This Agreement (this "Agreement") is between Monkey Tree Hosting Ltd. trading as MTH Networks, a registered company in England and Wales with its registered address office at Kitteon House, Kettering Parkway, Kettering, NN15 6XW (“Monkey Tree Hosting", "MTH", "MTH Networks") and the person (individual or legal person or legal entity) whose signs Monkey Tree Hosting's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs the Customer's use of Monkey Tree Hosting's services.
1. Services
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Monkey Tree Hosting's credit approval requirements, Monkey Tree Hosting agrees to provide the services described in the Order for the fees stated in the Order.
2. Term
The initial service term of the Agreement shall begin on the date that Monkey Tree Hosting generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew unless Monkey Tree Hosting or Customer provides the other with written notice of non-renewal through the client area, which is located at https://secure.monkeytreehosting.com. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
For clarification, MTH FTTP Internet is delivered via Network Partners subject to local area's and each is subject to their respective contract term selected at checkout, which will be confirmed via email. Any products sold by Monkey Tree Hosting Ltd not included on this list are subject to the continuation for the number of months stated in the Order (the "Initial Term"), or 30 days. Whichever is the longer.
Ultrafast Fibre (OFNL) - Options: 3 months, 6 months, 12-months, 24-months
Ultrafast Fibre (MS3 Network) - Options: 3 months, 6 months, 12-months, 18-months, 24-months
Ultrafast Fibre (Freedom Fibre) - Options: 12-months, 24-months
Office 365 (Managed IT) - Options: 3 months, 12-months
Hosted VoIP - Options: 3 months, 12-months
Mobile SIMs (O2, Vodafone, EE) - Options: 1 month, 3 months, 12-months, 24-months
3. Payments
(a) Fees
Fees are payable in advance on the first day of each billing cycle. The customer's billing cycle shall be monthly, annually, bi-annually, or tri-annually as indicated on the Order, beginning on the Service Commencement Date. Monkey Tree Hosting may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorises Monkey Tree Hosting to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise, Monkey Tree Hosting will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following the invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in Pounds Sterling unless otherwise agreed. The customer is responsible for providing Monkey Tree Hosting with changes to billing information (such as credit card expiration, and change in billing address) at its option, Monkey Tree Hosting may accrue charges to be made to a credit/debit card until such charges exceed £10.00 GBP. Monkey Tree Hosting may charge interest on overdue amounts at 5% of invoiced value or GBP £1. Monkey Tree Hosting will suspend the service without notice if payment for the service is overdue by five (5) days. Fees not disputed within fourteen (14) days of the due date are conclusively deemed accurate. The customer agrees to pay Monkey Tree Hosting’s reasonable reinstatement fee following a suspension of service for non-payment and to pay Monkey Tree Hosting’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases
Monkey Tree Hosting Ltd. trading as MTH Networks; enforces no mid-term price increases, whereby the price you agree is the price you will pay for the duration of your contract. At the end of your contract, we will send you a notice with our best available deals in advance of your contract expiring. Upon contract Expiry, we will apply an out of contract fee. You are free to choose the best offer available, to make further savings - otherwise will remain on a variable rate monthly contract where the price will be more expensive than a contracted price but you enjoy no contracted term.
(c) Taxes
At Monkey Tree Hosting’s request Customer shall remit to Monkey Tree Hosting all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Monkey Tree Hosting); regardless of whether Monkey Tree Hosting fails to collect the tax at the time the related services are provided.
(d) Refunds
Refunds are not available for Services.
(e) Credits.
At times when a Credit is issued to an account for any reason, this credit is refundable at an admin fee of the lesser of 5% or £5.00 GBP. Credit issued in relation to SLA is not able to be refunded to cash or withdrawn. Furthermore, any positive credit balance on an account at the time of account termination is immediately forfeited.
(f) Loss of service refunds - You won't be entitled to a credit (a) for any fault not caused by us, (b) for any fault caused by events beyond our reasonable control, (c) if we can't find a fault, (d) if you cancel the fault report, (e) if, after you report the fault, we're not able to contact you or you don't give us access to the premises where our services are being supplied when we reasonably need this, (f) if you're not able to take delivery of any replacement router we may send you or (g) if you don't help us in any other way we might reasonably need to resolve the matter speedily.
(g) Early Termination.
Customer acknowledges that the amount of the Early Termination Fee for the service is based on Customer's agreement to pay the fee for the entire Term. Early Termination Fee's will equal the remainder of the contract value, in full.
(h) Chargebacks
All disputes and overcharges must be reported directly to the Company, in writing, within thirty (30) days. Any Customer that initiates a chargeback, reversal, retrieval request or other dispute with their credit card issuing bank and/or PayPal ("Dispute") will be immediately suspended or terminated pending investigation. The Customer agrees to pay a Research Fee of £20.00 GBP per Dispute regardless of the actual validity of the charge, which will be refunded if the dispute is upheld.
