Please read these Terms & Conditions carefully, as they set out our and your legal rights and obligations in relation to our web hosting services.
You should print a copy of these Terms & Conditions for future reference as we will not file a copy specifically in relation to you, and they may not be accessible on our Website in future.
These Terms & Conditions are available in the English language only.
If you have any questions or complaints about these Terms & Conditions or our Services, please contact us by writing to Clouvider Limited, 30-34 Moorgate, London, EC2R 6DA, United Kingdom or by email to firstname.lastname@example.org.
“Agreement” means the agreement between Clouvider and the Customer incorporating these Terms and Conditions and the Order Form and any amendments to it from time to time; “Business Day” means any week day, other than a bank or public holiday in England;
“Business Hours” means between 09:00 and 17:00 on a Business Day;
“Clouvider, “we”, “us”, “our” means Clouvider Limited, a limited company incorporated in England and Wales registration number 08750969, VAT Number: GB 175 7066 84, with its registered office at Clouvider Limited, 30-34 Moorgate, London, EC2R 6DA, United Kingdom.
“Confidential Information” means any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer” means the customer for Products and/or Services under the Agreement specified in the relevant Order Form;
“Continuous Payment Authority” means your legal authority permitting Clouvider to charge Credit or Debit card on file for any service, invoices and fees resulting from the performance of this contract;
“Datacentre” means Unit 3, Crown Road, Enfield, EN1 1TX;
“Effective Date” means the date when the Agreement comes into force in accordance with Clause 2.3;
“Equipment” means any equipment owned or licensed by the Customer and located in the Datacentre (excluding any equipment owned or licensed by Clouvider;
“Fees” means all and any amounts payable by the Customer to Clouvider under or in relation to the Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the Internet or a part of the Internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Materials” means all websites, web applications, software, information, data, databases and other works and materials stored, transmitted, published or processed using the Products and/or Services;
“Installation fee” means the initial installation charge as outlined on the Order Form;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Minimum Term” means the period as stated on the Order Form (usually 1 month or 1 Year) starting on the Effective Date;
“Order Form” means the form sent by Clouvider’s representative or available on Clouvider’s website enabling users to sign up as Customers;
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Prohibited Content” means:
(a) material which breaches any applicable laws, regulations or legally binding codes, or infringes any third party Intellectual Property Rights or other third party rights, or may give rise to any form of legal action against Clouvider or the Customer or any third party;
(b) pornographic or lewd material; and
(c) messages or communications which are offensive, abusive, indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to another internet user, or constitute spam or bulk unsolicited mail;
(d) any mass mailing activity unless agreed in advance with Clouvider
“Products” means any products, software or other proprietary technology owned by Clouvider or any third party and which is licensed or otherwise provided for use in relation to the Services;
“Services” means the services provided under the Agreement, which may include shared hosting in cloud, virtual dedicated servers in cloud, dedicated servers hosting, Content Delivery Network (CDN), co-location services, domain name services and/or SSL services, or any other services as specified on the Order Form;
“Service Credits” means the credits set out in the Service Level Agreement which are payable in respect of any failures to meet the Service Levels; such credits being your sole and exclusive remedy in relation to such failures;
“Promotional Credits” means the credits issued by Clouvider from time to time at solely at Clouvider’s discretion. Promotional Credits are non-refundable. Unless otherwise stated, Promotional Credits are valid for a period of 90 calendar days and expire if not exchanged for Services during that time. Promotional Credits can only be used for the following services: Dedicated Servers, Virtual Dedicated Servers, Cloud Servers, Virtual Private Servers;
“Service Levels” means the service levels set out in the Service Level Agreement;
“Service Level Agreement” means the service level agreement as set out in Clause 18 of this Agreement which sets out the level of Services which will be provided and the Service Credits payable for failures to achieve those Service Levels;
“Start Date” means the date specified as such on the Order Form;
“Term” means the term of the Agreement;
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date;
“Visitor” means a third party accessing customer service;
“Working Hours” means 9 AM to 5 PM Monday to Friday, excluding Bank Holidays;
2. The Agreement
2.1 In order to apply to become a Customer, the applicant must complete and submit the Order Form.
2.2 If the applicant makes any input errors during the Order process these may be identified and corrected by the applicant before the Order Form is submitted by using the “Edit Configuration” function or by starting the Order process from the beginning. In case of paper based Order Form by requesting a new or modified copy.
2.3 The Agreement comes into force once Clouvider sends the Order Acceptance email, following successful submission of the Order Form by the Customer.
2.4 The agreement will continue in force indefinitely unless cancelled or terminated in accordance with Clause 27.
2.5 Clouvider reserves the right to reject orders, prior to the order acceptance outlined in 2.3 .
3. Implementation and transition
3.1 Clouvider will make the Services available to the Customer on the agreed date as specified on the Order Form.
3.2 At the request of the Customer, Clouvider will use reasonable endeavours to assist with the transition of any Customer website(s) from any third party host.
4. Products and Services
4.1 We may, at the Customer’s request provide the Customer with certain Products and/or Services.
4.2 Clouvider will make available to the Customer Services meeting specification as set out in the Order Form.
4.3 Should your account use more than 5% of the shared server resources we will discuss with you alternative hosting options to meet your requirements.
5. Shared Hosting in Cloud.
5.1 This Clause 5 applies where Clouvider provides to the Customer the service Shared Hosting in Cloud
5.2 Clouvider will make available to the Customer hosting capacity on a shared server hosted on the Cloud infrastructure meeting the specification set out on the Order Form.
5.3 For the avoidance of doubt, the Customer will not be provided with administration rights in relation to the shared hosting server. Clouvider may refuse any request to change the configuration of a shared server at its sole discretion.
