Terms of Service - Last Modiﬁed 01/01/2019
These Terms of Services govern the provision of website hosting and associated services provided by Encrypted Laser Limited, a company registered in England, with its registered number 10286642 and its registered address at 1 Rope Walk, Mount Hawke, Truro, TR4 8DW.
Encrypted Laser Limited will be referred to within this document as ('Encrypted Laser') and ('ELHostingServices') and using first-person pronouns.
The Client will be referred to within this document as ('Customer'), ('Client'), ('You'), (`Your'), (‘The Client’), ('User') and using second-person pronouns.
Your use of any website, network or services owned or operated by ELHostingServices, including without limitation www.primenodes.com [and www.elhostingservices.com] (each referred to as ‘this site’ or ‘this website’) signifies Your acceptance and compliance with these Terms of Service. ELHostingServices reserves the right to make changes to this site at any time. You warrant that You have read, understood and accepted the terms of this agreement before continuing use of services offered. ELHostingServices are not to be held at fault if You fail to read or comprehend the following contract made between You and Encrypted Laser. This agreement applies to the use of the website and any service or server provided. You must comply with these terms when accessing our services via a computer, laptop, mobile device, tablet, watch or any other electrical device. You consent to resolve any dispute that You may have with Encrypted Laser Limited, our suppliers or the services offered, in the courts of England. If you are a consumer residing in one of the countries within the United Kingdom, you may bring your claim in the country of your residence – England, Scotland, Wales or Northern Ireland. The laws of England and Wale shall be applicable to this agreement and any disputes arising out of or in connection with it.
If you are a consumer, you have certain legal rights with respect to the purchase of our services. For full details of your legal rights and guidance on exercising them, it is recommended that you contact your local Citizens Advice Bureau or Trading Standards Office. If We do not perform the services with reasonable skill and care, you have the right to request repeat performance or, if that is not possible or done within a reasonable time without inconvenience to you, you have the right to a reduction in price. If the services are not performed in line with information that we have provided about them, you also have the right to request repeat performance or, if that is not possible or done within a reasonable time without inconvenience to you (or if our breach concerns information about us that does not relate to the performance of the services), you have the right to a reduction in price. If for any reason we are required to repeat the services in accordance with your legal rights, we will not charge you for the same and we will bear any and all costs of such repeat performance. In cases where a price reduction applies, this may be any sum up to the full price and, where you have already made payment(s) to us, may result in a full or partial refund. We will normally process refunds due by extending the length of your existing contract with us free of charge. Any such refunds, where applicable, will be issued without undue delay (and in any event within 14 calendar days starting on the date on which we agree that you are entitled to the refund) and made via the same payment method originally used by you unless you request an alternative method. Nothing in these Terms seeks to exclude or limit your legal rights as a consumer. The terms of this paragraph apply to consumer customers only and not to business customers.
1. TOS Updates
- We may, at our sole discretion, alter, improve or otherwise modify our services provided that any such change will not alter the services received by you to your material disadvantage (which would include, but not limited to, the removal of certain features from hosting packages that we offer). You will be notified no later than 14 calendar days in advance of any planned changes and shall receive full details of any action required on your part. No alterations to the service will affect the fee payable by you. We may also take any action necessary to diagnose and/or rectify faults in the hosting hardware or software without any prior notice to you. If such diagnoses or rectification results in an interruption to the provision of the services, you will be notified in advance.
2. Encrypted Laser Limited Responsibilities
- ELHostingServices agrees to furnish services, which are paid for in advance, subject to complete compliance with these Terms of Service. ELHostingServices reserves the right to refuse Services to any potential client and/or to deny renewal of any services to an existing client, at the sole discretion of ELHostingServices.
