Virtual server service agreement – Feb 2023
Virtual server service agreement
This agreement is entered into by and between CyberHive Ltd of 2
nd
Floor, Newmarket
House, Market Street, Newbury, RG14 5DP (“CyberHive”) and “the customer” meaning
the individual or business who signs or on whose behalf the order form is signed or the
individual or business who submits an order by telephone, email, web browser or other
means.
Please note that in this agreement, "we"/"us"/"our" denotes CyberHive Ltd, registered
office 2
nd
Floor, Newmarket House, Market Street, Newbury, RG14 5DP, and
"you"/"your" denotes you the customer.
This agreement outlines the responsibilities, rights and obligations of CyberHive and the
customer, and supersedes any and all previous agreements, whether oral or in writing.
Service provision
1. CyberHive will supply and install (where applicable) all software as ordered by the
customer onto the ordered Virtual Server (VS).
2. CyberHive shall use reasonable efforts to ensure the required and services are
installed in line with the lead times and target dates agreed between us.
3. After provisioning, CyberHive shall connect the required system to the internet
without delay. The VS will be connected to the Internet at the speed specified on the
order form. The VS connection may burst above the agreed rate if the customer has
requested this subject to payment for the additional bandwidth on a 95th percentile
basis.
Virtual server service agreement – Feb 2023
Usage
4. The customer agrees to ensure that the facility will not be used for any illegal
activity, and indemnifies CyberHive from any liability that may arise due to such
usage. Such activity will be deemed to include the publishing of any material that is
obscene, threatening, defamatory or which in any way infringes the Intellectual
Property rights of another party. The customer accepts that in the event of
allegations of infringement of this clause, CyberHive may without notice or liability
suspend or interrupt the customer's access to the Internet, or remove any specific
material held on our systems on the customer's behalf pending clarification of such
allegations or suspicion. In the event that a third party makes direct representation to
the customer with regard to possible breach of this clause, the customer will without
delay notify CyberHive of the nature and background of such representations so we
may promptly carry out any actions required to mitigate any exposure or damages.
5. The customer accepts responsibility for all items published or transmitted from their
VS. CyberHive will only act as a distributor of the customer's traffic and will not
examine it in any way except for the purpose of efficiently routing it over the Internet
and Local Area Network.
6. The customer accepts all responsibility for installing security patches, software
updates and all maintenance on the VS operating system and other software installed
on the VS. CyberHive is not responsible for any software maintenance of the VS.
7. The customer shall ensure that all software is removed from their systems and is no
longer used at the end of any licence term.
8. CyberHive does not warrant that software licenced to the customer is suitable for
Virtual server service agreement – Feb 2023
the usage intended by the customer; that it does not contain any bugs or defects or
that it is in any way guaranteed to be compatible with other software running on the
same server.
9. The customer is responsible for ensuring that all software running on the VS is fully
licenced and complies with all regulations and authorities.
10. If software is licenced on a counted basis such as ‘per user/person/device’, the
customer must inform CyberHive within 5 working days of the end of each month
how many licences they are using. If the customer does not provide this information,
the customer agrees that CyberHive can assume that the same numbers of licences
are being used as on this order or the customer’s most recent report (whichever is
most recent). The customer agrees to pay for all licences used regardless of whether
or how they are reported and accepts responsibility for any additional costs incurred
through under-reporting the number of licenses used.
Confidentiality
11. CyberHive will use reasonable endeavours to ensure that confidential information
(including but not limited to data, technical, financial, operational, commercial
information) howsoever stored is not disclosed to any third party unless such
information is already in the public domain. Likewise, the customer will use all
reasonable endeavours to ensure that confidential information (including but not limited
to technical, financial, operational, commercial, business ideas, customer information,
product information) howsoever stored is not disclosed to any third party unless such
information is already in the public domain.
Liability
Virtual server service agreement – Feb 2023
12. CyberHive will not be liable for any loss of revenue or profits, loss of
business or other consequential damages.
13. CyberHive's liability to the customer with regards to an individual service is
restricted to the total value of any amounts paid by the Customer to CyberHive in the
previous 12-month period on that individual service.
Support
14. CyberHive will provide the customer with access to a support telephone
number. Support may also be contacted by email at supp[email protected]
support cover is provided from 9AM to 5:00PM Monday to Friday, excluding Public
Holidays and Bank Holidays.
Software Licensing
15. Customers with virtual servers running Microsoft Software are required to
comply with the Microsoft Volume Licensing End User Licence Terms. These license
terms include the Microsoft Service Provider Use Rights (SPUR) which customers
must agree to in order to use or redistribute the Microsoft software.
Termination
16. This agreement covers all orders placed by the customer with CyberHive,
whether placed before or after the date of this agreement. Contract length for all such
orders is specified on the individual orders.
17. The customer may cancel or downgrade the service according to the Cancellation
Policy below.
Virtual server service agreement – Feb 2023
18. CyberHive reserve the right to terminate this agreement and all services covered
by it immediately and without further notices should any properly delivered invoice
remain unpaid for a period of thirty days beyond the due date whether demanded or
not. Such action will not remove the Customer's liability to pay any outstanding fees
for the duration of the contract.
19. In the event of termination of this agreement, all IP addresses issued by
CyberHive to the customer will remain the property of CyberHive, and may not be
transferred to another provider.
Force majeure
20. CyberHive shall not be liable to the customer for any breach of this agreement
for failing to perform any obligation where such breach or failure was the result of any
Act of God, insurrection or civil disorder, war or military operations, inclement weather,
failure or shortage of power supplies, flood, drought, public disorder, lightning or fire,
national or local emergency, acts or omissions of government, highway authority or
other government authority, compliance with any statutory obligation, industrial
disputes of any kind, the acts of omissions of other telecommunications operators or
any cause beyond CyberHive's reasonable control.
