Terms of Service

Please read these Terms and Conditions carefully. All contracts that File Sanctuary may enter into from time to time for the provision of File Sanctuary’s services shall be governed by these Terms and Conditions, and File Sanctuary will ask the Customer for the Customer’s express electronic or written acceptance of these Terms and Conditions before providing any such services to the Customer.

Effective Date: January 14, 2021

Please read these Terms of Service carefully. All contracts that File Sanctuary may enter into from time to time for the provision of File Sanctuary’s services shall be governed by these Terms of Service, and File Sanctuary will ask the Customer for the Customer’s express electronic or written acceptance of these Terms of Service before providing any such services to the Customer.

1. Definitions

1.1 Except to the extent expressly provided otherwise, in these Terms of Service:

“Additional Terms Document” means a document containing additional terms and conditions relating to a specific service, links to which are found at the bottom of https://www.filesanctuary.net/terms and this document;

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Business Day” means any weekday which is not a Saturday, a Sunday, or a bank or public holiday in England;

“Business Hours” means the hours of 10:00 to 18:00 UK time on a Business Day;

“Charges” means the following amounts:

(a) the amounts specified in the Customer Portal order checkout process; and

(b) such amounts as may be agreed by the parties in writing, orally, or otherwise, from time to time;

“Cloud Account” means an online account enabling a person to configure and manage the Cloud Servers;

“Cloud Platform” means the platform managed by File Sanctuary and used by File Sanctuary to provide Cloud Servers, including the application, database, system and server software used to provide the Cloud Servers, and the computer hardware on which that application, database, system and server software is installed;

“Cloud Server” means a virtual machine (a Xen domain), as specified in the Customer Portal order checkout process which will be made available by File Sanctuary to the Customer as a service via the internet in accordance with these Terms of Service;

“Confidential Information” means File Sanctuary Confidential Information and the Customer Confidential Information;

“Contract” means a contract made under these Terms of Service between File Sanctuary and the Customer;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

“Customer” means the person or entity identified as such in Section 1 of the Services Order Form;

“Customer Confidential Information” means:

(a) any information disclosed by or on behalf of the Customer to File Sanctuary during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been understood by File Sanctuary (acting reasonably) to be confidential;

“Customer Indemnity Event” has the meaning given to it in Clause 16.1;

“Customer Personal Data” means any Personal Data that is processed by File Sanctuary on behalf of the Customer in relation to the Contract, but excluding Customer Portal account data with respect to which File Sanctuary is a data controller;

“Customer Portal” means the customer account management and billing portal available at https://customers.filesanctuary.net;

“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);

“Effective Date” means, following the Customer completing the Customer Portal order checkout process on File Sanctuary’s website, the date upon which File Sanctuary sends to the Customer an order confirmation;

“File Sanctuary” means File Sanctuary Ltd, a company incorporated in England and Wales (registration number 08505497) having its registered office at Boho One, Bridge Street West, Middlesbrough, TS2 1AE, United Kingdom;

“File Sanctuary Confidential Information” means:

(a) any information disclosed by or on behalf of File Sanctuary to the Customer at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Go Live Date” the date when File Sanctuary notifies the Customer or any User that the Service is ready for use by the Customer or User or, if earlier, the date when the Customer or User starts to use the Service;;

“Hosted Data” means all data, works and materials: uploaded to or stored on the Hosting Platform by the Customer, or by any third party using any software made available by means of the Hosting Platform; transmitted by the Hosting Platform at the instigation of the Customer, or at the instigation of any third party using any software made available by means of the Hosting Platform; or supplied by the Customer to File Sanctuary for uploading to, transmission by or storage on the Hosting Platform;

“Hosting Account” means an online account enabling a person to configure and manage the Hosting Services;

“Hosting Platform” means the platform managed by File Sanctuary and used by File Sanctuary to provide the Hosting Services, including the application, database, system and server software used to provide the Hosting Services, and the computer hardware on which that application, database, system and server software is installed;

“Hosting Services” means those web hosting services specified in the Customer Portal order checkout process which will be made available by File Sanctuary to the Customer as a service via the internet in accordance with these Terms of Service;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Loss” or “Losses” means any and all losses, damages, costs, expenses (including court or legal expenses), or other liabilities of whatever nature (whether foreseeable or not);

