Cloud Services Agreement
Last updated: 20th July 2023
Version: 2.5
This blocz Cloud Customer Agreement (this “Agreement“) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between blocz (also referred to as “blocz,” “We,” “Us,” or “Our“) and you or the entity you represent (“Customer“, “You” or “Your“).
This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (the “Effective Date“) and shall continue on a month by month basis or for a contracted term of twelve months (“Initial Term“). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
Acceptable Use Policy
means Our policy for the use of the Service(s) as amended from time to time;
“Communications Network” means the communications network which We and Our Group run;
Equipment
means equipment other than any Purchased Equipment that We provide to You from time to time in connection with the provision of the Service;
Force Majeure Event
means circumstances beyond a Party’s reasonable control including acts of God, theft, war or riot, civil disobedience, national emergency, strikes and other labour disputes (other than the Party affected by the Force Majeure Event unless such Party has used its reasonable efforts to resolve the same), fire, flood, act of terrorism, power failures, non-availability of any third party communication services, or the internet or breakdown of any equipment not supplied by blocz, acts of government or other competent authority;
Group
means a group undertaking (as that term is defined in sections 1161 and 1162 of the Companies Act 2006) of either Party as appropriate other than that Party;
Law
means any law, statute or regulation, guideline or code of conduct (whether or not having the force of law) (as amended from time to time) in any jurisdiction to which a Party is from time to time subject including but not limited to The Communications Act 2003, the Data Protection Act 2018 and the General Data Protection Regulation 2016/679 (GDPR);
Cloud Services Agreement
means these terms and conditions as vari
Party
means You or Us, and “Parties” means You and Us
Password
means a password, code, PIN number, user ID, account number, smart card or other security device We issue to You or which is issued to You on Our behalf;
Our Website
means (i) www.blocz.io; or (ii) such other web address as notified to You from time to time including in each case any website or webpage referred to or accessed via a link from such website;
Service
means the service(s) set out in the Order form (“CRF”);
Service Credits
means reductions in certain Charges in respect of Our failure to meet specified service levels calculated in the manner set out in any applicable Service Level Agreement;
Service Level Agreement
means Our service level agreement from time to time applicable to the Service, as published on Our Website or otherwise notified to You;
Special Terms
means Our additional Service specific terms and conditions;
blocz/We/Us/Our
means blocz IO Limited
Order Form (“CRF”)
means Our standard or digital Order form (“CRF”) completed by the Parties and accepted by Us to order the Service;
Working Day
means 09.00 — 17.30 Monday — Friday excluding bank and public holidays in the United Kingdom;
Year
means the 12-month period commencing on the date of this Agreement;
Customer/You/Your
means the person who enters into the Agreement as detailed on the Order or Order form.
1.2 References in the Agreement:
1.2.1 to a statutory provision will be interpreted as a reference to such provision as amended or re-enacted from time to time;
1.2.2 to a ‘person’ includes any person, partnership, firm, company, body corporate, corporation, government,
1.2.3 state or agency of a government or state, joint venture, trust, association or organisation;
1.2.4 to a Party includes its respective successors and permitted assigns and their respective employees and agents;
1.2.5 to You, Your or the Customer includes any other person who We reasonably believe is acting with Your knowledge or authority; and
1.2.6 to any word in the singular includes the plural and vice versa.
1.3 References in this Cloud Services Agreement to Clauses are unless otherwise stated to Clauses in this Cloud Services Agreement
1.4 Headings are for convenience only and do not affect the interpretation of the Agreement.
1.5 Where in the Agreement You agree not to do any act or thing You also agree not to allow and to take all reasonable measures to prevent any other person doing that act or thing.
1.6 For the avoidance of doubt, the hierarchy of terms within related documents shall be in the following order:
1.6.1 Individual Customer Requisition/Order form (“CRF”), which supersedes related terms in;
1.6.2 Individual Product Service Schedule, which supersedes related terms in; and
1.6.3 Cloud Services Agreement and Acceptable Use Policy.
2 Service Description
2.1 blocz Enterprise Cloud and Private Cloud is a Virtual Data Centre cloud service that enables the delivery of computing resources including processing, storage, networking and other fundamental associated resources used to deploy and run software which can includes applications and operating systems.
2.2 You may use the Service Resources on a Utility basis and blocz will provide Service Resources to enable this on a first come, first served basis only.
3 Charges
3.1 blocz monitors and measures the usage of Virtual Data Centre Services via the Orchestration Layer where the current state is captured and stored every hour. If You have consumed Virtual Data Centre resources beyond what You have committed to then an invoice will be raise with the additional charge.
3.2 All Virtual Machine resources are chargeable if they are deployed, in standby mode or powered off. If a Virtual Machine is no longer required then it must be un-deployed to avoid being invoiced. A history of changes to the Virtual Data Centre resources is available in the Cloud Portal.
3.3 blocz shall invoice You on or around the 1st Day of every month for the previous month or monthly in advance for committed use. An electronic invoice will be submitted detailing all charges.
3.4 You will pay blocz all Charges using the payment method(s) from time to time required or permitted by blocz.
3.5 The Charges are exclusive of VAT.
3.6 All amounts shall be paid free of currency exchange costs, bank charges, withholding or deductions. To the extent that any deduction or withholding is required by applicable law, You shall increase the amount of such payment to ensure that blocz receives the amount it would have received had no deduction or withholding been required.
3.7 Unless otherwise agreed in writing You will pay Us (or such person as We direct) all Charges within fourteen (14) days of the date of the relevant invoice (“Due Date”). If You are late in paying Us the Charges, We reserve the right to charge daily interest on amounts not paid by the Due Date from the date of the invoice until payment in full is received, at a rate equal to 5% per annum above the base rate for lending of Barclays Bank plc, whether before or after judgment and/or charge You a late payment fee. Interest shall continue even if the Agreement ends.
3.8 If acting in good faith, You wish to dispute an invoice, or any part of an invoice, You shall advise Us in writing before the Due Date, providing reasonable details of the dispute to allow Us to investigate. The Parties shall use all reasonable endeavours to resolve the dispute. You agree to pay any undisputed amount by the Due Date. If the dispute is resolved in Our favour, You shall pay any amount withheld within seven (7) Working Days and We shall be entitled to charge You any costs incurred by Us in collecting or attempting to collect, any charges owed by You.
3.9 Notwithstanding any other provision in the Agreement, We may delay or bring forward the sending of invoices to coincide with Our billing cycles from time to time. You acknowledge that the first and last invoice in relation to a particular Service may include Charges due for more or less than one complete billing cycle according to when such Service is connected and/or terminated.
3.10 If You pay the Charges by Direct Debit We may alter Your Direct Debit instruction according to the relevant Charges from time to time applicable to the Service. On proper termination of the Agreement You will be responsible for the cancellation of any Direct Debit instructions or other authorisations for periodic payment to Us. Except on proper termination of the Agreement You must inform Us immediately if You cancel any Direct Debit instructions. Cancellation of any Direct Debit instruction shall entitle Us to suspend and/or terminate the Agreement without notice.
