Acceptance of terms and conditions
By clicking the order button or by placing an order of service by agreement in any form, you agree to these terms and conditions for the Service (as defined in the terms and conditions) set out at https://cloudflexy.com/tos.html. By completing and submitting the Order Form (as defined in the terms and conditions) you make an offer to us for the Services, which, if accepted by us, will constitute a binding contract.
Terms and conditions
Any queries or notices to the Provider may be sent to firstname.lastname@example.org. Version in effect from 1th March 2017.
In these Conditions, unless the context otherwise requires:
Agreement means the contract formed by the acceptance of the Order Form (subject to these Conditions) by the Provider;
Business Day means a day other than Saturday, Sunday and public holidays when banks generally are open for non-automated business in London;
Commencement Date means the date specified as the commencement date on the Order Form;
Competent Authority means any person having regulatory or supervisory authority over any part of the business of either party or a User (as applicable), including any court of competent jurisdiction;
Conditions means these terms and conditions as amended from time to time by the Provider;
Data means the information input by the User via the Service submitted by the User to the Provider;
Data Protection Legislation means the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any legislation implementing the Data Protection Directive 95/46/EC of 24 October 1995 or the Privacy and Electronic Communications Directive 2002/58/EC of 12 July 2002;
Fees means the fees payable by the User for the Services as set out in the Order Form;
Force Majeure Event means any of the following events, without limitation, war, the threat of war, revolution, terrorism, riot or civil commotion, or precautions against any such; strikes, lock outs or other industrial action, whether of the affected Party's own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; failures of supply of water, power, fuels, transport, equipment or other goods or services; explosion, fire, corrosion, ionising radiation, radioactive contamination; flood, natural disaster, or adverse weather conditions; malicious or negligent act or accident, and breakdown or failure of equipment, whether of the affected Party or others, but does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of these Conditions unattractive to;
Good Industry Practice means, in relation to any undertaking and any circumstances, the exercise of that degree of care and skill which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances;
Initial Period means the initial period set out on the Order Form;
Intellectual Property Rights "means copyright, patents, know-how, trade secrets, trade marks, trade names, design right, get-up, database right, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:
a) whether registered or not;
b) including any applications to protect or register such rights;
c) including all renewals and extensions of such rights or applications;
d) whether vested, contingent or future;
e) to which the Party licensing those rights or its licensor are or may be entitled; and
f) wherever existing;"
Order Form means the online order form for the Services set out at https://cloudflexy.com/cart to be completed and submitted by the User and which incorporates by reference these Conditions;
Party means either the Provider or the User and Parties means both the Provider and the User;
Provider ITDataTelecom SRL-D (CUI 33542342 REG J12/2587/2014) whose registered office is at Primaveri Nr 3, Cluj Napoca, Romania;
Service means the service provided by the Provider to the User as set out in the Order Form;
Term means from the Commencement Date and shall continue until terminated under these Conditions;
User means the customer identified on an Order Form submitted to the Provider by means of the Website for the provision of Services by the Provider to that customer; and
Website means the website of the Supplier the URL which is: https://cloudflexy.com.
unless the context otherwise requires:
each gender includes the others and the singular includes the plural and vice versa;
references to conditions are to conditions of these Conditions;
references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
condition headings do not affect their interpretation;
references to legislation:
include any secondary or subordinate legislation made under or pursuant to that legislation; and
exclude any re-enactment or modification of that legislation made on or after the date of these Conditions to the extent they make any Party's obligations more onerous; and
writing includes electronic communications delivered by the Services and other permanent forms.
Subject to the User's payment of the Fees the User is granted the right to use the Service in accordance with these Conditions.
The Services to be supplied are in accordance with those set out in the Order.
The Provider may modify the Service from time to time.
The Provider must provide the Service to the User in accordance with the terms of these Conditions.
3. Fees and Payment
In consideration of the Services, the User shall pay to the Provider the Fees in advance of the provision of the Services, unless the Provider otherwise decides.
Should the Provider provide the Services prior to receiving the Fee, all Fees must be paid, in the same currency as set out in the invoice to which the Fees relate:
within fourteen (14) days after the date of receipt by the User of the relevant invoice from the Provider; or
as specified in the invoice.
The Provider reserves the right to refuse to provide the Service if the User fails to pay the Provider's invoice for Fees in accordance with the terms of the Agreement.
