Terms of Use
These terms and conditions shall
have legally binding effect between the Company and the Customer
and shall be deemed to have been accepted by the Customer upon
placing an Order with the Company and also incorporate the services agreement.
Definitions
"The Company"
means Cloudserve Limited, a company registered
in England and Wales with company registration number
06950390.
"The Customer" means any person
(whether a company, sole trader, individual or partnership) who
purchases Services from the Company.
"Order" means an order made by the
Customer to the Company to purchase Services from the Company.
"Software" means the software
described in the Order "Services" means each and every service
provided by the Company to the Customer as set out in the Order
"Contract Term" means the initial contract term set out in the
Order for provision of the Service(s) plus any extension of the
term under the operation of this Agreement.
Agreement
In consideration of the payment of
the fees set out in the Order the Company will provide the
Service(s) to the Customer as set out in the Order in accordance
with these terms and conditions and in accordance with the terms of
the Service Level Agreement agreed with the Customer.
Contract Term
The Company will provide the
Services for the Contract Term specified in the Order and
thereafter will continue to provide the Service(s) until the
Agreement or the Service is terminated by the Company or the
Customer in accordance with the termination provisions set out
herein.
Payment terms
Time is of the essence for payment
of all invoices. The Company's usual payment terms are 30 days from
invoice date. Customer will be invoiced 14 days in advance of their
service. If different payment terms are agreed these will be
specified in the Order.
The Customer acknowledges that
Services in respect of which a Contract Term is specified are
charged at a rate calculated on the basis of the Contract Term. If
the Customer terminates this Agreement or one of the Services
provided hereunder prior to the expiry of the Contract Term the
Customer will be liable to pay the fees for such Services for the
remainder of the Contract Term.
All payments are quoted exclusive
of VAT which will be added at the standard rate in accordance with
current VAT law. Software licences The Customer's rights to use the
Software are subject to the usage rights granted by the third party
software supplier, such as Microsoft, Sage or Adobe etc. The
Customer acknowledges that the usage rights of third party software
may vary from product to product and agrees to abide by such
rights. The Customer is deemed to accept the usage rights in
relation to the Software set out in the Order by placing an Order
with the Company.
The customer agrees that any
software provided by The Company will remain the property of The
Company and cannot be taken, transferred or re-assigned.
Hosted Exchange
The Customer will be invoiced
monthly in arrears for usage. There are three billing methods
available and the invoice will reflect the billing method agreed
with the Company. If the Customer has agreed to a Company Storage
Tariff the Customer will be invoiced the agreed flat price per user
multiplied by the number of users on the Hosted Exchange platform
during the month, plus a fee at the agreed storage price for the
actual storage used which is the sum of the total storage used by
all of the users plus any public folder storage. The Customer
accepts that the number of users may vary from time to time as may
the actual storage used. The Customer agrees to pay the per user
fees for each mailbox and the per GB storage fee for the actual
storage used.
If the Customer has agreed to a
User Storage Tariff with hard limits as the billing method the
Customer will be invoiced as follows: at the end of each month the
Customer will be invoiced for the actual mailboxes on Hosted
Exchange. The Customer acknowledges that the actual number of
mailboxes can vary from month to month depending on the Customer's
usage in adding or removing users from Hosted Exchange. The monthly
invoice will set out the mailboxes and the tariff for each
mailbox.
If the Customer has agreed to a
User Storage Tariff without hard limits as the billing method the
Customer will be invoiced as follows: at the end of each month the
Customer will be invoiced for the actual mailboxes on Hosted
Exchange with a charge for each mailbox being based on the actual
storage used by that mailbox. The available storage quotas are:
1GB, 5GB and 10 GB increments.
Hosted Desktop
The Customer will be invoiced
monthly in arrears for this Service. The charges will include the
following: (a) a per user per month charge as set out in the order,
(b) a charge for company storage based on the actual amount of
storage used multiplied by the price per GB (GigaByte) agreed with
the Customer and set out in the order and (c) a charge for any
additional hosted applications as set out in the Order (d) a charge
for any additional desktop resources such as Memory or CPU.
Hosted Sharepoint
The Customer will be invoiced
monthly in arrears for this Service. The charges will include the
following: (a) a per user per month charge as set out in the order
and (b) a charge for company storage based on the actual amount of
storage used multiplied by the price per GB (GigaByte) agreed with
the Customer and set out in the order. The Customer accepts that
any customisation of Sharepoint that the Customer requests will be
subject to an additional charge based on a quotation provided by
the Company at the Customer's request.
Web hosting, Dynamic Servers and Managed Hosting
The Company shall use reasonable
skill and care to ensure continuing up-time of the web server(s)
hosting the Customer's web site and other applications. However the
Customer acknowledges that Internet connections, technical hardware
and third party software are used by the Company to fulfill the
hosting Service and that 100% reliability cannot therefore be
guaranteed. Subject to any terms agreed in a Service Level
Agreement, which sets out additional terms under which the Company
provides the Service(s), the Company will not be liable for service
interruptions or down-time of the Server whether resulting from
technical failure or howsoever arising. Where the Customer has
ordered a dedicated server or co-located server service from the
Company a separate Service Level Agreement provides additional
terms and conditions under which the service is provided.
