Terms Of Service - A document listing all of our terms

This Services Agreement is between Truly Cloud and the person/persons who use our services. Please read carefully to ensure you understand our terms before purchasing any of our products or services.

Interpretation
1. Definitions:
2. Interpretation:
3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
4. A reference to a party includes its personal representatives, successors and permitted assigns.
5. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
6. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
7. A reference to writing or written includes email but not fax.
Background
1. The Supplier provides the Truly Cloud platform to provide Cloud Services for the purpose of providing the Customer with secure IT Services. These services are ordered, managed and supported through the Truly Cloud Customer portal.
2. The Customer wishes to use the Truly Cloud services in its business operations.
3. The Supplier has agreed to provide and the Customer has agreed to take and pay for the Truly Cloud services subject to the terms and conditions of this Agreement.
4. The customer must create an account on the Truly Cloud Client Area to use the Services. You are solely responsible for maintaining, securing, updating, and keeping strictly confidential all login IDs and passwords. You are solely responsible for all access to and use of your Account by you or by any third party.
Orders and Policies
1. The Supplier shall provide the Customer with Services in accordance with these terms and Service Orders in all material respects.
2. Although the majority of services can be ordered with immediate access and use, in some situations, there may be a delay in processing orders whilst capacity is assigned/deployed.
3. The customer's use of services must adhere to our Acceptable Usage Policy https://www.truly-cloud.co.uk/acceptable-usage-policy.php. Our decision will be final in relation to disputes around the acceptable use of Truly Cloud Services.
4. The privacy policy governing the use of the Truly Cloud Portal and Services can be found here https://www.truly-cloud.co.uk/privacy-policy.php.
Data Protection
1. Both parties will comply with all applicable requirements of the UK Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the UK Data Protection Legislation.
2. The parties acknowledge that for the purposes of the UK Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
3. Where services require processing of Customer Data (“Data saved or accessed by the Customers hosted systems”) a more detailed agreement will be provided during the order process for all hosting services which provides all details of the data processing and the arrangement between Data Controller and Data Processor.
Charges and payment
1. The Customer shall pay the amounts set out in the Orders they place in the Truly Cloud Customer Portal.
2. All amounts and fees are exclusive of value added tax, which shall be added to invoice(s) at the appropriate rate.
3. All orders must be paid in full before services will be provisioned and access granted.
4. Invoices for recurring services will be automatically raised 30 days before the period they cover. Invoices will be raised with a due date of 25 days from invoice date, and will be drawn automatically from the payment method configured by the customer account on the system on the due date.
5. The customer is responsible to ensure payment methods are updated on the system promptly and accounts have sufficient funds to meet recurring charges.
6. All invoices must be settled before the due date for services to run uninterrupted. All responsibility for ensuring payments are made on time reside with the Customer – The Supplier shall be under no obligation to provide any or all Services while invoices remain unpaid.
7. The charges payable by the Customer will be reviewed periodically – All changes to fees and any other charges will be notified to customers with a minimum of 1 calendar month’s advance notice.
8. The Supplier has partnered with the following Payment options for the Truly Cloud platform:
9. Stripe offers payment card options. The payment card details are secured by being tokenised on our systems. The payment card details themselves are provided directly to Stripe and are held in their systems (to which the supplier has no access).
10. GoCardless offer Direct Debit payment options. GoCardless provide a reference ID for the Direct Debit agreement – Storing all customer bank details on their systems (to which the supplier has no access).
Assigning Public IP Addresses
1. The Supplier will provide public IP addressing using IPv4 (and IPv6 in some cases) addresses on a rental basis (IP addresses assigned to a customer cannot be retained by the customer when the Services are terminated).
2. In a rare occasion the supplier may have to vary IP addresses assigned to a Customer, and will perform any such variation during a Maintenance Event with suitable notifications.

