TERMS OF SERVICE

These Terms of Service (this "Agreement") and KPH Services' Acceptable Use Policy ("AUP") and any special Terms and Conditions ("Special Conditions") which may be notified to you govern your purchase and use of all KPH Services services (collectively, the "Services"). You must accept the terms of this Agreement and the AUP in order to use the Services.

BY REGISTERING FOR AND USING THE SERVICES YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP AND ANY SPECIAL CONDITIONS AND YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL POLICIES AND GUIDELINES OF THE AUP AND ANY SPECIAL CONDITIONS WHICH ARE INCORPORATED HEREIN BY REFERENCE.

KPH Services may modify any of the terms and conditions contained in this Agreement and the AUP and any Special Conditions at any time by giving notice at least 30 days before the changes take effect. Notice may be given by email or by notification on the Supplier’s website. Any modifications are effective upon posting of the revisions on the KPH Services web site. Your continued use of the Services following any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, do not continue to use the services and immediately notify KPH Services of your termination of this Agreement.

1. Term and Termination.

1.1 Term
1.1.1 Unless specified otherwise in any Special Conditions this Agreement will be for an Initial Term of one month from the date the Services are first provided.

1.1.2 Unless specified otherwise in any Special Conditions this Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term or any Renewal Term for a period of one month unless you provide written notice of termination at least 3 days before the end of the Initial Term or Renewal Term, whichever is then applicable.

1.2 Termination.
1.2.1 This Agreement may be terminated:

  1. by you or KPH Services during any Renewal Term, without cause, by giving the other party three days prior written notice;
  2. by KPH Services in the event of any nonpayment by you; and
  3. by KPH Services, at any time, without notice, if, in their sole judgment, you are in violation of any terms or conditions of this agreement or the AUP.

1.2.2 If you terminate this Agreement, or if KPH Services terminates this Agreement for your breach, before the end of the Initial Term or the Renewal Term, whichever is then applicable, you will be required to pay immediately all fees and costs accrued before the termination date, all fees for the remainder of the Term and any other amounts you owe under this Agreement.

2. Charges and Payment.

2.1 Charges

You will pay all charges for your use of the Services at the then current prices for the Services.

2.2 Payment.

2.2.1 You will pay all charges for the Initial Term of service in advance on the first day of the Initial Term.

2.2.2 You will pay all subsequent charges for each Renewal Term in advance on the first day of each Renewal Term according to the then current price for the Services.

2.2.3 You may pay for the Services using any of the methods accepted by KPH Services at the time.

2.2.4 You must notify KPH Services of any changes to your account information including your billing address or any information that may prohibit charging your account.

2.2.5 Your failure to fully pay any charges by the applicable due date is a material breach of this Agreement, justifying KPH Services to suspend the Services and terminate this Agreement. If KPH Services terminates for your material breach, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts you owe under this Agreement. You are responsible for any costs incurred in enforcing collection, including but not limited to reasonable legal fees, court costs and collection agency fees. To reinstate Services, you may have to pay for three months of Service in advance on the first day such Services are reinstated along with any fees associated with reinstating Services.

2.3 Refund and Disputes.

2.3.1 Except in the event of an error all payments are nonrefundable. This includes any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 30 days of the time the dispute occurred.

3. Use of Services.

3.1 Acceptable Use.

3.1.1 The Customer shall:

  1. not knowingly use the Services, Software, and/or Hardware or allow them to be used for any unlawful purpose or to send SPAM or for the publication, linking to, issue or display of any unlawful material (which shall include without limit any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including without limit intellectual property rights) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under English law or regulation, the laws or regulations of the Customer's country or any other place where the results of such purpose or such material can be accessed
  2. not knowingly use the Services, Software and/or Hardware or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of the Supplier may harm the Supplier or any of its clients or bring the Supplier into disrepute or may call into question any action taken by the Supplier on the Customer's behalf
  3. not provide any technical or other information obtained from the Supplier and/or relating to the Services, this Agreement or the Contract to any person, company, firm or government which the Customer knows or ought reasonably to be aware may directly or indirectly lead to a breach of any English law or regulation
  4. not knowingly use the Services, Software and/or Hardware or allow them to be used in breach of the Supplier’s Acceptable Use Policy, and shall bring it to the attention of the Customer’s authorised users
  5. provide the Supplier with accurate contact details, bank details and email address, and shall promptly notify the Supplier of any changes by email
  6. comply with the Supplier’s reasonable instructions and requests concerning the Services
  7. immediately notify the Supplier by email if it becomes aware of any unauthorised use of all or any of the Services, Software and/or Hardware
  8. ensure that all credentials are at all times kept confidential, used properly and not disclosed to unauthorised people and if the Customer has any reason to believe that any Keyword has become known to someone not authorised to use it or if any Keyword is being or is likely to be used in an unauthorised way or the Customer is aware of any other breach of security then the Client shall inform the Supplier immediately. For the avoidance of doubt, the Customer shall be solely responsible for any unauthorised and/or fraudulent use of the credentials whether such unauthorised and/or fraudulent use is due to its agents’, sub-contractors’ or employees’ fault, omission or negligence. Any change of credentials, at the Customer’s request, will be charged to the Customer on a time-and-material basis
  9. inform the Supplier promptly in the event of any actual or suspected security breaches in connection with the Services
  10. provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects
  11. ensure that it has all necessary consents, permissions and licences to make use of the Services including without limit registration under the Data Protection Act 1998
  12. use the Services in a manner consistent with any and all applicable laws and regulations including but not limited to the Data Protection Act 1998
  13. maintain appropriate insurance cover in respect of its liability arising out of or connected with this Contract with a reputable insurance company

