Scope. These General Terms of Service (“Terms”) will be applied to a contract (“Contract”) between Fisheye Media Ltd T/A MageOptimised, a English private limited company 07094868 – Incorporated on 3 December 2009 having its registered address at Courtyard House, 39a St. Johns Hill, Shrewsbury, Shropshire, SY1 1JQ (“MageOptimised”), and a customer (“Customer”) to whom MageOptimised provides hosting infrastructure, software and support services for the Customer’s commercial purposes (“Services”).
Contract Documents. The Contract is created when MageOptimised receives an appropriately filled-in registration or order form (“Order”) which the Customer has submitted through a registration and/or purchasing procedure on or offline. The Contract is comprised of the Order, service descriptions attached or referred to in the Order, the service level agreement, the acceptable use policy and these Terms.
Provision of Services. MageOptimised shall provide the Customer with the Services, which are specified in the Order.
Service Levels. MageOptimised shall offer compensation to the Customer for all unscheduled interruptions in the provision of the Services according to the terms of the SLA.
Support. MageOptimised shall provide the Customer’s administrative users with technical support on the Services through phone, e-mail, and ticketing system. Contact details and service hours are provided on MageOptimised’s website.
Access to Service Account. The Customer will be responsible for activities that occur under the Customer’s service account, including actions taken by the Customer’s employees and other representatives as well as their compliance with user instructions and the AUP. The Customer must promptly notify MageOptimised if the Customer suspects that an unauthorised third party is using, or may have access to, the Services or the Customer’s service account.
Third Party Software. The Customer must comply with third party software license terms if the use of such software is offered by MageOptimised for the provision of the Services, or if such software is obtained and uploaded in the Services by the Customer.
Back-Up Copies. You agree that you will maintain at least one (1) additional current copy of your Customer Data and programs stored on the Hosted System somewhere other than on the Hosted System. If you utilise MageOptimised backup services, you are responsible for testing restores as well as testing your systems and monitoring the integrity of your Customer Data.
Changes to Services. MageOptimised is entitled to develop its services and business offerings. In case of a change in the Services, MageOptimised will notify the Customer in advance. If MageOptimised considers that a change will have a material effect in the Services, MageOptimised will notify the Customer at least 30 days before the change will be effected and reserve the Customer a possibility to terminate the Contract.
Prices. The prices of the Services are specified in the Order. Unless otherwise agreed, MageOptimised charges the Customer in advance for a 1 month period of the Services according to MageOptimised’s pricing which is valid at the time. Applicable value added tax and other duties will be added to the prices unless the prices are specified VAT inclusive.
Payment Terms. MageOptimised shall charge the Services by way of subscription on a pre-paid basis after the Customer has submitted the Order. Invoices are sent by email to the Customer.
Free Trial Periods. MageOptimised may offer from time to time free trial periods on services, in this instance Customers payment details are taken with pre-autorisation, and will be automatically debited on expiry of the free trial period. It is the customers responsibility to cancel the order before the expiration of the trial period using the link available in their account area.
Privacy and Personal Data Protection. MageOptimised will comply with applicable privacy and personal data legislation.
Confidentiality. Each party shall keep the other Party’s confidential information as strictly confidential, shall not disclose it to any third party, and shall not use it for any unauthorised purposes. These obligations of confidentiality shall survive the termination of the Contract.
Intellectual Property Rights. All intellectual property rights to the content uploaded into the Service by or on behalf of the Customer will remain the exclusive property of the Customer or its licensors. All intellectual property rights relating to the provision of the Services, including suggestions for improvements made by the Customer, will remain the exclusive property of MageOptimised or its licensors.
Limited Warranty. MageOptimised will offer service level compensations to the Customer according to the SLA. In all other respects the Services are provided on “as-is” and “as-available” basis, and MageOptimised will not give the Customer any warranty or guarantee , express or implied, for the Services, including but without limitation to warranties of merchantability, fitness for any particular purpose, performance, or non-infringement. The parties expressly note that the Services are not designed to be error-free or uninterrupted and therefore they are neither intended nor fit for purposes that require total fail-safe performance.
Limited Liability. MageOptimised will be liable for direct damage which MageOptimised has caused to the Customer up to the total amount paid by the Customer for the Services during a period of 6 months preceding the damaging event. MageOptimised will not be liable for indirect damage or loss of profits. In order to be valid and enforceable, all claims for damages must be made within 30 days from the date the damage was or should reasonably have been noticed by the Customer.
Assignment and Third Party Benefits. MageOptimised may assign the Contract in whole or in part to another group company or in connection with the trade sale which includes the provision of the Services. The Customer may assign the Contract with MageOptimised’s prior written consent which MageOptimised will not unreasonably withhold. The Contract will not create any third party beneficiary rights in any third party.
Temporary Suspension. If the Customer has breached the provisions of the Contract or MageOptimised has justifiable reasons to believe such a breach exists, MageOptimised may temporarily suspend the provision of the Services.
Termination for Convenience. The Customer may terminate the Contract for any reason by canceling their service on the MageOptimised website. MageOptimised may terminate the Contract for any reason by issuing 30 days written notice to the Customer.
Termination for Cause. Either party may terminate the Contract with immediate effect if the other party has materially breached the provisions of the Contract and has failed to rectify the breach within a 15 days period from the receipt of a written notice thereof.
Transition Services. MageOptimised will provide the Customer with transition services in order to enable the Customer to transfer its content to another service provider. The Customer must order the transition services before the termination of the Contract. The description of the transition services and applicable prices are provided on MageOptimised website.
