Terms and Conditions for SMART Server Monitoring

This page (together with the documents referred to on it) tells you the terms and conditions on which we supply any of the products and services listed on our website www.smartservermonitoring.com (“Site”) to you, this includes free trials, as well as any services that are provided to you individually. Please read these terms and conditions, and any additional terms that may be provided to you, carefully before ordering or accepting any Services from our Site or from the Company directly. You should understand that by ordering the Services from the Site, you agree to be bound by these terms and conditions (referred to as the “Agreement” or Terms and Conditions”). These terms shall also apply to you if you were sold the Services, and/or the Supplemental Services, through a reseller, or some other distribution or sales channel.

You should print a copy of these terms and conditions for future reference.

Please check the box next to the "I Accept" at the end of these terms and conditions to confirm that you accept the Terms and Conditions, and understand the same. Please understand that if you refuse to accept these terms and conditions, the Company shall not be able to provide the Services or Supplemental Services to you,

1. Definitions

1. In these terms and conditions the following words and expressions shall have the following meanings:

1. “Alert” means the alert registered in the Alerts Matrix of the Control Panel

2. “Control Panel” means the online panel for the Customer to access and amend the Services.

3. “Fees” means all fees payable by the Customer to the Company for the Services and Supplemental Services

4. “Intellectual Property Rights” means any and all patents, trade marks, service marks, copyright, moral rights, rights in design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating to the same

5. “Order Confirmation” means the order confirmation form(s) submitted by the Company to the Customer by email or otherwise in writing for the provision of the Services, and/or Supplemental Services in response to the Customers order or request

6. “Recipient” means the individual/3^rd party instructed to receive Alerts

7. “Server” means a server(s) that the Customer registers on the Control Panel, and is confirmed as being monitored by the Company.

8. “Services” means the services to be provided by the Company to the Customer, pursuant to these terms and conditions, namely those of monitoring a Server for specific errors and advising the Customer of the same.

9. “Supplemental Services” any additional services that are required by the Customer from the Company, or are required as an addition to the Services as recommended by the Company. Supplemental Services shall be charged separately to the Customer, to be agreed in advance unless stated on the Site.

2. Interpretation

1. The headings used in the Agreement are inserted for convenience only and are not intended to be part of nor to affect the meaning or interpretation of any of the Agreement.

2. In the Agreement the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context shall admit or require.

3. The expression "person" means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.

4. In the event of a conflict between any of these Terms and Conditions and any Order Confirmation, the conflict will be resolved according to the following order of priority: these Conditions then the Order Confirmation.

5. The words "include", "includes", "including" and "included" will be construed without limitation unless inconsistent with the context.

6. The Agreement (as varied in accordance with its terms) forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between the parties.

7. The parties do not intend that any of the terms of the Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not party to it.

8. References in these Terms and Conditions to clauses means clauses of these Terms and Conditions. References in these Conditions to the provisions of statutes or statutory instruments are deemed to include those provisions as amended or substituted.

3. Information about us

1. www.smartservermonitoring.com is a site operated by Applied IT Services Limited (“Company”). We are registered in England and Wales under company number 06839635 and with our registered office at 29 Knighton Lane, Leicester, LE2 8BG Our VAT number is 977 7275 54.

4. Customer Registration

1. When you sign up to the Services you shall be required to provide your email address, which shall be used as your User ID, and the Company shall send to you a password to the email address provided. It is your responsibility to ensure that your User ID and password to the Control Panel is kept confidential, and not divulged in any way. The Company cannot be held responsible for any unauthorised activity that takes place on your Control Panel, or any interruption/malfunction to the Services and/or Supplemental Services as a result of the same.

2. You agree to notify us immediately if you suspect any unauthorised use of your Control Panel or access to your password. The Company cannot not be held responsible for any loss or damage arising from your failure to comply with this section, or any part of these Terms and Conditions.

