Terms & Conditions

x

7.4 The maximum total Service Credit for any Month shall not exceed 50% of the
Charges for the Cloud Services, and Service Credits shall not be carried forward
to future Months.

7.5 On receipt of a written request from you within fourteen (14) days of the
occurrence of the event giving rise to the Service Credit, we will approve or reject
the Service Credit, and if approved then apply the Service Credit to the monthly
invoice following the date of our approval.

7.6 Technical Support Response times are based on severity levels as follows:

X

When the call is logged we will then assign the issue to a relevant Technical
engineer who will see the request through to resolution. There are times when
we will respond to tickets requesting additional information in order to help us
troubleshoot and resolve the issue. Response times depend on the severity level
of the issue raised. Our support engineers will determine your ticket’s severity
level in accordance with the above table.

8.  CUSTOMER OBLIGATIONS

8.1 You agree that you shall:

8.1.1 pay the Charges for the Services in accordance with these Terms when due;

8.1.2 provide us with such information and materials as we may reasonably require in
order to supply the Services (including account and billing administration
information), and ensure that such information is accurate in all material
respects and kept up to date;

8.1.3 co-operate with us in all matters relating to the Services (including our
investigation of any potential breach of applicable legislation or regulations or
Code, any security issue or Service, outage, and/or any suspected breach of
Contract);

8.1.4 comply with the all applicable legislation and regulations and codes concerning
your use of the Services;

8.1.5 comply at all times with the Acceptable Use Policy;

8.1.6 use and maintain reasonable security precautions in connection with your use of
the Services (including the provision of adequate security and encryption to
protect the security of any Cloud Services; ensuring that passwords are unique
passwords of at least 8 mixed alpha and numeric characters with case variations
which are changed regularly and kept confidential and secure);

8.1.7 obtain and maintain all necessary licences, permissions and consents which may
be required for your use of the Services; and

8.1.8 Comply with any third party software licence terms which we may notify to you
from time to time in respect of use of third party software included in or used in
the provision of the Services (and upon our request certify and evidence the
same).

8.2 You agree not to reverse-engineer or decompile or disassemble the Cloud System
or related software (other than to the extent expressly permitted by applicable
law or by the terms of an applicable open source software licence, and then
upon at least 30 days’ prior written notice to us and at your own risk), or to copy
any software which we provide for your use (save as permitted by these Terms).

8.3 If you use any third party software on your Cloud System, or request for us to
install or patch or otherwise manage third party software for you, then you
represent and warrant that you have the legal right to use and to permit us to
use the software in that manner (and upon our request certify and evidence the
same).

8.4 If our performance of any of our obligations under any Contract is prevented or
delayed by any act or omission by you or failure by you to perform any relevant
obligation (“Customer Default”):

8.4.1 we shall (without limiting our other rights or remedies) have the right to suspend
performance of the Cloud Services until you remedy the Customer Default, and
to rely on the Customer Default to relieve us from the performance of any of our
obligations to the extent the Customer Default prevents or delays our
performance of any of our obligations;

8.4.2 we shall not be liable for any costs or losses sustained or incurred by you
(including any Service Credits otherwise payable) arising directly or indirectly
from our failure or delay to perform any of our obligations; and

8.4.3 You shall reimburse us on written demand for any costs or losses sustained or
incurred by us arising directly or indirectly from the Customer Default.

8.5 You agree that if your Services are reinstated after a suspension for nonpayment, you will pay an agreed reinstatement fee for any unavoidable costs
incurred by us in reinstating the Services.

8.6 Invoices that are not disputed within 90 days of invoice date are conclusively
deemed accurate.

9.  INDEMNIFICATION

9.1 You shall indemnify us and our employees, agents, and suppliers against all
liabilities, costs, expenses, damages and losses (including any direct, indirect or
consequential losses, loss of profit, loss of reputation and all interest, penalties
and legal and other professional costs and expenses) suffered or incurred by us
arising out of or in connection with any of the following committed by you (or
your employees or agents or any person to whom you have given access, or by
reason of your failure to meet your security obligations under these Terms gains
access, to the Services):

9.1.1 actual or alleged breach of applicable legislation and regulations and codes;

9.1.2 actual or alleged negligence;

9.1.3 actual or alleged breach of any agreement between you and a third party; or

9.1.4 Actual or alleged breach of clause 8.1.5 or 8.1.6 or 8.1.8 of the Acceptable Use
Policy.

9.2 If any third party makes a claim, or notifies an intention to make a claim, against
us which may reasonably be considered likely to give rise to a liability under this
indemnity (a “Claim”) then we shall give you written notice of the Claim; not
make any admission of liability, agreement or compromise in relation to the
Claim without your prior written consent (such consent not to be unreasonably
conditioned, withheld or delayed); and choose legal advisors to defend the
Claim. You shall provide all reasonable cooperation and assistance in defence of
the Claim.

