Terms and Conditions for Dedicated Servers
"Phurix" is a provider of Internet related services such as co-location, dedicated servers, shared
server and domain name services, and the Client may from time to time require such services. This agreement sets
out the terms which have been agreed between "Phurix" and the Client for the provision of such
DEFINITIONS In these conditions, unless the context requires otherwise, the following words shall have the following meanings:
"Hardware" means the equipment, cabling and systems provided by "Phurix" in connection with the Services;
"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;
"Keywords" means those words, passwords or keys notified to the Client by "Phurix" which control the Client’s access to some of the Services including without limit a password and username;
"Notified Maintenance" means essential maintenance to be carried out by "Phurix" in relation to the Services, Hardware and/or Software, which has been notified to the Client;
"Services" means the Internet related services which are supplied or to be supplied by "Phurix" on and subject to the terms of this Agreement hereunder;
"Phurix" 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 them. This includes the right to substitute the Hardware with Hardware of similar specification, where necessary. "Phurix" shall endeavour to give the Client reasonable notice of such modifications but this may not always be possible and "Phurix" shall not be liable to the Client or to any third party for any such modification or any failure to give such notice
"Phurix" reserves the right at its sole discretion to suspend the Services (temporarily or permanently) on the occurrence of any unscheduled maintenance or any of the following (each of the following shall be a "Suspension Events"): (i) Notified Maintenance; (ii) issue by any competent authority of an order which is binding on "Phurix" and which affects the Services; (iii) if the Client fails to pay any amounts due when they are due; (iv) if any events occur which would entitle "Phurix" to terminate the Contract; (v) the Bandwidth used by the Client in relation to the Services exceeds the agreed level and "Phurix" determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by "Phurix" from time to time.
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. "Phurix" will make all reasonable efforts to keep the software installed up to date with security patches and other updates, but make no guarantee.
In the event of a server crash, once notified, "Phurix" will endeavour to restart 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. "Phurix" make no guarantee as to the functionality of the reboot switch, but will make all reasonable endeavours that the reboot switch is functioning properly.
MINIMUM CONTRACT LENGTH
The minimum contract between "Phurix" and The Client lasts 1 (one) month except where otherwise agreed and refunds will only be given at the discretion of "Phurix". The period will begin from the due date of the first regular invoice under The Schedule.
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 "Phurix" or its authorised representatives; or (b) programs or hardware supplied by Client.
The Client shall document and promptly report all errors or malfunctions of the Hardware or Software to "Phurix". 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 "Phurix". The Client shall maintain a current archive copy of all Software and data, and shall properly train its personnel in the use of the Hardware and Software.
Any problems caused by The Client to servers, (which include, but are not limited to, deletion of necessary operating system files, accidental or intentional infection by a virus/Trojan, and in the case of colocated servers owned by The Client include all hardware and software problems) may result in extra charges to The Client at £60 (ex. VAT) per hour, or part thereof, for support during office hours (9am-5:30pm, Mon-Fri, excluding public holidays/holidays pre-announced on the "Phurix" site) and at £120 (ex. VAT) per hour, or part thereof, outside of these hours. For any work that will take more than two hours we will seek prior authorisation from the client by telephone, email, fax, or post.
DELIVERY AND COLLECTION OF COLOCATED SERVERS
The Client accepts full responsibility for the delivery and collection of their server to the data centre, and that it reaches us in working condition. "Phurix" 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 destroyed to save space. If the client wishes the packaging to be stored, they must explicitly inform us and this will be charged at a standard rate of £35/week ex. VAT.
Where The Client terminates services from "Phurix", "Phurix" will store their server without charge for 3 working days but recommend it is collected immediately. If the server is stored beyond this period, there will be a standard charge of £35/week ex. VAT. per server.
Physical access to shared racks used by more than one "Phurix" client is not permitted under any circumstance. However, at "Phurix"' discretion they may allow physical access on a chargeable basis at at £60/hour ex. VAT for support during office hours (9am-5:30pm, Mon-Fri, excluding public holidays) and at £120/hour ex. VAT outside of these hours. For customers to access their machine, they must give at least one hour's notice by telephone to allow it to be taken out of the rack and put into a build room, or else collected by themselves. Excessive usage of this facility may be charged for on a per incident basis at £60 ex. VAT during office hours (9am-5:30pm, Mon-Fri, excluding public holidays) and at £120 ex. VAT outside of these hours.
ACCEPTABLE USE POLICY
Phurix� Acceptable Use Policy ("Policy") is intended to help protect the Phurix network, Phurix customers and the Internet community in general from irresponsible or, in some cases, illegal activities.
