1 Definitions
1.1 In these Terms and Conditions, unless the context otherwise requires, the following terms shall have the following meaning: -
"Application" means an application for the provision of services submitted by the Client to Omega Cubed;
"Charges" means without limitation the Set-up Charge and the Service Charge and any other applicable Charges as outlined in the Omega Cubed Price List;
"Client” means the person, firm or company with whom the Contract is made by Omega Cubed, whether directly or indirectly, through an agent or factor who is acting for or instructed by the Client or whose actions are ratified by such person, firm or company;
"Client System Requirements" means the requirement notified to the Client from time to time which the Client's hardware and other equipment must meet in order to enable the Client to use the Software;
"Client's Web Site" means the web site belonging to the Client which is hosted by Omega Cubed;
“Contract” means the contract between Omega Cubed and the Client under which the Services and/or Goods are to be supplied by Omega Cubed to the Client;
"Dial-Up Connection" means a connection to the Internet using a dial up telephone number supplied by an Internet Service Provider;
"Domain Name" means the domain name requested by the Client on the Application or any alternative domain name offered by Omega Cubed pursuant to Clause 4.6.
"Domain Name System" (DNS)
A distributed database of information that is used to translate domain names into Internet Protocol (IP) numbers.
“Existing Domain Name” means an existing domain name owned by the Client;
"Internet" means the worldwide TCP/IP (Transmission Control Protocol/Internet Protocol) network formed of an interconnection of companies, organisations and institutions, private and public networks;
“Internet Service Provider” means a business that offers connection to the Internet through dial-up or dedicated telephone lines;
"Omega Cubed" means Omega Cubed Ltd and, where the context permits, its assigns and any sub-contractor of the said Company. Company Number 3723987, Registered in England and Wales;
"Omega Cubed Price List" or "Price List" means the list of fees payable by the client in respect of the Services which is available from the OmegaCubed.net web site or can be requested by writing to Omega Cubed Ltd, PO Box 9351, Birmingham, England, B17 0TX;
“Products” means any articles (including for the avoidance of doubt software and instalments of the Products and any parts of, or for them) to be supplied by Omega Cubed to the Client under the terms of the Contract;
"Protocols" means the protocols and standards defined in the following Internet documents: RFC 009, RFC 1122, RFC 1123, RFC 1250 and any existing or future protocols and standards as appropriate;
”Resources” are defined as bandwidth and, or processor utilization;
“Registry" means the relevant registry or naming authority responsible for the registration of domain names that includes (without limitation) the Nominet UK and the Network Solutions Inc;
“Services” means the services to be provided by Omega Cubed to the Client under the terms of the Contract and “Service” shall be construed accordingly;
"Set-up Charge" means the charge for setting-up the Services and includes any installation charge;
”Software” means the Personal Control Panel, a password protected area of the Client’s web site which allows real-time administration of the account;
"Specific Terms and Conditions for Web Hosting Services" means these terms and conditions including any Schedules hereto;
“Top Level Domain” (TLD) In the Domain Name System (DNS), the top-level domain is the highest level of the hierarchy after the root. In a domain name, that portion of the domain name that appears furthest to the right. For example, the "net" in "omegacubed.net;
1.2 Any agreement between Omega Cubed and the Client for the provision of Web Hosting Services (an "Agreement") shall be entered into on the basis of these “Specific Terms and Conditions for Web Hosting Services” in conjunction with Omega Cubed’s general “Terms and Conditions”.
1.3 Clause headings are for ease of reference and do not form part of nor shall they affect the interpretation of these Specific Terms and Conditions for Web Hosting Services.
1.4 Where the context so admits or requires words denoting the singular include the plural and vice versa. Words denoting any gender include all genders.
1.5 References to each party include its permitted assigns and successors by operation of law.
2 Web Hosting Services
2.1 The Omega Cubed Web Hosting Service is offered through Omega Cubed. Omega Cubed reserves the right to suspend or cancel a customer’s access to any or all services provided by Omega Cubed when Omega Cubed decides that the account has been used inappropriately.
