-Mail, SMS or telephone call. The customer is responsible for ensuring that Johnstone Kinnear has the correct contact details. Johnstone Kinnear will advise all customer’s who have the advanced support option of any service failure (eg. HTTP, SMTP, SSH) via SMS or E-Mail within five minutes of any fault being diagnosed.

iii) Response times of non-urgent questions or queries via e-mail will be dealt with in business hours with a guaranteed response time of two hours. Johnstone Kinnear will guarantee that if a customer can prove that any of the above services or response times have not been met the customer shall receive a day’s credit for every incident up to a maximum of 10 days credit within any calendar month.

7. No Network Uptime Guarantee

Johnstone Kinnear endeavours to provide the most reliable network infrastructure possible to its Customers, but we are sometimes at the mercy of forces beyond our control or reasonable foresight. To Customers in good financial standing with Johnstone Kinnear we guarantee that our network is available 95% of the time in a given month, excluding scheduled maintenance. The network is defined as core network infrastructure excluding the hardware, services and software running on your or our server. Network downtime is measured from the moment the Customer notifies a Johnstone Kinnear support representative of a network failure to the time the Network responds to an external “ping” request. Notification of network failure must occur at the time of the outage and not after the fact. If using our advanced support option, which builds in redundancy and safeguards, the Customer will be refunded 1 day’s worth (3.4%) of their monthly hosting fee and an additional day for each additional 1 hours of downtime up to 50% of the Customer’s monthly hosting fee.

Refunds shall not be provided to the Customer if they ae on starter or value tariff/pack, or if network downtime is the result of: a) scheduled maintenance b) circumstances beyond Johnstone Kinnear’s reasonable control, including, but not limited to: dDoS or other network attacks, upstream or 3rd party network outages, war, fire, flood, sabotage, labour disturbance, acts of government and c) breaking this Agreement or Johnstone Kinnear’s Acceptable Use Policy.

8. Temporary Service Suspension

The Customer agrees that it may be necessary for Johnstone Kinnear to Temporarily suspend Services for technical reasons or to maintain the Johnstone Kinnear network, the equipment or any other facilities, the timing of which will be as determined by Johnstone Kinnear. Such suspension of the Services will not be an interruption of the Johnstone Kinnear Services for the purpose of calculating network availability or the Customer’s entitlement to credit for network interruption.

9. Emergency Service Suspension

Johnstone Kinnear may interrupt the Services at any time for any duration of time, without penalty or liability for any claim by the Customer, where necessary to prevent improper or unlawful use of Johnstone Kinnear Services or network. Such suspension of Services will not be an interruption for the purpose of calculating network availability or the Customer’s entitlement to credit for network interruption.

10. Daily Backups

Johnstone Kinnear offers daily and snapshot backups of critical data files. If a customer has chosen the Daily Backup Option then it is Johnstone Kinnear’s responsibility to ensure we have a Backup of the customer’s chosen data. It is the customer’s responsibility to ensure that any backup folder creation or similar is set up in order for us to take the backups. Johnstone Kinnear cannot be held responsible for the integrity of the customer’s data or the fact that the data may be corrupt. The Customer will hold Johnstone Kinnear without penalty or liability for any claim resulting from a failed backup and/or restore procedure.

11. Compromised /Hacked Server

A compromised or “hacked” server is a serious threat to our network. Johnstone Kinnear, at its sole discretion, will take any and all measures to prevent a compromised server from doing additional damage to its own system and files or to the rest of the network. Determination that a server has been compromised: By the Customer – If you believe your system may have been hacked, immediately report the situation to Johnstone Kinnear technical support. Johnstone Kinnear will examine your system and may implement additional monitoring of your system. By Johnstone Kinnear – If a Johnstone Kinnear System Administrator believes a server on our network is compromised, Johnstone Kinnear will: 1) disconnect the server from the network, 2) contact the client, and 3) provide evidence of the server being “hacked”.

12. Termination of Agreement

If Customer breaches any of its obligations under this agreement or the Acceptable Use Policy (AUP) then Johnstone Kinnear may terminate this agreement at any time and without prior notice.

13. Limitation of Liability

Customer acknowledges and agrees neither Johnstone Kinnear nor any of its members, shareholders, directors, officers, employees or representatives will be liable for any special, indirect, consequential, punitive or exemplary damages, or damages (including but not limited to damages for loss of profits or savings, loss of data, or loss of use) in connection with this agreement. If, despite the foregoing limitations, Johnstone Kinnear or any of its shareholders, directors, officers, employees or representatives should become liable to Customer or any other person in connection with this agreement for ANY REASON, then the maximum aggregate liability of Johnstone Kinnear, its members, shareholders, directors, officers, employees and representatives for all such things and to all such parties will be limited to the lesser of the actual amount of loss or damage suffered by the claimant or the amount payable by Customer to Johnstone Kinnear for one month of service under this agreement.

14. Indemnity

Customer will indemnify and save harmless Johnstone Kinnear and its members, shareholders, directors, officers, employees, agents, contractors, and representatives from and against all damages, losses, costs and expenses (including actual legal fees and costs), fines and liabilities incurred by or awarded, asserted or claimed against Johnstone Kinnear or any of its members, shareholders, directors, officers, employees and representatives in connection with Customer’s negligence, activities or omissions, or breaches of its obligations under this agreement, including claims brought by a person using or relying upon any advice given or publication produced and distributed by Customer.

15. Customer Acknowledgement

Customer acknowledges that it accepts all risk of any unauthorised or illegal use of the Johnstone Kinnear network or any inter-connected network by third parties. Johnstone Kinnear provides no warranties, makes no representations, and accepts no liability for the unauthorised or illegal access or interference with the Customer’s server/network unless such access or interference is caused by the intentional unlawful acts of Johnstone Kinnear, its agents or employees.

16. IP Address Ownership and Usage

Johnstone Kinnear assigns IP (Internet Protocol) addresses to Customers for their use. Customers have no right to use Johnstone Kinnear IP addresses not assigned to them, to move IPs between different servers or account or in ways not permitted by Johnstone Kinnear. Johnstone Kinnear maintains ownership of all IP addresses that are assigned to Customers unless by prior agreement, and reserves the right to change or remove them at its sole and absolute discretion. Typically, however, these changes are rare and made only at the request of RIPE & ARIN or an upstream provider. PLEASE NOTE: The allocation of IP addresses is restricted by the policies of RIPE & ARIN. These policies now dictate that name-based hosting MUST be used whenever possible. Johnstone Kinnear reserves the right to periodically review IP address usage and revoke authorisation to use those IP addresses not being utilised or where name-based hosting could be used.

17. Johnstone Kinnear Administrative Account and Software

For the purposes of Network/Server maintenance, inventory and related activities, Johnstone Kinnear staff and management retain the right to administrative access to any and all Servers on their network. To facilitate this, all Johnstone Kinnear Servers include a Johnstone Kinnear administrative account and/or daemon designed for these purposes. See Acceptable Use Policy (AUP) for more details.

18. Governing Law

This Agreement is governed by the law of England, and the Customer agrees that any court action brought under this agreement shall be brought in the jurisdiction of England. If any provision of this agreement is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the provision shall be deemed to be severable from the remaining provisions and shall not affect their validity or enforceability.