Definitions. In these Conditions, the following definitions apply:
AUP. VooServers’ Acceptable Use Policy, as amended from time to time in accordance with clause 4;
Billing Cycle. the Customer’s billing cycle, being per calendar month or twelve calendar months, as set out in the Order;
Business Day. a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Charges. the charges in respect of the Services, as set out in the Order;
Conditions. these terms and conditions as amended from time to time in accordance with clause 13.7;
Customer. the person or body purchasing the Services, as set out in the Order;
Intellectual Property Rights. all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade-marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off;
Materials. : the content provided to VooServers by the Customer from time to time for incorporation in the Site;
Order. the Customer’s order for Services as set out in the order form;
Services. the hosting services and any other services supplied by VooServers to the Customer, as described in these Conditions and as set out in the Order;
Service Levels. the service levels described in Part 1 of Schedule 1, to the extent that they relate to the Services;
Site(s). the website(s) to be hosted by VooServers pursuant to this Contract;
Site Software. the software for the Site owned and/or commissioned and/or licenced by a third party to the Customer;
Support Hours. the hours during which VooServers will provide the Support Services, as detailed on VooServers’ website;
Support Services. technical support and maintenance services provided to the Customer pursuant to the Contract, and as set out in the Order; and
Vooservers. Vooservers Limited (trading as VooServers) registered in England and Wales with company no. 05598156.
Construction.In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal identity);
(b) clause and schedule headings shall not affect the interpretation of the Contract;
(c) reference to clauses and the Schedule are references to the clauses and the schedule to these Conditions;
(d) any words following the terms including or include 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; and
(e) reference to content include any kind of text, information, image, or audio or video material and applications which can be incorporated in a website for access by a visitor to that website.
The initial term of the Contract shall begin on the date that VooServers notifies the Customer as being the date that the account has been activated (the ‘account activation date’), and shall continue, unless terminated earlier in accordance with clause 7.4 or clause 10, for the first partial month of service plus 1 full calendar months thereafter (the “Initial Term”), and shall automatically extend for 1 full calendar month (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than twenty eight (28) days before the end of the Initial Term or the Relevant Extended Term, to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be. The Initial Term and the Extended Term (if any) together being the “Term”.
SUPPLY OF SERVICES AND SERVICE LEVELS
VooServers shall perform the Services with reasonable care and skill.
VooServers warrants that it will perform the Services substantially in accordance with the Service Levels. If the Services are not so performed, VooServers shall, for no additional charge, carry out any work necessary in order to ensure that the Services substantially complies with the Service Levels.
The warranty set out in clause 3.2 shall not apply to the extent that any failure to perform substantially in accordance with the Service Levels is caused by (a) the Site Software, or (b) any Materials, or (c) outage periods due to any cause other than the fault of VooServers or (d) Planned Work or Emergency Work to the extent that VooServers have performed its obligations under clause 7 or (e) any period during which the Service is suspended under a provision in the Contract.
To the extent permitted by applicable law, VooServers does not warrant or represent that the Services will be uninterrupted, error-free, or completely secure.
The Contract sets out the full extent of VooServers’ obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into the Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
VooServers shall not be obliged to perform the Services until the Customer has satisfied VooServers’ credit approval requirements.
The Customer’s sole remedy against VooServers in respect of any downtime in excess of the Service Level (and provided that VooServers determines in its reasonable judgment that such inability was caused by VooServers’ failure to provide the Service for reasons within VooServers’ reasonable control and not as a result of any action or inaction of the Customer or any third parties (including the Customer’s equipment and/or third party equipment) shall be as set out at Part 2 of Schedule 1.
In the event of any form of denial of service (“DoS”) attack directed at or originating from the Customer where the attack disrupts or threatens to disrupt the network connectivity or availability for other customers, VooServers may disconnect the Customer until the issues arising from the attack or compromised machine(s) are resolved. In these circumstances, VooServers shall not be liable to the Customer in respect of the disconnection arising from the DoS attack.
Any equipment leased to the Customer by VooServers shall at all times remain the property of VooServers.
