SERVERTASTIC LIMITED
TERMS AND CONDITIONS FOR THE SUPPLY OF SOFTWARE AND SERVICES
Please read these terms and conditions carefully before purchasing software or services from our website. Your attention is particularly drawn to the provisions of clause 11.2, clause 11.3 and clause 17.
1.INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Add-On Service: a service offered by Servertastic in addition to the Packages. The details of the Add-On Service selected by the Customer including the Price will be as set out in the Order Confirmation.
Commencement Date: the date on which the Services are to commence as specified in the Order Confirmation or as advised to the Customer.
Conditions: these terms and conditions as varied from time to time in accordance with clause 23.6.
Contract: the contract between Servertastic and the Customer for the supply of Software and/or Services in accordance with these Conditions.
Customer or you: the person or firm who purchases Services and/or Software from Servertastic.
Customer Code: the unique code which we will provide to you by email which allows you to access the Software.
Customer’s Website: the Customer’s website on which the Customer wishes Servertastic to carry out the Cybersecurity Services.
Cybersecurity Services: the cyber vulnerability scanning services of the IT Network and/or the Customer’s Website, including the Report, supplied by Servertastic to the Customer for the Term.
Direct Services: the provision of installation, software support and other services by the Software Proprietor to you in accordance with clause 8.
End User Licence Agreement: the licence between the Customer and the Software Proprietor which will be notified to you through our Legal Repository.
Free Trial Software: the Software as listed on the Website on which a free trial is available in accordance with clause 6.4.
Guarantee Period: the period of time for which the Money Back Guarantee is available as specified on the order page for the MBG Software on the Website.
Installation: the installation and configuration of the Software on your IT Equipment or IT Network by Servertastic.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
IT Equipment: PCs, laptops, servers, tablets, mobile phones and any other information technology and communication equipment comprising the IT Network.
IT Network: the Customer’s IT network including the IT Equipment and the Customer’s Website.
Installation: the installation and configuration of the Software on your IT Equipment or IT Network by Servertastic.
Legal Repository: the area of the Website where you can view the contracts and other legal documents which apply to your purchase including the End User Licence Agreement available at www.servertastic.com/legal
Money Back Guarantee: means your right to return the MBG Software and be refunded the purchase price of the MBG Software in accordance with the terms set out in clause 6.
MBG Software: means the Software listed on the Website in relation to which Servertastic offers a Money Back Guarantee.
Order: the Customer’s order for Services and/or the Software which may be placed:
(a) through the Website; or
(b) via telephone or email.
Order Confirmation: the email confirmation of our acceptance of your Order for the Services and/or the Software.
Packages: the packages of Cybersecurity Services the details of which are set out on the Website.
Price: the price for the Software and Services set out on the Website.
Report: the report or other documents produced by Servertastic for the Customer as part of the Cybersecurity Services.
Security Certificate: a secure sockets layer (SSL) or transport layer security (TLS) certificate supplied by the Software Proprietor (including extended validation certificates).
Servertastic, we or us: Servertastic Limited registered in England and Wales with company number 04982077 whose registered office is at Woodend Creative, The Crescent, Scarborough, North Yorkshire, YO11 2PW.
Services: Support Services, Installation, Cybersecurity Services, Add-on Services and any other service offered by us through the Website (but excluding the Direct Services).
Software: the software which is purchased by you from the Website (including Security Certificates).
Software Proprietor: the company which owns the Software and which agrees to licence it to you in accordance with the terms of the End User Licence Agreement.
Support Service: the provision of the support service in accordance with clause 10 for the software listed on the Website.
Term: the period specified in the Order Confirmation or if no such period is specified, the twelve-month period from the Commencement Date during which Servertastic will provide the Services.
User: any person employed by or working (whether as sub-contractor, temporary worker, agency worker or consultant) for the Customer.
Website: our website at www.servertastic.com.
Working Day: a day other than a Saturday, Sunday or public holiday in the UK.
Your Account: the secure area of the Website from which you can download the Software by using the Customer Code.
