This Enterprise Cloud Server Hosting Agreement (the “Agreement”) is made between SirsteveHQ Limited (“SirsteveHQ” or “Company”), a limited liability company, and the Client who orders an Enterprise Cloud Server (“Client” or “Customer” or “You” or “Your”). Each of SirsteveHQ and Client will be referred to as a “Party” and collectively as “Parties” under this Agreement.
You acknowledge that your electronic approval constitutes your acceptance of the Agreement for each electronic purchase or transaction you enter. SirsteveHQ may accept or reject any Order you submit at its sole discretion. SirsteveHQ’s provisioning of the Services described in an Order shall be SirsteveHQ’s acceptance of the Order. If you are entering into this Agreement on behalf of a legal entity, such as the company you work for, you warrant and represent to us that you have the legal authority to bind that entity to this Agreement. You acknowledge and agree you will use this Service for the purpose of reselling web hosting.
PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THIS SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALONG WITH ANY NEW, DIFFERENT OR ADDITIONAL TERMS, CONDITIONS, OR POLICIES WHICH COMPANY MAY ESTABLISH FROM TIME TO TIME. YOU MAY VIEW THE LATEST VERSION OF THIS AGREEMENT ONLINE.
This Agreement applies to all users of the Enterprise Cloud Service. If you are using the Cloud Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms of Service and you agree to be bound by these Terms of Service on behalf of such organization. In addition, when You use your account or permit someone else to use it to purchase or otherwise acquire access to additional Services or to cancel your Services (even if we were not notified of such authorization). You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You’ve established with Company, whether or not the transactions were in Your behalf, You signify your agreement to the terms and conditions contained in this Agreement.
Whenever used in this Agreement, the following capitalized terms shall have the respective meaning specified below:
- “Enterprise Cloud Server Data” means all data (without limitation, information, data, text, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible) and other content that are stored by you on the Hosted System or otherwise processed by you through your use of the Services.
- “Order” means any of the following:
- the online order that you submit or accept for the Services
- any other written order (either in electronic or paper form) provided to you by SirsteveHQ for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and
- your use or provisioning of the Services through the SirsteveHQ cloud control panel or through an API.
- “Personal Data” means any information that is referred to as identifiable information, personal data, or personal information (or other like the term) under applicable data protection or privacy law. It includes information that by itself or combined with other information can be used to identify a person.
- “Product Terms and Conditions” means the terms and conditions that are incorporated by reference in your Agreement and that state additional terms and conditions for the particular Services you are buying.
- “Support” means any of the following:
- SirsteveHQ employees with training and experience relative to the Services will be available ‘live’ by telephone, chat and ticket twenty-four (24) hours per day, seven (7) days per week, all year round, and
- any additional level of assistance offered by SirsteveHQ for the specific Services you are purchasing, and described in the applicable Product Terms and Conditions or Order.
- “Business Days” are Monday to Friday, excluding public holidays.
- “Business Hours” means 9:00 a.m. – 5:00 p.m. on a Business Day.
- “Claims” means any claim, demand, action, suit, cause of action, assessment or reassessment, charge, judgment, debt, liability, expense, cost, damage or loss, direct or indirect, contingent or otherwise, including loss of value, reasonable professional fees, including fees of legal counsel on a solicitor-and-End User basis, and all costs incurred in investigating or pursuing any of the foregoing or any proceeding relating to any of the foregoing.
- “Confidential Information” means all non-public technical information and business information, programming, software code, trade secrets, marketing strategies, software, documentation, client data, financial information, and any other information which in the circumstances of its disclosure could reasonably be viewed as confidential. Confidential Information shall not include information that:
- is or becomes a part of the public domain through no act or omission of the Receiving Party;
- was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party;
- is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or
- is independently developed by the Receiving Party, provided that the foregoing shall not be deemed to permit the use or disclosure of information in breach of applicable law.
