Products
Terms and Conditions for Virtual Private Servers
By placing an order for a Cymru 1 Virtual Private Server product or Options, you agree to the following:
1 Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Account” |
means the details of the Client that are required and held by the Host to facilitate the provision of the Service to the Client including, but not limited to, identification and location details, payment details, username and password, and details of the Service provided to the Client; |
“Business Day” |
means a day (that is not a Saturday or Sunday) on which banks are open for business in the UK; |
“Client Data” |
means the information stored on The Host's VPS Hardware for the Client and refers to all types of data including, but not limited to, files, programs and settings; |
“Fee” |
means the sum payable by the Client to the Host in order to receive the Host’s Service; |
“VPS Hardware” |
means all computer and networking equipment used by the Host in the provision of the Service including, but not limited to, servers and network infrastructure; |
“VPS Package” |
means one of the Service packages described on the Host’s website and generally refers to the package selected by the Client; |
“VPS Software” |
means all software used by the Host in the provision of the Service; |
“Order” |
means an order placed by the Client with the Host for the provision of the Service which shall contain details of the Client’s chosen VPS Package; |
| "Options" | means optional enhancements or extra features as specified on the Host's website which the Client can add to their Order. |
| "Re-image" | means restore the Client's VPS to a state similar to that which it was in when it was first provisioned, with all changes, additions or enhancements to programs, configuration files and data that were made since then being removed. |
“Service” |
means the collective components of the Host’s VPS products which includes, but is not limited to, the provision of internet connectivity, bandwidth and data storage for the Client’s chosen VPS Package and can refer either to those components as a whole or to specific parts as the context may require; |
| "The Host", "we", "us", "our" | means Cymru 1 Limited; |
| "The Client", "you" | means the individual, company or other legal entity wishing to use the services provided by us; |
| "Uptime Guarantee" | means a Service availability goal that the Host shall endeavor to achieve. |
| "VPS" | means Virtual Private Server, a virtualised computer system that forms the container for the Service being provided to the Client by the Host. |
1.1 The clause headings used in this Agreement are used for convenience only and are not intended to affect the meaning or interpretation of the terms of this Agreement.
2 Service
The Service provided shall be a VPS as specified on the Host's website, along with any Options requested by the Client.
2.1 Once the Client’s Order has been placed and processed the Host will use its best endeavours to commence provision of the Service as soon as reasonably possible.
2.2 In the event that the provision of the Service (excluding any Options, which can take longer to provision) is delayed by more than two Business Days from completion of the Order the Host will contact the Client, giving the Client the option of waiting for a further one Business Days or receiving a full refund of all Fees paid. In the event of further delay, the process in this sub-clause 2.2 shall be repeated.
2.3 The Host is under no obligation to provide any Service that is not set out in the Client’s Order and specified in the relevant VPS Package and Options unless the Host and Client enter into a new written Agreement for the provision of additional services.
2.4 The Host may, in its sole discretion, alter, improve or otherwise modify the Service provided that any such change will not significantly alter the provision of the Service to the Client or result in the removal of any features or services that form part of the VPS Package. The Client will be notified no later than 30 Business Days in advance of any planned changes and will receive full documentation of any action required on their part. No alterations to the Service shall affect the Fees payable by the Client.
2.5 Notwithstanding the provisions of sub-clause 2.4 the Host may take any action necessary to address or repair faults in VPS Hardware or Host Software without any prior notice to the Client. If such faults or remedial action results in an interruption to the provision of the Service the Client will be notified in accordance with the provisions of clause 3 of this Agreement.
3 Availability of Service (Uptime guarantee)
3.1 The Host will use its best and reasonable endeavours to ensure that the Service is provided to the Client on a constant, uninterrupted basis throughout the Term of this Agreement.
3.2 Notwithstanding sub-clause 3.1, the Host shall not be liable for VPS Hardware of VPS Software downtime or interruptions to the provision of the Service where such downtime or interruptions last for no more than a total of 43 Minutes in any calendar month. (43 minutes being derived from the quoted 99.9% Uptime guarantee that applies to all VPS Packages, where 0.1% of an average 30 day calendar month is equal to 43.2 minutes)
3.3 Where the Service is unavailable for more than 43 minutes in any calendar month the Client shall be entitled to apply for a refund of the Fee or Fees already paid for the provision of the Service for that calendar month, subject to the terms and exclusions set out in sub-clause 3.4
3.4 The client will not be entitled to apply for a refund under the provisions of sub-clause 3.3 where the unavailability of the Service is due to:
3.4.1 Acts or omissions of the Client or acts or omissions of a third party using or misusing the VPS Package provided by the Host to the Client.
