JustRackz hosting Terms of Business
These Terms apply to all internet hosting services provided by JUSTrackz.
1. Definitions
1.1. ‘Terms’ means these terms.
1.2. ‘Selected Options’ means the particular package of service and pricing options selected by the Subscriber and accepted by JUSTrackz, subject to any later changes made in accordance with these Terms.
1.3. ‘Services’ means the Web-Server and/or Mail-Server facilities connected to the internet, together with any associated services, all as specified by the Selected Options and to be provided by JUSTrackz on the basis of this Agreement.
1.4. ‘AUP’ means JUSTrackz’ Acceptable Use Policy.
1.5. ‘Data’ means all material and other data held on or received or transmitted using the Services, other than such as is provided by JUSTrackz itself as part of the Services.
1.6. The Selected Options, these Terms and the AUP constitute the entire contract between the parties in relation to the Services; they are together referred to as ‘this Agreement’, and may only be varied as specified in this Agreement.
2. Support
2.1. Support is available by email to support@justrackz.com, and may also be available by instant online chat by contacting 7 Ship Street Garden, Brighton, BN1 1AJ during the hours 9 to 6 on normal UK working day. JUSTrackz will use reasonable efforts to respond to all requests for support as quickly as practicable. JUSTrackz obligation to provide support is limited to the Services and does not extend to support in relation to third party products operated by Subscribers and which make use of the Services.
3. Subscriber obligations and acknowledgements
3.1. The Subscriber is solely responsible for the accuracy, legality, currency and compliance of its Data and will be solely liable for false, misleading, inaccurate, infringing or other actionable material contained or referred to therein, and for all use thereof. The Subscriber is responsible for ensuring that all use of the Services complies with the AUP, and for taking all reasonable steps to ensure that any software it may host by means of the Services is up to date and secure. JUSTrackz may treat any breach of this term as a Serious Breach.
3.2. The Subscriber is solely responsible for maintaining the confidentiality and security of its account and its Data and usage, including use of its unique logon ID and password, and for all use of the Services when accessed using such ID and password.
3.3. The Subscriber acknowledges and agrees that JUSTrackz may be authorised or required by a law enforcement agency to suspend the Services, and/or to monitor Website content and traffic and if necessary give evidence of the same together with use of the logon ID.
3.4. It is the Subscriber’s responsibility to maintain at all times an adequate offline backup of all its Data. Whilst JUSTrackz may assist in attempts to restore lost or damaged Data, JUSTrackz is not obliged to do so, and not liable for any failure to do so.
4. Service Level
4.1. JUSTrackz does not warrant that the JUSTrackz Service or the Server will be continuously available 24 x 7 x 365 but will use its reasonable endeavours to keep downtime to a minimum and (where practicable) to give advance notice thereof.
4.2. The Services provided by JUSTrackz are hosting with an internet connection. Any site connected to the internet is potentially exposed to risks of ‘hacking’ and other forms of external attack from the internet, the results of which may include (but are not limited to) downtime, third party access to Data, and loss of Data. In the case of a co-hosted site, there may be similar consequences for other sites co-hosted on the same server, and in the case of a Virtual Private Server, for other Virtual Private Servers hosted on the same physical machine.
4.3. A site hosted on a dedicated server will generally have greater security against such risks than a site hosted on a Virtual Proviate Server, which in turn will generally have greater security against such risks than a site which is co-hosted with others. It is not technically possible to wholly safeguard effectively against all risks of attack, and
4.3.1. JUSTrackz’ obligations are limited to taking reasonable care to safeguard against such risks, so far as is commercially reasonable taking into account the Selected Options
4.3.2. JUSTrackz will nevertheless use reasonable efforts to keep any resulting downtime to a minimum
4.3.3. JUSTrackz may charge for any attempts made (whether or not successful) to recover lost or corrupted Data
4.3.4. JUSTrackz’ liability remains limited as set out elsewhere in these terms.
4.4. The Subscriber accepts JUSTrackz’ Service and Server "AS IS" with any faults or failings and without any representation, warranty or guarantee whatsoever, express or implied (save as expressly set out in these Terms), including without limitation any implied warranty of accuracy, completeness, quality, continuity of service, connectivity, merchantability, security, fitness for a particular purpose or non-infringement.
