GENERAL TERMS AND CONDITIONS
1. PORTALCHEMY CLOUD SERVICES AGREEMENT
The Cloud Services Agreement incorporates the following documents by reference: (i) the Services Description that describes the Services you are buying and related fees; (ii) these General Terms and Conditions containing the general terms and conditions applicable to all Services; (iii) the specific Product Terms and Conditions containing the additional terms for the particular Cloud Services you are buying; (iv) the Acceptable Use Policy; and (v) if your account will be provided from data centres located both in the United Kingdom and one or more non-U.K. jurisdictions, the Country Specific Terms that may be applicable in those jurisdictions. When we use the term “Cloud Services Agreement” or “Agreement” in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the date of the email sent to you by PortAlchemy expressly confirming acceptance of your order or the date you accept the Agreement as part of PortAlchemy’s online order process.
2. DEFINED TERMS
Some words used in the Agreement have particular meanings:
“Affiliate” means a subsidiary or holding company of either party to this Agreement and any subsidiary of such holding company (where “holding company” and “subsidiary” have the meanings set out in section 1159 of the Companies Act 2006).
“Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, excluding public holidays in the United Kingdom.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, your account, (ii) for PortAlchemy, unpublished prices and other terms of service, audit and security reports, product development plans, solution diagrams, data centre designs (including non-graphic information you may observe on a tour of a data centre), and other proprietary information or technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is independently developed by one of us, without reference to the other’s Confidential Information, or that becomes available to one of us other than through breach of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Country Specific Terms” means the addendum or addenda that may be incorporated into your Hosting Services Agreement if a portion of your Services are to be provided from a non-United Kingdom jurisdiction for which we have special legal terms.
“Account” means a combination of hardware, software and networking elements that comprise an information technology system. Depending on the Services you are buying, the account may consist of a dedicated system for your use only, or the right to use certain parts of a shared system that PortAlchemy maintains for many customers, or a combination of some dedicated elements and some shared elements.
“Hosting Services” means: (i) PortAlchemy’s provision for your use of the account described in the Services Description, and (ii) Support.
“Product Terms and Conditions” means the terms and conditions for the particular Hosting Services you are buying.
“Services Description” means a written description of the account and/or Supplementary Services you are buying from PortAlchemy, and related fees, that is incorporated by reference in the Agreement,
including any “plan” or other name given to a Services description that you submit to PortAlchemy as part of an online order process.
“Service Level Guarantee(s)” means (i) a guarantee or guarantees identified as a “Service Level Guarantee” or “Service Level Guarantees” in the applicable Product Terms and Conditions or (ii) any provision which provides a specified credit or financial remedy for an identified failure to deliver or provide the Services.
“Services” means Cloud Services and Supplementary Services, collectively.
“Supplementary Services” means those Services you purchase from PortAlchemy other than the Hosting Services, including time and materials based professional or consulting services (such as database administration or “DBA” services), one-time or non-recurring services which are not part of the existing Support (such as support for the application that you operate on your account), and any other services identified as “Supplementary Services” on the applicable Services Description.
“Support” has the meaning stated in the applicable Product Terms and Conditions.
3. OUR OBLIGATIONS
PortAlchemy will provide the Hosting Services in accordance with the Services Description, the Service Level Guarantees, and other specifications in this Agreement. PortAlchemy will perform any Supplementary Services in a good and professional manner. PortAlchemy will maintain adequate security practices.
4. YOUR OBLIGATIONS
You must use reasonable security precautions in connection with your use of the Services. You must comply with the laws applicable to your use of the Services and with the Acceptable Use Policy. You must cooperate with PortAlchemy’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date using your PortAlchemy portal or via another PortAlchemy defined process. You must pay when due the fees for the Services stated in the Services Description or other agreement between us. If there is a dispute with respect to any portion of an invoice, you shall pay the undisputed portion of the fees promptly and provide written details specifying the basis of any dispute. Each of us agrees to work together to promptly resolve any disputes.
5. PROMISES WE DO NOT MAKE
5.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property.
5.2 We disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law, including the implied warranties relating to satisfactory quality and fitness for a particular purpose. You are solely responsible for the suitability of the services chosen. Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an ‘AS IS’ basis.
