This AGREEMENT is made on the date specified in Schedule 1 between:
(1) Nimbus Hosting Ltd, a company registered in England (no: 07366355) of 33 Wood Street, Barnet, EN5 4BE, (“NH”) AND (2) the client named in Schedule 1 or client specified in the order confirmation (the “Customer”)
WHEREAS NH will provide goods and services as set out in this agreement to the Customer in consideration of the Customer paying the necessary fees. This Agreement sets out the terms and conditions that apply to the supply of those goods and services.
Once signed by both parties, this document (including any applicable schedules or exhibits) will constitute a binding contract between the parties.
“Agreement” means this document signed for and on behalf of both parties including any general terms and conditions and Schedules referred to in this document. “Authorised Contact” or “Authorised Contacts” refers to any contact name or role provided by the Customer to NH as a Contact under this agreement. This includes, but is not limited to, the Administrative, Technical and Billing contacts.
“Authorised Signatory” means a legal company director of NH and any representative of the Customer which NH can reasonably accept is authorised to enter into this Agreement. “Associated Companies” means a parent or subsidiary company of either party. “Burst” means the ability of the Customer to achieve a higher rate of throughput than the Committed Rate for a short period of time (as defined in this contract). “Cabling Monopoly” refers to a Datacentre or site which operates a policy of restrictive cabling permits which restrict the number, cost or availability of cabling suppliers within that site. “Commencement Date” means the date on which the provision of services will commence. “Committed Data Rate”, “CDR” or “Committed Rate” means the agreed level of bandwidth, electricity or other measured commodity which the Customer has requested NH to provide. “Customer”, “you” and “your” refers to the Customer as set out in (2) above. “Customer Equipment” means equipment belonging to or housed by the Customer at NH Datacentres or sites in order to receive the services outlined in this agreement. “Datacentre” or “NH Datacentre” means any facility in which NH will provide the Customer with services under this Agreement. “Datacentre Operator” means the operator of the Datacentre facility. “Due Date” means the date that is specified for payment of invoices. “Excess Bandwidth Fee” and “Excess Electricity Fee” means charges levied by NH in situations where a Customer exceeds its allowed or committed bandwidth or power usage levels. “Goods” refer to any hardware sold, leased or supplied by NH to the Customer under this Agreement. “Group” means any companies that are subsidiaries of the same ultimate holding company including that holding company itself. “Company”, “subsidiary” and “holding company” have the same meaning in this Agreement as in Section 1159 of the Companies Act 2006. “The Internet” means the publicly accessible global network comprising of interconnected networks using the Internet Protocol (“IP”). The Internet operates on protocols and standards defined in documents commonly referred to as RFCs as well as documents issued by Regional Internet Registries. “Initial Period” means the period starting from when NH has begun providing any of the Services (or part thereof) under this Agreement and ending on the anniversary of this date, or as otherwise specified in Schedule 1. “Intellectual Property Rights” means any patent, trademark, service mark, registered design, copyright, design right, right to extract or exploit information from a database, database rights, know-how, confidential information or process, any application for any of the above, and any other intellectual property right recognised in any part of the world whether or not presently existing or applied for. “Local Internet Registry” or “LIR” means a registry which is able to assign resources it obtains from an RIR. “NH Equipment” means any equipment owned, provided or operated by NH. “Nimbus Hosting”, “NH” and “we”, “our” or “us” means the supplier as set out in (1) above. “Notice Period” means the notice period necessary to serve notice to terminate this contract. If this notice is served effectively prior to the end of the Initial Period, an “Early Termination Charge” applies. “Office Hours” or “Normal Working Hours” means 09:00 to 17:30 London time, Monday to Friday excluding statutory public holidays. “PDU” means a Power Distribution Unit. “Regional Internet Registry” or “RIR” means the relevant regional registry for the resource in question. “Registrar” means a company that sells domain names through its relationship with a Registry. In the context of this agreement, this also includes a Registrar acting as a re-seller of another Registrar. “Registry” refers to the maintainer of the database of Internet resources including but not limited to numbering resources such as IP Addresses and domain names. “Schedule” and “Service Order” means any document attached to this Agreement or executed by the customer separately at a later date as an additional or modified service order. Any updated Schedule or Service Order does not replace an existing Schedule or Service Order unless explicitly stated. “Service” or “Services” refer to any services described in this Agreement. “Additional Service” or “Additional Services” refers to any Service not provided as a recurring service but on request of the Customer. “Service Boundary” means the point at which the responsibility of maintaining the service switches from NH to the Customer. “Denial of Service Attack” means an attack (electronic or otherwise) intended to overwhelm or diminish the capacity of a resource to function as intended, including but not limited to a network connection or processor resource. “NH System” means any physical connection connected into equipment operated by NH. “Service Level Agreement” or “SLA” means the Schedule attached to this Agreement which covers the Customer’s remedies in the event that the Service fails to meet the targets set out within that Schedule. “Storage Device” or “Storage Devices” means any removable hardware component capable of storing data permanently, including hard disks.
