Terms and Conditions of Service
18 Sep 2012 - Updated postal address in (24.2) to reflect new office address.
1. Definitions and Interpretation
“Account Owner” means a Brightbox User who has created and therefore has responsibility for one or more specific Brightbox Accounts within our Systems.
“Advance Payments” means an advance payment made by you in accordance with the provisions of clause 5.
“Brightbox” or “we” or “us” or “our” means Brightbox Systems Ltd, a company registered in England and Wales, whose registered office is Host Media Centre, 21 Savile Mount, Leeds LS7 3HZ and whose company registration number is 6359729.
“Customer” or “you” or “your” means you, the person agreeing to be bound by these terms and conditions.
“Agreement” means together these Terms and Conditions of Service, the AUP and the SLA.
“Brightbox Account” or “Account”, for the purposes of this Agreement, means collectively your Brightbox User and any Brightbox Accounts used for the provision of Services and for which you are the Account Owner.
“Brightbox User” or “User” means a Brightbox User account.
“Other Brightbox User” means any Brightbox User, other than yourself, whom you enable to access your Account.
“Billing Date” means the date on which you are provided with an invoice for fees due in respect of Services in accordance with clause 5.
“Brightbox Manager” means the application at https://manage.brightbox.com
“Brightbox Website” means http://brightbox.com
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the date of this Agreement, that the recipient of such information should reasonably understand to be confidential including without limitation in respect of the Customer, all information transmitted to or from or stored on our Systems as part of the Services, for us, all unpublished prices and other terms of service, audit and security reports, product development plans, data centre designs (including non graphic information you may observe on a tour of a data centre), server configuration designs, other proprietary information or technology, trade secrets, communications whether written or verbal, business plans, financial information, security information, customer information and databases, marketing activities, know-how or other commercially sensitive information and, for both the Customer and us, information that is marked or otherwise conspicuously designated as confidential information.
“your Content” means content running on, uploaded to or otherwise transferred, processed, used or stored on our Systems or in connection with your Account.
“End Users” means any third party who accesses or uses your Content, or otherwise accesses or uses the Services in use by your Account.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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.
“Services” or “Service” means any service provided by Brightbox to you, including without limitation Cloud Servers, Load Balancers and Cloud Server Images.
“Our Systems” means all infrastructure, systems and applications through which we provide Services.
“Suspension” or “Suspended” means our rendering one or more Services inaccessible to you.
“API” means Application Programming Interface.
“SLA” means the Service Level Agreement or Agreements available at http://brightbox.com/legal/sla
“AUP” means the Acceptable Use Policy available at http://brightbox.com/legal/aup
A reference to “written” in this Agreement includes communication on and via email.
(2.1) This Agreement governs your access and use of the Services and is the entire agreement between us regarding your access and use of the Services and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
(2.2) This Agreement is effective from the time you sign up as a Brightbox User via Brightbox Manager and acknowledge your acceptance of this Agreement, or as soon as you begin using the Services, whichever is the earlier. This Agreement shall continue in effect from such time until terminated by either party pursuant to clause 8 of this Agreement.
(2.3) You warrant to us that you:
- are at least 18 years of age;
- if entering into this Agreement on behalf of a company or other legal entity, have the authority to enter into an agreement and bind that company or legal entity to this Agreement; and
- are not a consumer as defined in The Consumer Protection (Distance Selling) Regulations 2000.
(2.4) Should any conflict arise between the contents of any of the documents which constitute this Agreement, then it shall be at our sole discretion to determine which provision shall prevail.
3. Changes to this Agreement
We reserve the right at our sole discretion to change this Agreement (including without limitation to change the AUP and/or the SLA) at any time, effective upon the posting of an amended Agreement to the Brightbox Website. We shall provide you with written notice of such changes in accordance with clause 24.1.
4. Your Responsibilities
(4.1) You acknowledge that you take full responsibility for any action you permit, assist or facilitate any employee, any End User, other Brightbox User or any other third party to take in connection with the Services and your Account, whether directly or indirectly and intentional or unintentional and you therefore undertake to take all reasonable steps to mitigate the risks inherent in the provision of the Services, including data loss.
(4.2) We are not responsible to you for unauthorised access to your data or the unauthorised use of the Services unless the unauthorised access or use results from our failure to meet our obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorised by you.