Whilst the Company will use reasonable skill and care to ensure the
security of its web servers, the Company does not guarantee that
its web servers or those co-located with the Company will be free
from unauthorised users or hackers and exclude any liability that
results from such abuse.
Domain names
The Company will use its best
endeavours to ensure that, once an Order to register a domain name
has been received, an application to register the domain name is
made within a reasonable time period. However, the Customer accepts
that between the time of Order for a domain name and the time the
Company (whether by itself or through a third party instructed by
the Company) applies to register the requested domain name, another
third party may have registered the domain name which are
registered by naming authorities on a first come first served
basis. If this happens the Company will not be liable for any
resulting loss or damage to the Customer.
The registration of the domain name
and its on-going use is subject to the relevant naming authority's
terms and conditions. For uk domain names including .co.uk,
.plc.uk, ltd.uk, org.uk and .me.uk the Customer agrees to abide by
Nominet's Terms and Conditions for Domain Name Registration (see
below).
UK Domain Names
For uk domain names the Customer
acknowledges and agrees that when it places an Order for a uk
domain name with the Company that the Company is acting as an agent
of the Customer (who will be the Applicant for the domain name) and
that the Customer will enter into a direct contractual relationship
with Nominet subject to Nominet's Terms and Conditions for Domain
Name Registration which can be read by clicking on the following
link:
http://www.nominet.org.uk/ReferenceDocuments/TermsAndConditions/TermsAndConditions.html
The Customer is solely responsible
for its use of a domain name and must abide by the naming
authority's terms and conditions. Any dispute between the Customer
and any other person regarding the rights relating to the domain
name is a matter between the Customer and such third party.
Web site and application bespoke development
The Company will design and build a
web site or application in accordance with the functionality
defined in the Proposal and/or functional specification. If the
Customer changes the specification of the design or functionality
of the web site or application after sign-off / acceptance then the
Company reserves the right to charge additional fees based on the
time and cost involved in making the changes. The Customer is
solely responsible for obtaining any and all necessary intellectual
property rights consents and/or authorisations in respect of any
material published on its web site. The Company guarantees that any
web site or application built by the Company will substantially
perform its functions in Microsoft Internet Explorer 7 or later
version of the Internet Explorer web browser available at the date
of this Agreement.
Acceptable Usage Policy
The Customer agrees to abide by the
following Acceptable Usage Policy ("AUP"). The Customer warrants
and undertakes to us that it will not by itself or others:
a) use its web site (where the Company is providing the hosting
service for the web site) for unlawful purposes;
b) knowingly or recklessly post, link to or transmit, or permit
third party users to post, link to or transmit:
1. any material that is abusive, threatening, harmful, malicious,
defamatory, obscene, pornographic, profane or otherwise
unlawful;
2. any material containing a virus or other hostile computer
program;
3. it will not post, link to or transmit any material that
constitutes or encourages a criminal offence, gives rise to civil
liability or infringes the intellectual property rights of any
third parties.
c) knowingly or recklessly transmit, or permit third party users to
transmit unsolicited email in breach of UK law including the
Privacy and Electronic Communications (EC Directive) Regulations
2003
The Company may suspend the
Customer's Service(s) immediately and without notice to the
Customer in its sole discretion if in the Company's opinion the
Customer has or has knowingly, recklessly or negligently permitted
any breach of the Acceptable Usage Policy, or if it receives any
complaint that unsolicited email has been transmitted by the
Customer, or by the Customer's agents or customers, or if any
material hosted on the Customer's web site(s) or server(s) (in
respect of which the Company is providing a hosting service) may be
unlawful, harmful or defamatory.
The Company may disclose the
Customer's name and address to a complaining third party if in our
reasonable discretion it is necessary or appropriate to do so, for
example if there is evidence of a prima facie case that the
Customer's web site(s) or server(s) in respect of which the Company
is providing a hosting service is infringing the rights of a third
party.
Anti-virus
The Company uses third party
anti-virus software to protect the servers and email from viruses.
Although all reasonable care is taken by the Company to ensure that
the anti-virus software is up to date, the Company makes no
warranty as to the effectiveness of its third party anti-virus
software and excludes any loss or damage caused by a virus which
infects any electronic device, computer, PC, server or network
owned or used by the Customer.
Networks
The Company will use reasonable
skill and care to ensure that the network provided is protected
from being interfered with by unauthorised third parties and that
anti-virus software is used to protect the network from viruses.
However, the Company uses third party hardware and software for the
network configuration and anti-virus software cannot guarantee that
the Customer's network will be free from hackers or viruses.
