Dedicated and Grid Server Terms & Conditions
KubeServers is a provider of Internet related services such as dedicated servers, and IP transit services, and the Client may from time to time require such services. This Agreement sets out the terms which have been agreed between KubeServers and the Client for the provision of such Internet services and shall be supplemented from time to time by Schedules setting out specific details of such services requested by the Client.
DEFINITIONS
1.1 References to “we”, “KubeServers”, “us” and “our” are references to HostGrid Ltd t/a KubeServers registered in England under company number 12922787.
In this Agreement, unless the context requires otherwise, the following words shall have the following meanings:
“Abuse Complaint” is a complaint, either by KubeServers or a third party, about the Client’s use of the Services;
“Bandwidth” is the data transferred by the Client using the Services to other equipment on the Internet. For the avoidance of doubt, this includes transfer of data between the Services and other equipment hosted by KubeServers;
“Control Panel” is the online portal that the Client may access at https://client.kubeservers.co.uk or another address advised to the Client by KubeServers from time to time;
“Engineer” is defined as a KubeServers member of staff with competence in repairing or replacing the Hardware;
“GDPR” refers to the General Data Protection Regulation (EU Regulation 2016/679);
“Hardware” means the servers, firewalls, equipment, cabling and systems provided by KubeServers in connection with the Services;
“IP” means Internet Protocol;
“IPRs” means any and all intellectual property rights including without limit any and all patents, design rights, database rights, copyright, know-how, moral rights, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;
“Latency” is defined as the mean time for a packet to be transmitted between two points in the KubeServers Network;
“Network Availability” is defined as the percentage of time the KubeServers Network is contactable over a calendar month;
“Network Unavailable Time” is when a portion or the entirety of the KubeServers Network is unavailable, and this affects the provision of the Services to the Client. Network Unavailable Time excludes Scheduled Maintenance, and those situations defined in the ‘Exclusions’ section of the Network Service Level Agreement;
“Notified Maintenance” means essential maintenance to be carried out by KubeServers in relation to the Services, Hardware and/or Software, which has been notified to the Client;
“Packet Loss” is the number of packets, as a percentage, that do not reach their destination within the KubeServers Network;
“Personal data” is defined by the GDPR as any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier.
“Power Availability” is defined as the percentage of time the power is available over a calendar month;
“Quality” refers to two metrics, Latency of the KubeServers Network and Packet Loss within the KubeServers Network;
“KubeServers Network” refers to KubeServers’s routers, switches, cabling and other network equipment located in the UK responsible for connecting servers hosted by KubeServers to the outside world;
“Response Time” is defined as the time from the Client making a Support Call to an Engineer commencing work on the Services;
“Schedule” means the schedules and/or Internet/telephone orders to this Agreement from time to time, describing the Internet related services requested by the Client including without limit details of the requested Bandwidth, Hardware and Software;
“Scheduled Maintenance” is defined as maintenance necessary for the continued provision of service, including but not limited to network upgrades and security updates;
“Services” means the Internet related services described in any Schedule made hereunder and which are supplied or to be supplied by KubeServers on and subject to the terms of this Agreement and any schedules made hereunder;
“SLA” means service level agreement;
“Software” means the computer software provided by KubeServers in connection with the Services;
“Support Call” is defined as a telephone call by the Client to KubeServers’s telephone number, published on www.kubeservers.co.uk;
GENERAL
The Services shall be as described in this Agreement and any associated Schedules. All Schedules shall be deemed to be an offer from the Client and shall only be deemed accepted by KubeServers when counter-signed by an authorised representative of KubeServers. In the event of any conflict between any provision in this Agreement and those in the Schedule then the provision in the Schedule shall prevail.
The Client, where the Client an individual, or the person entering into this Agreement on behalf of the Client, where the Client is an entity, warrants that they are 18 years of age or older, and capable and authorised to enter into this Agreement.
