Terms & Conditions

Please read these Terms carefully, as they set out our and your legal rights and obligations in relation to our email and file hosting services.

You should print a copy of these Terms for future reference. We will not file a copy specifically in relation to you, and they may not be accessible on our Website in future.

These Web Hosting Terms are available in the English language only.

If you have any questions or complaints about these Terms or our Services, please contact us.

1
Definitions And Interpretation
1.1
“Agreement” means the agreement between the Company and the Customer incorporating these Terms and Conditions and the Order Request and any amendments to it from time to time;
1.2
“Business Day” means any week day, other than a bank or public holiday in England;
1.3
“Business Hours” means between 09:00 and 17:00 on a Business Day;
1.4
“Charges” means the amounts payable by the Customer to the Company under or in relation to the Agreement (as set out on the Order Request);
1.5
“Company” means Brightmail.co.uk which is a trading name of GIDATO Ltd, a limited company incorporated in Scotland (registration number SC324338) having its registered office at 133 Fountainbridge, Edinburgh, EH3 9BA;
1.6
“Confidential Information” means any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
1.7
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
1.8
“Customer” means the customer for Services under the Agreement specified in the relevant Order Request;
1.9
“Effective Date” means the date when the Agreement comes into force in accordance with Clause 3.2;
1.10
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
1.11
“Hosted Materials” means all emails, websites, web applications, software, information, data, databases and other works and materials stored, transmitted, published or processed using the Services;
1.12
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
1.13
“Minimum Term” means the period of 1 Year starting on the Effective Date;
1.14
“Order Request” means the form or forms on the Company’s website enabling users to order Services, or the renewal documents for automatic renewals;
1.15
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
1.16
“Prohibited Content” means:
1.16.1
material which breaches any applicable laws, regulations or legally binding codes, or infringes any third party Intellectual Property Rights or other third party rights, or may give rise to any form of legal action against the Company or the Customer or any third party;
1.16.2
pornographic or lewd material; and
1.16.3
messages or communications which are offensive, abusive, indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to another internet user, or constitute spam or bulk unsolicited mail;
1.17
“Resources” means the resources specified on the Order Request;
1.18
“Services” means the services provided under the Agreement, which may include shared hosting, email address services, or other email services as specified on the Order Request;
1.19
“Start Date” means the date given in the acceptance email if and when the Company sends to the Customer an acceptance email, following the submission of a completed Order Request by the Customer;
1.20
“Term” means the term of the Agreement; and
1.21
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.
2
Interpretation
2.1
In the Agreement, a reference to a statute or statutory provision includes a reference to:
2.1.1
that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
2.1.2
any subordinate legislation made under that statute or statutory provision.
2.2
The Clause headings do not affect the interpretation of the Agreement.
2.3
The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
3
The Agreement
3.1
In order to apply to become a Customer, the applicant must complete and submit the Order Request.
3.2
This Agreement will come into force if and when the Company sends to the Customer an acceptance email, following the submission of a completed Order Request by the Customer.
3.3
This Agreement will continue in force indefinitely, unless and until terminated in accordance with Clause 18.
4
Implementation And Transition
4.1
The Company will make available the Services on or before the Start Date.
5
Shared Hosting And File Storage
5.1
This Clause 5 applies where the Company agrees to make available to the Customer shared hosting or file/document storage.
5.2
The Company will make available to the Customer hosting capacity on a shared server meeting the specification set out on the Order Request .
5.3
The Company will make available to the Customer the ability to access, update or amend the Hosted Materials within their allocated storage.
5.4
For the avoidance of doubt, the Customer will not have administration rights in relation to any shared server.
5.5
Charges payable in respect of shared hosting will be as specified on the Order Request.
6
Email Services
6.1
This Clause 6 applies where the Company agrees to provide to the Customer email transmission, storage and/or management services.
6.2
The Company will provide POP3/IMAP and webmail email services to the Customer.
6.3
All mailboxes will be protected by anti-spam and anti-virus software.
6.4
If the Customer or a mailbox exceeds the relevant storage limit set out on the Order Request / notified by the Company to the Customer from time to time, the Company may delete stored emails to bring the Customer or mailbox within the storage limit.
6.5
Charges payable in respect of email services will be as specified on the Order Request.
7
Email Address Registration
7.1
Email Address orders will be subject to the provisions of this Clause 7.
7.2
Charges in respect of email address registrations are non-refundable.
7.3
Email address registrations will be subject to periodic renewal fees and transfer fees as stated on the the Company website from time to time.
7.4