“Minimum Term” or “Service Minimum Period” means the minimum period for the provision of the Service as specified in the Terms of Service, and where provided, any Additional Terms Documents;

“Order” means the Customer’s request for the supply of Services toa User as accepted by File Sanctuary in accordance with the Terms of Service and, where provided, any Additional Terms Documents;

“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;

“Service” means the services provided by File Sanctuary to the Customer as specified in the Terms of Service and, where provided, any Additional Terms Documents;

“Service Provider” means any person or entity providing underlying or network facilities in connection with the services;

“Services Order Form” means the Customer Portal order checkout process published by File Sanctuary and completed by the Customer, incorporating these Terms of Service by reference;

“Telecom Services” means those communications services specified in the Customer Portal order checkout process, including Broadband, Phone Line Rental, and Leased Lines, which will be made available by File Sanctuary to the Customer as a service in accordance with these Terms of Service;

“Telecom Service Levels” means the service levels in respect of the Telecom Services and specified in the relevant Additional Terms Document for the Telecom Service provided;

“Term” means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

“Terms of Service” means all the documentation containing the provisions of the Contract, namely the main body of these Terms of Service, and any Additional Terms Documents, including any amendments to that documentation from time to time; and

“User” means a party to whom the Customer resells the Services and any other parties (including without limit any ultimate end user) to whom the Services are subsequently resold from time to time in accordance with the terms of this Agreement.

2. Term

2.1 The Contract shall come into force upon the Effective Date.

2.2 The Contract shall continue in force indefinitely, subject to termination in accordance with Clause 15.

2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms of Service.

3. Orders

3.1 The terms and conditions set out in this agreement shall:

(a) apply to and be incorporated into each Additional Terms Document; and

(b) prevail over any inconsistent terms or conditions contained, or referred to, in the customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice, or course of dealing.

3.2 The customer shall submit a request to File Sanctuary for each Service required by the Customer, and if File Sanctuary is prepared to provide those services to the Customer under this agreement, a contract shall be entered into between the party in relation to those services, and then if Orders are to be placed then they shall be placed pursuant to the Terms of Service and any applicable Additional Terms Documents.

3.3 Each individual service is subject to its own Service Minimum Period. The Service Minimum Periods are stated either in the Terms of Service, any applicable Additional Terms Documents, or specifically on the order documentation for Services that carry variable Service Minimum Periods by specific Service or, failing any specific reference the Service Minimum Period defaults to 30 days.

3.4 Each individual Service is subject to its own notice period, in the absence of a specified notice period for a Service the default notice period is thirty days, with such notice to expire at the end of the Service Minimum Period.

3.5 Some Services are subject to termination fees which are payable on the termination of the Service. These are specified in the pricing tables on the product webpages where applicable.

4. Cloud and Hosting Services

4.1 If the Customer has ordered Hosting Services, the Hosting Platforms will automatically generate a Hosting Account for the Customer on the Effective Date and will provide to the Customer login details for that Hosting Account.

4.2 If the Customer has ordered Hosting Services, File Sanctuary hereby grants to the Customer a right to use the Hosting Services during the Term.

4.3 The Customer shall use reasonable endeavours, including reasonable security measures relating to Hosting Account access details, to ensure that no unauthorised person may gain access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

4.4 The Customer shall have no administrative access or administration rights in relation to the Hosting Platform, save to the extent that File Sanctuary has expressly agreed otherwise in writing.

4.5 If the Customer has ordered Cloud Servers, the Cloud Platforms will automatically generate a Cloud Account for the Customer on the Effective Date and will provide to the Customer login details for that Cloud Account.

4.6 If the Customer has ordered Cloud Services, File Sanctuary hereby grants to the Customer a right to use the Cloud Services during the Term.

4.7 The Customer shall use reasonable endeavours, including reasonable security measures relating to Cloud Account access details, to ensure that no unauthorised person may gain access to the Cloud Account or any element of the Cloud Servers.

4.8 The Customer shall have no administrative access or administration rights in relation to the Cloud Platform, save to the extent that File Sanctuary has expressly agreed otherwise in writing. The customer will however be granted full administration access and rights to the operating system inside their Cloud Servers.

4.9 The parties acknowledge and agree that the Availability SLA shall govern the availability of the Cloud Services and Hosting Services.