2. SERVICES 2.1. General.
NH will provide one or more Services as specified on the respective Schedule in consideration of the Customer paying the relevant charges. This Agreement shall apply to any additional Schedules or Service Orders. No other services will be provided or implied unless set out herein or in the attached schedule.
2.2. Supplemental Terms. The Services and associated service levels are specified in the respective Schedule or under the terms of this document. Any Schedule or related documents are intended to supplement this Agreement and where any conflict exists, the provisions of the relevant Schedule shall take precedence.
2.3. Declaration. The Customer must notify NH prior to signing this Agreement if it believes or has reasonable cause to suspect that it has ever been the subject of any Denial of Service Attack or has been the target of any campaign of harassment, unauthorised access or modification of information (hacking). Failure to disclose such matters are considered a material breach of this contract.
2.4. Reasonable Care. NH will exercise reasonable care and skill in the provision of its services and we agree to add in liability for any alleged breaches are more particularly set out below.
2.5. Monitoring. NH may, but is not required to, monitor traffic or make decisions (including decisions based on the content of the traffic) passing through its network. NH may monitor traffic for the purposes of statistics, network troubleshooting, to protect its network integrity, subject to a statutory requirement, subject to a request of assistance from law enforcement agencies in relevant jurisdictions or as otherwise reasonable taking into consideration the Customer’s right to privacy of communications.
2.6. No Deep Packet Inspection. NH warrants that it shall not monitor the content of traffic (defined as data in Layers 4 to 7 of the IP protocol) passing over its network for the purposes of direct marketing or profiling. It may carry out such monitoring for purposes set out above.
2.7. Statistics. NH shall be entitled to publish general statistics about traffic flows through its network.
2.8. Marketing. NH may use the name and logo of the Customer and briefly describe the Customer’s business for marketing purposes. The Customer grants NH a limited license to use the Customer’s names and trademarks for this purpose.
2.9. Copyright. Copyright of any software, scripts, configuration or documentation provided or created by NH for the Customer will remain exclusively with NH. Any such material provided to the Customer is for the use of this Service only. 2.10. Network Protection. NH may at its discretion, disconnect any Customer or make any change to any Service where it reasonably believes that the Customer’s connection or Service is prejudicial to the security, stability or operation of the NH Network, including protecting it from a Denial of Service Attack or an attempt to gain unauthorised access. NH will endeavor to re-connect the Customer or reconfigure the Service as soon as such a threat is over. If NH reasonably believes that the Customer’s continued use of the NH Service puts NH’s Network at significant risk, NH may terminate this Agreement without penalty and refund any fees paid in respect of future services, provided the Customer has not committed a material breach. NH shall not be responsible for any losses or consequential damage thereby caused.
2.11. Burst Traffic. If the relevant Service includes a connectivity component, the Customer subscribes to a Committed Rate of bandwidth, but NH may allow the Customer the Burst above this rate (“Excess Bandwidth”) for short periods. Unless otherwise specified, the traffic will be measured on 95th percentile across each calendar month, and should the actual use exceed the Committed Rate, NH may charge the customer an Excess Bandwidth Fee at 50% above its list prices or as otherwise agreed.