10.  INTELLECTUAL PROPERTY RIGHTS

10.1 In this Clause 10, “Intellectual Property” means all patents, rights to inventions,
utility models, copyright and related rights, trademarks, service marks, trade,
business and domain names, rights in trade dress or get-up, rights in goodwill or
to sue for passing off, unfair competition rights, rights in designs, rights in
computer software, database right, topography rights, moral rights, rights in
confidential information (including know-how and trade secrets) and any other
intellectual property rights, in each case whether registered or unregistered and
including all applications for and renewals or extensions of such rights, and all
similar or equivalent rights or forms of protection in any part of the world.

10.2 These Terms do not transfer any ownership in our respective technology or
Intellectual Property.

10.3 We (or our licensors) own all Intellectual Property in the Services, and any
Intellectual Property in or arising out of or in connection with the Services. You
may not remove, modify or obscure any proprietary rights notices that appear on
any software which we may provide for your use.

10.4 If any the Services become, or in our opinion are likely to become, subject to an
infringement claim (and save in respect of such claims attributable to your use of
the Services, or our compliance with your instructions) are sole liability to you
shall be (at our option and expense) to:

10.4.1 obtain the right for you to continue using the Services;

10.4.2 modify or replace the Services to avoid the infringement claim; or

10.4.3 If in our opinion neither 10.4.1 nor 10.4.2 is commercially reasonable, terminate
the Contract and provide a pro rata refund of the Charges paid by you for the
relevant Services.

11.  CONFIDENTIALITY

11.1 Subject to clause 11.2, “Confidential Information” is all information or data of a
party, which has value by virtue of not being publicly known, and which is
disclosed or otherwise made available to the other party under the Contract
(save for information which to either party agrees may be disclosed) and which
the recipient should reasonably understand to be confidential (including
information marked or otherwise conspicuously designated as confidential). We
hereby acknowledge that your Confidential Information includes all information
transmitted to or stored using your Cloud Services. You hereby acknowledge that
our Confidential Information includes our unpublished product information and
development plans, terms of services, prices, and proprietary information or
technology. 

11.2 Confidential Information shall not include information of a party which:

11.2.1 is or which becomes available to the other party other than through breach of
these Terms or applicable law;

11.2.2 is independently developed by that party without reference to the other’s
Confidential Information;

11.2.3 is required by law or by order of a court of competent jurisdiction to be disclosed
but only to the extent required by such law or order; or

11.2.4 is disclosed with the prior written consent of the disclosing party.

11.3 The parties agree keep secret and confidential and not to divulge Confidential
Information of the other party to any third party, save that each party may
provide the Confidential information of the other party to:

11.3.1 their respective subcontractors, agents, and representatives provided that they
to confidentiality measures at least as stringent as those set out in these Terms;
or

11.3.2 a law enforcement or government agency if requested or if either of us
reasonably believes that the other’s conduct may violate applicable criminal law,
or as may be required by law, or in response to a court order or other
compulsory legal process; provided that wherever permitted prompt prior
written notice of such intended disclosure is provided to the other party.

11.4 The parties agree to use Confidential Information only for the purpose for which
it is supplied, the performance or use of the Services, the exercise of the parties
respective legal rights under the Contract, or as may be required by law.

11.5 On termination or expiry of the Contract under these Terms each party shall
promptly upon request return to the other party all documents and materials
(and any copies) containing the other party’s Confidential Information; and (save
as otherwise provided by the Terms) erase all the other party’s Confidential
Information from its computer systems (to the extent possible); and save always
to the extent that either party is required to retain a copy under an applicable
legal or regulatory requirement.

