In these Terms and conditions, except where the content otherwise requires, the following words and expressions shall have the following meanings:
“Acceptable Use Policy” – the acceptable and fair use policies of Smart Hosted Solutions Ltd and any Third Party Services Providers, as applicable, as described in paragraph 4.5
“Agreement” – the agreement between Smart Hosted Solutions Ltd and Customer for the provision of Services and /or Products formed by this Services Agreement, the terms of the Purchase Order and applicable Appendices
“Applicable Appendices” – any details of the service contained in appropriate Appendices, as referred to in the Purchase Order
“Business Day” – a day which is not a Saturday or Sunday or Public or Bank Holiday in the United Kingdom.
“Business Hours” – 09:00 to 17:00 UK Local Time on each Business Day
“Confidential Information” – all information disclosed by a party to the other party, including but not confined to any ideas; business methods; financial data; prices, development or manpower plans; customer lists or details; computer systems and software; products or services, or other matters connected with the products or services manufactured, marketed, provided or obtained by a party, and information concerning a party’s relationships with actual or potential clients, customers or suppliers and any other information which, if disclosed, will be liable to cause harm to that party
“Contract Term” – the period of one (1) calendar month from the Effective Date and each successive calendar month during the continuance in force of the Agreement or, in respect of the final Contract Term under the Agreement, the period from the end of the previous Contract Term to the date of termination of the Agreement, if it is shorter
“Customer” – The Party, or Parties identified in the Purchase Order
“Customer Personnel” or “Personnel” – all employees and other personnel of Customer either employed directly or indirectly by Customer.
“Effective Date” – the date at which Customer accepts these terms and conditions using the Smart Hosted Solutions Ltd Portal.
“Fees” – the charges due to Smart Hosted Solutions Ltd as set out in the Purchase Order and/or applicable appendices, as may be amended from time to time
“Initial Term” – 30 days from the initial invoice date.
“Microsoft End User License Terms (EULT’s)” – The End User License Terms prepared by Microsoft for the users of their Software. These EULT’s are appended to these Terms and Conditions and are an integral part of the terms and conditions of any agreement with Smart Hosted Solutions Ltd, and their customers.
“Portal” – Smart Hosted Solutions Ltd’s user and Service management website (https://portal.joinvia.com)
“Products” – any hardware, software (including software as a service), cabling and/or other products or equipment sold or licensed by Smart Hosted Solutions Ltd to Customer as identified in the Purchase Order, as may be amended from time to time
“Purchase Order” – the Purchase Order or customer order form from/to Customer detailing the Services and/or Products to be supplied by Smart Hosted Solutions Ltd
“Service Levels” – any service levels applicable to the Services as set out in the End User Agreement
“Services” – the service provided by Smart Hosted Solutions Ltd as identified in the Purchase Order, as may be amended from time to time
“Smart Hosted Solutions Ltd” – Smart Hosted Solutions Ltd registered in England, No.07949577, whose registered address is Unit 503, 27/31 Clerkenwell Close, London, EC1R 0AT.
“Smart Hosted Solutions Ltd Equipment” – any hardware, software, cabling and/or other products or equipment provided by Smart Hosted Solutions Ltd
“Third Party Services” – any part of the Services which Smart Hosted Solutions Ltd procures from a third party, and any third party hosting services, telecommunications services and/or equipment which Smart Hosted Solutions Ltd uses in order to provide the Services
“Third Party Services Provider” – the provider of any Third Party Services
“VIA” – a trading name of Smart Hosted Solutions Ltd
1.2 If there is a conflict between any of these conditions, the Purchase Order and the applicable Appendices, the conflict will be resolved according to the following order of priority:
1.2.1 The Purchase Order,
1.2.2 These conditions, and
1.2.3 Applicable Appendices
1.3 The headings to these conditions and in the Purchase Order and Applicable Appendices are for convenience only and will not affect their construction or interpretation.
1.4 Any phrase in the Agreement introduced by the term “include”, “including” “in particular” or any similar expression will be construed as illustrating and will not limit the sense of the words proceeding that term.
2.1 These conditions, (together with the Microsoft End User License Terms at Appendix A), set out in the Agreement, will apply to all contracts and agreements between the parties to the exclusion of all other terms and conditions and all previous oral or written representations.
2.2 Each order or acceptance of a quotation for Services or Products will be deemed to be an agreement by Customer to purchase Services or Products in accordance with these conditions. The Agreement is formed when the order is accepted by Smart Hosted Solutions Ltd, by way of e-mail confirmation or any other written acknowledgement. No contract will be deemed to be in existence until such written acknowledgement of the order is issued.
2.3 Any quotation provided by Smart Hosted Solutions Ltd is valid for a period of 7 days only from its date, provided Smart Hosted Solutions Ltd has not previously withdrawn it.
2.4 All orders are non-cancellable. Without prejudice to this, no Products may be returned by Customer following delivery unless they fail to comply with their specification due to defects in material or workmanship, and then only in accordance with the provisions of paragraph 7.1.
2.5 Smart Hosted Solutions Ltd will be entitled to make changes to these conditions at any time and Customer will be subject to any such amended conditions from the date that such changes are made. The most recent version of these conditions from time to time will be found at http://via.nzi.me/ and Customer shall check periodically for changes. Posting changes to these conditions at http://via.nzi.me/ shall be deemed to be sufficient notice to Customer of such changes. Smart Hosted Solutions Ltd will, however, provide 30 days’ prior notice by email of changes to these terms. If Customer wishes to receive these notifications, they must send a request by email to firstname.lastname@example.org.
3. Smart Hosted Solutions Ltd Rights and Obligations
3.1 The Services and the Products to be provided to Customer are as described or referred to on Customer Purchase Order and the Applicable Appendices. The Services will be delivered according to Appendix B Service Level Agreement.
3.2 Time for performance or delivery is not of the essence and any time scales for performance or delivery given by Smart Hosted Solutions Ltd are estimates only. Smart Hosted Solutions Ltd will use its reasonable endeavours to provide the Services and deliver the Products in accordance with any time scale set out on the Purchase Order, but will not be liable to Customer where it fails to meet any time scale. This clause shall not affect the liability of Smart Hosted Solutions Ltd.’s failure to meet any service levels set out in the Agreement.
