Terms of Service
PositiveVPS.com is a provider of Internet related services such as virtual private servers (VPS), shared hosting and dedicated servers and the Client may from time to time require such services. This Agreement sets out the terms which have been agreed between PositiveVPS.com and the Client for the provision of such Internet services and shall be supplemented from time to time by Schedules setting out specific details of such services requested by the Client.
DEFINITIONS
In this Agreement, unless the context requires otherwise, the following words shall have the following meanings:
GENERAL
The Client, where the Client an individual, or the person entering into this Agreement on behalf of the Client, where the Client is an entity, warrants that they are 18 years of age or older, and capable and authorised to enter into this Agreement.
PositiveVPS.com reserves the right at any time and from time to time to amend, improve or correct the Services, Software and/or Hardware (or any part thereof) provided that such modification does not materially affect the overall quality of the Services. This includes the right to substitute the Hardware with Hardware of similar specification, where necessary. PositiveVPS.com shall endeavour to give the Client reasonable notice of such modifications but this may not always be possible and PositiveVPS.com shall not be liable to the Client or to any third party for any such modification or any failure to give such notice. PositiveVPS.com reserves the right at its sole discretion to suspend any or all of the Services (temporarily or permanently) on the occurrence of any unscheduled maintenance or any of the following (each of the following shall be a "Suspension Events"):
(i) Notified Maintenance;
(ii) issue by any competent authority of an order which is binding on PositiveVPS.com and which affects the Services and which can only be dealt with properly by suspension of the Services;
(iii) if the Client fails to pay any amounts due under this Agreement when they are due; (iv) if any events occur which would entitle PositiveVPS.com to terminate this Agreement;
(v) the Bandwidth used by the Client in relation to the Services exceeds the agreed level and PositiveVPS.com determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by PositiveVPS.com from time to time.
It is the Client's responsibility to keep the server security and software up to date. Whilst PositiveVPS.com will make reasonable attempts to keep services secure the limitation on lability resulting in any breach, wether preventable or not, will be limited to the amounts described within the DISCLAIMER section of this agreement.
The Client is liable for any legal contracts or end user license agreements as a result of any third party software installed by The Client. ?In the event of a server crash, once notified, PositiveVPS.com will endeavour to reboot the Client's server as soon as possible but offer no timed guarantee. The Client may have access to an automatic reboot switch, in which case an instantaneous reboot may be possible. PositiveVPS.com make no guarantee as to the functionality of the reboot switch, but will make all reasonable endeavours that the reboot switch is functioning properly.
It is the Client's responsibility to maintain and to enter a contact email address, postal address and telephone number for the Client on the Control Panel, and to ensure such contact details are current and up to date at all times. ?PositiveVPS.com may provide the Services to the Client from verbal or email order received by it from any authorised person. A person shall be an authorised person for the purpose of this clause if his name is listed at the time of order on the Control Panel.
This Agreement together with the Schedule constitutes the whole and only agreement and understanding between the parties relating to its subject matter and supersedes and extinguishes any drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, between the parties in connection with the subject matter of this Agreement whether existing prior to or at the same time as this Agreement. The Agreement will be on these conditions only, to the exclusion of any other terms and conditions (including any terms and conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document). The Client's terms and conditions shall not apply to this Agreement.
DURATION AND TERMINATION
This Agreement shall come into effect upon the date of this Agreement and, subject to the provisions of this Agreement shall continue in force for an initial term of 1 month from the date the Services are available to the Client and indefinitely after that until terminated by either party giving not less than one (1) days prior written notice to expire on or after the expiry date of the initial term.? Without prejudice to any other rights to which PositiveVPS.com is entitled, PositiveVPS.com may give notice in writing to the Client terminating this Agreement with immediate effect if:
1) the Client commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 15 days of being notified of the breach;
2) an order is made or a resolution is passed for the winding up of the Client;
3) an order is made for the appointment of an administrator to manage the affairs, business and property of the Client or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act (1986)) a receiver is appointed of any of the Client's assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Client or if any other person takes possession of or sells the Client's assets;
5) the Client makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
6) there is a change of the ability to direct the affairs of the Client whether by virtue of the ownership of shares, contract or otherwise of the Client;
7) the Client purports to assign its rights or obligations under this Agreement.
For the avoidance of doubt and without limitation, a breach of any of any of the payment provisions contained in this Agreement, or a breach of the Acceptable Use Policy is a material breach for the purposes of this Agreement.? Refunds will be given only at the discretion of PositiveVPS.com and generally not offered unless there are extranious circumstances. PositiveVPS.com is the sole entity that defines the conditions under which a refund will be offered.