2.BASIS OF CONTRACT
2.1 We offer Software and Services to businesses only. If you are a consumer as defined in section 2(3) of the Consumer Rights Act 2015, please contact us immediately.
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Servertastic which is not set out in the Contract.
2.3 Any descriptive matter or advertising issued by Servertastic, and any descriptions or illustrations contained in the Website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. These Conditions and the Contract are made only in the English language.
2.5 To order Software or Services you will need to follow the ordering procedures set out on the order page on the Website. Our order process allows you to check and amend any errors before submitting your Order to us. Please check the Order carefully before confirming it. You are responsible for ensuring that your Order is complete and accurate.
2.6 After you place an Order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your Order has been accepted. Our acceptance of your Order will take place as described in clause 2.7.
2.7 Where you are purchasing:
(a) Software we will confirm our acceptance to you by sending you an email with the Customer Code (Order Confirmation). The Contract between you and us will only be formed when we send you the Order Confirmation; or
(b) Services, our acceptance of your Order takes place when we send an email to you to accept it (Order Confirmation), at which point the Contract between you and us will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation.
2.8 These Conditions apply to all purchases made by you from the Website, by email or by telephone. By accepting these terms, you agree that they will apply to future purchases made via email or telephone until such time as Servertastic update these terms and notify you of the update in accordance with clause 23.6.
2.9 To use the Software, you must accept the terms of the End User Licence Agreement. Please view the End User Licence Agreement in the Legal Repository before you purchase the Software. If you are unable or unwilling to accept the terms of the End User Licence Agreement then you must not use the Software and must notify us immediately.
2.10 We amend these Conditions from time to time as set out in clause 23.6. Every time you wish to order Software and/or Services, please check these Conditions to ensure you understand the terms which will apply at that time. These Conditions were most recently updated on 12 July 2019.
3. SALES OUTSIDE THE UK
We make no representations and give no warranties, express or implied that making the Software and Services available in any particular jurisdiction outside the UK is permitted under any applicable non-UK laws or regulations. Accordingly, if making the Software, the Services or any part thereof available in your jurisdiction or to you (by reason of nationality, residence or otherwise) is prohibited, the Software and the Services are not offered for sale to you. You accept that if you are resident outside the UK , you must satisfy yourself that you are lawfully able to purchase the Software or the Services. We accept no liability, to the extent permitted by applicable laws, for any costs, losses or damages resulting from or related to the purchase or attempted purchase of the Software or Services by persons in jurisdictions outside the UK or who are nominees of or trustees for citizens, residents or nationals of other countries.
4.PRICE
4.1 The Price of the Software and/or the Service is the Price in force at the date and time of your Order. We may change the Price of the Software and/or the Services before you place an Order. We are entitled to refuse any Order placed by you.
4.2 We try to ensure that the prices displayed on the Website are accurate but the price of your order will need to be validated by us as part of the acceptance procedure (see clause 2.7). We will inform you if the correct price of the Software or the Services is higher than that stated in your Order. In these circumstances you may either cancel the Order or decide if you wish to proceed with the Order of the Software or the Services at the correct price.
4.3 The Price for the Cybersecurity Services shall be as follows:
(a) the Price of the Package selected by you;
(b) plus any Add-On Cybersecurity Services selected by you;
(c) plus an additional fee for each item of IT Equipment/User if the IT Network or number of Users exceeds the maximum size for the Package selected by you. The fee for each additional item of IT Equipment or User shall be as set out in the Order Confirmation.
5.PAYMENT
5.1 You can pay by via an appropriate method detailed on the Website at www.servertastic.com/pay . We will take payment when we send you the Order Confirmation or, where Price is being paid in monthly instalments, we will take payment of the first instalment when we send you the Order Confirmation and all other instalments will be taken on the first Working Day of each subsequent month during the Term.