3.2 Security.

3.2.1 You are solely responsible for any security breaches affecting Services or accounts under your control. If your Service is responsible for or involved in an attack on or unauthorized access into another server or system, KPH Services will shut it down immediately. You will pay any charges resulting from the cost to correct security breaches affecting KPH Services or any of its other customers.

3.2.2 Security and integrity of any of your data or information stored on or transmitted via the Services is your responsibility.

4. Your Warranties and Representations to KPH Services.

4.1 You warrant, represent, and covenant to KPH Services that:

  1. you are at least 18 years of age if an individual
  2. you possess the legal right and ability to enter into this Agreement
  3. you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines, including the AUP; and
  4. your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
  5. you acknowledge that there is a risk that any material or data generated, stored, transmitted or used via or in connection with the Services may be irretrievably damaged or lost if there is a failure or on suspension or termination of the Services and that the KPH Services shall be under no obligation to back-up any such material or data. You shall take any precautionary measures for preserving such material or data in the event of loss, or damage, however caused.

5. IP Addresses

5.1 KPH Services will maintain and control ownership of all Internet protocol ("IP") addresses that they may assign to you. KPH Services may, in its sole discretion, change or remove any and all IP addresses. You will where possible be notified of any such change or removal in advance and in any event as soon as is reasonably practical.

6. Enforcement Actions.

6.1 KPH Services reserves the right to suspend or terminate the Service immediately or take any other corrective action it deems appropriate in its sole discretion if in the sole judgment of KPH Services your Service is the source or target of any violation of the AUP or for any other reason which KPH Services chooses. If inappropriate activity is detected, all of your accounts in question may be deactivated until an investigation is complete. Prior notification to you is not assured.

6.2 These rights of action, however, do not obligate KPH Services to monitor or exert editorial control over the information made available for distribution via the Services.

6.3 If KPH Services is required to take corrective action because of a possible violation by you you may not get a refund of any fees you paid in advance of the corrective action.

7. Disclosure Rights.

7.1 KPH Services will never disclose any of your personal information including but not limited to assigned IP addresses account history account use etc. except upon receipt of a legally valid and binding request requiring such disclosure. In such event, KPH Services shall have the right to suspend or terminate all service set forth in this Agreement.

8. Disclaimed Warranties.

8.1 USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT YOUR OWN RISK. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. KPH Services DOES NOT MAKE AND DISCLAIMS AND YOU WAIVE ALL RELIANCE ON ANY REPRESENTATIONS OR WARRANTIES ARISING BY LAW OR OTHERWISE REGARDING THE SERVICES INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. KPH Services DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

9. Limitation and Exclusion of Liability.

9.1 Limitations.
9.1.1 IN NO EVENT WILL KPH Services OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES.

9.1.2 NEITHER KPH Services NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO KPH Services' OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF KPH Services HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES.

9.1.3 THE FEES FOR THE SERVICES SET BY KPH Services UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE KPH Services AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS

9.2 Interruption of Service.
KPH Services and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, KPH Services is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third-party supplier failure).

9.3 Indemnification.
In agreeing to the KPH Services AUP and this Agreement, you agree to indemnify, defend and hold harmless KPH Services, its employees, directors, partners, representatives and affiliates, for any violation by you or your customers of the AUP or this Agreement that results either in loss to KPH Services or the bringing of any claim against KPH Services by any third-party. For example, if KPH Services is sued because of your or your customer's activity related to the Services, you will pay any damages awarded against KPH Services, its employees, directors, partners, representatives and affiliates, plus all costs and attorney's fees.

10. MISCELLANEOUS PROVISIONS.

10.1 KPH Services and you agree that, except as otherwise expressly provided in this Agreement, Order(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or your customers.

10.2 This agreement is made under and will be governed by and construed in accordance with English Law.

10.3 In the event any provision of this Agreement is found to be invalid or illegal the remaining provisions of this Agreement will remain in full force and effect.

10.4 The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

10.5 You may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of KPH Services, and any attempted assignment or delegation without such consent will be void.

10.6 KPH Services may assign this Agreement in whole or part. KPH Services also may delegate the performance of certain Services to third parties.

10.7 All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.

10.8 You and KPH Services are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and KPH Services.

10.9 This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.

10.10 All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.