SWVPS Service Agreement
Swvps is a provider of Internet related services such as virtual servers, dedicated servers, and IP transit services, and the Client may from time to time require such services. This Agreement sets out the terms which have been agreed between Swvps and the Client for the provision of such Internet services and shall be supplemented from time to time by Schedules setting out specific details of such services requested by the Client.
In this Agreement, unless the context requires otherwise, the following words shall have the following meanings
"Abuse Complaint" is a complaint, either by Swvps or a third party, about the Client’s use of the Services;
"Bandwidth" is the data transferred by the Client using the Services to other equipment on the Internet. For the avoidance of doubt, this includes transfer of data between the Services and other equipment hosted by Swvps;
"Build Room" means the facilities provided by Swvps, subject to availability, for the Client to perform physical maintenance on their equipment;
"Control Panel" is the online portal that the Client may access at https://secure.Swvps.ie or another address advised to the Client by Swvps from time to time;
"Engineer" is defined as a Swvps member of staff with competence in repairing or replacing the Hardware;
"Hardware" means the servers, firewalls, equipment, cabling and systems provided by Swvps in connection with the Services;
"IP" means Internet Protocol;
"IPRs" means any and all intellectual property rights including without limit any and all patents, design rights, database rights, copyright, know-how, moral rights, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;
"Latency" is defined as the mean time for a packet to be transmitted between two points in the Swvps Network;
"Network Availability" is defined as the percentage of time the Swvps Network is contactable over a calendar month;
"Network Unavailable Time" is when a portion or the entirety of the Swvps Network is unavailable, and this affects the provision of the Services to the Client. Network Unavailable Time excludes Scheduled Maintenance, and those situations defined in the ‘Exclusions’ section of the Network Service Level Agreement;
"Notified Maintenance" means essential maintenance to be carried out by Swvps in relation to the Services, Hardware and/or Software, which has been notified to the Client;
"Packet Loss" is the number of packets, as a percentage, that do not reach their destination within the Swvps Network;
"Power Availability" is defined as the percentage of time the power is available over a calendar month;
"Quality" refers to two metrics, Latency of the Swvps Network and Packet Loss within the Swvps Network;
"Swvps Network" refers to Swvps’s routers, switches, cabling and other network equipment located in the UK responsible for connecting servers hosted by Swvps to the outside world;
"Response Time" is defined as the time from the Client making a Support Request to an Engineer commencing work on the Services;
"Schedule" means the schedules and/or Internet/telephone orders to this Agreement from time to time, describing the Internet related services requested by the Client including without limit details of the requested Bandwidth, Hardware and Software;
"Scheduled Maintenance" is defined as maintenance necessary for the continued provision of service, including but not limited to network upgrades and security updates;
"Services" means the Internet related services described in any Schedule made hereunder and which are supplied or to be supplied by Swvps on and subject to the terms of this Agreement and any schedules made hereunder;
"SLA" means service level agreement;
"Software" means the computer software provided by Swvps in connection with the Services;
"Support Call" is defined as a telephone call by the Client to Swvps’s telephone number, published on www.Swvps.com;
The Services shall be as described in this Agreement and any associated Schedules. All Schedules shall be deemed to be an offer from the Client and shall only be deemed accepted by Swvps when counter-signed by an authorised representative of Swvps. In the event of any conflict between any provision in this Agreement and those in the Schedule then the provision in the Schedule shall prevail.
The Client, where the Client an individual, or the person entering into this Agreement on behalf of the Client, where the Client is an entity, warrants that they are 18 years of age or older, and capable and authorised to enter into this Agreement.