4.10 The Customer must comply with the Acceptable Use Policy and any other relevant Additional Terms Documents, and must ensure that all persons using the Cloud Servers and Hosting Services comply with the Acceptable Use Policy and any other relevant Additional Terms Documents.

4.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Cloud Platform or Hosting Platform, either during or after the Term.

4.12 File Sanctuary may suspend the provision of the Cloud Servers or Hosting Services if any amount due to be paid by the Customer to File Sanctuary under the Contract is overdue, and File Sanctuary has given to the Customer at least 7 days written notice, following the amount becoming overdue, of its intention to suspend the Hosting Services on this basis.

5. Telecom Services

5.1 If the Customer has ordered Telecom Services, during the term, and subject to the Customer’s compliance with these Terms of Service and any Additional Terms Documents, File Sanctuary shall provide the Services to the Customer to the standards of a reasonable and prudent communications services provider offering the same or similar services in the United Kingdom and in accordance in all material respects with the Terms of Service and any Additional Terms Documents.

5.2 File Sanctuary shall use reasonable endeavours to perform the Telecom Services in accordance with the Telecom Service Levels which shall apply with effect from the Go Live Date until the Telecom Service is terminated in accordance with its terms.

5.3 If File Sanctuary Fails to provide the Telecom Services to meet any Telecom Service Levels then:

(a) File Sanctuary shall at File Sanctuary’s expense deploy as soon as reasonably practicable additional resources as are reasonably necessary to perform the Telecom Services in the future in a manner likely to meet the Telecom Service Levels;

(b) For the avoidance of doubt any failure of File Sanctuary to provide the Telecom Services in accordance with the Telecom Service Levels shall not be a material breach unless such breach is in itself material or is a minor breach that continues to a material extent, and is demonstrated to have a detrimental effect on the Telecom Services provided, and the Customer has first served written notice on File Sanctuary giving reasonable particulars of the relevant breach or breaches and afforded File Sanctuary a period of two months to remedy the deficiency and File Sanctuary shall have failed to comply with clause 5.3(a); and

(c) File Sanctuary shall not be liable for any failure to comply with a Telecom Service Level to the extent it is caused by the act or omission of any network operator.

5.4 File Sanctuary shall use reasonable endeavours to meet any dates or times for the performance of the Telecom Services specified in the Terms of Service and the Order. Except as expressly stated to the contrary in an Additional Terms Document or the Order any dates specified by File Sanctuary for the performance of the Telecom Services or delivery in relation to the Terms of Service are an estimate only and in relation to the same and time shall not be of the essence. If no delivery dates are specified within the relevant Additional Terms Documents delivery shall be within a reasonable time.

5.5 File Sanctuary may at any time make any changes to the Telecom Services supplied as it in its reasonable opinion deems necessary provided always that:

(a) any changes shall not materially affect the performances and/or accessibility of the Telecom Services in a detrimental way; and

(b) File Sanctuary shall provide the Customer as much notice as practicable prior to any such change taking effect (having due regard to the likely impact on the Customer and/or the Uses and the nature of such change).

5.6 Customer contact

(a) The Customer and File Sanctuary shall each promptly provide the other with details of those personnel with whom each may, in File Sanctuary’s performance of its obligations in the provision of any of the Telecom Services and the Customer’s use of the Telecom Services, wish or be required to interface. These can be accessed and changed through File Sanctuary’s Customer Portal website at any time.

(b) Each party shall promptly notify the other of any amendments to the contact details provided, and in the case of the Customer the amended details shall be provided to File Sanctuary in accordance with clause 5.6(a).

(c) File Sanctuary shall not be liable for any failure to satisfactorily provide any Telecom Services to the extent that such failure is due to:

(i) the Customer having failed to provide the requisite information or to update such information as required by this clause 5.6; or

(ii) File Sanctuary being unable to make contact with the Customer’s nominated personnel due to such personnel being unavailable.

5.7 File Sanctuary hereby grants the Customer the right to use all software provided by File Sanctuary as part of the Telecom Services. Such license shall be a personal, revocable, non-transferable, non-sublicensable right to use such software (without the requirement to pay license fee or royalty fees) to the extent necessary to use the Telecom Services as contemplated by the Terms of Service and any Additional Terms Document. Such license shall terminate immediately on the cessation of the provision of the applicable Telecom Services provided by File Sanctuary.