6. Virtual Dedicated Servers in Cloud
6.1 This Clause 6 applies where Clouvider provides to the Customer the service Virtual Dedicated Servers in Cloud.
6.2 Clouvider will provide the Customer with administration (root or Administrator) access to the Virtual Server.
6.3 The service will be hosted on the Cloud infrastructure.
7. Dedicated Servers
7.1 This Clause 7 applies where Clouvider provides to the Customer the service Dedicated Servers.
7.2 Clouvider will make the equipment available for the exclusive Customer use and will grant the administration rights with respect to that server.
7.3 For the avoidance of doubt, the Dedicated Servers made available under this agreement will remain the property of Clouvider at all times.
7.4 “Unmetered Dedicated Servers” cannot be used for the purpose of setting up Proxies and VPNs without Clouvider’s written consent.
7.5 Unless otherwise agreed in writing, the maximum amount of IP space that can be routed to a single Dedicated Server is up to 1x /24 IPv4 and up to 1x /32 IPv6.
7.6 Dedicated Servers that are build to Customer specification and usually delivered within 5 working days, unless otherwise stated or agreed in writing.
8. Co-location services
8.1 This Clause 8 applies where Clouvider provides to the Customer the Co-location service.
8.2 Where your Equipment is located within the Datacentre, you and your authorised employees, representatives or agents will be entitled to enter the Datacentre to access the Equipment for the purposes of assessing, inspecting, installing, repairing and/or maintaining the Equipment, provided you comply with the requirements set out below. For the avoidance of doubt, you have no right of access in relation to any equipment owned by Clouvider or any third party.
8.3 You agree to provide us with as much written notice (including by fax or e-mail if required) as is reasonably possible when any such access is required, which shall not be less than 24 hours in advance of the required access time unless we consider that circumstances justify more immediate access. The notice must provide full details of the person(s) requiring access, including photographic identification, and the date and time when access is required. You accept that you do not have an immediate right of access to the Equipment.
8.4 Clouvider reserves the right (on reasonable grounds) to refuse any person entry to the Datacentre and/or to request any person to leave the Datacentre at any time. Clouvider will not be responsible for the consequences of any refusal or delay by Clouvider to permit entry or of any request by Clouvider for a person to leave the Datacentre where such decision has been made on reasonable grounds.
8.5 Access to the Equipment is conditional upon you or any persons accessing the Equipment on your behalf (a) being accompanied by an agent of Clouvider, if required (b) complying with all access terms and conditions applicable to the Datacentre, including all health and safety requirements to the extent that such terms and conditions and requirements have been notified to you, and (c) not interfering with any other equipment or material in the Datacentre.
8.6 You agree to provide us with written notice of not less than 24 hours prior to replacing, modifying or altering the Equipment, or connecting or disconnecting the Equipment to or from any other equipment unless we consider that circumstances justify a shorter notice period. You shall ensure that the Equipment is clearly marked and identified as belonging to you at all times.
8.7 We shall be entitled, upon not less than one (1) months written notice, to move your Equipment to a different location within the Datacentre or to a location in any other Clouvider Datacentre. We shall bear the cost and expenses incurred by us in moving and installing the Equipment.
8.8 You agree to ensure that the Equipment is safe and conforms at all times with all applicable laws and regulations, including PAT testing, compliance with health and safety standards and any reasonable environmental and operating requirements specified by Clouvider.
8.9 You will insure the Equipment against all risks (including, but not limited to, fire, theft and flood) and will obtain such other insurance cover (including for consequential loss and loss of profits cover) as may be required by law and/or appropriate to the value and use of the Equipment. You will, as a minimum, obtain public liability insurance cover to a limit of not less than £5 million. You agree to provide copies of the relevant insurance certificates to us upon request.
8.10 The Customer acknowledges that the Customer is responsible for ensuring that any co-located server does not suffer damage or data loss or corruption in the event of a power failure, power surge or similar electrical fault or phenomenon, and that Clouvider will not be liable in respect of loses arising out of such a fault or phenomenon.
9. Domain name registration
9.1 Subject to the payment of the applicable Fees in advance, Clouvider will attempt to register domain names that the Customer orders using the interface on Clouvider’s website, but does not warrant that it will be able to do so. Domain name orders will be subject to the provisions of this Clause 9. Service Credits cannot be used for the purpose of domain registration.
9.2 Fees in respect of domain name registrations are non-refundable.
9.3 Domain name registrations will be subject to periodic renewal fees and transfer fees from time to time as will be notified to the Customer.
9.4 The Customer warrants that the information submitted for the purposes of a domain name registration is current, accurate and complete, that it has the legal right to apply for and use the domain name, and that its use of the domain name will not infringe any person’s Intellectual Property Rights or other legal rights.
9.5 The Customer undertakes to keep the information required for the purposes of a domain name registration up-to-date (which changes may be subject to additional Fees).
9.6 The Customer acknowledges that certain information submitted for the purposes of a domain name registration will be published on the internet via “WHOIS” services.
9.7 Clouvider may reject in its sole discretion any request to register a particular domain name.
9.8 Clouvider will not offer any advice in relation to any actual or potential domain name dispute, and will have no liability in respect of the suspension or loss of a domain name by the Customer as a result of any domain name arbitration procedure or court proceedings.
9.9 Clouvider will have no responsibility for the Customer’s use or retention of a domain name once registered, and it will be the Customer’s responsibility to ensure that domain names are renewed and that applicable renewal charges are paid.
9.10 The Customer acknowledges that domain names will be subject to the rules and policies from time to time of the relevant registry or registration authority, and the Customer agrees to abide by all such rules and policies.
9.11 The Customer agrees to the terms of the applicable domain name registration agreement (as amended from time to time): https://www.nominet.uk/go/terms
9.12 Customer can renew a domain name in the billing portal MyClouvider / Customer Portal.
9.13 Clouvider will not charge the Customer for providing the authinfo code, or in case of .UK domains pushing the domain to another registrar.