2.13. Support. NH provides customer support for its Services in line with its policies and procedures for the relevant service. The entitlement to 24 x 7 x 365 support is specifically specified in the Schedule. Unless otherwise stated, support requests outside Normal Working Hours are restricted to genuine emergencies. Genuine emergencies are defined by lack of connectivity, failed hardware resulting in lack of connectivity or web site uptime and packet loss greater than 10%. The packet loss must exist on either NH network or a directly peering network.
2.14. Datacentre. The Customer accepts that NH may require that the Service be moved to another site within the same Datacentre (building) or to another Datacentre of similar specification due its contracts with Datacentre Operators. NH will always use reasonable endeavours to provide a service in the same site if requested. In such situations, NH will provide limited free assistance with arranging such a move, but the customer may be required to contribute to any cabling or re-provisioning costs that NH must bear on its behalf.
2.15. Procedures. The Customer will follow any relevant policies and procedures that NH and its suppliers may implement from time to time in relation to its services, premises and access/use thereof.
2.16. Datacentre access. Where a Customer subscribes to a Service that includes access to the Datacentre in which Customer Equipment is housed, the Customer will provide NH with at least 24 hours’ notice where possible. In emergencies, the customer shall be entitled to immediate access.
2.17. Disconnection. NH may disconnect, limit or suspend all or part of the Services provided to the Customer in the event that a Customer fails to pay amounts due within the agreed credit terms or where it has reasonable cause to believe that the Customer’s use of the Service is in breach of this Agreement. It shall endeavour to contact the Customer prior to doing so where possible.
2.18. Free Migration. Although NH will take every precaution in order to provide a seamless migration for customers we cannot guarantee the migration will be completely error free without complete participation from the client and/or end user. 2.19. Free Power Boost. This service is provided to any client on VPS/Cloud hosting for up to 7 days provided that resources are available and we receive at least 48 hours notice. Subject to availability.
2.20 Customer Contact Details In order for NH to provide a reliable service the customer must maintain up to date contact details including address, phone number and email address.
2.21 Intellectual Property Rights a) The client shall not acquire any rights in or over any intellectual property rights subsisting in any materials and/or property owned by NH or by any third parties (where, for example, the host is using materials under licence). b) The host shall not acquire any rights in or over any intellectual property rights subsisting any materials and/or property owned by the customer or by any third parties (where, for example, the customer is using materials under licence) including, but not limited to, the customer’s website. c) The customer hereby agrees to fully indemnify the host against all costs, expenses, liabilities, losses, damages, claims and Judgments that the host may incur or be subject to as a result of the infringement of any intellectual property rights arising out of the customers failure to obtain the necessary rights and permissions from third parties with respect to any materials used by the customer as hosted by the host under this agreement.
2.22 These terms and conditions govern the sale and provision of services by us and will form the basis of the contract between you and us. Before submitting any request for the provision of services by NH please ensure that you have read these terms and conditions carefully. If you are unsure about any point of these terms and conditions please ask us for clarification. We reserve the right to require proof to be provided in documentary form of identification and ownership of your business.
3. INTERNET RESOURCES 3.1. General.
The Customer may request NH to provide it with Internet Resources that allow it to carry out certain activities on the Internet. NH may levy appropriate charges from time to time for such resources.
3.2. IP Addresses. In the event that a Customer takes a hosting service, it would be assigned IP addresses (including either IPv4 and/or IPv6 addresses) to use on its devices by NH acting as a Local Internet Registry. All such assignments are subject to criteria set out by the Regional Internet Registry in the respective region. In accordance with our obligations to RIPE NCC, we would like to draw your attention to the following warnings regarding IP space:
3.2.1. Assignment of this IP space is valid as long as the criteria for the original assignment are met and only for the duration of the service agreement between yourself and us. We have the right to reassign the address space to another user upon termination of this agreement or an agreed period thereafter. This means that you will have to re-configure the addresses of all equipment using this IP space if you choose to migrate to another supplier. We also have a right to require you to re-number to another range of IP addresses.
3.4. Domain Names. NH provides domain registration, renewal and management services for its customers.
3.4.1. The Customer hereby agrees that NH is acting as the Customer’s agent and may on the Customer’s behalf agree to any terms and conditions in force at the time of this Agreement or any update thereof with any reseller, Registrar or Registry as required to complete any transactions.