Without limiting condition 3.1, each amount stated as payable by the User under the Agreement is exclusive of Value Added Tax (VAT) (if any) and is to be construed as a reference to that amount plus any VAT in respect of it.
The Provider shall be entitled to suspend the provision of the Services for the duration of any period in which the payment of Fees is overdue.
The Provider shall give to the User not less than thirty (30) days' written notice prior to each and every anniversary of the Commencement Date of any increase in the Fees. The User shall be entitled to terminate these Conditions on giving not less than fourteen(14) days' prior written notice to the Provider to expire at the end of the Initial Period and thereafter on any anniversary of the end of the Initial Period.
Refund period will be granted in period of 5 days after purchase for any of virtual services such as web hosting, virtual servers, any payments for domains, dedicated servers will not be refunded.
Each Party will co-operate with any investigation relating to security that is carried out by or on behalf of the Provider or the User.
The Provider will not access the Services unless prior User consent has been provided in writing, and the activity and content is the sole responsibility of the User.
Notwithstanding condition 4.2, the Provider may access the Service without the consent of the User should the User be in breach of any of these Conditions.
The Agreement commences on the Commencement Date, and unless terminated earlier in accordance with the terms of these Conditions, will remain in force for the Initial Period and will continue thereafter from year to year.
Notwithstanding condition 5.1:
if, on expiry of the Initial Period, a User pre-paying for the Service on a monthly basis ceases to pre-pay for the provision of the ongoing Service by the Provider, the Provider shall cease to provide the Service and the Agreement shall terminate;
if a User wishes to terminate the Agreement:
the User must give the Provider at least 30 days' written notice of termination such notice to expire, in respect of 5.2.2(a), at the end of the Initial Period, and in respect of 5.2.2(b), at the end of the period to which that quarterly or annual plan relates.
during the Initial Period; or
after the Initial Period and the User has, since the expiry of the Initial Period, engaged the Provider to provide the Service pursuant to a quarterly or annual plan,
6. Intellectual Property Rights
The User acknowledges that all Intellectual Property Rights in the Services are and shall at all times remain the property of the Provider.
All Intellectual Property Rights in the Data, all amendments or additions to the Data, and databases and other compilations including any of such, belong to the User. The Provider may use all such rights only under these Conditions.
In the event of any claim or allegation in respect of a breach of any Intellectual Property Rights being made in respect of the Service, the Provider will inform the User immediately and request that the User resolve the matter.
If any action or proceeding is brought against the Provider in respect of any alleged infringement of any Intellectual Property Right in respect of the Service or the Data by a third party (IPR Claim), then the User shall indemnify the Provider from and against all costs, damages, liabilities, and losses agreed to be paid by way of settlement or compromise by, or finally awarded against the Provider as a result of or in connection with an IPR Claim.
The Provider shall notify the other Party in writing of any such allegation or claim within five Business Days after becoming aware of the same;
The indemnified Party shall make no verbal or written admission relating to the IPR Claim without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed; and
The indemnifying Party (or any person nominated by it) shall at its own expense be entitled to conduct and/or settle all negotiations and litigation so arising and the indemnified Party shall at the other Party's expense give to the other Party (or any person nominated by it) such reasonable assistance in connection therewith as the indemnifying Party from time to time may reasonably request.
The exclusions and limitations under condition 9 shall not apply to the indemnity under condition 6.4.
7. Warranties and undertakings
The Provider undertakes to the User:
that it will provide the Service in a timely, professional and efficient manner at least in accordance with Good Industry Practice and using adequately trained and qualified personnel;
it will follow its normal procedures and processes and act in accordance with Good Industry Practice to test for viruses contained in or introduced into the Website and act in accordance with Good Industry Practice to prevent viruses from being introduced into or remaining within the Website;
it will at all times comply with the provisions of the Data Protection Legislation;
it has and will maintain in force at all relevant times, all licences, permit and consents necessary to provide the Service and perform its obligations as appropriate in accordance with the terms of the Agreement; and
it is and will at all relevant times remain in compliance with all applicable laws, statutes, regulations and codes of practice including, without limitation, the Financial Services and Markets Act 2000 and the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
The User undertakes to the Provider:
not to re-sell, re-market or otherwise distribute any portion of the Service or offer the Service to others unless specifically permitted by the Provider;
to be solely responsible for any Data submitted by the User in connection with the Service;
to be responsible for, and at its own cost, to:
obtain and maintain all necessary permissions, consents and licences to enable it to use the Service in the countries in which the User accesses the Service; and
comply with all applicable conventions and codes of practice and all applicable laws, regulations, and other similar forms of legislation in all relevant jurisdictions that may relate to the User's use and access of the Service.