(4.3) You warrant to us that you shall throughout the term of this Agreement:
(4.3.1) provide appropriate support to your End Users using all due care and skill;
(4.3.2) ensure you have adequate rights for your Content and any Cloud Server Images which you use;
(4.3.3) comply with all applicable statutes and law in connection with your responsibilities under this Agreement and the provision of the Services to you, including without limitation responding as required to notices sent to you by any person claiming that Your Content or use of the Services violates such person’s rights;
(4.3.4) comply with the terms of the AUP;
(4.3.5) ensure that any Cloud Server Images you use are secure from unauthorised access by any other person;
(4.3.6) keep all passwords, secrets, private keys and any other access or login credentials safe and secure;
(4.3.7) ensure that all emails from the brightbox.com and brightbox.co.uk domains are not incorrectly classified as “spam” within your email systems;
(4.3.8) keep Services within your control secure from unauthorised access by any other person;
(4.3.9) keep your Content secure from unauthorised access by any other person;
(4.3.10) maintain your own backups;
(4.3.11) provide and maintain a valid email address in your Account;
(4.3.12) provide and maintain factual and accurate personal and other contact details in your Account and keep these up to date at all times;
(4.3.13) provide and maintain a factual and accurate EU VAT registration number in your Account, where applicable;
(4.3.14) provide and maintain accurate and valid payment details in your Account;
(4.3.15) promptly resolve all issues with your credit card provider or provide alternative credit card details should our attempt to charge your credit card be declined for any reason;
(4.3.16) cooperate with any investigation by us of Service outage, security problems and any suspected breach of this Agreement;
(4.3.17) immediately notify us of any unauthorised use of your Account or any other breach or suspected breach of security;
(4.3.18) comply with any other reasonable request which we may make during the term of this Agreement.
(4.4) You shall fully indemnify us against any loss, claim, damage, costs or expenses (including without limitation all legal expenses) of any manner whatsoever that we may suffer or incur as a result of the breach by you of this clause 4.
(4.5) In the event of a dispute between us in relation to this clause 4, our reasonable determination shall prevail.
5. Fees and Payment
(5.1) You shall pay to us all fees incurred for your usage of the Services in accordance with the latest pricing information which is published on the Brightbox Website. All fees are stated and shall be charged in pounds sterling.
(5.2) We shall use reasonable endeavours to provide you with an invoice on the Billing Date summarising all fees you are liable to pay. The Billing Date is usually, but not always, on the monthly anniversary of the date you became a Customer. We reserve the right at our sole discretion to either temporarily or permanently change your Billing Date. Any changes to your Billing Date will not affect the fees you are charged for the Services.
(5.3) We will collect the balance of all fees due to us from the credit card details you have provided in your Account each month on your Billing Date. Should such payment be rejected by your card issuer or not be completed for any other reason whatsoever then we reserve the right to take such action as we shall deem necessary or desirable, including the suspension of all Services (including without limitation Services provided pursuant to any unrelated matter or other agreement we have with you) and we further reserve the right to require you to pay all such outstanding fees due immediately on written demand.
(5.4) Where your Account has a credit balance, as a result of any Advance Payments you have made or service credits received under the SLA, our billing system will automatically first apply such credit to all outstanding invoices before we collect payment for the remaining balance due from your credit card.
(5.5) We reserve the right at our sole discretion to change the fees we charge for the Services. Changes to fees will be effective immediately upon publication of the revised fees on the Brightbox Website. In the event that the fees are increased, we will provide written notice to you at least 30 days before the new fees become effective.
(5.6) Unless agreed otherwise in writing, all fees are due for payment on the date of your invoice.
(5.7) If any outstanding amount in respect of fees is not paid when due we may at our sole discretion:
(5.7.1) charge interest and late payment charges on top of the outstanding fees due at the statutory rates prescribed in the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002;
(5.7.2) suspend all Services pursuant to clause 7 of this Agreement;
(5.7.3) begin legal proceedings or engage a collection agency to recover the debt. You shall indemnify us for all costs and expenses (including without limitation all legal expenses) incurred by us in connection with the recovery of such outstanding amounts due to us; and
(5.7.4) terminate the Agreement in accordance with clause 8 of this Agreement.