- To the fullest extent allowed by law, Encrypted Laser provides all services "as is" and "as available" basis, without any form of warranty, whether expressed or implied and disclaims all implied or expressed warranties that the services are merchantable, of satisfactory quality, accurate, fit for a purpose or need, or non-infringing. No verbal or written information given by a representative of ELHostingServices will be regarded as a warranty. If you are a consumer, we have an obligation to provide our services with reasonable skill and care and in line with information supplied to you. We will use reasonable endeavours to ensure that our services are provided to you on a constant, uninterrupted basis. Where the service is unavailable for more than 1 hour we will contact you and will provide details of the interruption, or, as a minimum, inform you that the problem is being investigated. Following the event of downtime, reimbursements will be provided in accordance with our SLA for the service purchased. Where the provision of the services is interrupted through the fault of any third party, we shall bear no responsibility or liability.
- ELHostingServices, our affiliates, and our suppliers shall not be liable for any indirect, special, incidental, consequential or exemplary losses arising from Your use of or inability to use or access any services provided. These exclusions apply to any claims for lost profits, data loss, loss of goodwill, computer breakdown or malfunction, or any other business damages or losses, even if ELHostingServices knew or should have known of the possibility of such damages. Nothing in this agreement excludes our liability for death of personal injury resulting from our negligence or that of our employees or agents. Nothing in this agreement excludes our liability for fraud or fraudulent misrepresentation. If you are a consumer, we do not exclude our liability for any loss resulting from our failure to use reasonable skill and care, from our gross negligence, or from our wilful misconduct.
- You shall fully indemnify us against all costs, expenses, liabilities, losses, damages and judgements that we may incur or be subject to as a result of any of the following:
- Your misuse of the service;
- Your breach of these Terms and/or the Agreement;
- Your negligence or other act of default; and/or
- The activities of third parties conducted on or through your client website.
- ELHostingServices is not to be held liable for backing up The Client's information or service data. If data loss occurs, The Customer will be entirely responsible for their data and no refunds will be issued if a loss of information does occur. The Customer agrees that failure to pay for their service, or breach of or non-compliance with the Terms and Conditions will result in a permanent service termination, resulting in their data being wiped irrevocably from the system causing full data-loss.
3. Payments, Invoicing & Chargebacks
- Fees for our services are detailed on the product page for the corresponding server and are confirmed to you in writing following our acceptance of your order and in any invoice that we issue to you. We are free, at any time, to change the price of our services but you will not be subject to any additional charges during a period of service provision for which you have already paid resulting from a price increase, nor to any refunds resulting from a price decrease. All fees payable to us must be paid in full, without set off or deduction. We reserve the right to suspend the service or terminate the agreement if fees are not paid on or before the due date, as further outlined in this clause 3 and we shall have the right to charge interest on any amounts overdue to us at the rate of 8% above Bank of England's Offical Borrowing Rate.
- You agree to pay our invoices within 5 days from the date of each of the invoice. Invoices that are not paid on or before the due date will trigger the related service(s) being suspended and inaccessible to the client. Data stored on a client's services will not be available to the client until reconnection is established or alternative arrangements are made to the sole satisfaction of Encrypted Laser Limited. Services that are suspended due to non-payment or charge-back are subject to their data being irrevocably destroyed 7 days from suspension/chargeback date. Encrypted Laser Limited is not responsible for data integrity, regardless of circumstance.
- Subject to the consumer rights mentioned above, no services rendered by ELHostingServices are eligible for a refund. Prepayments and account credit are ineligible to be refunded or transferred to alternate accounts. If a transaction which is deemed valid by ELHostingServices, and validated by our Terms of Service, is disputed to a financial institution by performing a charge-back, the client agrees to pay an 'Administrative Fee' of £200 Ex VAT (GBP), or equivalent, in addition to the original amount of funds that were reclaimed to cover the cost of research and staff time that was required to respond to the dispute.
- All services provided by ELHostingServices, excluding Administrative Fees, Remote Hands Fees, Hardware Purchase and Installation Services, are cyclic services with the subscription billing cycle configured on checkout. ELHostingServices will automatically invoice and attempt to capture the payment on the due date of the invoice. Encrypted Laser will not issue a refund under any circumstance for subsequent payments after the original purchase under any circumstance. Domains can be automatically charged up to 31 days before the due date of the domain to ensure renewal success. If you are a consumer who paid for the services by mistake and notify us within 72 hours of the order of our services, we will refund the paid amount to you within 14 calendar days from our confirmation, provided that no part of our services has actually been used by you and the provisioning details have not been provided to you.
