Definitions
- "clearFusion" or "we" means clearFusion Digital, trading under TOLRA Micro Systems Limited. Previously trading as TOLRAnet Digital.
- "Customer" or "you" means the person, firm or company that has requested any Services.
- "Service" or "Services" means any services supplied or to be supplied by clearFusion Digital., including but not limited to the provision of Internet hosting services.
- "Order" means the electronic Service order annexed herein by reference.
- "Server" means an Internet-connected server, virtual or otherwise, provided by clearFusion Digital for the Customer's use.
General terms
- We do not allow Adult, Warez, illegal MP3 or any other site that breaks any international laws.
- Users must not participate in any form of un-solicited bulk e-mailing or spam.
- Participation in IRC, Chat, P2P, Bit Torrent and other networks is not allowed without prior written agreement.
- Data stored on our systems is not guaranteed to be backed up. It is recommend that you keep an independent copy of all data stored on the server.
- You must not divulge your passwords to any other person, and you should take reasonable precautions to ensure that it is not discovered by other people. If your password is discovered by any other person you must inform clearFusion Digital as soon as you are aware of the discovery.
- We shall not be held liable for any loss or damages caused by the user or misuse, unavailability or removal of services.
- We reserve the right to cancel your services at any time without notice in the event of a breach in these Terms and Conditions.
- Should your account be closed, all files (including web pages etc.) will be deleted.
- We reserve the right to amend and update these Terms and Conditions at any time without notice.
- Any costs arising from domain name transfers will be payable by you.
Service Agreement
This agreement is made by and between clearFusion Digital and the Customer:
Overview
This agreement is intended to cover any and all Services provided by clearFusion Digital and received by the Customer. This agreement contains the entire understanding between clearFusion Digital and Customer with respect to the Services described in the Order and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between clearFusion Digital and the Customer. The Customer acknowledges and agrees that its entire right relating to clearFusion Digital Services are as set forth in this agreement.
1. Services
Subject to the terms and conditions of this agreement, clearFusion Digital agrees to provide the Internet hosting services specified in the Order. Subject to Customer's right to terminate this agreement in accordance to Section 4.2 of this agreement, clearFusion Digital may expand or contract the scope of clearFusion Digital services by issuing an amended order form to the Customer in advance of such change.
2. Initial Term
The initial term of this Agreement is stated in the Order ("Initial Term"). The Initial Term shall not commence until clearFusion Digital accepts the Order from the Customer and until first payment as set out in the Order is made in full by the Customer for Services to be provided during the Initial Term.
3. Renewal Term
Unless terminated by clearFusion Digital or in accordance with Section 4.2 of this Agreement, this Agreement will automatically renew for successive terms of equal length to the Initial Term at the applicable rate and discounts.
4. Fees and Payment
The Customer agrees to pay clearFusion Digital, without limitation, for the Services it uses. clearFusion Digital reserves the right to charge the Customer standard hourly rates 1 hour minimum per instance, to cover the resolution of excessive or unusual problems or complaints.
4.1 Invoices
Invoices are emailed to the Customers current billing address as maintained by the Customer in the billing software. Service Fees must be paid by the due date of the invoice.
Customers are fully responsible for ensuring payment of all amounts due are paid on time independently of receiving invoice or billing notifications by email from clearFusion Digital.
4.2 Cancellation Policy
In order to cancel a Service contract the Customer must notify clearFusion Digital via the help desk using a billing support ticket, the email address registered within the billing system must be used for all correspondence. A cancellation request must be received at least 10 working days prior to the start of the next billing period. There are no partial refunds or credits for early cancellations. All payments to clearFusion Digital are final and non-refundable.
4.3 Late Payment
Where payment is overdue for 7 calendar days clearFusion Digital may suspend the Service without notice. Suspended Services may only be reinstated once the account balance has been paid in full by the Customer. Should payment not be made within a period of 14 calendar days from the original invoice due date the Service will be terminated and neither it nor it's data may be recoverable.