VooServers shall use its reasonable endeavours to provide the Support Services, and shall do so as soon as reasonably practicable (bearing in mind the support needs of other customers of VooServers). VooServers will only be obliged to provide the Support Services during the applicable Support Hours as detailed on VooServers’ website. As part of the Support Services, VooServers shall provide help desk support (being support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Services) by means of the telephone number and email address as detailed on VooServers’ website. VooServers reserves the right to exclude from the Support Services any services for problems arising out of (a) tampering, modification, alteration, or addition to any equipment leased to the Customer; or (b) the Site Software or hardware supplied by the Customer. All Support Services shall be provided from VooServers’ office(s) or Vooservers’ technician’s site.
The Customer shall be responsible for the accuracy and completeness of the Materials and represents and warrants to VooServers that all information provided to VooServers is accurate and complete.
VooServers may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to the Customer’s account until the Customer has provided Vooservers with a written notice changing the Primary Customer Contact.
The Customer agrees to maintain a current copy of all content hosted by VooServers notwithstanding any agreement by VooServers to provide backup services.
The Customer shall comply with all applicable law and VooServers’ AUP posted online
here which is hereby incorporated by reference in these Conditions. The Customer agrees that VooServers may amend the AUP from time to time. Amendments to the AUP are effective on the earlier of VooServers notice to Customer that an amendment has been made, or the first day of any Extended Term that begins subsequent to the amendment. The Customer agrees to cooperate with VooServers reasonable investigation of any suspected violation of the AUP.
CHARGES AND PAYMENT
The Customer shall pay the Charge, in advance, on the first day of each Billing Cycle.
All prices exclude VAT, which VooServers shall add to its Charges at the appropriate rate.
The initial service fee shall include a prorated portion of the monthly fee for the initial partial month of service plus the fee for the first full Billing Cycle (“Initial Service Fee”). VooServers reserve the right to require payment in full of the Initial Service Fee before commencing the Services.
If the Order provides for credit/debit card billing, the Customer authorises VooServers to bill subsequent fees to the credit/debit card on or after the first day of each Billing Cycle, otherwise VooServers shall invoice Customer via electronic mail to the Primary Customer Contact listed on the Order (such invoices shall be issued by VooServers 7 days prior to each Billing Cycle).
Payments must be made in the currency stated in the invoice (which would be either Pounds Sterling (GBP) or The United States Dollars (USD)).
The Customer shall inform VooServers of all changes (if any) to billing details (such as credit card expiration, change in billing address) in advance of each VooServers Billing Cycle.
VooServers may accrue charges to be made to a Customer’s credit/debit card until such charges exceed £10.00.
If a Direct Debit is cancelled and then reinstated, or if any Direct Debit is returned unpaid or any cheque is returned unpaid, or if any other form of payment is not honoured for whatever reason, the Customer shall pay VooServers on demand an administration fee of £15.
If the Customer fails to make any payment due to VooServers under this Contract by the due date for payment, then, without limiting VooServers’ remedies under clause 6 and clause 10, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Royal Bank of Scotland’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
The Customer shall pay VooServers’ reasonable reinstatement fee following a suspension of service for non-payment, and to pay VooServers’ reasonable costs of collection of overdue amounts, including collection agency fees, legal fees and court costs.
VooServers may increase its Charges effective the first day of an Extended Term by giving notice to the Customer of the Charge increase at least twenty eight (28) days prior to the beginning of the Extended Term. If the Customer does not give notice of non-renewal in accordance with clause 2, the Customer shall be deemed to have accepted the increased Charge.
Upon presentation by VooServers of a valid respective invoice the Customer shall remit to VooServers all sales, VAT or similar tax imposed on the provision of the Services, regardless of whether VooServers failed to collect the tax at the time the related Services were provided.
Notwithstanding suspension of the Services by VooServers, the Customer shall continue to pay the Charge in accordance with the terms of these Conditions until this Contract is terminated in accordance with these Conditions.