5.2 You warrant that all details you provide to us for the purpose of purchasing the Software and/or the Services will be correct, that any credit or debit card which you use or other payment method used by you is your own and that there are sufficient funds or credit facilities to cover the cost of the Software and/or the Services. We reserve the right to obtain validation of your credit or debit card details before providing you with the Customer Code or commencing performance of the Services.
5.3 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Servertastic to the Customer, the Customer shall, on receipt of a valid VAT invoice from Servertastic, pay to Servertastic such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.4 You shall pay each invoice submitted to you by us in full, and in cleared funds, within 14 days of receipt. Payment will be accepted in pounds sterling, US dollars or Euros. Time for payment shall be of the essence of the Contract.
5.5 Without prejudice to any other right or remedy that we may have, if you fail to pay us on the due date we may charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Lloyds Bank plc accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment.
5.6All amounts due under this Contract shall be paid by you to us in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Servertastic may, without prejudice to any other rights we may have, set off any liability of the Customer to Servertastic against any liability of Servertastic to the Customer.
6.MONEY BACK GUARANTEE AND FREE TRIAL SOFTWARE
6.1 As a goodwill gesture Servertastic offer a money back guarantee for the MBG Software. The Money Back Guarantee on the MBG Software will be valid for the Guarantee Period.
6.2 If you decide within the Guarantee Period that you do not wish to keep the MBG Software you must notify us of this in writing prior to the expiry of the Guarantee Period. The End User Licence Agreement to use the MBG Software will terminate on the date of your notification to Servertastic of your claim for a refund and you must destroy all copies of the Software and delete the MBG Software from your IT Equipment or IT Network. We will refund to you the Price paid for the MBG Software by the means with which you paid for it, which will be paid as soon as possible and in any event within 30 days.
6.3We reserve the right to refuse to provide a refund in accordance with clause 6.2 under the Money Back Guarantee if we reasonably believe you are acting in an unacceptable manner or attempting to abuse the Money Back Guarantee.
6.4 The Free Trial Software is available to be downloaded from the Website in accordance with the trial End User Licence Agreement issued by the Software Proprietor which can be viewed in the Legal Repository. The period of the trial will be as specified in the trial End User Licence Agreement. At the expiry of the free trial you must either purchase the Free Trial Software in accordance with these Conditions or cease to use the Free Trial Software and delete the Free Trial Software from your IT Network or IT Equipment. Free Trial Software is only subject to the Money Back Guarantee where explicitly stated on the Website.
7.SECURITY CERTIFICATES
7.1Where you are purchasing a Security Certificate we act as reseller for the Software Proprietor. The contract for a Security Certificate will be between you and the Software Proprietor and the terms and conditions of the contract with the Software Proprietor will be as the Software Proprietor notifies you, in particular:
(a) you acknowledge that the Software Proprietor may refuse to issue a Security Certificate to you; and
(b) in the event you wish to exercise your rights under clause 6.2 you agree to complete any and all steps required by Servertastic and/or the Software Proprietor to effect cancellation.
7.2We shall have no liability for acts or omissions of the Software Proprietor in the provision of the Security Certificate. In the event the Software Proprietor refuses, for any reason, to issue a Security Certificate to you, we will refund the Price to you provided the Software Proprietor has refunded such purchase price to us. We shall have no other liability to you in these circumstances.
8. SERVERTASTIC ACTING AS RESELLER FOR THE SOFTWARE PROPRIETOR
8.1Where the Software Proprietor will provide the Direct Services, Servertastic acts as reseller for the Software Proprietor in forming the contract for the Direct Services. Where the purchase price for the Software includes the cost of the Direct Services then the Software Proprietor will provide the Direct Services to you.
8.2The contract for the Direct Services will be between you and the Software Proprietor. The terms and conditions of the contract with the Software Proprietor will be as set out in the Legal Repository.
8.3We shall have no liability for the acts or omissions of the Software Proprietor in the provision of the Direct Services. If you are unhappy with any work carried out by the Software Proprietor as part of the Direct Services then you should address your concerns to the Software Proprietor.
