Terms & Conditions

1. These Terms and Conditions

1.1 Cloud53 Ltd (referred to “us”, “we” or “our”) is incorporated and registered in England and Wales with company number 09447764 and has its registered offices at North Stage, 76 Broadway, Media City, Salford M50 2UW. We are the supplier of the Services. The terms “you” and “your”, refers to you as the customer in relation to the Services.

1.2 By placing an order for the Services, you agree to these Terms and Conditions (together with its Schedules and the documents referred to in it, the “Terms”) which govern your purchase of and our supply of Services to you. Please read these Terms carefully before placing your order, and retain a copy of these Terms for future reference.

2. Interpretation

2.1 In these Terms, the following definitions apply:

2.2 Clause, Schedule and paragraph headings shall not affect the interpretation of these Terms. The Schedules form part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the Schedules.

2.3 If there is an inconsistency between any of the provisions of the main body of these Terms and the Acceptable Use Policy and the quotation then the provisions of main body of these Terms shall prevail in preference to the Acceptable Use Policy and the quotation, and the provisions of the Acceptable Use Policy shall prevail over the provisions of the quotation.

2.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

2.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

2.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

2.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

2.8 A reference to any party shall include that party’s personal representatives, successors and permitted assigns.

2.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

2.10 A reference to writing or written includes faxes but not e-mail.

2.11 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

3. Formation of the Contract

3.1 On receipt of any enquiry from you for Services, we may issue you with a quotation for Services (in hard copy, or by email or online). Any quotation given by us shall not constitute an offer, is subject to withdrawal at any time before the receipt of an unqualified order from you, and is only valid for a period of 20 Business Days from its date of issue (unless otherwise specified by us in writing).

3.2 Your written acceptance of our quotation (or submission of an order through our website) constitutes an order for the Services as set out in that quotation. We only accept orders from customers acting in the course of a business. By placing an order with us then you warrant and represent that you are a business customer, are legally capable of entering into binding contracts, are at least 18 years old, and are authorised to place such an order.

3.3 The Services are subject to availability. If on receipt of your order the Services which you have ordered are not available, we will inform you within a reasonable amount of time and you will then be free to cancel your order if you wish to do so. If you cancel your order under this Clause 3.3 then we will refund or credit you for any sum that has been paid by you or debited from your credit card or other account for those Cloud Services.

3.4 After placing an order, you may receive acknowledgment that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to purchase Services. All orders are subject to acceptance by us, and we will confirm such acceptance to you. We may refuse to accept your order.

3.5 The contract (“Contract”) will only be formed when we accept your order, and will relate only to those Services whose acceptance we have confirmed.

3.6 If we make changes to the Acceptable Use Policy then we will notify you that we have published a new version on our website.

4. Description of the Cloud Services

4.1 The description of the Cloud Services you order will be as set out in any valid quotation which forms the basis of the Contract in accordance with clause 3, save in cases of obvious error.

4.2 Any drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

4.3 We try to make sure that all Services descriptions and prices contained in any quotation are as accurate as possible. On the rare occasion that there is an error, we will advise you about it as soon as reasonably possible and will offer you the option of reconfirming your order or cancelling your order. If you cancel under this Clause 4.3, we will refund or credit you for any sum which has been paid by you or debited from your credit card or other account for the Services.

5. Charges and Payment

5.1 The Charges for the Services will be as set out in any valid quotation which forms the basis of the Contract in accordance with clause 3, save in cases of obvious error.

5.2 Charges are exclusive of VAT. We shall charge and you shall pay to us VAT, where appropriate, at the rate prevailing at the relevant tax point which shall be shown separately on your invoice/statement.

5.3 We shall invoice you for the Services monthly, one month in advance of performance of the Services. You shall make payment in full within 15 days following the date appearing on our invoice.

5.4 Payment for the Charges for the Services can be made in sterling by direct debit payment or any other method shown on our website at the time that you place your order. Any credit or debit card information is recorded at the point at which you submit your order, with your card then being authorised against the transaction.

