QUEST CLOUD SOLUTIONS LIMITED
TERMS AND CONDITIONS FOR SERVICES V1.3 02/02/2015
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1. INFORMATION ABOUT QUEST CLOUD SOLUTIONS LIMITED
The Services are provided by Quest Cloud Solutions Ltd (Company Number 07311724) (“Quest”, “we”, “us”, or “our”) a company registered in England and Wales. Our registered office is Quest Cloud Solutions Ltd, The Incubator, Alconbury Enterprise Campus, Alconbury Weald, Huntingdon, Cambridgeshire, PE28 4WX.
2.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
Affiliate means, in relation to a body corporate, any subsidiary, subsidiary undertaking or holding company of this body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being as defined in section 1159 of the Companies Act 2006;
Usage Policy means our Usage Policy from time to time produced, amended and updated by us and notified to you which sets out the terms under which you may access and use Content;
Business Day means any day (other than a Saturday or Sunday) on which banks are open for the conduct of normal banking business in the City of London;
Business Hours means 9.00am to 5.30pm local UK time, on a Business Day;
Content means all pages, screens, layouts, information and materials included in or accessible through the Service;
Customer Data means data input, created or used by you in using the Services, including but not limited to computer software and files stored or processed by us in the performance of the Services;
Confidential Information means any non-public information, know how, trade secrets or data in any form which is designated as being “confidential” or “secret” or could reasonably be understood by a reasonable person to be confidential. The term “Confidential Information” shall also include any information not publicly available concerning the products, services (including the Services), finances or business of a party (and/or, if either party is bound to protect the confidentiality of any Third Party’s information, of a Third Party);
Customer means you, a subscriber to the Services who is not an individual consumer and who is subscribing for the purposes of a business and having a legal identity separate from the persons (if any) of which it is composed, including but not limited to, a company, a body corporate, a corporation sole, a charity, a partnership, a government body and a public authority;
Initial Period means the terms subscribed to on the Customer Agreement. If no period is detailed on the Customer Agreement then our standard term of 36 months applies, commencing from the date of service delivery.
Order means an offer to us to Subscribe to any one or more of the Services;
Services means any online services that we make available to you during the term of this Agreement;
Subscribe means pay the Subscription and “Subscribed”, “Subscribing” and “Subscriber” shall be construed accordingly;
Subscription means the monthly fee (plus applicable taxes) payable to us by you, a Customer, to access one or more of the Services;
Support means the telephone and other support and maintenance services provided by us, as specified on our website;
Term means the duration of this Agreement;
Third Party means any legal person other than you and us; and you/your/yours means you, the Customer;
3. ORDERING AND ACCESS TO THE SERVICES
3.1 You can order Services by contacting your Account Manager or by emailing email@example.com.
3.2 You may start using the Services as soon as we give you access to them. This will normally be within 24 hours after your agreement has been accepted by us, unless a scheduled rollout of the Service has been agreed. You can continue to use the Services for as long as you continue to pay Subscriptions in respect of them;
3.4 You acknowledge that it is your sole responsibility to determine that the Services that you Subscribe to meet your requirements. We give no warranties to that effect.
4. PRICE AND PAYMENT
4.1 Subscription prices to any of the Services and all of the options available in relation to those Services are as set out on our Website. Support charges are included in the Subscription prices with the following provisos:
4.1.1 We will provide full Support on any applications that come as a part of the Service
4.1.2 Any Third Party Applications that are integrated as part of your specific requirements will be Supported however we cannot guarantee a fix. In this situation we will liaise with your Third Party Application Provider in order to attempt a fix.
4.2 Prices are liable to change at any time (although we will endeavour to give you reasonable notice) but no change will be implemented in respect of any period for which you have already paid a Subscription. Subscription prices for the Services exclude all taxes (including VAT), telephone and internet connection and use charges, unless stated otherwise. You are responsible to pay such charges.
4.3 If we run a particular special offer so that there is a specific introductory time, length and price (including at no charge) for the Services we provide you (rather than the normal monthly Subscription) then that price will remain in force for that time. After the offer period ends, your use of the Services will be charged at our then current prices in force for the options you are subscribed to.
4.4 Subject to any special offer that you may take up when you first Order the Services, you will be charged your Subscription for the Services you have Ordered from us from the first date we enable you to receive them.
4.5 You must pay us your Subscription every month in advance. Payment of Subscriptions must be by Direct Debit. We will not debit your nominated bank account without providing a valid invoice. The sum due on the invoice will be collected via Direct Debit not less than 14 days from the date of invoice. Should you cancel your Direct Debit we reserve the right to charge £25 for any collections that are returned. Should a Direct Debit be declined by your Bank for any reason whatsoever we reserve the right to charge £25.