Entire Agreement and Amendments. The Contract constitutes the entire agreement and supersedes all previous commitments between the parties in respect of the provision of the Services. All amendments to the Contract must be made in writing. MageOptimised may modify these Terms and other contract documents by notifying the Customer in writing, such as by e-mail or by posting a revised document version on MageOptimised’s website. If MageOptimised considers that a revision will have a material effect on the Contract, MageOptimised will notify the Customer at least 30 days before the revision will be effected and reserve the Customer a possibility to terminate the Contract.
Non-Waiver. A failure by either party to enforce any provision of the Contract will not be deemed to constitute a present or future waiver of such provision. All waivers must be made in writing.
Force Majeure. Force Majeure is an event that prevents, or makes unduly difficult, the performance of the Services or the fulfillment of the provisions of the Contract, such as war, rebellion, natural catastrophe, general interruption in energy distribution or telecommunications, fire, strike, embargo, or another equally significant and unforeseen event independent of the parties. Each party shall be entitled to suspend its duties without liability thereof in case of Force Majeure affecting the party either directly or through its subcontractor.
Severability. Should any provision of the Contract be declared unenforceable by a court of competent jurisdiction, the remaining provisions of the Contract will remain in full force and effect to the fullest extent permitted by law. The parties shall attempt through negotiation in good faith to replace the unenforceable provision with such provisions that correspond as closely as possible to the original intention of the parties.
Governing Law and Arbitration. The Contract will be governed by the laws of England, with the exception of any conflict of law principles.
Service Level Agreement
Scope. This service level agreement (“SLA”) is an integral part of the Contract between MageOptimised and the Customer.
Service Guarantee. MageOptimised will guarantee 100% virtual server and network availability to the Customer. The network will be deemed available if MageOptimised’s routers and switches are available and responding properly. For all unscheduled interruptions in the provision of the Services, which are due to hardware or telecommunications failures that last longer than 5 minutes, MageOptimised shall offer compensation to the Customer.
Scheduled Interruptions. MageOptimised will notify the Customer by e-mail or on MageOptimised’s website about scheduled interruptions in the provision of the Services at least 24 hours in advance, with the exception of important security updates and patches which MageOptimised may deploy without prior notice.
Payment of Compensation. When a failure in the Services has been corrected, MageOptimised will offer the Customer compensation which the Customer may reclaim within 15 days. The compensation will be paid to the Customer’s service account in the form of credit and may not be exchanged for cash or other forms of payment.
Amount of Compensation. The amount of compensation will be 10 times MageOptimised’s charges for the Services allocated for the period of the interruption of the Services. The maximum amount of compensation for an individual interruption is 100% of MageOptimised’s charges for the Services during 30 calendar days preceding the interruption. The total sum of aggregated compensations cannot exceed 250% of MageOptimised’s charges for the Services during 30 calendar days preceding the latest interruption.
Sole Remedy. The above-mentioned payment of compensation will be the sole remedy of the Customer for interruptions or other failures in the Services. In case of a disagreement over the amount of the compensation payable to the Customer, MageOptimised’s decision on the issue will be binding and final.
Exemptions from Service Guarantee. The following situations will be exempt from MageOptimised’s service guarantee:
- Scheduled interruptions
- Failures caused by errors in third party software utilized in the Services
- Failures in products or services which are not included in the Services
- Failures caused by the Customer’s actions contrary to user instructions or resulting from the Customer’s operating systems or application software used within the Services
- Violations of MageOptimised’s acceptable use policy
- Failures due to hostile actions by third parties such as denial-of-service attacks
- Interruptions resulting from law and public authority enforced activities
- No compensation will be payable to the Customer during a free trial period.
Acceptable Use Policy
Scope. This acceptable use policy (“AUP”) is an integral part of the Contract between MageOptimised and the Customer.
User Instructions. The Customer must comply with separate user instructions concerning the Services. The Customer shall provide reasonable cooperation with regard to investigations on suspected breaches of the Contract.
Customer’s Legal Compliance. The Customer must comply with applicable laws and regulations. For example, the Customer must have necessary rights to use the content which has been uploaded in the Service by or on behalf of the Customer.
Illegal or Offensive Use of Services. The Customer is not entitled to use the Services for purposes which MageOptimised deems to be illegal or offensive. If the Customer is uncertain whether or not its use of the Services could be deemed illegal or offensive, the Customer should contact MageOptimised in advance and request permission. For example, MageOptimised considers the following actions or content to be illegal or offensive:
- Use of the Services in connection with fraudulent activities
- Storage or transfer of, or linking to, content that violates trade secrets, copyrights, trademarks, patents, or other intellectual property rights, or contributes to the said violations
- Storage or transfer of, or linking to, content that is harassing or excessively violent, inciting to hate or violence, or threatening with violence
- Storage or transfer of, or linking to child pornography or content containing non-consensual sexual acts
- Promotion of illegal material or products
- Unauthorised access to, or attempting to access, systems, networks or data
- Use of a user account or computing without the owner’s authorisation
- Collection of user information such as email addresses without the consent of the person identified (phishing)
- Monitoring of network traffic or data without authorization
Mass Emailing. If the Customer wishes to use the Services for sending of bulk e-mail or other mass communications, the Customer must first receive MageOptimised’s written consent.
Disruptive Use of Services. The Customer may use, investigate, and modify the operating environment of the Services only within the limits of the user instructions. The Customer may not use the Services in any way that causes security risks to the Service or interferes with the operation of the Services. For example, MageOptimised considers the following actions to be disruptive on the operation of the Services:
- Intentional or careless use of the Services in excess of a typically expected server load, such as continuosly high CPU or I/O use rate
- Intentional or careless configuration of servers that enables unauthorized third party access or otherwise lacks adequate security requirements
Measures which are mainly aimed to circumvent, or interfere with, the monitoring, controlling, or charging of the Services by MageOptimised