9.14 Clouvider will send automated emails reminding about the domain expiry date at least 30 days before the domain expires. As emails are not a faultless medium of communication the Customer should not rely solely on the email reminders to keep the domain active. The expiry date is always displayed in MyClouvider billing panel.
9.15 Domains SLA
(a) Please contact Clouvider using one of the contact methods displayed at https://www.clouvider.co.uk/contact-us, outside of office hours please email us at email@example.com. We aim to respond to all points of contact within 1 business day and aim to resolve any issues you have within 5 business days.
9.16 .UK Domain Names
(a) .UK domain registration and renewals are subject to the Nominet Terms & Conditions: https://www.nominet.uk/go/terms
(b) If you request that you no longer wish to have your domain name renewed by us, it will be left to expire and all services I provide regarding that domain name will be suspended. Your domain name will then go into a 30 day protected period, after 30 days your domain will be suspended by Nominet and it will go into a 60 day grace period. If you change your mind and still wanted to retain your domain name, you still can and at the original renewal price. This must be requested by email before the 80th day after your domain has expired, after 90 days your domain will be cancelled and deleted from the register and made available for resale through a third party registrar by Nominet. Clouvider will not guarantee the renewal of a domain name after this happens.
(c) Here at Clouvider we like to think we get it right all the time, every time but the truth of it is everyone gets it wrong from time to time. We can only improve on our services with valid feedback from you, our Customers.
If you wish to make a complaint about a service you have received, please submit an email to us at firstname.lastname@example.org including as much detail from the issue you have. We will acknowledge your complaint within 1 business day and aim to resolve any issues within 5 business days.
If you’re not happy with the initial outcome of your complaint and its regarding your .uk domain name, please feel free to escalate your issue to Nominet (the .uk registry) here: https://www.nominet.uk/complaints/
10. SSL certificates
10.1 Subject to the payment of the applicable Fees in advance, Clouvider will attempt to obtain SSL certificates that the Customer orders using the interface on Clouvider’s website. SSL certificate orders will be subject to the provisions of this Clause 10.
10.2 Fees in respect of SSL certificates are non-refundable.
10.3 SSL certificates will be subject to periodic fees as stated on Clouvider website from time to time.
10.4 The Customer warrants that the information submitted for the purposes of an SSL certificate is current, accurate and complete.
10.5 The Customer undertakes to keep the information required for the purposes of an SSL certificate up-to-date.
10.6 Clouvider resells the SSL certificates which are issued by different Certificate Authorities. The SSL therefore are subject to the terms and conditions published on the website of the relevant companies. The Customer agrees to the terms of the applicable SSL subscription agreement (as amended from time to time):
(b) Thawte http://www.thawte.com/repository/
(c) Verisign / Symantec
(i) Symantec Secured Seal License Agreement: http://www.verisign.com/repository/secured_seal_agree.html
(ii) The Symantec SSL Certificate Subscriber Agreement: http://www.verisign.com/repository/agreements/serverClass3Org.html
(i) The Quick SSLTM Subscriber Agreement: http://www.geotrust.com/resources/cps/pdfs/quickssl_SA.pdf;
(ii) The QuickSSL PremiumTM Subscriber Agreement: http://www.geotrust.com/resources/cps/pdfs/quickssl_premium_SA.pdf;
(iii) The TrueBusinessIDTM Subscriber Agreement: http://www.geotrust.com/resources/cps/pdfs/True_businessid_SA_4.1.pdf;
(iv) The TrueBusinessID® Wildcard Subscriber Agreement: http://www.geotrust.com/resources/legal/terms.htm
10.7 Fees payable in respect of SSL certificates will be as specified on the Order Form.
11. IP address
The ownership and control of any IP addresses allocated to the Customer as part of the services remains with Clouvider. Clouvider can change or remove any or all IP addresses at its sole discretion and at any time. While applying any such changes Clouvider shall use its reasonable endeavours to avoid any disruption to the Customer. All assignments are valid as long as the original criteria on which the assignment was based are still valid. If an assignment is made for a specific purpose and that purpose no longer exists, the assignment is no longer valid. If an assignment is based on information that turns out to be invalid, the assignment is no longer valid.
12.1 Unless expressly stated every Service has limited Bandwidth usage as outlined on the Order Form.
12.2 Clouvider measures the Customer’s Bandwidth usage.
12.3 Clouvider Bandwidth measurement is final.
12.4 Should the Customer exceed the Bandwidth included with the Product or Service Clouvider will charge the Customer £12 per 10TB (£0.0012 per GB) unless expressly stated otherwise.
12.5 Clouvider shall not be responsible for alerting the Customer of exceeding or being close to Bandwidth limit. The Customer shall monitor the bandwidth usage using the Customer Portal or by using other (including third party) software.
12.6 Where bandwidth consumption consist of predominantly very small packets, below 100 bytes in size, fair use policies will apply.
12.7 DDoS protection services offered by Clouvider, unless otherwise agreed in writing, are best effort and come with no guarantees.
12.8 Tunnelling of bandwidth to leverage Clouvider’s DDoS protection to protect equipment in another datacenter, unless otherwise agreed in writing, is prohibited.
13.1 Clouvider will make available, subject to Clause 13.2, on Business Days between the hours of 9:00 am and 5:00 pm (London Time),a helpdesk facility for the purpose of providing support to the Customer (and Clouvider’s other customers).
13.2 Clouvider will use reasonable endeavours to ensure that a member of its staff can be reached outside Business Hours at any time, including on Bank and public holidays in England, in case of an emergency. The Emergency support request shall have the “Priority” parameter set to “Emergency” by Customer or shall be made over the phone.