Technical support services

The Supplier shall provide the Customer with technical support services. The Customer shall raise support requests from within the Truly Cloud Customer portal (24 hours).
In the event that the Truly Cloud Customer portal is inaccessible then support can be obtained through email or phone call (English Language within Business Hours).
The Technical support service includes support on the following basis:
Support for order processing and/or issues with services ordered.
Support with Domain Transfers and Renewals (where automatic processes have not completed successfully).
Support for the Truly Cloud Hosting Platform itself (including the resources customers have assigned to their services).
Support for license activation where licenses have been provided by Truly Cloud.
Technical support for AntiVirus/EDR Product Issues (initial support and advice only).
Technical support for Veeam Data Cloud M365 backup services.
The priority and target response and resolution times will be determined as follows:

Priority	Description	Response time	Target resolution time
Priority 1	The entire Service is "down" and inaccessible. Priority 1 incidents shall be reported by telephone only.	Within two Normal Business Hours.	Four Normal Business Hours. Continuous effort after initial response and with Customer co-operation.
Priority 2	Operation of the Services is severely degraded, or major components of the Service are not operational and work cannot reasonably continue. Priority 2 incidents shall be reported by for telephone only.	Within four Normal Business Hours.	Within one Business Day after initial response.
Priority 3	Certain non-essential features of the Service are impaired while most major components of the Service remain functional.	Within one Business Day.	Within three Business Days after initial response.
Priority 4	Errors that are, non disabling or cosmetic and clearly have little or no impact on the normal operation of the Services.	Within three Business Days.	Within 10 Business Days.

If no progress has been made on a Priority 1 or Priority 2 incident within the Target Resolution Time, the incident shall be escalated. If the incident is not resolved, then after each successive increment of the Target Resolution Time the incident shall be escalated again.