11.6 No party shall make, or permit any person to make, any public announcement
concerning any Contract without the prior written consent of the other party
(such consent not to be unreasonably withheld or delayed); except as required
by law, any governmental or regulatory authority (including, without limitation,
any relevant securities exchange), any court or other authority of competent
jurisdiction.

12.  WARRANTY

12.1 Subject to Clause 13, if any Services which you receive from us are defective or
incorrect then you should notify us in writing as soon as reasonably practicable
upon discovery of any defect, and we will then do all we can to rectify the defect
including where possible correcting the defect. This does not apply to any defect
in the Services arising from negligence by you or any third party, material
contributed by you, use otherwise than as recommended by us, or failure to
follow our instructions.

12.2 We warrant and represent that we shall use reasonable care and skill in the
provisioning of the Services.

12.3 We do not make any warranties or representations:

12.3.1 That the Services will be uninterrupted or error-free or completely secure. You
acknowledge that there are risks inherent in Internet connectivity that could
result in the loss of your privacy, Confidential Information and property. You
acknowledge that you are responsible for mitigating the risks inherent in the
provision of the Services (including possible loss of your privacy, Confidential
Information and property);

12.3.2 That the Services will enable you to comply with legal or regulatory requirements
applicable to your business and use of the Services. You acknowledge that you
are responsible for ensuring compliance with any legal or regulatory
requirements;

12.3.3 that any data replication will result in a fully up-to-date set of data at our
secondary site at anyone time, and you acknowledge that there is a latency in
any data replication; or

12.3.4 Concerning any third party products or services which we may recommend to
you for your possible use, which (if you choose to do so) are used at your sole
risk and subject to any terms agreed with such third parties.

12.4 Except for the express warranties in these Terms, any conditions, warranties,
representations or other terms whether express or implied by statute or
common law or otherwise are excluded to the fullest extent permitted by law.
You are solely responsible for the suitability of the Services chosen.

12.5 If we provide any services to you without any additional charge which we are not
contractually obligated to provide, then these shall be provided on an ‘AS IS’ and
‘AS AVAILABLE’ basis.

13.  LIABILITY

13.1 Subject to Clause 13.9, we will not be liable for any defect or problem with the
Services if:

13.1.1 used in a way which is not in accordance with our recommended instructions;

13.1.2 alterations are made to the Services or any related software by persons not
authorised by us;

13.1.3 you are in material breach of any Contract; or

13.1.4 Any third party products or related software are connected to or operated with
the Services or any related software unless approved by us.

13.2 Subject to Clause 13.9, we will have no liability to you for, and you will indemnify
keep indemnified and hold us harmless against any liability for the consequences
of your use of the Services; or our compliance with your express instructions.

13.3 Subject to Clause 13.9, we shall not be liable to you in contract, tort (including
without limitation negligence) and/or breach of statutory duty for any loss or
damage which you may suffer by reason of any act, omission, neglect or default
(including negligence) in the performance of the Contract by us, or our agents, in
a sum which is greater than the total price of the Contract or five hundred
pounds sterling (£500.00) (whichever is the lesser).

13.4 Subject to Clause 13.9, we shall not be liable to you in contract, tort (including
without limitation negligence) and/or breach of statutory duty for any loss of
profits, business, goodwill, reputation, revenue or business opportunity whether
direct or indirect and for any other indirect or consequential (including
economic) loss of any kind which you may suffer by reason of any act, omission,
neglect or default (including negligence) in the performance of any Contract by
us or our agents.

13.5 Subject to Clause 13.9, we are not responsible for unauthorised access to your
Cloud System or data, or unauthorised use of the Services, save to the extent
that this is directly attributable to our breach of these Terms.

13.6 Subject to Clause 13.9, the Service Credits stated in the Service Levels are your
exclusive remedy for our breach of those Service Levels.

13.7 You are responsible for the use of the Services by any person you authorise to
use or access the Services, or who gains access to the Services or your data
through breach of your obligations under these Terms.

13.8 We will not be held responsible for any breach of Contract nor liable for delay in
performing, or failure to perform, any of our obligations under any Contract the
same arises from a cause beyond our reasonable control including but not
limited to strikes, lock-outs or other industrial disputes (whether involving the
our workforce or any other party), failure of a utility service or transport
network, failure of the Internet, act of God, war, riot, civil commotion, malicious
damage, compliance with any law or governmental order, rule, regulation or
direction, accident, breakdown of plant or machinery, fire, flood, storm or
default of suppliers or subcontractors (a “Force Majeure Event”). In such
circumstances, our time for performance shall be extended by a period
equivalent to the period during which performance of the obligation has been
delayed or failed to be performed.