VooServers reserve the right to exercise a lien over the Customer’s property (including equipment, Site Software, Material, and Intellectual Property Rights) in respect of any unpaid Charges and shall be entitled to sell the property after the expiry of forty five (45) days from the due date for payment in order to recoup any unpaid Charges.
SUSPENSION OF SERVICES
VooServers may suspend the Services without notice and without liability if: (a) VooServers reasonably believes that the Services are being used in violation of the AUP; (b) the Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (c) any payment by the Customer is overdue; (d) VooServers reasonably believes that the suspension of Services is necessary to protect its network or its other customers; or (e) as requested by a law enforcement or regulatory agency. VooServers may require the Customer to pay VooServers reasonable reinstatement fee if the Services are reinstituted following a suspension of service caused by the Customer under this clause 6.
SERVICE OUTAGE, EMERGENCY WORK AND UPGRADES
VooServers may undertake planned outages or major works that may result in outages (“Planned Work”). The Customer will be notified of Planned Work by email. VooServers shall give advance notice of no less than 7 days before the commencement of Planned Work. Planned Work will only be performed when VooServers reasonably believes there is no practical workaround available.
VooServers may undertake emergency work that may result in outages (“Emergency Work”). VooServers shall give the Customer as much notice by email of Emergency Work as reasonably possible. Emergency Work will only be undertaken where there is a serious risk of service disruption occurring if the works are not promptly performed.
VooServers shall use reasonable endeavours to time Planned Work and Emergency Work so as to minimise the impact on the Customer’s business activities. During periods of Planned Work and Emergency Work, VooServers does not guarantee service availability, and such periods shall not be taken into account when calculating VooServers’ performance in respect of the Service Levels. Notices given in accordance with the clause shall, so far as reasonably possible, specify the timing and expected downtime and the duration of the Planned Work and/or Emergency Work (as applicable).
The Customer acknowledges and agrees that upgrades and other changes in VooServers’ network (“Upgrades”), including, but not limited to changes in VooServers’ software, hardware, and service providers, may affect the display or operation of the Customer’s hosted content and/or applications. Material changes that affect the Customer’s hosted content and/or applications may only be made on reasonable notice and the Customer shall be entitled to terminate the Contract upon receipt of such notice without liability. VooServers reserves the right to change its network in its commercially reasonable discretion, and VooServers shall not be liable for any resulting harm to the Customer beyond VooServers’ reasonable control.
INTELLECTUAL PROPERTY RIGHTS
Subject to clause 8.2, the Customer retains all Intellectual Property Rights in the Site Software and Materials, and grants VooServers a licence to such Intellectual Property Rights to the extent required to perform its obligations pursuant to this Contract.
All Intellectual Property Rights in any works arising in connection with the performance of the Services by VooServers (Works) shall be the property of VooServers, and VooServers hereby grants to the Customer a non-exclusive licence to such Intellectual Property Rights for the purposes of hosting the Site.
The Customer shall indemnify VooServers against all damages, losses and expenses arising as a result of any action or claim that the Site Software or the Materials infringe any Intellectual Property Rights of a third party.
LIMITATION OF REMEDIES AND LIABILITY – the Customer’s attention is particularly drawn to this clause.
Nothing in these Conditions shall operate to exclude or limit VooServers’ liability for: (a) death or personal injury caused by its negligence; or (b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (c) fraud; or (d) any other liability which cannot be excluded or limited under applicable law.
Vooservers shall not be liable under or in connection with this Contract or any collateral contract for any (a) loss of revenue; (b) loss of actual or anticipated profits; (c) loss of contracts; (d) loss of the use of money; (e) loss of anticipated savings; (f) loss of business; (g) loss of opportunity; (h) loss of goodwill; (i) loss of reputation; (j) loss of, damage to or corruption of data; (k) any indirect or consequential loss, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise; or (l) or any loss arising from Planned Work, Emergency Work or Upgrades performed in accordance with clause 7.
Subject to clause 9.1, VooServers’ aggregate liability in respect of a claim arising out of or in connection with the Contract or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the amount payable by the Customer for the previous 3 months service.