5. Services

1. The Services to be provided by the Company to the Customer shall at all times be as described on an Order Confirmation(s). The Company has agreed to provide the Services and/or Supplemental Services to the Customer on these Terms and Conditions. The Terms and Conditions do not constitute an offer to provide the Services, but a statement of the terms upon which the Company shall provide the Services and/or Supplemental Services to the Company.

2. The Services shall commence, and a contract shall be established, once the Customer receives an Order Confirmation to confirm the same. The Order Confirmation shall be sent once the Customer registers a Server; the Server has been confirmed as registered by the Company; and payment has been made and cleared by the Customer to the Company.

3. For the avoidance of doubt, this Agreement shall govern every Server individually that is assigned to the Customers Control Panel, and is confirmed as being monitored pursuant to Clause 5.1.

4. The Customer is required to ensure that the Server does and will respond to any Services, or Supplemental Services. Please refer to the Site for a list of servers that are capable to be monitored by the Company, and that are compatible with the Services and/or any Supplemental Services. The Company cannot be held responsible for any liability arising due to any Services, or Supplemental Services, not being performed as a result of the Server not being compatible with the Services and/or the Supplemental Service.

5. Each Server is required to be registered on the Control Panel individually.

6. Each Server shall be charged for individually as stated on the Site.

7. The Control Panel shall be used by the Customer to monitor and setup the Services. The Customer accepts that the Company does not monitor the Control Panel, and may not validate the Customers input data.

8. It is the Customers responsibility to ensure that the Server has been registered on the Control Panel, and is communicating with the Control Panel.

9. For some Services, the Company may require the Customer to download software to the Server. The Company does not accept any liability arising for any loss of data or corruption of data to the Server as a result of any download.

10. At times the Company may offer a 30 day money back guarantee. In these instances, the Customer shall be required to notify the Company in advance of expiry of the 30 days, commencing on the day the Order Confirmation is sent by the Company. Should the Customer continue with the Services the Term shall continue as normal for a period of 12 months. Should the Customer serve notice to terminate, in accordance with clause with Clause 22, the Company shall offer a full refund of Fees paid up to that date in respect of the Services.

11. Should Fees be due and outstanding, the Services shall be limited as directed from time to time on the Site. Once payment has been made, and cleared, Services shall resume to full Services as described on the Site.

6. Supplemental Services

1. Supplemental Services shall include services that are required by the Customer in addition to the Services, or such services as recommended by the Company for proper, or more enhanced, performance of the Services by the Company.

2. Supplemental Services may require attendance at the Customer’s premises. The Customer shall ensure that such access is available, and that the Customer is insured for any risk to any Company representative whilst attending their property.

3. The Company reserves the right to appoint a sub-contractor to deal with any Supplemental Services, or recommend a list of suppliers to the Customer to source the Supplemental Services, or some aspect of them. The Company does not accept any liability; responsibility; or assurance of character of any sub-contractor, or recommended supplier.

7. Availability of the services

1. The Company endeavours to provide the Services to the Customer using reasonable care and skill. The Company cannot be held responsible for interruptions in the Service; Supplemental Services or Alerts.

2. The Company cannot guarantee:

1. that the Services and/or Supplemental Services shall be provided fault free at all times;

2. the Alerts being received by the Recipients, and the retrieval of such Alerts by the Recipient

3. the Services may react to all errors that the Server may experience.. Therefore, there could be a situation where an error has occurred, and the Services have not picked up on that error.

4. that an Alert will be issued prior to downtime of the Server, or when the Server recuperates from a down time.

5. that an Alert will be issued during any downtime of the Company’s systems.

8. Term

1. The Term of the Services shall be 12 months from the day the Server is registered with the Control Panel, and acknowledged by the Company. The commencement date of the Term shall vary dependant on when a Server is registered, and is individual to each Server registered on the Control Panel.

2. Each Server is independent and is treated as a separate server with a separate agreement. For the sake of clarification if the Customer registers a further Server in the future, the 12 months for this new Server shall commence from the date that the Server is registered, and not from the date when a previous Server was registered.