13.3 The Customer must make all requests for support Services through the helpdesk, and all such requests must include at least the following information: service identification (username, service ID or IP address), problem description and steps to reproduce the problem.
13.4 Clouvider will use reasonable endeavours to resolve issues raised by the Customer promptly.
14. Services: general provisions
14.1 The Customer’s utilisation of resources must not exceed the limits set out on the Order Form and in this Agreement. If the Customer’s utilisation of resources exceeds those limits, the parties will endeavour to agree a variation to the Agreement. If the parties cannot agree such a variation within a reasonable period (being not more than 30 days) following notice from Clouvider to the Customer requesting such variation, and resource utilisation continues to exceed those limits, the Customer will be deemed to be in material breach of the Agreement for the purposes of Clause 27.
15. Customer Responsibilities
15.1 The Customer will:
(a) provide Clouvider with all co-operation, information, documentation and assistance reasonably required for the provision of the Services and the investigation of any interruptions, faults, or outages or any associated security issues including the assistance of your personnel, and the Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the Services or any such investigation;
(b) provide Clouvider with all data and other information reasonably required in relation to this Agreement, including security access information and software interfaces to any relevant business applications, and take all reasonable steps to ensure that all information provided is true, accurate, complete and not misleading in any material respect;
(c) comply with all applicable laws and regulations in relation to the Customer’s activities under this Agreement;
(d) keep all the information in the Customer Portal up to date;
(e) notify Clouvider immediately of any breaches or suspected breaches of this Agreement;
15.2 The Services are provided to the Customer only, and the Customer may not resell the Services to any third party without obtaining prior written permission from Clouvider.
15.3 The Customer will be responsible for obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services.
15.4 It is the Customer’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis. The Customer will notify Clouvider immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.
16. Backups and security
16.1 The Customer is responsible for maintaining backup copies of any of Customer’s data, including any data stored on any equipment located at the Datacentre.
16.2 Although Clouvider makes additional, regular, daily, backup copies of Customer’s data stored with Clouvider as part of the following services: Web Hosting in Cloud, Virtual Dedicated Server in Cloud, Clouvider is not responsible for maintaining working backup copies of any Customer’s data.
16.3 You recognise and accept that the internet carries inherent risks and that we cannot promise that the Services will be uninterrupted, error-free or immune from security risks. You accept that internet servers, equipment and telecommunications links are susceptible to crashes, downtime and security issues from time to time. We will use all reasonable endeavours to maintain a continuous and uninterrupted link with the internet but we cannot provide any warranty in that respect.
16.4 We are not responsible for unauthorised access to your data or the unauthorized use of the Services unless the unauthorised access or use results from our failure to meet our reasonable security obligations. All other use of the Services shall be your responsibility, even if such use was not authorised by you.
16.5 The Customer shall not and will not permit anyone to:
(a) interfere with or compromise the security or proper functioning of the Services, including testing vulnerability of any Clouvider system or any network accessible through Clouvider systems;
(b) permit any equipment owned, leased, maintained or controlled by you to interfere or impact provision of any Service; interfere with transmission or privacy of any data or communication transmitted via Clouvider systems.
16.6 To qualify for a free 50GB Acronis Cyber Backup account the customer must hold an active dedicated server service when using the promotional code on an order.
(a) We provide access to Acronis Cyber Backup accounts, we are not responsible for maintaining working backup copies of any data.
(b) We do not provide any responsibility or guarantee for access to the 3rd party service or the integrity of the platform.
(c) We do not provide assistance in the configuration or recovery of any backup programme or configuration of the service.
(d) In the event that a service qualifies for a free account if/when the qualifying service is cancelled will terminate the backup service.
(e) In the event that multiple services qualify for a free account if/when a single qualifying service is cancelled then we reserve the right to revoke any additional free multiples of 50GB added for the aforementioned service.
17. Acceptable Use Policy
17.1 Prohibited Uses
You may use our Services only for lawful purposes. You may not use our Services:
(a) in any way that breaches any applicable local, national or international law or regulation.
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
(c) for the purpose of harming or attempting to harm anyone, including minors, or in any manner which will, or is likely to, infringe the personal rights of others;
(d) in any manner that will, or is likely to, infringe the copyright, trademark, trade secret or other intellectual property rights of others;
(e.1) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
(e.2) to transmit, or procure the sending of, any mass mailing without pre-approval from Clouvider;
(f) in connection with any defamatory, indecent, obscene, offensive, threatening or abusive conduct or activity;
(g) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; or
(h) for any activity that involves any cryptocurrency activities, including, but not limited to, “mining”.
(i) in any way that is inconsistent with the terms of your agreement with Clouvider.
17.2 Without prejudice to the generality of the overview principles set out above, unacceptable use includes, but is not limited to, the following:
(a) Posting, transmission, re-transmission, or storing material on or through any of Clouvider’s Products or Services, if Clouvider reasonably believes that such posting, transmission, re-transmission or storage is:
– in violation of any local, national or international law or regulation (including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations);
– threatening or abusive;
– indecent; or
(b) Installation or distribution of pirated or other software products that are not appropriately licensed for use.
(c) Resale of Clouvider’s Products and Services without the express prior written consent of Clouvider (unless you are an authorised wholesaler).
(d) Deceptive marketing practices.
(e) Actions that restrict or inhibit anyone – whether a customer of Clouvider or otherwise – in his or her use or enjoyment of Clouvider’s Products and Services, or that generate excessive network traffic through the use of automated or manual routines that are not related to ordinary personal or business use of internet services.
(f) Introduction of malicious programs into Clouvider network or servers or other Products and Services of Clouvider (e.g., viruses, Trojan horses and worms).
(g) Causing or attempting to cause security breaches or disruptions of Internet communications. Examples of security breaches include but are not limited to accessing data of which the customer is not an intended recipient, or logging into a server or account that the customer is not expressly authorized to access(e.g., port scans, flood pings, packet spoofing and forged routing information).
