BROKEN TOYSHOP LTD

Terms and Conditions of Provision of Service

Version 1, February 2004

IMPORTANT: Please read these terms and conditions, which govern our supply to you of the Service (as defined in clause 1.9 below): we will be unable to process your order until you have done so. If there is anything you do not understand, please feel free to e-mail us at accounts@btshosting.co.uk.

By placing an order with us, you agree to be bound by the whole provisions of the Agreement (as defined in clause 2.1 below) between you and us. If you do not accept these provisions you should not place an order.
Your attention is drawn in particular to clauses 12 (limitation of liability) and 13 (indemnity).

You must be 18 years or older to register for the Service.

1 DEFINITIONS

In these terms and conditions:-
1.1 “Business Customer” means any person who is not a Consumer;
1.2 “Charges” means the charges in respect of the Service as shown on our website and varied from time to time in accordance with clause 22. (In the event of a discrepancy between any Charge as shown on our website and as shown on the Confirmation Form, the terms of the Confirmation Form shall be conclusive)
1.3 “Commencement Date” means the date when our agreement with you is concluded (see clause 2.3);
1.4 “Confirmation Form” means the form which we send to you by post or e-mail after you have placed an order, confirming details of the Service ordered, and the relevant Charges
1.5 “Consumer” means an individual whose use of the Service is for personal purposes only, and not for use in connection with any trade, business or profession;
1.6 “Equipment” means any equipment (including any software) provided to you by us, or to which we enable you to have access, in connection with the Service;
1.7 “Order Form” means the form completed by you online or printed out and sent to us by fax/post and showing details of the Service;
1.8 “Reseller” means a person authorised by us in writing to sell on the Service consisting of website hosting and other assorted services to its own customers;
1.9 “Service” means the service to be provided by us to you, as described in an Order/Confirmation Form and on the pages of our website relevant to that service. (In the event of a discrepancy between the description of the Service on the website and that on the Order/Confirmation Form, the description on the Order/Confirmation Form shall be conclusive);
1.10 “we/us/our” refers to Broken Toyshop Ltd, a company incorporated in England (registered number 5048712), and having its registered office at 21 Limefields Way, Northampton, NN4 0SA, trading as BTS Hosting; and
1.11 “you/yours” refers to you, the person placing an order for the Service.


2 YOUR AGREEMENT WITH US

2.1 These terms and conditions, together with the Order Form, Privacy Policy and the Acceptable Use Policy constitute the entire agreement between you and us relating to the provision of the Service (“the Agreement”), and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between us in relation to this, and all past courses of dealing or industry custom. No oral explanation or oral information given by any party (including any information given via our customer service, sales or support departments) shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions, and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in these terms and conditions.
2.2 Nothing on our website is intended or shall be interpreted to mean that we are making a legal offer to you to provide the Service; we are inviting you to make a legal offer to us to purchase the Service. It is entirely at our discretion to accept or reject the offer to purchase.
2.3 The Agreement is concluded only when we have accepted your order by sending you a Confirmation Form (with the date of conclusion of the Agreement being the date shown on that Confirmation Form.


3 TYPES OF SERVICE

Special provisions, set out in Part 1 of the Schedule, apply to website hosting and the provision of e-mail. If we provide the Service to you, you will be bound by the corresponding provisions of the relevant part of the Schedule. If any specific term of the Schedule contradicts a general term in these terms and conditions, that specific term shall take precedence.


4 PROVISION OF SERVICE

4.1 In consideration of the prompt payment of the Charges by you, we shall provide the Service to you subject to these terms and conditions, from the Commencement Date until the Agreement is terminated or the Service suspended in accordance with the provisions of the Agreement.
4.2 We grant you a non-exclusive, non-transferable and restricted licence to use any software which forms part of the Service, for the period of the Agreement.
4.3 Any third party software provided as part of the Service, together with such third party’s electronic or printed licence agreement, is included for use at your sole option, and any use of such third party software shall be governed by the third party’s licence agreement, and not by the Agreement.
4.4 You acknowledge that if you prevent us from having access to any Equipment, we may not be able to provide the Service, and will not be liable to you in any way as a result of our inability to provide any part of the Service to you.


5 DISTANCE SELLING REGULATIONS

We are obliged by law to provide you, prior to the Commencement Date, with certain information in relation to the Agreement and your rights under it. This information appears throughout the Agreement, but is summarised in the Confirmation Form for ease of reference.