(i) Direct Debit Failure Charges
In the event of a Direct Debit failing more than three (3) times, the transaction will fully fail and must be resubmitted. In the event of a complete Direct Debit failure, Monkey Tree Hosting Ltd will charge a single £2.50 + VAT fee per Direct Debit failure up to a maximum of £10+ VAT per invoice, excluding any late payment fees applied to the invoice.
4. Law/AUP
The customer agrees to use the service in compliance with applicable law and Monkey Tree Hosting's Acceptable Use Policy (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that Monkey Tree Hosting may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Monkey Tree Hosting's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Monkey Tree Hosting's reasonable investigation of any suspected violation of the AUP. In a dispute between Monkey Tree Hosting and Customer regarding the interpretation of the AUP, Monkey Tree Hosting's commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to Monkey Tree Hosting that the information he, she or it has provided and will provide to Monkey Tree Hosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Monkey Tree Hosting that he or she is at least 18 years of age. Monkey Tree Hosting may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.
6. Indemnification
Customer agrees to indemnify and hold harmless Monkey Tree Hosting from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties
Monkey Tree Hosting does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. To the extent permitted by applicable law Monkey Tree Hosting disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. To the extent permitted by applicable law, all services are provided on an "as is" basis.
8. Limitation of Damages
Neither party shall be liable to the other for any lost profits, or any indirect, special, incidental, consequential or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages.
In the event of any failure in the Service, we shall not be liable to you for any charges incurred by you should you use an alternative means of connection to the Internet.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of Monkey Tree Hosting and any of its employees, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall be a payment of money not to exceed the amount payable by customer for three months of service.
9. Suspension/Termination & Credits
(a) Suspension of Service
Customer agrees that Monkey Tree Hosting may suspend services to Customer without notice and without liability if: (i) Monkey Tree Hosting reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Monkey Tree Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers, (iv) as requested by a law enforcement or regulatory agency or (v) Customer is over 7-days late in paying an invoice; The Customer shall pay Monkey Tree Hosting’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
(b) Termination.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Monkey Tree Hosting fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by Monkey Tree Hosting prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ninety (90) days notice if Customer is overdue on the payment of any amount due under the Agreement for one (1) month or less; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Monkey Tree Hosting describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, (iv) upon one (1) days notice if Customer is overdue on the payment of any amount due under the Agreement for two (2) month(s) or more, or (v) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information
Customer agrees that Monkey Tree Hosting may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or end users that Monkey Tree Hosting believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Backup Copy
MTH Networks stores no data in line with Broadband Provision and therefore does not have a Backup Copy. Any hosting, Server or Data Services are responsible to the account-owner to establish suitable backup solutions.
12. Changes to MTH Network's Network
Upgrades and other changes in MTH's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Monkey Tree Hosting reserves the right to change its network in its commercially reasonable discretion, and Monkey Tree Hosting shall not be liable for any resulting harm to Customer.
13. Notices
Notices to Monkey Tree Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.monkeytreehosting.com/contact.htm. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
14. Force Majeure
Monkey Tree Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Monkey Tree Hosting's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of England, exclusive of its choice of law principles as applicable. The United Nations Convention on the International Sale of Goods shall not govern the Agreement. The location for all disputes arising out of or relating to the agreement shall be England, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
16. Network Installation Services
Where MTH Networks installs full-fibre connectivity, or one of its contractors attends for installation, by placing your order, you agree to be present for the pre-agreed appointment dates and times and acknowledge that Missed or Wasted Appointment Fees may be charged by the Network where appointments are missed or refused. It is paramount that someone over 18 years old is present at the property and they are related to the homeowner. Unfortunately, installation engineers cannot take instruction or authorisation from 3rd party personnel at the property, such as Builders, Plumbers or such, due to liability and accountability.
17. Miscellaneous
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. Monkey Tree Hosting may amend this Agreement without notice at any point. The terms on Customer's purchase order or other business forms are not binding on Monkey Tree Hosting unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. The client agrees that on the Anniversary of any Director, partner or shareholder of the company's birth date, that cake will be provided by the client at the company registered office. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Monkey Tree Hosting's prior written consent. Monkey Tree Hosting's approval for assignment is contingent on the assignee meeting Monkey Tree Hosting's credit approval criteria. Monkey Tree Hosting may assign the Agreement in whole or in part.
This Agreement, together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.
18. Refuse Service
Monkey Tree Hosting Ltd reserves the right to refuse service to any active or in-active customers for any reason it deems necessary.
19. IPTV Services
Monkey Tree Hosting Ltd cannot guarantee IPTV or Streaming Services within its network. Whereby issues are noted accessing UK IPTV Services, we will work with the IPTV provider to understand and resolve any routing or network issues to the best of our ability. Whereby issues are noted accessing IPTV services outside of the UK - we will only be able to work to the extent of the exterior of our network and the best of our ability.