- You agree to that you may be required to submit to identity verification measures, designed for both the security of the client as well as the security of ELHostingServices. Standard identity verification means may include two forms of government-issued identification, as well as a front and back copy of the credit card used for payment, email verification for the address on the PayPal account, as well as a copy of a utility bill or bank statement with the billing address. In some circumstances, additional identity verification may be required in addition to the previously listed forms. You warrant and accept that proof of identity may be required proving that they are at least 16 years old. If You are between the ages of 16 and 17, You must have appropriate permission from a parent or legal guardian to use the services provided by ELHostingServices. Photo ID and signature may be required from the account holder and/or parent or legal guardian. Where we process special categories of data we will ask for your prior consent.
- If an outstanding colocation renewal, de-racking or return of hardware invoice remain unpaid for longer than 14 days past the due date specified, the title in any such hardware that you might have provided in connection with our colocation services shall immediately vest in Encrypted Laser LTD and we reserve the right, at our absolute and sole discretion, to sell or discard of any such hardware.
- If the listed price for a service is reduced due to an active promotion or high stock, existing services cannot be reduced in price or amended to match the promotion pricing amount. You cannot order a new service with the new price to replace an existing or similar specification server, and Encrypted Laser Limited reserves the right to suspend, terminate or place a charge on the Clients account of the difference in the event that you have attempted to do so. If a new service is ordered, you cannot cancel any existing services within 60 days. Doing so will deem the order to be replacing an existing server.
- All prices listed in GBP within these terms of service and publicly listed on our website are inclusive of VAT.
4. Cancellations & Early Termination of Contract
- The initial period of service provision shall commence on the date confirmed with our acceptance of your order and continue for the duration specified in our acceptance of your order. All subsequent period of service provision shall remain subject to these Terms (as may be changed by us) unless expressly stated otherwise. ELHostingServices require a 7 day notice of cancellation before the billing renewal date for the upcoming billing cycle. Cancellation requests must be created using the designated section of the ELHostingServices Client Portal (https://account.primenodes.com). Cancellation requests through a ticket, Discord or any other external communication sources is not a valid method of cancellation.
- If a cancellation request is not provided within 7 days, the server will still be cancelled however a termination fee of £50 Ex VAT (GBP), or equivalent, will be applied to the account and must be paid within 30 days to avoid full account closure. If The Client fails to pay the fee within the allocated time, a full account closure will be issued and any remaining services will be terminated.
- The User is aware that cancelling a service or downgrading it does not entitle them to a refund under any condition or constitute a waiver of this contract. A 7 day notice before the upcoming billing date is also required for any downgrades.
- The Customer is aware that once a cancellation request has been processed, all data contained on the service has been irrevocably removed and is no longer able to be retrieved.
- If you are a consumer you have the right to cancel this Agreement within 14 days from the day this Agreement has been concluded. It is agreed between ELHostingServices and The Client that access to a service may commence before the end of that cancellation period, and then The Client who is a consumer will lose the right to cancel from the date that ELHostingServices provides The Client with the access details of the Service(s). In lieu of the consumer right to cancel we offer a limited refund option as outlined in clause 3.3 of this agreement.
- If The Customer has signed a longer-term contract for a Virtual Private Server - ELHostingServices requires a 14 day notice of a request to perform an early termination of the contract before the next due date as per the set billing cycle, submitted via support ticket to the Administration department. All outstanding fees up until the end of the longer-term contract should be paid by you immediately upon such cancellation. We may, at our absolute and sole discretion, agree on a discount to such early termination fee, to be determined by Encrypted Laser to cancel the contract early. Dedicated Servers & Colocation are exempt from this policy, and there is no option for early contract termination.
- Failure to pay an invoice linked to a service that is under a 1 year, 2 year or 3 year contract (as chosen by you at the time of ordering our service) within 7 days of the invoice due date will invoke a breach of contract, Encrypted Laser Limited then reserves the right to terminate and reprovision the service(s) linked to the contract as per 3.1. An invoice will be issued for the full total cost of the remainder of the contract for all service(s) affected by the terminated, payable by The Client within 14 days. If non-payment occurs, The Client agrees that Encrypted Laser Limited will pass all relevant information to a debt recovery service for collection.