Exclusion and limitation of liability
The fees charged to the Customer
under this Agreement are determined on the basis of the following
limitations and exclusions of liability. Subject only to any terms
agreed in a Service Level Agreement, which sets out additional
terms under which the Company provides the Service(s) and in
particular sets out the terms of a Service Credit, the Company
excludes and shall not be liable for any damage or loss resulting
from a) any technical or other failure resulting in unavailability
of the web site or applications hosted by the Company's servers (or
the servers of third parties which the Company, on behalf of the
Customer, has engaged to provide the whole or part of a
Service);
b) unauthorised access to the Company's servers (or the servers of
third parties which the Company, on behalf of the Customer, has
engaged to provide the whole or part of a Service); The Company
excludes all representations (other than fraudulent
representations) and warranties relating to the Services supplied
by the Company under this Agreement, whether imposed by statute or
operation of law that are not expressly stated in this
Agreement.
If the Customer suffers any loss or
damage other than as a result of the matters stated above for which
all liability is excluded then the Company's total liability for
any claim in contract, tort, negligence or otherwise arising out of
or in connection with the provision of Services under this
Agreement to the Customer shall be limited to the total amount of
fees paid by the Customer to the Company for the Service upon which
the claim is based.
In no event shall the Company be
liable for any loss of business, contracts, profits or anticipated
savings or for any other indirect or consequential or economic loss
whatsoever. The Customer agrees to indemnify the Company against
any and all claims brought against the Company as a result of the
Customer, through its web site, domain name or other Services
purchased from the Company, infringing the rights of third
parties.
Confidentiality
In order to provide the Service(s)
the Company will be hosting email and other data on behalf of the
Customer. In order to provide the Service(s), respond to support
requests and test systems it may be necessary for employees of the
Company to have access to such email and data. Each employee who
has such access is has a confidentiality clause in their Contract
of Employment with the Company that prohibits them from disclosing
to third parties any confidential information save as required by
the general law (Court Order or government authority such as
police). The Company warrants that all email and data of the
Customer will be treated as confidential and will not be disclosed
or supplied to any third party unless the Company is ordered to do
so by a Court Order or to comply with a government agency.
Data Protection
The Company is registered under the
Data Protection Act , registration number Z1864393 and the
Company warrants that this registration is kept up to date each
year through the notification department of the Information
Commissioner's Office.
Termination
This Agreement may be terminated by
either party giving the other 30 days written notice.
The Customer may terminate a
particular Service under this Agreement without terminating the
Agreement itself by giving 30 days written notice. If the Customer
terminates a Service this Agreement will continue in force in
respect of any other Services provided by the Company to the
Customer. Furthermore, the obligation of the Customer to pay fees
for the Contract Term in respect of the Service terminated
continues to subsist in accordance with this Agreement.
If the Agreement or a Service is
terminated prior to the expiry of the Contract Term for a Service
the Customer is liable to pay the remaining fees for the Service
for the full Contract Term.
The Company may terminate this
Agreement and/or suspend any and all services to the Customer
(including web hosting and email) without notice and with immediate
effect if:
a) the Customer fails to abide by the Company's payment terms or is
in fundamental breach of this Agreement or
b) the Customer manifests an intention not to comply with the terms
of this Agreement or not to pay fees due.
Either party may terminate this Agreement with immediate effect and
without notice if the other party goes into insolvent liquidation
or other form of administration or bankruptcy.
Customer Security Responsibilities
The Customer is solely responsible
for any breaches of security affecting Desktops or Managed Servers
under the Customer's control. The Customer must maintain vigilance
of password management and access management to limit the risks to
their system.
If a Customer's server is involved
in an attack on another server or system, it will be shut down and
an immediate investigation will be launched to determine the
cause/source of the attack. In such event, the Customer is
responsible for the cost to rectify any damage done to the
customer's server and any other requirement affected by the
security breach.
Modification
The Company reserves the right to
add, delete or modify any provision of its Terms of Use at any time
without notice.
General
Notices under this Agreement must
be in writing but can be transmitted by fax, email or post. In the
case of post notices will be deemed to have been received 1
business day after sending if posted first class or 2 business days
after posting if posted second class; in the case of fax or email
notice will be deemed to have been received on the same business
day provided that the fax or email are sent before 5pm.
Any waiver by the Company of any of
its rights under these terms and conditions shall not prevent the
Company from later enforcing that right or enforcing any of its
rights pursuant to these terms and conditions.
If any provision of these terms and
conditions is held void, illegal or unenforceable for any reason,
such provision shall be severed and the remainder of the provisions
hereof shall continue in full force and effect as if the terms and
conditions had been agreed with the void provision(s)
eliminated.
Neither party will be liable for
any breach of its obligations resulting from an Event of Force
Majeure.
These terms and conditions shall be
governed by and construed in accordance with the laws of England
and the parties hereby submit to the exclusive jurisdiction of the
English Courts.