3.3 Smart Hosted Solutions Ltd will not be liable for any failure to provide the Services and / or deliver the Products resulting from any breach of the Agreement by Customer.
3.4 Smart Hosted Solutions Ltd will not be obliged to provide any Services or Products not referred to on Customer Purchase Order.
3.5 Smart Hosted Solutions Ltd may at any time and from time to time improve, correct or otherwise modify all or any of the Services and / or Products (including substituting software and/or Products with software or equipment of similar specification) provided that such modification does not materially adversely affect provision of the Services to Customer or the functionality of the Products. Smart Hosted Solutions Ltd will endeavour to give Customer reasonable notice of any such modification, where this is reasonably practicable.
3.6 Smart Hosted Solutions Ltd shall use its reasonable endeavours to provide effective Services. However, Customer acknowledges that, given the nature of the Services, Smart Hosted Solutions Ltd cannot guarantee that the Services will be uninterrupted or error free.
3.7 Risk of damage to or loss of the Products will pass to Customer on delivery.
3.8 Ownership of the Products will not pass to Customer until Smart Hosted Solutions Ltd has received in full (in cash or cleared funds) all sums due to it in respect of:
3.8.1 The Products; and all other sums which are or which become due to Smart Hosted Solutions Ltd
3.9 Until ownership of the Products has passed to Customer, Customer must hold the Products on a fiduciary basis as Smart Hosted Solutions Ltd.’s Bailee and maintain the Products in satisfactory condition insured on Smart Hosted Solutions Ltd.’s behalf for their full price against all risks to the reasonable satisfaction of Smart Hosted Solutions Ltd.
3.10 Customer’s right to possession of the Products will terminate immediately if any of the circumstances set out in paragraph 9.4 occur.
3.11 Smart Hosted Solutions Ltd will be entitled to recover payment for the Products notwithstanding that title in any of the Products has not passed from Smart Hosted Solutions Ltd.
3.12 On termination of the Agreement, howsoever caused, Smart Hosted Solutions Ltd.’s rights contained in paragraphs 3.9 to 3.11 will remain in effect.
4. Customer Obligations
4.1 Customer will provide Smart Hosted Solutions Ltd with all information, instructions and assistance that Smart Hosted Solutions Ltd may reasonably require in order to carry out its obligations under the Agreement. Customer shall provide all necessary physical access to Customer premises at all reasonable times as required (including access for the purposes of installation, inspection, maintenance, replacement, upgrade, or removal of Products and Services, and Smart Hosted Solutions Ltd Equipment and any other equipment associated with the Services), and Customer will also provide reasonable assistance with testing and other assistance to Smart Hosted Solutions Ltd that Smart Hosted Solutions Ltd shall reasonably require to perform its obligations under the Agreement. Customer shall comply with any reasonable operating instructions issued by Smart Hosted Solutions Ltd from time to time.
4.2 If Smart Hosted Solutions Ltd is provided with any incorrect information or instructions in connection with the Services, then Customer shall pay any reasonable additional and wasted costs and expenses incurred or suffered by Smart Hosted Solutions Ltd as a result, in setting-up and/or providing any Services.
4.3 Where Smart Hosted Solutions Ltd or any Third Party Services Provider are working on Customer premises, Customer shall ensure a safe working environment in compliance with all applicable health and safety laws.
4.4 Smart Hosted Solutions Ltd reserves the right to refuse access to its servers to anyone. This clause does not restrict the customer from visiting Smart Hosted Solutions Ltd Data Centre facilities however prior agreements must be made.
4.5 All Services are subject to the Acceptable Use Policy set out in paragraph 4.6 below. Customer shall, at all times in connection with its use of the Services, comply with the Acceptable Use Policy. Smart Hosted Solutions Ltd may make reasonable variations to the Acceptable Use Policy based on revised legislation or Third Party Services Provider requirements but if so it will give Customer 14 day’s prior notice. Customer shall ensure that the Acceptable Use Policy is communicated to Customer Personnel in a timely manner.
4.6 Customer will not use the Products, Services, or any Smart Hosted Solutions Ltd Equipment:
4.6.1 to provide, store, host, link to or connect to illegal content, content designed to offend or cause needless anxiety to others, any material which is abusive, indecent, defamatory, obscene, threatening, menacing or likely to cause harassment or which is in breach of any copyright, confidence, privacy or any other rights or scanning software; to distribute illegal, copyright infringing, indecent or offensive material; to send or procure the sending of any unsolicited e-mail; or in an unlawful manner or for any illegal purpose.
4.7 Customer will ensure that all of its Personnel comply with all the duties, obligations and restrictions imposed on Customer by the Agreement, to the extent such duties, obligations and restrictions are applicable to Customer’s Personnel. Any act or omission of any Customer Personnel which, if it had been committed or omitted by Customer, would have been a breach of the Agreement by Customer will be deemed to be a breach of the Agreement by Customer who will be liable to Smart Hosted Solutions Ltd accordingly.
4.8 Where the Products include any software, the same is provided on a licensed basis in accordance with the licence terms and conditions applicable thereto, which Customer agrees that it will comply with.
5.1 Smart Hosted Solutions Ltd will seek to avoid suspending the services to Customer at any time, but without prejudice to any other right or remedy that it may have in such circumstances, Smart Hosted Solutions Ltd reserves the right to suspend provision of any part of the Services
5.1.1 Customer’s use of any of the Services is found to be monopolising the resources available (this policy is only implemented in extreme circumstances and is intended to prevent misuse of the Services); or
5.1.2 Customer is in breach of the Acceptable Use Policy, or otherwise in material breach of these terms and fails to rectify such breach within 14 days of a written request from Smart Hosted Solutions Ltd requiring the same to be rectified; or
5.1.3 the system is required for maintenance, repair or upgrade of any Smart Hosted Solutions Ltd systems and/or the Services (Smart Hosted Solutions Ltd shall use reasonable endeavours to give as much advance notice to Customer as is reasonably practicable in the circumstances); or
5.1.4 it is dealing with any actual or suspected security breach, virus, or attack or any misuse by any person of any Smart Hosted Solutions Ltd Products and/or the Services and cannot reasonably deal with that without suspending the service; or
5.1.5 It is necessary because of an emergency; or
5.1.6 It is required by any regulatory, governmental or other competent authority; or
5.1.7 the Services depend on any Third Party Services and that Third Party Service is suspended by the relevant Third Party Services Provider; or
5.1.8 Customer fails to pay any Fees in accordance with the provisions of the Agreement and fails to rectify such failure within 7 days of a written request from Smart Hosted Solutions Ltd requiring the same to be rectified.