5. Indemnity and Waiver
5.1. The Subscriber agrees to indemnify and keep indemnified JUSTrackz, any third party involved in the storage or transmission of Data, their successors and assigns, and each of their respective directors, officers, employees and agents (collectively "Hosts") from and against any and all liability, damages, losses, claims (including reasonable legal fees) resulting in any way from any Data, from any use thereof, or from any other matter relating to this Agreement.
5.2. The Subscriber waives any right to bring any claim or action against the Hosts for any loss, damage or injury arising from use of the Services or of the Data or from the AUP.
6. Payment
6.1. The Subscriber is responsible for ensuring that JUSTrackz holds up to date details of a current valid credit card with sufficient available credit to accept JUSTrackz’ charges as and when they fall due.
6.2. The Subscriber will pay JUSTrackz fees on the due date.
6.2.1. Monthly fixed charges are payable in advance on the first day of each month; annual fixed charges are due on commencement and annually thereafter; all charges may be debited to the Subscriber’s credit card on the due date.
6.2.2. Variable charges will be invoiced electronically by email to the address the Subscriber has notified for the purpose and may be debited to the Subscriber’s credit card 14 days after invoice.
6.2.3. All charges are subject to VAT as applicable.
6.3. Where JUSTrackz agrees to accept payment other than by credit card, and JUSTrackz has not received payment in cleared funds on or before the due date, JUSTrackz may treat the event as a Serious Breach.
6.4. Where an attempt to debit a charge to a Subscriber’s credit card is declined by the card issuer, JUSTrackz may
6.4.1. apply an additional administration charge of £25 (or, if lower, of the highest amount permitted under any applicable law), and/or
6.4.2. at its discretion make further attempts to debit the charge and any additional administration charge, and/or
6.4.3. notify the Subscriber and request alternate card details, and/or
6.4.4. treat the event as a Serious Breach.
7. JUSTrackz's Liability
7.1. JUSTrackz shall not be liable to the Subscriber for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, the Services, Data, any software (including Bespoke Software), its use, application, support or otherwise, except to the extent to which it is unlawful to exclude such liability.
7.2. Notwithstanding the generality of the above, JUSTrackz expressly excludes liability for consequential loss, damage or corruption to the Website, its software, other software or data, or for loss of profit, business, revenue, goodwill or anticipated savings.
7.3. In the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and JUSTrackz becomes liable for loss or damage that it may otherwise have been lawful to limit, such liability shall be limited to JUSTrackz’ charges paid by the Subscriber in the year in which the liability occurred.
7.4. JUSTrackz does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of JUSTrackz its employees, agents or authorized representatives.
8. Copyright, Patents, Trade Marks and Other Intellectual Property Rights
8.1. The Subscriber acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights created, developed, subsisting or used in or in connection with the Services are and shall remain the sole property of JUSTrackz and the Subscriber shall sign and return any software licence which relates to software provided as part of the Services. The Subscriber shall not during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute the ownership by JUSTrackz thereof.
8.2. The Subscriber shall indemnify JUSTrackz fully against all liabilities, costs and expenses which JUSTrackz may incur as a result of work done in accordance with the Subscriber's instructions in providing the Services involving infringement of any copyright, patent or other proprietary right (including but not limited to framing or linking to third party Websites and/or third party proprietary material).
9. Serious Breach
9.1. In all cases of Serious Breach by the Subscriber, JUSTrackz may suspend the Services, and/or terminate this Agreement.
