Hosting services terms of service
1. Definitions
1.1 In these Terms and Conditions, except to the extent expressly provided otherwise:
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
“Business Day” means any weekday other than a bank or public holiday in England;
“Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
“Charges” means the following amounts:
(a) the amounts specified in Section 4 of the Services Order Form;
(b) the amounts that are stated on our billing platform; and
(c) such amounts as may be agreed by the parties in writing from time to time;
“Confidential Information” means the Host Confidential Information and the Customer Confidential Information;
“Contract” means a contract made under these Terms and Conditions between the Host and the Customer;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);
“Customer” means the person or entity identified as such in Section 1 of the Services Order Form or our Billing platform;
“Customer Confidential Information” means:
(a) any information disclosed by or on behalf of the Customer to the Host at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Host (acting reasonably) to be confidential; and
(b) the financial terms of the Contract;
“Customer Indemnity Event” has the meaning given to it in Clause 12.3;
“Customer Personal Data” means any Personal Data that is processed by the Host on behalf of the Customer in relation to the Contract, but excluding personal data with respect to which the Host is a data controller;
“Data Protection Laws” means the EU GDPR, the UK GDPR and the Data Protection Act 2018, together with all other applicable laws relating to the processing of Personal Data;
“Effective Date” means the date upon which the Customer pays the first instalment of the Charges to the Host;
“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Host” or “Polarize Network” means Polarize Ltd a company incorporated in England and Wales (registration number: 12944077) having its registered office at 20-22 Wenlock Road, London, England, N1 7GU;
“Host Confidential Information” means:
(a) any information disclosed by or on behalf of the Host to the Customer during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential; and
(b) the terms of this Contract;
“Hosted Data” means all data, works and materials: uploaded to or stored on the Hosting Platform by the Customer, or by any third party using any software made available by means of the Hosting Platform; transmitted by the Hosting Platform at the instigation of the Customer, or at the instigation of any third party using any software made available by means of the Hosting Platform; or supplied by the Customer to the Host for uploading to, transmission by or storage on the Hosting Platform;
“Hosting Account” means an online account enabling a person to configure and manage the Hosting Services;
“Hosting Platform” means the platform managed by the Host and used by the Host to provide the Hosting Services, including the application, database, system and server software used to provide the Hosting Services, and the computer hardware on which that application, database, system and server software is installed;
“Hosting Services” means those web hosting services specified in Section 3 of the Services Order Form which will be made available by the Host to the Customer as a service via the internet in accordance with these Terms and Conditions;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Minimum Term” means, in respect of the Contract, the period of 12 months beginning on the Effective Date, subject to any earlier termination;
“Personal Data” means personal data under any of the Data Protection Laws;
“Services Order Form” means an online order form published by the Host and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;
“Term” means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
“Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions, the Schedules and the Services Order Form, including any amendments to that documentation from time to time; and
“UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time.
“ORDER, SUBSCRIPTION,” are terms used here to describe the method they use to choose which service(s) to purchase or renew.
2. Terms of Service
The following Terms of Service (“TOS,” “Terms” or “Agreement”) apply to your use of our website and all services, features and/or content provided by the Host (“us”, “our”). Polarize Network is the trade name of Polarize Ltd.. By purchasing one or more Services from Polarize Network, you declare that you have read, understood and agree to be bound by these TOS. The latest version of our TOS is always available on the Polarize Network website. It is essential that you read this TOS prior to purchasing any Hosting Services from Polarize Network.
2.1 In order to access all Polarize Network Services throughout the Term or Renewal Term, you must agree to the following TOS: Terms of Service, Acceptable Use Policy (AUP), Copyright Infringement Policy, Privacy Policy, Cookies and Data Processing Agreement.
The TOS and any other documents referred to herein constitute the entire agreement between Polarize Network and you relating to the Hosting Services. By using Polarize Network’s services or website you agree to comply with these TOS to the exclusion of any other terms and conditions which may be submitted by you whether in any correspondence or otherwise or whether incorporated by any trade, custom, practice or otherwise.
2.2 The Contract shall come into force for the Minimum Term unless terminated earlier in accordance with its terms. Each party shall be entitled to terminate the Contract by giving the other 30 days’ written notice prior to the expiry of the Minimum Term (or any anniversary thereof) otherwise this Contract shall automatically renew for a further period or periods of twelve (12) months, unless terminated earlier in accordance with its terms.