5.2 Smart Hosted Solutions Ltd may from time to time close down the whole or part of the network for routine repair or maintenance work. Such work will be carried out between 4am and 8am on Saturdays UK local time. Smart Hosted Solutions Ltd shall give Customer as much notice as in the circumstances is reasonable and shall endeavour to carry out such works during the scheduled maintenance periods as published by Smart Hosted Solutions Ltd as appropriate. Customer may receive notification of these routine repairs or maintenance work by subscribing on the following web page: status.joinvia.com (http://status.joinvia.com).
5.3 Smart Hosted Solutions Ltd may from time to time without notice close down or restrict the whole or part of the Services where necessary for emergency repair, to prevent overload of the network, or to preserve the safety, security or integrity of the Services and traffic conveyed. Smart Hosted Solutions Ltd shall at its sole discretion decide when such action is necessary.
5.4 Customer’s internal network configuration and any equipment that it uses with the Services that is not a Product or Smart Hosted Solutions Ltd Equipment remains the responsibility of Customer. Any interruptions to the Services that occur as a result of an internal configuration or equipment issue may not be deemed as an interruption or suspension of the formal provision of the Services and Smart Hosted Solutions Ltd shall have no liability in this respect.
5.5 Where provision of any part of the Services is suspended by Smart Hosted Solutions Ltd in accordance with paragraph 5.1.1, 5.1.2 or 5.1.8, Smart Hosted Solutions Ltd shall be entitled to charge Customer its standard reconnection fee (of UK£99) which Customer shall pay to Smart Hosted Solutions Ltd prior to Smart Hosted Solutions Ltd recommencing provision of the Services.
6.1 All Fees payable monthly or yearly, or as indicated in the Purchase Order will be paid by Customer in advance and will not be refundable in whole or part if the Agreement or relevant part is terminated by Customer during the period to which the payment relates.
6.2 Smart Hosted Solutions Ltd reserves the right to require the payment of such Fees as it shall specify in the Purchase Order upfront prior to the commencement of the provision of the Services or any Products or before any order is progressed.
6.3 All other Fees (unless indicated otherwise in the Applicable Appendices or Purchase Order) shall be payable by Customer following provision of the relevant Services or delivery of the Products, or, where provision of the relevant Services continues for more than one month, monthly in arrears.
6.4 Additional Fees will become payable if Customer exceeds use levels or restrictions set out in the Applicable Appendices or Purchase Order.
6.5 Any total sum for the Fees set out in a Purchase Order is (unless stated in the Purchase Order to be a fixed and firm amount) an estimate of the Fees only and not a fixed price quotation.
6.6 Smart Hosted Solutions Ltd shall be entitled to alter the Fees at any time, but no such alteration may take effect earlier than the end of the Initial Term except where the costs incurred by Smart Hosted Solutions Ltd in the provision of the relevant Services or Products increase through factors that are outside of Smart Hosted Solutions Ltd.’s control, including but not limited to electricity and charges levied by Third Party Services Providers. Smart Hosted Solutions Ltd shall give Customer no less than 30 days’ notice of such alterations.
6.7 Any sums payable by Customer to Smart Hosted Solutions Ltd under the Agreement are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by Customer at the appropriate rate.
6.8 Customer agrees to pay Smart Hosted Solutions Ltd payment for any invoices within 30 days of the invoice issue date. If invoices are not settled in full by then, Customer will, without prejudice to its other rights and remedies, be liable to pay interest on any sum outstanding from the due date for payment on a daily basis until payment is made (whether before or after any judgement) in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1998.
6.9 Smart Hosted Solutions Ltd may make a search in relation to Customer with a credit reference agency (and make other credit enquiries from time to time), keep a record of that search and enquiries, and share that information with relevant third parties. Smart Hosted Solutions Ltd may also make enquiries about the principle directors/proprietors of Customer with a credit reference agency.
6.10 All Fees shall be paid by such method as agreed between the parties from time to time (which may include payment by direct debit or BACS) to such account as Smart Hosted Solutions Ltd may specify from time to time.
6.11 All payment should be made in Great British Pounds (GBP).
6.12 All payments to be made by Customer will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless Customer is required by law to make any such deduction or withholding.
7.1 Smart Hosted Solutions Ltd will, free of charge, within a period of 12 months from the date of delivery of the Products which are proved to the reasonable satisfaction of Smart Hosted Solutions Ltd to not comply with specification due to defects in material or workmanship, repair, or at its option replace, such Products. Provided that Smart Hosted Solutions Ltd complies with this obligation it shall have no further liability to Customer in connection with such non-compliance. This obligation will not apply where:
7.1.1 The Products have been improperly altered in any way whatsoever, or has been subject to misuse or unauthorised repair;
7.1.2 The Products have been improperly installed or connected (other than by Smart Hosted Solutions Ltd);
7.1.3 Any maintenance requirements relating to the Products has not been complied with (other than where Smart Hosted Solutions Ltd is responsible for such maintenance under the Agreement); and
7.1.4 Customer has failed to notify Smart Hosted Solutions Ltd of any defect or suspected defect within 14 days of the same coming to the knowledge of Customer, and in any event no later than 12 months from the date of delivery.
7.2 Smart Hosted Solutions Ltd warrants that the Services will be provided with reasonable care and skill.
7.3 Smart Hosted Solutions Ltd does not (and nothing in the Agreement shall be construed so as to) exclude its liability (if any) to Customer:
7.3.1 for breach of Smart Hosted Solutions Ltd.’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982;
7.3.2 for personal injury or death resulting from Smart Hosted Solutions Ltd.’s negligence;
7.3.3 under section 2(3) Consumer Protection Act 1987;
7.3.4 for any matter for which it would be illegal for Smart Hosted Solutions Ltd to exclude or to attempt to exclude its liability; or
7.3.5 for fraud.