- Each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by it or its employees, mandataries, or agents in violation of the terms of this Agreement or applicable law.
- “End User” means an individual or legal entity that obtains the Services from the Client.
- “End User Licence Agreements” or “EULA” means the applicable terms of service agreements with SirsteveHQ and Third Party Suppliers governing the use of the Services, which are provided by SirsteveHQ, appear upon first use of each Product, or are otherwise made accessible by weblink or otherwise to the End User.
- “Intellectual Property Rights” means all rights protectable by copyright, trademark, patent, industrial design or trade secret and other intellectual property rights under any law including common law.
- “Products or Cloud Service” means any service of SirsteveHQ or third party providers made available through our Enterprise Cloud Server Catalogue which are but not limited to Virtual Servers, Cloud Hosting, Local Hosting, Dedicated Servers, Server addons etc.
- “Third Party Suppliers” means third-party suppliers of Products included in the Hosting Services.
Additional Policies and Agreements
The use of SirsteveHQ Services is also determined by the following policies, which are included by reference. By using Our Services, you also agree to the terms of the following policies.
Additional terms may also apply to certain Services and are combined by reference herein as applicable. For example, if you register a domain name with us, then the Domain Registration Agreement will also apply to you and would be incorporated herein.
SirsteveHQ shall provide to you the Services and Support subject to the terms and conditions of the Agreement but this is dependent on your complete payment for the order before it is provisioned and then SirsteveHQ will comply with all laws applicable to its provision of the Services.
- Client shall comply with applicable law and the terms and conditions of the Agreement.
- Client shall pay SirsteveHQ the amounts set out for each order for Services attributed to Client and shall bear all taxes, duties, levies, and other similar charges (and any related interest and penalties), however, designated or imposed on it as a result of the existence or operation of the Agreement, including any income, sales, or use tax on profits which may be levied against it.
- Client shall promise not to use the Services for any purpose that is prohibited by these Terms of Service and shall be responsible for all of your activity in connection with the Services and the activity of any sub-user that uses your access code or Account.
- Client agrees not to transmit, distribute, post, store, link, or otherwise, traffic in Content, information, software, or materials on or through the Service that
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortuous, offensive, profane, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion,
- you know is false, misleading, untruthful or inaccurate,
- constitutes unauthorized or unsolicited advertising,
- impersonates any person or entity, including any of our employees or representatives, or
- includes anyone’s identification documents or sensitive financial information.
- Client may access the Enterprise Cloud Service only to the extent of authorizations acquired by the Client.
- Client agrees to be responsible for use of the Enterprise Cloud Service by any user who accesses the Cloud Service with the Client’s account credentials.
- Client agrees that the Enterprise Cloud Service may not be used in any jurisdiction for unlawful, obscene, offensive, or fraudulent content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved and terminated if not resolved promptly.
- Unless provided otherwise, Client is solely responsible for making back-up copies of the Enterprise Cloud Server Website and Contents. You agree that you will maintain at least one (1) additional current copy of your Enterprise Cloud Server Data and programs stored somewhere other than on the Server purchased.
- Client is responsible for ensuring that there is no excessive overloading, phishing, spamming or sending bulk emails, fraudulent activities on their Server and the Client agrees that the SirsteveHQ reserves the right to suspend the recipient of activities that threaten the stability of its network temporarily or permanently from its hosting Server.
- Client agrees to obtain all necessary permissions to use, provide, store and process content in the Enterprise Cloud Service and grants SirsteveHQ permission to do the same. Some of the Client’s content may be subject to governmental regulation or may require security measures beyond those specified by SirsteveHQ for an offering. Client will not input or provide such content unless SirsteveHQ has first agreed in writing to implement additional required security measures.