2.3
2.4 Unless the parties expressly agree otherwise in writing, each Services Order Form made on our Billing platform shall create a distinct contract under these Terms and Conditions.
3. HOSTING SERVICES. ORDER. SUBSCRIPTION. ACCEPTANCE OF ORDER OR SUBSCRIPTION BY POLARIZE NETWORK
Customers must purchase our Service(s) through our website the first time. “Orders” or “Subscriptions” are terms used here to describe the method they use to choose which service(s) to purchase or renew. Customers may purchase or renew services using the Billing Area, or by direct correspondence with our customer support team. All conversations with our customer support team will be recorded, and such recordings will be treated as an Order for the applicable Service(s).
3.1 The Hosting Platform will automatically generate a Hosting Account for the Customer on the Effective Date and will provide to the Customer login details for that Hosting Account
3.2 The Host hereby grants to the Customer a right to use the Hosting Services for the business purposes of the Customer in accordance with any relevant documentation supplied by the Host to the Customer during the Term.
3.3 The right granted by the Host to the Customer under Clause 3.2 is subject to the following limitations:
(a) the Hosting Account may only be used by the officers, employees, agents and subcontractors of either the Customer;
(b) the Hosting Account may only be used by the named users identified on checkout on our Billing platform, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein; and
(c) the Hosting Account must not be used at any point in time by more than the five concurrent users specified on the Billing platform, providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein and may levy additional charges if this the number is exceeded.
3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Host to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosting Account to any third party, including (but not limited to) any Affiliate;
(b) the Customer must not permit any unauthorised person to access or use the Hosting Account; and
(c) the Customer must not make any alteration to the Hosting Platform, except as expressly permitted by the documentation supplied by the Host to the Customer.
3.5 The Customer shall use all reasonable endeavours, including reasonable security measures relating to Hosting Account access details, to ensure that no unauthorised person may gain access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.
3.6 The Customer shall have no administrative access or administration rights in relation to the Hosting Platform, save to the extent that the Host has expressly agreed otherwise in writing.
3.7 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosting Services.
3.8 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosting Services with the authority of the Customer comply with Schedule 1 (Acceptable Use Policy).
3.9 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Hosting Platform, either during or after the Term and the Customer shall not
introduce nor attempt to introduce any virus, trojan, malicious code, vulnerability or likewise onto the Hosting Platform.
3.10 The Host may suspend or terminate the provision of the Hosting Services if any amount due to be paid by the Customer to the Host under the Contract is overdue, and the Host has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosting Services on this basis.
At the time of placing an Order, you must be at least eighteen (18) years old. By submitting an Order, you declare that you are eighteen (18) years old or older and have the legal capacity to perform the services ordered from Polarize Network.
If you placed an Order on behalf of a legal entity, you represent that such legal entity has the legal authority to bind itself to these TOS, in which case the expressions “you” or “your” shall refer to such legal entity. Any obligations arising from these TOS will be deemed personally liable by you if Polarize Network establishes that you do not have the legal authority to bind such legal entity.
4. Customer obligations
4.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Host, or procure for the Host, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licences, consents and permits,
as are reasonably necessary to enable the Host to perform its obligations under the Contract.
4.2 The Customer must provide to the Host, or procure for the Host, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Host to enable the Host to perform its obligations under the Contract.
4.3 Where the Host provides the Hosting Services through a third party sub-contractor such as Digital Ocean or Google Inc then the Customer warrants, represents and undertakes to comply with all of the subcontractor’s terms and conditions in force from time to time which can be found at https://www.digitalocean.com/legal/terms-of-service-agreement and https://cloud.google.com/terms respectively.
5. Hosted Data
5.1 The Customer hereby grants to the Host a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Hosted Data to the extent reasonably required for the performance of the Host’s obligations and the exercise of the Host’s rights under the Contract, together with the right to sub-license these rights to its own hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Host’s obligations and the exercise of the Host’s rights under the Contract.
5.2 The Customer warrants to the Host that the Hosted Data will not infringe the Intellectual Property Rights or other legal rights of any person or legal entity, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
5.3 If the Host reasonably suspects that any element of the Hosted Data breaches Clause 5.2, or breaches any provision of Schedule 1 (Acceptable Use Policy), the Host may edit or delete the relevant Hosted Data to the extent reasonably necessary to ensure that it no longer breaches that provision.