KubeServers reserves the right at any time and from time to time to amend, improve or correct the Services, Software and/or Hardware (or any part thereof) provided that such modification does not materially affect the overall quality of the Services. This includes the right to substitute the Hardware with Hardware of similar specification, where necessary. KubeServers shall endeavour to give the Client reasonable notice of such modifications but this may not always be possible and KubeServers shall not be liable to the Client or to any third party for any such modification or any failure to give such notice
KubeServers reserves the right at its sole discretion to suspend the Services (temporarily or permanently) on the occurrence of any unscheduled maintenance or any of the following (each of the following shall be a “Suspension Events”): (i) Notified Maintenance; (ii) issue by any competent authority of an order which is binding on KubeServers and which affects the Services and which can only be dealt with properly by suspension of the Services; (iii) if the Client fails to pay any amounts due under this Agreement when they are due; (iv) if any events occur which would entitle KubeServers to terminate this Agreement; (v) the Bandwidth used by the Client in relation to the Services exceeds the agreed level and KubeServers determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by KubeServers from time to time.
It is The Client’s responsibility to keep the server files up to date. The Client is liable for any legal contracts or end user license agreements as a result of any third party software installed by The Client.
In the event of a server crash, once notified, KubeServers will endeavour to reboot the Client’s server as soon as possible but offer no timed guarantee. The Client may have access to an automatic reboot switch, in which case an instantaneous reboot may be possible. KubeServers make no guarantee as to the functionality of the reboot switch, but will make all reasonable endeavours that the reboot switch is functioning properly.
It is the Client’s responsibility to maintain and to enter a contact email address, postal address and telephone number for the Client on the Control Panel, and to ensure such contact details are current and up to date at all times.
KubeServers may provide the Services to the Client from verbal or email order received by it from any authorised person. A person shall be an authorised person for the purpose of this clause if his name is listed at the time of order on the Control Panel.
This Agreement together with the Schedule constitutes the whole and only agreement and understanding between the parties relating to its subject matter and supersedes and extinguishes any drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, between the parties in connection with the subject matter of this Agreement whether existing prior to or at the same time as this Agreement. The Agreement will be on these conditions only, to the exclusion of any other terms and conditions (including any terms and conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document). The Client’s terms and conditions shall not apply to this Agreement.
DURATION AND TERMINATION
This Agreement shall come into effect upon the date of this Agreement and, subject to the provisions of this Agreement shall continue in force for an initial term of 1 month from the date the Services are available to the Client and indefinitely after that until terminated by either party giving not less than 30 days prior written notice to expire on or after the expiry date of the initial term.
Without prejudice to any other rights to which KubeServers is entitled, KubeServers may give notice in writing to the Client terminating this Agreement with immediate effect if: 1) the Client commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified of the breach; 2) an order is made or a resolution is passed for the winding up of the Client; 3) an order is made for the appointment of an administrator to manage the affairs, business and property of the Client or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act (1986); 4) a receiver is appointed of any of the Client’s assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Client or if any other person takes possession of or sells the Client’s assets; 5) the Client makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; 6) there is a change of the ability to direct the affairs of the Client whether by virtue of the ownership of shares, contract or otherwise of the Client; 7) the Client purports to assign its rights or obligations under this Agreement.
For the avoidance of doubt and without limitation, a breach of any of any of the payment provisions contained in this Agreement, or a breach of the Acceptable Use Policy is a material breach for the purposes of this Agreement.
Refunds will be given only at the discretion of KubeServers.
DISTANCE SELLING REGULATIONS
Under Regulation 10 of The Consumer Protection (Distance Selling) Regulations 2000, the Client may have the right to cancel this Agreement for seven working days after the day after this Agreement has been concluded. However, it is agreed between KubeServers and the Client that the Services may commence before the end of that cancellation period, and then the Client will lose the right to cancel from the date that KubeServers provides the Client with the access details of the Services.