3.4.2 Scheduled maintenance conducted by the Host where such maintenance is notified to the Client at least 7 days prior to it being conducted.
3.4.3 Faults or errors caused by any software running within the bounds of the Client's VPS, or any data or configuration file within the Client's VPS.
3.4.4 the Client's VPS being temporarily suspended or shut down by the Host in the event that the client breaches any of the terms of this agreement including but not limited to Clause 6.
3.4.5 the fault of any third party
3.5 Where the provision of the Service is interrupted through the fault of any third party, the Host shall bear no responsibility or liability.
3.6 The Host's decision on the eligability of the Client for any refund under sub-clause 3.3 is final and the Client undertakes to accept that decision.
4 Fees and Payment
4.1 Fees for the VPS Packages and Options offered by the Host are published on the Host’s website. All charges payable by the Client shall be in accordance with the information published.
4.2 The Client is required to pay all fees due in advance
4.3 Where payment of Fees is made on a regular monthly basis:
4.3.1 The minimum period of Service Provision and therefore minimum billing period being one calendar month.
4.3.2 Payment of Fees for the first Service Period of one calendar month must be made in advance at the time of Ordering. Payment of fees for subsequent calendar month Service Periods must be made in advance in calendar month intervals, starting from the end of the first calendar month following the initial placement of the Order, in order for the privision of the Service to continue without interruption.
4.3.3 If the Client requires a VAT invoice covering the Fees paid to the Host, the Client must contact the Host and request the necessary invoice or invoices which will be sent to the Client by email in Adobe PDF format.
4.3.5 The Host may at any time change the price of its VPS packages. The Client will be notified at least 30 days before any such changes are applied to the Client and will be given the option to terminate their Service and this Agreement or to upgrade or downgrade to a different VPS Product.
4.3.5 The Client may, at any time, change their VPS Package and Options. If the Client chooses to do so:
4.3.5.1 Where payment of Fees is made by debit or credit card and collected automaticaly by the Host's card payment processor, the Host will adjust the amount collected as appropriate to match the price of the new VPS Package and Options from the date of the Client's next regular monthly payment. Where appropriate, the Host will also either request that the Client make an additional one-off pro-rata payment to cover increased Service fees for the remainder of the calendar month until the next regular monthly payment is due (in the case of upgrades to more expensive VPS Packages or Options) or will make a pro-rata refund to the Client's card to cover overpayment by the Client for the decreased Service fees (in the case of downgrades to less expensive VPS Packages or Options).
4.3.5.2 Where payment of Fees is made by the Client to the Host by Bank Standing Order, the Client will adjust the amount paid to the Host each month to match the new Fees associated with the new VPS Package and Options selected. Where appropriate, the Client will also make a one-off Pro Rata payment to the Host to cover increased Service fees for the remainder of the calendar month until the next regular monthly payment is due (in the case of upgrades to more expensive VPS Packages or Options) or the Host will make a one-off pro-rata refund to the Client to cover overpayment by the Client for the decreased Service fees (in the case of downgrades to less expensive VPS Packages or Options).
4.4 Where the Client agrees to pay for a Service Period greater than one month in advance:
4.4.1 The minimum period of service provision and therefore minimum billing period shall be agreed between the Client and the Host before the commencement of the service.
4.4.2 The Host shall send the Client an initial invoice covering the first Service Period which the Client must settle in full before the Service will be provisioned.
4.4.3 The Client shall either make arrangements to pay for subsequent Service Periods automatically or shall settle invoices for subsequent Service Periods, which shall be sent by the Host to the client 30 to 60 days before the end of the previous Service Period, immediately in order for the provision of the Service to continue without interruption.
4.4.4 The Host may at any time change the price of its VPS Packages. The Client will not be subject to any additional charges or refunds during the period of Service provision paid for in advance to the Host by the Client. Any change in fees will be reflected in subsequent renewals of Service provision. The Host reserves the right to continue charging old fees for renewals where the new fee is higher.