4.5.1 Failure to pay your Subscription when due shall be a material breach of this Agreement which shall entitle us to suspend or terminate (pursuant to clause 12.3.1) this Agreement – which will affect your access to the Services. If we do terminate this Agreement for your material breach, we will require you to pay, without delay, all fees and costs accruing before the termination date, all unpaid Subscriptions and any other amounts you owe us under this Agreement;
4.5.2 Further, if you fail to pay any amount payable by you under this Agreement, we shall be entitled to charge you interest on the overdue amount, payable on demand, from the due date up to the date of actual payment, at the rate of 4% per annum above the base rate for the time being of Lloyds TSB Bank PLC. We also reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
4.5.3 We may, at our discretion, also appoint an outside debt collection agency to collect amounts owing to us. You agree to reimburse us for all costs that we incur in enforcing our collection of your unpaid amounts, including debt collection agency fees, reasonable legal fees and court costs.
5. BUSINESS USERS ONLY
The Services we provide are designed for business users and are not aimed at consumers at all. This Agreement and other contracts and policies that we use are also structured for business users.
6.1 Subject to the remainder of the provisions in this clause, we warrant that during the Term of this Agreement we will provide the Services with reasonable care and skill in accordance with the terms of this Agreement and further, that the Services will conform substantially to the description of them contained on the website
6.2 The warranties contained in clause 6.1 above do not cover or apply to failures or shortcomings in the provision of the Services caused by, arising out of or due to:
6.2.1 your connection to the Internet;
6.2.2 the operational performance of the Internet itself;
6.2.3 private networks or VPNs or networked personal computers;
6.2.4 leased lines;
6.2.5 mobile service or airtime providers;
6.2.6 failure of the computer or other equipment (including mobile equipment such as BlackBerry) you use to connect to the Internet or to your mobile service or airtime provider, or to meet minimum system/equipment requirements as set out in 6.2.7 accident, abuse or use of the Services in a manner inconsistent with this Agreement or our Usage Policy or resulting from events beyond our reasonable control;
6.2.7 which are catered for by the SLA applicable to the Services being provided.
6.3 Subject to clause 6.6 below, if you notify us during the Term of this Agreement that any of the Services do not meet the warranties we give in clause 6.1 then we will, at our sole option, either:
6.3.1 modify, improve or update the Services to make them conform; or
6.3.2 return Subscriptions paid for such Services for the period that they failed to conform.
6.4 We will use all reasonable endeavours to maintain the Services free of viruses but we strongly recommend that you have your own local anti-virus, anti-spam and anti-spyware programs, that they are of good quality and that they are kept up to date.
6.5 We cannot and do not warrant that the Services will be uninterrupted, error-free or entirely secure although we will effect and maintain at all times continuous and efficient security measures in order to safeguard Customer Data from unauthorised access, disclosure or use and to minimise the risk of security breach. Further, we shall use encryption techniques where available to protect Customer Data when input.
6.6 Our response to and our liability for Outages is as set out in our Performance & Service Credits Terms, where the term “Outage” is defined. For the avoidance of doubt, our Performance & Service Credits Terms form part of these Services Terms and Conditions.
6.7 We do not give any other warranties, guarantees or representations concerning the operation or performance or the Services. You are entirely responsible for deciding which Services best suit your requirements and we accept no liability for any use to which you put any of the Services.
7.1 You acknowledge that you have accepted these terms and conditions in the knowledge that we must limit our liability and that the Subscriptions have been calculated accordingly.
7.2 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
7.2.1 any breach of this Agreement; and
7.2.2 any representation, statement or tortuous act or omission (including without limitation negligence) arising under or in connection with this Agreement.
7.3 Except as expressly and specifically provided in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
7.4 Nothing in this Agreement excludes our liability:
7.4.1 for death or personal injury caused by our negligence; or
7.4.2 for fraud or fraudulent misrepresentation.
7.5 We shall not be liable for:
7.5.1 loss of profits; or
7.5.2 loss of business; or
7.5.3 depletion of goodwill or similar losses; or
7.5.4 loss of anticipated savings; or
7.5.5 loss of goods; or
7.5.6 loss of use; or
7.5.7 loss or corruption of data (apart from Customer Data) or information; or
7.5.8 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
7.6 Other than in relation to any liability under clause 7.4 above, our total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to 125% of the amount actually received by us for the provision of the Services to you under this Agreement in the 12 months preceding the date upon which the claim arose.