Swvps reserves the right at any time and from time to time to amend, improve or correct the Services, Software and/or Hardware (or any part thereof) provided that such modification does not materially affect the overall quality of the Services. This includes the right to substitute the Hardware with Hardware of similar specification, where necessary. Swvps shall endeavour to give the Client reasonable notice of such modifications but this may not always be possible and Swvps shall not be liable to the Client or to any third party for any such modification or any failure to give such notice
Swvps reserves the right at its sole discretion to suspend the Services (temporarily or permanently) on the occurrence of any unscheduled maintenance or any of the following (each of the following shall be a "Suspension Events"): (i) Notified Maintenance; (ii) issue by any competent authority of an order which is binding on Swvps and which affects the Services and which can only be dealt with properly by suspension of the Services; (iii) if the Client fails to pay any amounts due under this Agreement when they are due; (iv) if any events occur which would entitle Swvps to terminate this Agreement; (v) the Bandwidth used by the Client in relation to the Services exceeds the agreed level and Swvps determines in its sole discretion that such suspension is necessary to protect all and any Internet solutions provided by Swvps from time to time.
It is The Client’s responsibility to keep the server files up to date. The Client is liable for any legal contracts or end user license agreements as a result of any third party software installed by The Client.
In the event of a server crash, once notified, Swvps will endeavour to reboot the Client’s server as soon as possible but offer no timed guarantee. The Client may have access to an automatic reboot switch, in which case an instantaneous reboot may be possible. Swvps make no guarantee as to the functionality of the reboot switch, but will make all reasonable endeavours that the reboot switch is functioning properly.
It is the Client’s responsibility to maintain and to enter a contact email address, postal address and telephone number for the Client on the Control Panel, and to ensure such contact details are current and up to date at all times.
Swvps may provide the Services to the Client from verbal or email order received by it from any authorised person. A person shall be an authorised person for the purpose of this clause if his name is listed at the time of order on the Control Panel.
This Agreement together with the Schedule constitutes the whole and only agreement and understanding between the parties relating to its subject matter and supersedes and extinguishes any drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, between the parties in connection with the subject matter of this Agreement whether existing prior to or at the same time as this Agreement. The Agreement will be on these conditions only, to the exclusion of any other terms and conditions (including any terms and conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document). The Client’s terms and conditions shall not apply to this Agreement.
DURATION AND TERMINATION
This Agreement shall come into effect upon the date of this Agreement and, subject to the provisions of this Agreement shall continue in force for an initial term of 1 month from the date the Services are available to the Client and indefinitely after that until terminated by either party giving not less than 5 days prior written notice to expire on or after the expiry date of the initial term.
Without prejudice to any other rights to which Swvps is entitled, Swvps may give notice in writing to the Client terminating this Agreement with immediate effect if:
1) the Client commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 7 days of being notified of the breach;
2) an order is made or a resolution is passed for the winding up of the Client;
3) an order is made for the appointment of an administrator to manage the affairs, business and property of the Client or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act (1986);
4) a receiver is appointed of any of the Client’s assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Client or if any other person takes possession of or sells the Client’s assets;
5) the Client makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
6) there is a change of the ability to direct the affairs of the Client whether by virtue of the ownership of shares, contract or otherwise of the Client;
7) the Client purports to assign its rights or obligations under this Agreement.
For the avoidance of doubt and without limitation, a breach of any of any of the payment provisions contained in this Agreement, or a breach of the Acceptable Use Policy is a material breach for the purposes of this Agreement.
Refunds will be given only at the discretion of Swvps.
DISTANCE SELLING REGULATIONS
Under Regulation 10 of The Consumer Protection (Distance Selling) Regulations 2000, the Client may have the right to cancel this Agreement for seven working days after the day after this Agreement has been concluded. However, it is agreed between Swvps and the Client that the Services may commence before the end of that cancellation period, and then the Client will lose the right to cancel from the date that Swvps provides the Client with the access details of the Services.
SUPPORT AND MAINTENANCE
Maintenance and support shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than Swvps or its authorised representatives; or (b) software programmes or hardware supplied by the Client.