Domains and Licensing Services
1. The Truly Cloud Platform provides the ability to purchase and transfer domain names and purchase a range of third party licenses and services for the customers use (including Certificates, Anti-Virus/EDR and Microsoft365 backup).
2. In relation to Domains:
3. All Domain Name services provided to the Customer are subject to Enom policies and terms, as well as the policies of ICANN. These policies can be found here: https://www.enom.com/reseller/legal-policy-agreements/
4. The Customer is specifically bound by the Domain Registration Agreement: https://www.enom.com/reseller/legal-policy-agreements/enom-registration-agreement
5. Customer Agreement: By using the Services, you agree to all terms and conditions of this Agreement; ICANN Policies, as published from time to time at icann.org; any rules, agreements, or policies of any registry of a relevant top-level domain name; the UDRP (defined below); the URS (defined below); and any rules, policies, or agreements of any relevant government. You explicitly agree that violation of or refusal to comply with of any ICANN policy is a violation of this Agreement and may result in immediate termination of your services.
6. Changes to this Agreement: This Agreement may change over time, either through amendments by us; changes to ICANN policy or applicable law, which may or may not be reflected in the text of this Agreement; or otherwise. We or your Primary Service Provider may notify you of any material changes to this Agreement by, for example, sending email to you at your email address of record. Your continued use of the Services indicates your consent to the changes; if you no longer agree with the terms of this Agreement, your exclusive remedies are (a) to transfer your domain name registration services to another registrar or (b) to cancel your Services, including domain name registration services, with us. Changes to this Agreement become valid upon publication.
7. Registrant Rights and Responsibilities: ICANN has developed, in consultation with registrars, a webpage that identifies important registrant rights and responsibilities. The document provides a “plain language” summary of terms related to Registrant Rights and Responsibilities as set out in the Registrar Accreditation Agreement (RAA), for posting on registrar websites. While some of the terms included do not specifically refer to registrants, those terms are included because of the potential import to understanding registrar/registrant relations. The document also summarizes registrant rights and responsibilities that arise within ICANN Consensus Policies and specifications, as those policies and specifications are incorporated into the RAA. The summarization of terms within this document do not override or replace the terms set forth in the RAA or within those specifications or policy. Please review these important Registrant Rights and Responsibilities.
8. Dispute Resolution Policy: You are bound by all ICANN consensus policies and all policies of any relevant registry, including but not limited to: (i) the Uniform Domain Name Dispute Resolution Policy (“UDRP”), along with the UDRP Rules and all Supplemental Rules of any UDRP provider; and (ii) the Uniform Rapid Suspension System (“URS”), along with the URS Rules and all Supplemental Rules of any URS provider. The UDRP and URS may be changed by ICANN (or ICANN’s successor) at any time. If the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions specified in the UDRP and URS in effect at the time your domain name registration is disputed by the third party. In the event a domain name dispute arises with any third party, you will indemnify and hold us harmless pursuant to the terms and conditions of the UDRP and URS. If you or your domain name is the subject of litigation, we may deposit control of your domain name record into the registry of the judicial body by providing a party with a registrar certificate.
9. Emails: You are responsible for regularly monitoring email sent to the email address in your Account. You may lose your rights to the domain name(s) or your right to receive the Services if you do not respond appropriately and timely to an email sent in conjunction therewith.
10. In relation to Third Party Licensing and Services
11. Third Party Licensing Services cover all licensing for third-party services including SSL Certificates, Anti-Virus/EDR and Microsoft 365 Backup Services
12. The third-party terms and conditions associated with each service are determined by the provider:
13. For SSL Certificates these are bound by the Sectigo Certificate Subscriber Agreement: https://www.sectigo.com/uploads/files/Certificate-Subscriber-Agreement-v2.1.pdf
14. For Anti-virus and EDR services these are provided by ESET and their Terms of Use and Privacy policies can be referenced here: https://legal.eset.com/?lang=en#
15. For Veeam Microsoft 365 Backup Services these are provided by Veeam and bound by their terms which can be found here: https://www.veeam.com/legal/veeam-data-cloud-service-agreement.html, as well as the Veeam EULA: https://www.veeam.com/legal/eula.html
16. Maintenance activity and faults/bugs may result in the Truly Cloud Customer portal and/or specific services to be unavailable. The Supplier will monitor the platform and will take action to restore services, however the Supplier does not warrant that all functions will operate without issue all of the time. For planned maintenance (as per clause 9.9) affecting the Customer Portal the Supplier will notify all registered customers by email.
Hosting Platform
1. The Truly Cloud Hosting Platform is designed, installed, configured and tested to deliver the Cloud Hosted services offered through this platform.
2. For all Hosted Services a more detailed agreement will be provided during the order process which provides the full details that are required in this scenario, and this supersedes these terms for the Hosted Service.
3. Blue Sky shall procure, install and configure the hosting equipment and management services to provide the Truly Cloud Hosting Platform and associated services to customers.
4. The hosting platform is installed in UK located professional hosting facilities designed for such use. These facilities are equipped with access security, climate control, fire suppression, and managed power supply with UPS and generator back-up.
5. Internet connectivity is provided through internet service providers at the hosting facility. The connectivity shall include multiple, diversely routed high-speed connections.
6. Some of the Truly Cloud services have backup services available for customers to configure, manage, monitor and recover through the Truly Cloud Customer management portal.
7. The Supplier provides monitoring services 24 hours a day and seven days a week, monitoring of the Hosting Platform to detect and correct abnormalities.
8. The Supplier provides release management and change control services to ensure that versions of all components of the Hosting Platform are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary to maintain the Hosting Platform.