5.4 The Host shall create a back-up copy of the Hosted Data at least weekly, shall ensure that each such copy is sufficient to enable the Host to restore the Hosting Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.
5.5 Within the period of 1 Business Day following receipt of a written request from the Customer, the Host shall use all reasonable endeavours to restore to the Hosting Platform the Hosted Data stored in any back-up copy created and stored by the Host in accordance with Clause 5.4. The Customer acknowledges that this process will overwrite the Hosted Data stored on the Hosting Platform prior to the restoration.
5.6 Save to the extent expressly provided otherwise in these Terms and Conditions, the Customer shall be responsible for creating and maintaining back-ups of the Hosted Data and any other relevant data relating to the Hosting Services, and if necessary for restoring such data to the Hosting Platform.
5.7 Upon the date of effective termination of the Contract, the Host shall make available to the Customer for download an electronic copy of the Hosted Data (as constituted upon that date). The Host shall however have no obligations under this Clause 5.7 to make available such Hosted Data if any amounts payable by the Customer to the Host under the Contract are due but unpaid upon that date. The Customer acknowledges that whilst the Host may delete the Hosted Data from its computer systems following termination, the Host may also retain such Hosted Data after termination for legal compliance and/or technical reasons, subject in each case to the other provisions of the Contract.
6. Intellectual Property Rights
6.1 The Customer agrees and acknowledges that the Host or its licensors owns all of the Intellectual Property rights in the Hosting Platform and the Hosting Services and nothing in this Contract shall result in any assignment or transfer of such Intellectual Property Rights to the Customer.
6.2 The Host grants the Customer a non-exclusive, royalty free licence to use the Intellectual Property Rights referred to in clause 6.1 during the Term.
6.3 The Customer warrants, represents and undertakes that it owns or has obtained all necessary licences, permits and consents to upload, submit or otherwise deal with the Hosted Data at all times during the Term and grants the Host a non-exclusive, royalty free licence to use the Hosted Data for the performance of the Hosts obligations hereunder.
6.4 The Customer shall indemnify and keep the Host indemnified against all losses, costs, charges, damages, expenses (including all legal and other professional expenses on a full indemnity basis), claims, proceedings, judgements and all other liabilities which the Host suffers or incurs as a result of or in connection with any breach of the Customer of its obligations under clause 6.3.
7. Charges
7.1 The Customer shall pay the Charges to the Host monthly in arrears during the Term in accordance with these Terms and Conditions.
7.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Host if applicable.
7.3 The Host may elect to vary any element of the Charges by giving to the Customer not less than 7 days’ written notice of the variation expiring on any anniversary of the date of execution of the Contract, providing that no such variation shall constitute an increase of more than fifteen percent (15%) over the current Charges.
8. Payments
8.1 The Host shall issue invoices for the Charges to the Customer monthly on or after the invoicing dates set out in Section 4 of the Services Order Form or Billing platform.
8.2 The Customer must pay the Charges to the Host immediately after purchasing one of our services.
8.3 The Customer must pay the Charges by debit card, credit card, bank transfer, Stripe or PayPal .
8.4 If the Customer does not pay any amount properly due to the Host under these Terms and Conditions, the Host may claim interest from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
9. Confidentiality obligations
9.1 The Host must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Host uses to protect the Host’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than outlined in our TOS or to provide the service.
9.2 The Customer must:
(a) keep the Host Confidential Information strictly confidential;
(b) not disclose the Host Confidential Information to any person without the Host’s prior written consent, and then only under conditions of confidentiality approved in writing by the Host;
(c) use the same degree of care to protect the confidentiality of the Host Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Host Confidential Information; and
(e) not use any of the Host Confidential Information for any purpose.
9.3 Notwithstanding Clauses 9.1 and 9.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
9.4 No obligations are imposed by this Clause 9 with respect to a party’s Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other party; or
(c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
9.5 The restrictions in this Clause 9 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
9.6 Upon the termination of the Contract, each party must immediately cease to use the other party’s Confidential Information.