Where data from a terminated account is still present within the backup system operated by clearFusion Digital the Customer may request the last available backup be made available to them in a form determined by clearFusion Digital for an administrative fee of £35 + VAT. In such a case the Customer agrees to pay the administrative fee before the data is made available.
5. Acceptable Use Policy (AUP)
If unsure about your content then please contact us before placing it on our servers. clearFusion Digital reserves the right to determine what constitutes acceptable use.
5.1 Network Abuse
Using clearFusion Digital servers in anyway that adversely affects other clearFusion Digital Customers is strictly prohibited and will result in account termination. This includes but is not limited to:
- Gaining or attempting to gain unauthorised access to servers or services. Such attempts include "Internet scamming" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, probing, monitoring or testing for system or network vulnerabilities.
- Introducing viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, packet bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
- Intentionally omitting, deleting, forging or misrepresenting transmission information, including headers, return addressing information and IP addresses.
5.2 Resources
Server resources are defined as data bandwidth, disk space, memory and processor utilization. clearFusion Digital maintains a high ratio of resources to customers to allow for the efficient functioning of hosted websites. On rare occasions clearFusion Digital may find a customer to be using server resources to such an extent that server performance and resources for other customers may be adversely affected.
clearFusion Digital reserves the right to suspend and/or terminate any customer's account for any reason, including but not limited to:
- Inappropriate use of an account.
- Monopolisation of resources by one or more scripts either direct or via additional libraries or tools e.g. MySQL
- Applications which consume excessive CPU time, memory or storage space.
This policy is intended to prevent the misuse of our servers and to protect the integrity of our services.
5.3 Illegal Content
Accounts may be terminated that include content or which have links to content that:
- Is unlawful or is considered offensive by the web community. Promotes injury or physical harm against any group or individual.
- Promotes or teaches illegal activities.
- Exploits or depicts children in a negative/sexual way.
- Infringes on copyright, patents, trademarks, trade secrets, or other intellectual property including pirated computer programs, cracker utilities, warez and software serial numbers or registration codes.
Violates any law, statute, ordinance or regulation governing the Customer's business or activities, including without limitation the laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, trade in firearms, privacy, data transfer and telecommunications.
5.4 Adult Content
Adult Websites, Adult Picture Galleries, Adult File Sharing Services are NOT permitted.
5.5 SPAM or Unsolicited Commercial Email
clearFusion Digital has zero tolerance for the sending of SPAM or Unsolicited Commercial Email (UCE). clearFusion Digital customers cannot send UCE and cannot host sites or information advertised in UCE.
Violating our UCE or SPAM policy will result in penalties. Upon detection or notification of a violation of our UCE policy, clearFusion Digital will initiate an immediate investigation. During this time, outgoing mail may be suspended to prevent further violations. If a client is found to be in violation of our UCE policy, clearFusion Digital will impose penalties and/or, at its discretion, restrict or terminate the offending account and the Customer's access. Repeated or serious violations may result in the immediate termination of the account. SPAM is a very serious matter. PLEASE DO NOT SPAM.
5.6 Receiving SPAM
A Customer receiving SPAM agrees NOT to reply to the SPAM message, but either: a) Ignore the SPAM message or b) pass the email address of the sender to clearFusion Digital where at our discretion the sender may be blocked from delivery to our servers.
clearFusion Digital utilises various DNS Blocking Lists to filter all mail arriving at its mail servers. Any mail, whether legitimate or spam, arriving from a server or computer on one of these block lists will NOT be accepted by our mail servers.
The blocking lists currently being used include: www.spamhaus.org and www.spamcop.net. The selection of list may change without notification at anytime.
5.7 Email Forwarding
Forwarding of emails to external services such as AOL, Yahoo and other ISPs is not permitted. Instead the Customer must pick up their emails directly from our mail servers via POP3, IMAP or web mail.
The rational behind this is that by forwarding email to another service provider it is possible to accidentally forward SPAM, these external services can then block the server forwarding the SPAM. Once a server is blocked then no emails, including legitimate communications with a customer will be accepted by the external service provider.