- Client agrees not to:
- take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third-party providers’) infrastructure;
- interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
- bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems, or networks connected to the Services);
- run any form of auto-responder or “spam” on the Services;
- use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website;
- harvest or scrape any Content from the Services;
- use the Services for high-risk activities including but not limited to the operation of nuclear facilities, air traffic control, life support systems, or any other use where the failure of service could lead to death, personal injury, or environmental damage; or
- otherwise, take any action in violation of our guidelines and policies.
- Client shall not (directly or indirectly):
- decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction,
- modify, translate, or otherwise create derivative works of any part of the Services, or
- copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws, and regulations.
- Client agrees to be responsible for the acts of others utilizing their access to the Services and will be held responsible for violations of the Services by their sub-users or persons who gain access to the Services using the Client’s access codes. Any activity that a Client is prohibited from performing by these Terms of Services is equally prohibited to anyone using access to the Services of the Client.
- We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to
- satisfy any applicable law, regulation, legal process, or governmental request,
- enforce these Terms of Service, including investigation of potential violations hereof,
- detect, prevent, or otherwise address fraud, security, or technical issues,
- respond to user support requests, or (v) protect the rights, property, or safety of us, our users and the public.
- Client is restricted from registering multiple Accounts with the same billing details without first notifying SirsteveHQ of that intent. Otherwise, SirsteveHQ shall have the right to automatically flag such Accounts as fraudulent or abusive, and SirsteveHQ may, without notification to You of such Account, suspend the service of such Account or any other Account used by You. The use of referral codes by multiple Accounts having the same billing profile is not allowed. SirsteveHQ also reserves the right to terminate a Subscriber’s Account if it is targeted by malicious activity from other parties.
- Client agrees to comply with, and refrain from violations of, any right of any other person, entity, law, or contractual duty, including without limitations to applicable laws, and including without limitation those laws forbidding:
- distribution of child pornography,
- forgery, identity theft, misdirection or interference with electronic communications,
- invasion of privacy,
- unlawful sending of commercial electronic messages or other marketing or electronic communications,
- collection of excessive user data from children, or other improper data collection activities,
- securities violations, wire fraud, money laundering, or terrorist activities, or
- false advertising, propagating or profiting from frauds and unfair schemes.
- Client will also comply with the affirmative requirements of the law governing the use of the Cloud Services, including but not limited to:
- disclosure requirements, including those regarding notification of security breaches,
- records maintenance for regulated industries, and
- financial institution safeguards
All Content added, created, uploaded, submitted, distributed, or posted to the Cloud Services by Client or its Users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules, and regulations. You acknowledge that all Content, including User Content, accessed by you using the Cloud Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting from there. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
The Services may contain Content specifically provided by us, our partners, or our users, and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, revocable, non-sublicensable, and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution, or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party’s right.
Enterprise Cloud Server Account Usage
- System Resource Usage (CPU/Memory/etc.): Per our terms of service, abuse of system resources is prohibited. First violations may or may not cause an account suspension depending on the severity of the issue. The Client will receive a clear warning. Second or third violations may result in an immediate termination of your account. SirsteveHQ will judge based on Server performance on what type of activity is considered abusive. Client agrees not to use any method to circumvent the provisions of these Terms of Service, or to obtain Services in excess of those for which they contract with SirsteveHQ and shall use only those IP addresses that are assigned to them by SirsteveHQ, and shall not use any IP addresses outside of their assigned range. Any violation of this policy may result in corrective action by the Company, including assessment of additional charges, disconnection or discontinuance of Cloud Service, or termination of the Agreement, which actions may be taken at the Company’s sole and absolute discretion. If the Company takes any corrective action under this section, Client shall not be entitled to a refund of any fees paid in advance prior to such action.
- Backups and Backup Access: Client acknowledges that individual data backups are the responsibility of the Client which the client saves on its cloud server. You agree that you will maintain at least one (1) additional current copy of your Enterprise Cloud Server Data and programs stored on the Cloud Server. Even with respect to data as to which Client pays for backup services and to the extent permitted by applicable law, SirsteveHQ shall have no responsibility to preserve data and SirsteveHQ shall have no liability for any data that may be lost, or unrecoverable, by reason of Client’s failure to back up its data or for any other reason.
