Terms and Conditions for Virtual Private Servers (VPS)

Updated 19/05/2018

By using or placing an order for a Cymru 1 Virtual Private Server product or Options, you agree to the following:

1 Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“Account”	means the details of the Customer that are required and held by Cymru 1 to facilitate the provision of the Service to the Customer including, but not limited to, identification and location details, payment details, username and password, and details of the Service provided to the Customer;
“Business Day”	means a day (that is not a Saturday or Sunday) on which banks are open for business in the UK;
“Customer Data”	means the information stored on Cymru 1's VPS Hardware for the Customer and refers to all types of data including, but not limited to, files, programs and settings;
“Fee”	means the sum payable by the Customer to Cymru 1 in order to receive Cymru 1’s Service;
“VPS Hardware”	means all computer and networking equipment used by Cymru 1 in the provision of the Service including, but not limited to, servers and network infrastructure;
“VPS Package”	means one of the Service packages described on Cymru 1’s website or as agreed with the Customer and generally refers to the package selected by the Customer;
“VPS Software”	means all software used by Cymru 1 in the provision of the Service;
“Order”	means an order placed by the Customer with Cymru 1 for the provision of the Service which shall contain details of the Customer’s chosen VPS Package;
"Options"	means optional enhancements or extra features as specified on Cymru 1's website or as agreed with the Customer which the Customer can add to their Order or at any later time.
"Re-image"	means restore the Customer's VPS to a state similar to that which it was in when it was first provisioned, with all changes, additions or enhancements to programs, configuration files and data that were made since then being removed.
“Service”	means the collective components of Cymru 1’s VPS products which includes, but is not limited to, the provision of internet connectivity, bandwidth and data storage for the Customer’s chosen VPS Package, along with any Options, and can refer either to those components as a whole or to specific parts as the context may require;
"Cymru 1", "Host", "we", "us", "our"	means Cymru 1 Limited;
"Customer", "you", "your", "Client"	means the individual, company or other legal entity wishing to use the services provided by us;
"Uptime Guarantee"	means a Service availability goal that Cymru 1 shall endeavour to achieve.
"VPS"	means Virtual Private Server, a virtualised computer system that forms the container for the Service being provided to the Customer by Cymru 1.

1.1 The clause headings used in this Agreement are used for convenience only and are not intended to affect the meaning or interpretation of the terms of this Agreement.

2 Service

The Service provided shall be a VPS as specified on Cymru 1's website, or as otherwise agreed between Cymru 1 and the Customer, along with any Options requested by the Customer. It available to business customers only and not to consumers.

2.1 Once the Customer’s Order has been placed and processed Cymru 1 will use its best endeavours to commence provision of the Service as soon as reasonably possible.

2.2 In the event that the provision of the Service (excluding any Options, which can take longer to provision) is delayed by more than two Business Days from completion of the Order Cymru 1 will contact the Customer, giving the Customer the option of waiting for a further one Business Days or receiving a full refund of all Fees paid.  In the event of further delay, the process in this sub-clause 2.2 shall be repeated.

2.3 Cymru 1 is under no obligation to provide any Service that is not set out in the Customer’s Order and specified in the relevant VPS Package and Options unless Cymru 1 and Customer enter into a new written Agreement for the provision of additional services.

2.4 Cymru 1 may, in its sole discretion, alter, improve or otherwise modify the Service provided that any such change will not significantly alter the provision of the Service to the Customer or result in the removal of any features or services that form part of the VPS Package.  The Customer will be notified no later than 30 days in advance of any planned changes and will receive full documentation of any action required on their part.  No such alterations to the Service shall affect the Fees payable by the Customer.

2.5 Notwithstanding the provisions of sub-clause 2.4 Cymru 1 may take any action necessary to address or repair faults in VPS Hardware or VPS Software without any prior notice to the Customer.  If such faults or remedial action results in an interruption to the provision of the Service the Customer will be notified in accordance with the provisions of clause 3 of this Agreement.

 

3 Availability of Service (Uptime guarantee)

3.1 Cymru 1 will use its best and reasonable endeavours to ensure that the Service is provided to the Customer on a constant, uninterrupted basis throughout the Term of this Agreement.