13.9 Nothing in these Terms shall operate so as to exclude either party’s nonexcludable liability in respect of death or personal injury caused by its negligence
or the negligence of its servants or agents; or to exclude liability for fraudulent
misrepresentation; or to exclude or limit any other liability which, by law, it
cannot exclude or limit.

13.10 This provisions of this Clause 13 shall survive termination of any Contract.

14.  DATA PROTECTION

14.1 For the purposes of this clause:

14.1.1 “Applicable Data Protection Legislation” shall mean (a) the Data Protection Act
1998; or (b) from 25th May 2018, the GDPR, read in conjunction with and subject
to any applicable UK national legislation that provides for specifications or
restrictions of the GDPR’s rules; or (c) from the date of implementation, any
applicable legislation that supersedes or replaces the GDPR in the UK or which
applies the operation of the GDPR as if the GDPR were part of UK national law,
which may include the Data Protection Act 2018;

14.1.2 “Customer” shall mean the entity contracting with Cloud53 as identified in the
agreement between such customer and Cloud53;

14.1.3 “Cloud53” shall mean the Cloud53 entity identified in the agreement with the
Customer;

14.1.4 “GDPR” shall mean the General Data Protection Regulation (EU) 2016/679; and

14.1.5 “Personal Data”, “Data Controller”, “Data Processor”, “Data Subject”, and
“processing” (and other parts of the verb ‘to process’) shall have the meaning set
out in the Applicable Data Protection Legislation.

14.2 Each party shall comply at all times with its respective obligations under the
provisions of the Applicable Data Protection Legislation and shall not perform its
obligations under this Agreement in such a way as to cause the other to breach
any of its applicable obligations under Applicable Data Protection Legislation.

14.3 In the event Cloud53 provides a service to the Customer that requires data
processing, then Cloud53 acknowledges it is the Data Processor and the
Customer is the Data Controller. In connection with such processing Cloud53
shall:

14.3.1 process the Personal Data only on documented instructions from the Customer
and in accordance with this Agreement;

14.3.2 ensure that persons authorised to process the Personal Data have committed
themselves to confidentiality or are under an appropriate statutory obligation of
confidentiality and take steps to ensure that such persons only act on Cloud53’s
instructions in relation to the processing;

14.3.3 implement appropriate technical and organisational measures to protect the
Personal Data against unauthorised or unlawful processing and against
accidental loss, destruction, damage, alteration or disclosure. These measures
shall be appropriate to the harm and risk which might result from any
unauthorised or unlawful processing, accidental loss, destruction or damage to
the Personal Data and having regard to the nature of the Personal Data which is
to be protected (and the Customer shall notify Cloud53 immediately if the nature
of such Personal Data changes in a material way);

14.3.4 remain entitled to appoint third party sub-processors. Where Cloud53 appoints a
third party sub-processor, it shall, with respect to data protection obligations:
(a) ensure that the third party is subject to, and contractually bound by,
at least the same obligations as Cloud53; and
(b) remain fully liable to the Customer for all acts and omissions of the
third party;

14.3.5 in addition to the sub-processors engaged pursuant to clause 14.3.4 above, be
entitled to engage additional or replacement sub-processors, subject to:
(a) the provisions of clause 14.3.4 above being applied; and
(b) Cloud53 notifying the Customer of the additional or replacement subprocessor, and where the Customer objects to the additional or replacement
sub-processor, the parties shall discuss the objection in good faith;

14.3.6 not transfer Personal Data outside of the UK / European Economic Area except
where such transfer is made in such a way as to ensure that the level of
protection offered to natural persons by the Applicable Data Protection Law is
not undermined;

14.3.7 assist the Customer to respond to requests from Data Subjects who are
exercising their rights under the Applicable Data Protection Legislation;

14.3.8 notify the Customer without undue delay after becoming aware that it has
suffered a Personal Data breach and shall not inform any third party of the
Personal Data breach without first obtaining the Customer’s prior written
consent, except when law or regulation requires it;