9.7 Following the date of effective termination of the Contract, and within 5 Business Days following the date of receipt of a written request from the other party, the relevant party must:
(a) irreversibly delete from its media and computer systems all copies of the other party’s Confidential Information (and ensure that the other party’s Confidential Information is irreversibly deleted from the media and computer systems of all persons to whom the relevant party has directly or indirectly disclosed that Confidential Information);
(b) ensure that no other copies of the other party’s Confidential Information remain in the relevant party’s possession or control (or the possession of control of any person to whom the relevant party has directly or indirectly disclosed the other party’s Confidential Information);
(c) certify in writing to the other party that it has complied with the requirements of this Clause 9.7,
subject in each case to any obligations that the relevant party has under the Contract to supply or make available to the other party any data or information, and providing that the relevant party shall have no obligation under this Clause 9.7 to delete or to cease to possess or control any of the other party’s Confidential Information to the extent that the relevant party is required by applicable law to retain that Confidential Information, or to the extent that the Confidential Information is contained in our invoices.
9.8 The provisions of this Clause 9 shall continue in force indefinitely following the termination of the Contract.
10. Data protection
10.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
10.2 The Customer warrants to the Host that it has the legal right to disclose all Personal Data that it does in fact disclose to the Host under or in connection with the Contract.
10.3 The Customer shall only supply to the Host, and the Host shall only process, in each case under or in relation to the Contract, the Personal Data of Nominal, Ordinal, Discrete, Continuous of the following types: Name, Email, Phone, Address, Billing Information; and the Host shall only process the Customer Personal Data for the following purposes: contacting the Customer, Compliance, fulfilling and order.
10.4 The Host shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 10.
10.5 The Host shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
10.6 The Customer hereby authorises the Host to make the following transfers of Customer Personal Data:
(a) the Host may transfer the Customer Personal Data internally to its own employees, offices and facilities in England, providing that such transfers must be protected by appropriate safeguards, namely secure internal communication platforms;
(b) the Host may transfer the Customer Personal Data to its third party processors in the jurisdictions identified elsewhere in this Clause 10 and may permit its third party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards identified therein;
(c) the Host may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data;
(d) the Host may transfer the Customer Personal Data from the UK to the EEA, and may permit its third party processors to do so, in any period during which EEA states are not treated as third countries under the UK GDPR or during which EEA states benefit from adequacy regulations under the UK GDPR; and
(e) the Host may transfer the Customer Personal Data from the EEA to the UK, and may permit its third party processors to do so, in any period during which the UK is not treated as a third country under the EU GDPR or during which the UK benefits from an adequacy decision under the EU GDPR.
10.7 The Host shall promptly inform the Customer if, in the opinion of the Host, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
10.8 Notwithstanding any other provision of the Contract, the Host may process the Customer Personal Data if and to the extent that the Host is required to do so by applicable law. In such a case, the Host shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
10.9 The Host shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.10 The Host and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including the following measures: secure encryption.
10.11 The Host must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Host shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third-party processor, and if the Customer objects to any such changes before their implementation, then the Host must not implement the changes. The Host shall ensure that each third-party processor is subject to equivalent legal obligations as those imposed on the Host by this Clause 10.
10.12 The Host is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, a list of sub-processors available upon request.
10.13 The Host shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
10.14 The Host shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Host may charge the Customer at its standard time-based charging rates for any work performed by the Host at the request of the Customer pursuant to this Clause 10.14.
10.15 The Host must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after the Host becomes aware of the breach.
10.16 The Host shall make available to the Customer all information necessary to demonstrate the compliance of the Host with its obligations under this Clause 10 and the Data Protection Laws. The Host may charge the Customer at its standard time-based charging rates for any work performed by the Host at the request of the Customer pursuant to this Clause 10.16, providing that no such charges shall be levied with respect to the completion by the Host (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.
10.17 The Host shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
10.18 The Host shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Host’s processing of Customer Personal Data with the Data Protection Laws and this Clause 10. The Host may charge the Customer at its standard time-based charging rates for any work performed by the Host at the request of the Customer pursuant to this Clause 10.18, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Host of the Contract or any security breach affecting the systems of the Host.
10.19 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Contract, then the parties shall use their best endeavours promptly to agree such variations to the Contract as may be necessary to remedy such non-compliance.
11. Warranties
11.1 The Host shall provide the Hosting Services with reasonable skill and care.
11.2 The Host warrants to the Customer that:
(a) the Host has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;
(b) the Host will comply with all applicable legal and regulatory requirements applying to the exercise of the Host’s rights and the fulfilment of the Host’s obligations under these Terms and Conditions; and
(c) the Host has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
11.3 The Customer warrants to the Host that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions in accordance with all applicable laws.