- Upgrade/Downgrade: Client can upgrade or downgrade at any time to a higher resource or package. If downgrade, the data on the cloud server must be less than the package or resource to be downgraded to.
- A Party receiving Confidential Information (the “Receiving Party”) shall maintain the confidentiality of all Confidential Information of the Party disclosing the Confidential Information (the “Disclosing Party”) and shall not release, disclose, divulge, sell or distribute any Confidential Information, without the prior written consent of the Disclosing Party. The Receiving Party may only use and copy the Disclosing Party’s Confidential Information as is necessary to carry out its activities contemplated by this Agreement and for no other purpose. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees on a “need to know basis”, provided that it shall first instruct such employees to maintain the confidentiality thereof. Client may disclose Confidential Information to End Users to the extent necessary to carry out the intent of this Agreement, but such End-Users shall have entered into an End User Licence Agreement. SirsteveHQ may disclose Confidential Information to Third Party Suppliers to the extent necessary for the provision of the Products provided by such Third Party Suppliers and compliance with its agreements with such Third Party Suppliers.
- Disclosure of Confidential Information shall be permitted if such Confidential Information is required to be disclosed by law or by any rule, regulation, or order of a person having jurisdiction or pursuant to a final order or judgment of a court of competent jurisdiction, and in such case the Parties will cooperate with one another to attempt, if possible, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded to such Confidential Information prior to disclosing such Confidential Information.
- The Parties acknowledge and agree that any breach of the terms of this Section 7 will cause irreparable harm and damage to the aggrieved Party. The Parties further agree that each Party shall be entitled to injunctive relief to prevent breaches of this Section 7 and to specifically enforce the terms and provisions of this Section 7, in addition to any other remedy to which such Party may be entitled, at law or in equity.
- During the term of the Agreement and for two years following expiration or termination of the Agreement, Client will not, directly or indirectly, solicit or recruit the services of any employee of Company performing services under the Agreement, while such employee is employed by Company and for a period of six months after such employee has left the employment of Company.
Violation of Copyright, Trademark, Patent or Trade Secret
Client may not use the Services in violation of the copyrights, trademarks, patents or trade secrets of third parties, nor shall they utilize the Services to publish such materials in a manner that would expose them to public view in violation of the law and all other applicable international trademarks, copyright, patent or other intellectual property laws will apply to issues presented by allegations of copyright violations by third parties. SirsteveHQ will, in appropriate circumstances, terminate the accounts of repeat violators. If a third party believes that a Client of SirsteveHQ is violating its intellectual property rights, it should notify us by email at firstname.lastname@example.org. A notification should include information reasonably sufficient to permit SirsteveHQ to locate the allegedly infringing material, such as the IP address or URL of the specific online location where the alleged infringement is occurring.
Each Party recognizes SirsteveHQ’s, Third Party Suppliers’ and Client’s ownership and title to their respective trademarks, service marks, and trade names whether or not registered (collectively, “Marks”). Client may be provided a limited right to use Marks of Third Party Suppliers (“Supplier Marks”) in connection with the promotion and distribution of the Cloud Service. Except for these limited rights, Client may not use Supplier Marks in advertising, promotion, and publicity without the express written consent of SirsteveHQ or the Third Party Suppliers, respectively.
The term of this Agreement shall be for the agreed period (monthly, quarterly, semi-annually, annually, etc), to commence on the date that the Client signs up electronically for the Cloud Service by creating and placing an Order. All invoices are denominated, and Client must pay, in the chosen currency option. Clients are entirely responsible for the payment of all taxes. Renewal fees will be billed at the then-current renewal rate of the Cloud Service and Client must ensure that fees are paid before service expiry to avoid disruption. You may cancel the Services at any time by opening a ticket in your client account or by sending an email to email@example.com from the registered email of your client account. At cancellation, your Account will be inactivated and you will no longer be able to log into our site and/or have any access to the Services. If you cancel, you agree that fees for the initial agreed period of Cloud Service and any setup costs associated with setting up your Account (“Setup Costs”) shall be non-refundable.