1. The Customer and their end users shall not, nor shall they permit or assist others, to use the Phurix service for any breach of any applicable law or generally accepted transmission or application protocols applicable to the Internet or any part of it or to anything connected to it or to any user of it. Such prohibited use includes but is not limited to the following:
a. civil infringement of and/or criminal offences relating to copyright, trade marks or any other intellectual property right in any jurisdiction; or
b. commission of any criminal offence (including deliberate transmission of computer viruses) under the Computer Misuse Act 1990 (UK) or any similar legislation in any country; or
c. knowingly or recklessly transmitting, displaying or posting to a publicly accessible service any material which is unlawful or actionably defamatory or an invasion of privacy, breach of an intellectual property right or breach of a right of publicity in any jurisdiction with which any publicly accessible service reasonably appears to have any connection or from which it may reasonably be apprehended that a publicly accessible service is likely to be significantly accessed; or
d. transmitting, transferring, displaying or posting to a publicly accessible service any material in breach of the Data Protection Act 1998 (UK) or similar legislation in any other country or of any material which is confidential or is a trade secret or which affects the national security of the United Kingdom or the said territory or which may expose Phurix to any retribution or penalty under the laws and/or regulations and/or decrees of the United Kingdom or any other country relating to the export of or dealing with military or potentially military resources; or
e. use of the Phurix Enabled Service or the Internet in any manner which is a violation or infringement of any rights of any kind or nature (whether like to any of the foregoing or otherwise) of any person, firm or company; or
f. unauthorised access to the network management equipment of Phurix or other Internet providers; or
g. forgery of Internet addresses or other fields in IP packets by the Customer; or
h. any sending of unsolicited email messages or any mass mailing of unsolicited advertising material by the Customer; or
i. any activity that potentially could harm Phurix� network, its customers� networks or other networks.
2. Each Phurix customer is responsible for:
a. Maintaining email addresses (preferably as an email alias) of the forms firstname.lastname@example.org and email@example.com for receiving complaints of network abuse activities, as suggested by Internet Official Protocol Standard RFC 2142. Typically, these email addresses will forward emails to the real user accounts of the responsible persons for treating the network misuse complaints.
b. The activities of its customer base or end-users and, by accepting service from Phurix, is agreeing to ensure that its customers abide by this Policy. If irresponsible or illegal activity continues, even after Phurix tries to communicate with the customer, then the customer may be subject to an appropriate action in order to stop those activities.
3. All complaints related to network misuse - including email abuse (SPAM) are to be sent to firstname.lastname@example.org
4. No IRC services or IRC-related services are permitted. This includes, but is not limited to: �IRCd servers,� �eggdrops,� �bots,� and �bouncers.� Phurix Ltd blocks all TCP ports in the range 6660 to 6680 to prevent these from being used accidentally.
The Client shall pay the price for the Services. An initial payment is required before any set-up work is carried out. Regular payments are due on the first day of the period to which they apply.
The price for the Service covers permitted bandwidth (agreed connection rate) as stated. If the Client exceeds this limit then "Phurix" reserves the right to make additional charges for usage above the limit at its then prevailing charge rate. "Phurix" 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 "Phurix" are exclusive of any value added tax 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.
The price and all other amounts due shall be paid by the Client by the due date as specified in "Phurix"'s invoice. Payment shall only be deemed received by "Phurix" upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any grounds. "Phurix" reserves the right to suspend The Service in case of late payment. "Phurix" understands and will exercise its statutory right to interest under the Late Payment of Commercial Debts (Interest) Act 1998 if not paid according to agreed terms.
"Phurix" reserves the right to send overdue accounts to a collection agency.
The Client agrees to fully indemnify and keep "Phurix", its subsidiaries, affiliates, officers, partners, employees and agents 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: (i) the Clients breach of the Contract and/or this Agreement or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Client but not the Hardware and/or Software; (iii) the Clients use or misuse of the Services; (iv) the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs).
Nothing in the Agreement, Contract or these Conditions shall exclude or limit the liability of "Phurix" 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 the Contract reflects the price paid for the Services, Hardware and Software and that it is not within the control of "Phurix" how or for what purposes they are used. If any exclusion or limit of liability in the Contract is held to be invalid and "Phurix" 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.
"Phurix" 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 the Contract or this Agreement may be brought by the Client against "Phurix" more than one year after the cause of action has occurred.
"Phurix" 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 "Phurix" 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, the Contract or the Services, Hardware or Software for any: (i) economic loss of any kind whatsoever, or (ii) loss of profit, data, business contracts, revenues or anticipated savings, or (iii) damage to the Client's reputation or goodwill, or (iv) loss resulting from any claim made by any third party, or (v) special, indirect or consequential loss or damage of any nature whatsoever, and the Client shall indemnify "Phurix" from and against any claim which may be made against "Phurix" 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.