3.11 We shall be entitled to carry out credit checks on You. We accept no liability for the accuracy or otherwise of information provided to Us by credit reference agencies (CRAs). If at any time before or during the term of the Agreement You fail to meet the standard of creditworthiness We deem acceptable, Acting in good faith, We shall be entitled:
3.11.1 to terminate the Agreement, in whole or in part immediately on giving You written notice;
3.11.2 to require You to make such regular instalment payments in advance on account of any future charges as We deem appropriate;
3.11.3 to impose credit limits on You in respect of Charges and to suspend the Service at any time when such limits are reached until payment in full of such outstanding Charges has been made; and
3.11.4 to impose such other measures on Your right to use any of the Services as We shall deem appropriate.
3.12 Subject to the provisions set out in this paragraph 3.12, and save as specifically agreed in relation to any non-blocz Products the Charges will be fixed for the initial term and may be subject to a future price review. Any intended review will be communicated by blocz in writing to You and will be subject to a (30) day consultation period.
3.13 The Charges for Third Party Software and Third Party Support may be increased as provided in the relevant Service Description (and if not so provided may be increased as provided in this paragraph 3.12)
3.14 In the event that at any time blocz costs of providing any Service are increased, blocz may increase the Charges, subject to clause 3.16, on thirty (30) days’ notice to You (the “Increase Notification”). You shall be entitled to terminate this Agreement in respect of the Service in question (but not in respect of any other Service) by thirty days’ notice to blocz, such notice to be served within fourteen (14) days of the date of the Increase Notification.
3.15 Charges for blocz Enterprise Cloud and Private Cloud shall comprise a Fixed Rate Charged based on the committed Usage and any resources beyond Your commitment. Service Resource usage duration units shall be rounded up to the nearest whole unit.
3.16 If the Charges are increased due to any legal or regulatory requirement or any increase in Charges by any third party supplier to blocz (including but not limited to RPI changes), You shall not have any right to object to any such increase and blocz shall only be required to provide the requisite period of notice as is determined by the legal or regulatory body or third party supplier.
4 Service Levels and Credits
4.1 We will use the reasonable skill and care of a reasonably competent electronic communications service provider in providing the same Services. However, You accept that it is technically impracticable to provide the Service entirely free of faults and We do not undertake to do so.
4.2 We will comply with Our obligations as set out in the Service Level Agreement in Annex 1. We will have no liability other than that expressly set out in the Service Level Agreement in relation to any failure to meet the service levels (if any).
4.3 You may be entitled to claim Service Credits in respect of any failure by Us to meet service levels set out in an applicable Service Level Agreement. Service Credits, if any, shall be Your sole and exclusive financial remedy with respect to Our failure to meet service levels.
4.4 For the avoidance of doubt, Service Credits will not be available to You to the extent that Our failure to meet any service levels results from suspension or termination of this Agreement pursuant to Clauses 14 and 15 or from the following:
4.4.1 Scheduled Platform Maintenance;
4.4.2 Force Majeure event (which without limiting the generality of the definition of a Force Majeure Event shall;include where blocz is reliant upon action being taken by a third party which is not a sub-contractor of blocz) described in Clause 17
4.4.3 failure of non-service impacting equipment or systems used for network measurements.;
4.4.4 Your act, fault or omission
4.5 Any calculations used to claim Service Credits under the Service Level Agreement shall not include any unavailability resulting from the following:
4.5.1Incidents relating to the use of the Service by You or Your customers such as excessive traffic load and penetration testing;
4.5.2 Denial of Service attacks; (unless an applicable DDoS Protection Service has been purchased from blocz);
4.5.3 Ongoing data restore from a backup;
4.5.4 Applications or databases not explicitly defined as managed by blocz;
4.5.5 Bad/corrupt content or Your data;
4.5.6Your Services Software;
This Service Level Agreements will not apply where You are in breach of any part, have outstanding payments due to blocz. Service Credits must be claimed within three (3) months from the date that the SLA is breached, otherwise You will lose your right to make any such claim. Service credits cannot be claimed retrospectively after a period of non-payment.
5 Scheduled Platform Maintenance
5.1 Scheduled Platform Maintenance refers to upgrades or modifications to network and server equipment, software and hardware and/or network capacity. Scheduled Platform Maintenance may temporarily degrade the quality of the blocz services or include a short-duration outage. Scheduled Platform Maintenance shall take place between the hours of:
5.1.2 00:00 and 06:00 on any of the seven (7) week days.
5.2 blocz will endeavour to Schedule any Platform Maintenance on the days of Saturday and Sunday and provide You with at least seven (7) days’ notice prior to the Scheduled Platform Maintenance activity. If blocz’s Scheduled Platform Maintenance is cancelled or delayed, blocz will make best endeavours to notify You and shall comply with the provisions of this clause to reschedule any delayed maintenance activity. Such effects relating to the Scheduled Platform Maintenance shall not give rise to service credits under the Service Level Agreement.
6 Emergency Platform Maintenance
6.1 Emergency Platform Maintenance refers to efforts to correct network or VDC platform conditions that are likely to cause a Major Service Outage (MSO) and require immediate action. Emergency Platform Maintenance may temporarily degrade the quality of the blocz services or include a short-duration outage.
6.2 Such effects related to Emergency Platform Maintenance shall entitle You to service credits as set out in this Service Level Agreement if and only if service degradation or loss of service occurs outside of a Scheduled Platform Maintenance window.
6.3 blocz may undertake Emergency Platform Maintenance at any time deemed critical and shall provide notice of Emergency Platform Maintenance to You as soon as it is commercially and practicable to do so under Emergency Platform Maintenance conditions.
7 Fair Use Policy
7.1 blocz provides network bandwidth for the movement of data using the blocz Network between Zones subject to the fair use policy as set forth in this clause 7.
7.2 blocz reserves the right to exercise the fair use policy at its sole discretion.
7.3 The fair use allowed (free of charge) is directly proportionate to the total Charges for the Service across all Zones (in £GBP and excluding charges for software licenses) in the relevant calendar month. The fair use allows for a maximum bandwidth measured in megabits per seconds (Mbps).
7.4 What is considered as fair use varies depending on the source and the destination of data as followr
Data Movement Fair Use Intra-Region data movement For all data movement, both inbound and outbound, between any Zone(s) within the same Region the fair use is unlimited (subject to service constraints) for all Regions. Inter-Region data movement For all data movement both inbound and outbound between any Zone within a specific Region and another Region, all Regions have a fair use up to 0.05 Mbps free bandwidth per 1 £GBP of Charges for the Service in the calendar month.
7.5 Data fair use allocations are not compound; each £GBP of Charges can be effectively allocated to one use only (for example Internet data).
8 Right to Throttle
8.1 blocz reserves the right to throttle or limit Service Resources where use of the Virtual Data Centre Environment by You detrimentally impacts other blocz Customers.
9 Service Alterations
9.1 blocz may notwithstanding any other provision of this Cloud Service Agreement, at its sole discretion, conduct a formal review of blocz Cloud Services that are currently provided to You. The purpose of this review shall be to identify any significant changes relating to the technology and processes used to provide and maintain the blocz Cloud Services to You (which may for example, arise due to the proposed withdrawal of supporting products provided by a Third Party Operator). Following this review blocz may withdraw, replace or amend one or more blocz Cloud Service and adjust accordingly any Charges remaining payable in respect of the affected blocz Cloud Service.