Jurisdiction
21. The Laws of England will apply to this agreement and any modification of it
and any dispute will be resolved in England by Arbitration where no issue of Law
arises or failing that, in the Courts.
Virtual server service agreement – Feb 2023
Virtual server cancellation policy
22. Virtual/hosted servers can be cancelled or downgraded after the expiry of any
agreed minimum period. A minimum of 30 days’ notice is required. In the event that a
Customer cancels or downgrades their Services mid-way through the minimum
contract period, they will not be entitled to any refund for any remaining amounts and
remain liable for any invoices yet to be generated that cover the reminder of the
minimum contract period. For the avoidance of doubt, contracts move to a rolling
monthly contract or as defined in each order form at the end of the minimum contract
period unless cancelled by you.
23. Servers are automatically switched off at the end of a contract. Customers
acknowledge that it is their responsibility to ensure that all data is removed from the
server prior to the end of the contract. Servers that have been switched off will be
permanently deleted 14 days after the end of the contract and all data stored on the
systems will be lost. CyberHive is not responsible for any data which remains on our
systems after the expiry of a contract.
24. Any software that is used for any period, howsoever short during a calendar
month will be billed for the entire month. No refunds will be given for any part month
of software usage.
25. SSL Certificates and other ‘add-on’ services will have their own minimum period
and recurring minimum periods. If a Service is cancelled during the minimum period or
renewal period, no refunds will be due for unused time during these periods.
26. Cancellations or Service downgrades must either be done through the online
portal or in writing via the support ticketing system. Cancellations or service
downgrades requested via ticketing system are not confirmed until you have received
Virtual server service agreement – Feb 2023
a confirmation email.
27. Termination of a contract is without prejudice to all rights and responsibilities of
either party incurred prior to the termination of the contract.
28. Distance selling regulations. The customer acknowledges that all Services are
bespoke and created to order for each customer. If you are buying as a consumer (i.e.,
not within the course of your business), the Consumer Protection (Distance Selling)
Regulations 2000 normally allow you to cancel the contract at any time within
fourteen (14) working days, beginning on the day after you received the Acceptance
Confirmation. By placing your order for the Services, you agree to us starting supply of
those Services before the end of the seven working day cancellation period. As such,
you will not have the right to cancel the contract under the Consumer Protection
(Distance Selling) Regulations 2000.
29. Prices are liable to change at any time. Price changes that occur during a
minimum contract period will only become effective at the end of that contract period.
We will notify you at least 30 days before the price increase comes into effect. If you
do not accept the price increase, you must cancel your service(s) prior to their
implementation. If you do not cancel the service(s) you are deemed to have accepted
the new prices.
Virtual server service agreement – Feb 2023
Microsoft volume licensing end user license terms
(Terms and conditions regarding use of Microsoft software)
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 CyberHive Ltd (hereinafter referred to as
“CyberHive”). CyberHive does not own the Products and the use thereof is subject to
certain rights and limitations of which CyberHive must inform you. Your right to use the
Products is subject to the terms of your agreement with CyberHive, and to your
understanding of, compliance with, and consent to the following terms and conditions,
which CyberHive does not have authority to vary, alter, or amend.
DEFINITIONS
“Client Software” means software that allows a Device to access or utilize the Services or
functionality provided by the Sever 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.
OWNERSHIP OF PRODUCTS
The Products are licenced to CyberHive from an affiliate of the Microsoft Corporation
Virtual server service agreement – Feb 2023
(collectively “Microsoft”). All title and intellectual property rights in an 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.
USE OF CLIENT SOFTWARE
You may use the Client Software installed on your Devices by CyberHive only in
accordance with the instructions, and only in connection with the Services, provided to
you by CyberHive. The terms of this document permanently and irrevocably supersede
the terms of any Microsoft End User Licence Agreement that may be presented in
electronic form during the use of the Client Software.
USE OF REDISTRIBUTION SOFTWARE
In connection with the Services provided to you by CyberHive, 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 CyberHive WHICH
TERMS MUST BE PROVIDED TO YOU BY CyberHive. 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 CyberHive.
Virtual server service agreement – Feb 2023
COPIES
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 CyberHive; 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
CyberHive, upon notice from CyberHive or upon transfer of your Device to another
person or entity, whichever occurs first. You may not copy any printed materials
accompanying the Products.
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.
NO RENTAL
You may not rent, lease, lend, pledge or directly or indirectly transfer or distribute the
Products to any third party, any may not permit any third party to 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 series in accordance with the terms
of this agreement and any agreement between you and CyberHive.
TERMINATION
Without prejudice to any other rights, CyberHive 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 CyberHive, or CyberHive‘s agreement
Virtual server service agreement – Feb 2023
with Microsoft under which the Products are licenced, you must stop using and/or
accessing the Products, and destroy all copies of the Products and all of their component
parts.
NO WARRANITES, LIABILITIES OR REMEDIES BY MICROSOFT.
ANY WARRANTIES, LIABILITIES FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED
SOLELY BY CyberHive AND NOT BY MICROSOFT, ITS AFFILATES OR SUBSIDIARIES.
PRODUCT SUPPORT
Any support for the Products is provided to you by CyberHive and is not provided by
Microsoft, its affiliates or subsidiaries.
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.
EXPORT RESTRICTIONS
The Products are subject to U.S. export jurisdiction. CyberHive 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/.
LIABILITY FOR BREACH
In addition to any liability you may have to CyberHive, you agree that you will also be
legally responsible directly to Microsoft for any breach of these terms and conditions.