3.2 Notwithstanding sub-clause 3.1, Cymru 1 shall not be liable for VPS Hardware of VPS Software downtime or interruptions to the provision of the Service where such downtime or interruptions last for no more than a total of 43 Minutes in any calendar month. (43 minutes being derived from the quoted 99.9% Uptime guarantee that applies to all VPS Packages, where 0.1% of an average 30 day calendar month is equal to 43.2 minutes)

3.3 Where the Service is unavailable for more than 43 minutes in any calendar month the Customer shall be entitled to apply for a refund of the Fee or Fees already paid for the provision of the Service for that calendar month, subject to the terms and exclusions set out in sub-clause 3.4

3.4 The Customer will not be entitled to apply for a refund under the provisions of sub-clause 3.3 where the unavailability of the Service is due to:

3.4.1 Acts or omissions of the Customer or acts or omissions of a third party using or misusing the VPS Package provided by Cymru 1 to the Customer.

3.4.2 Scheduled maintenance conducted by Cymru 1 where such maintenance is notified to the Customer at least 7 days prior to it being conducted.

3.4.3 Faults or errors caused by any software running within the bounds of the Customer's VPS, or any data or configuration file within the Customer's VPS.

3.4.4 the Customer's VPS being temporarily suspended or shut down by Cymru 1 in the event that the Customer breaches any of the terms of this agreement including but not limited to Clause 6.

3.4.5 the fault of any third party

3.4.6 Unscheduled emergency maintenance conducted by Cymru 1 when a critical security vulnerability or similar issue is identified and must be corrected or alleviated as quickly as possible in order to maintain the security, integrity or stability of Cymru 1's systems, VPS Hardware, VPS Software and/or the security, integrity or stability of the Customer's VPS.

3.4.7 Faults or other issues caused by the installation or upgrade of software by Cymru 1 on behalf of the Customer or at the request of the Customer, such as when the Customer has requested the provision of a server management service or Option.

3.5 Where the provision of the Service is interrupted through the fault of any third party, Cymru 1 shall bear no responsibility or liability.

3.6 Cymru 1's decision on the eligibility of the Customer for any refund under sub-clause 3.3 is final and the Customer undertakes to accept that decision.

3.7 It is the Customer's responsibility to request a refund where appropriate

3.7.1 Refund requests must be made within 30 days of the occurrence of the incident.

 

4 Fees and Payment

4.1 Fees for the VPS Packages and Options offered by Cymru 1 are published on Cymru 1’s website or as agreed with the Customer.

4.2 The Customer is required to pay all fees due in advance

4.3 Where payment of Fees is made on a regular monthly basis:

4.3.1 The minimum period of Service Provision and therefore minimum billing period being one calendar month.

4.3.2 Payment of Fees for the first Service Period of one calendar month must be made in advance at the time of Ordering. Payment of fees for subsequent calendar month Service Periods must be made in advance in calendar month intervals, starting from the end of the first calendar month following the initial placement of the Order, in order for the provision of the Service to continue without interruption.

4.3.3 If the Customer requires a VAT invoice covering the Fees paid to Cymru 1, the Customer must contact Cymru 1 and request the necessary invoice or invoices which will be sent to the Customer by email in Adobe PDF format or by post.

4.3.5 Cymru 1 may at any time change the price of its VPS packages. The Customer will be notified at least 30 days before any such changes are applied to the Customer and will be given the option to terminate their Service and this Agreement or to upgrade or downgrade to a different VPS Product.

4.3.5 The Customer may, at any time, change their VPS Package and Options.  If the Customer chooses to do so:

4.3.5.1 Where payment of Fees is made by debit or credit card and collected automatically by Cymru 1's card payment processor, Cymru 1 will adjust the amount collected as appropriate to match the price of the new VPS Package and Options from the date of the Customer's next regular monthly payment. Where appropriate, Cymru 1 will also either request that the Customer make an additional one-off pro-rata payment to cover increased Service fees for the remainder of the calendar month until the next regular monthly payment is due (in the case of upgrades to more expensive VPS Packages or Options) or will make a pro-rata refund to the Customer's card to cover overpayment by the Customer for the decreased Service fees (in the case of downgrades to less expensive VPS Packages or Options).