9.2 Pursuant to Clause 9 where a change to, or withdrawal of, a product option arises:
9.2.1 Solely due to blocz business requirements, blocz will give at least three (3) months written notice to You;
or
9.2.2 as a result of changing arrangements with a Third Party or for legal or regulatory reason blocz will give as much notice to You as is reasonably practicable in the circumstances
9.3 Upon expiry of any such notice period set out in Clause 9.2:
9.3.1 blocz will not accept any new Service Orders for the relevant product option; and
9.3.2 at blocz’s discretion:
(i) any Service Orders which have not achieved a Ready for Service Date will either be:
a. ceased by blocz; or
b. allowed to progress through to completion; or
(ii) You will be offered a new product option for acceptance, save that if, in the reasonable opinion of the Customer, it deems the service levels of the new product to be materially less than the product to be withdrawn, the Customer may terminate the Service Order without incurring any form of Early termination Charges.
9.4 blocz may relocate Equipment within the blocz network for reasons including security, improvements to infrastructure, capacity management, cost reduction or mitigation of a known fault, provided any such relocation will not have an adverse effect on the blocz Cloud Service. If You reasonably conclude (in consultation with blocz) that the relocation will have an adverse effect on the relevant blocz Cloud Service, You may terminate the Service without incurring Early Termination Charges.
10 Third Party Software
10.1 The blocz Virtual Data Centre Service is fully licensed under the Microsoft Service Provider License Agreement (SPLA) and other partner SPLA programs giving You access to a large range of Microsoft & other vendor products. Upon termination of Your service provided by blocz, the licenses granted to You will be returned to blocz. Where blocz provides licensing under a SPLA agreement, the license granted to You is subject to the terms and conditions of the SPLA Agreement or end user license agreement (EULA), which will be provided to the You by blocz upon request.
10.2 Where You are responsible for obtaining software licenses, for example in a BYOL template image, You will ensure that the products are appropriately licensed and will indemnify blocz against any claim, loss or damage incurred by blocz as a result of You supplying unlicensed software or breaching the licensing terms for such software.
10.3. The licence granted to You in respect of any Third Party Software is as set out in the relevant End User Licence Agreement (EULA). Your right to use the Third Party Software is as set out in the EULA and use by You of the Third Party Software is subject to compliance by Your with the terms of the EULA. In the event of any breach by You of the relevant EULA, the Third Party Supplier may terminate the licence granted to You and You shall indemnify blocz in full in respect of any and all Claims arising in connection with such breach. Such termination shall be without prejudice to the Your obligation to make payment of any charges due in respect of the Third Party Software, any associated Third Party Support and all other Services contracted hereunder for the remainder of the term of that licence.
10.4 blocz’s sole Liability in respect of any Third Party Software shall be to make the same available to You in the form provided by the relevant Third Party Supplier on and subject to the terms of the applicable EULA. blocz neither makes nor gives any representation or warranty in respect of the functionality or performance of the Third Party Software and the You shall hold blocz harmless in respect of any Claims to the contrary. Save as otherwise expressly provided in the relevant Service Description, in the event of any fault or defect in the Third Party Software, You shall be entitled to the support set out in the EULA and blocz shall have no Liability in respect of such fault or defect, it being acknowledged that support and maintenance of Third Party Software may be subject to the payment of additional charges by You.
10.5 Any indemnity offered by the Third Party Supplier to You in respect of a breach by Third Party Software of Intellectual Property Rights is set out in the EULA. blocz shall have no Liability to You and offers no indemnity in respect of Third Party Software.
11 Data Protections
11.1 You acknowledges that Services deployed in high-availability configurations and/or deployed in multiple Data Centre facilities, while designed to reduce the impact of downtime and data loss, do not provide complete guarantees against data loss or breach of data protection
11.2 Your Data will be used or otherwise processed only to provide You the Online Services including purposes compatible with providing those services. blocz will not use or otherwise process Your Data or derive information from it for any advertising or similar commercial purposes. As between the parties, You retain all right, title and interest in and to Your Data. blocz acquires no rights in Your Data, other than the rights You grants to blocz to provide the Online Services to You. This paragraph does not affect blocz’s rights in software or services blocz licenses to You.
11.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
11.4 The parties acknowledge that for the purposes of the Data Protection Legislation, You are the data controller and blocz is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation), except when:
11.4.1You act as a processor of Personal Data, in which case blocz is a sub-processor or
11.4.2 stated otherwise in these terms.
11.5 Without prejudice to the generality of clause 11, You will ensure that:
11.5.1 the Processing Instructions (as hereinafter defined) are in accordance with the Data Protection Legislation;
11.5.2 you have obtained all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to blocz for the duration and purposes of this Agreement; and
11.5.3 you are satisfied that blocz has sufficient expertise, reliability and resources to implement technical and organisational measures required under clause 11.6.2 to meet the Data Protection Legislation
11.6 Without prejudice to the generality of clause 11 blocz shall, in relation to any Personal Data processed in connection with the performance by blocz of its obligations under this agreement:
11.6.1 process that Personal Data only on the written instructions from You (Processing Instructions) (unless blocz is required by the laws of any member of the European Union or by the laws of the European Union applicable to blocz to process Personal Data (Applicable Laws). Where blocz is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, blocz shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit blocz from so notifying You;
11.6.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by You, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
11.6.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
11.6.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent from You has been obtained and the following conditions are fulfilled:
a) i. You or blocz has provided appropriate safeguards in relation to the transfer; ii. the Data Subject has enforceable rights and effective legal remedies; iii. blocz complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and iv. blocz complies with reasonable instructions notified to it in advance by You with respect to the processing of the Personal Data;
11.6.5 assist You, at Your cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
11.6.6 notify You without undue delay but within 48 hours on becoming aware of a Personal Data breach;
11.6.7 retain the Personal Data in accordance with its reasonable document management policies in place as amended from time to time, unless at the written direction from You, delete or return Personal Data and copies thereof to You on termination of the agreement or unless required by Applicable Law to store the Personal Data; and
11.6.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
11.7 Where You consent to blocz appointing a third-party processor of Personal Data under this agreement, blocz confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the You and blocz, blocz shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause. Blocz may substitute third party processors as it sees fit, providing that this clause 11 is complied with.
11.8 Either party may, at any time on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
11.9 Excluding remote storage or where You have elected to take Cloud Compute or Cloud Storage within another data centre, the location, transmission and sharing of data is always bound to that country.
11.10 Except as described elsewhere in the Terms, the Data and Personal Data that blocz processes on Your behalf may be transferred to, and stored and processed in, the United Kingdom or any other country in which blocz or its Subprocessors operate. You appoint blocz to perform any such transfer of Your Data and Personal Data to any such country and to store and process Your Data and Personal Data to provide the Online Services.
11.11 blocz will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Personal Data to a third country or an international organisation will be subject to appropriate safeguards as described in Article 46 of the GDPR and such transfers and safeguards will be documented according to Article 30(2) of the GDPR.
11.12 At all times during the term of Your subscription, You will have the ability to access, extract and delete Your Data stored in each Online Service.