(h) Executing any form of network monitoring that will intercept data not intended for you.
(i) Circumventing user authentication or security of any host, network or account.
(j) Interfering with or denying service to any user other than the customer’s host (e.g., denial of service attack).
(k) Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable a user’s terminal session.
(l) Failing to comply with Clouvider’s procedures relating to the activities of customers on Clouvider-owned facilities.
(m) Furnishing false or incorrect data on the Order Form contract (electronic or paper) including fraudulent use of credit card numbers or attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilisation or other methods to document use of Clouvider’s products or services.
(n) Sending unsolicited mail messages, including the sending of junk mail or other advertising material to individuals who did not specifically request such material, who were not previous customers of the customer or with whom the customer does not have an existing business relationship (e.g., e-mail spam).
(n.2) Sending any mass mail messages without pre-approval from Clouvider.
(o) Harassment (e.g., through language, frequency, or size of e-mail messages).
(p) Unauthorised use or forging of mail header information.
(q) Solicitations of mail or any other e-mail address other than that of the poster’s account or service, with the intent to harass or to collect replies.
(r) Creating or forwarding chain letters or other pyramid schemes of any kind.
(s) Use of unsolicited e-mail originating from within Clouvider network or networks of other Internet Service Providers on behalf of or to advertise any service hosted by Clouvider or connected via Clouvider network.
(t) Exporting, re-exporting, or permitting downloads of any content in violation of the export or import laws of the United Kingdom or without all required approvals, licenses and exemptions.
(u) Use of IRC servers or bots connected to public IRC networks or servers.
17.3 Clouvider will determine, in its discretion, whether there has been a breach of this Acceptable Use Policy by you. When a breach of this policy has occurred, we may take such action as we deem appropriate.
17.4 The Customer acknowledges that Clouvider does not purport to monitor the content of Hosted Materials or the use of the Services.
17.5 Where Clouvider reasonably suspects that there has been a breach of the provisions of this Clause 17, Clouvider may take all or any of the following actions:
(a) Immediate, temporary or permanent withdrawal of your right to use the Services.
(b) Immediate, temporary or permanent removal of any posting or material uploaded by you.
(c) Issue of a warning to you.
(d) Legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
(e) Further legal action against you.
(f) Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
17.6 We exclude liability for actions taken in response to breaches of this Acceptable Use Policy. The responses described in this policy are not limited, and we may take any other action we reasonably deem appropriate.
17.7 Any breach by the Customer of this Clause 17 will be deemed to be a material breach of the Agreement for the purposes of Clause 27.
18.1 100% Infrastructure Availability
(a) Clouvider commits to the availability of power and HVAC (heating, ventilation and air conditioning) 100% of the time in any given month.
(b) In the case of HVAC, the achievement of this level will apply when
(i) an average daily room temperature of between 18 and 27 degrees Celsius is achieved; and
(ii) an average room relative humidity of 50% (+/- 30%) is achieved.
(c) In the case of power, the achievement of this level will apply when uninterrupted power is delivered to the server/firewall or, in the case of collocation, to the powerbar.
18.2 100% Network Availability
Clouvider commits to the availability of its network services 100% of the time in any given month.
The network will be considered available where:
(a) it is possible to transmit and receive data across the network equipment owned and managed by Clouvider; and
(b) it is possible to connect to Clouvider border routers via any of the network providers listed at www.clouvider.co.uk/network/.
(c) the DDoS protection services provided by Clouvider are best effort and come with no guarantees, unless otherwise agreed in writing. Any downtime to Customer service as a result of DDoS attack on Customer’s service is explicitly excluded from this guarantee.
18.3 Proper operation of your hardware
Clouvider is committed to the proper functioning of hardware provided as part of our dedicated Services (Please note: this commitment does not apply to co-location Customers). This hardware commitment applies only to the following hardware components: chassis, processor(s), memory, storage device(s), motherboard, power supplies and network interface card(s). It does not apply to the time required to rebuild a RAID array, reload the operating system, reload and configure applications or restore from backup.
For Standard Service Customers, Clouvider will identify hardware faults within 2 hours of a fault occurring and resolve the fault within four hours of the fault occurring. For Premium Service Customers, Clouvider guarantees to identify hardware faults within 1 hour of a fault occurring and to resolve the fault within 2 hours of the fault occurring.
18.4 Downtime & Notification
“Downtime” means where the above Service Levels are not achieved for reasons other than those outlined below in this Clause 18.12 “Exclusions”.
Downtime shall be measured from the time
(a) you raise a ticket on Clouvider’s ticket system, notifying us of the relevant unavailability; and
(b) the unavailability is verified by Clouvider’s technical department.
Downtime shall continue until the relevant Service Level is restored, as confirmed by Clouvider’s technical department. Downtime may not be aggregated on an event basis; i.e. if any event gives rise to unavailability in respect of different Service Levels affecting the same service, you may not aggregate that unavailability and Downtime will be calculated only in respect of the Service Level which worst affects that service. Any dispute regarding the extent and/or overlap of unavailability will be determined by Clouvider in its absolute discretion.
18.5 Service Credits
You will be entitled to the following Service Credits in the event of Downtime, all Service Credits being based on a percentage of your ‘MRC’, which is the monthly recurring charge (excluding tax) relating to the service experiencing the Downtime, excluding any Additional Services (i.e. services which do not comprise part of your Service package – as set out in your original Service Order Form):-
Total Monthly* Downtime
Service Credit Payable under Standard SLA
Service Credit Payable under Premium SLA
Less than 8 minutes
Over 8 minutes but less than 10 minutes
Over 10 minutes but less than 30 minutes
Over 30 minutes but less than 1 hour
Over 1 hour but less than 24 hours
Over 24 hours but less than 48 hours
Over 48 hours
*’Month’ and ‘monthly’ mean the month(s) covered by your monthly invoice(s).