7.7 In the event of any breach of the warranties we give in clause 6.1 your sole remedy and our only obligation and liability to you shall be as set out in clause 6.3.
7.8 We are responsible for backing up (and restoring if it is damaged) the Customer Data but you agree to take sensible precautions to minimise your loss in the event we fail to do so, especially if the data is important to you. This may include backing up any locally held data which is also Customer Data.
8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
8.1.1 is or becomes publicly known other than through any act or omission of the receiving party; or
8.1.2 was in the other party’s lawful possession before the disclosure; or
8.1.3 is lawfully disclosed to the receiving party by a Third Party without restriction on disclosure; or
8.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
8.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any Third Party, or use the other’s Confidential Information for any purpose other than for the purposes of this Agreement.
8.3 Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement and shall co-operate with the other to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.
8.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any Third Party.
8.5 This clause 8 shall survive termination of this Agreement, however arising, for a period of five years.
9. CUSTOMER DATA AND THE PROTECTION AND PROCESSING OF PERSONAL DATA
9.1 You shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of it.
9.2 We shall follow our standard archiving and backup procedures for Customer Data. In the event of any loss or damage to the Customer Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data maintained by us in accordance with our standard archiving and backup procedures. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any Third Party (except those Third Parties sub-contracted by us to perform services related to Customer Data maintenance and backup).
9.3 Each party shall comply with its respective obligations under the provisions of the Data Protection Act 1998 and references in this clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in the Act.
9.4 If we process any personal data on your behalf when performing our obligations under this Agreement, the parties’ record their intention that you shall be the data controller and we shall be a data processor and in any such case:
9.4.1 you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully process the personal data in accordance with this Agreement on your behalf;
9.4.2 we shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you from time to time;
9.4.3 we will not, except as agreed with you, or in accordance with your instructions, carry out any processing of personal data on equipment situated outside the European Economic Area (EEA) or transfer any personal data outside of the EEA.
9.4.4 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage; and
9.4.5 we shall immediately notify you (or you us, as applicable) if you receive any complaint, notice or communication which relates directly or indirectly to the processing of personal data under this Agreement, and provide full co-operation and assistance in relation to any such complaint, notice or communication; and
9.4.6 each party will comply with any specific guidance or instructions issued by the Information Commissioner.
10. PROPRIETARY RIGHTS
10.1 You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or any related documentation.
10.2 We confirm that we have all the rights in relation to the Services that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of this Agreement.
11.1 You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services provided that:
11.1.1 you are given prompt notice of any such claim;
11.1.2 we provide, reasonable co-operation to you, should you request it, in the defence and settlement of such claim, at your expense; and
11.1.3 you are given sole authority to defend or settle the claim.
11.2 We shall defend you, your officers, directors and employees against any claim that the Services infringe any United Kingdom patent (effective as at the time your Subscription begins), copyright, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgement or settlement of such claims, provided that:
11.2.1 we are given prompt notice of any such claim;
11.2.2 you provide, reasonable co-operation to us or our licensors, should we request it, in the defence and settlement of such claim, at our (or our licensors’) expense; and
11.2.3 we and/or or licensors are given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any such claim, we may obtain for you the right to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement (which shall include termination of your access to the Services) without liability to you. We shall have no liability if the alleged infringement is based on:
11.3.1 a modification of the Services by anyone other than us; or
11.3.2 your use of the Services in a manner contrary to the instructions given to you by us; or
11.3.3 your use of the Services after notice of the alleged or actual infringement has been given to you by us or by any appropriate authority.
11.4 The foregoing states your sole and exclusive rights and remedies, and our entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.
12. TERM, SUSPENSION, CANCELLATION AND TERMINATION
12.1 This Agreement will remain in effect unless terminated.
12.2 This Agreement may be terminated for convenience by either party as follows:
12.2.1 by us on 90 days notice, such notice to expire on the last day of the Initial Period or at any time thereafter;
2.2.2 by you giving 28 days notice understanding that:
12.2.2a notice may only be given to end this Agreement upon the expiry of the Initial Period, or,
12.2.2b if the Initial Period has passed, on the anniversary of the expiry of the Initial Period.