5.3 We do not have knowledge of the data you store within your account, including the quantity, value or use of the data. You are therefore responsible to take all reasonable steps to mitigate the risks inherent in the provision of the Services including loss of your data. We do not collect or hold any details of your payment card or payment transactions as that is solely done by PayPal.
PortAlchemy does not promise to retain any data backup(s) for longer than the agreed licence length. In all events, you release PortAlchemy from liability for loss of data.
5.4 We will provide Support only to your administrative contact listed on your account.
5.5 You are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those Services in a manner that complies with the applicable requirements.
6. UNAUTHORISED ACCESS TO YOUR DATA OR USE OF THE SERVICES
You are responsible for the use of the Services by any employee of yours, any person you authorise to use the Services, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorised by you.
7. TAXES ON SERVICES
7.1 Sales Taxes. Unless otherwise expressly provided in the Agreement or included in the invoice for the services, all amounts due to PortAlchemy under the Agreement are exclusive of any value added, goods, services, sales, use, property, excise and like taxes, import duties and/or applicable levies (collectively, “Tax”). If PortAlchemy is required by law to collect Taxes on the provision of the Service, PortAlchemy will invoice you for such Tax and you must pay PortAlchemy the amount of the Tax that is due or provide PortAlchemy with satisfactory evidence of your exemption from the Tax. The obligation to pay any Taxes that Customer may be required to pay in connection with Customer’s use of Services or Customer’s payment of amounts due to PortAlchemy under the Agreement shall be borne exclusively by Customer. You must provide PortAlchemy with accurate factual and adequate information and documentation (as determined by PortAlchemy), to help PortAlchemy determine if any Tax is due with respect to the provision of the Services.
8. EXPORT MATTERS
You represent and warrant and undertake that you will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any information or technical data provided by PortAlchemy to you under this Agreement in any manner which would cause PortAlchemy or its Affiliates to breach any applicable export control laws, rules, or regulations of any jurisdiction (including without limitation those under UK and US law). Without limitation, you represent and warrant and undertake that you will not provide administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under United Kingdom or US export laws, rules or regulations.
9. TERMS AND FEES
Your applicable Product Terms and Conditions and Services Description set out your term and renewal information as well as fee and pricing information.
10. SUSPENSION OF SERVICES
10.1 We may suspend Services without liability if:
10.1.1 we reasonably believe that the Services are being used in breach of the Agreement;
10.1.2 you don’t cooperate with our reasonable investigation of any suspected violation of the
10.1.3 there is an attack on your account or your account is accessed or
manipulated by a third party without your consent;
10.1.4 we are required by law or a regulatory or government body to suspend your Services; or
10.1.5 there is another event for which we reasonably believe that the suspension of Services is
necessary to protect the PortAlchemy network or our other customers.
10.2 We will give you advance notice of a suspension under this clause of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect PortAlchemy or its other customers from imminent and significant operational, legal, or security risk. If your account is compromised, then you must address the vulnerability prior to PortAlchemy placing the account back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a Supplementary Service.
11. TERMINATION FOR BREACH
11.1 You may terminate the Agreement for breach if we:
11.1.1. materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure;
11.1.2. materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
11.2 We may terminate the Agreement for breach if:
11.2.1. we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete;
11.2.2. the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
11.2.3. your payment of any invoiced amount is overdue and you do not pay the overdue amount within four (4) Business Days of our written notice;
11.2.4 you have made payment arrangements via credit card or other third party, and the third party refuses to honour our charges;
11.2.5. you fail to comply with any other obligation stated in the Agreement and do not remedy the failure within thirty (30) days of our written notice to you describing the failure;
11.2.6. you contravene Section 8 (Export Matters) of this General Terms and Conditions;
11.2.7. you breach the Export Control section of the AUP;
11.2.8. with the exception of the Export Control section of the AUP for which Sub-Section 11.2.7
applies, you breach any provision of the AUP more than once even if you remedy each
11.2.9. your agreement for any other PortAlchemy service is terminated for breach of the acceptable
use policy applicable to that service.
12. CONFIDENTIAL INFORMATION
12.1 Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, as may be required by law, or as set forth below.
Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
12.1.1 to each of our respective service providers, employees, Affiliates, suppliers, agents and representatives, provided that such service providers, employees, Affiliates, suppliers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this General Terms and Conditions; or
12.1.2. to a law enforcement or government agency if either of us reasonably believes that the other’s conduct may violate applicable criminal law;
12.1.3. as required by law; or
12.1.4. in response to a court order or other compulsory legal process, provided that each of us
agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this clause (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
13. LIMITATION ON DAMAGES
13.1 Subject to clause 13.2, but without prejudice to PortAlchemy’s right to the fees for the Services, including any early termination fee (if applicable) and your right to service credits under the applicable Service Level Guarantee and/or termination for our failure to meet the Fanatical Support Promise:
13.1.1 each party’s liability to the other for direct loss or damages whether in tort (including, without limitation, negligence), contract or otherwise, is limited to and shall not exceed:
184.108.40.206 for Hosting Services, an amount that is twelve (12) times the monthly recurring fee under this Agreement as of the time of the occurrence of the event(s) giving rise to the claim; and
220.127.116.11 for Supplementary Services, the greater of five hundred British Pounds Sterling (£500) or the fees paid for the Supplementary Services that are the subject of the claim;
13.1.2 neither party will be liable to the other in any way for any special, incidental, economic, or indirect loss or damages, or for loss of data, loss of profits, revenues, customers or contracts, wasted management time, increased costs or expenses, whatsoever and howsoever arising including in connection with the performance, non-performance or delayed performance of the Services or otherwise under this Agreement even if that party has been advised by the other or should have reasonably been aware of the possibility of such loss.
13.2 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:
13.2.1 death or personal injury caused by its negligence; and 13.2.2 any fraud or fraudulent misrepresentation.
13.3 The service credits stated in the Service Level Guarantee are your exclusive remedy for PortAlchemy’s failure to meet those guarantees for which service credits apply.
13.4 PortAlchemy agrees to have valid insurance cover in place for its own legal liability to you under this Agreement up to the limits set out in this clause 13. As the fees for the Services properly reflect the delineation of risk between the parties, each party agrees to ensure that it will be responsible for making its own arrangements for the insurance of any loss in excess of its accepted legal liability as necessary.
14.1 If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Indemnitees”) is faced with a legal claim by a third party arising out of your actual or alleged negligence, breach of law, failure to meet the security obligations required by the Agreement, breach of the AUP, breach of your agreement with your customers or end users, or breach of Section 8 (Export Matters) or Section 16 (Software) of this General Terms and Conditions, then you will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this clause include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorised by you. You must also pay reasonable legal fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with PortAlchemy, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
14.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defence of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld, delayed or conditioned. You must pay reasonable legal fees and expenses due under this clause as we incur them.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner that suggests an endorsement or affiliation.
16.1 General. You may not copy any software we provide for your use, unless expressly permitted by this Agreement or use such software after the expiration or termination of the Agreement. You may not remove, modify or obscure any copyright, trade mark, or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software licence, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to PortAlchemy. In addition to the terms of this Agreement, your use of any Microsoft® software is governed by Microsoft’s licence terms that appear at:
PortAlchemy personnel may from time to time recommend third party software or other products and services for your consideration. PortAlchemy MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH PRODUCTS AND SERVICES. Your use of any products and services not provided by PortAlchemy is governed by the terms of your agreement with the provider of those products and services, and is at your sole risk. PortAlchemy is not responsible in any way for the third party product’s performance, features nor failures
18. WHO MAY USE THE SERVICES
You may permit your subsidiaries and affiliated companies to use the Services if you wish, however you are responsible for the acts or omissions of your permitted users. PortAlchemy will provide support only to you, not to your customers, subsidiaries or affiliates. There are no third party beneficiaries to the Agreement, meaning that your customers, subsidiaries, affiliates, and other third parties do not have any rights against either of us under the Agreement.
Each of us agrees to comply with our respective obligations under the Data Protection Act 1998 (the “Act”) as applicable to personal data that it controls or processes as part of, or in connection with, its use or provision of the Services. Specifically, but without limitation, you must comply with the Act as it relates to personal data that you store or transfer using your account. You agree that, subject to the requirements of this paragraph and PortAlchemy’s obligations stated in Section 30 (Assignment,Subcontractors), PortAlchemy may give its affiliates and subcontractors outside of the European Economic Area (EEA) access to personal data you store on your account. For example, we may provide our US affiliates with access to your account so that the US affiliate may provide Support to you during our off office hours in the UK.