11.13 Except for free trials, blocz will retain Your Data that remains stored in Online Services in a limited function account for 90 days after expiration or termination of Your subscription so that You may extract the data. After the 90-day retention period ends, blocz will disable Your account and delete the Your Data and Personal Data within an additional 90 days, unless blocz is permitted or required by applicable law to retain such data or authorised in this agreement.
11.14 The Online Service may not support retention or extraction of software provided by You. blocz has no liability for the deletion of Your Data or Personal Data as described in this section.
12 Your Responsibility
12.1 Your Accounts. Except to the extent caused by our breach of this Agreement,
12.1.1 you are responsible for all activities that occur under your account, regardless of whether the activities are authorised by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and
12.1.2we and our affiliates are not responsible for unauthorised access to your account.
12.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Service Offerings will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.
12.3 Your Security and Backup. You are responsible for properly configuring and using the Service Offerings and otherwise taking appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorised access and routinely archiving Your Content.
12.4 Log-In Credentials and Account Keys. blocz log-in credentials and private keys generated by the Services are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
12.5 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for End Users’ use of Your Content and the Service Offerings. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Service Offerings by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.
13 Intellectual Property Rights
13.1 If in the course of or as a result of any Service We provide to You, We or any of Our employees or agents create any documentation, drawings or information, all legal and beneficial rights therein shall be owned by Us. Where We provide such documentation or material to You to enable You to use the Service, We grant You a non-exclusive no- transferable license to use the documentation or material for such purpose only.
13.2 Intellectual property rights in all software (in whatever form) We provide to You for the purpose of using the Service or Equipment shall remain Our property or that of Our licensor. We grant You a non-exclusive non- transferable license to use the software for the purpose of using the Service or Equipment and for no other purpose. You agree to comply with the licensing terms imposed or required by Our licensor (if applicable) in respect of Your use of the software.
13.3 You Shall:
13.3.1 treat the documentation or material under Clause 11.1 and software under Clause 13.2 as Confidential Information (as defined in Clause 25 (Confidentiality)) and comply with the provisions of Clause 25 (Confidentiality) in relation to it;
13.3.2 not reproduce the software except for archival or back-up purposes and in those circumstances ensure that each copy contains all of the original software’s proprietary notices;
13.3.3 not adapt, modify, translate, reverse engineer, decompile, disassemble (except to the extent that applicable laws specifically prohibit such restriction) the software or create derivative works based on any of the software or any documentation accompanying the software; and
13.3.4 on termination of this Agreement for any reason, immediately return all copies of the software to Us and expunge any copies of the software from any computer or other data storage device in Your control.
13.4 Subject to Clause 13.6, We will indemnify and hold You harmless against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the provision of the Service to You infringes the intellectual property rights of that third party (an’ Intellectual Property Infringement’) provided that You:
13.4.1 give Us notice of any Intellectual Property Infringement forthwith upon becoming aware of the same;
13.4.2 give Us the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and do not at any time admit liability or otherwise attempt to settle or compromise such liability or otherwise attempt to settle or compromise such claim or action except upon Our express written instructions; and
13.4.3 act in accordance with Our reasonable instructions and give Us such assistance as We may reasonably require in respect of the conduct of such defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents.
13.5 We will reimburse You Your reasonable costs incurred in complying with the provisions of Clause 14.4.
13.6 We shall have no liability to You in respect of an Intellectual Property Infringement if the same results from Your negligence or wilful misconduct and/or any breach of Your obligations under this Agreement.
13.7 In the event of an Intellectual Property Infringement claim against You, We will be entitled at Our own expense and option to:
13.7.1 procure the right for You to continue using the Service; or
13.7.2 make such alterations, modifications or adjustments to the Service that it becomes non-infringing without incurring a material diminution in performance or function; or
13.7.3 replace the Service with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
13.8 If We in Our reasonable judgment are not able to exercise any of the options set out in Clause 13.7 then We will be entitled to terminate this Agreement by giving You thirty (30) days’ written notice.
13.9 You shall indemnify Us against any damages (including costs) awarded against Us or to be paid by Us in respect of any claims or proceedings arising in any jurisdiction from an Intellectual Property Infringement (or alleged Intellectual Property Infringement) arising from:
13.9.1 work carried out by Us, Our employees or subcontractors in accordance with directions or specifications You give Us; or
13.9.2 the connection and/or use of any Customer Apparatus in conjunction with the Service.
13.10 We shall notify You within seven (7) days of becoming aware of an Intellectual Property Infringement for which You are liable under Clause 13.9 and We shall:
13.10.1 make no admission relating to the Intellectual Property Infringement;
13.10.2 allow You full discretion to conduct or settle all negotiations and proceedings, subject to Us receiving reasonable security for costs and damages; and
13.10.3 give You all reasonable assistance in respect thereof.
13.11 You shall reimburse Us Our reasonable costs incurred in complying with the provisions of Clause 13.10.
13.12 The Service may comprise software, services, technical information, training materials or other technical data which are subject to the United States of America Export Control Regulations or the laws or regulations of another country. You may not download or otherwise export or re-export, either directly or indirectly, the software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
14 Limitation of Liability
14.1 Each Party accepts unlimited liability for death or personal injury resulting from its own negligence or that of its employees, agents or contractors while acting in the course of their employment by such Party. However, nothing in this Clause gives a Party any right or remedy which it would not otherwise have. Nothing in the Agreement shall exclude or restrict a Party’s liability for matters which cannot by Law be excluded or restricted.
14.2 Except as expressly stated in the Agreement all warranties, conditions, undertakings or terms, express or implied in respect of the Service, Equipment and Purchased Equipment (including any software used in any of the foregoing) are excluded to the fullest extent permitted by Law.
14.3 Subject to Clauses 14.6 and 14.7 below We accept liability for direct physical damage to Your property and the Site only where such damage arises solely and directly from the negligence of Our employees, agents or contractors while acting in the course of their employment.
14.4 Our liability to pay Service Credits shall be the maximum extent of Our financial liability and Your sole financial remedy for any Service Failures. The amount of Service Credits payable under this Agreement (including any other Services taken) will not exceed fifty per cent (50%) of the total monthly recurring Charges payable by You in respect of the Services.
14.5 Subject to Clause 14.1, during any Year of this Agreement each Party’s total liability to the other for all claims (other than for payment of Charges but including any liability arising under any indemnity given under this Agreement) arising in respect of such Year (including without limitation liability for negligence) under the Agreement shall be limited to an amount not exceeding the greater of:
14.5.1 the total Charges paid by You to blocz during such Year; and
14.5.2 fifty thousand pounds (£50,000) (Any Service Credits paid or credited by blocz to You shall be taken into account for the purposes of this Clause 14.5.2);
14.6 Notwithstanding the above, but subject always to Clause 14.1, neither Party shall have any liability in contract, tort or otherwise (including liability for negligence) arising out of or in connection with its performance, contemplated performance or non-performance of the Agreement, for loss or damage (whether direct or indirect) of:
14.6.1 business;
14.6.2 profits;
14.6.3 revenue;
14.6.4 goodwill;
14.6.5 contracts;
14.6.6 operation time;
14.6.7 production;
14.6.8 data,
14.6.9 anticipated savings;
14.6.10 wasted expenditure; or
14.6.11 any special, indirect or consequential loss, cost, claims or expenses howsoever arising caused by reason of any negligence, or other tortious act, or any misrepresentation (unless fraudulent) even if such loss, costs, claims or expenses was reasonably foreseeable.