The Client shall document and promptly report all errors or malfunctions of the Services, Hardware or Software to Swvps. The Client shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Swvps provided the procedures specified are reasonable. The Client shall maintain a current archive copy of all software and data, and shall properly train its personnel in the use of the Services, Hardware and Software.
Any problems caused by the Client to the Services, (which include, but are not limited to, deletion of necessary operating system files, accidental or intentional infection by a virus/Trojan) may result in extra charges to The Client at €50 per 30 minutes, or part thereof. For any work that will take more than two hours we will seek prior authorisation from the Client by telephone, email, fax, or post.
ACCEPTABLE USE POLICY
Swvps’s Acceptable Use Policy ("AUP") is intended to help protect the Swvps service, Swvps clients and the Internet community in general from irresponsible or, in some cases, illegal activities, and the Client agrees to be bound by the Policy.
1. The Client and their end users shall not, nor shall they permit, enable, or assist others, to use the Services for any breach of any applicable law or generally accepted transmission or application protocols applicable to the Internet or any part of it or to anything connected to it or to any user of it. Such prohibited use includes but is not limited to the following:
a. civil infringement of and/or criminal offences relating to copyright, trade marks or any other intellectual property right in any jurisdiction; or
b. commission of any criminal offence (including deliberate transmission of computer viruses) under the Computer Misuse Act 1990 (UK) or any similar legislation in any country; or
c. knowingly or recklessly transmitting, displaying or posting to a publicly accessible service any material which is unlawful or actionably defamatory or an invasion of privacy, breach of an intellectual property right or breach of a right of publicity in any jurisdiction with which any publicly accessible service reasonably appears to have any connection or from which it may reasonably be apprehended that a publicly accessible service is likely to be significantly accessed; or
d. transmitting, transferring, displaying or posting to a publicly accessible service any material in breach of the Data Protection Act 1998 (UK) or similar legislation in any other country or of any material which is confidential or is a trade secret or which affects the national security of the United Kingdom or the said territory or which may expose Swvps to any retribution or penalty under the laws and/or regulations and/or decrees of the United Kingdom or any other country relating to the export of or dealing with military or potentially military resources; or
e. use of the Services or the Internet in any manner which is a violation or infringement of any rights of any kind or nature (whether like to any of the foregoing or otherwise) of any person, firm or company; or
f. unauthorised access to the network management equipment of Swvps or other Internet service providers; or
g. forgery of Internet addresses or other fields in IP packets by the Client; or
h. any sending of unsolicited email messages or any mass mailing of unsolicited advertising material by the Client; or
i. any activity that potentially could harm the Swvps Network, its clients’ networks or other networks, including but not limited to traffic flooding, malicious overflows, etc; or
j. any activity that Swvps decides at its absolute discretion is an unsuitable use of the Services.
2. The Client is responsible for:
a. Maintaining email addresses of the forms email@example.com and firstname.lastname@example.org for receiving complaints of network abuse activities, as suggested by Internet Official Protocol Standard RFC 2142. Typically, these email addresses will forward emails to the real user accounts of the responsible persons for treating the network misuse complaints.
b. The activities of its customer base or end-users and, by accepting service from Swvps, is agreeing to ensure that its clients abide by this Policy. If irresponsible or illegal activity continues, even after Swvps tries to communicate with the Client, then the Client may be subject to an appropriate action in order to stop those activities.
3. All complaints related to network misuse - including email abuse - are to be sent to email@example.com
4. IRC services or IRC-related services are permitted only with prior written permission from Swvps management. This includes, but is not limited to: “IRCd servers,” “eggdrops,” “bots,” and “bouncers.” The purpose of this restriction is to prevent attacks on the Swvps service due to malicious activity that has been known to occur on IRC networks like EFnet and Undernet.
5. The Client warrants that it will respond to any Abuse Complaints within 24 hours.
The Client shall pay the price for the Services as set out in the Schedule. An initial payment is required before any set-up work is carried out. Swvps invoices for regular payments monthly in advance, unless otherwise agreed in writing.