3. The Services shall be continued to be supplied to the Customer, until terminated by the Company, or terminated by the Customer, pursuant to Clause 17. For clarification, each time a Server is renewed, it shall be renewed for 12 months and pursuant to these terms and conditions.

9. Notification of Alerts to Recipients

1. Upon account setup, and through the Alert Matrix in the Control Panel, the Customer shall be entitled to enter details of three individuals who shall receive the Alerts (“Recipients”), and the method by which the Alert shall take place. It is the Customers responsibility that the contact details are correct at all times. The Company cannot be held responsible for inaccurate contact details entered, and an Alert not being received.

2. The Recipients shall be contacted on the contact details provided. Should these persons be 3^rd party contractors, it is the Customers responsibility to ensure that direct contact details are obtained, and these contact details are maintained and updated at all times, and are active.

3. Should the status of any Recipients be changed, it is the Customers responsibility to ensure that their status is at all times adjusted on the Control Panel, so Alerts are received somewhere.

4. Alerts to Recipients shall be limited during the Initial Period, and at any such time the Customers account is overdue, or when the Customer is in breach of any term of this Agreement or Company policy.

5. The Company cannot be held responsible should a Recipient fail to respond to an Alert

10. Payment for the Services

1. Fees are payable by the Customer at the point that a Server is registered on the Control Panel.

2. Fees are paid annually thereafter, should the Customer wish to continue the Services, and/or Supplemental Services for a particular Server..

3. Fees are non refundable in whole or in part, should the Customer terminate the Agreement during a 12 month term from when a Server was registered with the Company.

4. The Customer shall be billed annually for the Fees, as advertised and amended from time to time. The Company shall send a reminder before expiry of the Term in respect of a Server.

5. The Company reserves the right to bill the Customer any additional charges incurred as a result of excessive use, or services that have been not been included in this Agreement, or were not agreed at the time the Services were accepted by the Customer.

6. The Company shall endeavour to advise the Customer in advance of any additional charges/sur-charges before they are incurred.

7. Any requests for payment by the Company shall be due immediately.

8. Should payment of the Fees be delayed, or not forthcoming, the Company reserves the right to suspend Alerts.

9. The price of any Services and Supplement Services shall be as quoted on our Site from time to time, except in cases of obvious error; or as agreed in writing by the Company.

10. Any sums payable by the Customer to the Company under these Terms and Conditions are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Customer at the appropriate rate. Prices are liable to change at any time

11. It is always possible that the Company has not accounted for every cost that the Company may incur as a result of providing the Services. If such an event occurs the Company reserves the right to invoice the Customer. Any such amounts owing shall be treated as Fees.

12. All sums payable by the Customer to the Company are to be without deduction or set off.

13. Where the Company authorises payment of any Fees by credit card, then the Company shall be entitled to deduct other amounts that come due under the Agreement without obtaining any additional authorisation from the Client.

11. Licence for Smart Software

1. The Company hereby grants you a non-assignable, non-transferable, non-exclusive licence to use the application (which shall include future updates made available to you from time to time provided you understand such updates may be subject to additional terms notified to you at the time such update is made available) subject to the following obligations and/or restrictions:

1. you may only use the application on one single registered server belonging to you or under your control. You will need to register and down load the application for each additional Server;

2. you may only use the application for communication with the Control Panel and the Company systems;

3. the application is only licensed to you and you shall not assign, sub-licence or grant any rights of use or any other rights in respect of the application to any other person;

4. you shall not copy or reproduce in any way the whole or any part of the application;

5. you shall not alter, modify or adapt the whole or any part of the application;

6. you shall not remove or tamper with any copyright notice attached to or contained within the application and you acknowledge and agree that as between us and you, all ownership in the application remains with us;

7. on any termination of the Services all rights granted to you shall immediately cease.

12. Intellectual Property Rights

1. The Customer acknowledges and agrees that it will not own or acquire ownership of any Intellectual Property Rights in or relating to the Services, and or Supplemental Services, or created in performing the Services and that it will have no rights in or to the Services other than the rights expressly granted by these terms and conditions.