SUPPORT AND MAINTENANCE
Maintenance and support shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than KubeServers or its authorised representatives; or (b) software programmes or hardware supplied by the Client.
The Client shall document and promptly report all errors or malfunctions of the Services, Hardware or Software to KubeServers. The Client shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from KubeServers provided the procedures specified are reasonable. The Client shall maintain a current archive copy of all software and data, and shall properly train its personnel in the use of the Services, Hardware and Software.
Any problems caused by the Client to the Services, (which include, but are not limited to, deletion of necessary operating system files, accidental or intentional infection by a virus/Trojan) may result in extra charges to The Client at £40 per 30 minutes, or part thereof. For any work that will take more than two hours we will seek prior authorisation from the Client by telephone, email, fax, or post.
ACCEPTABLE USE POLICY
KubeServers Acceptable Use Policy (“Policy”) is intended to help protect the KubeServers service, KubeServers clients and the Internet community in general from irresponsible or, in some cases, illegal activities, and the Client agrees to be bound by the Policy.
1. The Client and their end users shall not, nor shall they permit, enable, or assist others, to use the Services for any breach of any applicable law or generally accepted transmission or application protocols applicable to the Internet or any part of it or to anything connected to it or to any user of it. Such prohibited use includes but is not limited to the following:
a. civil infringement of and/or criminal offences relating to copyright, trade marks or any other intellectual property right in any jurisdiction; or
b. commission of any criminal offence (including deliberate transmission of computer viruses) under the Computer Misuse Act 1990 (UK) or any similar legislation in any country; or
c. knowingly or recklessly transmitting, displaying or posting to a publicly accessible service any material which is unlawful or actionably defamatory or an invasion of privacy, breach of an intellectual property right or breach of a right of publicity in any jurisdiction with which any publicly accessible service reasonably appears to have any connection or from which it may reasonably be apprehended that a publicly accessible service is likely to be significantly accessed; or
d. transmitting, transferring, displaying or posting to a publicly accessible service any material in breach of the Data Protection Act 1998 (UK) or the General Data Protection Regulation (EU Regulation 2016/679) or any similar legislation in any other country or of any material which is confidential or is a trade secret or which affects the national security of the United Kingdom or the said territory or which may expose KubeServers to any retribution or penalty under the laws and/or regulations and/or decrees of the United Kingdom or any other country relating to the export of or dealing with military or potentially military resources; or
e. use of the Software, Services or the Internet in any manner which is a violation or infringement of any rights of any kind or nature (whether like to any of the foregoing or otherwise) of any person, firm or company; or
f. unauthorised access to the network management equipment of KubeServers or other Internet service providers; or
g. forgery of Internet addresses or other fields in IP packets by the Client; or
h. any sending of unsolicited email messages or any mass mailing of unsolicited advertising material by the Client; or
i. any activity that potentially could harm the KubeServers Network, its clients’ networks or other networks, including but not limited to traffic flooding, malicious overflows, etc; or
j. any activity that KubeServers decides at its absolute discretion is an unsuitable use of the Services.
2. The Client is responsible for: a. Maintaining email addresses of the forms [email protected] and [email protected] for receiving complaints of network abuse activities, as suggested by Internet Official Protocol Standard RFC 2142. Typically, these email addresses will forward emails to the real user accounts of the responsible persons for treating the network misuse complaints.
b. The activities of its customer base or end-users and, by accepting service from KubeServers, is agreeing to ensure that its clients abide by this Policy. If irresponsible or illegal activity continues, even after KubeServers tries to communicate with the Client, then the Client may be subject to an appropriate action in order to stop those activities.
3. All complaints related to network misuse – including email abuse – are to be sent to [email protected]
4. IRC services or IRC-related services are permitted only if they do not connect to EFnet and/or Undernet. This includes, but is not limited to: “IRCd servers,” “eggdrops,” “bots,” and “bouncers.” The purpose of this restriction is to prevent attacks on the KubeServers service due to malicious activity that has been known to occur on the IRC networks EFnet and Undernet.