9.INSTALLATION
9.1If requested by you, we will perform the Installation on your IT Equipment or IT Network. Unless stated on our Website that Installation is included in the purchase price of the Software, the cost of the Installation will be additional to the Price as specified on the Website.
9.2If the cost of the Installation is included in the Price, we reserve the right to charge for our time in carrying out the Installation if the installation work is not standard (for example, due to the complexity of your IT Network or the other software on your IT Network). We will determine whether the Installation is standard at the commencement of the Installation and will inform you of the charges which will apply before carrying out any non-standard installation work.
9.3As part of the Installation you will test the Software on your IT Network or IT Equipment to ensure the Software is operating correctly. You must email us after such tests have been successfully completed and this email will constitute acceptance of the Software. If you do not email us after such tests have been successfully completed, you will be deemed to have accepted the Software when you start using it.
9.4If any additional work is required by you after the Software has been accepted then Servertastic will charge for such work in accordance with our standard charges from time to time in force as set out on the Website.
9.5We will use our reasonable endeavours to complete the Installation as soon as possible. However you acknowledge that due to the complexity of the Software, your IT Network or IT Equipment the time taken to complete the Installation may exceed our original estimate.
9.6We will use our reasonable endeavours to successfully install the Software. However in certain circumstances it may not be possible to install the Software successfully and we reserve the right, in our absolute discretion, to terminate an Installation and refund to you the price paid for the Software and the Installation (if additional).
10. SUPPORT SERVICE
10.1The Support Service shall be accessed by https://support.servertastic.com. Support is available 24 hours a day 7 days a week. Our support staff will respond to you within the timescales set out on the Website.
10.2Servertastic’s support staff will attempt to solve a problem as soon as possible. When appropriate, Servertastic will endeavour to give an estimate of how long a problem may take to resolve. Servertastic will keep you informed of the progress of problem resolution.
10.3 Servertastic shall be under no obligation to provide the Support Service in respect of:
(a) problems resulting from any modifications or customisation of the Software not authorised in writing by the Software Proprietor;
(b) any software other than the Software;
(c) incorrect or unauthorised use of the Software or operator error;
(d) any fault in your IT Network or IT Equipment;
(e) any programs used in conjunction with the Software;
(f) use of the elements of the Software in any combination which is not approved by Servertastic;
(g) physical damage to the Software, the IT Equipment or the IT Network; or
(h) use of the Software with any computer server or other hardware which is not approved by Servertastic.
10.4Servertastic shall upon request by the Customer provide the Support Service notwithstanding that the fault results from any of the circumstances described in clause 10.3. Any time spent by Servertastic in investigating such faults will be chargeable at our then current rates as set out on the Website and we shall invoice you for such charges.
11.CYBERSECURITY SERVICES
11.1 Servertastic shall have the right to make any changes to the Cybersecurity Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Cybersecurity Services, and Servertastic shall notify the Customer in any such event.
11.2 DUE TO THE NATURE OF CYBERSECURITY IT MAY NOT BE POSSIBLE FOR SERVERTASTIC TO ADVISE UPON ALL POTENTIAL RISKS OR VULNERABILITIES AS THIS IS A CONSTANTLY EVOLVING AREA WITH NEW RISKS BEING DEVELOPED ALL THE TIME.
11.3 Servertastic will produce the Report setting out the potential cybersecurity risks and vulnerabilities of the IT Network and/or the Customer Website (as appropriate, depending on the Package selected by you). IT IS YOUR RESPONSIBILITY TO TAKE ALL NECESSARY STEPS TO RESOLVE THE RISKS AND VULNERABILITIES SET OUT IN THE REPORT.
11.4 The Cybersecurity Services will be provided by an appropriately skilled and experienced employee of Servertastic. If a director of Servertastic commences providing the Cybersecurity Services, they may delegate completion of the Cybersecurity Services to an employee or contractor of Servertastic with the appropriate skills and experience.