Therefore to provide the best possible level of service to all clients and avoid the possibility of a server being black listed, forwarding to these ISPs is not permitted.
5.8 Mailing Lists
Where mailing lists are run on our servers, subscribers must sign up via a Closed Loop Opt-In as defined at http://www.spamhaus.org/mailinglists.html, and confirmation information saved.
One suitable script for this is available at http://www.listmessenger.com/
5.9 Storage of Credit Card and Other Sensitive Data
The hosting services provided by clearFusion Digital are designed for general web hosting generally with multiple clients hosted on each server.
Although every effort has been made to ensure the security of our servers clearFusion Digital accepts no responsibility should Credit Card or any other sensitive data be stolen from our servers.
It is the sole responsibility of the Customer to ensure that security of stored data is adequate for their needs and storage of said data complies fully with the rules of any controlling bodies. If in doubt please contact us.
clearFusion Digital reserves the right to instantly terminate any account and destroy all data including all backups where the Customer is found to be storing the CCV Number (Credit Card Verification or Card Code Verification Number) on our servers, Customers found to be storing Credit Card data without encryption are also subject to instant account termination and destruction of all data including backups.
5.10 Responsibility for Content
The customer is solely responsible for the content stored on and served by the hosting services, clearFusion Digital takes no responsibility for the content.
5.11 Catch All Email Accounts
clearFusion Digital does not allow the use of catch all email accounts as this out dated practice causes unnecessary load on our spam filtering service as well as flooding of Customer accounts with spam. To use an email address the Customer must login to the control panel and create required mailboxes. If catch all mailboxes are found they will be removed without notice and the account may be disabled.
6. Temporary Service Suspension
The Customer agrees that it may be necessary for clearFusion Digital to temporarily suspend Services for technical reasons or to maintain the network, the equipment or any other facilities, the timing of which will be as determined by clearFusion Digital.
7. Emergency Service Suspension
clearFusion Digital may interrupt the Services at any time for any duration of time, without penalty or liability for any claim by the Customer, where necessary to prevent improper or unlawful use of clearFusion Digital Services or network.
8. Reselling
Reselling of our hosting services is not permitted. Taking payment for hosting 3rd party websites on our servers constitutes reselling.
Web developers and designers are permitted to signup for accounts on behalf of their clients, provided that each account is dedicated to a single client.
Reseller accounts where available are exempt from this restriction.
8.1 Reseller Responsibility
- The reseller customer is liable and responsible for all actions of their account and the sub-accounts created or owned by the reseller. Reseller customers are responsible for the content of the account they create, if those accounts are abused, hacked or otherwise breach any terms or policies set forth by clearFusion Digital the reseller will be accountable for all costs and liability.
- Sub-accounts violating the terms of service with or without the resellers knowledge will be the responsibility of the reseller account holder and may result in the reseller being suspended or removed from our servers.
- The reseller agrees to monitor their sub-accounts to ensure they are in compliance with all terms and policies set forth by clearFusion Digital.
- The legal liability and responsibility of the resellers sub-accounts belongs to the reseller customer and not clearFusion Digital.
8.2 Included Software Licences
Any software licences are for use only with web hosting supplied by clearFusion Digital and unless specified otherwise by clearFusion Digital will be invalidated on termination of the reseller account. The Customer agrees to stop using such software with the termination of their reseller account.
9. Backups
We make every effort to ensure the reliability of this process. However, because of technical issues regarding backups on live servers and the possibility of data corruption on backup and restore, clearFusion Digital cannot guarantee any data can be fully restored. The Customer will hold clearFusion Digital without penalty or liability for any claim resulting from a failed backup and/or restore procedure.
After account termination, for any reason, backups of the data from the terminated account may be retained for the remainder of the backup rotation cycle, however clearFusion Digital does not guarantee the retention of the data.