7.3.6 for breach of clause 10
7.4 Except as provided in paragraph 7.3, Smart Hosted Solutions Ltd will be under no liability to Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any indirect or consequential loss or for any loss of profits, loss of business, loss of anticipated savings, depletion of goodwill and like loss howsoever caused arising out of or in connection with the Agreement.
7.5 Subject to paragraphs 7.3 and 7.4, Smart Hosted Solutions Ltd.’s aggregate liability in any Contract Term under the Agreement whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or loss howsoever caused will be limited to the Fees payable in that Contract Term.
7.6 Except as set out in paragraph 7.3, Smart Hosted Solutions Ltd hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of Customer.
8. Force Majeure
8.1 Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, total network failure, systems fault (outside the reasonable control of Smart Hosted Solutions Ltd), unauthorised use or access to the IT systems of Smart Hosted Solutions Ltd or Customer, explosion, flood, epidemic, lock outs (whether Registered Address: Smart Hosted Solutions Ltd, Unit 503, 27/31 Clerkenwell Close, London, EC1R 0AT Registered in England and Wales No. 07949577 or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.
Network failure, systems fault, unauthorised use or access to the IT systems of Smart Hosted Solutions Ltd or Customer shall only be regarded as circumstances beyond the reasonable control a party where the circumstances in question still arose after the party took all reasonable steps to maintain resilience and/or prevent the circumstances in question.
9. Term and Termination
9.1 The Agreement shall commence on the Effective Date and shall continue in force for the Initial Term and thereafter shall continue in force unless or until terminated by one party in accordance with paragraph 9 and its sub-paragraphs.
9.2 Unless stated otherwise in the relevant Applicable Appendices, at the end of the initial term the agreement will renew automatically for an additional Contract period unless either party gives to the other not less 30 days’ notice in writing before the contract renewal date.
9.3 Where a customer is terminating a Smart Hosted Solutions Ltd Service, a cancellation email will be raised by Customer (email to be sent to email@example.com). The notice period (30 days) will not commence until Smart Hosted Solutions Ltd has acknowledged receipt of the cancellation email. Smart Hosted Solutions Ltd must acknowledge receipt of this cancellation email within 7 days.
9.4 Smart Hosted Solutions Ltd may by written notice served on Customer terminate the Agreement immediately if Customer:
9.4.1 either is in material breach of any of the terms of the Agreement and such breach is incapable of remedy or, where the breach is capable of remedy, fails to remedy such breach within 14 days after service of a written notice from Smart Hosted Solutions Ltd specifying the breach and requiring it to be remedied;
9.4.2 is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, makes a proposal for a voluntary arrangement or convenes a meeting of its creditors to consider such a proposal, becomes subject to any voluntary arrangement, has a receiver, manager, or administrative receiver appointed over any of its assets, undertaking or income, passes a resolution for its winding-up, is subject to a petition presented to any court for its winding-up, has a provisional liquidator appointed, has a proposal made for a compromise or arrangement under Part 26 Companies Act 2006, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator filed at any court by any person or is the subject of a notice to strike off the register at Companies House;
9.4.3 Has any distraint, execution or other process levied or enforced on any of its property; or
9.4.4 Ceases to trade.
9.5 The termination of the Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination. The clauses in the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
9.6 Subject to the provisions of paragraph 6.13, on termination of this Agreement howsoever arising each party will return to the other any property of the other in its possession or control.
9.7 Without prejudice to any other of its rights and remedies but subject always to Smart Hosted Solutions Ltd.’s obligations under paragraph 10:
9.7.1 Smart Hosted Solutions Ltd will be entitled to remove Customer’s data from its systems and any Smart Hosted Solutions Ltd Equipment and/or put the Smart Hosted Solutions Ltd Equipment to any use other than Customer’s following termination of the Agreement. Smart Hosted Solutions Ltd is not required to back up such data or return the same to Customer prior to any such removal, however should a request be made at the point of cancellation of the Smart Hosted Solutions Ltd Products and Services by Customer, Smart Hosted Solutions Ltd will provide such data; and
9.7.2 in the event of any termination by Smart Hosted Solutions Ltd pursuant to paragraph 9.4, or by Customer pursuant to any provision of these conditions, Customer shall be liable to pay or reimburse Smart Hosted Solutions Ltd for any cancellation charges that may be due to any Third Party Services Provider or otherwise due as a consequence of such termination.
10. Data and Confidential Information
10.1 Smart Hosted Solutions Ltd reserves the right to hold the names and other information provided by and relating to Customers in a computerised database. This data will be used to enable the provision and maintenance of Services, and may in certain circumstances be supplied by Smart Hosted Solutions Ltd to Third Party Service Providers and any other suppliers to Smart Hosted Solutions Ltd to enable the provision or maintenance of the Services.
10.2 Where Smart Hosted Solutions Ltd is processing any personal data relating to Customer in connection with the provision of the Services, it is doing so on behalf of Customer as a “data processor” under the Data Protection Act 1998, and Customer is the “data controller”. Smart Hosted Solutions Ltd will comply with its obligations under the Data Protection Act 1998 as data processor.
10.3 In particular Smart Hosted Solutions Ltd will (1) process such personal data solely on the instructions of Customer; and (2) implement and maintain, for such time as it remains a data processor, appropriate technical and organisational measures against unauthorised or unlawful processing of that personal data and against accidental loss or destruction of, or damage to that personal data.
10.4 Smart Hosted Solutions Ltd shall maintain its Service using information and physical security policies and procedures consistent with good industry practice.
10.5 Each party will keep confidential:
10.5.1 The terms of the Agreement; and any and all Confidential Information that it may acquire in relation to the other party
10.6 Neither party will use the other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement. Each party will ensure that its officers and employees comply with the provisions of paragraphs 10.5 and 10.6.
10.7 Smart Hosted Solutions Ltd reserve the right to replay call recordings for the sole purpose of server diagnostics. Smart Hosted Solutions Ltd will not disclose any information to any third party whatsoever unless required by any Regulatory body or government organisation having jurisdiction to do so. Where lawful, Smart Hosted Solutions Ltd. shall give Customer notice of any such disclosure prior to exercising it.