14.7 If a number of claims give rise to substantially the same loss they shall be regarded as giving rise to only one claim under the Agreement.
14.8 Unless otherwise stated in the relevant Special Terms, Clauses 14.1 to 14.7 set out each Party’s entire liability (including any liability for the acts and omissions of its employees, agents or contractors) to the other Party in tort, contract or otherwise arising out of or in connection with the performance, contemplated performance or non-performance of the Agreement.
14.9 You acknowledge that the exclusions and limitations of Our liability in the Agreement are reasonable.
14.10 The provisions of this Clause 14 shall survive termination of the Agreement for any reason whatsoever.
15 Suspending the Service
15.1 Without prejudice to any other of Our rights under this Agreement We may suspend the Service or any part thereof:
15.1.1in an emergency to provide or safeguard a service to a hospital or other emergency organisation or any other essential services or to carry out emergency maintenance;
15.1.2 temporarily to vary the technical specification of the Service or for repair, maintenance or improvement or to protect life, limb or property;
15.1.3 or take any other action necessary in Our reasonable opinion to comply with
instructions issued by the Government, a regulatory authority, an emergency service or other competent authority;
15.1.4 if You fail to make any payment to Us when it falls on the Due Date and You have not raised a dispute in accordance with clause 3.8;
15 1.5 if We suspect on reasonable grounds that You may have committed or may be committing any fraud against Us;
15.1.6 if we know or suspect on reasonable grounds that the Service is being used inappropriately or illegally;
15.1.7 a Service has been affected by a Force Majeure Event;
15.1.8 it is necessary for operational reasons such as upgrades to the Service or regular maintenance;
15.1.9 in any circumstance in which We are entitled to terminate the Agreement.
15.2 Except in an emergency or pursuant to Clause 15.1.5 when no such notice is required, w[]{#anchor-35}e shall give You as much notice as is reasonably practicable if the Service is to be suspended pursuant to Clause 15.1 but You shall have no claim against Us for any suspension of the Service pursuant to Clause 15.1. Any exercise by Us of our right to suspend the Service or any part of it shall not exclude or prejudice Our right subsequently to terminate the Agreement.
15.3 If the Service or any part of it is suspended because of Your default You will remain liable for and must continue to pay Charges during such suspension and shall reimburse Our costs and expenses reasonably incurred by the implementation of such suspension together with all outstanding amounts due under the Agreement. Where We agree (at Our discretion) to recommence the Service You must pay Our reasonable charges in relation to such recommencement and at Our discretion You shall pay a reasonable deposit against future payments.
16 Ending the Agreements
When We Can End The Agreement
16.1 Without prejudice to any other termination rights set out in this Agreement (including without limitation in Clauses 2.3, 3.1, 8.9, 8.10.1, 10.4, 10.6, 11.8, 15.2 and 17.1) We may terminate the Agreement immediately on written notice if:
16.1.1 You commit a non-remediable breach of a material obligation of the Agreement; or
16.1.2 You commit a remediable breach of a material obligation of the Agreement (including without limitation failure to pay any Charges by the Due Date) and fail to remedy such breach within thirty (30) days of the date we notify You of such breach; or
16.1.3
(a) a liquidator (other than for the purposes of a bona fide > amalgamation, re- organisation or reconstruction), administrative > receiver, administrator, receiver, bankruptcy trustee or similar > officer is appointed or an application is made to court to appoint > a liquidator or a notice of intention to appoint a liquidator is > given in respect of the whole or part of Your assets and/or > undertaking; or
(a) You enter into an arrangement or composition with Your creditors; or
(a) You become unable to pay Your debts as they fall due or admit > inability to pay Your debts within the meaning of section 123 > Insolvency Act 1986; or
16.1.4 any licence, permission or other approval You or We require from time to time to connect to the Communications Network or provide the Service expires, is revoked, restricted or otherwise ceases to be valid and is not immediately replaced by a further licence, permission or approval conferring on You or Us the appropriate rights; or
16.1.5 You make a material misstatement in the details You supplied to Us to enable Us to provide You the Service; or
16.1.6 We suspect on reasonable grounds that You may have committed or may be
committing (i) a breach of any Law; and/or (ii) any fraud against Us; or
16.1.7 any contract (or part thereof) between Us and a third party provider of
telecommunications or data centre services is terminated where such termination effects the provision of the Service; or
16.1.8 in the event that you have a change of control. In this sub-clause, the term “control” means the ability to direct Your affairs whether by virtue of contract ownership of shares or otherwise.
When You Can End The Agreement
16.2 You may terminate the Agreement immediately on written notice if:
16.2.1 We commit a non-remediable breach of a material obligation of the Agreement; or
16.2.2 We commit a remediable breach of a material obligation of the Agreement and fail to remedy such breach within thirty (30) days of the date You notify Us of such breach; or
16.2.3 a liquidator (other than for the purposes of a bona fide amalgamation, re-organisation or reconstruction), administrative receiver, administrator or receiver is appointed in respect of the whole or part of Our assets; and/or
16.2.4 undertaking or We enter into an arrangement or composition with Our creditors, or become unable to pay Our debts within the meaning of Section 123 Insolvency Act 1986. Where You terminate this Agreement pursuant to Clause 16.2 the written termination notice must be sent to Us at the address set out in Clause 20.1.
16.3 On termination of the Agreement any licence granted to You by Us shall immediately cease, You must immediately stop using the Service and all amounts You owe Us for use of the Service shall be due and payable in full.
16.4 On termination of the Agreement by reason of Your default You shall be liable to pay Us Early Termination Charges if the Agreement is cancelled prior to the expiry of the Minimum Period and/or Cancellation Charges. We will invoice you on or following such termination and such invoice shall be payable in accordance with Clause 3.7. We shall not be obliged to refund any Charges paid in advance.
16.5 On termination of the Agreement You must allow Us or Our representatives access to Your Site to remove the Equipment or reprogram or otherwise undertake any works for the cancellation or suspension of the Services. If You delay access to Your Site and/or removal of the Equipment following termination of the Agreement We shall, until such removal is completed, be entitled to continue to charge You and You shall pay such Charges together with any additional costs and expenses We incur due to such delay.
16.6 The right to terminate the Agreement shall not prejudice any other right or remedy of the Parties in respect of any rights, obligations, or liabilities accrued prior to termination.
17 Assignment and Sub-Contracting
17.1 You shall not assign, novate, delegate or otherwise deal with all or any of Your rights or obligations under this Agreement without Our prior written consent, such consent not to be unreasonably withheld.
17.2 We may assign or novate all or any of Our rights or obligations under the Agreement to any member of Our Group. At Our request You shall enter into a novation agreement with Us and any such member of Our Group to whom Our rights and obligations are to be novated.
17.3 We may sub-contract Our obligations under the Agreement. Any such sub-contracting shall not release Us from Our obligations under the Agreement.
18 Force Majeure
18.1 Neither Party will be liable to the other for any delay in performing or failure to perform any of its obligations under this Agreement or any applicable Service Schedule (other than the obligation to pay the Charges) which occurs as a result of a Force Majeure Event which continues for more than thirty (30) days. In such circumstances, the Party affected by the Force Majeure Event may terminate the relevant Service and/or the Agreement.