5.8 File Sanctuary shall, as soon as is reasonably practicable (after becoming aware) notify the Customer in the event that any use of the Telecom Services by the customer or any User causes File Sanctuary to be in breach of any software license File Sanctuary has in place with any third-party licensor in order to provide the Telecom Services (or any part thereof). The Customer shall, as soon as is reasonably practicable after such notification cease to use the Telecom Services in such manner and/or shall procure the same of Users (as applicable).

5.9 The equipment will at all times remain the property of File Sanctuary, or if provided by a Service Provider, the equipment will remain the property of that Service Provider unless otherwise agreed in writing.

5.10 The customer will:

(a) ensure that the Equipment is only used for the purpose of the Telecom Services;

(b) not connect any other equipment to the Equipment except as expressly authorised in writing by File Sanctuary;

(d) not (and procure that the Users do not) open, disconnect, repair, maintain, modify, or remove the Equipment; and

(e) permit File Sanctuary and/or any Service Provider to modify, change, add, or replace the Equipment or any part of the Equipment.

5.11 The customer is responsible for, and will, subject to clause 13, indemnify File Sanctuary in respect to all costs, expenses, and liabilities that File Sanctuary incurs as a result of any loss or damage to the Equipment caused by the Customer other than where the damage or loss has been caused as a result of the Customer acting in accordance with instructions issued by File Sanctuary.

5.12 The customer will not permit any lien, charge, or other like restriction to be placed on the Equipment.

5.13 File Sanctuary may take possession of the Equipment from the Customer’s or a User’s premises, or take other reasonable steps which File Sanctuary believes are necessary to protect its or the Service Provider’s ownership rights in the Equipment and the Customer will use its reasonable endeavours to provide File Sanctuary with the necessary access to exercise these rights.

5.14 Promptly after expiry or earlier termination of any Terms of Service, the Customer will use its reasonable endeavours to provide File Sanctuary and Service Providers with access to the Equipment and all reasonable assistance in removal of the same.

6. Customer obligations

6.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to File Sanctuary, or procure for File Sanctuary, such:

(a) co-operation, support and advice;

(b) information and documentation; and

as are reasonably necessary to enable File Sanctuary to perform its obligations under the Contract.

6.2 The Customer must provide to File Sanctuary, or procure for File Sanctuary, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by File Sanctuary to enable File Sanctuary to perform its obligations under the Contract.

7. Hosted Data

7.1 The Customer hereby grants to File Sanctuary a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Hosted Data to the extent reasonably required for the performance of File Sanctuary’s obligations and the exercise of File Sanctuary’s rights under the Contract, together with the right to sub-license these rights to its own connectivity and telecommunications service providers to the extent reasonably required for the performance of File Sanctuary’s obligations and the exercise of File Sanctuary’s rights under the Contract.

7.2 The Customer warrants to File Sanctuary that the Hosted Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

7.3 If File Sanctuary reasonably suspects that any element of the Hosted Data breaches Clause 7.2, or breaches any provision of Schedule 1 (Acceptable Use Policy), File Sanctuary may edit or delete the relevant Hosted Data to the extent reasonably necessary to ensure that it no longer breaches that provision.

7.4 Save to the extent expressly provided otherwise in these Terms of Service, the Customer shall be responsible for creating and maintaining back-ups of the Hosted Data and any other relevant data relating to the Hosting Services, and if necessary for restoring such data to the Hosting Platform.

7.5 Upon the date of effective termination of the Contract, File Sanctuary shall make available to the Customer for download an electronic copy of the Hosted Data (as constituted upon that date), if requested by the Customer. File Sanctuary shall however have no obligations under this Clause 7.5 to make available such Hosted Data if any amounts payable by the Customer to File Sanctuary under the Contract are due but unpaid upon that date. The Customer acknowledges that whilst File Sanctuary may delete the Hosted Data from its computer systems following termination, File Sanctuary may also retain such Hosted Data after termination for legal compliance and/or technical reasons, subject in each case to the other provisions of the Contract.

8. No assignment of Intellectual Property Rights

8.1 Nothing in these Terms of Service shall operate to assign or transfer any Intellectual Property Rights from File Sanctuary to the Customer, or from the Customer to File Sanctuary.

9. Charges

9.1 The Customer shall pay the Charges to File Sanctuary in accordance with these Terms of Service.

9.2 All amounts stated in or in relation to these Terms of Service are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to File Sanctuary.