10.8 Smart Hosted Solutions Limited reserves the right to store call metadata and any call records including but not limited to instant messages, voice and video calls, desktop sharing and any conference modality related to service monitoring and regulatory or legal requirements. All call metadata and call records are deemed to be confidential information and will be treated by Smart Hosted Solutions Ltd in such a way. Smart Hosted Solutions Ltd will not, unless directed by Customer, a regulatory body or required by Government, record any content of communications including but not limited to; instant messages, voice and video calls, desktop sharing and conferences.
10.9 Smart Hosted Solutions Ltd recognizes that Customer and its affiliates own the telephone numbers used to access the service and will cooperate promptly with any request to assign or port the numbers at any time, subject to the Smart Hosted Solutions Ltd porting out fee.
11.1 Each right or remedy of Smart Hosted Solutions Ltd under any Agreement is without prejudice to any other right or remedy of Smart Hosted Solutions Ltd under the Agreement.
11.2 If any condition or part of the Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Agreement and will be ineffective without, as far as is possible, modifying any other provision or part of the Agreement and this will not affect any other provisions of the Agreement which will remain in full force and effect.
11.3 No failure or delay by Smart Hosted Solutions Ltd to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
11.4 Smart Hosted Solutions Ltd may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Agreement
11.5 The Contract is personal to Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Agreement without Smart Hosted Solutions Ltd.’s prior written consent.
11.6 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
11.7 The Agreement contains all the terms which Smart Hosted Solutions Ltd and Customer have agreed in relation to the Services and Products and supersedes any prior written or oral agreements, representations or understandings between the parties relating thereto. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Smart Hosted Solutions Ltd which is not set out in the Agreement. Nothing in this paragraph 11.7 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
12 Applicable Law and Jurisdiction
The construction, performance and validity of the Agreement will be governed by English law and the English courts have jurisdiction to settle any disputes which may arise out of or in connection with it.
13 Smart Hosted Solutions
Smart Hosted Solutions Ltd will be under no liability to Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any indirect or consequential loss or for any loss of profits, loss of business, loss of anticipated savings, depletion of goodwill and like loss howsoever caused arising out of or in connection with the loss of call recording data or records.
15. Emergency Services Calling
15.1 Smart Hosted Solutions Ltd provide emergency services calling in the United Kingdom Mainland Only. Emergency services calling is not available for any other countries. It is the responsibility of Customer to provide additional provisions for calling the emergency services above and beyond the Smart Hosted Solutions Ltd.’s Products and Services.
15.2 When using Smart Hosted Solutions Ltd.’s Products and Services, note the following:
15.2.1 A power cut, client/server failure whether or not the responsibility of Smart Hosted Solutions Ltd or internet connection failure can lead to Smart Hosted Solutions Ltd Products and Services failing to establish a successful call, including any calls to the emergency services.
15.2.2 If you place a successful call to the emergency services you will need to tell the emergency services operator where you are physically located so that the correct emergency organisation can respond to your emergency and knows where to find you. If you do not provide this information when prompted, you acknowledge that your emergency call may not be completed, may be answered by an emergency service located in the wrong location and you will not be able to gain access to your required emergency services. Smart Hosted Solutions Ltd have no liability for your failed emergency call in such circumstances.
15.3 In the United Kingdom, Smart Hosted Solutions Ltd comply with Ofcom (the United Kingdom Telecommunications Regulator) regulation regarding the provision of Emergency Services access from a “VOIP Services” provider, however Smart Hosted Solutions Ltd provide no warranties nor accept any responsibility for the use of their Services or Products for calling the Emergency Services. Smart Hosted Solutions Ltd will be under no liability to Customer whatsoever for any failed attempt to contact the emergency services whilst utilising their Products or Services.
15.4 Your emergency call will be answered by the emergency services centre nearest to the area code of your outbound CLI (Caller Line Identification). E.g. If your outbound CLI is in the London area code, your emergency call will be passed the Metropolitan emergency services. As the Smart Hosted Solutions Ltd Products and Services can be utilised all over the world, it is your responsibility to inform the emergency services of your current location. If you do not provide this information when prompted, you acknowledge that your emergency call may not be successful. Smart Hosted Solutions Ltd will be under now liability whatsoever for this failed emergency services call.
List of Appendices:
- Appendix A – Microsoft End User License Terms
- Appendix B – Service Level Agreement
- Appendix C – Gamma End User License Terms
- Appendix D – VIA Connect Service Level Agreement
Appendix A – Microsoft End User License Terms
This document governs the use of Microsoft software, which may include associated media, printed materials, and ‘online” or electronic documentation (individually and collectively, “Products”) provided by Smart Hosted Solutions Ltd (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.
“Client Software” means software that allows a Device to access or utilize the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or other electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a server.
“Software Documentation” means any end user document included with server software
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.
2. OWNERSHIP OF PRODUCTS
The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). A” title and intellectual property rights in and to the Products (and the constituent elements thereof, Including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products) are owned by Microsoft or its suppliers. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
3. USE OF CLIENT SOFTWARE
You may use the Client Software installed on your Devices by Customer only in accordance with the instructions, and only in connection with the services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during your use of the Client Software.
4. USE OF REDISTRIBUTION SOFTWARE.
In connection with the services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software. YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO CUSTOMER, WHICH TERMS MUST BE PROVIDED TO YOU BY CUSTOMER. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Customer.
You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY
You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7. NO RENTAL
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of software services in accordance with the terms of this agreement and any agreement between you and Customer.
Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customers agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts.
NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY CUSTOMER AND NOT BY MICROSOFT, ITS AFFILIATES OR SUBSIDIARIES.
10. PRODUCT SUPPORT
Any support for the Products is provided to you by Customer and is not provided by Microsoft, its affiliates or subsidiaries.
11. NOT FAULT TOLERANT.
THE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRICTIONS
The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH
In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
Appendix B – Service Level Agreement
This Service Level Agreement should be read in conjunction with the Terms and Conditions, Purchase Order and relevant Appendices agreed between Smart Hosted Solutions Ltd and Customer.
This Service Level Agreement (SLA) applies to Customer and covers the Products and Services provided by Smart Hosted Solutions Ltd as long as Customer’s account is current (i.e., not past due).