13. Consumer rights

1. If you are contracting as a consumer, which includes soletrader and partnerships setups, you may cancel the Services and this Agreement at any time within seven working days, beginning on the day after you registered the first Server to your Control Panel.

2. To cancel this Agreement, you must inform the Company in writing as directed in this Agreement

14. Warranties

1. The Customer warrants that:

1. The Server shall be maintained and serviced at all times;

2. The Server are in good working order at the time of purchasing the Services, and registering any Server on the Control Panel;

3. it shall pay all Fees immediately as and when they come due.

15. Limitation of Liability

1. The Company shall have no responsibility for and shall accept no liability in respect of the selection use and suitability of the Services and/or Supplemental Services.

2. The Company shall use its reasonable endeavours to provide the Services in accordance with any timescale set out in the Order Confirmation(s), but will not be liable to the Customer where it is unable to meet those timescales.

3. The Company shall not be liable for any loss of data resulting from delays corruption of data non-deliveries mis-deliveries or interruptions to the Services or Alerts. The Company shall not be liable for any unauthorised access to the Control panel, or a Server.

4. The Company shall not be liable for any failure to support the Services by the Company’s employees, agents, or Recipients.

5. Our liability for losses you suffer as a result of us breaking this agreement is strictly limited to the purchase price of the Product you purchased and any losses which are a foreseeable consequence of us breaking the agreement. Losses are foreseeable where they could be contemplated by you and us at the time your order is accepted by us

6. In no circumstances shall the Company be liable in contract tort (including negligence or breach of statutory duty) or otherwise howsoever caused for:

1. any increased costs or expenses;

2. any loss of profit business contracts revenues or anticipated savings; or

3. any special indirect or consequential damage of any nature whatsoever;

4. arising directly or indirectly out of the provision by the Company of the Services or Supplemental Services or of any error or defect therein or of the performance non-performance or delayed performance by the Company of this Agreement.

7. The Company reserves the right at any time, and from time to time, improve, correct or otherwise modify all of any of the Services, and or Supplemental Services.

8. This does not include or limit in any way our liability:

1. For death or personal injury caused by our negligence;

2. Under section 2(3) of the Consumer Protection Act 1987;

3. For fraud or fraudulent misrepresentation; or

4. For any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.

9. We are not responsible for indirect losses which happen as a side effect of the main loss or damage, including but not limited to:

1. loss of income or revenue

2. loss of business

3. loss of profits or contracts

4. loss of anticipated savings

5. loss of data

6. loss of data, or

7. waste of management or office time however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable;

16. Third Parties and Reseller

1. The Customer accepts that should their Services be established or setup through a third party reseller, they shall still be bound by the terms and conditions of this Agreement.

17. Customer's Indemnity

1. The Customer agrees to indemnify and hold harmless the Company and all individuals or entities controlling controlled by or under common control with the Company and their respective officers directors professional advisers agents and employees against any losses costs expenses claims damages liabilities penalties actions proceedings or judgments which they may become subject to relating to or arising from:

1. the infringement or misappropriation or alleged infringement or misappropriation of any intellectual property right including without limitation copyrights trade secrets patents trademarks or other proprietary rights related to any hardware or software utilised by the Customer or otherwise in connection with any of the Services or Supplemental Services;

2. any breach or violation of or failure to comply with this Agreement or the Rules and Regulations or any other policies of the Company of which the Customer has been given notice;

3. any violation of any applicable law rule or regulation; and

4. any third party claims related to any content provided by the Customer or customers or clients of the Customer.

18. Termination

1. The Company may by notice in writing immediately terminate this Agreement if the Customer shall:

1. breach this Agreement and in the case of a breach capable of being remedied shall not have remedied the same within 7 days of receipt of a notice from the Company identifying such breach and requiring its remedy; or

2. be unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the Company means that the Customer may be unable to pay its debts.