6 USERNAME AND PASSWORD

6.1 On acceptance and confirmation by us of your application for the Service, we will allocate an username to you, a password and various other personal identifiers. It is your responsibility to keep them safe and not disclose them to anyone else. You are responsible for all use of the Service accessed via these passwords or personal identifiers, including, without limitation, all Charges incurred and any breaches of this Agreement, even where the Service is not actually used by you, but by some other person or organisation using the passwords or personal identifiers. 6.2 You will keep any password and personal identifier confidential and will immediately notify us if any unauthorised third party becomes aware of the password or personal identifier.
6.3 We will accept your password or security phrase as authority to make any changes to the Service or your account.


7 USE OF THE SERVICE

Personal Use

7.1 If you are a Consumer, the Service is supplied to you for your personal use. You may not commercialise it or use it in connection with any occupation, trade or profession without our prior written consent.

Business Use

7.2 If you are a Business Customer, you may not make any unauthorised commercial use of the Service. Without limitation, this means that you may not make the Service available as part of a network or access or run it simultaneously from or on more than one operating unit . You agree to keep full and accurate records of any and all operating units on or in connection with which the Service is enabled, and shall permit us to review and evaluate such records from time to time to ensure your compliance with your obligations under this clause 7.2.
Use of other networks

7.3 Where you use the Service to reach networks and services not operated by us, you will abide by the acceptable use policies or terms and conditions imposed by the operators of those networks and services.


8 PAYMENT

8.1 All Charges shall be payable on the due date(s) shown in the Confirmation Form.
8.2 We may at any time vary any of the Charges in accordance with the terms of clause 22.
8.3 Charges are exclusive of value added tax, which must be paid by you on submission by us of a proper VAT invoice, unless you are exempt from tax and display to us a valid tax exemption certificate.
8.4 We reserve the right to charge interest on any amounts due by you to us which are not paid on the relevant due date, from that date until the date of payment (whether before or after decree) on a daily basis at the rate of 3% above the base rate from time to time of the Bank of England. You shall reimburse us all costs and expenses (including reasonable legal costs) incurred in the collection of any overdue amounts. Interest shall continue to accrue and costs and expenses shall continue to be reimbursed after the termination of the Agreement for any reason.
8.5 All payments must be made in pounds sterling.
8.6 If you attempt to pay by means of a cheque which is not honoured by your bank for any reason whatsoever, you will be liable for an administration charge of £25, and we may suspend the Service at our discretion in accordance with clause 15.3.3. The same fee’s also apply if you wrongly request a chargeback if paying by credit card.
8.7 Without prejudice to our other rights and remedies, if any Charge is not paid on or before the due date, we shall be entitled immediately to suspend the provision of the Service to you, in accordance with clause 15.3.3.
8.8 If at any time before or during the term of the Agreement, you fail to meet the standard of creditworthiness deemed acceptable by us from time to time, we shall be entitled to do all or any of the following:-
   8.8.1 to require you to make such regular instalment payments in advance on account of any future Charges as we deem necessary;
   8.8.2 to impose credit limits on you in respect of Charges, and to suspend the Service at any time when such limits are reached until payment in full of such outstanding Charges;
   8.8.3 to impose such other restrictions on your right to use the Service as we shall reasonably deem necessary.
8.9 Renewals
   8.9.1 When your account is due for renewal, we will e-mail and post an invoice to the details we have registered for you, we will also send a further reminder if the payment becomes overdue.
   8.9.2 If the payment becomes more than 7 days overdue, we reserve the right to find other contact methods for you to try to gain payment, including contacting any e-mail address or telephone number on the website, to avoid downtime for the service.
8.10 Overusage
   8.10.1 You accept that if your account has any predefined limits applied to it, for example for data transfer or disk space usage, you will be liable for any excess charges generated by that account, with or without your previous knowledge. You can obtain a full list of any overusage charges by contacting accounts@btshosting.co.uk
   8.10.2 Any fee’s that become due as the result of overusage will be held against your account, and are subject to all the normal clauses of section 8, and could lead to your account(s) being terminated or suspended if the payments are not made, or an appropriate payment agreed to with BTS Hosting.