9.3 File Sanctuary may elect to vary any element of the Charges by giving to the Customer not less than 30 days written notice of the variation.

9.4 Charges shall be invoiced in advanced for rental and services provided, and in arrears for usage charges.

10. Payments

10.1 File Sanctuary shall issue invoices for the Charges to the Customer from time to time during the Term.

10.2 The Customer must pay the Charges to File Sanctuary within the period of 7 days following the issue of an invoice in accordance with this Clause 10.

10.3 The Customer must pay the Charges by debit card, credit card, or Direct Debit (using such payment details as are notified by File Sanctuary to the Customer from time to time).

10.4 If the Customer does not pay any amount properly due to File Sanctuary under these Terms of Service, (and such late or non-payment is not the subject of a bona fide dispute in accordance with clause 10.5), then without prejudice to any other rights and remedies of File Sanctuary:

(a) File Sanctuary may, upon not less than 7 days prior written notice to the Customer suspend the performance of the Service(s) to which the unpaid (or partly unpaid) invoice(s) relate and shall be under no obligation to provide any or all of such Services while the invoice(s) concerned remain unpaid, provided that notwithstanding any suspension of the Services by File Sanctuary, File Sanctuary may continue to incur expenses and/or charges of Service Providers (including, without limit, rental charges) which shall be payable by the customer;

(b) File Sanctuary may charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month);

(c) File Sanctuary may claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

10.5 In the event that the Customer acting reasonably and in good faith disputes an invoice or any part thereof raised by File Sanctuary then provided that it notifies File Sanctuary in writing of the same as soon as is reasonably practicable and pays such part of any invoice which is not the subject of the bona fide dispute in accordance with clause 8, then the provisions of clauses 10.4(a), 10.4(b), and 10.4(c) shall not apply to such disputed payment, unless and until it is subsequently determined that either the whole or part of the payment which is the subject of the bona fide dispute should have been payable to File Sanctuary by the original due date.

10.6 For the avoidance of doubt, all Charges due to File Sanctuary under the Terms of Service shall be paid in full by the Customer by the due date for payment notwithstanding that the Customer may not have received payment from its User(s) and any dispute between the Customer and its Users regarding billing, the provision of services, or otherwise shall be the sole responsibility of the Customer.

10.7 Any fraud or other improper use of the Services committed by the Customer or its User(s) shall not relieve the Customer of its payment obligations to File Sanctuary under the Terms of Service.

10.8 File Sanctuary will consider billing queries from the Customer only if such queries are made in writing within thirty (30) days of the date of the applicable File Sanctuary invoice in respect of charges in connection with the use of the Services. In the absence of any queries from the Customer pursuant to this clause, the customer is deemed to have accepted the applicable File Sanctuary invoice.

10.9 File Sanctuary may at any time or times, with prior written notice to the Customer, set off any liability against amounts due by File Sanctuary to the Customer. Any exercise by File Sanctuary of its right under this clause shall be without prejudice to any other rights or remedies available to it under these Terms of Service or otherwise.

10.10 All charges and rebates shall be calculated by reference to data recorded or logged by File Sanctuary and not to data recorded or logged by the Customer (save in the case of demonstrable error).

10.11 File Sanctuary will regularly review the Charges in consultation with the Customer. If File Sanctuary’s costs of providing the Services increase as a result of any changes in legislation or regulations applying to the performance of the Services or increased taxation or increases in the charges of any relevant Service Provider, File Sanctuary may increase the Charges to reasonably reflect the increase in the cost of providing the Service(s) by not giving less than thirty (30) days’ prior written notice to the Customer, such notice to identify the amount of the increase in the Charges.

10.12 If the Customer disputes any portion of an invoice based upon usage of the Services, File Sanctuary records of such usage shall be presumed to be accurate unless determined otherwise by an independent expert appointed in accordance with clause 20 (Escalation and Dispute Resolution).

10.13 File Sanctuary reserves the right to pass on to Customers on a cost-plus basis (adding 10%) any charges levied by the Service Provider to which it is exposed as a result of the Customer’s and/or its Users’ actions.

10.14 Payment Methods available are defined on the Customer Portal website. File Sanctuary reserves the right to dictate the method of payment when it deems necessary. By entering any card or Direct Debit details onto the Customer Portal, you have agreed to allow File Sanctuary to collect the respective amounts invoiced on the invoice due dates without requiring prior notice until the amounts owed are cleared.