18.6 Under no circumstances will your total entitlement to Service Credits exceed 100% of MRC in any month.
18.7 For Co-location services the Service Credit regime(s) shall apply on condition that you have complied with any operational and other requirements relating to the provision of the Service, including utilisation of both A & B power supplies or use of a Static Transfer Switch, and including the utilisation of two network feeds and two BGP feeds, failing which you shall only be entitled to Service Credits if downtime exceeds 48 hours. In the event of any uncertainty or dispute as to which Service Credit regime shall apply, Standard Service Credits shall apply unless Clouvider agrees otherwise in writing. The term ‘Co-location services’ refers to the provision of services relating to your own equipment which is located on (and operated from) Clouvider premises.
18.8 Process & Exclusive Remedy
The above Service Credits are your sole and exclusive remedy with respect to any Downtime or other failure to achieve the Service Levels and represent Clouvider’s entire liability in respect of its failure to achieve the Service Levels.
18.9 Service Credits are only payable:
(a) in respect of Downtime verified as set out above; and
(b) only if you have paid all relevant Fees, including payment of the Fees relating to the month for which the Service Credits are claimed and are otherwise in good financial standing with Clouvider.
18.10 To qualify for Service Credits, you must make a written request to Clouvider for credit within 14 days of the end of the month to which the Service Credit relates, failing which your right to Service Credits will be lost. Provided you so notify us, verified Service Credits are payable within three calendar months of your written request. Clouvider may, at its discretion, offset Service Credits against any Fees owing to Clouvider.
18.11 Services Falling Outside the Service Credit Regime:
(a) Remote Hands Services – Our Remote Hands Service comprises the provision of a variety of technical support services, including hardware, network and software configuration, patching of software, any changes of network configuration after the service is deployed, troubleshooting and analysis, hardware and software installation and so on. The varied nature of these services means that it is impossible to provide you with a simple service level statement to cover this service. Each issue which crops up within Remote Hands has to be dealt with on an individual basis. However, we will provide this service on a 24/7 basis via qualified technicians. We will use all reasonable endeavours to deliver these services quickly and efficiently, in accordance with agreed timelines, and we will provide you with time estimates and updates on progress. This service does not attract Service Credits. Remote Hands are provided at a costs of £75 per hour within the Working Hours or at cost of £150 per hour outside of Working Hours, unless otherwise agreed in writing.
(b) Deployment Services – If agreed, we will deploy the servers described in the Order Form in accordance with any agreed timelines, on condition that you provide us with any information and other assistance we may require to enable us to do so. Deployment will be complete when we provide you with the information to enable you to use the server. If we fail to deploy the server as agreed with you, as a result of our fault and not owing to any fault or delay in your part, you are entitled to a refund of the set-up fee which relates to the deployment of the relevant server. This payment is your sole and exclusive remedy for any failure or delay in deployment. If we agree to expedite the deployment of your servers, we shall use all reasonable endeavours to do so within indicated timelines but we will not be liable for any failure to do so and the aforementioned refund will not apply. You may request the delay in deployment of your servers, provided that you notify us within 5 days of your signature of the Order Form and on the basis that your delay in deployment may not exceed 2 months. We may make a charge of 50% of your MRC for each month (or part thereof) for which you request a delay. You shall be liable to the full MRC at the latest 3 months after you sign the Order Form.
(c) Changes to the Network Configuration – if agreed, and at a sole discretion of Clouvider, we will accommodate reasonable requests to change Network Configuration on the Customer’s service. Unless otherwise agreed in writing such changes are chargeable under the Remote Hands rates.
There is no entitlement to Service Credits for any failure to meet the Service Levels which:
(a) is not due solely to the fault or negligence of Clouvider or its employees, agents or contractors;
(b) is the result of a Force Majeure event;
(c) is the result of any fault on your part, including any fault on the part of your employees, agents, contractors or customers;
(d) results from abuse or misuse by you, your employees, agents, contractors, customers, any persons to whom you have given access to the Services, or any person who gains access to your data or the Services
(e) as a result of your failure to use reasonable security precautions, even if such use was not authorised by you;
(f) is due to planned maintenance;
(g) relates to your breach of your agreement with us (including any suspension of the Services relating to such breach);
(h) results from limitations imposed by you upon Clouvider in the provision of the Service(s);
(i) due to inherent hardware or software defects;
(j) due to inherent design faults in your systems or any part of your systems.
19. Suspension of Services & Maintenance
19.1 Clouvider may, without prejudice to any other right, power or remedy available to us, without liability suspend or limit the Services and/or disconnect the Equipment:
(a) If we consider it reasonably necessary to protect our own or your interest, or interest of any third party;
(b) If you breach any terms of this Agreement (including the Acceptable Use Policy) or if we reasonably believe you have so or are about to do so; or
(c) if required to do so by law or by request from any regulatory or governmental authority.
19.2 Clouvider may temporarily suspend all or any part of the Services for purpose of repair, maintenance or improvement to any systems. Clouvider shall keep any such suspensions to a minimum and carry them out outside Working Hours wherever possible.
19.3 Wherever practicable, we shall provide notice of 7 working days prior to suspension of any Services (save where circumstances reasonably require a shorter notice period).
19.4 If the reason of suspension arises from any defect or compromise relating to your Equipment or other systems, the Services will not be restored, or equipment reconnected before the problem is not rectified to reasonable standard required by Clouvider.
19.5 Clouvider shall not be liable for any suspension of the Services or disconnection of the Equipment or any other system under the above circumstances. The Customer shall not be entitled to any setoff,
discount, refund or any other credit as a result of such suspension and/or disconnection. The Customer agrees that any such downtime will be exempt from measurement under the SLA.