If you purchase any services that we offer for a Fee, you consent to SirsteveHQ, or our third-party service providers, storing your payment card information and you authorize us to charge you:
- any Fees for Services you may purchase
- any applicable taxes in connection with your use of the Services to the payment card you provide and you will reimburse us for all collection costs and interest for any overdue amounts.
- If the payment card you provide for recurring payments expires and you do not provide new payment card information or cancel your account, you authorize us to continue billing you and you will remain responsible for any uncollected Fees.
In the event of a chargeback by a payment card company (or similar action by another payment provider allowed by us) in connection with your payment of fees for any Services, we may suspend access to the Services or terminate this Agreement. In the event we suspend access to the Services, we may reinstate your rights to and control over these Services solely at our discretion, and subject to our receipt of the unpaid fees and any reinstatement fee communicated to you. According to our refund policy, If you have an issue with your payment card or other payment methods, you should contact us regarding the issue before you contact your payment card or other payment process company to request a chargeback or reversal of the charges.
Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation.
WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD OR BILLING CYCLE. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD OR BILLING CYCLE
YOU MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSORS IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- SirsteveHQ may suspend, terminate or limit your access to the Cloud Services, in whole or in part, with or without notice in the event that:
- You fail to pay any fees due;
- You violate this Agreement or any of the Terms of service;
- Your conduct may harm SirsteveHQ or others (a material breach or security breach) or cause SirsteveHQ or others to incur liability, as determined by SirsteveHQ in our sole discretion; or
- You fail to take such actions within a reasonable time after SirsteveHQ has provided you with notice of reasonable remedies and actions to take to remove the breach and reinstate the Cloud Service
- As otherwise specified in this Agreement. In such event, SirsteveHQ shall not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination. Additionally, SirsteveHQ may charge you for all fees due for the Services for the remaining portion of the then-current term.
- Either party may terminate this agreement:
- without cause on at least one month’s notice to the other after expiration or termination of its obligations under the Agreement, or
- immediately for cause if the other is in material breach of the Agreement, provided the one who is not complying is given notice and reasonable time to comply.
- UPON TERMINATION OF THE CLOUD SERVICE FOR ANY REASON, USER CONTENT, USER WEBSITES, AND OTHER DATA WILL BE DELETED.
- Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled, and apply to successors and assignees.
Disclaimer of Warranties
SIRSTEVEHQ MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND CONCERNING THE PRODUCTS/ SERVICES, THE PRODUCTS OR THEIR USE, ACCURACY, FUNCTION, OR OWNERSHIP AND SHALL NOT BE LIABLE IN ANY MANNER FOR ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED OR COLLATERAL OR WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE PRODUCT WILL BE ERROR-FREE. CLIENT ACKNOWLEDGES THAT PORTIONS OF THE PRODUCTS/ SERVICES ARE PROVIDED BY THIRD-PARTY SUPPLIERS WHOSE PERFORMANCE IS NOT WARRANTED OR GUARANTEED BY SIRSTEVEHQ. CLIENT SHALL NOT BE AUTHORIZED TO MAKE ANY WARRANTY, REPRESENTATIONS OR WARRANTIES OR CONDITION, WHETHER WRITTEN OR ORAL, ON BEHALF OF SIRSTEVEHQ. CLIENT SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES FOR THE SERVICES GIVEN BY CLIENT
- SirsteveHQ shall indemnify and hold harmless the Client, its employees, officers, directors, mandataries and agents from and against any and all Claims brought by a third party arising out of or in connection with infringement or alleged infringement of the Intellectual Property Rights of such third party due to the distribution of the Products/ Services under this Agreement. If the Products/ Services become or are likely to become the subject of an infringement claim or action, SirsteveHQ may at its sole discretion:
- procure, at no cost to the Client, the right to continue distributing and using Products/ Services;
- replace or modify the Products/ Services so that they become non-infringing,
- withdraw the Products/ Services and terminate any End User Licence Agreement without further obligation.