3.4.2. The reseller, registrar and registry terms and conditions applicable to domain services may be subject to agreements which are enforceable outside of the jurisdiction of this Agreement. Copies of such agreements are available from NH at the Customer’s request.
3.4.3. The liability of NH in respect of any domain registration services is limited to the lower of the charges levied against the respective domain name in the previous five years or other limits specified in this Agreement.
3.4.4. The Customer must keep NH updated with its up-to-date contact details in relation to domain names and ensure such changes are reflected at the Registry. The Customer also indemnifies NH against any case brought against it on the grounds of rights infringement relating to any name which the Customer has instructed NH to register.
3.4.5. Unless otherwise agreed, all domain names registered by NH are registered in the name of the Customer. The Customer is therefore entitled to re-assign the name to another technical authority if they end this Agreement provided all charges due under this Agreement have been settled.
3.4.6. Sub-domains. In the event that NH assigns a customer a ‘sub-domain’ from a domain registered to NH or a third party, the customer acknowledges that it has no on-going rights in respect of such names and that NH may withdraw such names at any time, without notice.
3.5 Application Security Unless specified otherwise NH is not responsible for keeping applications, like but not limited too WordPress, Magento, Drupal, XenForo and vBulletin, with the latest patches and security updates. These updates and patches are the responsibility of the customer.
3.6 Backups NH will provide backup services to our customers. Although NH will provide this service on the basis of its reasonable endeavours the customer irrevocably assumes responsibility to perform regular restorations to confirm that the correct files are being backed up. NH does not accept any liability for a failure to backup or for a failure of the backup and the customer irrevocably confirms that it attributes no liability to NH and that it itself will perform regular backups to the extent necessary for the protection of its own business.
4.1. NH will supply Goods to the Customer in relation to agreed orders that may be made verbally or in writing (including electronically or by facsimile) by an Authorised Contact. The Customer acknowledges that NH provides a limited warranty and excludes all its liabilities and warranties to the maximum extent permitted by law. NH does not make representations of the suitability of Goods for a particular purpose.
4.2. In the event that the cost of acquiring the goods has increased beyond 15% of original cost from the order to the delivery, NH reserves the right to increase the price charged to the Customer. The Customer may continue with the order at the new price or cancel without penalty.
4.3. Retention of title. The ownership and title of any Goods supplied by NH to the Customer will remain exclusively with NH.
4.4. Export Restrictions. The Customer agrees not to export any Goods from the European Union or European Economic Area to any country, export to which may be contrary to English law, EU law or the laws of any country from which the Goods originated.
5. LIMITATION OF LIABILITY
5.1. General. The following provisions set out the entire liability of each party (including, without limitation, any liability for the acts and omissions of their respective employees, officers, agents or subcontractors) to the other in respect of any act or omission, including any breach by that party of its contractual obligations under this Agreement; any breach of statutory duty or restitution; and any representation, statement or tortious act or omission including (without limitation) negligence, wilful default and/or negligent misrepresentation, arising under or in connection with this Agreement.
5.2. Except as set out in this Agreement, NH hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, whether express or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favor of the Customer.
5.3. Nature of Internet. The Customer acknowledges that the use of the Internet is at its sole risk and that NH does not have exclusive control over the content that may travel through its network. NH shall not be liable for any transmission of or infection by a virus, trojan or other malicious software.
5.4. Warranty. NH does not warrant that its Service will be uninterrupted, error-free or that any data passing through it is accurate, complete or meets any particular standards except as set out in the Service Level Agreement.
5.5. Third Parties. NH has no responsibility or liability to the Customer for any claim against the Customer by any third party. 5.6. Additional Services. NH may procure services on behalf of the Customer from third parties (including its suppliers). In such cases, NH’s service is provided “as is” without warranty of any kind, whether expressed or implied.
5.7. Aggregate Liability. NH’s maximum aggregate liability in any twelve month period in respect of any single event or a series of events whether connection or unconnected arising out of or in connection with this Agreement whether in contract, tort (including negligence or breach of statutory duty) or otherwise, shall in no circumstances exceed the amount paid to NH by the Customer in the previous twelve months in respect of the relevant Service, or if the agreement has been in force less than twelve months, the lesser period. This Agreement does not exclude or limit NH’s liability for personal injury or death. 5.8. Consequential Losses. In no event shall NH be liable for any consequential losses, actual or potential loss of income, profit, revenue or data including without limitation any indirect or special loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise. NH will take all reasonable steps to avoid negligence.