20. Fees and Payments
20.1 Clouvider will issue invoices for the Fees to the Customer from time to time in advance during the term.
20.2 The Customer will pay the Fees to Clouvider within 14 days of the date of issue of an invoice issued in accordance with Clause 20.1.
20.3 All Payments under this Agreement shall be made in full and without any set-off, withholding or any other deduction.
20.4 Clouvider is registered for VAT. All Fees stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise.
20.5 Fees must be paid by Credit Cards, Debit Cards, Direct Debit, PayPal, Bank transfer, Cheque (using such payment details as are notified by Clouvider to the Customer from time to time). By adding a Credit/Debit card on file you are giving Clouvider a Continuous Payment Authority permitting Clouvider to charge this card for any invoices issued under this contract.
20.6 The Bank transfer payments shall be made to Clouvider’s account, bank: HSBC Bank plc, IBAN: GB66HBUK40030101543865, BIC: HBUKGB4140N. Alternatively, in the UK: Sort Code: 40-03-01, Account number: 01543865.
20.7 The payment is received when the payment is cleared on Clouvider’s account, with exception for bank transfers and payments made through Coinify which require additional 24 hours (1 working day) processing time after the payment clears.
20.8 If the Customer does not pay any amount properly due to Clouvider under or in connection with the Agreement, Clouvider may:
(a) charge the Customer interest on the overdue amount at the rate of 4% per year above the base rate of HSBC Bank plc from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand);
(b) use a Debt Collection agency, take the matter to court, or/and use any other means of recovering the overdue amount at Clouvider discretion and at the expense of the Customer;
(c) suspend the Services;
(d) require the immediate payment of the full outstanding balance of the Fees;
(e) take a lien over your Equipment;
(f) terminate the Services.
(g) allocate any future payments towards the overdue invoices.
(h) attempt to recover funds via any payment method associated with the Customer’s account.
20.9 Clouvider reserves the right to suspend the payment and/or the associated Service if Clouvider receives the dispute from the payment processing company or bank.
20.9 (a) Clouvider will pass on all costs related from payment disputes to the Customer. Such costs are due for payment immediately. This includes fees charged by the Credit Card processing companies or their agents as well as processing costs at £75 per hour.
20.10 Any dispute relating to the Fees must be raised within 14 days of the invoice being issued. Failing to report the dispute in this term shall deem the invoice accepted and waive any rights of dispute. Any undisputed portion of the invoice must be paid in accordance to this Clause 20.
20.11 Clouvider may vary the Fees by giving to the Customer at least 60 days’ notice of variation, expiring at any time after the end of the Minimum Term by an amount not exceeding the increase during the preceding 12 months in the Retail Prices Index (all items) published by the UK Office of National Statistics.
20.11 (a) Colocation Fees are increased automatically by 7% or Retail Price Index (all items) published by the UK Office of National Statistics, whichever is higher, every year on the anniversary of the contract.
20.12 Clouvider may require the Customer at any time prior to or during the term of this Agreement to pay a deposit, or provide any other form of security at our discretion.
20.13 In the event of a GoCardless Direct Debit payment being returned unpaid by Customer bank, Clouvider will charge a £10 surcharge for each failed payment.
20.14 Any Credits and funds deposited through ‘Add Funds’ functionality are not refundable.
20.15 Any payments or deposits made using Crypto Currencies and AliPay are not refundable.
20.16 Any refunds may be offered only at the discretion of Clouvider. In the event of any refund approved by Clouvider, we reserve the right to charge a minimum of 5% + £0.30 administrative processing fee.
21.1 The Customer warrants to Clouvider:
that it has the legal right and authority to enter into and perform its obligations under the Agreement and that in doing so you will not breach any law or any obligation to any third party. If you are an individual, you represent and confirm that you are at least 18 years of age.
21.2 Clouvider warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; and
(b) that it will perform its obligations under the Agreement with reasonable care and skill and in accordance with the terms of the Agreement in all material respects.
21.3 All of the parties’ liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the term of the Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
The Customer hereby agrees to indemnify, defend and hold us harmless and undertakes to keep indemnified Clouvider against all liabilities, claims, actions, proceedings, looses, costs, expenses (including legal expenses and amounts paid upon advice in settlement of any legal action) arising out of or in connection with the Customer using Products and Services and/or your breach or non-compliance with the terms of this Agreement, including third party losses relating to the Customers’ use of the Products or Services.
23. Limitations and exclusions of liability
23.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
23.2 The limitations and exclusions of liability set out in this Clause 23 and elsewhere in the Agreement:
(a) are subject to Clause 23.1;
(b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
(c) will not limit or exclude the liability of the parties under the express indemnities set out in the Agreement.
23.3 Clouvider will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
23.4 Clouvider will not be liable for any loss of business, contracts or commercial opportunities.
23.5 Clouvider will not be liable for any loss of or damage to goodwill or reputation.
23.6 Clouvider will not be liable in respect of any loss or corruption of any data, database or software.
23.7 Clouvider will not be liable in respect of any special, indirect or consequential loss or damage.
23.8 Clouvider will not be liable for any losses arising out of a Force Majeure Event.
23.9 Clouvider’s liability in relation to any event or series of related events will not exceed the total amount paid and payable by the Customer to Clouvider under the Agreement during the 1 month period immediately preceding the event or events giving rise to the claim.
23.10 Clouvider’s aggregate liability under the Agreement and any collateral contracts will not exceed the total amount paid and payable by the Customer to Clouvider under the Agreement.
24. Data Protection
24.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Clouvider under the Agreement, and that the processing of that Personal Data by Clouvider for the purposes of and in accordance with the terms of the Agreement will not breach any applicable laws (including the Data Protection Act 1998).