- We may terminate this agreement if we, in our reasonable opinion, have concerns about our customer’s ability to pay, such as where a receiver is appointed, an administration order (within the meaning of the Insolvency Act 1986 is issued, a bankruptcy order is made (in case of an individual or a firm), a company goes into liquidation or similar actions.
- The right to terminate this agreement shall not affect any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
- Upon the termination of this agreement for any reason:
- We shall ensure the complete and secure removal of your client website and all related material from the hosting hardware;
- Any sum owing by either party to the other under this agreement shall become due and payable immediately;
- All clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this agreement shall remain in full force and effect;
- Termination shall not affect or prejudice any right to damages or other remedy; and
- Each party shall immediately cease to use any confidential information belonging to the other party, and shall immediately return to the other party any documents in its possession or control which contain or record any confidential information of the other party.
- Encrypted Laser does not guarantee that there will not be any errors with the payment when The User attempts to purchase our services. If an error occurs during the process, The User is expected to contact ELHostingServices immediately through support ticket assigned to the Administration department.
- In the event fraud is discovered, the fraudulent account and all related accounts, are subject to immediate suspension or termination at the sole discretion of ELHostingServices. All information available to ELHostingServices, including IP address history, user information, service information and service network logs be submitted to local authorities, ActionFraud as well any financial institutions involved. All fraudulent orders are investigated, and all fraudulent clients will be prosecuted to the fullest extent of the law, whether within the United Kingdom, or abroad.
6. Support, Remote Hands & Communication
- ELHostingServices provide hardware support related to each direct client's service functioning and do not offer software support of any kind, including any support/troubleshooting for the software items chosen from the order form. ELHostingServices only ensures the correct default installation of any software item selected from the order form, and in no way assumes liability for the configuration of any of the installed software.
- Encrypted Laser is not responsible for any downtime associated with the incorrect configuration of operating system kernels, network configurations or any software, whether installed by ELHostingServices or the client. Advanced software support (including kernel configuration) or installation of an unsupported OS is available upon request and is chargeable as standard remote hands cost for the time taken to carry out such request.
- ELHostingServices does not permit any abusive or threatening communication towards staff members. If The Client sends any communication to a member of staff that is deemed to be abusive or threatening, the employee reserves the right to forward communication logs to the Administration Team pending a review and at its sole discretion, Encrypted Laser can issue a suspension or termination in such event. If an account closure, suspension or termination is issued, a refund will not be provided.
- Remote hands in every location are charged at a flat rate of £140 Ex VAT (GBP), or equivalent, per hour billable in 30-minute increments. IPMI power cycles, OS reinstalls, iKVM console and network monitoring are provided free of charge for all dedicated servers and colocation packages.
- Colocation customers are responsible for covering the cost of all shipping charges that are associated with the return of hardware from the datacenter that it is located in. A mandatory one (1) hour remote hands fee will be associated with the de-racking and boxing up of the server that is required to be paid before collection can be made.
- Unescorted datacenter access is only permitted for clients with colocation space of 1 rack or greater, entry requires pre-authorisation of individuals visiting and advanced notice of 1 hour to be provided. ID verification will be required on access to the site.
- Dedicated servers that are deployed outside of our hub location in London that are on a 1-year contract or longer are subject to remote hands fee for upgrades or downgrades of components, charged at 30-minute increments.
- The Customer agrees to not perform any changes to the IPMI or BIOS configuration on a dedicated server. Any and all modifications to IPMI configuration or BIOS settings on a dedicated server are deemed to be unauthorised and in direct violation to this terms of service. Upon discovery of setting tampering, a technician will take the service offline to restore settings and a fine of £100 Ex VAT (GBP), or equivalent, plus one (1) hour remote hands fee will be issued to the customer that must be paid before access to the service is restored. Failure to pay the fine will lead to service termination after 7 days.