The User shall, at its own cost, be responsible for obtaining (or obtaining relief from any requirements for) all regulatory approvals which the User is required to obtain. The Provider shall provide all reasonable assistance to the User in that regard.
The User shall maintain procedures to facilitate reconstruction of any lost Data and the User agrees that the Provider will not be liable under any circumstances for any consequences arising from lost or corrupted Data or files which would not have been lost if such procedures had been maintained.
The User is solely responsible for carrying out all necessary back up procedures for its own benefit to ensure that Data integrity can be maintained in the event of loss of Data for any reason.
The User does not have the right to withhold any part of payment of the Fee due if the Fee is interrupted due to technical problems outside of the Provider's control.
The User undertakes to the Provider that the Data, and its use of the Service, will not include:
sending spam or phishing letters;
open relay mail servers;
open proxy server operation;
email address forging;
IP address forging;
misusing IP such as trade marks or copyright;
contributing to a distributed denial of service attack;
any act that is a prohibited act pursuant to the laws of England and Wales; or
network scanning for, including but not limited to, accessing any network of the Provider in order to gather information;
any TOR Servers;
bandwidth abuse by using torrent software or other scripts for a period peak of 24 hours will reduce to server port speed limitation from 10Gbps > 1Gbps, 1 Gbps > 100Mbps, 100MBps > 10Mbps, depends on the package plan.
Without prejudice to any other provision of these Conditions, if the Provider receives written notice from the User of any breach by the Provider of any of the warranties contained in this condition 7, the Provider must, at its own expense, remedy that breach as soon as reasonably practicable (and, in any event, within 30 days) after receiving that notice, failing which, the User may serve notice on the Provider of its intention to terminate the Agreement, with immediate effect.
The Provider will not be liable for any deficiency in the Service attributable to operator error, deficiencies or errors relating to any third party component not provided by the Provider or third party connectivity necessary to access the Service. When notifying a defect or error the User must (so far as it is able) provide the Provider with one or more documented examples of such defect or error.
The Provider will have no obligation under this condition 7 to the extent a claim is based on use of the Services in a manner inconsistent with the Agreement or as a result of negligence or wilful misconduct of the User.
The Provider will make available to the User all improvements from time to time made available by it to other Users in relation to the Service and the User will be entitled to have such improvements and upgrades incorporated into the Service under these Conditions, where appropriate at a further charge. The User is obliged to accept any such improvements and upgrades and the User accepts that versions of the Services, other than the version current from time to time, will be withdrawn on 3 Business Days' notice from the Provider.
9. Rights and liabilities
The Provider may subcontract the performance of any or all of its duties and obligations under these Conditions as it shall in its absolute discretion consider necessary or expedient, provided that the Provider remains liable for the acts and omissions of those subcontractors as if they were its own.
The liability of the Provider to the User in respect of all other claims, losses or damages, whether arising from contract, tort (including negligence) or otherwise under or in connection with these Conditions, shall in no event exceed the aggregate of all Fees paid by the User in that period and payable for Services delivered by the Provider in that period.
The Provider has no liability for:
any inappropriate or unlawful use of the Service by the User; or
any suspension to the Service pursuant to condition 11.5.
Subject to conditions 9.2 and 9.5, neither Party will be liable to the other Party for:
any indirect, special or consequential loss or damage; or
any loss of profits, turnover, data, business opportunities, anticipated savings or damage to goodwill (whether direct or indirect).
Neither Party limits its liability for:
death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors (as applicable); or
fraud or fraudulent misrepresentation by it or its employees.
The User shall indemnify and hold the Provider harmless against all losses (including without limitation loss of profits, business, goodwill and similar losses), claims loss, damages, liabilities, proceedings, fees and expenses (including without limitation legal fees and expenses) awarded against or incurred by the Provider as a direct result of or in connection with any alleged or actual infringement of any third party's Intellectual Property Rights.
11. Termination and suspension
Without prejudice to its other rights and remedies either Party may, by written notice to the other (Breaching Party), and in the case of condition 11.1.2, the Provider may, by written notice to the User, terminate these Conditions, with immediate effect, upon or at any time following the occurrence of one or more of the following events:
the Breaching Party is in material or persistent breach of any of its obligations under these Conditions and either that breach is incapable of remedy, or the Breaching Party has failed to remedy that breach within 30 Business Days after receiving written notice requiring it to remedy that breach.