The Customer warrants that the information submitted for the purposes of an email address registration is current, accurate and complete, that it has the legal right to apply for and to use the email address, and that its use of the email address will not infringe any person’s Intellectual Property Rights or other legal rights.
7.5
The Customer undertakes to keep the information required for the purposes of an email address registration up-to-date (which changes may be subject to additional Charges).
7.6
The Company may reject in its sole discretion any request to register a particular email address.
7.7
The Company will not offer any advice in relation to any actual or potential email address dispute, and will have no liability in respect of the suspension or loss of an email address by the Customer as a result of any email address arbitration procedure or court proceedings.
7.8
The Company will have no responsibility for the Customer’s use or retention of an email address once registered, and it will be the Customer’s responsibility to ensure that email addresss are renewed and that applicable renewal charges are paid.
7.9
Charges payable in respect of email address services will be as specified on the Order Request.
8
Support
8.1
The Company will make available, during Business Hours, a helpdesk facility for the purpose of providing support to the Customer (and the Company’s other customers). The Company will use reasonable endeavours to respond to all requests for support within 24 hours..
8.2
The Company will use reasonable endeavours to ensure that a member of its support staff can be reached by mobile phone outside Business Hours in the case of an emergency.
8.3
The Customer must make all requests for support Services through the helpdesk, and all such requests must include at least the following information: .
8.3.1
Your support code which can be obtained from the client area of the Company website;
8.3.2
The email address to which the request relates; and
8.3.3
A means to contact you.
8.4
The Company will use reasonable endeavours to resolve issues raised by the Customer promptly.
9
Services: General Provisions
9.1
The Customer’s utilisation of Resources must not exceed the limits set out on the Order Request.
9.2
The Company may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs. Subject to this, the Company will use reasonable endeavours to maintain the Services at the availability level specified on the Order Request.
10
Customer Responsibilities
10.1
The Customer will provide the Company with all co-operation, information and documentation reasonably required for the provision of the Services, and the Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the Services.
10.2
The Services are provided to the Customer only, and the Customer may not resell the Services to any third party.
10.3
The Customer will be responsible for obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services.
10.4
It is the Customer’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis. The Customer will notify the Company immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.
11
Acceptable Use
11.1
The Customer may not use the Services to send unsolicited commercial email (UCE, also known as ‘Spam’). The Company will block the mail services of any Customer found to be sending such mail. This applies to all emails sent by or on behalf of the Customer directly
11.2
Any Customer who receives an abnormally high rate of spam email reports may have their use of the Email Services suspended without notice.
11.3
The Customer may not have ‘open mail relays’. The Company will close the relay or connection of any Customer found with an open mail relay.
11.4
The Customer must not use any of the Services:
11.4.1
to host, store, send, relay or process any Prohibited Content;
11.4.2
for any purpose which is unlawful, fraudulent, or infringes any third party rights;
11.4.3
in any way which may put the Company in breach of a contractual or other obligation owed by the Company to any internet service provider.
11.5
The Customer acknowledges that the Company does not purport to monitor the content of Hosted Materials or the use of the Services.
11.6
Where the Company reasonably suspects that there has been a breach of the provisions of this Clause 11, the Company may:
11.6.1
delete or amend the relevant Hosted Materials; and/or
11.6.2
suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter.
11.7
Any breach by the Customer of this Clause 11 will be deemed to be a material breach of the Agreement for the purposes of Clause 18.
12
Charges And Payment
12.1
The company will issue reminders anny renewal of service at least 14 days prior to renewal.
12.2
The Customer will pay the Charges to the Company in advance of the Services being provided
12.3
All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise.
12.4
Charges must be paid by any means made available by the Company during checkout on the Company website.
12.5
The Company may vary the Charges by giving to the Customer at least 60 days’ notice of variation expiring at any time after the end of the Minimum Term.
13
Warranties
13.1
The Customer warrants to the Company that it has the legal right and authority to enter into and perform its obligations under the Agreement.
13.2
The Company warrants to the Customer:
13.2.1
that it has the legal right and authority to enter into and perform its obligations under the Agreement; and
13.2.2
that it will perform its obligations under the Agreement with reasonable care and skill.
13.3
All of the parties’ liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
14
Indemnity
14.1
The Customer hereby indemnifies and undertakes to keep indemnified the Company against all liabilities, losses, costs, expenses (including legal expenses and amounts paid upon advice in settlement of any legal action) arising out of or in connection with:
14.1.1
any breach by the Customer of any term of the Agreement;
15
Limitations And Exclusions Of Liability
15.1
Nothing in the Agreement will:
15.1.1
limit or exclude the liability of a party for death or personal injury resulting from negligence;