14.3.9 on the Customer’s reasonable request, assist the Customer to comply with the
Customer’s obligations pursuant to Articles 32-36 of the GDPR (or such
corresponding provisions of the Applicable Data Protection Legislation),
comprising (if applicable): (a) notifying a supervisory authority that Cloud53 has
suffered a Personal Data breach; (b) communicating a Personal Data breach to an
affected individual; (c) carrying out an impact assessment; and (d) where
required under an impact assessment, engaging in prior consultation with a
supervisory authority;

14.3.10 unless applicable law requires otherwise, upon termination of the Agreement, at
the option of the Customer comply or procure compliance with the following (i)
delete all personal data provided by the Customer to Cloud53 and/or (ii) return
to the Customer all Personal Data provided by the Customer to Cloud53; and

14.4 Each party may collect, store and process contact Personal Data (such as name,
work email address, telephone/mobile work number, and work address) of the
other party and/or its employees for the purposes of the performance of this
Agreement, and such collection and/or processing shall be carried out in
accordance with such party’s privacy policy.

15.  TERM, TERMINATION AND SUSPENSION

15.1 Any Contract under these Terms shall commence on acceptance of your order by
us in accordance with Clause 3.

15.2 Any Contract under these Terms shall continue (unless terminated earlier in
accordance with these Terms) for the duration of the Initial Term. For the
avoidance of doubt the Services and Additional Services (and parts thereof) may
have different Initial Terms (as stated in any accepted order), in which case the
Contract under these Terms shall continue for the duration of all of the Initial
Terms combined.

15.3 Following expiry of the Initial Term(s) under clause 15.2, the Contract under
these Terms shall continue (unless terminated earlier in accordance with these
Terms) until all of the Services and Additional Services under the Contract have
been terminated.

15.4 The agreement will automatically renew at the end of each term for a further
term of 12 months unless either party gives the other written notice of
termination at least 30 days prior to the end of the relevant term.

15.5 Without prejudice to any rights and remedies available to us, we shall be
entitled, forthwith on written notice to you either to terminate the Contract
wholly or in part and/or any other contract with you or to withhold performance
of all or any of our obligations under the Contract (including suspension of the
Services) and/or any other contract with you if:-

15.5.1 any sum owing to us from you on any account whatsoever shall be unpaid after
the due date for payment;

15.5.2 you commit or suffer an “Insolvency Event” (meaning any one or more of a
notice being issued to propose a resolution for winding up or dissolution, or such
a resolution being passed; a petition for a winding up or an administration or
bankruptcy order being presented, or such an order being made; any steps being
taken with a view to a voluntary arrangement or other assignment, composition
or arrangement with all or any creditors or any moratorium, readjustment,
rescheduling, forgiveness or deferral or all or any indebtedness; suspension of
payments to all or any creditors and/or ceasing business; an encumbrancer
taking possession of all or any assets of a party; an administrator or receiver
being appointed over a party or all or any of its assets; any action anywhere
similar or analogous to any of the foregoing; and/or the other party having
reasonable grounds for believing that any of the foregoing is imminent);

15.5.3 you commit any breach of any contract (including without limitation the
Contract) with us, or we reasonably believe that the Services are being used in
breach of the Contract, or you fail to cooperate with our reasonable investigation
of any suspected breach of Contract; or

15.5.4 there is an attack on your Cloud System or your Cloud System is accessed or
manipulated by a third party without your consent, we are required by law or a
regulatory or government body to suspend or terminate your Services, or there is
another event for which we reasonably believe that the suspension or
termination of Services is necessary to protect our network or our other
customers.

15.6 In the event of a suspension of performance under Clause 15.4 we will (wherever
possible) endeavour to give you at least 1 Business Days’ notice to you of
suspension (save where suspension without notice is necessary in our reasonable
discretion to protect our business or customers); and we shall be entitled as a
condition of resuming performance to require pre-payment or such security as
we may require.

15.7 You may terminate the Contract forthwith on written notice to us if:

15.7.1 we commit or suffer an Insolvency Event; or

15.7.2 We materially breach any material obligation of the Contract and do not remedy
that breach within thirty (30) days of your written notice describing the breach
and requiring us to remedy it.