5. Camfrog services or Camfrog-related services are not permitted. The purpose of this restriction is to prevent attacks on the KubeServers service due to malicious activity that has been known to occur in relation to Camfrog.
6. The Client warrants that it will respond to any Abuse Complaints within 48 hours.
PAYMENT
The Client shall pay the price for the Services as set out in the Schedule. An initial payment is required before any set-up work is carried out. KubeServers invoices for regular payments monthly in advance, unless otherwise agreed in writing.
The price for the Service covers Bandwidth as stated in the Schedule. If the Client exceeds this limit then KubeServers reserves the right to make additional charges for usage above the limit at its then prevailing charge rate. KubeServers will endeavour to let the Client know if its bandwidth use exceeds the agreed level, however it is the Client’s responsibility to monitor the bandwidth being used by it from time to time using the Control Panel.
All prices quoted to the Client for the provision of services by KubeServers are exclusive of any value added tax (VAT) for which the Client may be additionally liable at the applicable rate. Where the Services are purchased with a monthly payment plan comprising a set up fee, this fee is payable immediately. Where a long term contract is purchased, the set up fee is included within the total payment.
The price and all other amounts due under the Schedule shall be paid by the Client by the due date as specified in KubeServers ’ invoice. Time for payment shall be of the essence. Payment shall only be deemed received by KubeServers upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any grounds. KubeServers reserves the right to suspend the Services in case of late payment. Any exercise by KubeServers of its right to suspend the Services in the case of late payment shall be without prejudice to any other of its rights under this agreement. Notwithstanding suspension of the Services by KubeServers the Client shall continue to pay the price for the Services in accordance with the terms of this Agreement until this Agreement is terminated in accordance with the terms of this Agreement. KubeServers understands and will exercise its statutory right to interest and debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 if not paid according to agreed terms.
KubeServers reserves the right to exercise a lien over the Client’s equipment in respect of any unpaid fees and shall be entitled to sell the equipment after the expiry of thirty (30) days from the termination date in order to recoup any unpaid fees.
KubeServers reserves the right to send overdue accounts to a debt collection agency. All charges involved in the collection of overdue accounts will be payable by the Client.
SERVICE LEVEL AGREEMENT
This SLA applies to Services where the agreement for the Service specifically references this SLA. The objective of this SLA is to document the availability of the Service that KubeServers is to achieve. This does not constitute any additional liability to KubeServers, but instead a self-assumed obligation towards the Client. Under the conditions below KubeServers offers to pay the Client service credits if the availability defined below is not met.
KubeServers shall guarantee the Network Availability and Power Availability will be 100% in any calendar month, subject to exclusions as defined below. If KubeServers fails to meet this guarantee a credit shall be available to the Client as defined below.
The Network Availability and Power Availability calculation shall exclude periods when outages arise from, or are otherwise indirectly caused by:
- Outage periods due to any cause other than faults by KubeServers, including faults or negligence of the Client or problems associated with equipment connected on the Client’s side of KubeServers delivery point,
- In case that the Client’s equipment should cause negative effects on the performance, quality and/or operation of the KubeServers Network, KubeServers will proceed to disconnect the link, for benefit of the rest of users of the KubeServers Network. This disconnection won’t be cause of penalty under the SLA. KubeServers will notify the Client as soon as possible about this issue in order for the Client to repair the problems.
- Outage periods reported by the Client in which no fault is observed or confirmed by KubeServers,
- Any fault period during which service is suspended under provision in this Agreement,
- Downtime when KubeServers technical staff cannot have access, when the Client is requested to do so for the purpose of investigating the problem and restoring the service, to Client premises and equipment pertaining to the service in case the service should include the management of equipment on the customer site by KubeServers,
- The Client requesting KubeServers to test Client connection although no fault has been detected and/or reported by KubeServers,
- The Client requesting KubeServers to upgrade the capacity of the service, if this operation results in an outage.