The Provider may at any time terminate the Agreement for any reason by giving written notice to the User whereupon the Provider can immediately terminate.
Notwithstanding the termination of the Agreement, the User shall remain liable to pay to the Provider all sums accrued due on or prior to the date of termination.
The User agrees that the Provider may suspend the Service to the User without any notice if:
the Provider reasonably believes that the Service is being used in violation of the Agreement;
the Data is not the property of the User and the User is unable to prove ownership of it;
the Provider reasonably believes that the suspension of the Service is necessary to protect its network or other Users;
the Provider has been requested to stop the Service by a law enforcement agency; or
the User fails to pay its Fee due under the Agreement.
The User agrees to pay the Provider's reasonable reinstatement fees if the Service is reinstated following suspension under this condition 11.
If the Service is suspended under this condition 11 the User will not be entitled to any funds.
Each Party shall keep confidential all information of the other party relating to the Data, the contents of these Conditions, or the business of the other Party. For the purposes of this condition, any Data provided by the User to the Provider shall be deemed to be confidential information of the User and shall not be disclosed save as contemplated by these Conditions and the provisions of the Service. The provisions of this condition shall not apply to:
any information which was in the public domain at the Commencement Date;
any information which comes into the public domain subsequently other than as a consequence of any breach of these Conditions;
any disclosure required by law or otherwise by the provisions of these Conditions;
any information provided by the Provider to its legal advisors in connection with the obtaining of legal advice following a breach by a User of any of the Conditions; or
any Data which a User designates as public information.
The foregoing confidentiality obligations shall remain in full force and effect notwithstanding the expiry or earlier termination of the Agreement.
13. Force Majeure
A Party will not be liable if delayed in or prevented from performing its obligations under these Conditions due to a Force Majeure Event, provided that it:
promptly notifies the other of the Force Majeure Event and its expected duration; and
uses reasonable endeavours to minimise the effects of that event.
If, due to a Force Majeure Event, a Party:
the Parties will, within 20 Business Days, renegotiate these Conditions to achieve, as near as possible, its original commercial intent.
is or is likely to be unable to perform a material obligation; or
is delayed in or prevented from performing its obligations for a continuous period of more than 90 Business Days,
Compliance with law
Each Party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under these Conditions, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither Party shall be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other Party or its employees, agents and representatives.
The Parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
Provisions which by their terms or intent are to survive termination hereof will do so.
The Provider may vary Conditions by 5 Business Days' prior notice to the User.
The Provider will give advance email notice of any change to these terms to the User.
The User may, on receipt of a variation of Conditions, and by no later than 10 Business Days following receipt of such a variation, serve notice on the Provider to terminate the Agreement, such termination to take effect from the 20th Business Day following receipt of the variation.
15 Business Days after the change to these Conditions, and subject to the User not serving notice on the Provider pursuant to condition 14.4.3, the User will be deemed to have consented to any such change.
On receipt by the Provider of the notice pursuant to condition 14.4.3, the Provider agrees to refund to the User, if applicable, certain of the pre-paid Fees paid by the User
The unenforceability of any part of these Conditions will not affect the enforceability of any other part.
Failure by either Party to enforce at any time or for any period any one or more of the terms or conditions of these Conditions shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of these Conditions.
In respect of any indemnity given by either Party under these Conditions, the Party that receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.
Rights of third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999, these Conditions are not intended to and do not give any person who is not a party to them any right to enforce any of the provisions. However, this does not affect any right or remedy of such a person that exists or is available apart from that Act.
15. Governing law
These Conditions and any Agreement are governed by the law of England and Wales.
16. Entire agreement
Any Agreement shall incorporate these Conditions to the exclusion of all others. These Conditions and the Order Form, together with the documents referred to in them, constitutes the entire agreement and understanding between the Parties in respect of the matters dealt with in it and supersedes, cancels and nullifies any previous agreement between the Parties in relation to such matters.
Each of the Parties acknowledges and agrees that in entering into the Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) other than as expressly set out in these Conditions and any document referred to in them. The only remedy available to either Party in respect of any such statements, representation, warranty or understanding shall be for breach of contract under the terms of these Conditions.
Nothing in these Conditions shall operate to exclude any liability for fraud.