Terms of service
- In this Agreement:
- "Access Credentials" means the usernames, passwords and
other credentials enabling access to the Hosted Services, including both access
credentials for the User Interface and access credentials for the API;
- "Agreement" means this agreement including any
Schedules, and any amendments to this Agreement from time to time;
- "API" means the application programming interface for
the Hosted Services defined by the Provider and made available by the Provider to the
- "Charges" means the following amounts:
- the amounts specified in Section 2 of Schedule 1 (Hosted Services particulars);
- "Data Protection Laws" means all applicable laws
relating to the processing of Personal Data;
- "Documentation" means the documentation for the Hosted
Services produced by the Provider and delivered or made available by the Provider to the
- "Effective Date" means the date of execution of this
- "Force Majeure Event" means an event, or a series of
related events, that is outside the reasonable control of the party affected (including
failures of the internet or any public telecommunications network, hacker attacks,
denial of service attacks, virus or other malicious software attacks or infections,
power failures, industrial disputes affecting any third party, changes to the law,
disasters, explosions, fires, floods, riots, terrorist attacks and wars);
- "Hosted Services" means subzero.cloud, as specified in
the Hosted Services Specification, which will be made available by the Provider to the
Customer as a service via the internet in accordance with this Agreement;
- "Hosted Services Specification" means the specification
for the Platform and Hosted Services set out in Section 1 of Schedule 1 (Hosted Services
particulars) and in the Documentation;
- "Intellectual Property Rights" means all intellectual
property rights wherever in the world, whether registrable or unregistrable, registered
or unregistered, including any application or right of application for such rights (and
these "intellectual property rights" include copyright and related rights, database
rights, confidential information, trade secrets, know-how, business names, trade names,
trade marks, service marks, passing off rights, unfair competition rights, patents,
petty patents, utility models, semi-conductor topography rights and rights in designs);
- "Personal Data" has the meaning given to it in the Data
- "Platform" means the platform managed by the Provider
and used by the Provider to provide the Hosted Services, including the application and
database software for the Hosted Services, the system and server software used to
provide the Hosted Services, and the computer hardware on which that application,
database, system and server software is installed;
- "Schedule" means any schedule attached to the main body
of this Agreement;
- "Services" means any services that the Provider provides
to the Customer, or has an obligation to provide to the Customer, under this Agreement;
- "Term" means the term of this Agreement, commencing in
accordance with Clause 3.1 and ending in accordance with Clause 3.2; and
- "User Interface" means the interface for the Hosted
Services designed to allow individual human users to access and use the Hosted Services.
- This document was created using a template from Docular (https://docular.net).
- You must retain the above credit. Use of this document without
the credit is an infringement of copyright. However, you can purchase from us an equivalent
document that does not include the credit.
- This Agreement shall come into force upon the Effective Date.
- This Agreement shall continue in force indefinitely, subject to
termination in accordance with Clause 13 or any other provision of this Agreement.
- The Provider shall provide, or shall ensure that the Platform will
provide, to the Customer upon the Effective Date the Access Credentials necessary to enable the
Customer to access and use the Hosted Services.
- The Provider hereby grants to the Customer a worldwide, non-exclusive
licence to use the Hosted Services by means of the User Interface and the API in accordance with
the Documentation during the Term.
- Except to the extent expressly permitted in this Agreement or required
by law on a non-excludable basis, the licence granted by the Provider to the Customer under
Clause 4.2 is subject to the following prohibitions:
- the Customer must not sub-license its right to access and use the Hosted Services;
- the Customer must not make any alteration to the Platform, except as permitted by the
- the Customer must not conduct or request that any other person conduct any load testing
or penetration testing on the Platform or Hosted Services without the prior written
consent of the Provider.
- The Customer shall implement and maintain reasonable security measures
relating to the Access Credentials to ensure that no unauthorised person or application may gain
access to the Hosted Services by means of the Access Credentials.
- The Provider shall use all reasonable endeavours to maintain the
availability of the Hosted Services to the Customer at the gateway between the public internet
and the network of the hosting services provider for the Hosted Services, but does not guarantee
- For the avoidance of doubt, downtime caused directly or indirectly by
any of the following shall not be considered a breach of this Agreement:
- a Force Majeure Event;
- a fault or failure of the internet or any public telecommunications network;
- a fault or failure of the Customer's computer systems or networks;
- any breach by the Customer of this Agreement; or
- scheduled maintenance carried out in accordance with this Agreement.
- The Customer must not use the Hosted Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
- For the avoidance of doubt, the Customer has no right to access the
software code (including object code, intermediate code and source code) of the Platform, either
during or after the Term.
- The Provider may suspend the provision of the Hosted Services if any
amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the
Provider has given to the Customer at least 30 days' written notice, following the amount
becoming overdue, of its intention to suspend the Hosted Services on this basis.
- The Provider may from time to time suspend the Hosted Services for the
purposes of scheduled maintenance to the Platform.
No assignment of Intellectual Property Rights
- Nothing in this Agreement shall operate to assign or transfer any
Intellectual Property Rights from the Provider to the Customer, or from the Customer to the
- The Customer shall pay the Charges to the Provider in accordance with
- All amounts stated in or in relation to this Agreement are, unless the
context requires otherwise, stated inclusive of any applicable value added taxes.
- The Provider may elect to vary any element of the Charges by giving to
the Customer not less than 30 days' written notice of the variation
- The Provider shall issue invoices for the Charges to the Customer in
advance of the period to which they relate.
- The Customer must pay the Charges to the Provider within the period of
30 days following the issue of an invoice in accordance with this Clause 8, providing that the
Charges must in all cases be paid before the commencement of the period to which they relate.