DISTANCE SELLING REGULATIONS
Under Regulation 10 of The Consumer Protection (Distance Selling) Regulations 2000, the Client may have the right to cancel this Agreement for seven working days after the day after this Agreement has been concluded. However, it is agreed between PositiveVPS.com and the Client that the Services may commence before the end of that cancellation period, and then the Client will lose the right to cancel from the date that PositiveVPS.com provides the Client with the access details of the Services.
SUPPORT AND MAINTENANCE
Maintenance and support shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than PositiveVPS.com or its authorised representatives; or (b) software programmes or hardware supplied by the Client. ?The Client shall document and promptly report all errors or malfunctions of the Services, Hardware or Software to PositiveVPS.com. The Client shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from PositiveVPS.com provided the procedures specified are reasonable.
The Client shall maintain a current archive copy of all software and data, and shall properly train its personnel in the use of the Services, Hardware and Software. ?Any problems caused by the Client to the Services, (which include, but are not limited to, deletion of necessary operating system files, accidental or intentional infection by a virus/Trojan) may result in extra charges to The Client at £30 or $US 45 per 30 minutes, or part thereof. For any work that will take more than two hours we will seek prior authorisation from the Client by telephone, email, fax, or post.
ACCEPTABLE USE POLICY
PositiveVPS.com's Acceptable Use Policy ("Policy") is intended to help protect the PositiveVPS.com service, PositiveVPS.com clients and the Internet community in general from irresponsible or, in some cases, illegal activities, and the Client agrees to be bound by the Policy.
1. The Client and their end users shall not, nor shall they permit, enable, or assist others, to use the Services for any breach of any applicable law or generally accepted transmission or application protocols applicable to the Internet or any part of it or to anything connected to it or to any user of it. Such prohibited use includes but is not limited to the following:?a. civil infringement of and/or criminal offences relating to copyright, trade marks or any other intellectual property right in any jurisdiction; or?b. commission of any criminal offence (including deliberate transmission of computer viruses) under the Computer Misuse Act 1990 (UK) or any similar legislation in any country; or?c. knowingly or recklessly transmitting, displaying or posting to a publicly accessible service any material which is unlawful or actionably defamatory or an invasion of privacy, breach of an intellectual property right or breach of a right of publicity in any jurisdiction with which any publicly accessible service reasonably appears to have any connection or from which it may reasonably be apprehended that a publicly accessible service is likely to be significantly accessed; or?d. transmitting, transferring, displaying or posting to a publicly accessible service any material in breach of the Data Protection Act 1998 (UK) or similar legislation in any other country or of any material which is confidential or is a trade secret or which affects the national security of the United Kingdom or the said territory or which may expose PositiveVPS.com to any retribution or penalty under the laws and/or regulations and/or decrees of the United Kingdom or any other country relating to the export of or dealing with military or potentially military resources; or?e. use of the Services or the Internet in any manner which is a violation or infringement of any rights of any kind or nature (whether like to any of the foregoing or otherwise) of any person, firm or company; or?f. unauthorised access to the network management equipment of PositiveVPS.com or other Internet service providers; or?g. forgery of Internet addresses or other fields in IP packets by the Client; or?h. any sending of unsolicited email messages or any mass mailing of unsolicited advertising material by the Client; or?i. any activity that potentially could harm the PositiveVPS.com Network, its clients networks or other networks, including but not limited to traffic flooding, malicious overflows, etc; or?j. any activity that PositiveVPS.com decides at its absolute discretion is an unsuitable use of the Services.
2. The Client is responsible for:
a. Maintaining email addresses of the forms postmaster@client.domain and abuse@client.domain for receiving complaints of network abuse activities, as suggested by Internet Official Protocol Standard RFC 2142. Typically, these email addresses will forward emails to the real user accounts of the responsible persons for treating the network misuse complaints.?b. The activities of its customer base or end-users and, by accepting service from PositiveVPS.com, is agreeing to ensure that its clients abide by this Policy. If irresponsible or illegal activity continues, even after PositiveVPS.com tries to communicate with the Client, then the Client may be subject to an appropriate action in order to stop those activities.