2. Termination of this Agreement for whatever reason shall be without prejudice to any rights or obligations which have accrued prior to termination.

3. On termination of this Agreement for any reason all information of a confidential nature documentation and items, including software, issued by the Company and in the possession of the Customer shall be promptly returned to the Company.

4. In the event that this Agreement is terminated by the Company, the Company shall have no obligation to provide the further Services or Supplemental Services to the Customer.

5. For the avoidance of doubt, termination of this Agreement shall mean termination of the Services to all Servers registered on the Control Panel.

6. The Company shall not be required to provide any refund for un-used Services, and/or Supplemental Services.

7. The Customer shall be required to provide one month’s written notice to terminate the Services, and/or Supplemental Services. Should the Customer terminate the Services and/or Supplemental Services part way through the term, the Customer shall not be entitled to a pro-rated refund.

19. Relationship of Parties

1. None of the provisions of this Agreement shall be deemed to constitute a partnership between the parties and neither party shall be responsible for any act or omission of the other or have the right or authority to bind the other in any way.

2. Nothing in this Agreement shall confer any rights on any person pursuant to the Contracts (Rights of Third Parties) Act 1999.

20. Use of Information

1. The Company is committed to protecting the Customers privacy. Through the signing up process, the Company will have collected certain personal information in respect of the Customers account, together with any other information volunteered by the Customer. The Company may use the Customers details for its marketing purposes and to send the Customer marketing literature. The Company may make individual identifying information available to affiliated third parties, and to its agents for marketing purposes. If you would prefer the Company not to use your details in this way, please email the Company.

21. Written communications

Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.

22. Notices

All notices given by you to us must be given to Applied IT Services Limited at info@applied-it-savings.com. We may give notice to you at either the e-mail or postal address you provide to us when placing an order. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

23. Transfer of rights and obligations

1. The contract between you and us is binding on you and us and on our respective successors and assigns.

2. You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without our prior written consent.

3. We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.

24. Events outside our control

1. The Company shall not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).

2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

1. Strikes, lock-outs or other industrial action.

2. Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war.

3. Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster.

4. Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

5. Impossibility of the use of public or private telecommunications networks.

6. The acts, decrees, legislation, regulations or restrictions of any government.

7. Downtime of any of the Companies Services and/or Supplemental Services

3. The Services are deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.

25. Waiver

1. If we fail, at any time during the term of these terms and conditions and Agreement, to insist upon strict performance of any of your obligations under this Agreement or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

2. A waiver by us of any default shall not constitute a waiver of any subsequent default.

3. No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

26. Severability

If any of these terms and Conditions or any provisions of a Contract are 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.

27. Entire agreement

1. These terms and conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Agreement and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.

2. We each acknowledge that, in entering into this Agreement, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Agreement except as expressly stated in these terms and conditions.

3. We intend to rely upon these terms and conditions and any document expressly referred to in them in relation to the subject matter of any Agreement. While we accept responsibility for statements and representations made by our duly authorised agents, please make sure you ask for any variations from these terms and conditions to be confirmed in writing.

28. Our right to vary these terms and conditions

1. We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities.

2. You will be subject to the policies and terms and conditions in force at the time that you order Services from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Order Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven working days of receipt by you of the Products).

29. Dispute Resolution

1. The Parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement promptly through negotiations between their representatives.

2. If the matter is not resolved through negotiation the parties will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution ("ADR") procedure.

3. The performance of obligations under the Agreement shall not cease or be delayed by the application of an ADR procedure pursuant to clause 29.2 above.

4. If the matter has not been resolved by an ADR procedure within 2 months of the initiation of such procedure, or if either Party will not participate in an ADR procedure, the dispute shall be referred to the Courts of England.

30. Law and jurisdiction

1. Agreements for the purchase of Services, and/or Supplemental Services, through our Site and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by English law. Any dispute or claim arising out of or in connection with such Agreement or their formation (including non-contractual disputes or claims) shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.