Smart Hosted Solutions Ltd.’s goal is to achieve 100% Service availability for all customers.
Service Level Commitment
The “Monthly Uptime Percentage” for a Service is calculated using the following formula:
“User Minutes” means the total number of minutes in a month, less all Scheduled Downtime (in minutes), multiplied by the total number of users Customer has enabled with Smart Hosted Solutions Ltd.
“Downtime” means the period during which the aspects of a Service are unavailable (in minutes) as determined below, excluding (i) Scheduled Downtime; and (ii) unavailability of a Service due to the exceptions listed below, multiplied by the number of users impacted.
If the Monthly Uptime Percentage falls below 99.9% for any given month, you may be eligible for the following Service Credit:
|Monthly Uptime Percentage||Service Credit|
For the service to be considered “down”, Customer must experience a complete service outage. A complete service outage means 100% of Customer’s users cannot make or receive calls to or from the PSTN (Public switched telephone network).
Customer shall not receive any credits under this SLA in connection with any failure or deficiency of Service Availability caused by or associated with:
- Circumstances beyond Smart Hosted Solutions Ltd.’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLA;
- Failure of access circuits to Smart Hosted Solutions Ltd.’s Data Centres, unless such failure is caused solely by Smart Hosted Solutions Ltd including failure by Smart Hosted Solutions Ltd to make timely payment to its suppliers and provided that Smart Hosted Solutions Ltd took all reasonable steps to maintain resilience and/or prevent the circumstances in question from occurring;
- Scheduled maintenance as set out in paragraph 5.2 and emergency maintenance and upgrades;
- False SLA breaches reported as a result of outages or errors of any Smart Hosted Solutions Ltd.’s measurement system;
- Customer’s acts or omissions (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom scripting or any negligence, wilful misconduct, or use of the Services in breach of Smart Hosted’s Terms and Conditions and the Acceptable Use Policy;
- Outages elsewhere on the Internet that hinder access to the Products and Services that otherwise are considered as available.
Credit Request and Payment Procedures
In order to receive a service credit, customer must make a request by submitting a ticket to the billing department via email to firstname.lastname@example.org.Each request in connection with this SLA must include the dates and times of the unavailability of Customer’s Products or Services and must be received by Smart Hosted within fourteen (14) business days after customer’s Products or Services were not available. If the unavailability is confirmed by Smart Hosted Solutions Ltd, credits will be applied on the next billing cycle after receipt of customer’s credit request. Credits are not refundable and can be used only towards future billing charges. Unless Customer chooses to cancel any Smart Hosted Solutions Ltd Products or Services, at which point a refund will be applied.
Notwithstanding anything to the contrary herein, the total amount credited to customer in a particular month under this SLA shall not exceed the total fee paid by customer for such month for the affected Products or Services. Credits are exclusive of any applicable taxes charged to customer or collected by Smart Hosted Solutions Ltd and are Customer’s sole and exclusive remedy with respect to any failure or deficiency in the Service Availability of customer’s Products and Services.
I hereby confirm on behalf of Customer (the “Applicant”) to its telecommunications service provider, and I am duly authorised so to do, that:
- the number requested for use as a presentation number (“PN”) is either allocated to the Applicant and the Applicant does not require the permission of anyone else in relation to that number or the requested PN is not allocated to the Application but consent from the allocated owner for its user as a PN has been obtained and has not been withdrawn;
- the requested PN is in use;
- the Applicant shall immediately inform its telecommunications service provider if any of the information in this statement ceases to be correct;
- the telecommunications service provider may suspend and/or withdraw use of its Presentation CLI Service if it is subsequently found that the information in the is was, or has become, inaccurate or if the PN is being misused in any way;
- the Application understands that the PN must not be a number that connects to a revenue sharing number that generates excessive or unexpected call charges in which case the telecommunications service provider may suspend and/or withdraw use of the Presentation CLI Service;
- the Applicant acknowledges that its network service provider may withdraw the service without penalty in the event that a) having made the appropriate configuration change the Applicant fails to make at least one test call within twenty (20) working days and/or b) the Applicant reverses the configuration change.
The Applicant hereby indemnifies its telecommunications service provider and any underlying network service provider against any claims by any third party relating to use of the PNs.
The Applicant hereby acknowledges that the telecommunications service provider may withdraw this facility at any time for regulatory or legal reasons or if it suspects its misuse or if its use is challenged by any third party.
Appendix D – VIA Connect Service Level Agreement
VIA Connect enables organisations to connect to the VIA Cloud using a dedicated interconnect. The underlying service provider of this service is Exponential-e, 100 Leman Street, London, E1 8EU, Company Number 04499567.
|>0.1 Below Target||5%|
|>0.5 Below Target||10%|
Availability is calculated on a calendar monthly basis using a 730 hour month and the following formula:
P = Percentage availability; A = Sum of all events of unavailable service in that month measured in hours. Non-availability is measured from the time an incident ticket is raised to the time the service is restored and the incident ticket is closed by Exponential-e.
Service Credit Rules and How to Claim
Exponential-e and Smart Hosted Solutions shall have no liability for any failure to meet any target service levels due to, or as a result of, any of the following reasons:
- Any force Majeure Event
- Suspension of service in accordance with an clauses in these terms and conditions
- Customer default or delay, or any neglect, wilful or reckless act, fault or omission by Customer, or any uses of the Service for whom Customer is responsible.
- Customer provided or supported equipment.
- Access issues and delays along the route of the Service(s) or at the Customer site(s).
In order to receive a service credit, customer must make a request by submitting a ticket to the billing department via email to email@example.com. Each request in connection with this service level agreement must include the dates and times of the unavailability of Customer’s Products or Services and must be received by Smart Hosted within fourteen (14) business days after VIA Connect was not available. If the unavailability is confirmed by Smart Hosted Solutions Ltd, credits will be applied on the next billing cycle after receipt of customer’s credit request. Credits are not refundable and can be used only towards future billing charges. Unless Customer chooses to cancel any Smart Hosted Solutions Ltd Products or Services, at which point a refund will be applied.
Notwithstanding anything to the contrary herein, the total amount credited to customer in a particular month under this SLA shall not exceed the total fee paid by customer for such month for VIA Connect. Credits are exclusive of any applicable taxes charged to customer or collected by Smart Hosted Solutions Ltd and are Customer’s sole and exclusive remedy with respect to any failure or deficiency in the Service Availability of VIA Connect.