4.5 The Client may, at any time, change their VPS Package and Options. If the Client chooses to do so, the Host will either send an invoice for a pro-rata amount to reflect an increase in the total fees to be paid for the current Period of Service which the Client must settle immediately, or the Host will refund a pro-rata amount to the Client to reflect a decrease in the total fees for the current Period of Service.
4.6 All fees payable by the Client to the Host shall be paid in full, without set off or deduction. The Host reserves the right to suspend the Service or cancel the Client’s Order if fees are not paid on or before the due date.
4.7 Where payment for a Service Period is not made on time, we reserve the right to charge late payment fees under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002 (SI 2002 No 1674).
5 Changes to this Agreement
5.1 The Host reserves the right to change the terms of this Agreement and all other terms and conditions and policies which may affect Clients in order to comply with changes in the law.
5.2 The Client will be informed of any such changes and shall be deemed to be bound by them one calendar month after receiving the notice.
5.3 If the Client does not agree to be bound by the changes they may terminate this Agreement in accordance with Clause 12.
6 Client Undertakings and Obligations
6.1 The Client may not use the Service for any unlawful or otherwise inappropriate purposes. This includes, but is not limited to:
6.1.1 Distribution of viruses, spam (unsolicited email), spyware, malware, or any other form of code or of data designed to cause harm or nuisance to hardware or software or networks or to obtain data without consent;
6.1.2 Distribution of pirated material including, but not limited to software, movies, music and written works; and
6.1.3 Distribution of obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities.
6.2 The Client may not use the Service to link in any way to any sites or systems hosting any material described in sub-clause 6.1.
6.3 The Client will monitor and supervise any and all third party activity on their VPS (including communications systems such as forums). Any third party activity that may fall within the provisions of sub-clause 6.1 must be stopped or removed, as appropriate.
6.4 The Client must ensure that any and all activity conducted through the Client’s VPS in relation to the collection of personal information complies with the provisions of the Data Protection Act 1998.
6.5 The Client must ensure that any and all activity conducted through the Client’s VPS in relation to selling complies with the provisions of the Distance Selling Regulations 2000.
6.6 The Client is responsible and accountable for all activity relating to their VPS and the Service that is carried out by third parties on their behalf.
6.7 The Client will use its best and reasonable endeavours to supply all information required to facilitate the provision of the Service to the Host in a timely fashion.
6.8 The Client undertakes to accept the decision of the Host regarding the Client's eligibility for any refund under sub-clause 3.3.
6.9 The Client accepts that the content of their VPS and the data entering or leaving it is the Client's responsibility, and falls outside the scope of free of charge Technical Support.
6.10 The Client accepts that if they breach any of the terms of this Agreement their VPS or Service may be suspended or terminated.
7 Intellectual Property and Proprietary Rights
7.1 The Client will not acquire ownership rights over any of the Host’s Intellectual Property in or in relation to the Service or in relation to any other property owned by the Host.
7.2 The Host will not acquire ownership rights over any of the Client’s Intellectual Property in the Client’s Website or any other material belonging to the Client.
7.3 The Client 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 infringement owned by third parties arising from:
7.3.1 The Client’s failure to obtain the necessary rights and permissions from third parties in order to enable the Host to legally provide the Service;
7.3.2 The provision of the Service by the Host based upon information and material provided by the Client.
8 Liability
8.1 Subject to Clause 3 and sub-clauses 8.2 and 8.3 the Host, its directors, employees, officers, other representatives, subcontractors, suppliers, shall not be liable to the Client or to third parties for:
8.1.1 Any losses resulting from interruptions or downtime to the Service;
8.1.2 Any inability, on the part of the Client, to use the Service;
8.1.3 Any damage or loss resulting from the loss of confidentiality caused by the storage of information on the internet;
8.1.4 Any damage or loss resulting from the Client's inability to use the Service resulting from the suspension or termination of the Service;
8.1.5 Any damage or loss resulting from loss of data, or loss of access to data, resulting from the Client's inability to access the Service, however caused.
8.1.4 Any other loss or damage arising out of or in connection with the use of any VPS Package or Options. This is a comprehensive limitation of liability that applies to all losses or damages of any kind, including (without limitation) direct, indirect compensatory or consequential damages, loss of data, loss of income or profit, loss of or damage to property and claims of third parties.
8.2 Nothing in this Clause shall exclude the liability of the Host for death or personal injury resulting from the Host’s negligence or that of its employees or agents.