We agree that we will not provide access to personal data that you store on your account to any subcontractor or affiliate outside of the EEA unless that person meets the requirements stated below during the entire time that it has access to the personal data:
19.1 for personal data for which we are a “controller” under the Act, the affiliate or subcontractor to whom we transfer the personal data (i) is located in a country for which the European Commission has made a positive finding of adequacy, (ii) is located in the United States and has certified to the United States Department of Commerce that it adheres to the Safe Harbour framework developed by the United States Department of Commerce in coordination with the European Union, or (iii) has signed the standard contractual model clauses for the transfer of personal data from either: (a) PortAlchemy to a processor, or (b) PortAlchemy to a controller who is based in a country outside the EEA that is not recognised as offering an adequate level of data protection; and
19.2 for personal data for which we are a “processor” under the Act, the affiliate or subcontractor that has access to the account has signed a data processing agreement with us.
20. DATA CENTRES
We are constantly upgrading our data centre facilities and in order for you to benefit from this, you agree that we may relocate your servers within our data centres, make changes to the provision of the Services, URLs and your IP addresses and may establish new procedures for the use of the Services. We may also make changes to DNS records and zones on PortAlchemy operated or managed DNS servers as we deem necessary for the operation of the shared network infrastructure. In each case, we will give you reasonable advance notice and use all reasonable endeavours to minimise the effect that such change will have on your use of the Services.
21. SERVICES MANAGEMENT AGENT
You agree that you will not interfere with any services management software agent(s) that PortAlchemy installs on your account. PortAlchemy agrees that its agents will use only a minimal amount of computing resources, and will not interfere with your use of your account. PortAlchemy will use the agents to track the hardware and software that PortAlchemy provides, so that it can more efficiently manage various service issues, such as patching exceptions and product life cycles. PortAlchemy may also use the software to identify security vulnerabilities. PortAlchemy will not use the agents to view or capture your content or data. Your Services will become “unsupported” as described in the Product Terms if you disable or interfere with our service management software agents. You agree that PortAlchemy may access your account to reinstall services management software agents if you disable or interfere with their performance.
Your routine communications to PortAlchemy regarding the Services, including any notice of non-renewal, should be sent to your PortAlchemy account team using the MyPortAlchemy portal. If you want to give a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first class post to:
PortAlchemy’s routine communications regarding the Services and legal notices will be posted on your PortAlchemy portal or sent to the individual(s) you designate as your contact(s) on your account either by electronic mail (including an electronic mail referring you to a ticket posted on your MyPortAlchemy portal), first class post, or overnight courier. Notices are deemed received as of the time posted or delivered, or if that time does not fall on a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
23. OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by PortAlchemy during the performance of the Service(s) shall belong to PortAlchemy unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
24. OWNERSHIP OF OTHER PROPERTY
You do not acquire any ownership interest in or right to possess the account, and you have no right of physical access to the account. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your PortAlchemy servers or other devices or media.
25. INTELLECTUAL PROPERTY INFRINGEMENT
If PortAlchemy or any of its customers is faced with a credible claim that the Services infringe the intellectual property rights of a third party, and PortAlchemy is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then PortAlchemy may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
Neither party may assign the Agreement without the prior written consent of the other party except that PortAlchemy may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganisation or a sale of its business. We may transfer your Confidential Information as part of any such transaction. PortAlchemy may use third party service providers to perform all or any part of the Services, but PortAlchemy remains responsible to you under this Agreement for Services performed by its third party service providers to the same extent as if PortAlchemy performed the Services itself.
27. FORCE MAJEURE
Neither of us will be in breach of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labour action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
28. GOVERNING LAW, LAWSUITS
The Agreement is governed by the English law and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts of England and Wales except that PortAlchemy may seek to enforce any judgment anywhere in the world where you may have assets. Each of us agrees that it will not bring a claim under the Agreement more than two (2) years after the event giving rise to the claim occurred.