Appendix E – Smart Hosted Solutions Ltd Acceptable Use Policy
Smart Hosted Solutions Ltd reserves the right to modify the Acceptable Use Policy (“AUP”) from time to time. Changes to this Acceptable Use Policy will be notified to Customer in accordance with the terms and conditions of our agreement with the Customer.
Smart Hosted Solutions Ltd aims to promote a high level of responsible behaviour in connection with the use of the Internet, the Smart Hosted Solutions Ltd Network and the Smart Hosted Solutions Ltd services, systems, websites and products including but not limited to those services that utilize or provide access to the Smart Hosted Solutions Ltd Network, any other network (including the PSTN) and/or the Internet (the “Services”) and for this purpose has created this Acceptable Use Policy, inter alia, to:
- define acceptable practices for the use of any of the Services;
- protect the interests and reputations, and resources of Smart Hosted Solutions Ltd and its Customers;
- protect, as far as Smart Hosted Solutions Ltd is reasonably able to do, the Internet community as a whole from the improper and/or illegal or criminal behaviour;
- Protect Smart Hosted Solutions Ltd and its Customers from any third party claims alleging that the use of the Smart Hosted Solutions Ltd Network or the Services is inappropriate or creates damage to such third party.
All Customers of Smart Hosted Solutions Ltd must read and comply with this Acceptable Use Policy and, where such Customers provide services to their own users (e.g. resellers or downstream service providers), take all reasonable steps to ensure that their own users are aware of and comply with this Acceptable Use Policy or an acceptable use policy with terms the same or substantially similar to this Acceptable Use Policy, including, where necessary, terminating access for any such users who do not comply with the Acceptable Use Policy. Where the context requires references to “Customer” in this Acceptable Use Policy will be deemed to include the Customer’s users or customers.
All Customers of Smart Hosted Solutions Ltd are responsible for violations of this AUP by anyone using the Customer’s services with the Customer’s permission or on an unauthorized basis as a result of the Customer’s failure to use reasonable security precautions. Customer use of the Services to assist another person in an activity that would violate this AUP if performed by Customer is a violation of the AUP.
By using any of the Services, a Customer acknowledges that it has read, understood and agrees to comply with the Acceptable Use Policy. Customers must also ensure that the terms under which they provide services to their own users require that each such user acknowledges that they have read, understood and agreed to abide by this Acceptable Use Policy or an acceptable use policy with terms the same or substantially similar to this Acceptable Use Policy,. Breaches of the Acceptable Use Policy by a user who obtains access via a Customer (e.g. resellers or downstream service providers) will also be considered to be a breach of the Acceptable Use Policy by that Customer.
Each Customer must report to Smart Hosted Solutions Ltd by e-mail to firstname.lastname@example.org any violations of the Acceptable Use Policy promptly after first becoming aware of such violation and shall provide all reasonable assistance to Smart Hosted Solutions Ltd to investigate and resolve any reported claims, complaints and/or problems arising out of the Services.
Customers must immediately report to Smart Hosted Solutions Ltd by e-mail to email@example.com any network issue that might compromise the stability, continuity or security of the Services. Customers must co-operate with Smart Hosted Solutions Ltd and any properly authorised law enforcement or regulatory authority or body to investigate claims of criminal, illegal or other inappropriate behaviour.
Any complaints or enquiries regarding any breach of the Acceptable Use Policy should be sent by e-mail to firstname.lastname@example.org.
While Smart Hosted Solutions Ltd reserves the right to suspend or terminate the Services or the Customer’s access thereto, edit or remove any content that it deems to be in breach of the Acceptable Use Policy or is otherwise harmful or offensive, Smart Hosted Solutions Ltd does not intend to review, monitor or control content sent or received by Customers using the Services unless required by law and accordingly Smart Hosted Solutions Ltd accepts no responsibility or liability to Customers or any other person for the content of any communications that are transmitted by or made available to Customers or their users, regardless of whether they originated from the Smart Hosted Solutions Ltd Network or the Services.
In no event shall Smart Hosted Solutions Ltd be liable to any user of its Services (Customer or end user) nor any third party for any direct, indirect, special or consequential damages for actions taken pursuant to this AUP, including, but not limited to, any lost profits, business interruption, loss of programs or other data, or otherwise.
3. RIGHTS OF SMART HOSTED SOLUTIONS LTD IN CASE OF VIOLATION OF THIS AUP
3.1 Suspension or termination
If Customers or their users engage in conduct which is in violation of the Acceptable Use Policy or is otherwise illegal or improper, Smart Hosted Solutions Ltd reserves the right to suspend and/or terminate any Service(s) or the Customer’s access to the Service. Where practicable, Smart Hosted Solutions Ltd will attempt to notify the Customer of any activity that breaches this Acceptable Use Policy and request that the Customer or its user ceases such activity. However, where any activity of a Customer threatens the integrity or viability of the Smart Hosted Solutions Ltd Network or the Services or involves illegal acts, fraud, unauthorised access/interference, harassment, copyright infringement or interference with Smart Hosted Solutions Ltd’s monitoring, Smart Hosted Solutions Ltd reserves the right to suspend any Service or a Customer’s access to any Service without notice.
In addition, Smart Hosted Solutions Ltd reserves the right to take appropriate action, legal or otherwise, including cooperation with authorities, against any Customer or other person responsible for the violation of the Acceptable Use Policy.
Smart Hosted Solutions Ltd may require the Customer to help in resolving a security incident where that Customer system(s) may have been involved.
3.2 Implementation of technical mechanisms to prevent violation
Smart Hosted Solutions Ltd reserves the right, where feasible, to implement technical mechanisms to prevent any violation of the Acceptable Use Policy.
3.3 Costs associated with dealing with the breach
In addition, Smart Hosted Solutions Ltd reserves the right to charge the Customer to cover administrative costs associated with the time and resources used to deal with the breach of this AUP by the Customer including, but not limited to, recovery of the costs of identifying offenders and removing them from or discontinuing providing them the Services.