24.2 The Customer agrees to comply with the Data Protection Act 1998 in so far as it related to your use of the Products, Services and the Equipment, including any personal data you process or store thereby.
25.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause 25.
25.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
25.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
25.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of the Agreement);
(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.
25.5 For security reasons Clouvider will not disclose business relation with the Customer without prior consent of the Customer.
26. Refund Policy
26.1 When Clouvider has not yet started preparing the order the Customer may cancel it and obtain a full refund. Such request shall be delivered to Clouvider before Clouvider starts preparing the ordered Products or Services.
26.2 Clouvider offers additional ‘30 Days Money Back Guarantee’ with the following Products or Services: Web hosting in Cloud, Virtual Dedicated Server in Cloud (advertised as Cloud Virtual Private Server).
26.3 Any other Services or Products are not refundable.
26.4 ‘30 Days Money Back Guarantee’ excludes any additional Products or Services ordered together with Products or Services named in Clause 26.2.
26.5 ‘30 Days Money Back Guarantee’ may be used only once per Customer.
26.6 To make use of the ‘30 Days Money Back Guarantee’ the Customer shall cancel the Service by giving Clouvider Notice in the form outlined in Clause 35 within 30 days of submission of the Order Form.
27. Termination & Cancellations
27.1 Either party may terminate the Agreement at any time by giving at least 30 days’ written notice to the other party expiring at any time after the end of the Minimum Term and not before the end of the billing period.
27.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) fails to pay any amount due under the Agreement in full and on time.
27.3 Clouvider may terminate the Agreement immediately if the Customer:
(a) breaches the terms of the Acceptable Use Policy
(b) provides to Clouvider any false, misleading or otherwise inaccurate information.
27.4 Either party may terminate the Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
28. Effects of termination
28.1 Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 20.8, 22, 23, 25, 28, 30, 31, 33, 34, 37, 38, 39, 40.
28.2 Termination of the Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
28.3 The Customer will not be entitled to any refund of Fees on termination, and will not be released from any obligation to pay Fees to Clouvider.
28.4 Clouvider may destroy or otherwise dispose Customer data in its possession unless otherwise agreed in writing prior to termination.
29. Affiliate program
29.1 The affiliate program is available to the existing Customers only with an active service in the Clouvider Console, https://console.clouvider.co.uk.
29.2 The purpose of the program is to reward Customers who are active members of the program for introducing new Customers to the platform.
29.3 Clouvider can, at its sole discretion disable access to the program to an affiliate. This measure can be used against Customers, for example, but not limited to, whose referred signups have above average chargeback or fraud rates, Clouvider believes the participation in the program if fraudulent or the Affiliate brings disrepute to the company, among others. Clouvider’s decision is final.
29.4 Unless otherwise stated in writing commisions are paid for the Dedicated Server services only.
29.5 Affiliates signing up after 1st April 2018 will be paid 15% recurring commission from Dedicated Server services, excluding servers on sale, for the lifetime of the service; Dedicated Server services on sale (or otherwise discounted by Clouvider) are subject to 5% recurring commission for the lifetime of the service.
29.5 a) Rewards are paid after 60 days’ from the moment the order is fully activated.
29.5 b) Rewards are not paid for orders made by the Customer, or any entity related to the Customer
29.5 c) Rewards are not paid for any orders that are unpaid, or whose related payments are later cancelled, voided, refunded, chargeback or disputed.
29.6 For the avoidance of doubt, this program does not constitute any form of employment. The Customer is responsible for paying all relevant taxes and fees related to Customer’s participation in the program.
29.7 Rewards can be paid to the Customers in the form of the account credit, PayPal transfer or a cheque. For the avoidance of doubt, the Customer is responsible for any fees and taxes related to receiving the rewards.
30. Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 4 weeks, either Party may terminate this Agreement by written notice to the other Party.
31. Entire agreement
This Agreement contains the whole agreement between the Parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
32.1 No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
32.2 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
33. Further assurance
Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any Clause of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining Clauses of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
35. Agency, Partnerships
This Agreement does not create any agency, partnership, joint venture or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
36.1 Any notice to be given under this Agreement shall be in writing (whether or not described as “written notice” in the Agreement) and shall be sent by first class mail or air mail, or by facsimile or e-mail, to the address of the relevant party, or to the relevant facsimile number, or such other address or facsimile number as that party may from time to time notify to the other party in accordance with this Clause.
36.2 Notices sent as above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of air mail), or the next working day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender’s facsimile machine recording a message from the recipient’s facsimile machine, confirming that the facsimile was sent to the relevant facsimile number and confirming that all pages were successfully transmitted), or next working day after sending (in the case of e-mail).
37.1 In this Agreement unless the context otherwise requires:
– words importing any gender include every gender;
– words importing the singular number include the plural number and vice versa;
– words importing persons include firms, companies and corporations and vice versa;
– any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
– the headings to the clauses and paragraphs of this Agreement are not to affect the interpretation;
– the word ‘including’ shall be understood as meaning ‘including without limitation’.
37.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
37.3 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
38.1 Clouvider may freely assign, novate, delegate, subcontract, mortgage, charge or otherwise transfer its rights and obligations under the Agreement without the Customer’s consent. Save as expressly provided in this Clause or elsewhere in the Agreement.
38.2 The Customer may not assign, delegate, subcontract, mortgage, change or otherwise transfer its rights and obligations without Clouvider written consent.
38.3 Clouvider may subcontract any of its obligations under the Agreement to any third party.
38.4 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.
39. Amendments to this agreement
39.2 Otherwise the Agreement may only be changed in an express written agreement signed by duly authorised representatives of both Parties.
40. Third parties
The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
41. Law and jurisdiction
The Agreement will be governed by and constructed in accordance with the laws of England and Wales and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.