3. All complaints related to network misuse - including email abuse - are to be sent to abuse@PositiveVPS.com
4. IRC services or IRC-related services are permitted only if they do not connect to EFnet and/or Undernet. This includes, but is not limited to: "IRCd servers," "eggdrops," "bots," and "bouncers." The purpose of this restriction is to prevent attacks on the PositiveVPS.com service due to malicious activity that has been known to occur on the IRC networks EFnet and Undernet. In the event of an issue occuring from IRC based services we reserve the right to restrict IRC to any client at any time without warning
5. The Client warrants that it will respond to any Abuse Complaints within 48 hours.
PAYMENT
The Client shall pay the price for the Services as set out in the Schedule. An initial payment is required before any set-up work is carried out. PositiveVPS.com invoices for regular payments monthly in advance, unless otherwise agreed in writing.?The price for the Service covers Bandwidth as stated in the Schedule. If the Client exceeds this limit then PositiveVPS.com reserves the right to make additional charges for usage above the limit at its then prevailing charge rate. PositiveVPS.com will endeavour to let the Client know if its bandwidth use exceeds the agreed level, however it is the Client's responsibility to monitor the bandwidth being used by it from time to time using the Control Panel. ?All prices quoted to the Client for the provision of services by PositiveVPS.com are exclusive of any value added tax (VAT) for which the Client may be additionally liable at the applicable rate. Where the Services are purchased with a monthly payment plan comprising a set up fee, this fee is payable immediately. Where a long term contract is purchased, the set up fee is included within the total payment.? The price and all other amounts due under the Schedule shall be paid by the Client by the due date as specified in PositiveVPS.com's invoice. Failure to pay within 3 (three) days will result in server supsension across one or all rented services. After 5 (five) days the service and data will be terminated. Time for payment shall be of the essence. Payment shall only be deemed received by PositiveVPS.com upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any grounds. Should a payment be taken back, via a chargeback or similar, PositiveVPS.com reserves the right to terminate all accounts and services without warning. PositiveVPS.com reserves the right to suspend the Services in case of late payment. Any exercise by PositiveVPS.com of its right to suspend the Services in the case of late payment shall be without prejudice to any other of its rights under this agreement. Notwithstanding suspension of the Services by PositiveVPS.com the Client shall continue to pay the price for the Services in accordance with the terms of this Agreement until this Agreement is terminated in accordance with the terms of this Agreement. PositiveVPS.com understands and will exercise its statutory right to interest and debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 if not paid according to agreed terms.
PositiveVPS.com reserves the right to send overdue accounts to a debt collection agency. All charges involved in the collection of overdue accounts will be payable by the Client.
SERVICE LEVEL AGREEMENT
This SLA applies to Services where the agreement for the Service specifically references this SLA. The objective of this SLA is to document the availability of the Service that PositiveVPS.com is to achieve. This does not constitute any additional liability to PositiveVPS.com, but instead a self-assumed obligation towards the Client. Under the conditions below PositiveVPS.com offers to pay the Client service credits if the availability defined below is not met. ?PositiveVPS.com shall guarantee the availability will be 100% in any calendar month, subject to exclusions as defined below. If PositiveVPS.com fails to meet this guarantee a credit shall be available to the Client as defined below. ?The availability calculation shall exclude periods when outages arise from, or are otherwise indirectly caused by:?-
Outage periods due to any cause other than faults by PositiveVPS.com, including faults or negligence of the Client or problems associated with equipment connected on the Client's side of PositiveVPS.com delivery point,
- In case that the Client's equipment should cause negative effects on the performance, quality and/or operation of the PositiveVPS.com Network, PositiveVPS.com will proceed to disconnect the link, for benefit of the rest of users of the PositiveVPS.com Network. This disconnection won' be cause of penalty under the SLA. PositiveVPS.com will notify the Client as soon as possible about this issue in order for the Client to repair the problems.
- Outage periods reported by the Client in which no fault is observed or confirmed by PositiveVPS.com,
- Any fault period during which service is suspended under provision in this Agreement,
- Downtime when PositiveVPS.com technical staff cannot have access, when the Client is requested to do so for the purpose of investigating the problem and restoring the service, to Client premises and equipment pertaining to the service in case the service should include the management of equipment on the customer site by PositiveVPS.com,
- The Clients services are suspended due to billing or abuse related issues
- The Client requesting PositiveVPS.com to test Client connection although no fault has been detected and/or reported by PositiveVPS.com,?- The Client requesting PositiveVPS.com to upgrade the capacity of the service, if this operation results in an outage.
- During Scheduled Maintenance affecting the Services as defined above.