4.3.5.2 Where payment of Fees is made by the Customer to Cymru 1 by Bank Standing Order, the Customer will adjust the amount paid to Cymru 1 each month to match the new Fees associated with the new VPS Package and Options selected. Where appropriate, the Customer will also make a one-off Pro Rata payment to Cymru 1 to cover increased Service fees for the remainder of the calendar month until the next regular monthly payment is due (in the case of upgrades to more expensive VPS Packages or Options) or Cymru 1 will make a one-off pro-rata refund to the Customer to cover overpayment by the Customer for the decreased Service fees (in the case of downgrades to less expensive VPS Packages or Options).

4.4 Where the Customer agrees to pay for a Service Period greater than one month in advance:

4.4.1 The minimum period of service provision and therefore minimum billing period shall be agreed between the Customer and Cymru 1 before the commencement of the service.

4.4.2 Cymru 1 shall send the Customer an initial invoice covering the first Service Period which the Customer must settle in full before the Service will be provisioned.

4.4.3 The Customer shall either make arrangements to pay for subsequent Service Periods automatically or shall settle invoices for subsequent Service Periods, which shall be sent by Cymru 1 to the Customer 30 to 60 days before the end of the previous Service Period, immediately in order for the provision of the Service to continue without interruption.

4.4.4 Cymru 1 may at any time change the price of its VPS Packages.  The Customer will not be subject to any additional charges or refunds during the period of Service provision paid for in advance to Cymru 1 by the Customer.  Any change in fees will be reflected in subsequent renewals of Service provision. Cymru 1 reserves the right to continue charging old fees for renewals where the new fee is higher.

4.5 The Customer may, at any time, change their VPS Package and Options.  If the Customer chooses to do so, Cymru 1 will either send an invoice for a pro-rata amount to reflect an increase in the total fees to be paid for the current Period of Service which the Customer must settle immediately, or Cymru 1 will refund a pro-rata amount to the Customer to reflect a decrease in the total fees for the current Period of Service.

4.6 All fees payable by the Customer to Cymru 1 shall be paid in full, without set off or deduction.  Cymru 1 reserves the right to suspend the Service or cancel the Customer’s Order if fees are not paid on or before the due date.

4.7 Where payment for a Service Period is not made on time, we reserve the right to charge late payment fees under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002 (SI 2002 No 1674).

 

5 Changes to this Agreement

5.1 Cymru 1 reserves the right to change the terms of this Agreement and all other terms and conditions and policies which may affect Customers in order to comply with changes in the law.

5.2 The Customer will be informed of any such changes and shall be deemed to be bound by them one calendar month after receiving the notice.

5.3 If the Customer does not agree to be bound by the changes they may terminate this Agreement in accordance with Clause 12.

 

6 Customer Undertakings and Obligations

6.1 The Customer may not use the Service for any unlawful or otherwise inappropriate purposes.  This includes, but is not limited to:

6.1.1 Distribution of viruses, spam (unsolicited email), spyware, malware, or any other form of code or of data designed to cause harm or nuisance to hardware or software or networks or to obtain data without consent;

6.1.2 Distribution of pirated material including, but not limited to software, movies, music and written works; and

6.1.3 Distribution of obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities.

6.2 The Customer may not use the Service to link in any way to any sites or systems hosting any material described in sub-clause 6.1.

6.3 The Customer will monitor and supervise any and all third party activity on their VPS (including communications systems such as forums).  Any third party activity that may fall within the provisions of sub-clause 6.1 must be stopped or removed, as appropriate.

6.4 The Customer must ensure that any and all activity conducted through the Customer’s VPS in relation to the collection of personal information complies with the provisions of the Data Protection Act 1998 or its successor(s) including GDPR legislation.

6.5 The Customer must ensure that any and all activity conducted through the Customer’s VPS in relation to selling complies with the provisions of the Distance Selling Regulations 2000.

6.6 The Customer is responsible and accountable for all activity relating to their VPS and the Service that is carried out by third parties on their behalf.

6.7 The Customer will use its best and reasonable endeavours to supply all information required to facilitate the provision of the Service to Cymru 1 in a timely fashion.

6.8 The Customer undertakes to accept the decision of Cymru 1 regarding the Customer's eligibility for any refund under sub-clause 3.3.

6.9 The Customer accepts that the content of their VPS and the data entering or leaving it is the Customer's responsibility, and falls outside the scope of free of charge Technical Support.

6.10 The Customer accepts that if they breach any of the terms of this Agreement their VPS or Service may be suspended or terminated.