12.3 Notwithstanding anything else contained in herein, this Agreement may be terminated by us:
12.3.1 forthwith on giving notice in writing to you if you fail to pay any sum due under the terms of this Agreement (otherwise than as a consequence of any default on our part) and such sum remains unpaid for 14 days after written notice from us requiring such sum to be paid and referring to this clause 12.3.1;
12.3.2 forthwith on giving notice in writing to you if you are in material breach of any term of this Agreement (other than any failure by you to make any payment hereunder, in which event the provisions of clause 12.3.1 above shall apply) and, in the case of a breach capable of being remedied, shall have failed to have remedied, within 30 days of receiving notice requiring you to do so; or
12.4 If you choose to cancel your Subscription pursuant to the terms of clause 12.2.2, you are not entitled to a refund in respect of the remainder of any period in respect of which your Subscription was paid in advance. If we cancel without cause, then we will refund to you, on a pro-rata basis, the amount of unused Subscription remaining right before the cancellation.
12.5 Any termination of this Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination
12.6 Any termination of this Agreement in accordance with 12.2.2, 12.3.1, 12.3.2, & 12.3.3 inside of the Initial Period will attract early termination charges. Early termination charges will be equal to the sum of Subscription charged to the end of the Initial Period.
13. FORCE MAJEURE
13.1 Provided we have complied with the provisions of clause 13.3 below, we shall not be in breach of this Agreement nor liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under this Agreement that is caused by events outside our reasonable control (a “Force Majeure Event”), including in particular (without limitation) the following:
13.1.1 any labour dispute, including but not limited to strikes, industrial action or lockouts;
13.1.2 non-performance by suppliers or subcontractors;
13.1.3 interruption or failure of utility (including but not limited to electric power, gas or water) or public or private telecommunication services or breakdown of plant or machinery;
13.1.4 Acts of God, including but not limited to fire, flood, earthquake, subsidence, epidemic, pandemic, windstorm or other natural disaster;
13.1.5 war, threat of or preparation for war or terrorist attack, armed conflict, civil war, civil commotion or riots; or
13.1.6 voluntary or mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law).
13.2 Our performance under this Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period.
13.3 We will use our reasonable endeavours to mitigate the effect of any Force Majeure Event and to carry out our obligations under this Agreement in any way that is reasonably practicable despite the Force Majeure Event and to resume the performance of our obligations as soon as reasonably possible.
13.4 Specifically excluded from 13.1.2 & 13.1.3 is our Data Centre partner and the utilities it supplies to Quest.
14.1 We have the right to revise and amend the terms and conditions of this Agreement from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in the options available in relation to the Services, changes in relevant laws and regulatory requirements, changes in our capabilities and changes in what we are able to obtain from our Third Party licensors, contractors and other suppliers.
14.2 You will be subject to the policies and terms and conditions in force at the time that you first take out your Subscription and each time you renew or amend it. When you come to renew or amend your Subscription please take some time to review all of the terms and conditions of this Agreement and any other related terms and policies, as well as the scope, specification and options available of the Services to ensure that you are happy with them.
14.3 Exceptionally, we may need to revise and amend the terms and conditions of this Agreement during the Term of it, in which case we will notify you of our new terms and conditions and will have the right to assume that you have accepted the revised terms and conditions if you have not notified us to the contrary within 7 days of our notification to you.
You agree that you will not assign, sub-contract or otherwise deal with this Agreement or any rights and obligations under this Agreement without our prior written consent. We may assign this Agreement to our Affiliates.
15.2.1 Any notice under this Agreement must be in writing and must be delivered by hand or sent by pre-paid first-class post or recorded delivery or registered post or by fax or by email to you at the address on your Agreement or to us at Quest Cloud Solutions Ltd, or to such other address as may have been notified by a party for such purposes.
15.2.2 A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery or registered post will be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax will be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). A notice sent by email will be deemed to have been received at the time that the email enters the Information System of the intended recipient provided that no error message indicating failure to deliver has been received by the sender and provided further that within 24 hours of transmission a hard copy of the email signed by or on behalf of the person giving it is sent by pre-paid first class post, recorded delivery or registered post to the intended recipient. (For the purposes of this clause, an “Information System” means a system for generating, sending, receiving, storing or otherwise processing electronic communications.)
No failure by either party to enforce any rights under this Agreement shall constitute a waiver of such right then or in the future. Any waiver must be in writing and signed by an authorised representative of the waiving party.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to give effect to the economic intent of the parties, and the remainder of this Agreement will continue in full force and effect.
15.5 Third Parties.
A person who is not a party to the Agreement has no right or benefit under or to enforce the Agreement whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
15.6 Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement. Each of the parties acknowledges that in entering into this Agreement, it does not rely on and will have no remedy in respect of any statement of fact or opinion not recorded in this Agreement (whether negligently or innocently made), except for any representation made fraudulently.
16. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and construed according to English law and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.