11.5 Where we provide the Cybersecurity Services onsite, we shall comply with all reasonable standards of safety and comply with the Customer’s health and safety procedures from time to time in force at your premises and report to you any unsafe working conditions or practices which come to our notice during the provision of the Cybersecurity Services.
12.CUSTOMER’S OBLIGATIONS
12.1 The Customer shall:
(a) ensure that the information provided to Servertastic is complete and accurate. You acknowledge that this information will be used to advise on the appropriate Package for you. If the information provided to Servertastic is materially inaccurate or incomplete then this may result in delays in the performance of the Services and/or significant increase in the Price;
(b) co-operate with Servertastic in all matters relating to the Services;
(c) provide Servertastic, its employees, agents, consultants and subcontractors, with access to your premises, office accommodation, IT Network and such other facilities as are reasonably required by Servertastic to perform the Services;
(d) promptly provide Servertastic with such information and materials as Servertastic may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) if requested by Servertastic, promptly provide Servertastic with remote access to the IT Network and/or the Customer’s Website; and
(f) if paying the Price in monthly instalments to pay each monthly instalment on the due date as set out in clause 5.4. We will suspend the Cybersecurity Services under clause 18.2 if an instalment is not paid on the due date.
12.2 If Servertastic’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) we shall without limiting our other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations to the extent the Customer Default prevents or delays Servertastic’s performance of any of our obligations;
(b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 12.2; and
(c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
13.DELIVERY OF THE SOFTWARE
Any times or dates stated on the Website for delivery are estimates only. We reserve the right to delay delivery of the Software until we have received payment from you in cleared funds. Delivery of the Software purchased by you (except for the Free Trial Software) will be made either:
(a) by Servertastic who will provide you with the Customer Code which is necessary to download the Software from Your Account; or
(b) by the Software Proprietor who will provide you with access to the Software in accordance with the method specified on the Website.
14.INTELLECTUAL PROPERTY RIGHTS
14.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Servertastic.
14.2 The Software is protected by international copyright laws and other intellectual property rights. The owner of these rights are the Software Proprietor, its affiliates or other third party licensors. All product and company names and logos contained within the Software are the trade marks, service marks or trading names of the Software Proprietors.
14.3 In order to carry out the Services we shall use proprietary software which is licensed to us by a third party. The terms of our licence of the software allow us to use the software to carry out the Services provided that you agree to the attached End User Licence Agreement. Please notify us immediately if you are unwilling or unable to agree to the End User Licence Agreement.
14.4 We may change the proprietary software used by us to provide the Services during the Term. Any such change will be to software which provides an equivalent or better service. If we change the proprietary software used to provide the Services we will notify you in writing of the End User Licence Agreement which applies to such software. If you are unwilling or unable to agree to such End User Licence Agreement you can terminate this Contract by giving 30 days notice in writing.
14.5 The Report is provided for your internal business use and shall not, without our prior written consent, be disclosed to any person who is not an employee, agent or consultant of the Customer.
15.WARRANTIES
15.1 We warrant that:
(a) we have the right to sell the Software to you; and
(b) the Software will correspond with its description.
15.2At our option, we may grant you a refund or provide you with replacement Software in the following circumstances:
(a) if the Software downloaded is not what you ordered; or
(b) if the Software does not comply with the warranty in clause 15.1 and you notify us of the details of any non-compliance as soon as possible.
No other refunds will be provided in relation to the Software.
15.3If you claim a refund from us under clause 15.2:
(a) you must destroy all of your copies of the Software and delete the Software from the IT Network and/or IT Equipment; and
(b) the End User Licence Agreement will be terminated as of the date of your notification of us of your claim for a refund.
15.4 We will only be liable to you for the Software’s failure to comply with the warranty set out in clause 15.1 to the extent set out in this clause 15.
15.5 We warrant that the Services will be provided with reasonable skill and care and that, in addition, the Cybersecurity Services will be provided according to best practice in cybersecurity at the time of delivery of the Cybersecurity Services.
15.6 If the Services provided to you by Servertastic do not correspond with the warranty in clause 15.5 then we, will at your option, either perform the Services again or refund to you the Price and cancel the Contract.
