Terms and Conditions

GigaTux is a provider of Internet related services such as virtual private servers, and the Client may from time to time require such services. This Agreement sets out the terms which have been agreed between GigaTux and the Client for the provision of such Internet services and shall be supplemented from time to time by Schedules setting out specific details of such services requested by the Client.

Definitions

In this Agreement, unless the context requires otherwise, the following words shall have the following meanings:

• "Abuse Complaint" is a complaint, either by GigaTux or a third party, about the Client's use of the Services;

• "Bandwidth" is the data transferred by the Client using the Services to other equipment on the Internet. For the avoidance of doubt, this includes transfer of data between the Services and other equipment hosted by GigaTux;

• "IP" means Internet Protocol;

• "IPRs" means any and all intellectual property rights including without limit any and all patents, design rights, database rights, copyright, know-how, moral rights, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;

• "Services" means the Internet related services described in any Schedule made hereunder and which are supplied or to be supplied by GigaTux on and subject to the terms of this Agreement and any schedules made hereunder;

Acceptable Use Policy

GigaTux's Acceptable Use Policy ("Policy") is intended to help protect the GigaTux service, GigaTux upstream providers, GigaTux clients and the Internet community in general from irresponsible or, in some cases, illegal activities, and the Client agrees to be bound by the Policy.

1. The Client and their end users shall not, nor shall they permit, enable, or assist others, to use the Services for any breach of any applicable law or generally accepted transmission or application protocols applicable to the Internet or any part of it or to anything connected to it or to any user of it. Such prohibited use includes but is not limited to the following:

   a. civil infringement of and/or criminal offences relating to copyright, trade marks or any other intellectual property right in any jurisdiction; or

   b. commission of any criminal offence (including deliberate transmission of computer viruses) under the Computer Misuse Act 1990 (UK) or any similar legislation in any country; or

   c. knowingly or recklessly transmitting, displaying or posting to a publicly accessible service any material which is unlawful or actionably defamatory or an invasion of privacy, breach of an intellectual property right or breach of a right of publicity in any jurisdiction with which any publicly accessible service reasonably appears to have any connection or from which it may reasonably be apprehended that a publicly accessible service is likely to be significantly accessed; or

   d. transmitting, transferring, displaying or posting to a publicly accessible service any material in breach of the Data Protection Act 1998 (UK) or similar legislation in any other country or of any material which is confidential or is a trade secret or which affects the national security of the United Kingdom or the said territory or which may expose GigaTux to any retribution or penalty under the laws and/or regulations and/or decrees of the United Kingdom or any other country relating to the export of or dealing with military or potentially military resources; or

   e. use of the Services or the Internet in any manner which is a violation or infringement of any rights of any kind or nature (whether like to any of the foregoing or otherwise) of any person, firm or company; or

   f. unauthorised access to the network management equipment of GigaTux or other Internet service providers; or

   g. forgery of Internet addresses or other fields in IP packets by the Client; or

   h. any sending of unsolicited email messages or any mass mailing of unsolicited advertising material by the Client; or

   i. any activity that potentially could harm the GigaTux Network, upstream networks, GigaTux clients' networks or other networks, including but not limited to traffic flooding, malicious overflows, etc; or

   j. any activity that GigaTux decides at its absolute discretion is an unsuitable use of the Services.

2. The Client is responsible for:

   a. Maintaining email addresses of the forms postmaster@client.domain and abuse@client.domain for receiving complaints of network abuse activities, as suggested by Internet Official Protocol Standard RFC 2142. Typically, these email addresses will forward emails to the real user accounts of the responsible persons for treating the network misuse complaints.

   b. The activities of its customer base or end-users and, by accepting service from GigaTux, is agreeing to ensure that its clients abide by this Policy. If irresponsible or illegal activity continues, even after GigaTux tries to communicate with the Client, then the Client may be subject to an appropriate action in order to stop those activities.

3. All complaints related to network misuse - including email abuse - are to be sent to info@gigatux.com

4. IRC services or IRC-related services are permitted only if they do not connect to EFnet and/or Undernet. This includes, but is not limited to: "IRCd servers," "eggdrops," "bots," and "bouncers." The purpose of this restriction is to prevent attacks on the GigaTux service and upstream services due to malicious activity that has been known to occur on the IRC networks EFnet and Undernet.

5. The Client warrants that it will respond to any Abuse Complaints within 48 hours.

Consequential Losses

GigaTux is not in a position to assess any consequential loss which the Client may suffer as a result of any failure of the Services, or any other default on the part of GigaTux or upstream providers and it would be impractical and uneconomic for GigaTux to insure against such liability. Accordingly it is the responsibility of the Client to properly assess any consequential loss that it and/or its clients may suffer and to obtain and maintain adequate insurance in relation to such losses. The Client shall also ensure that it has adequate insurance cover in relation to any loss or damage which may be caused to GigaTux and/or its clients and any related clients through the negligence or default of the Client, its employees, agents, or equipment. The Client shall, as and when requested, provide GigaTux with such evidence as GigaTux may require in relation to the Client's insurance.

Indemnity

The Client agrees to fully indemnify and keep GigaTux, its subsidiaries, affiliates, officers, partners and employees fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following: (i) the Clients breach of this Agreement or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Client; (iii) the Clients use or misuse of the Services; (iv) the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs).

Disclaimer

Nothing in the Agreement shall exclude or limit the liability of GigaTux for death or personal injury resulting from its negligence or fraudulent misrepresentation nor affect the statutory rights of consumers.

The Client acknowledges that the allocation of risk in this Agreement reflects the price paid for the Services, Hardware and Software and that it is not within the control of GigaTux how or for what purposes they are used. If any exclusion or limit of liability in this Agreement is held to be invalid and GigaTux becomes liable for loss or damage that may lawfully be limited then such liability shall be limited to the amount paid by the Client for the Services.

GigaTux shall have no liability to the Client for any loss arising from any material, data or instructions supplied whether digitally or otherwise by the Client or on its behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from late arrival or non-arrival or any other fault by the Client or on its behalf.

No action, claim or demand arising out of or in connection with this Agreement may be brought by the Client against GigaTux more than one year after the cause of action has occurred.

GigaTux is not responsible for any delay, malfunction, non performance and/or other degradation of performance of any of the Services, Hardware or Software caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Client whether or not beyond those already supplied.

Neither GigaTux nor anyone else who has been involved in the creation, production or supply of the Services, Hardware or Software shall be liable to the Client or any other person for any loss in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof by reason of or in connection with this Agreement or the Services, Hardware or Software for any: (i) economic loss of any kind whatsoever, or (ii) loss of profit, data, business contracts, revenues or anticipated savings, or (iii) damage to the Client's reputation or goodwill, or (iv) loss resulting from any claim made by any third party, or (v) special, indirect or consequential loss or damage of any nature whatsoever, and the Client shall indemnify GigaTux from and against any claim which may be made against GigaTux in respect thereof. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for consequential or incidental damages and therefore the above may not apply to the Client.