1.1 Access: The Owner (Majestic Sky, LLC) will give you appropriate Access to your Site or Server to enable you to update the Materials. Use of Access is at your own risk. You agree to use Access only in accordance with the Access Procedures. If you use Access other than in accordance with the Access Procedures or you use Access carelessly or negligently you may cause your Site or Server to fail. In such a case, The Owner (Majestic Sky, LLC) reserves the right to charge you for repair of any damage you cause to the Server, or another customer’s Site and you agree to pay such charge.
1.2 Materials: You are responsible for all Materials and any Materials uploaded to your Site or the Server using Access. You warrant that none of the Materials on your Site will contain any statement or content that is obscene, indecent, libellous, seditious, offensive, defamatory, threatening, abusive, liable to incite racial hatred, discriminatory, menacing, blasphemous, in breach of confidence or privacy or in respect of which you are not the true and lawful owner of the copyright or trade mark as the case may be or for which you have not obtained all necessary licenses and/or approvals or which may cause annoyance or inconvenience. You also warrant that any postings shall not be contrary to the law of, or infringe the rights of any third party enforceable in, any part of the United Kingdom, the European Union, the United States or the Commonwealth.
1.3 Indemnity: You shall indemnify The Owner (Majestic Sky, LLC) and keep The Owner (Majestic Sky, LLC) free from and effectively indemnified against all costs, claims, expenses and liabilities arising in connection with any action, claim, demand or allegation which arises as a result of The Owner (Majestic Sky, LLC) providing the Services to you, or, breach of clause 1.2 above or 1.4 below. The Owner (Majestic Sky, LLC) agrees to immediately provide you with notice of all such claims and The Owner (Majestic Sky, LLC) hereby grants you full conduct of the claim with the ability to defend, settle and compromise all actions. The Owner (Majestic Sky, LLC) shall provide at your expense, all reasonable assistance necessary to handle any claim and you agree that any action taken in respect of such claims will be taken with consultation with The Owner (Majestic Sky, LLC).
1.4 Domain names: 1) You shall not use a Domain Name which infringes or may infringe the intellectual property rights of any other person (for example because it may be or be similar to an existing business name, trade mark or other name). 2) You confirm and warrant that you are The Owner (Majestic Sky, LLC) of, or that you have been and are duly authorised by The Owner (Majestic Sky, LLC) of, any trade mark or other name you have requested as part of a Domain Name or which is similar to a Domain Name you have requested. 3) You acknowledge that The Owner (Majestic Sky, LLC) cannot guarantee that any Domain Name requested by you will be available or approved for use. 4) Any Internet Protocol address allocated by The Owner (Majestic Sky, LLC) to you shall at all times remain the sole property of The Owner (Majestic Sky, LLC) and you shall have a personal non-transferable license to use such address for the duration of this Agreement. In the event of termination of this Agreement for whatever reason, your license to use the Internet Protocol address shall automatically terminate and thereafter you shall not use such address.
2. The Owner (Majestic Sky, LLC)’s obligations
2.1 In consideration of the Charges, The Owner (Majestic Sky, LLC) shall for the Term and on the terms and conditions of this agreement provide you with the Services:
2.1.1 Allocating space on a Server for your Site and administering (that is "Hosting") your Site from a Server, so that it is capable of being accessed over the Internet.
2.1.2 Maintaining Servers at its premises for the use of the Customer. The Owner (Majestic Sky, LLC) may determine and maintain the hardware resources and operating software on Servers as it sees fit.
2.1.3 Monitoring the performance of the Server on which The Owner (Majestic Sky, LLC) hosts your Site for billing purposes.
2.1.4 Maintaining the service as detailed in the Service Level Agreement.
2.1.5 Maintain what it considers to be optimum performance for all the Sites (your Site and those of its other customers) and Servers that it hosts.
3. Both parties agree:
3.1 The Owner (Majestic Sky, LLC) may temporarily take Servers off-line or suspend the Services from time to time for essential maintenance work, repair or improvement to its facilities. The Owner (Majestic Sky, LLC) will notify you at least 72 hours in advance of this necessary work and will use its reasonable endeavours to cause minimum disruption to your Site or Server. Scheduled work will normally take place between the hours of 12am and 4am MTN Monday to Friday. However, there may be temporary access restrictions to your Site or Server from the general Internet while this maintenance work is taking place.
3.2 You acknowledge that it is technically impracticable to provide the Services free of faults and The Owner (Majestic Sky, LLC) does not undertake to do so. In the event of a fault in the Services, you must report it by telephone - (303-503-8612) or to such other number as The Owner (Majestic Sky, LLC) may from time to time provide to you or by written notice or electronic mail. Upon receipt of a fault report, The Owner (Majestic Sky, LLC) will take reasonable steps to correct the fault as soon as reasonably practicable. Providing the fault is not caused by external circumstances then The Owner (Majestic Sky, LLC) aims to correct such fault as detailed in the Service Level Agreement (SLA).