- Except for matters subject to the indemnity referred to in Section 13(a), Client shall indemnify and hold harmless SirsteveHQ and the Third Party Suppliers from any Claims arising from its distribution of the Products/ Services hereunder.
No Consequential Damages; Limitation of Liability
IN NO EVENT SHALL SIRSTEVEHQ BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, CONTRACTUAL OR EXTRA-CONTRACTUAL LIABILITY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH, OR OTHERWISE. IN NO EVENT SHALL SIRSTEVEHQ’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID, UNDER THIS AGREEMENT BY CLIENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE FOREGOING DISCLAIMER AND LIMITATION OF LIABILITY SHALL NOT APPLY TO THE BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET OUT SECTION 7 OR SIRSTEVEHQ’S OBLIGATIONS TO INDEMNIFY PURSUANT TO SECTION 13(A).
Reservation of Rights.
Company explicitly reserves the right and sole discretion to:
- Censor any Cloud Server hosted on its platform that, in Company’s sole discretion, is deemed inappropriate;
- Review every Enterprise Cloud Server account for excessive space resource utilization and to terminate or apply additional fees to those accounts that exceed allowed levels;
- Modify its pricing through email notification;
- Terminate your Enterprise Cloud Server service for unsolicited, commercial e-mailing (i.e., SPAM); illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; non-payment of fees; and other activities whether lawful or unlawful that Company determines to be harmful to its other Clients, operations, or reputation;
- Terminate your Cloud Service if the contents of your web site result in, or are the subject of, legal action or threatened legal action, against Company or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. Company has no obligation to monitor your site or any of your content but reserves the right in its sole discretion to do so.
Dispute Resolution Policy
Client agrees that if a dispute arises as a result of one or more websites Company is hosting for you, you will indemnify, defend and hold Company harmless for damages arising out of such dispute. Client also agrees that if Company is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a website hosted by Company, that Company, in its sole discretion, may take whatever action Company deems necessary regarding further modification, assignment of and/or control of the website to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
- Media Releases: Except for any announcement intended solely for internal distribution by either Party or any disclosure required by legal, accounting, or regulatory requirements, all media releases, public announcements, or public disclosures, including but not limited to promotional or marketing material, by either Party or its employees, mandataries or agents which includes references to the other Party or the Marks of the other Party shall be coordinated with and approved in writing by such person prior to the release thereof.
- Independent Contractors: The Parties are independent contractors under this Agreement and nothing in this Agreement shall be construed to create any partnership, joint venture, employment, or agency relationship whatsoever as between SirsteveHQ and Client. Either Party shall not, by reason of any provision herein contained, be deemed to be the partner, mandatory, agent or legal representative of the other Party nor to have the ability, right or authority to assume or create, in writing or otherwise, any obligation of any kind, express or implied, in the name of or on behalf of the other Party.
- Entire Agreement: This Agreement and the additional policies and agreement stated hereto collectively constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations, and discussions with respect to the subject matter hereof whether oral or written. In case of a conflict between the Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Client or Company, the terms and conditions of the Agreement shall control. No additional terms or conditions relating to the subject matter of the Agreement shall be effective unless approved in writing by an authorized representative of the Client and Company. This Agreement may only be amended, modified, or supplemented by a written agreement signed by both of the Parties hereto; provided, however, that these Terms of Program may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company’s website.