9. Maintenance of the Hosting Platform that may require interruption of the Customers Services as follows:
10. Disruptive Maintenance shall not be performed during Normal Business Hours.
11. The Supplier may occasionally interrupt the Services to perform emergency maintenance during the daily window of 22.00 hrs to 02.00 hrs UK time, provided that the Supplier has given the Customers affected at least four hours’ advance notice.
12. The Supplier may interrupt the Services outside Normal Business Hours for Scheduled maintenance, provided that it has given the Customers affected at least three days' advance notice.
13. Any Maintenance Events that occur during Normal Business Hours, and which were not requested or caused by the Customer, shall be considered downtime for the purpose of service availability measurement.
14. The Supplier shall at all times endeavour to keep any service interruptions to a minimum.
15. Where customers have selected an automatic patching service this will apply patches and updates on Sunday mornings from 00:01h to 04:00h (UK time), during which services will restart to complete the update process.
16. Blue Sky will apply updates to the Website hosting platform in line with industry supported versions. Customers are responsible for website content and Databases and are obliged to ensure these are updated to support the versions run on the Website hosting platform. Any website downtime resulting from a version mismatch or misconfiguration of the website content will not be considered against the Service Availability Calculations and Service Credits.
17. All software not specifically identified within service orders as supplied by us remains the responsibility of the Customer to provide and apply suitable licenses. The customer also shall ensure they have suitable rights with licenses they supply to cover the software use on shared cloud environments.
Hosted Services - Service availability
1. The Supplier will provide at least a 99.9% uptime Service Availability level, and if customers believe they have received less than this level of uptime they can make a claim for Service Credits.
2. For details around Service Availability and Service Credits please refer to the hosting agreement.
3. Please note that any services that have been disabled either due to breach of the acceptable use policy, or where payments have not been made on time, are excluded from Service Availability Calculations and Service Credits whilst they are disabled for these reasons.
Intellectual property rights
1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
2. The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
3. The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 11.2.
4. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
Confidentiality
1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
2. Each party may disclose the other party's confidential information:
3. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
4. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
5. Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
Limitation of liability
1. The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
4. death or personal injury caused by negligence
5. fraud or fraudulent misrepresentation; and
6. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7. Subject to clause 13.3, the Supplier's total liability to the Customer shall not exceed the lesser of either the price agreed for the Goods and Services in question or the total value of Services invoiced to the Customer within the preceding 12 months.
8. This clause 13.5 sets out specific heads of excluded loss and exceptions from them:
9. Subject to clause 13.3, the types of loss listed in clause 13.5 (b) are wholly excluded by the parties.
10. The following types of loss are wholly excluded:
11. loss of profits;
12. loss of sales or business;
13. loss of agreements or contracts;
14. loss of anticipated savings;
15. loss of use or corruption of software, data or information;
16. loss of or damage to goodwill; and
17. indirect or consequential loss.
18. The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 13, 14 and 15 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
19. This clause 13 shall survive termination of the Contract.
Term and Termination
1. This Agreement shall commence on the Effective Date and shall continue for a period of one year, unless otherwise terminated as provided in this clause 14. After one year, this Agreement shall automatically continue from month to month until all of the Customers’ Services are cancelled.
2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
3. the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;
4. the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
5. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
6. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
7. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
9. the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
10. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
11. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
12. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(c) to clause 14.2(i) (inclusive);
13. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
14. On termination of this Agreement for any reason:
15. all licences granted under this Agreement shall immediately terminate;
16. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
Force majeure
1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce of or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, denial of service attack, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Blue Sky’s or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Agreement by giving 30 days’ written notice to the other party.
General
1. Assignment and other dealings
2. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
3. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
4. Notices
5. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
6. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
7. sent by email to the address specified, in the case of the Supplier, in clause 1.1 above.
8. Any notice or communication shall be deemed to have been received:
9. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
10. if sent by pre-paid first-class post or other next working day delivery service, at 10.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
11. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
12. This clause 16.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 16.3 shall not affect the validity and enforceability of the rest of the Contract.
14. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16. Entire agreement
17. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misrepresentation] based on any statement in the Contract.
19. Nothing in this clause shall limit or exclude any liability for fraud.
20. Third party rights.
21. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
22. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
23. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
24. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.