9 RIGHT TO CANCEL

9.1 This clause 9 applies to you only if you are a Consumer.
9.2 Subject to clause 9.4, you have seven working days from the Commencement Date (“the cancellation period”) in which to cancel the Agreement.
9.3 If you wish to cancel the Agreement, you must notify us of this fact in writing and send your notification to us by e-mail or post. Full contact details are set out in the “Contacts” section of our website.
9.4 You have no automatic right to cancel the agreement between us if, at your request or otherwise but with your consent, we begin to provide the Service to you within the cancellation period.
9.5 If you do wish to no longer use the particular service then no refunds will be available for any unused time remaining on the account.


10 ADDRESSES FOR COMPLAINTS

10.1 You may send us any complaints about the Service:-
   10.1.1 by post to: Complaints Department, Broken Toyshop Limited, 21 Limefields Way, East Hunsbury, Northampton, NN4 0SA
   10.1.2 by e-mail (in which case you must quote your address details, including your postcode, and your password or security phrase), to accounts@btshosting.co.uk


11 SUPPORT SERVICES

11.1 We will use reasonable endeavours to respond to any request for support in relation to a recognised emergency fault within 30 minutes of being notified of it, and shall make all commercially reasonable attempts to resolve the fault within four hours of acknowledging the problem.
11.2 As part of the Service, we offer technical advice and support via e-mail. We reserve the right to establish limitations on the extent of such support, and the hours at which it is available, and you understand that we cannot accept any liability for any loss or damage arising (whether directly or otherwise) out of the giving of such assistance and or advice, except where this is due to our negligence, recklessness or wilful misconduct in the performance of our obligations under the Agreement.


12 LIMITATION OF LIABILITY

12.1 Nothing in these terms and conditions is intended to exclude any provision of the Unfair Contract Terms Act 1977, or of the Unfair Terms in Consumer Contracts Regulations 1999, or of any other legislation designed to ensure that the rights of parties to a contract of the type of the Agreement (i.e. standard terms and conditions which are not individually negotiated) are fairly balanced.
12.2 Subject to clause 12.1, we shall not be liable to you for any loss or damage unless such loss or damage arises as a direct result of our negligence, recklessness or wilful misconduct, or fraud or misrepresentation on our part.
12.3 To the fullest extent permitted by applicable law, we disclaim all liability for our employees’ or sub-contractors’ negligence.
12.4 We may include links from time to time from the Service or our website to other internet sites. We have no control over the content of such sites and disclaim any liability in respect of your use of such sites. 12.5 All conditions, terms, representations and warranties relating to the Service and not expressly stated in the Agreement are hereby excluded to the fullest extent permitted by law.
12.6 Our total liability to you in respect of any claim by you arising out of or in connection with the provision (or the failure to provide) the Service shall be limited to the amount paid by the client for the Service, where a limit can be applied.
12.7 No claim by you against us shall be valid unless you have notified us of the details of the claim within one year of it arising.
12.8 Every provision of this clause 12 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason any of these provisions is held inapplicable or unenforceable in any circumstances, and shall remain in force notwithstanding the expiry or termination of the Agreement.


13 INDEMNITY

You agree that you shall be liable for, and hereby agree to indemnify us on demand in respect of any and all demands, liabilities, losses, costs and claims (including reasonable legal fees) sustained or incurred by us, our agents, suppliers, resellers, our customers, officers or employees, and arising as a result of breach by you, your employees, agents or sub-contractors, or any person with whom you share the Service in accordance with paragraph 4 of Part 2 of the Schedule of the Agreement.


14 WEBSITE CONTENT

14.1 We have used reasonable care and skill in compiling the content of our website but make no warranty, express or implied, as to the nature or accuracy of any material on the website and cannot accept liability for any particular material on the website or as a result of any use of or reliance placed upon information contained within the website. The Confirmation Form is conclusive as to the Charges and the description of the Service.
14.2 Although every effort is made to ensure complete accuracy, some prices or details shown on the website may change from time to time, and it is possible that errors will occur. We will use reasonable endeavours to rectify any errors as swiftly as possible.