(5.8) If you have a dispute over any fees payable, you must notify us via email to email@example.com within 30 days of the Billing Date of the invoice containing the disputed charges, providing us with clear and accurate evidence to support your dispute. You shall respond in a timely manner to any request from us for further information pertaining to the disputed charges. You must pay all other outstanding fees which are not disputed (whether on the same invoice as any disputed charges) in accordance with the terms of this Agreement. Charges that are not disputed within 30 days of a Billing Date will be deemed to be accurate and indisputable.
(5.9) We shall at our sole discretion if we consider necessary or desirable obtain a report from a credit reference agency at any time during the term of this Agreement to enable us to assess your credit worthiness.
(5.10) You may make Advance Payments to your Account, via the payment methods set out on the Brightbox Website. Certain Advance Payment methods may incur additional, non-refundable administration or processing fees chargeable to you at our sole discretion. Making Advance Payments to your Account does not affect your responsibility to maintain valid credit card details as described in clause 4 of this Agreement. We reserve the right to withdraw the facility to make Advance Payments and/or to withdraw specific Advance Payment methods at any time.
(5.11) Advance Payments are non-refundable, save for in the following circumstances:
(5.11.1) we make changes to this Agreement following the date on which you have made an Advance Payment, in which circumstance you will be entitled to a refund of the remaining balance of such Advance Payment subject to a deduction of any fees you have incurred for usage of the Services up to and including the effective date of any changes made to this Agreement; and/or
(5.11.2) we increase the level of fees payable for the Services following the date on which you have made an Advance Payment, in which circumstance you will be entitled to a refund of the remaining balance of such Advance Payment subject to a deduction of any fees you have incurred for usage of the Services up to and including the effective date of any increase made to the level of fees; and/or
(5.11.3) we are unable to fulfil a “create” request from you for any of the applicable Services due to insufficient resources within our Systems for a period in excess of 24 hours, in which circumstance you will be entitled to a refund of the remaining balance of such Advance Payment, subject to the deduction of any fees you have incurred for your usage of the Services up to and including the date that we are unable to fulfil the “create” request from you.
(5.12) Service credits received in accordance with the SLA are not refundable and may only be used as credit against fees for the Services.
(5.13) We shall collect all VAT or other applicable taxes and charges as required by law in connection with the provision of the Services. Any VAT or other tax charges that you are required to pay shall be specified on your invoice and you shall pay any such amount of tax specified.
6. Changes to the Services
(6.1) We may at our sole discretion change or discontinue or deprecate any of the Services or APIs from time to time.
(6.2) We will provide written notice of any changes which we believe in our sole opinion may significantly affect the Services and shall use reasonable endeavours to support previous API versions for a period of at least 6 months following any such changes.
(7.1) We may at our sole discretion and without notice to you suspend the Services if:
- we believe the Services are being used in breach of the Agreement; or
- we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; or
- you do not cooperate with our investigation of suspected violation of the Agreement; or
- we reasonably believe that the suspension of the Services is necessary to protect Brightbox Cloud or other Brightbox customers; or
- we believe the Services provided to you and/or the Account have been accessed or manipulated by a third party without your consent; or
- we are required by law or a regulatory or government body to suspend the Services; or
- any amount you owe us is not paid when due; or
- our attempts to charge your credit card are declined more than two consecutive times for any reason; or
- you enter into administration, insolvency, receivership, bankruptcy or other similar proceedings; or
- if a company or other corporate organisation, you suffer a change of control.
(7.2) In the event of suspension of the Services we will use reasonable endeavours to give you at least 12 hours advance written notice of suspension and an opportunity to cure the grounds on which the suspension is based, unless we reasonably believe shorter notice is necessary or desirable for any reason whatsoever.
(7.3) You shall remain liable for all ongoing fees in respect of all suspended Services and shall be liable to pay these in accordance with the terms set out in clause 5 of this Agreement. The SLA will not apply to any Services during a period where another Service is suspended. We also reserve the right at our sole discretion to charge you a reasonable reinstatement fee in respect of the Services.
(7.4) We reserve the right at our sole discretion to charge to you any reasonably and properly incurred costs in connection with suspension of the Services (including without limitation our time and any legal fees).
(7.5) We may at our sole discretion deny access to data stored on our Systems during a period of suspension of any Services, including without limitation access to Cloud Server Images.
(8.1) You may close your Account at any time by removing or destroying all active Services. In the event of closure of your Account, the Agreement will terminate on the date being 30 days following the date of closure of your Account and on such date all user data will be destroyed by us.