10. Bandwidth & Disk Space
10.1 Bandwidth
Each hosting plan is provided with a maximum monthly allowance of data transfer (bandwidth). In the event the Customer exceeds the bandwidth allowance of the hosting plan:
- clearFusion Digital will make reasonable efforts to contact the Customer to arrange an increase in bandwidth allocation at additional cost to the Customer.
- If the customer cannot be contacted or is unwilling to increase their bandwidth allocation, clearFusion Digital reserves the right to suspend all Services to the Customer until the start of the following month.
If the Customer repeatedly exceeds the bandwidth allocation of the hosting plan clearFusion Digital may move the Customer to a more appropriate plan at additional cost to the Customer.
Should the Customer not pay the additional fees associated with the new hosting plan or additional bandwidth, clearFusion Digital reserves the right to terminate the Customers account.
Bandwidth is calculated as the combined total of incoming data plus outgoing data.
10.2 Storage
Each hosting plan is provided a fixed amount of storage (disk space) this storage space is used by web documents you upload, MySQL databases if applicable, email and any other data stored in your account.
Due to the limitations in some commercial control panel software the total disk usage displayed may not include that of the MySQL databases however an automatic email notification will be sent as you approach your storage limit.
11. Domain Name Registration
- clearFusion Digitalmake no representation that the domain name you wish to register is capable of being registered by The Customer or for The Customer or that it will be registered in the Customers name. The Customer therefore must not assume registration of the requested domain name(s) until notified that they have been registered. Any action taken by the Customer before such notification is at the the Customers sole risk.
- Domain name registration is subject to the terms and conditions of the relevant naming authority, the Customer shall ensure that they fully comply with all terms and conditions set forth by the relevant naming authority. The Customer is solely responsible for ensuring, and by registering the domain name(s) acknowledges to clearFusion Digital, that the registration of the domain name(s) does not infringe the legal rights of any third party.
- The Customer shall have no right to bring any claim against clearFusion Digital should the naming authority refuse registration of the domain name and the Customer agrees that any fees paid for domain name registration are non-refundable.
- The Customer takes sole responsibility for ensuring that they enter the domain name they wish to register correctly and without typographical errors, fees for incorrectly registered domain will not be refunded.
- Domain names will not be released to another provider unless they are paid in full.
- clearFusion Digital shall have no liability in respect of the use by the Customer of any domain name. Any dispute between the Customer and another party must be resolved between those parties, clearFusion Digital will not take part in any such dispute. Should such a dispute arise clearFusion Digital reserves the right to at its sole discretion to suspend, cancel or withhold the domain name. clearFusion Digital reserves the right to make representation to the naming authority but is not required to do so. The Customer indemnifies clearFusion Digital from any legal proceedings and costs that arise as a result of the registration of a domain name.
- The Customer has the sole responsibility for domain name renewal and acknowledges thatclearFusion Digital must be informed of the intentions to renew domains. The Customer is liable for all costs associated with domain name renewal and/or recovery. clearFusion Digital is not liable for expiry or loss of your domain name(s).
- clearFusion Digital is required to collect information for the registration of domain names, this information which is collected during domain name registration includes the Customers full name, mailing address, email address, phone number and may contain other information which is passed to the domain name authority and made public within the registered domains WHOIS record. clearFusion Digital is unable to control how members of the public use the WHOIS information.
12. Termination of Agreement
If Customer breaches any of its obligations under this agreement or the Acceptable Use Policy (AUP) then clearFusion Digital may terminate this agreement at any time and without prior notice.
13. Limitation of Liability
Customer acknowledges and agrees neither clearFusion Digital nor any of its members, shareholders, directors, officers, employees or representatives will be liable for any special, indirect, consequential, punitive or exemplary damages, or damages (including but not limited to damages for loss of profits or savings, loss of data, or loss of use) in connection with this agreement. If, despite the foregoing limitations, clearFusion Digital or any of its shareholders, directors, officers, employees or representatives should become liable to Customer or any other person in connection with this agreement for ANY REASON, then the maximum aggregate liability of clearFusion Digital, its members, shareholders, directors, officers, employees and representatives for all such things and to all such parties will be limited to the lesser of the actual amount of loss or damage suffered by the claimant or the amount payable by Customer to clearFusion Digital for one month of service under this agreement.