The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
The Customer shall ensure that it has adequate insurance cover in relation to any loss or damage which may be caused to VooServers and/or VooServers’ clients and/or VooServers’ suppliers through the negligence or default of the Customer, its employees or agents. The Customer shall, as and when requested, provide VooServers with such evidence as VooServers may require in relation to the Customer’s insurance.
The Contract may be terminated by the Customer prior to the expiration of the Term without further notice and without liability if VooServers fails in a material way to provide the Services in accordance with the terms of the Contract and does not cure the failure within ten (10) days of the Customer’s written notice describing the failure in reasonable detail.
Without affecting any other rights or remedy available to it, VoosServers may terminate this Contract prior to the expiration of the Term without liability as follows: (i) upon ten (10) days written notice if the Customer is overdue on the payment of any amount due under the Contract; (ii) with immediate effect if the Customer commits a material breach of any other term of the Contract (including the AUP) which breach is irremediable or (if such breach is remediable) fails to remedy that breach within thirty (30) days after being notified in writing to do so; (iii) upon one (1) days written notice if Customer’s breaches a term of the AUP more than once, or (iv) upon one (1) days written notice if the Customer breaches clause 4.1 of these Conditions; (v) with immediate effect if, in the reasonable opinion of VooServers, the Customer is abusive, uncooperative, aggressive or rude (including profanity and threats).
Without affecting any other rights or remedy available to it, either party may terminate the Contract without notice and without liability if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
In the event that either of the parties terminates the Contract in accordance with this clause 10, any unpaid Charges for the remaining Term shall be due on the Business Day following termination of the Contract.
On termination of the Contract by VooServers, all licences granted by VooServers under the Contract shall immediately cease.
On termination of the Contract, all provisions of the Contract shall cease to have effect, except that any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
On termination of the Contract by VooServers in accordance with this clause 10, any refunds will be given only at the discretion of VooServers, and the Customer shall be responsible for all costs and expenses incurred by VooServers in connection with returning the Materials and Site Software to the Customer.
VooServers shall not be in default of any obligation under the Contract if the failure to perform the obligation is due to any event beyond VooServers’ reasonable control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
DATA PROTECTION AND CONFIDENTIALITY
VooServers recognises obligations under both applicable data protection legislation and under the Contract to maintain the confidentiality of the Customer’s data. However, there are circumstances in which such data may need to be disclosed to third parties, and the Customer acknowledges and agrees that: (a) details of the Customer’s name, address and assigned IP Addresses may be released to law enforcement agencies upon production of valid notices and/or to third parties upon service of a valid disclosure notice issued by a court of competent jurisdiction; (b) details of the Customer’s name, address, telephone and fax numbers together with email address(es) and assigned IP Addresses may be released to the RIPE NCC to ensure that both VooServers and the Customer fulfil their obligations under prevailing RIPE policies and that such data may be published in whole or in part in the RIPE WHOIS database.
The Customer agrees that VooServers may, without notice to the Customer: (a) report to the appropriate authorities any conduct by the Customer or any of the Customer’s customers or end users that VooServers believes violates applicable law; and; (b) provide any information that it has about the Customer or any of its customers or end users in response to a formal request from a law enforcement or regulatory.
Notices to VooServers under the Contract shall be given via electronic mail to the e-mail address posted for customer support on secure.vooclients.com
. Notices to the Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted if transmitted during business hours, or if transmitted after business hours on the first business day following the day delivered. The Customer may change his, her or its notice address by a notice given in accordance with this clause.
Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
Waiver: A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Entire Agreement: The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
No partnership or agency: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
Third parties: A person who is not a party to the Contract shall not have any rights to enforce its terms.
Variation: VooServers may vary this Contract from time to time by giving the Customer 14 days written notice. Otherwise, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by VooServers. The terms on the Customer’s purchase order or other business forms are not binding on VooServers unless they are expressly incorporated into a formal written agreement signed by both parties.
Assignment and other dealings: VooServers may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its 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. The Customer shall not, without the prior written consent of VooServers, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
Governing Law: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).