(8.2) We may close your Account and/or terminate the Agreement at any time for any reason provided that we shall use reasonable endeavours to give you reasonable notice of our intention to close your Account and/or terminate the Agreement.
(8.3) We may terminate the Agreement immediately without notice if in our sole opinion:
- you breach the terms of the AUP and do not correct the violation within 10 days; or
- you breach the terms of the AUP more than once (even if you remedy each breach); or
- we discover that you have provided inaccurate or incomplete Account information; or
- any amount you owe us is not paid when due and you do not pay the overdue amount within 3 days of our written notice to do so; or
- you are a consumer; or
- you breach the terms of this Agreement and you remain in breach of any other terms or obligations of the Agreement for more than 10 days of the date of our written notice to you notifying you of the breach and requesting remedy of such breach; or
- you enter into administration, insolvency, receivership, bankruptcy or other similar proceedings; or
- a credit report obtained by us indicates that you no longer meet our reasonable credit criteria in our sole discretion; or
- if a company or other corporate organisation, you suffer a change of control.
On the date of termination of the Agreement all your rights under the Agreement cease immediately and you will cease to have access to all data stored on our Systems, including access to Cloud Server Images. Following the date of termination of the Agreement:
- you remain liable for all outstanding fees in respect of usage of the Services up to and including the date of termination of this Agreement; and
- you remain liable for all outstanding invoices.
9. Confidential Information
Both during this Agreement and after its termination both parties shall treat as confidential and shall not disclose nor permit its use or disclosure to any person, company, or any other third party any Confidential Information unless required to do so by law.
10. Data protection
(10.1) Both parties agree to comply with their respective obligations under with the Data Protection Act 1998 as applicable to personal data that it controls or processes as part of, or in connection with, its use or provision of the Services.
(10.2) You acknowledge that you are the “Data controller” for all data uploaded to or otherwise transferred, processed, used or stored in connection with your Account.
11. Beta Services
We may, either publicly or privately, offer services or parts of services which are classified as “beta” and conspicuously labelled as such. Your use of any Beta services is subject to the following terms:
- You acknowledge that Beta Services are provided on an “as is” basis with no warranties of any kind, expressed or implied and that we disclaim any warranty or fitness for a particular purpose.
- You acknowledge that Beta Services may not be suitable for production use and may have faults, failures and defects.
- You acknowledge that you shall not be entitled to any service credits under the SLA for failure, downtime or any other fault of the Beta Services.
- You acknowledge that Beta Services and any relevant APIs may be updated or changed at our sole discretion and these changes may not be “backwards compatible”.
- You acknowledge that we may discontinue any Beta Services at any time and at our sole discretion.
12. Resource limits
(12.1) You may request an increase to your Account resource limits at any time via Brightbox Manager, and we may or may not approve such request at our sole discretion. We may at our sole discretion require you to make an Advance Payment to your Account prior to approving a resource increase request.
(12.2) Account resource limits are in no way to be construed as a guarantee of availability of the applicable Services within our system.
13. Intellectual Property
(13.1) All Intellectual Property Rights belonging to or created by either party in the provision and/or use of the Services shall belong exclusively to that party.
(13.2) Neither party shall copy, reproduce, alter, modify or create derivative works from any intellectual property belonging to the other, except where the licencing of such intellectual property permits.
(13.3) Brightbox brands and trademarks include without limitation all Brightbox service and product names, trademarks and logos. Your use of such brands and trademarks in connection with this Agreement is subject to the following restrictions:
- You may not use the Brightbox name, brands and trademarks in any way which implies any endorsement or sponsorship of you by us, or any relationship with you, unless otherwise permitted by us in writing.
- You may not use the Brightbox name, brands and trademarks in any way which is misleading, inaccurate, defamatory or disparaging.
- Your use of the Brightbox name, brands and trademarks is at our sole discretion and you agree to remove any Brightbox name, brands and trademarks if requested to by us.
- You may not impersonate or imitate the Brightbox name, brands, trademarks, websites or other designs
- Any permitted use of the Brightbox name, brands and trademarks must be in accordance with any current brand or trademark guidelines we make available on the Brightbox Website.
14. High risk applications
You are not permitted to use the Services in any environment or for any purpose where failure, defect or other fault of the Services may result in death, physical injury or environmental damage.
15. Third Party Rights
This Agreement, the AUP or SLA and all documents referred to in it are made for the benefit of the parties to them and their successors and permitted assigns, and are not intended to benefit, or be enforceable by, anyone else.