- During Scheduled Maintenance affecting the Services as defined above.
- Performance degradations and service loss due to Denial Of Service attacks or other unlawful attacks generated inside the Client’s network or executed against users inside the Client’s network or the Client network infrastructure, will be excluded from SLA calculation as it is within the Client’s responsibility to put in place the relevant protection mechanisms inside its network to protect itself and its clients. Nevertheless KubeServers is available to support the customer by implementing appropriate measures on the KubeServers Network, such as limiting on ICMP bandwidth, rate limiting over clients’ ports, implementing filters or black-holing routes.
Neither Party will be obliged to carry out any obligation under this Agreement where performance of such obligation is prevented by the occurrence of a Force Majeure Event. No commitment from KubeServers applies in case of Force Majeure.
Should the Client not have access to the Services as defined above due to less than 100% Network Availability and Power Availability, KubeServers shall credit the Client 0.5 days service credit for each hour when the service is not available, subject to a maximum credit in any one month of 50% of the monthly fee for the contracted service. The credit applies to the contracted service. The Client shall not be entitled to any credits under this SLA if any payment of the price for the Services is overdue under the terms of this Agreement. The credit shall be made for the element of the Services that were not available, it will not be made for the whole service. (E.G. If a dedicated server and backup service are ordered, but the backup service is not available for a period of time, the credit will be calculated based on the price of the backup service, not the combined price of the dedicated server and backup service.) Any credit is subject to the Client notifying KubeServers within seven working days in writing. This Client agrees the service credits due under this SLA are its sole remedy against KubeServers for any non-availability of the Services.
CONSEQUENTIAL LOSSES
KubeServers is not in a position to assess any consequential loss which the Client may suffer as a result of any failure of the Services, or any other default on the part of KubeServers and it would be impractical and uneconomic for KubeServers to insure against such liability. Accordingly it is the responsibility of the Client to properly assess any consequential loss that it and/or its clients may suffer and to obtain and maintain adequate insurance in relation to such losses. The Client shall also ensure that it has adequate insurance cover in relation to any loss or damage which may be caused to KubeServers and/or its clients through the negligence or default of the Client, its employees, agents, or equipment. The Client shall, as and when requested, provide KubeServers with such evidence as KubeServers may require in relation to the Client’s insurance.
INDEMNITY
The Client agrees to fully indemnify and keep KubeServers, its subsidiaries, affiliates, officers, partners and employees fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following: (i) the Client’s breach of this Agreement or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Client but not the Hardware and/or Software; (iii) the Clients use or misuse of the Services; (iv) the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs); (v) Denial of Service attacks targeting the client’s Services.
DISCLAIMER
Nothing in the Agreement shall exclude or limit the liability of KubeServers for death or personal injury resulting from its negligence or fraudulent misrepresentation nor affect the statutory rights of consumers.
The Client acknowledges that the allocation of risk in this Agreement reflects the price paid for the Services, Hardware and Software and that it is not within the control of KubeServers how or for what purposes they are used. If any exclusion or limit of liability in this Agreement is held to be invalid and KubeServers becomes liable for loss or damage that may lawfully be limited then such liability shall be limited to the amount paid by the Client for the Services.
KubeServers shall have no liability to the Client for any loss arising from any material, data or instructions supplied whether digitally or otherwise by the Client or on its behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from late arrival or non-arrival or any other fault by the Client or on its behalf.
No action, claim or demand arising out of or in connection with this Agreement may be brought by the Client against KubeServers more than one year after the cause of action has occurred.
KubeServers is not responsible for any delay, malfunction, non performance and/or other degradation of performance of any of the Services, Hardware or Software caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Client whether or not beyond those already supplied.