15 SUSPENSION/TERMINATION

15.1 We reserve the right at any time to suspend the Service or terminate the Agreement without notice to you and without giving you any refund in the event that we, acting reasonably, consider that you have made inappropriate use of the Service or otherwise materially breached the Acceptable Use Policy. Examples of inappropriate use of the Service are given in the Acceptable Use Policy.
15.2 Either you or we may terminate the Agreement at any time by giving at least 28 days’ written notice to the other party, unless you are a Reseller, in which case paragraph 3 of Part 3 of the Schedule applies, or unless you have a dedicated server, in which case Part 4 applies, or unless mentioned otherwise in the Schedule or Confirmation form. You may also terminate the Agreement in the circumstances described in clauses 22 and 24.
15.3 In addition to our rights under clauses 15.1 and 15.2, we may suspend the Service or terminate the Agreement immediately without notice to you and, in the case of clauses 15.3.2 to 15.3.6 inclusive, without giving you any refund if any of the following occurs:-
   15.3.1 we are precluded from providing the Service by law or by the decision of any competent judicial, governmental or regulatory body;
   15.3.2 you provide us with any false, inaccurate or misleading information for the purpose of using the Service;
   15.3.3 you fail to pay any sum due to us when it falls due, and have not made payment within 7 days of the due date, or you breach any other provision of the Agreement and, if the breach is remediable, fail to remedy the breach within 30 days of written notice from us specifying the nature of the breach, and the steps required to remedy it; or
   15.3.4 you commit an unremediable breach of the Agreement. (Without limitation, particular examples of breaches which are for the purposes of the Agreement incapable of remedy include jeopardising or compromising the security or integrity of our network or serious breach of the Acceptable Use Policy, including, for example (but without limitation), the posting or transmission of defamatory content through or in connection with the Service);
   15.3.5 (in accordance with the law of any jurisdiction in the world) you become bankrupt or apparently insolvent, are sequestrated, wound up, make a proposal for a voluntary arrangement under the Insolvency Act 1986, cease or threaten to cease to carry on your business, or otherwise are unable to meet your debts as they fall due; or
   15.3.6 we decide (acting reasonably) that any event has occurred which adversely affects your ability to pay any sum due to us as and when it falls due, or otherwise to perform your obligations under the Agreement. (This includes, without limitation, your credit or debit card being declined, or us receiving notice that you have disputed any charges with your credit card company); or
   15.3.7 your death.
15.4 We may temporarily suspend the Service for the purpose of repair, maintenance or improvement of any of our facilities which are necessary to provide the Service, or vary the technical specification of the Service for operational reasons, without incurring any liability to you or any other person, subject to us giving you as much online, written or oral advice as is reasonably practicable in the circumstances, and restoring the Service as soon as reasonably practicable after such temporary suspension.
15.5 On termination of the Agreement or suspension of the Service in any of the circumstances described in clauses 15.3.2 to 15.3.6 inclusive, we shall be entitled, acting reasonably, to do all or any of the following:-
   15.5.1 immediately to block any website of yours which we host and to remove all data located on it or on our servers;    15.5.2 to delete all such data (but we may, at our discretion, hold such data for such period as we may decide to allow you to collect it at your expense, subject to payment in full of any amounts outstanding and payable to us by you);
   15.5.3 to post such notice on your website in respect of the non-availability of your website as we think fit;
   15.5.4 to take any other action we, acting reasonably, deem appropriate and proportionate to the breach of the Agreement.
15.6 On termination of the Agreement for any reason, any licence granted to you under clause 4.2 shall automatically terminate. 15.7 We shall investigate any suspected or alleged breach of the Agreement, and make an additional charge for all reasonable costs incurred due to investigating and dealing with the misuse and/or blocking access to any components of the Service. Without limitation, you expressly authorise us to use your personal data and other account information in connection with any such investigation, including by disclosing it to any third party whom we consider has a legitimate interest in any such investigation or its outcome.


16 EQUIPMENT

You acknowledge that any Equipment supplied to you shall remain at all times our property.


17 INTELLECTUAL PROPERTY RIGHTS

You shall obtain any and all necessary consents, licences and clearances to enable you lawfully to make use of all and any intellectual property rights through the Service, including, without limitation, clearance, licences and/or consents in respect of your proposed domain name.


18 DATA PROTECTION

We shall use any personal data collected from you strictly in accordance with the terms of our Privacy Policy and the terms of clause 15.7, in the event of an investigation such as is described there. By proceeding with an order you expressly consent to the uses and disclosures of data set out in the Privacy Policy (as varied from time to time). We reserve the right to monitor your use of the Service, although you acknowledge that we have no duty to do so.