16.  CONSEQUENCES

16.1 On expiry or termination of any Contract under these Terms:

16.1.1 you will immediately cease to use any Cloud Services delivered or made available
to you;

16.1.2 you shall immediately pay to us all of our outstanding unpaid invoices and
interest;

16.1.3 any provision of these Terms which expressly or by implication is intended to
come into or continue in force on or after termination of any Contract shall
remain in full force and effect, other than as set out otherwise in these Terms,
neither party shall have any further obligation to the other;

16.1.4 we shall maintain the data that you have stored on the Cloud System for a one
(1) month period following termination or expiry, and if requested during this
period by you then we will deliver your data stored on your Cloud Services to you
on hard drive or electronically, at no additional fee to you;

16.1.5 save where termination is by us under clause 15.4, we shall continue to provide
limited Support to you to assist a replacement provider to assume performance
and reasonable the Cloud Services for a one (1) month period following
termination or expiry, and subject to you paying Charges for the same; and

16.1.6 Termination or expiry of any Contract shall not affect the accrued rights,
remedies, obligations or liabilities of the parties existing at termination.

17.  NOTICES

17.1 Any notice or other communication required to be given to a party under or in
connection with any Contract shall be in writing and shall be delivered by hand or
sent by pre-paid first-class post or other next working day delivery service, at its
registered office (if a company) or (in any other case) its principal place of
business, or sent by fax to the other party's main fax number; save that we may
provide routine notices or communications to your nominated email address(es)
or via our online control panel.

17.2 You consent to receive communications from us electronically (including through
our online control panel) and you agree that all agreements, notices, disclosures
and other communications we provide to you electronically satisfy any legal
requirement for the same to be in writing.

17.3 Any notice or communication shall be deemed to have been received if delivered
by hand, on signature of a delivery receipt or at the time the notice is left at the
proper address, or if sent by fax, at 9.00 am on the next Business Day after
transmission, or otherwise at 9.00 am on the second Business Day after posting.

17.4 This clause does not apply to the service of any proceedings or other documents
in any legal action or, where applicable, any arbitration or other method of
dispute resolution.

18.  DISPUTES

18.1 You and we both agree to attempt in good faith to clear up any dispute first by
discussing any issue.

18.2 The construction, validity and interpretation of these Terms shall be governed in
all respects by the laws of England and Wales. Any dispute arising under out of or
in connection with these Terms (including non-contractual disputes or claims)
shall be subject to the exclusive jurisdiction of the English courts, except that we
may seek to enforce any judgment anywhere in the world where you may have
assets.

19.  GENERAL

19.1 The headings in these Terms are for convenience only and do not affect the
interpretation of the Contract.

19.2 Nothing in these Terms is intended to, or shall be deemed to, establish any
partnership or joint venture between any of the parties, constitute any party the
agent of another party, nor authorise any party to make or enter into any
commitments for or on behalf of any other party.

19.3 These Terms shall prevail over any terms used by you at any time. These Terms
and any documents referred to in it constitute the entire agreement between the
parties and supersede any previous arrangement, understanding or agreement
relating to the subject matter of these Terms. Neither party has relied on any
statement, representation, assurance or warranty other than as set out herein
when entering into a Contract under these Terms. Nothing in this clause shall
limit or exclude any liability for fraud.

19.4 You shall not assign transfer, charge, subcontract or deal in any other manner
with all or any of your rights or obligations under the Contract without our
consent in writing, which may be given on such terms as we think fit. You agree
and accept that we may at any time assign, transfer, charge, subcontract or deal
in any other manner with all of our rights under the Contract and may
subcontract or delegate in any manner any or all of its obligations under the
Contract to any third party or agent.

19.5 The provisions of these Terms are severable and distinct from one another, and,
if at any time any of the provisions is or becomes invalid, illegal or unenforceable,
the validity, legality or enforceability of the other provisions shall not in any way
be affected or impaired.

19.6 The rights and remedies of each party in respect of these Terms shall not be
diminished, waived or extinguished by the granting of any indulgence,
forbearance or extension of time by one party to the other nor by any failure of
or delay by a party in ascertaining or exercising any such rights or remedies.

19.7 Any notice given under or in connection with these Terms shall be in the English
language.

19.8 For the avoidance of doubt nothing in these Terms shall confer on any third party
any benefit or the right to enforce any provision of these Terms.

19.9 The relationship between the parties is that of independent contractors and not
partners, and no party is the agent for the other or has the right to bind the
other party.