Neither KubeServers nor anyone else who has been involved in the creation, production or supply of the Services, Hardware or Software shall be liable to the Client or any other person for any loss in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof by reason of or in connection with this Agreement or the Services, Hardware or Software for any: (i) economic loss of any kind whatsoever, or (ii) loss of profit, data, business contracts, revenues or anticipated savings, or (iii) damage to the Client’s reputation or goodwill, or (iv) loss resulting from any claim made by any third party, or (v) special, indirect or consequential loss or damage of any nature whatsoever, and the Client shall indemnify KubeServers from and against any claim which may be made against KubeServers in respect thereof. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for consequential or incidental damages and therefore the above may not apply to the Client.
PRIVACY AND USE OF CLIENT DATA
KubeServers understands that your privacy is important to you and that you care about how your personal data is used. We respect and value the privacy of all our customers and others with whom we make contact and will only collect and use personal data in ways that are described here, and in a way that is consistent with our obligations and your rights under the law.
These terms explain how we use your personal data: how it is collected, how it is held, and how it is processed.
It also explains your rights under the law relating to your personal data.
We may collect and process the following data about you:
Information you give us. You may give us information about you by filling in forms or by corresponding with us by phone, e-mail, support ticket or otherwise. This includes information you provide when you register to use our services, search for a service, place an order, enter a competition, promotion or survey and when you report a problem with our services. The information you give us may include your name, job title, address, e-mail address, answer to user security question, and phone number.
Information we collect about you. With regard to each of your visits to the Site we may automatically collect some or all of the following information: technical information, including the Internet protocol (IP) address used to connect your computer to the Internet, your browser type and version, time zone setting, browser versions, and operating system.
Information we receive from other sources. We may receive information about you from third parties for the purpose of providing services to you, e.g. Credit Reference agencies, Companies House.
This data is necessary for our performance of a contract with you, because you have consented to our use of your personal data, or because it is in our legitimate business interests to use it.
We use information held about you in the following ways:
Information you give to us. We will use this information to carry out our obligations arising from any contracts entered into between you and us and to provide you with the information, products and services that you request from us; to provide you with information about other goods and services we offer that are similar to those that you have already purchased or enquired about; to notify you about changes to our service; to ensure that content from our site is presented in the most effective manner for you and for your computer.
Information we collect about you. We will use this information for internal operations, including troubleshooting, data analysis, testing, research, statistical and survey purposes; to allow you to participate in interactive features of our services, when you choose to do so; as part of our efforts to keep the Site safe and secure;
Information we receive from other sources. We may combine this information with information you give to us and information we collect about you. We may us this information and the combined information for the purposes set out above (depending on the types of information we receive).
We will not keep your personal data for any longer than is necessary in light of the reason(s) for which it was first collected. Your personal data will therefore be kept for the following periods (or, where there is no fixed period, the following factors will be used to determine how long it is kept):
If you are a system user then your data is kept as long as is necessary to provide our services to you. If you are a customer then your data is kept as long as is necessary to comply with applicable legal, tax or accounting requirements.
Your personal data is stored in our CRM and invoicing systems. These systems abide by the GDPR and are based in the United Kingdom.
If you want to know what personal data we have about you, you can ask us for details of that personal data and for a copy of it (where any such personal data is held). This is known as a “subject access request”.
All subject access requests should be made in writing and sent via our secure ticketing system.
There is not normally any charge for a subject access request. If your request is ‘manifestly unfounded or excessive’ (for example, if you make repetitive requests) a fee may be charged to cover our administrative costs in responding.
We will respond to your subject access request within one month of receiving it. Normally, we aim to provide a complete response, including a copy of your personal data within that time.
For the avoidance of any doubt, any personal data held on the Services you take from KubeServers are outwith our access and control. Under GDPR KubeServers is neither a processor nor a controller of data held on the Services and it is your responsibility to ensure compliance with GDPR for any personal data held on the Services.
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