16. Governing Law
This Agreement is governed by and construed and interpreted in accordance with English law. Both parties hereby submit to the exclusive jurisdiction of the courts of England and Wales, and agree that the courts of England and Wales shall be a convenient and appropriate forum to settle any dispute which may arise in connection with this Agreement.
Any invalidity or unenforceability of any part of this Agreement, shall not affect the remaining terms and rights which shall be construed as if such invalid or unenforceable part did not exist.
This Agreement is personal to the Customer and the Customer may not assign the benefit of this Agreement, or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of us. We may assign our rights under this Agreement as part of a corporate reorganisation or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. We may use any third party service providers to perform all or any part of the Services, but we remain responsible to you under this Agreement for work performed by its third party service providers to the same extent as if we have performed the Services ourselves.
19. No Partnership
Nothing in this Agreement shall be deemed to constitute a partnership, agency or joint venture between the parties. Neither party has the authority to make any offers or representations on behalf of the other.
(20.1) All Services are provided on an “as is” and an “as available” basis. We do not warrant or guarantee:
- that the Services will be free from defect, error, fault or failure; or
- the availability of resources within our System in connection with your use of the Services; or
- the appropriateness or accuracy of the Services or our System for your use; or
- that the Services will be uninterrupted or completely secure.
(20.2) Except as expressly provided in this Agreement, all warranties, conditions and other terms of any kind, whether express or implied by statute or common law, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose and merchantability are, to the fullest extent permitted by law, excluded from this Agreement. You are solely responsible for the suitability of the Services chosen. We have no obligation to provide security other than as stated in this Agreement.
(20.3) Nothing in this Agreement shall limit or exclude our liability for:
- death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors; or
- fraud or fraudulent misrepresentation.
(20.4) Subject to clause 20.3 we shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
- any loss or damages, whether indirect, special, incidental or consequential under or in connection with the Agreement;
- loss of profit or revenue;
- loss of business;
- loss of custom;
- loss of data;
- any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages.
(20.5) Our maximum aggregate liability to your in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the greater of:
- the amount of fees you paid for the Services for the 6 months prior to the occurrence of the event giving rise to the claim; or
- five hundred pounds sterling (£500).
(20.6) You acknowledge that service credits shall be the sole and exclusive remedy for any interruption or failure under the SLA to which they apply.
(20.7) This clause 20 shall survive termination of the Agreement.
21. No waiver
Failure by either party to enforce its rights under this Agreement shall not affect the right to enforce such rights at a later date.
(22.1) You agree to indemnify us from any and all liabilities, losses, costs, claims and expenses, (including all legal fees) incurred by us arising from or as a result of:
- your breach of this Agreement and/or failure to fulfil your obligations under this Agreement; or
- your breach of the AUP; or
- your violation or alleged violation of law; or
- your breach or alleged breach of rights of a third party, by you or an employee, contractor, agent, customer or representative of yours.
(22.2) You agree to provide all reasonable assistance in connection with any claim under the aforementioned indemnity and pay all monies due within 30 days of our notification to you in writing of said monies being incurred.
23. Force Majeure
Neither party shall be liable to each other or be deemed to be in breach of the Agreement by reason of any delay in performing or failure to perform any of its obligations in relation to the Services if such failure or delay was beyond that party’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond either party’s reasonable control:
- act of God, explosion, flood, tempest, fire, plague, pestilence, zombie attack or accident;
- any significant failure of the Internet beyond our control;
- war or threat of war, terrorism, sabotage, insurrection, civil disturbances or requisition
- acts, requisitions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental, parliamentary or local authority;
- strikes or other industrial actions or trade disputes of a third party.
(24.1) We may provide notice to you in connection with this Agreement by publishing a notice on the Brightbox Website or by sending an email to your registered email address. Notices published on the Brightbox Website shall be effective and shall be deemed to be served immediately upon publication and notices sent by email shall be effective and shall be deemed to be served at the time we send the email, whether or not you actually receive the email.
(24.2) If you wish to deliver notice to us, you must send such notices both by email to firstname.lastname@example.org and by post via Royal Mail Special Delivery to:
Brightbox Systems Ltd
(24.3) All notices to us must be written in English and will be deemed as being received 2 business days following posting of the Royal Mail Special Delivery.