14. Indemnity
Customer will indemnify and save harmless clearFusion Digital and its members, shareholders, directors, officers, employees, agents, contractors, and representatives from and against all damages, losses, costs and expenses (including actual legal fees and costs), fines and liabilities incurred by or awarded, asserted or claimed against clearFusion Digital or any of its members, shareholders, directors, officers, employees and representatives in connection with Customer's negligence, activities or omissions, or breaches of its obligations under this agreement, including claims brought by a person using or relying upon any advice given or publication produced and distributed by Customer.
15. Customer Acknowledgement
Customer acknowledges that it accepts all risk of any unauthorised or illegal use of the clearFusion Digital network or any inter-connected network by third parties. clearFusion Digital provides no warranties, makes no representations, and accepts no liability for the unauthorised or illegal access or interference with the Customer's server/network unless such access or interference is caused by the intentional unlawful acts of clearFusion Digital, its agents or employees.
The customer acknowledges that it accepts all risk of any unauthorised or illegal use of photographs, infringements of copyright, patents, trademarks, trade secrets, or other intellectual property rights of material given to clearFusion Digital in order that clearFusion Digital may design and build the customers website.
By supplying materials to clearFusion Digital you have expressly given clearFusion Digital Micro Systems Limited the right to use and store those materials in conjunction with the design and building of your website.
The customer accepts all risk of loss or damage to any materials sent to clearFusion Digital in order that clearFusion Digital may design and build the customers website, although clearFusion Digital will endeavour to return all materials in good condition clearFusion Digital cannot guarantee the safe return of any such materials.
The Customer acknowledges that clearFusion Digital is providing Services to the Customer on a non-exclusive basis and that clearFusion Digital may provide Services of the same or similar nature as the Service to any other party.
The Customer acknowledges that all programming including but not limited to JavaScript, PHP, C/C++, algorithms, and other materials not designed specifically for the Customers website will remain the property of clearFusion Digital.
16. E-Commerce
If clearFusion Digital provides a platform to allow online transactions, then while every effort is made to ensure that the shop conforms to any valid laws, it is the responsibility of the Customer to ensure that all legal and contractual requirements are met.
clearFusion Digital does not accept any commercial responsibility for your shop, i.e.
- The Customer alone is responsible for ensuring that all transactions are carried out correctly and in accordance with the law.
- Where applicable it is the Customers responsibility to acquire and accept contracts with Payment Service Providers. It is also the customer's responsibility to conform to any contractual requirements.
- It is the responsibility of the Customer to define their terms of sale and any contracts with their customers.
17. Force Majeure
Whilst every effort will be made to meet your requirements clearFusion Digital shall not be liable for any breach of obligation resulting from causes beyond our reasonable control; including, but not limited to, fires, strikes (of its own or other employees) insurrection or riots, embargoes, wars, compliance with laws or regulations, delays in transportation, inability to obtain supplies, acts of God, acts of civil or military authority (an 'Event of Force Majeure').
18. Governing Law
This Agreement is governed by and construed in accordance with English law, and the parties hereto agree to submit to the non-exclusive jurisdiction of the English courts.
If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be unlawful, invalid or unenforceable in whole or in part then the illegality, invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objective of the invalid or unenforceable provision.
19. Additional Information
Where clearFusion Digital supplies privacy policies, terms of use and other such documents for use on a website, it is the customers responsibility to check with their legal advisor that those documents are correct for use with their business. clearFusion Digital neither implies or warrants that these documents are suitable for use with your business.
From time to time clearFusion Digital may send communications via email, or other contact method, that are related to your account e.g. server maintenance notifications or new services, the Customer agrees to accept such communications.
We reserve the right to make changes to these terms and conditions at any time. Please check back from time to time to ensure that you are aware of these changes.
Any questions relating to these terms and conditions may be sent through our contact page.