- The Customer must pay the Charges by debit card, credit card, direct
debit, bank transfer or cheque (using such payment details as are notified by the Provider to
the Customer from time to time).
- All Payments are non-refundable.
- The Provider warrants to the Customer that:
- the Provider has the legal right and authority to enter into this Agreement and to
perform its obligations under this Agreement;
- the Provider will comply with all applicable legal and regulatory requirements applying
to the exercise of the Provider's rights and the fulfilment of the Provider's
obligations under this Agreement; and
- the Provider has or has access to all necessary know-how, expertise and experience to
perform its obligations under this Agreement.
- The Provider warrants to the Customer that:
- the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware,
adware and other malicious software programs; and
- the Platform will incorporate security features reflecting the requirements of good
- The Customer warrants to the Provider that it has the legal right and
authority to enter into this Agreement and to perform its obligations under this Agreement.
- All of the parties' warranties and representations in respect of the
subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent
permitted by applicable law, no other warranties or representations concerning the subject
matter of this Agreement will be implied into this Agreement or any related contract.
Acknowledgements and warranty limitations
- The Customer acknowledges that complex software is never wholly free
from defects, errors and bugs; and subject to the other provisions of this Agreement, the
Provider gives no warranty or representation that the Hosted Services will be wholly free from
defects, errors and bugs.
- The Customer acknowledges that complex software is never entirely free
from security vulnerabilities; and subject to the other provisions of this Agreement, the
Provider gives no warranty or representation that the Hosted Services will be entirely secure.
- The Customer acknowledges that the Hosted Services are designed to be
compatible only with that software and those systems specified as compatible in the Hosted
Services Specification; and the Provider does not warrant or represent that the Hosted Services
will be compatible with any other software or systems.
- The Customer acknowledges that the Provider will not provide any
legal, financial, accountancy or taxation advice under this Agreement or in relation to the
Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the
Provider does not warrant or represent that the Hosted Services or the use of the Hosted
Services by the Customer will not give rise to any legal liability on the part of the Customer
or any other person.
Limitations and exclusions of liability
- Nothing in this Agreement will:
- limit or exclude any liability for death or personal injury resulting from negligence;
- limit or exclude any liability for fraud or fraudulent misrepresentation;
- limit any liabilities in any way that is not permitted under applicable law; or
- exclude any liabilities that may not be excluded under applicable law.
- The limitations and exclusions of liability set out in this Clause 11
and elsewhere in this Agreement:
- are subject to Clause 11.1; and
- govern all liabilities arising under this Agreement or relating to the subject matter of
this Agreement, including liabilities arising in contract, in tort (including
negligence) and for breach of statutory duty, except to the extent expressly provided
otherwise in this Agreement.
- Neither party shall be liable to the other party in respect of any
losses arising out of a Force Majeure Event.
- The Provider shall not be liable to the Customer in respect of any
special, indirect or consequential loss or damage.
- The liability of each party to the other party under this Agreement in
respect of any event or series of related events shall not exceed the greater of:
- $250; and
- the total amount paid and payable by the Customer to the Provider under this Agreement
in the 12 month period preceding the commencement of the event or events.
Force Majeure Event
- If a Force Majeure Event gives rise to a failure or delay in either
party performing any obligation under this Agreement (other than any obligation to make a
payment), that obligation will be suspended for the duration of the Force Majeure Event.
- A party that becomes aware of a Force Majeure Event which gives rise
to, or which is likely to give rise to, any failure or delay in that party performing any
obligation under this Agreement, must:
- promptly notify the other; and
- inform the other of the period for which it is estimated that such failure or delay will
- A party whose performance of its obligations under this Agreement is
affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the
Force Majeure Event.
- Either party may terminate this Agreement by giving to the other party
at least 30 days' written notice of termination.
- Either party may terminate this Agreement immediately by giving
written notice of termination to the other party if the other party commits a material breach of
- Either party may terminate this Agreement immediately by giving
written notice of termination to the other party if:
- the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due;
- is or becomes insolvent or is declared insolvent; or
- convenes a meeting or makes or proposes to make any arrangement or composition
with its creditors;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or
similar is appointed over any of the assets of the other party; or
- an order is made for the winding up of the other party, or the other party passes a
resolution for its winding up.
Effects of termination
- Upon the termination of this Agreement, all of the provisions of this
Agreement shall cease to have effect, save that the following provisions of this Agreement shall
survive and continue to have effect (in accordance with their express terms or otherwise
indefinitely): Clauses 1, 4.8, 8.2, 11, 14 and 15.
- Except to the extent that this Agreement expressly provides otherwise,
the termination of this Agreement shall not affect the accrued rights of either party.
- No breach of any provision of this Agreement shall be waived except
with the express written consent of the party not in breach.
- If any provision of this Agreement is determined by any court or other
competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement
will continue in effect. If any unlawful and/or unenforceable provision would be lawful or
enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of
the provision will continue in effect (unless that would contradict the clear intention of the
parties, in which case the entirety of the relevant provision will be deemed to be deleted).
- This Agreement may not be varied except by a written document signed
by or on behalf of each of the parties.
- Neither party may without the prior written consent of the other party
assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or
obligations under this Agreement.
- This Agreement is made for the benefit of the parties, and is not
intended to benefit any third party or be enforceable by any third party. The rights of the
parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or
relating to this Agreement are not subject to the consent of any third party.
- Subject to Clause 11.1, this Agreement shall constitute the entire
agreement between the parties in relation to the subject matter of this Agreement, and shall
supersede all previous agreements, arrangements and understandings between the parties in
respect of that subject matter.
- This Agreement shall be governed by and construed in accordance with
- The courts of Romania shall have exclusive jurisdiction to adjudicate
any dispute arising under or in connection with this Agreement.