- Performance degradations and service loss due to Denial Of Service attacks or other unlawful attacks generated inside the Client's network or executed against users inside the Client's network or the Client network infrastructure, will be excluded from SLA calculation as it is within the Client's responsibility to put in place the relevant protection mechanisms inside its network to protect itself and its clients. Nevertheless PositiveVPS.com is available to support the customer by implementing appropriate measures on the PositiveVPS.com Network, such as limiting on ICMP bandwidth, rate limiting over clients ports, implementing filters or black-holing routes. ?Neither Party will be obliged to carry out any obligation under this Agreement where performance of such obligation is prevented by the occurrence of a Force Majeure Event. No commitment from PositiveVPS.com applies in case of Force Majeure.?Should the Client not have access to the Services as defined above, PositiveVPS.com shall credit the Client 0.5 days service credit for each hour when the service is not available, subject to a maximum credit in any one month of 50% of the monthly fee for the contracted service. The credit applies to the contracted service. The Client shall not be entitled to any credits under this SLA if any payment of the price for the Services is overdue under the terms of this Agreement. The credit shall be made for the element of the Services that were not available, it will not be made for the whole service. (E.G. If a dedicated server and backup service are ordered, but the backup service is not available for a period of time, the credit will be calculated based on the price of the backup service, not the combined price of the dedicated server and backup service.) Any credit is subject to the Client notifying PositiveVPS.com within 7 days in writing. This Client agrees the service credits due under this SLA are its sole remedy against PositiveVPS.com for any non-availability of the Services.
CONSEQUENTIAL LOSSES
PositiveVPS.com is not in a position to assess any consequential loss which the Client may suffer as a result of any failure of the Services, or any other default on the part of PositiveVPS.com and it would be impractical and uneconomic for PositiveVPS.com to insure against such liability. Accordingly it is the responsibility of the Client to properly assess any consequential loss that it and/or its clients may suffer and to obtain and maintain adequate insurance in relation to such losses. The Client shall also ensure that it has adequate insurance cover in relation to any loss or damage which may be caused to PositiveVPS.com and/or its clients through the negligence or default of the Client, its employees, agents, or equipment. The Client shall, as and when requested, provide PositiveVPS.com with such evidence as PositiveVPS.com may require in relation to the Client's insurance.
INDEMNITY
The Client agrees to fully indemnify and keep PositiveVPS.com, its subsidiaries, affiliates, officers, partners and employees fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following:
(i) the Clients breach of this Agreement or its negligence or other act, omission or default;
(ii) the operation or break down of any equipment or software owned or used by the Client but not the Hardware and/or Software;
(iii) the Clients use or misuse of the Services;
(iv) the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs).
DISCLAIMER
Nothing in the Agreement shall exclude or limit the liability of PositiveVPS.com for death or personal injury resulting from its negligence or fraudulent misrepresentation nor affect the statutory rights of PositiveVPS.com.? The Client acknowledges that the allocation of risk in this Agreement reflects the price paid for the Services, Hardware and Software and that it is not within the control of PositiveVPS.com how or for what purposes they are used. If any exclusion or limit of liability in this Agreement is held to be invalid and PositiveVPS.com becomes liable for loss or damage that may lawfully be limited then such liability shall be limited to the amount paid by the Client for the Services.? PositiveVPS.com shall have no liability to the Client for any loss arising from any material, data or instructions supplied whether digitally or otherwise by the Client or on its behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from late arrival or non-arrival or any other fault by the Client or on its behalf.? No action, claim or demand arising out of or in connection with this Agreement may be brought by the Client against PositiveVPS.com more than one year after the cause of action has occurred.? PositiveVPS.com is not responsible for any delay, malfunction, non performance and/or other degradation of performance of any of the Services, Hardware or Software caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Client whether or not beyond those already supplied.?Neither PositiveVPS.com nor anyone else who has been involved in the creation, production or supply of the Services, Hardware or Software shall be liable to the Client or any other person for any loss in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof by reason of or in connection with this Agreement or the Services, Hardware or Software for any:
(i) economic loss of any kind whatsoever, or
(ii) loss of profit, data, business contracts, revenues or anticipated savings, or
(iii) damage to the Client's reputation or goodwill, or
(iv) loss resulting from any claim made by any third party, or
(v) special, indirect or consequential loss or damage of any nature whatsoever, and the Client shall indemnify PositiveVPS.com from and against any claim which may be made against PositiveVPS.com in respect thereof. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for consequential or incidental damages and therefore the above may not apply to the Client.
Governing law and jurisdiction
This agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to it or its formation, shall be governed by and construed in accordance with the laws of England.?The parties irrevocably submit to the exclusive jurisdiction of the courts of England to hear and determine any suit, action or proceedings or settle any disputes arising out of or in connection with this agreement and to enforce any judgment against their respective assets.
Updates
We will routinely update this and ask people to check back regularly