8.3 Nothing in this Clause or in this Agreement shall exclude the liability of the Host for fraudulent misrepresentation.
9 Warranty Disclaimer
Subject to the provisions of this Agreement, the Host gives no warranty, express or implied, in connection with the Service as to fitness for purpose, quality, non-infringement or merchantability.
10 Indemnity
10.1 The Client will fully indemnify the Host 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:
10.1.1 The Client’s misuse of the Service;
10.1.2 The Client’s breach of this Agreement;
10.1.3 The Client’s negligence or other act of default;
10.1.4 The Activities of third parties conducted on the Client’s VPS using facilities such as blogs, forums and chat.
11 Force Majeure
11.1 Neither the Host nor the Client shall be liable for breaching this Agreement where that breach results from Force Majeure.
11.2 Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to, acts of God; acts of war; national emergencies; governmental action; union action; civil unrest; fire; explosion; terrorism, flood and theft.
12 Term and Termination
12.1 The initial period of Service provision will commence on the date that the Client’s Order is processed. This term shall last for a period of one calendar month (or, by prior arrangement between the Client and the Host, a period of three months or more), subject to the termination provisions below and to the refund provisions of sub-clause 2.2 of this Agreement.
12.2 Subsequent periods of Service Provision shall last for a period of one calendar month (or, by prior arrangement between the Client and the Host, a period of three months or more) each and will follow on from a previous period, without interruption, subject to the fulfilment of the Client’s payment obligations under Clause 4 of this Agreement. All subsequent periods are subject to the termination provisions below.
12.3 The Host reserves the right to terminate this Agreement or to suspend the Service in the following circumstances:
12.3.1 If the Client fails to pay fees due under Clause 4 of this Agreement;
12.3.2 If the Client is in breach of the terms of this Agreement;
12.3.3 If the Client becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
12.3.4 If the Client is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
12.3.5 If the Client has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
12.4 The Client may request the termination of the Service and this Agreement by written notice, 30 days in advance, supplying their name, address, VPS IP addresses and root password. The following shall apply to such situations:
12.4.1 The issuing of refunds is at the sole discretion of the Host;
12.5 On termination of the Service and this Agreement the Client’s VPS and all material, data and settings held within it will be removed from the VPS Hardware.
12.6 If the Client sends a termination notice in error or changes their mind, the Host must be informed a minimum of 14 days before the date on which the Client had originally requested the termination to occur. Any notification outside of this period may require a new Account to be set up and all data and configuration information held in the original VPS may be lost.
12.7 If the Service is temporarily suspended rather than terminated, although the Client's data may remain stored on the Host's Hardware, access to that data may not be possible until the service is later restored. In some cases it may not be possible to restore the service until remedial action has been taken, for example (but not limited to) removing a hosting account that has been used to send spam or spread viruses. Furthermore, in some circumstances, for example (but not limited to) situations where a third party has gained or has been given access to the Client's VPS and has altered files or data or installed software or data in such a way as to make such changes, alternations or additions difficult to trace or reverse, it may be necessary to re-image the Client's VPS before the Service can be restored.
13 Assignment
13.1 The Host reserves the right to assign or otherwise transfer any rights or obligations under this Agreement.
13.2 The Client may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the host.
14 Severance
In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The waiver by either party of any provision of this Agreement will not operate or be interpreted as a waiver of any other provision or a subsequent breach of any provision.
15 Law and Jurisdiction
15.1 This Agreement is governed by the laws of England and Wales. Any dispute relating to this Agreement shall fall within that jurisdiction.
16 Order Acceptance and Contract Formation
16.1 Order acceptance and the completion of or the formation of the contract between the Client and the Host will take place on the activation of the VPS Product the Client has requested, unless we notify you that we do not accept your order or you have cancelled it. Non-acceptance of an order for a product or service may be a result of, but not limited to, one of the following reasons:
16.1.1 The product you ordered being unavailable;
16.1.2 Our inability to obtain authorisation for your payment;
16.1.3 The identification of a pricing or product description error;
16.1.4 Our inability to verify your identity to our satisfaction;
16.1.5 Our inability to verify that you are lawfully entitled to make use of the particular credit or debit card used to pay for your order.
17 Privacy
17.1 In order to investigate problems or suspected breaches of these Terms and Conditions we reserve the right to view the content of any and all files or data contained within your VPS without notice.
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