19 Changing The Agreement or Service
19.1 Subject to Clauses 19.2, 19.4 and 19.5 any variation to the Agreement shall be agreed by the Parties in writing.
19.2 Notwithstanding Clause 19.1 We reserve the right to amend or vary the Agreement (other than in relation to Charges which are governed by Clauses 3.3 and 3.4) by giving You thirty (30) days’ written notice. Within fourteen (14) days of such notification You may give Us not less than fourteen (14) days’ written notice to terminate the Agreement unless the amendment or variation is imposed by Law in which case You shall have no right to terminate. If You do not terminate in such period You are deemed to have accepted the amendment or variation.
19.3 If You request and We agree to a change of Service (including without limitation adding, deleting or exchanging a Service) or a change of Site, You must complete such formalities as We shall require to give effect to such change and You must pay Us our then current charges for such change. We may require payment prior to effecting such change. To reflect such change We may without notice revise the Charges and the provisions of Clause 8.4 shall not apply to such revision.
19.4 Subject as stated in this Clause, We may vary the Service from time to time. In this Clause 19.4, ‘New Service’ shall mean the service after variation and ‘Original Service’ shall mean the Service prior to variation. Such variation may be the result, without limitation, of a change of name, method of delivery, change in technology, upgrade or substitution of alternative service and:
19.4.1 the New Service shall have at least equivalent functionality and service levels to the Original Service;
19.4.2 You will not be charged for such variation;
19.4.3 Charges payable for the Original Service shall apply to the New Service; and
19.4.4 the Minimum Period for the Original Service shall apply to the New Service.
19.4.5 After a variation in accordance with this Clause 19.4 the New Service shall be deemed the Service.
19.5 We may at any time improve, modify or otherwise alter the Service in the event that:
19.5.1 in Our reasonable opinion the Service should be altered for reasons of quality of service or otherwise for the benefit of Our customers as a whole; or
19.5.2 technical reasons or Law so require.
19.6 Nothing written on the Order form (“CRF”) (in particular but without limitation in the section headed ‘Notes and comments’) shall vary any provision of these Standard Terms and Conditions or any Special Terms.
19.7 Any variation to the Agreement pursuant to Clauses 19.4, 19.5 or 22.1 of these Standard Terms and Conditions shall not be subject to the terms of Clause 19.2.
19.8 You may request a change in the Services (including without limitation relocation of the Equipment and/or Purchased Equipment). We will endeavour to comply with any such request made in writing. You must pay Our Charges for any such change which payment We may require prior to commencing any works. If We instruct You to carry out any works in connection with such change You must carry out such works strictly in accordance with Our instructions. Any change in the Equipment and/or Service may result in an increase in the Charges for which You will not be entitled to terminate the Agreement pursuant to Clause 8.4.
20 Cancelling Part Of The Agreement
20.1 You are entitled at any time to cancel part or some of the Service by giving Us ninety (90) days written notice.
20.2 Where You cancel part or some of the Service within the Minimum Period, You must pay Us the Cancellation Charges relating to the part of the Service cancelled. We will invoice you on or following such cancellation and such invoice shall be payable in accordance with Clause 8.6.
20.3 Where You wish to cancel part or some of the Service(s) following the expiry of the Minimum Period, You must give Us ninety (90) days’ written notice, except where otherwise specified in the Special Terms, of Your intention to cancel and must pay all Charges payable under this Agreement in respect of the cancelled Service(s) during this ninety (90) day notice period.
21 Notices
Unless otherwise stated in the Agreement:
21.1 Notices You send to Us shall be delivered by hand or sent by post to blocz IO Limited, 5100 Cambridge Research Park, Beach Drive, Cambridge CB25 9TN, United Kingdom or such other address as notified to You in writing.
21.2 Notices We send to You may be sent:
21.2.1 by hand or by post to Your billing address specified on the Order form (“CRF”) or to Your registered office;
or
21.2.2 by electronic mail to Your electronic mail address specified on the Order form (“CRF”) or as otherwise notified to Us in writing; or
21.2.3 by SMS to your mobile phone number specified on the Order form (“CRF”) or as otherwise notified to Us in writing.
21.3 Notice given by hand shall be deemed given the same day. Notice given by post shall be deemed to have been given two (2) days after the date of posting. Any communication by electronic mail shall be deemed to have been made on the Working Day on which the notice is first stored in the other Party’s electronic mailbox. Any communication by SMS shall be deemed to have been made on the Working Day on which the notice is first stored in the other Party’s message inbox.
21.4 When sending us a written notice to terminate the Agreement or cancel any Service You must ensure that You keep a copy of the notice and proof of delivery.
21.5 References to notices in Clause 21.1 to 21.3 are to written notices. For the avoidance of doubt if in this Agreement, notice is not stated to be required in writing, this Clause 21 shall not apply.
22 Test Or Trail Services and Promotional Offers
22.1 We may from time to time supply test or trial services and/or promotional offers (‘Offers’) to some or all of Our customers. Such Offers shall be subject to any terms and conditions (‘Promotional Terms and Conditions’) We notify to Our customers. Unless otherwise stated in the Promotional Terms and Conditions We shall not incur any liability under the Agreement in relation to such Offers. Promotional Terms and Conditions may require a variation to the Agreement in which case You will be deemed to have accepted in writing such variation on acceptance of the Offer. Unless otherwise stated in the Promotional Terms and Conditions an Offer may be amended or withdrawn by Us (in relation to some or all of Our customers) at any time and without notice. For the avoidance of doubt We are not obliged to include You in any Offer we make to Our other customers.
23 Entire Agreements
23.1 The Agreement, together with all the documents referred to in it represents the entire
understanding between the Parties in relation to the provision of the Service and supersedes and extinguishes all other prior agreements, undertakings, arrangements, statements or representations (except fraudulent misrepresentations) made by either Party, whether oral or written in respect thereto.
23.2 Each of the Parties acknowledges that in entering into this Agreement it has placed no reliance upon, and has no rights or remedies in respect of, any statement, representation or warranty (whether made innocently or negligently), save for those expressly set out in this Agreement or any document referred to in this Agreement.
24 Miscellaneous
24.1 No waiver by Us of any default by You under the Agreement shall operate or be construed as a waiver by Us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence We grant You shall imply a waiver of Our rights or shall in any way release, discharge or otherwise affect Your liability under the Agreement.
24.2 If any provision of the Agreement shall be prohibited or adjudged by a court of competent jurisdiction to be unlawful, void or unenforceable, such provision shall to the extent required be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement and shall not in any way affect any other circumstances or the validity or enforcement of the Agreement.
24.3 The provisions of the Agreement that are expressly or impliedly of a continuing nature shall survive termination of the Agreement for any reason whatsoever.
24.4 In the event of any inconsistencies between the contents of this Cloud Services Agreement, the Special Terms, the Order form (“CRF”), the Price Guide and the Service Literature, the order of precedence shall (unless expressly stated to the contrary) be (i) the Special Terms; (ii) this Cloud Services Agreement; (iii) the Order form (“CRF”); (iv) the Price Guide and (v) the Service Literature.