11.4 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law all other warranties or representations, whether express or implied under statute of common law (including, but not limited to, regarding fitness for purpose, satisfactory quality or otherwise) shall be excluded.
12. Indemnities
12.1 The Customer shall indemnify and shall keep indemnified the Host against any and all damages, losses, costs and expenses (including all legal and other professional expenses and amounts reasonably paid in settlement of legal claims on a full indemnity basis), proceedings, claims (including third party claims), judgements and all other liabilities suffered or incurred by the Host and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a “Customer Indemnity Event“).
12.2 The Host must:
(a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
(b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
(c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
(d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,
13. Limitations and exclusions of liability
13.1 Nothing in these Terms and Conditions will limit or exclude either party’s liability for any:
(a) death or personal injury resulting from negligence;
(b) fraud or fraudulent misrepresentation;
(c) liabilities which are not permitted to be limited or excluded under any applicable law; or
(d) indemnity provided hereunder.
13.2 Subject to clause 13.1, neither party shall have any liability to the other party for any indirect, special or consequential losses or for any loss of :
(a) profits;
(b) anticipated savings;
(c) revenue;
(d) goodwill;
(e) contracts; or
(f) data,
whether such losses are direct or indirect or whether they were in the Host’s reasonable contemplation at the time of entering into this Contract.
13.3 Subject to clause 13.1 and 13.2, neither party’s liability to the other, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, shall in no event exceed the value of Charges paid or payable by the Customer to the Host in the six (6) month period proceeding any claim.
14. Force Majeure Event
14.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
14.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
15. Termination
15.1 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of the Contract, and the breach is not remediable;
(b) the other party commits a breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).
15.2 Subject to applicable law, either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract). 15.3 The Host may terminate the Contract immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to the Host under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given;
(b) the Host has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 15.3; or
(c) the Customer commits a breach of the Host’s Acceptable Use Policy.
16. Effects of termination
16.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.9, 5.7, 8.2, 8.4, 9, 10, 12, 13, 16, 19, 20, 21, 22, 23.1, 23.2, 24, 25 and 26.
16.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Contract shall not affect either party’s other rights and remedies under this Contract or at law.
16.3 Within 30 days following the termination of the Contract for any reason:
(a) the Customer must pay to the Host any Charges in respect of Hosting Services provided to the Customer before the termination of the Contract; and
(b) the Host must refund to the Customer any Charges paid by the Customer to the Host in respect of Hosting Services that were to be provided to the Customer after the termination of the Contract.
17. Notices
17.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Clause 17.2 and Section 6 of the Services Order Form):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, provided that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time; or
(c) sent by email, in which case the notice shall be deemed to be served once successfully sent by the relevant party.
17.2 The Host’s contact details for notices under this Clause 17 are as follows : 20 – 22 Wenlock Road, London, N1 7GU, or hello@polarize.network
.
17.3 The addressee and contact details set out in Clause 17.2 and Section 6 of the Services Order Form may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 17.
18. Subcontracting
18.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Host may subcontract any of its obligations under the Contract, providing that the Host must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
18.2 The Host shall remain responsible to the Customer for the performance of any subcontracted obligations.
19. Assignment
19.1 The Customer hereby agrees that the Host may subcontract, assign, novate, transfer or otherwise deal with the Host’s contractual rights and obligations under these Terms and Conditions at any time without the prior written consent of the Customer.
19.2 Save to the extent expressly permitted by applicable law, the Customer must not assign, transfer or otherwise deal with the Customer’s contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Host, such consent not to be unreasonably withheld or delayed.
20. No waivers
20.1 No breach of any provision of the Contract will be waived except with the express written consent of the party not in breach.
20.2 No waiver of any breach of any provision of the Contract shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Contract.
21. Severability
21.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
21.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
22. Third party rights
22.1 The Contract is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party pursuant to the Contracts (Rights of Third Parties Act) 1999.
23. Variation
23.1 The Contract may not be varied except in accordance with this Clause 23.
23.2 Subject to clause 23.3, this Contract may only be varied by means of a written document signed by or on behalf of each party.
23.3 The Host may unilaterally vary the Contract by posting a new version on its website giving to the Customer at least 30 days’ written notice of the proposed variation, providing that if the Host makes any material variation, the Customer shall have the right to terminate the Contract by giving the Host thirty (30) day’s written notice.