15.1.2
limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
15.1.3
limit any liability of a party in any way that is not permitted under applicable law; or
15.1.4
exclude any liability of a party that may not be excluded under applicable law.
15.2
The limitations and exclusions of liability set out in this Clause 15 :
15.2.1
are subject to Clause 15.1;
15.2.2
govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement , including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
15.3
The Company will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
15.4
The Company will not be liable for any loss of business, contracts or commercial opportunities.
15.5
The Company will not be liable for any loss of or damage to goodwill or reputation.
15.6
The Company will not be liable in respect of any loss or corruption of any data, database or software.
15.7
The Company will not be liable in respect of any special, indirect or consequential loss or damage.
15.8
The Company will not be liable for any losses arising out of a Force Majeure Event.
15.9
The Company’s aggregate liability under the Agreement will not exceed the total amount paid and payable by the Customer to the Company under the Agreement.
16
Data Protection
16.1
The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under the Agreement, and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of the Agreement will not breach any applicable laws (including the Data Protection Act 1998).
16.2
The Company warrants that:
16.2.1
it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Company on behalf of the Customer; and
16.2.2
it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Company on behalf of the Customer.
17
Confidentiality
17.1
Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause 17.
17.2
Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
17.3
The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
17.4
These obligations of confidentiality will not apply to Confidential Information that:
17.4.1
has been published or is known to the public (other than as a result of a breach of the Agreement);
17.4.2
is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
17.4.3
is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.
18
Termination
18.1
The Company may terminate the Agreement at the end of the Minimum Term by giving at least 30 days written notice to the Customer.
18.2
The Customer may terminate this Agreement at the end of the Minimum Term by not renewing the Services.
18.3
Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
18.3.1
commits any material breach of any term of the Agreement, [and:
18.3.1.1
the breach is not remediable; or
18.3.1.2
the breach is remediable, but the other party fails to remedy the breach within [30] days of receipt of a written notice requiring it to do so; or]
18.3.2
fails to pay any amount due under the Agreement in full and on time.
18.4
Either party may terminate the Agreement immediately by giving written notice to the other party if:
18.4.1
the other party:
18.4.1.1
is dissolved;
18.4.1.2
ceases to conduct all (or substantially all) of its business;
18.4.1.3
is or becomes unable to pay its debts as they fall due;
18.4.1.4
is or becomes insolvent or is declared insolvent; or
18.4.1.5
convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
18.4.2
an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
18.4.3
an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
18.4.4
(where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
19
Effects Of Termination
19.1
Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 2, 14, 15, 17.1 to 17.4, 19 and 20.3 to 20.12.
19.2
Termination of the Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
19.3
If the Agreement is terminated under Clause 18.1, or by the Customer under Clause 18.3 or 18.4 (but not in any other case):
19.3.1
the Company will provide such assistance as is reasonably requested by the Customer to transfer the hosting of the Hosted Materials to the Customer or another service provider, subject to payment of the Company’s reasonable expenses; and
19.3.2
the Customer will be entitled to a refund of any Charges paid by the Customer to the Company in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Company (such amount to be calculated by the Company using any reasonable methodology).
19.4
Save as provided in Clause 19.3.2, the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Company.
20
General
20.1
Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be sent by post, or sent by email, for the attention of the relevant person, and must be sent to the support email address along with your email support code in the case of the Company or as specified on the Order Request (or to the primary Email Address on the Customers Account) in the case of the Customer (or as notified by one party to the other in accordance with this Clause).
20.2
A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below)where the notice is sent by or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
20.3
No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
20.4
If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
20.5
Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
20.6
The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
20.7
The Company may freely assign its rights and obligations under the Agreement without the Customer’s consent. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.
20.8
The Company may subcontract any of its obligations under the Agreement to any third party.
20.9
Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.
20.10
The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
20.11
The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause 15.1, each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.
20.12
The Agreement will be governed by and construed in accordance with the laws of Scotland; and the courts of Scotland will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
VERSION: 1.0 / 17 February 2017