24.5 Subject to Clause 17.2, the Parties do not intend that the Agreement be enforceable by any person not a party to the Agreement under the Contracts (Rights of Third Parties) Act 1999.
24.6 This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original but all the counterparts together shall constitute one and the same instrument.
25 Confidentiality
25.1 Each Party (in this Clause ‘Receiving Party’) undertakes to the other Party (‘Disclosing Party’):
25.1.1to keep confidential the Disclosing Party’s information of a confidential nature obtained from the Disclosing Party in discussions leading to the Agreement and subsequently received pursuant to this Agreement (in this Clause ‘Confidential Information’); and
25.1.2 not to disclose the Confidential Information in whole or in part to any other person without the Disclosing Party’s written consent, except to the Receiving Party’s employees, agents and sub-contractors involved in the supply or use of the Service (as the case may be) on a confidential and need-to-know basis; and
25.1.3 to use the Confidential Information solely in connection with the supply or use of the Service (as the case may be) and not for its own or the benefit of any third party.
25.2 You must not disclose the terms of this Agreement to any third party without Our prior written consent. We may tell others that You are a Customer of Ours but may not disclose the terms of this Agreement to any third party without Your prior written consent.
25.3 The confidentiality obligations in Clauses 25.1 and 25.2 will not apply if the Receiving Party is required by court, government or other regulatory body to disclose the Confidential Information, but only to the extent required by Law, provided that, unless the Receiving Party is precluded by Law from doing so, it gives the Disclosing Party written notice as soon as practicable of such requirement.
25.4 The confidentiality obligations in Clauses 25.1 and 25.2will not extend to the Confidential Information which the Receiving Party can prove to the Disclosing Party’s reasonable satisfaction:
25.4.1 has come into the public domain otherwise than through the default or negligence of the Receiving Party;
or
25.4.2 was already in the Receiving Party’s possession prior to disclosure by the Disclosing Party; or
25.4.3 has been received from a third party who did not acquire it in confidence.
25.4 The Parties acknowledge that a breach of this Clause 25 may cause irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, either Party may seek and obtain injunctive relief against such a breach or threatened breach.
25.5 Clause 25 shall survive termination of the Agreement or any part of it.
26 Dispute Resolution
26.1 In the event of any dispute or difference between the parties arising out of this Agreement, the parties shall use their reasonable endeavours to resolve the dispute or difference by means of this dispute resolution procedure. On a dispute or difference arising, the parties shall procure that those persons listed below shall each use their reasonable endeavours to seek a resolution to such dispute.
| Type | Description | email address |
|---|---|---|
| Dispute | blocz contact | support@blocz.io |
| Escalation 1 | Helpdesk Manager | On application |
| Escalation 2 | Office of the CTO | On application |
Should such persons be unable to resolve any dispute with twenty (20) days of a dispute being referred to them, each party shall immediately escalate the matter to those persons listed in Schedule 1, Part C as “Dispute Escalation 2” and shall procure that such persons use their reasonable endeavours to resolve the dispute within twenty (20) days of it being referred to them. If such persons cannot resolve the dispute in accordance with the provisions of this clause 26.1 within twenty (20) days of the dispute being referred to them, then any continuing dispute or difference between the parties may be referred by either party for resolution by mediation in accordance with the remaining provisions of this clause 26 using the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.
26.2 To initiate the mediation, a party shall give notice in writing (ADR Request) to the other party requesting a mediation and shall send a copy of the notice to CEDR Solve. The parties shall agree on a mediator or, in default of such agreement within twenty days of receipt of the ADR Request, the mediator shall be appointed by CEDR. The mediation shall be heard in London and shall commence within thirty (30) days of the ADR Request, or such other period of time as the parties reasonably agree. The parties shall submit to the supervision of the mediation by the agreed mediator or CEDR for the exchange of relevant information and for setting the date for negotiations to begin.
26.3 Unless otherwise agreed, recourse to mediation under this dispute resolution procedure shall be binding on the parties as to submission to the mediation but not as to its outcome. Accordingly, all negotiations connected with the dispute shall be conducted in strict confidence and without prejudice to the rights of the parties in any future legal proceedings.
26.4 If, with the assistance of the mediator, the parties reach a settlement, such settlement shall be reduced to writing and, once signed by a duly authorised representative of each of the parties, shall remain binding on the parties. The parties shall bear their own costs of this Dispute Resolution Procedure.
27 Governing Law
27.1 The Agreement shall be governed by and construed in accordance with the laws of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the English Courts.
Annex 1 — Service Level Agreement
1 General
1.1 blocz shall provide the Customer with support for the delivery of the Service Order though the provision of a Cloud portal, helpdesk, Interfaces and escalation management in respect to Service Orders, incidents and service maintenance.
1.2 The Customer shall make incident reports to blocz via the relevant Interface. The Customer shall provide a complete description of the incident and any reasonable information requested by blocz. In the event that the requested information is not provided by the Customer, blocz reserves the right to return the incident to the Customer requesting the missing information but shall not affect the logging of the time of the incident.
In the event that the electronic interfaces are not available, then incidents may be raised by telephone using the numbers listed.
All Incidents recorded will be reconciled against the corresponding ticket raised by the Customer Contact Centre. The exact Incident duration will be calculated as the elapsed time between the Incident being reported to the Customer Contact Centre and the time when Service is restored.
2 Hours of Service
2.1 Incident Reporting via the blocz helpdesk is available to the Customer 24 hours a day 7 days a week.
2.2 Provisioning and Working Day Support is available to the Customer during Office Hours.
| Priority | Hours of Operation |
|---|---|
| Priority 1 (Critical) | 24×7 |
| Priority 2 (Major) | 24×7 |
| Priority 3 (Minor) | Working Day |
| Priority 4 (Requests) | Working Day |
3 Virtual Data Centre (“VDC”) Service Management
3.1 The compute platform component Service is considered to be Unavailable where bi-directional network traffic over supported protocols such as UDP and TCP cannot be established between compute platform Virtual Machines in two Zones and network IP addresses outside of those two Zones.
3.2 The Cloud Portal is an online service used to provision and manage Cloud Compute, Cloud Networking and Cloud Storage across the Virtual Data Centres. blocz’s Cloud Portal will be made available to Customer 99.9% of the time in any given calendar month. In the event that the Cloud Portal is not accessible, the Customer will not be able to make changes to their Virtual Data Centre and will not be able to allocate Cloud Networking or Cloud Storage resources or start and stop Virtual Machines. Virtual Machines availability is not affected by the independent unviability of the Cloud Portal.
If blocz fails to meet the Cloud Portal Availability SLA then Customer shall be entitled to credits pro-rated from the Customers recurring Monthly Service fee as set out in the service Agreement but not exceeding 10% as follows:
| Cloud Portal Availability | Service Credit |
|---|---|
| ≥ 99.9% | 0% |
| ≥ 99.5% < 99.9% | 2% |
| ≥ 99% < 99.5% | 5% |
| < 99% | 10% |
Service credits are calculated as the percentage of the monthly committed charges for all Virtual Data Centre services during the affected month.