2.2 Omega Cubed shall provide the Services using all reasonable care and skill subject to payment by the Client of all amounts payable hereunder on the dates specified herein or on the Application.
2.3 The Client shall do all things and provide all such information as is reasonably required by Omega Cubed to provide the Services in accordance with these Specific Terms and Conditions for Web Hosting Services.
2.4 Omega Cubed will provide the Client with web space on an Omega Cubed server.
2.5 The allocated web space, resources and features available will be those listed on the www.omegacubed.net web site or can be requested by writing to Omega Cubed Ltd.
2.6 Additional web space or “Optional Features” are available subject to additional charges.
2.7 Whilst Omega Cubed shall use all reasonable endeavours to ensure that the web site can be accessed by users of the Internet at all times, the Client acknowledges that it is technically impossible to provide such access free of fault at all times and Omega Cubed does not undertake to do so. Access to the web site may also be adversely affected by conditions and performances outside the control of Omega Cubed, including without limitation the breakdown of transmission and telecommunication links.
3 Server Use
3.1 Omega Cubed reserves the right to refuse service or access to its servers to anyone.
3.2 The Client may not maintain web space above the contracted limit.
3.3 Accounts are to be used by the primary owner only.
3.4 Account holders are not permitted resell, store or give away the web hosting services of the Client Web Site to other parties. Web hosting services are defined as allowing a separate, third party to host content on the owner's web site. Exceptions to this include ad banners, classified ads, and personal ads.
4 Third Party Designed Web Sites
4.1 The Client will be issued with a “User Name” and “Password” in order to access their account. The Client must take all reasonable steps to maintain the confidentiality of this information.
4.2 Omega Cubed will provide access to the Client’s web space on its servers for the uploading of the Client’s third party designed Web Site. Omega Cubed will provide assistance to the Client in completing the uploading of any such web site, but the Client is responsible for any software required to perform this function. The Client acknowledges that, because of the many design packages available and the numerous methods of web design, Omega Cubed does not guarantee that the Client’s Web Site will function correctly when uploaded to an Omega Cubed server. Omega Cubed will not, under any circumstances, be responsible for providing a remedy to fix the Client’s Web Site.
4.3 Omega Cubed cannot, under any circumstances, offer assistance with respect to third party CGI scripts not directly provided by Omega Cubed.
5 Conditions and Warranties Relating to Web Hosting Service
5.1 The parties acknowledge and agree that the Client shall have full editorial control over the contents of the Client’s Web Site and the Client warrants that the Client’s Web Site (including where the Client engages in any form of electronic communication through a discussion forum, via the Client’s Web Site or otherwise with any end-user) shall not;
5.2.1 be in breach of the laws of England and Wales or the country of establishment of the Client or any end-user of the Web Site, or any internationa conventions, codes or regulations applicable to the Internet including but not limited to infringement of copyright and other Intellectual Property Rights, defamation, theft, fraud, drug-trafficking, money laundering and terrorism;
5.2.2 include any obscene or inflammatory language;
5.2.3 include any defamatory material;
5.2.4 promote sexually explicit materials;
5.2.5 promote violence, sadism, cruelty or incite racial hatred;
5.2.6 promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
5.2.7 promote illegal activity.
5.3 The Client shall indemnify and keep Omega Cubed indemnified against all proceedings, losses, liabilities, damages (including legal costs), charges and expenses of whatsoever nature arising out of or in connection with any action or claim that the content of the Client’s Web Site violates the provisions of Clause 5.2 above.
5.4 The extent to which content that is questionable under any of the above criteria is left entirely to the discretion of Omega Cubed. Customer’s posting any of the above content on their sites will have their web and ftp services suspended. Customer’s using our system for illegal activities will have their accounts immediately cancelled without refund of any fees.
6 High Resource User Policy
6.1 Resources are defined as bandwidth and, or processor utilization.
6.2 If a customer is found to be using server resources to such an extent that they may jeopardize server performance and resources for other customers, Omega Cubed reserves the right to impose a “High Resource User Policy”.