7. Acceptable Use - Abuse, Spam, Bulk Email Policy & Copyright/IP Violations
- Professional Web Hosting is intended for the use of website content only such as HTML, PHP, CSS and JS ﬁles; any additional content must be linked on a public facing web page. Web hosting is not designed to be used for ﬁle/data storage. ELHostingServices reserves the right to determine any improper or inappropriate use of any content which may result in immediate account suspension. The decision shall rest solely with ELHostingServices at its discretion. Downloadable ﬁles and media must follow the following limitations:
- No more than five (5) GB of a web hosting service can be allocated to music, video or other media ﬁles including but not limited to .aac, .avi, .mp3, .mp4, .mpeg, .jpg, .png, .gif ﬁles;
- No more than five (5) GB of a web hosting service may be designated to any ﬁle and disk image ﬁles containing the contents or structure of a data storage device;
- No more than five (5) GB of a web hosting service may be allotted to Executable ﬁles or any other ﬁle which are the result of compiling a program; and
- No more than five (5) GB of a web hosting service may be assigned to compressed files;
- Any attempt to exploit any service not in accordance with this agreement or for malicious purposes in any way is grounds for immediate termination of an account and its services.
- The User will not host any material which is abusive, vulgar, hateful, harassing, obscene, profane, threatening, invasive of a person's privacy, or otherwise in violation of any UK law. Our abuse department will locate abusive servers based on public blacklist monitors, abuse reporting from external networks, and other means. If any unacceptable material is found on a site, linked to by a site or hosted on any service provided by ELHostingServices, The Client will have an account limitation issued, which The Customer will need to resolve within twenty-four (24) hours with a member of staff assigned to the report. Examples of the unacceptable material include, but are not limited to:
- Fraudulent activities of any description;
- Copyrighted material without explicit approval;
- Proxy scripts, or services used for malicious intentions;
- Racist, hateful, or harassing content;
- Hacking related information or services;
- SPAM of any kind;
- Digital currency mining;
- File sharing/File download proxies;
- Pharmacy or pharmacy-like services;
- Stolen content;
- Betting/Gambling sites;
- Software licenses, license generation software, software "cracks" or stolen media;
- Computer viruses/malicious software of any kind; and
- Network/Computer scanning or attack software.
- ELHostingServices are not to be held responsible for any downtime caused by a DoS or DDoS attack. ELHostingServices will offer a best effort attempt to stop all incoming DDoS or DoS attacks by utilising datacenter provided DDoS protection hardware, however, will not stand in the way of attacks if the service is provoking attacks which will lead to an IP null route.
- If a service is found to be performing DDoS or malicious attacks on other online users, an account limitation will be issued and the offending service will be suspended immediately. Incoming and Outgoing DoS and DDoS attacks are taken seriously, with any information collected during the offence being forwarded to the National Cyber Crime Unit for further investigation of any attack. Customers participating in outgoing DDoS or amplification attacks will have their service traffic reviewed and logged, with a limitation being placed on the account to attempt to verify if illegal behaviour is taking place or if the node in question is compromised. The Client agrees that all information about an incoming or outgoing attack that is collected by ELHostingServices during an investigation can be included in the investigatory report submitted to the NCCU if one is generated.
- ELHostingServices reserves the right to deny mail delivery from any servers hosted on our network if they are believed to be involved in SPAM or SPIM activities. If ELHostingServices receives a report or otherwise becomes aware of abuse-related activities active on a server on our network, ELHostingServices will identify the server the abuse is relating to. After identification is completed, an account limitation will be issued to the user who rents the server or IP range, with information regarding the abuse such as logs describing the abuse and an explanation of what abuse took place.
- An account limitation serves as notification that our abuse department has received reports of abuse originating from the server. ELHostingServices require a response from the client to ALL account limitations within forty-eight (48) hours of the ticket being opened. If a response is not received within forty-eight (48) hours, a suspension will be placed on the service, abusive port or IP range assigned to the server. If a response has not been received to an account limitation within 7 days of being opened, the service is eligible for termination or may be completely disabled until ELHostingServices receive a response.