3.3 Virtual Data Centres will be made available to Customer 99.95% of the time in any given calendar month. If blocz fails to meet the Virtual Data Centre Availability SLA then Customer shall be entitled to credits pro-rated from the Customers recurring Monthly Service fee as set out in the service Agreement but not exceeding 50% as follows:
| Virtual Data Centre Availability | Service Credit |
|---|---|
| ≥ 99.95% | 0% |
| ≥ 99.9% < 99.95% | 2% |
| ≥ 99.5% < 99.9% | 5% |
| < 99.5% | 10% |
| Decrements of 0.5% | +5% |
Service credits are calculated as the percentage of the monthly committed charges for all Virtual Data Centre services during the affected month.
3.4 The storage availability targets are as follows. If blocz fails to meet the Storage Target SLA then Customer shall be entitled to credits pro-rated from the Customers recurring Monthly Service fee as set out in the service Agreement but not exceeding 50% as follows:
| blocz Storage | Service Credit |
|---|---|
| ≥ 99.95% | 0% |
| ≥ 99.9% < 99.95% | 2% |
| ≥ 99.5% < 99.9% | 5% |
| < 99.5% | 10% |
| Decrements of 0.5% | +5% |
3.5 The blocz storage component Service is considered to be Unavailable where Data cannot be read from or written to the blocz storage platform by Virtual Machines in two Zones.
4 Traffic and Bandwidth Allocation
4.1 Your VDC may be allocated a monthly data traffic quota when using our Edge gateway service. Both inbound and outbound internet traffic is counted toward your quota and monthly billing.
4.2 blocz provides no guarantee of latency or available bandwidth from any resources to the Internet or other end points where a non-dedicated link is used.
4.3 The firewall/s for the VDC are supplied as a standard component of the VDC. You are responsible for the configuration and maintenance of the firewall/s.
4.4 You are responsible for ensuring the VDC is hardened against security vulnerabilities. We may elect to suspend your VDC if we identify that your VDC may be compromised and no action has been taken by you within a reasonable timeframe following notification to rectify the security breach.
4.5 We will not be liable for any content, security breach, distribution of protected information or other malicious activity on your VDC. blocz may cease providing your Service and retains the right to refuse refund on your Service if you are found to have breached our Acceptable Usage Policy.
4.6 Your service will be allocated one or more IPv4 and/or IPv6 addresses. These IP addresses remain the property of blocz at all times and cannot be transferred out of the network. Where you provide your own IP addresses to use with the VDC, these will remain your property
5 Private Cloud Dedicated Equipment
5.1 Service Credits for any services provided on Private Cloud Dedicated Equipment will not exceed 50% of the fixed monthly charge or 25% of the fixed annual charge in aggregate for the Private Cloud Dedicated Equipment (whichever is the lowest).
5.2 The Private Cloud Dedicated Equipment Availability Target is as follows:
| Service | Availability Target |
|---|---|
| Private Cloud Dedicated Equipment | 99.5% |
5.2 Private Cloud Dedicated Equipment is considered to be Unavailable where bi-directional network traffic over supported protocols such as UDP and TCP cannot be established between compute platform Virtual Machines in two Zones and network IP addresses outside of those two Zones.
5.3 In the event that blocz does not meet the Private Cloud Dedicated Equipment Availability Target, Customer will be entitled to a Service Credit equal to 10% of the Private Cloud Dedicated Equipment charge for associated failed Availability Target.
6 Managed Service
6.1 Service Credits for Managed Services provided on the blocz VDC platform are limited to 50% of the monthly charge.
6.2 Managed Operating Systems will have an Availability Target as follows:
| Service | Availability Target |
|---|---|
| Managed Operating System | 99.5% |
| Patch Management | 2 weeks |
| Anti-Virus signatures update | 72 hours |
6.3 A managed Operating System is considered to be Unavailable where bi-directional network traffic over supported protocols such as UDP and TCP cannot be established between compute platform Virtual Machines in two Zones and network IP addresses outside of those two Zones.
6.4 in the event that blocz does not meet the managed Operating Systems, Patch Management or Anti-Virus signature update Availability Target, Customer will be entitled to a Service Credit equal to 10% of the managed Operating System charge for associated failed Availability Target.
6.6 blocz shall prioritise all Tickets based on its reasonable assessment of the impact a reported Incident has on the Service into one of four Priority Levels: Priority Level 1 (Critical), Priority Level 2 (Major), Priority Level 3 (Minor), or Priority Level 4 (Requests) (each a “Priority Level” or, together, the “Priority Levels”). blocz may downgrade the priority level if the Customer does not provide adequate resources or responses to enable blocz to continue with Incident Management.
Any Incidents relating to a security Incident which requires post-restoration investigation are considered out of scope for Incident Management. Each Priority Level is categorized as follows:
| Priority | Description |
|---|---|
| Priority 1 (Critical) | An Incident may be considered critical where a VDC Component Service within a Zone is Unavailable as set out in the SLA. |
| Priority 2 (Major) | An Incident may be considered major where a VDC Component Service within a Zone is degraded and has a significant impact to the Service but the Service is still Available. |
| Priority 3 (Minor) | An Incident may be considered minor where a VDC Component Service within a Zone is degraded but has no significant impact to the Service. |
| Priority 4 (Requests) | Any request from a Customer for information, advice, standard changes or for access to a Service. |
6.7 All Incidents must be reported by logging a Ticket in accordance with paragraph 2.1 .blocz will respond to all Tickets in accordance with the table below:
| Priority | Response Time Target |
|---|---|
| Priority 1 (Critical) | 1 Hour |
| Priority 2 (Major) | 4 Hours |
| Priority 3 (Minor) | 8 Hours |
| Priority 4 (Requests) | 2 days |
6.8 The Response Time Target shall start once the Ticket is raised with blocz. The Response Time Target is considered breached where the relevant Interface has not contacted the Customer or taken action against an Incident within the Target Response Time.
6.9 In the event the blocz fails to meet the Response Target Time, Customer will be entitled to Service Credits equal to a percentage of the Charges for the equivalent Managed rate for a single VM associated with the failed Target.
| Priority | Credit |
|---|---|
| Priority 1 (Critical) | 20% |
| Priority 2 (Major) | 15% |
| Priority 3 (Minor) | 10% |
| Priority 4 (Requests) | 5% |
7 Backup Service Levels
7.1 The blocz Cloud Data Backup target is as follows:
| Cloud Backup Service | Data Backup Target |
|---|---|
| Standard Backup | 95% |
7.2 Backups are considered successful when the monthly backup report showing the number of successful and unsuccessful backups states it as such. Should a scheduled backup be restarted for any reason, this restarted backup will count towards the percentage if successful, but will not count if unsuccessful.
7.3 In the event that a service needs an emergency restore from backup, the service will have the following Data Recovery Target.
| Cloud Backup Service | Data Recovery Target |
|---|---|
| Standard Backup | 2 hours + 1 hour per 50Gb recovered |
7.4 Service credits are calculated on a monthly basis. In the event the blocz fails to achieve a Backup Service Level, Customer will be entitled to a Service Credit equal to the monthly utility charge for the Backup of the associated volume.
7.5 Service credits must be claimed by the Customer within three (3) months of the date that the SLA has not been met, otherwise the right to claim will cease and the Customer will be deemed to have waived its rights to make any such claim.