6.3 Omega Cubed may implement the following policy at its sole discretion:
6.31 If a web site is found to be monopolising the resources available Omega Cubed reserves the right to suspend that site immediately.
6.32 Omega Cubed may elect to charge the Client an additional fee to continue hosting the web site.
7 E-mail Usage Policy
7.1 Omega Cubed does not support the sending of unsolicited e-mail messages by users of our system. The Client may send advertising material only to addresses that have specifically requested it. Customer’s sending unsolicited e-mail messages from our system or posting “spam” in Usenet Newsgroups will have all of their services suspended. A repeat offence may cause cancellation of service without refund of any fees.
7.2 Mail forwarding on an account will stop if the mailbox for the account is full. This will occur only if “keep copy on server” is enabled on the Personal Control Panel. Each mailbox is limited to a maximum of 500 messages, consuming no more than 20Mb of disk space, awaiting collection at any one time. Once this limit is exceeded all mail will be rejected.
8 Charges
8.1 All accounts are established on a prepayment basis. Although Omega Cubed reserves the right to change the prices of accounts or services at any time, all pricing is guaranteed for the period of prepayment. The fees payable to Omega Cubed in respect of the Services are specified in the Omega Cubed Price List. All charges are exclusive of VAT and any other applicable purchase tax, import and all other duties.
8.21 Web Hosting charges shall be payable annually or monthly in accordance with the Omega Cubed "12 for 10" scheme set out in the Price List.
8.22 All other charges shall be payable monthly or annually.
8.3 Any failure by the Client to pay any fees due under these Specific Terms and Conditions for Web Hosting Services on the date specified shall be deemed to be a "material breach" of these Specific Terms and Conditions for Web Hosting Services.
8.4 If the Client is overdue with any payments hereunder, then without prejudice to any other rights and remedies of Omega Cubed, the Client shall be liable to pay to Omega Cubed additional sums as defined under section 8 of the main Omega Cubed "Terms and Conditions".
9 Cancellation and Refunds
9.1 Omega Cubed reserves the right to cancel the service at any time. In this event customers will be entitled to a pro rata refund based upon the remaining period of membership. If a customer contravenes Omega Cubed's terms of service a refund will not be issued in the event of a cancellation.
9.2 Customers may cancel their account at any time. Fees charged on a prepayment basis are non-refundable.
9.3 The establishment of an account incurs set-up fees and these charges are also non-refundable
10 Term and Termination
10.1 Any Agreement shall commence on the date of acceptance by Omega Cubed of the Application by the Client and, subject to Clause 10.2, shall continue for an initial period of 1 month or 12 months respectively and thereafter unless and until terminated by either party on giving to the other written notice, such notice to expire no earlier than the end of the initial period.
10.2 Either party may terminate any agreement governed by these Specific Terms and Conditions for Web Hosting Services with immediate effect on written notice if the other party (the "Defaulting Party"):
10.2.1 commits a material breach or persistent breaches of these Specific Terms and Conditions for Web Hosting Services and (in the case of a breach or breaches which is or are remediable) fails to remedy the same within 30 days of receiving a written notice specifying the nature of the breach and requiring the same to be remedied; or
10.2.2 becomes or is deemed to be insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for the purpose of winding up the Defaulting Party or the Defaulting Party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator or administrative receiver appointed over all or any part of its assets or the Defaulting Party ceases to carry on all or a substantial part of its business.
10.3 Not withstanding any of its other remedies under these Specific Terms and Conditions for Web Hosting Services Omega Cubed shall, at its sole discretion, have the right to suspend the Services at any time if the Client is in breach of any of his obligations set out in Clauses 3, 4, 5, 6, 7, 8 and 9;
10.4 The termination of any Agreement (for whatever reason) shall not affect the respective rights and liabilities of each of the parties accrued prior to such termination.
11 Consequences of Termination
11.1 Upon the termination of any Agreement for any reason whatsoever: -
11.1.1 Omega Cubed may cease to host the Client’s Web Site with immediate effect; and
11.1.2 each party shall on request promptly return any documents or papers relating to the business of the other party.