9.2. Whilst Services are suspended for Serious Breach,
9.2.1. JUSTrackz may (but shall not be obliged to) reinstate the Services on such conditions as it thinks fit (which may include a reconnection charge of such amount as may be notified from time to time), and/or
9.2.2. JUSTrackz may terminate this Agreement.
9.3. If JUSTrackz terminates this Agreement as a result of a Serious Breach, no refund will be due.
10. Termination
10.1. Either party may give the other one month’s notice to terminate at any time without cause. If such notice is given by JUSTrackz and the Subscriber has paid any charges relating to a period after the end of the notice period, then JUSTrackz will make a pro rata refund in respect of that period.
10.2. Notwithstanding any other provisions herein contained, and without prejudice to any other rights such party serving notice may have, JUSTrackz may forthwith terminate this Agreement by written notice to the Subscriber if any of the following events will occur:
10.2.1. if the Subscriber commits any breach of the terms or conditions of this Agreement and fails to remedy such breach (unless it is Serious Breach, or is not capable of remedy) within thirty (30) days after receiving written notice requiring it so to do.
10.2.2. if the Subscriber becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a company) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if any distress or execution will be threatened or levied upon any equipment and/or software or other property of the party entitled to serve notice hereunder or if the other party is unable to pay its debts in accordance with the law relating to this Agreement.
10.3. Within seven (7) days after the date of termination of this Agreement for whatever reason, JUSTrackz may destroy all Data.
10.4. Termination of this Agreement will be without prejudice to any accrued rights of either party and will not affect obligations which are expressed not to be affected by expiry or termination hereof.
11. Changes
11.1. JUSTrackz may change the AUP at any time with immediate effect by giving Notice to the Subscriber.
11.2. JUSTrackz may give one month’s Notice of its intention to change these Terms or the Selected Options (including its charges). If the Subscriber does not wish to accept a change of which Notice has been given, the Subscriber may within that month give Notice to end this Agreement, and if such Notice is given then the former Terms and Selected Options will continue for the entire Notice period.
11.3. The Subscriber may at any time request changes to the Selected Options. All changes are subject to JUSTrackz’ agreement.
12. Notices
12.1. Any Notice required to be given by this Agreement or required by statute, law or regulation will (unless otherwise provided) be in writing and may be sent
12.1.1. if for the Subscriber, to the email address notified by the Subscriber to JUSTrackz
12.1.2. if for JUSTrackz, to notices@justrackz.com and in the absence of a ‘failed delivery’ report, shall be deemed received when sent.
12.2. Alternatively, Notice may be delivered in person, or sent by first class mail (properly posted and fully prepaid in an envelope properly addressed) or by fax or e-mail to such address, fax number or e-mail address as may from time to time have been notified by the receiving party.
12.3. Any Notice will be in the English language and will be considered to have been given on the first working day following actual delivery or sending by fax or e-mail or (if posted) within 2 working days after posting.
13. Assignment
13.1. This Agreement may not be assigned by the Subscriber whether voluntarily or involuntarily or by operation of law in whole or in part to any party without the prior written approval of JUSTrackz.
14. Force Majeure
14.1. Neither party will be under any liability to the other in any way whatsoever for destruction, damage, delay or any other matters of that nature whatsoever arising out of war or acts of war (declared or undeclared), terrorism, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fire, explosion, earthquake, acts of God, flood, drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted body.
15. Waiver
15.1. Failure or neglect by JUSTrackz to enforce at any time any of the provisions hereof will not be construed nor will be deemed to be a waiver of JUSTrackz's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice JUSTrackz's rights to take subsequent action.
16. Headings
16.1. The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or the interpretation of any of the terms and conditions of this Agreement.
17. Severability
17.1. In the event that any of these terms, conditions or provisions or those of any schedule or attachment hereto will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
18. Law
18.1. The parties hereby agree that this Agreement and the provisions hereof will be construed in accordance with the laws of England & Wales, whose Courts have sole jurisdiction in all matters arising under this Agreement.