5.9. Sole Remedy. Where the Service levels have failed to meet the standards set in the Service Level Agreement for a period of ninety (90) days, the Customer’s sole remedy is the termination of this contract. NH shall have no further liability to the Customer.
5.10. Scope. NH shall not be responsible for any liability arising out of actions of the Customer, the Customer’s employees, agents, subcontractors, suppliers, clients or users; nor shall it be responsible for the Customer’s inability to access any part of the Internet outside of NH’s network.
5.11. SLA. NH does warrant that it shall maintain in place connectivity (directly or indirectly) to one or more major Internet Exchange Points. Any breach of this clause will be handled under the Service Level Agreement provisions. The NH SLA can be found at http://www.nimbushosting.co.uk/docs/SLA.pdf
5.12. Law Enforcement. NH shall not be liable for any actions it takes (including suspension of service) pursuant to a request by a law enforcement agency or governmental body.
5.13. Equipment. The Customer warrants that it has taken out appropriate insurance to cover any Customer Equipment hosted or housed within an NH Datacentre or facility which covers all risks including damage by NH, its staff, suppliers, contractors or other customers. The Customer acknowledges that this is a fair clause since it is in a better position to insure against such a risk.
The customer shall fully indemnify the NH against all costs, expenses, liabilities, losses, damages and judgments that the host may incur or be subject to as a result of any of the following:- a) The customer’s misuse of the service. b) The customer’s breach of this agreement. c) The customer’s negligence or other act or default. d) The activity of third parties conducted on or through the customers website.
7.1. If the Customer subscribes to any services involving housing of any Customer Equipment at NH Datacentres or other premises managed by NH, the Customer shall prior to the Commencement Date, at its own cost, maintain in force, or procure the taking out and maintenance of the “Required Insurance Policy” compliant with the provisions of this clause and any other insurances as may be required by law. The Customer shall not permit anything to occur that may entitle the insurer to refuse to pay under any claim brought under this Agreement or otherwise prejudice the Required Insurance Policy.
7.2. The Customer shall ensure that the Required Insurance Policy contains provisions:
7.3. Providing for coverage in force with a limit of indemnity of not less than two million pounds (£2,000,000) in any one occurrence/unlimited in the number of occurrences in a policy period; and
7.4. that it operates, save for the limit of indemnity as defined above, in the same manner as if there was a separate policy with and covering each insured party without right of contribution from any other insurance which is carried by an insured party.
7.5. The Customer shall provide to NH appropriate evidence from a reputable insurer or insurance broker which is directly regulated by the UK Financial Services Authority confirming that the Customer has in place adequate insurance coverage as required under this Agreement and that all premiums due have been paid and that such insurance is in full force and effect. The Customer shall provide any renewal certificate or other documentation as reasonably required by NH to verify the Customer’s continuing compliance thereof as soon as possible.
7.6. The Customer shall give NH immediate and full notice of any claim or potential claim concerning this Agreement which could be brought under this Agreement and shall use its best endeavours to minimise and mitigate any losses that could result.
7.7. Neither the failure to comply nor full compliance with this clause by the Customer shall any way limit or relieve the Customer of its liabilities and obligations under this Agreement.
7.8. NH will maintain with a reputable insurer a policy in respect of its business covering Employers’ Liability (with respect to its own employees) and Public Liability with a level of indemnity not less than two million pounds (£2,000,000).
7.9. The customer agrees to arrange for our interest in the policy to be noted on the insurance certificate. You will if requested so to do provide us with a copy of the insurance policy prior to any equipment whether hardware or software being deposited with us.
7.10 You agree that any policy of insurance that provides you with cover in respect of any hardware or software that you deposit with us shall contain a term denying insurance the right to be subrogated to any claim that you may have against us.
8.1. The Customer shall pay NH for the Goods and Services ordered under this Agreement including any relevant Schedule and any additional costs reasonably incurred on its behalf.