19 FORCE MAJEURE

19.1 We shall not be in breach of the Agreement or otherwise liable to you in any manner whatsoever for any failure or delay in performing our obligations under the Agreement due to force majeure.
19.2 In these terms and conditions “force majeure” shall include, but is not limited to, such causes beyond our control, and without our fault or negligence, as are occasioned by: any third party being unable to provide goods or services to us; acts of God; war or national emergency; acts of civil or military authority; acts of terrorism; riot; civil disturbance; malicious damage; compliance with any law or governmental order, rule, regulation or direction; acts or order of any government agency or official thereof; accident; transport contingencies; shortage of facilities, fuel, energy, labour or materials; fire; explosion; flood; or storm.


20 NOTICES

20.1 Any notice to be given in accordance with these terms and conditions by us to you may be sent by either e-mail, fax or recorded delivery, and:-
   20.1.1 if sent by e-mail shall, unless the contrary is proved, be deemed to be received on the day it was sent;
   20.1.2 if sent by recorded delivery shall be deemed to be served two days following the date of posting.
20.2 Any notice to be given in accordance with these terms and conditions by you to us shall be in English and may be sent by either e-mail or recorded delivery. You should not assume that any such notice has been received by us until we send you confirmation of receipt.
20.3 Notices sent to us shall be sent to Broken Toyshop Limited, 21 Limefields Way, East Hunsbury, Northampton, NN4 0SA. We shall send any notice to you to the address which you state to us on your Order Form, and it is your responsibility to notify us of any change to that address.


21 WAIVER

Any failure by us to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.


22 VARIATION

We reserve the right to amend the provisions of the Agreement at any time. If we do so, we shall display a notice on our website for a period of thirty days prior to the amendment coming into effect, informing you of the amendment and the date on which it is to come into force, and will notify you by e-mail if the amendment affects the type of Service to which you subscribe. Your continued use of the Service after any such amendment has come into effect shall be deemed to be your binding acceptance of such amendment. If you are a Consumer you will have the right to end this Agreement by written notice at any time up to the date on which the amendment comes into force.


23 SEVERABILITY

If any of the provisions of the Agreement is found by any court or other competent authority to be void or unenforceable, such provision shall be deemed to be deleted from the Agreement and the remaining provisions of the Agreement shall continue in full force and effect. Notwithstanding the foregoing, we and you shall thereupon negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision so found to be void or unenforceable.


24 ASSIGNATION

You may not otherwise than in accordance with paragraph 4 of Part 1 of the Schedule (sharing of Service) transfer any of your rights or obligations under the Agreement to any other person. We reserve the right to assign or sub-contract any or all of our rights and obligations under the Agreement to any person, but if we do so you may terminate the Agreement in accordance with clause 22. We shall give you reasonable notice in writing of our intention to assign the Agreement.


25 LAW AND JURISDICTION

25.1 The Agreement shall be governed by and construed in accordance with British law and you hereby submit to the non-exclusive jurisdiction of the British courts. You are responsible for compliance with any applicable laws of the country from which you access our website.

SCHEDULE

Part 1 – Website Hosting and e-mail

1 For the purposes of this Part 1, “Server” means the computer server equipment operated by us or others in connection with the provision of the Service.
2 We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server.
3 You shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server.
4
   4.1 Unless you are a Reseller, you shall not share use of the Service, or any part of it, with any other person except:-
      4.1.1 if you are a Consumer – members of your household at the same address; or
      4.1.2 if you are a Business Customer – your employer or employees or other people with whom you work at the same address; or
      4.1.3 where previously agreed with us in writing.
   4.2 You shall procure that any person with whom you share use of the Service in accordance with paragraph 4.1 of this Part 2 of the Schedule complies in full with the Agreement (other than with respect to payment of Charges, for which you will remain solely responsible) as if he, she or it were an original party to the Agreement. You are responsible for any misuse of the Service by anyone with whom you share the Service.
5 You shall observe the procedures which we may from time to time prescribe and shall make no use of the Server which is detrimental to any other person.
6 You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation), and in a secure manner.
7 The Service may contain errors and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as (without limitation) in the operation of nuclear facilities, aircraft navigation, traffic or communication systems, air traffic control, direct life-support machines, or weapons systems, in which the failure of the Service could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, without prejudice to any other disclaimer or limitation of liability in the Agreement, we specifically disclaim any express or implied warranty of fitness of the Service for use for High Risk Activities.
8 You acknowledge that you have no right to any physical access to the premises from which the Service is provided or any other of our premises, without our explicit prior permission.