3.3 You acknowledge (Majestic Sky, LLC) has the right to put a watermark or text link on the footer pages of any designed page for the acknowledgment of such services for the protection of Majestic Sky, LLC and it's clients, unless previous arrangements have been made before initial launch of the site.
3.4 The Owner (Majestic Sky, LLC) will use its best endeavours to provide general service cover for 24 hours a day 7 days a week. Our records will show a 99.9% server uptime.
3.5 The Owner (Majestic Sky, LLC) may need to vary the technical specification of the Services for operational reasons provided that you have given consent.
3.6 The Owner (Majestic Sky, LLC) will not be responsible for any inability of yours to access the Services due to incompatibility between your terminal equipment and The Owner (Majestic Sky, LLC)’s equipment.
4. Charges and payment
4.1 You shall pay to The Owner (Majestic Sky, LLC) the Charges for the Services. These Charges are fixed as agreed for the Period of Agreement.
4.2 The Owner (Majestic Sky, LLC) shall perform any calculations necessary so as to compute the correct Charges. The Owner (Majestic Sky, LLC) will invoice you the Charges in advance and any adjustment necessary due to calculation of use of the Services during a calendar month shall be made to the invoice for the following month. You shall pay the Charges within the month to which the charges relate too. Payment will normally be collected by Direct Debit. On termination you are not entitled to any refunds for any fees or charges paid in advance. The Charges and any other fees payable under this Agreement are exclusive of Value Added Tax, which you must also pay. The Owner (Majestic Sky, LLC) shall be entitled to suspend performance of any of the Services in the event that you fail to pay any sums in accordance with this Clause 4.
5. Termination
5.1 Web Development - Final Payment must be paid in the full amount before a site goes live. If payment is returned unpaid the customer (client) is responsible for all returned fees (a minimum of $25). An agreement of repayment must be reached within 10 business days or risk of site termination will apply. A $39.99 reinstatement fee may be assessed if a site is terminated.
5.2 By you: You may terminate this Agreement by giving notice during the final month prior to the expiry date of this Agreement. If a termination notice is not received then the agreement will be automatically renewed for a further period of the same duration. During the Expiry period the contract can be renegotiated on new terms.
5.3 By The Owner (Majestic Sky, LLC): 1) The Owner (Majestic Sky, LLC) can terminate immediately if you misuse the Services in any way or misuse or allow misuse of Access (which includes but is not limited to the implantation of computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data on The Owner (Majestic Sky, LLC)’s Servers) or other practices of misuse (which shall include but not be limited to hacking). 2) The Owner (Majestic Sky, LLC) can terminate at any time on 30 day's notice.
5.4 By either party: Either party may terminate this Agreement forthwith at any time by giving prior written notice to the other if the other:- 1) commits a material breach of any term of this Agreement and (in the case of a remediable breach) has failed, within 30 days' of written notice of such breach, to remedy that breach; or 2) is declared bankrupt or has a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding-up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if it shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business; or any event analogous to those listed in the foregoing under the law of any jurisdiction occurs to you.
6. Liability:
6.1 The Owner (Majestic Sky, LLC) warrants that it will perform its obligations under this Agreement, with the reasonable care and skill of a competent Internet Hosting Service.
6.2 Subject to 6.1, other than this express warranty, to the maximum extent The Owner (Majestic Sky, LLC) is permitted by law, The Owner (Majestic Sky, LLC) will provide you with the Services on the basis that it excludes all representations (except fraudulent representations), warranties, conditions and other terms (including without limitation the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which but for this Agreement would have effect in relation to the Services.
6.3 You acknowledge that The Owner (Majestic Sky, LLC) has no control over the Materials or over any information and/or software transmitted via the Services and that The Owner (Majestic Sky, LLC) does not examine the use to which customers put the Services or the nature of the Materials, information and/or software they are sending or receiving. The Owner (Majestic Sky, LLC) hereby excludes all liability of any kind for the transmission or the reception of any Materials, information and/or software of whatever nature and all liability for the accuracy or inaccuracy of any such Materials, information and/or software.
6.4 In no event shall The Owner (Majestic Sky, LLC) be liable to you or any third party for any indirect, special, incidental or consequential loss or damage, or loss of or damage to data, loss of profit, loss of anticipated savings, loss of contract or loss or other economic advantage, arising out of or in connection with or in relation to this Agreement or any collateral contract, or the Services or Equipment even if you have previously been advised of the possibility of the same.
6.5 If for some reason The Owner (Majestic Sky, LLC) is liable to you, then subject to clauses 6.2, 6.3, 6.4 and 6.6, The Owner (Majestic Sky, LLC)’s liability to you or any third party arising out of or in connection with or in relation to this Agreement or any collateral contract or out of the supply, purported supply or non-supply of the Services or Equipment, whether based upon contract, tort (including negligence) or otherwise, shall not exceed the lesser of the price or amounts paid or payable to The Owner (Majestic Sky, LLC) for the Services over the 12 months prior to the event that gave rise to the liability concerned or $10,000.00 in aggregate.