The price for the Service covers Bandwidth as stated in the Schedule. If the Client exceeds this limit then Swvps reserves the right to make additional charges for usage above the limit at its then prevailing charge rate. Swvps will endeavour to let the Client know if its bandwidth use exceeds the agreed level, however it is the Client's responsibility to monitor the bandwidth being used by it from time to time using the Control Panel.
The price and all other amounts due under the Schedule shall be paid by the Client by the due date as specified in Swvps's invoice. Time for payment shall be of the essence. Payment shall only be deemed received by Swvps upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any grounds. Swvps reserves the right to suspend the Services in case of late payment. Any exercise by Swvps of its right to suspend the Services in the case of late payment shall be without prejudice to any other of its rights under this agreement. Notwithstanding suspension of the Services by Swvps the Client shall continue to pay the price for the Services in accordance with the terms of this Agreement until this Agreement is terminated in accordance with the terms of this Agreement. Swvps understands and will exercise its statutory right to interest and debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 if not paid according to agreed terms.
Swvps reserves the right to send overdue accounts to a debt collection agency. All charges involved in the collection of overdue accounts will be payable by the Client.
Swvps is not in a position to assess any consequential loss which the Client may suffer as a result of any failure of the Services, or any other default on the part of Swvps and it would be impractical and uneconomic for Swvps to insure against such liability. Accordingly it is the responsibility of the Client to properly assess any consequential loss that it and/or its clients may suffer and to obtain and maintain adequate insurance in relation to such losses. The Client shall also ensure that it has adequate insurance cover in relation to any loss or damage which may be caused to Swvps and/or its clients through the negligence or default of the Client, its employees, agents, or equipment. The Client shall, as and when requested, provide Swvps with such evidence as Swvps may require in relation to the Client’s insurance.
The Client agrees to fully indemnify and keep Swvps, its subsidiaries, affiliates, officers, partners and employees fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following: (i) the Clients breach of this Agreement or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Client but not the Hardware and/or Software; (iii) the Clients use or misuse of the Services; (iv) the Client infringing (whether innocently or knowingly) third party rights (including without limit IPRs).
Nothing in the Agreement shall exclude or limit the liability of Swvps for death or personal injury resulting from its negligence or fraudulent misrepresentation nor affect the statutory rights of consumers.
The Client acknowledges that the allocation of risk in this Agreement reflects the price paid for the Services, Hardware and Software and that it is not within the control of Swvps how or for what purposes they are used. If any exclusion or limit of liability in this Agreement is held to be invalid and Swvps becomes liable for loss or damage that may lawfully be limited then such liability shall be limited to the amount paid by the Client for the Services.
Swvps shall have no liability to the Client for any loss arising from any material, data or instructions supplied whether digitally or otherwise by the Client or on its behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from late arrival or non-arrival or any other fault by the Client or on its behalf.
No action, claim or demand arising out of or in connection with this Agreement may be brought by the Client against Swvps more than one year after the cause of action has occurred.
Swvps is not responsible for any delay, malfunction, non performance and/or other degradation of performance of any of the Services, Hardware or Software caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Client whether or not beyond those already supplied.
Neither Swvps nor anyone else who has been involved in the creation, production or supply of the Services, Hardware or Software shall be liable to the Client or any other person for any loss in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof by reason of or in connection with this Agreement or the Services, Hardware or Software for any: (i) economic loss of any kind whatsoever, or (ii) loss of profit, data, business contracts, revenues or anticipated savings, or (iii) damage to the Client's reputation or goodwill, or (iv) loss resulting from any claim made by any third party, or (v) special, indirect or consequential loss or damage of any nature whatsoever, and the Client shall indemnify Swvps from and against any claim which may be made against Swvps in respect thereof. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for consequential or incidental damages and therefore the above may not apply to the Client.