6.11 Irrespective of any backup service provided by Cymru 1 and of the specifications of such backup service, the Customer is responsible for maintaining their own viable and current backup of the Customer's Data and is also responsible for any and all costs involved in creating such backups and of restoring them in the event of the Customer Data stored in the Customer's VPS being damaged or lost, irrespective of the cause of such loss or damage.

6.12 The Customer must store the Customer Data backups outlined in Clause 6.11 in a location other than within the Customer's VPS.

6.14 Where any Personal Data is being processed on, in or through the Service, Customer must enter into a Data Processing Agreement with Cymru 1.

 

7 Intellectual Property and Proprietary Rights

7.1 The Customer will not acquire ownership rights over any of Cymru 1’s Intellectual Property in or in relation to the Service or in relation to any other property owned by Cymru 1.

7.2 Cymru 1 will not acquire ownership rights over any of the Customer’s Intellectual Property in the Customer’s Website or any other material belonging to the Customer.

7.3 The Customer agrees to fully indemnify Cymru 1 against all costs, expenses, liabilities, losses, damages, claims and judgments that Cymru 1 may incur or be subject to as a result of the infringement of any Intellectual Property infringement owned by third parties arising from:

7.3.1 The Customer’s failure to obtain the necessary rights and permissions from third parties in order to enable Cymru 1 to legally provide the Service;

7.3.2 The provision of the Service by Cymru 1 based upon information and material provided by the Customer.

 

8 Liability

8.1 Subject to Clause 3 and sub-clauses 8.2 and 8.3 Cymru 1, its directors, employees, officers, other representatives, subcontractors, suppliers, shall not be liable to the Customer or to third parties for:

8.1.1 Any losses resulting from interruptions or downtime to the Service;

8.1.2 Any inability, on the part of the Customer, to use the Service;

8.1.3 Any damage or loss resulting from the loss of confidentiality caused by the storage of information on the internet;

8.1.4 Any damage or loss resulting from the Customer's inability to use or access the Service resulting from the suspension or termination of the Service;

8.1.5 Any damage or loss resulting from loss of data, or loss of access to data, resulting from the Customer's inability to access the Service, however caused.

8.1.6 Any damage or loss resulting from loss of Customer Data or corruption to Customer Data data, however caused.

8.1.7 Any other loss or damage arising out of or in connection with the use of any VPS Package or Options. This is a comprehensive limitation of liability that applies to all losses or damages of any kind, including (without limitation) direct, indirect compensatory or consequential damages, loss of data, loss of income or profit, loss of or damage to property and claims of third parties.

8.2 Nothing in this Clause 8 shall exclude the liability of Cymru 1 for death or personal injury resulting from Cymru 1’s negligence or that of its employees or agents.

8.3 Nothing in this Clause 8 or in this Agreement shall exclude the liability of Cymru 1 for fraudulent misrepresentation.

8.4 Cymru 1's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the total amount paid by Customer to Host in one calendar year.

 

9 Warranty Disclaimer

Subject to the provisions of this Agreement, Cymru 1 gives no warranty, express or implied, in connection with the Service as to fitness for purpose, quality, non-infringement or merchantability.

 

10 Indemnity

10.1 The Customer will fully indemnify Cymru 1 against all costs, expenses, liabilities, losses, damages and judgments that Cymru 1 may incur or be subject to as a result of any of the following:

10.1.1 The Customer’s misuse of the Service;

10.1.2 The Customer’s breach of this Agreement;

10.1.3 The Customer’s negligence or other act of default;

10.1.4 The Activities of third parties conducted on the Customer’s VPS using facilities such as blogs, forums and chat.

10.1.5 Loss of data including Personal Data

 

11 Force Majeure

11.1 Neither Cymru 1 nor the Customer shall be liable for breaching this Agreement where that breach results from Force Majeure.

11.2 Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to, acts of God; acts of war; national emergencies; governmental action; union action; civil unrest; fire; explosion; terrorism, flood and theft.

 

12 Term and Termination

12.1 The initial period of Service provision will commence on the date that the Customer’s Order is processed.  This term shall last for a period of one calendar month (or, by prior arrangement between the Customer and Cymru 1, a period of three months or more), subject to the termination provisions below and to the refund provisions of sub-clause 2.2 of this Agreement.