- ELHostingServices reserve the right to refuse services to any client whose account(s) have been fined or terminated for abuse-related activities. If an IP range or IP address has been placed on a blacklisted as a result of undue abuse reports, ELHostingServices reserves the right to issue a fine of £200 Ex VAT (GBP) or equivalent, to the client and immediately terminate the service the IP range is assigned to.
- ELHostingServices handle all copyright and other intellectual property rights complaints in relation to potential violations very seriously and will thoroughly examine each accusation received. An account limitation will be created upon receipt of a complaint. If a response is not received after twenty-four (24) hours, the service in question will be suspended. After 7 days of being suspended and the issue having not been resolved, the services in question will be terminated with an Abuse Charge of £200 Ex VAT (GBP) or equivalent, will be placed on the account. Users who violate this policy and fail to resolve the situation within twenty-four (24) hours agree that in addition to these administrative penalties, they will pay Research Fees' not to exceed £50 Ex VAT GBP, or equivalent, per hour that ELHostingServices personnel must spend to investigate the matter, to be charged only if claims are found to be valid.
- You undertake to ensure that any all e-commerce conducted through any client websites comply with all relevant laws in force at the relevant time including, but not limited to, the Distance Selling Regulations 2000 and the EU E-Commerce Directive 2000.
- You shall be responsible for all activity relating to any client website.
- You must ensure that we are furnished with any information reasonably required to provide the service in a timely manner.
- You shall not acquire any rights in or over any intellectual property rights subsisting in any materials and/or property owned by us or by any third parties (where, for example, we are using materials under licence). Any materials owned by us used by you in the normal course of the service are used under a non-exclusive licence only to the extent required in order for us to provide the service to you.
- We shall not acquire any rights in or over any intellectual property rights subsisting in any materials and/or property owned by you or by any third parties (where, for example, you are using materials under licence). Any such rights are used under a non-exclusive licence only to the extent required in order for us to provide the service to you.
- You hereby agree to fully indemnify us against all costs, expenses, liabilities, losses, damages, claims and judgements that we may incur or be subject to as a result of the infringement of any intellectual property rights arising out of your failure to obtain the necessary rights and permissions from third parties with respect to any materials used by you as hosted by us under this agreement.
- Your use of any and all hosting software that we may from time to time provide including but not limited to [insert details] is under a non-exclusive licence and may be used only in accordance with this agreement and only for the duration of the service. You shall not gain any form of ownership rights over any hosting software or the intellectual property rights related to it.
- Where we provide access to third party software, you agree to be bound by any licence agreements relating to such software upon your first use of that software. You may not under any circumstances: a) attempt to copy any such hosting software; b) attempt to reverse-engineer, decompile, disassemble or in any other manner derive source code from any such hosting software; c) write or otherwise create any derivative software that is based in whole or party on any such hosting software; or d) sell, lease, transfer, sub-licence, or in any other way treat any such hosting software as your property.
8. Bandwidth Usage & Overages
- On limited bandwidth services, the Client agrees to pay any and all overage bandwidth charges accrued on their account from the previous billing cycle. Bandwidth overage charges are billed per gigabyte at a rate of £0.05 (five pence) over the allotted bandwidth on the service. ELHostingServices reserves the right to suspend any account which does not pay overage bandwidth charges within fifteen (15) days.
- ELHostingServices is not responsible for spikes in bandwidth that are caused by a client's service for any reason. Client assumes liability for all bandwidth to and from their services.
9. Electronic Notifications
- Your affirmative act of using the Services constitutes Your electronic signature to these Terms of Service and Your approval to enter into agreements with ELHostingServices electronically. You also agree that ELHostingServices may send to You in digital form any privacy or other notices, disclosures, reports, records, communications or other records regarding the Services. ELHostingServices can send You electronic Notices to the email address that You provided to ELHostingServices during the initial sign up. The delivery of any Notice from ELHostingServices is effective when communicated by ELHostingServices, regardless of whether You read the Notice when You receive it or whether You are provided with the service details. You can revoke Your consent to receive Notices electronically by cancelling or discontinuing Your use of the applicable Services. All contracts performed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed agreement.