- Governing Law & Jurisdiction: This Agreement and any dispute or claim whatsoever relating to it or its formation shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria. All disputes, controversies, or claims arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the Arbitration and Conciliation Act CAP. A18, Laws of the Federation of Nigeria 2004, which Rules are deemed to be incorporated by reference to this clause. The number of arbitrators shall be three, each Party shall appoint an arbitrator within 14 days of service of a notice to refer any such dispute, controversy, or claim to arbitration; the seat of the arbitration shall be Lagos, Nigeria, and the language to be used in the arbitral proceedings shall be English.
- Non-Waiver: No waiver of any of the provisions of this Agreement is binding unless it is in writing and signed by the Party entitled to grant the waiver. The failure of either Party to exercise any right, power, or option given hereunder or to insist upon the strict compliance with the terms and conditions hereof by the other Party shall not constitute a waiver of the terms and conditions of this Agreement with respect to that or any other or subsequent breach thereof nor a waiver by either Party of its rights at any time thereafter to require strict compliance with all terms and conditions hereof including the terms or conditions with respect to which the other Party has failed to exercise such right, power or option.
- Force Majeure: Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of nature, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other Party or such other Party’s employees, mandataries, agents or contractors; provided, however, that lack of funds and a lack of reasonable disaster recovery plans and safeguards shall not be deemed to be a reason beyond a Party’s reasonable control. The Parties will promptly inform and consult with each other as to any of the above causes which in their judgement may, or could be the cause of a delay in the performance of this Agreement.
- Successors and Assigns: A Party may not assign this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. This Agreement shall enure to the benefit of and be binding upon SirsteveHQ and Client and their respective legal successors and permitted assigns.
- Survival: All obligations of SirsteveHQ and Client which expressly or by their nature survive expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding such expiration or termination and until they are satisfied or by their nature expire.
- Notice: Any notice given under this Agreement shall be in writing and given by manually delivering it or sent by telecopy, fax, or other similar means of communication. Any such notice shall be effective upon receipt unless received on a day which is not a Business Day in which event it shall be deemed to be received on the next Business Day. Either Party may change its address for service from time to time by notice given in accordance with the foregoing and any subsequent notice shall be sent to the Party at its changed address. upon the expiration of five days after the date of posting, if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of the Agreement by notice in writing to the other party as provided herein. The company may give written notice to Client via e-mail to the Client’s e-mail address as maintained in Company’s billing records.
- Cumulative Rights: The rights of each Party hereunder are cumulative and no exercise or enforcement by a Party of any right or remedy hereunder shall preclude the exercise or enforcement by such Party of any other right or remedy hereunder or which such Party is otherwise entitled by law to enforce.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in the Agreement, nothing in the Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Client acknowledges and agrees that SirsteveHQ, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Program Description, is an intended third-party beneficiary of the provisions set forth in the Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of the Agreement with respect to its products or services against Client as if it were a party to the Agreement.
- Additional Remedies. Client acknowledges that an act of Client in violation of SirsteveHQ’s rights in the Products may cause irreparable damage to SirsteveHQ, for which money damages may not be an adequate remedy. Accordingly, if Client acts, fails to act, or attempts to act in violation of SirsteveHQ’s rights in the Software, then in addition to all SirsteveHQ’s other rights and remedies under this Agreement, SirsteveHQ shall have the right to apply for interlocutory and permanent injunctive relief seeking to enjoin such action or failure to act.
- Further Assurances. The Parties agree to do or cause to be done all acts or things necessary to implement and carry into effect this Agreement to its full extent.
- Severability. If in any jurisdiction, any provision of this Agreement or its application to any Party or circumstance is restricted, prohibited or unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition, or unenforceability without invalidating the remaining provision hereof and without affecting the validity or enforceability of such provision in any other jurisdiction or its application to other Parties or circumstances.
- Counterparts. This Agreement may be executed by the Parties in separate counterparts of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.
- Language. The Parties have requested that this Agreement, together with any schedule, notice, or other related documents, be drawn up in the English language only.