12.2 Subsequent periods of Service Provision shall last for a period of one calendar month (or, by prior arrangement between the Customer and Cymru 1, a period of three months or more) each and will follow on from a previous period, without interruption, subject to the fulfillment of the Customer’s payment obligations under Clause 4 of this Agreement.  All subsequent periods are subject to the termination provisions below.

12.3 Cymru 1 reserves the right to terminate this Agreement or to suspend the Service in the following circumstances:

12.3.1 If the Customer fails to pay fees due under Clause 4 of this Agreement;

12.3.2 If the Customer is in breach of the terms of this Agreement;

12.3.3 If the Customer becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;

12.3.4 If the Customer is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or

12.3.5 If the Customer has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.

12.3.6 Cymru 1, at its sole discression, decides to terminate the service and gives the Customer 30 days notice of its decision to terminate the service.

12.4 The Customer may request the termination of the Service and this Agreement by written notice, 30 days in advance, supplying their name, address, VPS IP addresses and root password.  The following shall apply to such situations:

12.4.1 The issuing of refunds is at the sole discretion of Cymru 1;

12.5 On termination of the Service and this Agreement the Customer’s VPS and all material, data and settings held within it will be removed from the VPS Hardware.

12.6 If the Customer sends a termination notice in error or changes their mind, Cymru 1 must be informed a minimum of 14 days before the date on which the Customer had originally requested the termination to occur.  Any notification outside of this period may require a new Account to be set up and all data and configuration information held in the original VPS may be lost.

12.7 If the Service is temporarily suspended rather than terminated, although the Customer's data may remain stored on Cymru 1's Hardware, access to that data may not be possible until the service is later restored. In some cases it may not be possible to restore the service until remedial action has been taken, for example (but not limited to) removing a hosting account that has been used to send spam or spread viruses. Furthermore, in some circumstances, for example (but not limited to) situations where a third party has gained or has been given access to the Customer's VPS and has altered files or data or installed software or data in such a way as to make such changes, alternations or additions difficult to trace or reverse, it may be necessary to re-image the Customer's VPS before the Service can be restored.

 

13 Assignment

13.1 Cymru 1 reserves the right to assign or otherwise transfer any rights or obligations under this Agreement.

13.2 The Customer may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Cymru 1.

 

14 Severance

In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way.  The waiver by either party of any provision of this Agreement will not operate or be interpreted as a waiver of any other provision or a subsequent breach of any provision.

 

15 Law and Jurisdiction

15.1 This Agreement is governed by the laws of England and Wales.  Any dispute relating to this Agreement shall fall within that jurisdiction.

 

16 Order Acceptance and Contract Formation

16.1 Order acceptance and the completion of or the formation of the contract between the Customer and Cymru 1 will take place on the activation of the VPS Product the Customer has requested, unless we notify you that we do not accept your order or you have cancelled it. Non-acceptance of an order for a product or service may be a result of, but not limited to, one of the following reasons:

16.1.1 The product you ordered being unavailable;

16.1.2 Our inability to obtain authorisation for your payment;

16.1.3 The identification of a pricing or product description error;

16.1.4 Our inability to verify your identity to our satisfaction;

16.1.5 Our inability to verify that you are lawfully entitled to make use of the particular credit or debit card used to pay for your order.

 

17 Privacy

17.1 In order to investigate problems or suspected breaches of these Terms and Conditions we reserve the right to view the content of any and all files or data contained within your VPS without notice. Any Personal Data that Cymru 1 has access to in this way will be treated in the strictest confidence.

 

18 Customer Data security, integrity and backup

18.1 No warranty of guarantee of any kind is given by Cymru 1 to the Customer with respect to the security or integrity of Customer Data stored in the Customer's VPS.

18.2 If the Customer subscribes to any optional data backup service provided by Cymru 1, such backup service will be provided on a best-effort basis only and should not be relied upon as the sole method of Customer Data backup.

 

19. Server Management Option

19.5 Due to the nature of the service being provided and the comprehensive control the Customer has over the VPS and any installed application or other software installed on it, even when a Server Management service is provided, the Customer understands and agrees that to the fullest extent allowed by law, Customer is responsible for the security of any data, including personal data, that may be stored, transmitted or received on or through the VPS, just as though no Server Management service was provided.