6.6 However, nothing in this Agreement shall have the effect of limiting or excluding The Owner (Majestic Sky, LLC)’s liability in the tort of deceit or for death or personal injury resulting from its own negligence.
6.7 The Owner (Majestic Sky, LLC) will maintain the Services 24 hours a day 7 days a week (subject to allowing for maintenance and upgrading work) but disclaims responsibility for failure of the Services due to third parties, (for example, failure by an ISP or its suppliers, or third party programs that are part of your Site, or failure by other providers of telecommunication services or for faults in or failures of their apparatus). You also acknowledge that Sites are complex, may not be error–free, and may not, as a matter of practicality, be accessible via the Internet at all times.
7. Property rights: Unless otherwise agreed in writing, you shall own and be responsible for all intellectual property in the Materials on your Site or Server and The Owner (Majestic Sky, LLC) shall not be responsible for the Materials or the intellectual property in them. However, the Equipment will remain the property of The Owner (Majestic Sky, LLC) at all times.
8. General:
a) Force majeure: The Owner (Majestic Sky, LLC) shall not be liable to you for any delays in performance of its obligations under this Agreement caused by matters beyond The Owner (Majestic Sky, LLC)’s control.
b) Non-Assignment: The benefits and obligations conferred by this Agreement upon you are personal to you and shall not be, and shall not be capable of being, assigned, delegated, transferred, sub-contracted or otherwise disposed of.
c) Entire Agreement: This Agreement constitutes the whole agreement between you and The Owner (Majestic Sky, LLC) (together with The Owner (Majestic Sky, LLC)’s standard table of charges referred to in clause 4.1) and supersedes and excludes any previous agreements, arrangements or understandings between The Owner (Majestic Sky, LLC) and you relating to the subject matter hereof. Both you and The Owner (Majestic Sky, LLC) acknowledge that you and The Owner (Majestic Sky, LLC) are not relying on any statements, warranties or representations given or made by you or The Owner (Majestic Sky, LLC) relating to the subject matter of this Agreement (all of which are expressly excluded, other than any given fraudulently), save as expressly set out in this Agreement.
d) Variation and waiver: No variation or amendment to this Agreement shall be effective unless in writing signed by authorised representatives of you and The Owner (Majestic Sky, LLC). Also, no failure of either you or The Owner (Majestic Sky, LLC) to exercise, and no delay in exercising, any right or remedy in respect of any provision of this Agreement shall operate as a waiver of such right or remedy.
e) Severability: If any provision or part of a provision of this Agreement or its application to you or The Owner (Majestic Sky, LLC), shall be, or be found by any authority of competent jurisdiction to be, invalid or unenforceable, that invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
f) Governing Law: This Agreement shall be governed by and construed in accordance with English Law and you and The Owner (Majestic Sky, LLC) submit to the exclusive jurisdiction of the English Courts.
g) Survival: Clauses 1.3, 6, 7 and 8 shall survive termination of this Agreement.
Definitions used in the terms and conditions
Access: means access to the Server on which your Site is located by means of the file transfer protocol or by other methods so as to alter files stored on the Server.
Access Procedures: means instructions provided by The Owner (Majestic Sky, LLC) with information about instructions to use and limitations of Access.
Agreement: means this agreement and the Schedule.
Charges: are the combination of the charges in clause 4.
Customer: means the party listed on the schedule under the heading "THE CUSTOMER".
Equipment: means The Owner (Majestic Sky, LLC)’s equipment to be let to you (but which will remain the property of The Owner (Majestic Sky, LLC)) which is listed on the Schedule.
Expiry period: means 1 month prior to the expiry of the agreement period.
ISP: means an Internet Service Provider.
Materials: means text, image, video, audio, HTML language, CGI scripts, Java or JavaScript applications or language, ActiveX controls, Pearl, ASP Pages or any other information, data or software which you have on your Site.
Owner: means Server World Limited.
Server: means a computer server administered by The Owner (Majestic Sky, LLC) which may be either dedicated to your Site or shared with The Owner (Majestic Sky, LLC)’s other customers.
Services: means the services listed on the Schedule. If any Equipment is listed on the Schedule then the hire of such Equipment is included within the Services.
Site: means a site on the World Wide Web having an individual Internet address commencing "http://" which has Materials accessible to the general Internet by means of the hypertext transfer protocol or other relevant Internet protocol and any email addresses associated with it.
Your Site: means the Site The Owner (Majestic Sky, LLC) is hosting for you in accordance with this Agreement.
By reading these terms and conditions you also agree to the Acceptable Use Policy.