4. PROHIBITED USE
The Customer must not engage in any activity whether lawful or unlawful which is detrimental to Smart Hosted Solutions Ltd’s operations, reputation, goodwill or customers. The following are non-exclusive examples of use that is strictly prohibited under the Acceptable Use Policy and are provided merely as guidelines:
4.1 Illegal Activity
Customers must only use the Services for lawful purposes and must not use the Services for any purpose which breaches any applicable law, regulation, treaty or tariff. This includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade secret, patent, or other intellectual property right without proper authorisation, and/or the transmission of any material which constitutes an illegal threat, violates applicable import and export laws (including the transmission of encryption software), is obscene, indecent, defamatory or otherwise in violation of any applicable law including, but not limited to, financial services, consumer protection, unfair competition, antidiscrimination, or false advertising. Without limitation, illegal activity will also include defamation, obscenity, child pornography or software piracy.
Customer may not use the Services to engage in any conduct that is likely to result in retaliation against Smart Hosted Solutions Ltd Services., Smart Hosted Solutions Ltd or Smart Hosted Solutions Ltd’s employees, officers or agents, including engaging in behaviour that results in any server being the target of a distributed denial of service attack (DDoS); or Any action which directly or indirectly results in any of our IP space being listed on any abuse database (i.e. Spamhaus).
Customers must not use the Services to harass any person, whether by language or frequency. Continuing to send any message after being asked to stop will generally be considered harassment and harassment may take any recognised form and will include, but not be limited to, harassment according to race, nationality, religion, sex, sexual persuasion, political affiliation, trade union membership, physical or mental appearance or state or any other form of harassment.
4.3 Violation of Other Applicable Acceptable Use Policies
Customers must not breach the applicable acceptable use policies of any other networks, machines or services which are accessed by or through the Services.
4.4 Vulnerability Testing/Unauthorised Access/Interference
Customers must not attempt to probe, scan, penetrate or test the vulnerability of Smart Hosted Solutions Ltd’s Services, or to breach Smart Hosted Solutions Ltd’s security or authentication measures, whether by passive or intrusive techniques or gain unauthorised access to, or attempt to interfere with or compromise the normal functioning, operation or security of neither the Services or the Smart Hosted Solutions Ltd network, nor any network, systems, machines or services.
Customers must not use the Services or the Smart Hosted Solutions Ltd Network to compromise or deny any third party access the Services or the Internet.
A Customer may not use the Services to monitor any data, information or communications without proper authorisation. Customers must not attempt to gain unauthorised access to the user accounts or passwords of other users, or otherwise violate the privacy of any other Customers or users. Customers must not attempt to intercept, redirect or otherwise interfere with communications intended for another person.
4.5 Fraud, phishing, pharming
Customers must not attempt to fraudulently conceal, forge or otherwise falsify their or another person’s identity in connection with the use of the Services.
4.6 Spoofing and forging
Any use of another person’s account to relay any messages without express authorisation from such person is prohibited.
4.8 Electronic Communications
Customer may not distribute, publish, or send through the Services: (1) unsolicited advertisements, solicitations, commercial messages or promotional messages of any kind (commonly referred to as “spam”); (2) unsolicited informational announcements; (3) numerous copies of the same or substantially similar messages; (4) empty messages; (5) messages which contain no substantive content; or (6) very large messages or files that disrupt a server, account, newsgroup, or chat service.
4.9 Unauthorised monitoring, scanning, or intercepting
Customers must not monitor or scan the networks of others, or the use by other persons of the Services or any other services without proper authorisation. Customers must not intercept messages or access data for which the Customer is not the intended recipient or log into a server account of another Customer without proper authorisation.
Customer shall respect all applicable laws concerning the privacy of online communications.
4.12 Provision of false information
Customers must not provide false or incorrect information or data to Smart Hosted Solutions Ltd when signing up for any Services. Smart Hosted Solutions Ltd reserves the right to suspend or terminate any Service where false or incorrect information or data has been provided.
4.13 No High Risk Use
Customer may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. Customer must inform Smart Hosted Solutions Ltd if Customer intends to use, the Services in connection with aircraft or other modes of human mass transportation or nuclear or chemical facilities.
4.14 Interference with Smart Hosted Solutions Ltd’s monitoring
Customers must not attempt to circumvent or distort the procedures or processes that Smart Hosted Solutions Ltd uses to measure time, bandwidth use, availability, health or other utilization of the Services.
4.15 Excessive Usage
If Smart Hosted Solutions Ltd has reserved specific bandwidth limitations and/or burst and/or other usage for a Customer in accordance with a Customer’s request, that Customer’s use of the Service shall not be in excess of those limitations.
4.16 Password Protection and Transfer of Account
Customers are responsible for protecting the confidentiality of their password and user ID and may not share either their password or user ID with any other person. Customers may not transfer their account to anyone without the prior written account of Smart Hosted Solutions Ltd.
Customers must report to Smart Hosted Solutions Ltd by e-mail to email@example.com any loss of their password or any other situation in which they believe the security of their password may have been compromised promptly after first becoming aware of such loss or other situation.
Customers must only use the Services in accordance with all applicable intellectual property laws. Smart Hosted Solutions Ltd reserve the right to remove or disable any material it has reason to believe infringes applicable Intellectual Property laws.
Customers must only use the Services respecting all applicable Intellectual Property Rights of any third party. Smart Hosted Solutions Ltd shall reserves the right to remove or disable any material it has reason to believe infringes any third party Intellectual Property Rights.
For the avoidance of doubt, Smart Hosted Solutions Ltd does not accept any responsibility or liability to owners or other users of any Intellectual Property Rights, for the acts and/or omissions of Customers in connection with or related to the Services in respect of any Intellectual Property Rights.
Customers must use the Services in accordance with the generally accepted norms and expectations of the Internet community in force.
Customer may not (and Customer may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of any Software or programme provided by Smart Hosted Solutions Ltd as part of its Services any part thereof, unless this is expressly permitted or required by law, or unless specifically authorised by Smart Hosted Solutions Ltd in writing.
5. CUSTOMER INCIDENTS
When Customer is a victim of an event that would be considered as prohibited use had the Customer been the instigator of such event, Smart Hosted Solutions Ltd reserves the right to act as per clause 3 of this AUP.