10. Data Protection
- In so far as required both parties agree that they will comply with all applicable requirements of the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 and any other applicable data protection laws (“the Data Protection Legislation”). This clause 10 is in addition to and does not relieve, remove or replace a party’s obligations under the Data Protection Legislation.
- The parties acknowledge that for the purposes of the Data Protection Legislation, you, the customer, is the data controller and we are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The personal data that we will have access to in order to provide our services under this agreement may include but is not limited to such categories of data subjects as your customers, employees, subcontractors and other parties’ details, including names, contact information, and other types of personal data as may be necessary for the provision of services by us and for the duration of the provision of our services.
- In addition to your promises in clause 10.1 you agree to ensure that you have all necessary appropriate consents and notices in place, as well as a lawful basis to enable lawful transfer of the personal data to us for the duration and purposes of this agreement.
- In addition to our promises in clause 10.1, we, as a data processor undertake to process personal data in connection with our performance of our obligations under this agreement as follows:
- Process personal data only on your instructions unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us to process personal data (“Applicable Laws”). Where we are relying on laws of a member of the European Union or European Union laws as the basis for processing personal data, we will notify you, if possible, of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
- Ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result and having regard to the state of technological development and the cost of implementing any measures;
- Ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- Not transfer any personal data outside of the European Economic Area unless the following conditions are fulfilled: a) we or you have provided appropriate safeguards in relation to the transfer; b) we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and c) we comply with your reasonable instructions in respect of any such processing.
- Assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with our obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- Notify you without undue delay on becoming aware of a personal data breach;
- Maintain records where appropriate to demonstrate our compliance with this clause (and allow for audits as may be agreed between the parties).
- You consent to us appointing third party processors, including [insert company names], under this agreement. We confirm that we have entered or (as the case may be) will enter with each of the third party processors into a written agreement substantially on the terms similar to those set out in this clause 10. As between you and us, we shall remain full liable for all acts or omissions of any third party processor appointed by us in accordance with this clause 10.
- We may revise this clause to replace it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced).
- Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 10.
- This contract, policies, rules and guidelines posted on our website constitute the entire contract between You and ELHostingServices and supersede all previous or contemporaneous written or oral agreements. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a method consistent with applicable law to reflect, as tightly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
- Except as authorised in writing by the other party, each party shall, at all times during the term of this agreement and for 5 years after its termination;
- Keep confidential all confidential information of the other party;
- Not disclose any confidential information of the other party to any other party;
- Not use any confidential information of the other party for any purpose other than as contemplated by and subject to this agreement;
- Not to make any copies of, record in any way or party with possession of any confidential information of the other party; and
- Ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does not act which, if done by that party, would be a breach of this clause 11.2.
- Either party may disclose any confidential information of the other party to:
- Any sub-contractor or supplier of the party;
- Any governmental or other authority or regulatory body; or
- Any employee or officer of that party or of any other aforementioned persons, parties or bodies;
- To such extent only as is necessary for the purposes contemplated by this agreement, or as required by law. In each case that party shall first inform the person, party or body in question that the confidential information is confidential and obtaining and submitting to the other party a written confidentiality undertaking.
- Either party may use any confidential information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the acceptance of this agreement, or at any time after that date becomes public knowledge through no fault of the receiving party.
- The provisions of the clauses 11.2 and 11.3 shall continue in force in accordance with their terms, notwithstanding the termination of this agreement for any reason.
- Subject to any obligations by you to pay for our services, neither party to this agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
- No failure or delay by either party in exercising any of its rights under this agreement shall be deemed to be a waiver of that right.
- No part of this agreement is intended to apply to any third party and the Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement to the fullest extent possible.
- Subject to clause 11.7, this agreement shall continue and be binding on the transferee, successors and assigns of either party as required.
- All notices or communications shall be given to us by [insert details].
- In the event that one or more of the provisions of this agreement is found to be unlawful, invalid or otherwise unenforceable, that/ those provision(s) shall be deemed severed from the remainder of this agreement. The remainder of the agreement shall be valid and enforceable.
- You agree that the applicable law and jurisdiction shall be as stated at the beginning of these Terms.