5.5 Interest at the annual rate of 4% over the base rate of the Bank of England from time to time will be charged at the rate prevailing on the due date on all monies outstanding after the due date until the actual date of payment (both before and after judgment) and any cash discount will not be allowed to you. If we bring legal action to collect overdue amounts then you shall also pay our costs of collection (including legal fees, expenses and court costs). If your payment is returned for insufficient funds, we may charge you an administration fee up to the maximum amount permitted by law.

5.6 Cloud53 shall be entitled to increase the Charges in any of the following circumstances:

5.7 All amounts due under the Contract shall be paid you in full without any deduction or withholding (other than any deduction or withholding of tax as required by law), and you shall not be entitled to claim set-off or to counterclaim against us in relation to the payment of the whole or part of any such amount.

6. Performance of the Services

6.1 We shall provide Services to you in a good and professional manner, and in accordance with all applicable law.

6.2 We shall supply the Cloud Services to you in accordance with the Specification in all material respects (including the security obligations set out in the Specification), and the Service Levels.

6.3 The Cloud Services shall be provided to you by granting you access to the Cloud System via our online control panel; and the provision of Support in response to any ticket sent to us by you via our online control panel. Unless otherwise agreed in writing by us, delivery of the Cloud Services is deemed to take place when the Cloud Services are made available to you.

6.4 We will provide your Cloud Services using controlled access data centres which are continuously staffed and monitored by video surveillance, and which restrict access to your Cloud System to our employees or agents or subcontractors who need access to perform the Cloud Services.

6.5 We shall provide Support to your listed administrative or technical account contacts, but not to any other person, upon receipt of your support ticket issued through our online control panel.

6.6 We may provide Services to help you to mitigate any potential loss of privacy, Confidential Information and/or property as part of the Services (including system redundancy and data backup), and in such cases:

6.7 We will use our reasonable endeavours to make available the Services by any date requested by you. However, any such date is an estimate only and time shall not be of the essence. We shall not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature directly or indirectly resulting.

6.8 We shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services. We shall notify you in any such event.

6.9 You do not have any right of physical access to our premises (including our data centres) or the Cloud System, and do not acquire any ownership of the physical infrastructure used to provide the Services (including the Cloud System).

7. Service Levels

7.1 For Cloud services we guarantee that:

7.2 The guarantees in clause 7.1 do not include any period in which Availability is not achieved due to scheduled or emergency maintenance (on your Cloud System or otherwise); events of Force Majeure; or any action by you or on your behalf which impacts on the Cloud Services (including breach of these Terms). Periods in which Availability is not achieved are measured from the time of your support ticket issued through our online control panel or the time when interruption is recorded in our monitoring system (whichever is the earlier), until rectification.

7.3 If we fail to meet the guarantees in clause 7.1 in any Month in a manner which directly and adversely affects your Cloud System, then we shall provide you with a Service Credit on the following scale to a maximum of 50% of the Charges for that Month for the infrastructure or hardware component within the Cloud System to which the default is attributable (for the avoidance of doubt excluding any proportion of the Charges attributable to other components of the Cloud System such as third party software, and doubt excluding any proportion of the Charges attributable to Support), provided that you are not in breach of the Agreement at the time of occurrence of the event giving rise to the Service Credit. For the avoidance of doubt, the Service Credits shown below are not cumulative in respect of any one piece of infrastructure or hardware component.

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:

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:

8.2 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”):

8.5 You agree that if your Services are reinstated after a suspension for non-payment, 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):

9.2 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) our sole liability to you shall be (at our option and expense) to:

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:

11.3 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:

11.4 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:

12.4 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:

13.2 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 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 non-excludable 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 The provisions of this Clause 13 shall survive termination of any Contract.

14. Data Protection

14.1 For the purposes of this clause:

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:

14.4 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 36 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:

15.6 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:

16. Consequences

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

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.