24. Entire agreement
24.1 These Terms and Conditions, together with the Schedules and all other documents referred to herein shall constitute the entire agreement between the parties in relation to the subject matter of the Contract, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
24.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract unless it has been made fraudulently.
25. Law and jurisdiction
25.1 These Terms and Conditions shall be governed by and construed in accordance with English law.
25.2 Any disputes relating to the Contract shall be subject to the non-exclusive jurisdiction of the courts of England.
26. Interpretation
26.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
26.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
26.3 References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
26.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
27 Survival
27.1 Clauses of this Contract 1, 4.5, 6, 7, 8, 9, 10 , 12 ,13, 15, 25 and 26 shall survive the expiry or termination of this Contract together with any other terms which are expressly or impliedly intended to survive such termination or expiry.
Schedule 1 (Acceptable Use Policy)
1. Introduction
1.1 This acceptable use policy (the “Policy“) sets out the rules governing:
(a) the use of our hosting services, connectivity services, communications services and related services (the “Services“); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content“).
1.2 References in this Policy to “you” are to any customer for the Services and any individual user of the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to Polarize Ltd (trading as Polarise Network) (“we”, “us”) and “our”).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services and you shall comply with all of its terms whilst uploading or submitting any content or when using our Services.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to us or the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
(c) any type of cryptocurrency mining.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property rights of any third party;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaints.
3.4 NO UNLAWFUL PORNOGRAPHY Disseminating child pornography or depictions of nudity or sexual activity obtained or disseminated without the consent of those depicted (e.g., “revenge pornography”) is expressly prohibited.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for any children18 years of age.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 You agree that you will not transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that
(i) is unlawful, threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, invasive of another’s privacy, tortious, offensive, profane, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion,
(ii) you know is false, misleading, untruthful or inaccurate,
(iii) constitutes unauthorized or unsolicited advertising,
(iv) impersonates any person or entity, including any of our employees or representatives, or
(v) includes anyone’s identification documents or sensitive financial information.
5. Marketing and spam
5.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
5.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
5.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
5.4 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
5.5 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
6. Regulated businesses
6.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
6.2 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
6.3 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
7. Monitoring
7.1 You acknowledge that we do not actively monitor the Content or the use of the Services.
8. Data mining
8.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
9. Harmful software
9.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
9.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
10 Non-compliance
10.1 If you fail to comply with any of the terms of this Policy, then we may (at our sole discretion) suspend or terminate (in full or in part) your use of our Services and remove any Content which you have submitted or uploaded.
Schedule 2 (Availability SLA)
1. Introduction to availability SLA
1.1 This Schedule 2 sets out the Host’s availability commitments relating to the Hosting Services.
1.2 In this Schedule 2, “uptime” means the percentage of time during a given period when the Hosting Services are available at the gateway between the public internet and the network of the hosting services provider for the Hosting Services.
2. Availability
2.1 The Host shall use reasonable endeavours to ensure that the uptime for the Hosting Services is at least 99% during each calendar month.
2.2 The Host shall be responsible for measuring uptime and shall do so using any reasonable in-house methodology. We do not accept 3rd party reports from customers as an uptime report.
3. Service credits
3.1 In respect of each calendar month during which the Hosting Services uptime is less than the commitment specified in Paragraph 2.1, the Customer shall earn service credits in accordance with the provisions of this Paragraph 3.
3.2 The service credits earned by the Customer shall be as follows: 1 Month of free hosting if the uptime is below 99%.
3.3 The Host shall deduct an amount equal to the service credits due to the Customer under this Paragraph 3 from amounts invoiced in respect of the Charges for the Hosting Services. All remaining service credits shall be deducted from each invoice issued following the reporting of the relevant failure to meet the uptime commitment, until such time as the service credits are exhausted.
3.4 Service credits shall be the sole remedy of the Customer in relation to any failure by the Host to meet the uptime guarantee in Paragraph 2.1.
3.5 Upon the termination of the contract, the Customer’s entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by the Host in respect of Hosting Services following such termination.
4. Exceptions
4.1 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Host has met the uptime guarantee given in Paragraph 2.1:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Host’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Host and that company;
(d) a fault or failure of the Customer’s computer systems or networks;
(e) any breach by the Customer of the Contract; or
(f) scheduled or emergency maintenance carried out in accordance with the Contract.