15.7 We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation or agreed between you and us but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.
15.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
16.CONFIDENTIALITY
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 18 shall survive termination of the Contract.
17.LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
17.1 The following provisions set out the entire financial liability of Servertastic (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract howsoever arising;
(b) any use made by the Customer of the Services, the Software, the Report or any part of them; and
(c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including, without limitation, negligence) arising under or in connection with the Contract.
17.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
17.3 Nothing in this clause 17 excludes the liability of Servertastic:
(a) for death or personal injury caused by Servertastic’s negligence; or
(b) for fraud or fraudulent misrepresentation.
17.4 Subject to clause 17.2 and clause 17.3:
(a) Servertastic shall not in any circumstances be liable, whether in tort (including, without limitation, for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses,
(b) Servertastic’s total liability in contract, tort (including, without limitation, negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price.
17.5 In the event that the Customer suffers a cyberattack or other similar event, Servertastic shall have no liability for the costs, expenses or losses suffered by the Customer as a result of such cyberattack or similar event unless Servertastic acted negligently in providing the Services.
17.6 Servertastic, its employees and affiliates do not provide advice on cyber insurance or any other regulatory financial product. We may assess your likely financial exposure in the event your business suffers a major cyber incident and, if you wish, we can refer you to Wright and Pryce Ltd (t/a Spy and Scam) who provide advice on cybersecurity insurance.
17.7 This clause 17 will survive termination of the Contract.
18.TERM AND TERMINATION
18.1 The Contract for the Services shall start on the Commencement Date and continue, unless terminated earlier in accordance with clause 18.2, for the Term.
18.2 Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 14 days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
18.3 Without limiting its other rights or remedies, Servertastic may suspend provision of the Services under the Contract or any other contract between the Customer and Servertastic if the Customer becomes subject to any of the events listed in clause 18.2(c) to clause 18.2(e), or Servertastic reasonably believes that the Customer is about to become subject to any of them.
19.CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) you shall immediately pay all of our outstanding unpaid invoices and interest thereon;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication survive termination shall continue in full force and effect.
20.DATA PROTECTION
20.1 In this clause 20, the following definitions apply:
(a) the terms “data controller“, “data processor“, “data subject” and “processing” bear the respective meanings given them in the General Data Protection Regulations (GDPR).
(b) data includes Personal Data.
(c) Customer Personal Data means any Personal Data provided by or on behalf of the Customer.
20.2 Servertastic may during the provision of the Services have access to Personal Data. Servertastic therefore agrees to:
(a) only carry out processing of any Customer Personal Data on the Customer’s instructions;
(b) implement appropriate technical and organisational measures to protect any Customer Personal Data against unauthorised or unlawful processing and accidental loss or damage; and
(c) only to process the Customer Personal Data in accordance with the obligations on data processors in the GDPR.
20.3 Servertastic shall promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Personal Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.
20.4 The Customer acknowledges that Servertastic will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which Servertastic carries out under this Contract.
21.FORCE MAJEURE
21.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
21.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
21.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.
22.COMMUNICATIONS BETWEEN US
22.1 When we refer to “in writing” in these Conditions, this includes email.
22.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next Working Day delivery service, or email.
22.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next Working Day delivery service, at 9.00 am on the second Working Day after posting; or
(c) if sent by email, at 9.00 am the next Working Day after transmission.
22.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
22.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
23.GENERAL
23.1 Assignment and transfer.
(a) We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing or by posting on this webpage if this happens.
(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
23.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
23.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
23.4 Severance. Each paragraph of these Conditions operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
23.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
23.6 Our right to vary these Conditions. We may revise these Conditions from time to time. Every time you order Software and/or Services from us, the Conditions in force at that time will apply to the Contract between you and us. Whenever we revise these Conditions in accordance with this clause 23.6, we will keep you informed and give you notice of this by stating that these Conditions have been amended and the relevant date at the top of this page.
23.7 Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
23.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