10.15 File Sanctuary reserves the right to carry out a credit check prior to, or after, the Customer’s acceptance of these Terms of Service, and may request copies of two utility bills as well as a clear scan of a driving license or passport. Subsequent to any credit check, File Sanctuary reserves the right to request a deposit or third-party guarantee. Any deposit shall be held by File Sanctuary and will be credited against any invoices issued to the Customer until it is depleted. Any deposit does not relieve the customer of the responsibility for the prompt payment of invoices in accordance with relevant clauses contained herein.

11. Suspension of the Services

11.1 File Sanctuary may suspend or block the Customer’s (or any User’s) access to the Service in any of the following circumstances:

(a) if File Sanctuary or any third party providing equipment or services to File Sanctuary in connection with the provision of the Services is required to do so in order to comply with any law, regulation, court order, or request, order, direction, determination or consent by or of a governmental or regulatory body or authority;

(b) where a Service is no longer provided by the applicable Service Provider and the same has been notified by File Sanctuary to the Customer at least 30 days prior to the date of suspension and notwithstanding such notice, the customer has not contracted with File Sanctuary for an alternative service, or served 14 days’ notice to terminate the Service the subject of the suspension;

(c) if File Sanctuary or any third party providing equipment or services to File Sanctuary in connection with the provision of the Services requires to carry out any emergency maintenance or repair, which will include any necessary action to prevent interference with, damage to, or degradation of the File Sanctuary network, where possible File Sanctuary will give the Customer a minimum of 24 hours advance notice of such emergency maintenance or repair;

(d) to carry out planned maintenance or upgrade of the File Sanctuary network or the Services in which File Sanctuary shall provide not less than 24 hours prior notice of the suspension, and where practicable, will agree with the Customer when the Services will be suspended and for how long;

(e) if the Customer fails to comply with any of its obligations set out in these Terms of Service and/or any Additional Terms Documents which directly prevents File Sanctuary from delivering the Services;

(f) if the Customer fails to pay any undisputed sum by the due date;

(g) if the Customer exceeds any credit limit agreed with File Sanctuary and does not remedy the situation within 7 days of receiving a written notice to do so; or

(h) if File Sanctuary is required to eliminate a hazardous condition (including an event which represents a health and safety risk for File Sanctuary, its employees, agents, directors, and sub-contractors)

12. Maintenance

12.1 File Sanctuary shall consult with the Customer, as appropriate in the circumstances, by means of updates to its status page (which the Customer can subscribe to email notification of), as to the time periods for conducting routine maintenance or upgrading works to the Equipment and/or the File Sanctuary network. File Sanctuary shall use its reasonable endeavours to carry out such routine maintenance or upgrading during such times as the traffic over the File Sanctuary network is at its lowest, at times agreed with the Customer (where possible) and in any event within the hours committed to in the applicable Additional Terms Documents.

12.2 File Sanctuary shall be free to carry out emergency or urgent maintenance to the Equipment and/or the File Sanctuary network at any time to ensure the Services continue to be supplied. File Sanctuary shall provide the Customer with as much prior written notice as reasonably possible, the likely impact of the works on the Service(s), the anticipated duration of any impact on the Services, and wherever reasonably possible, any emergency or urgent maintenance shall be carried out during such times as the Customer’s traffic over the File Sanctuary network is at its lowest. File Sanctuary shall use its reasonable endeavours to ensure that the disruption to the Service(s) is kept to an absolute minimum.

13. Confidentiality obligations

13.1 File Sanctuary must:

(a) keep the Customer Confidential Information strictly confidential;

(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent;

(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as File Sanctuary uses to protect File Sanctuary’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d) act in good faith at all times in relation to the Customer Confidential Information.

13.2 The Customer must:

(a) keep File Sanctuary Confidential Information strictly confidential;

(b) not disclose File Sanctuary Confidential Information to any person without File Sanctuary’s prior written consent;

(c) use the same degree of care to protect the confidentiality of File Sanctuary Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d) act in good faith at all times in relation to File Sanctuary Confidential Information.

13.3 Notwithstanding Clauses 13.1 and 13.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

13.4 No obligations are imposed by this Clause 13 with respect to a party’s Confidential Information if that Confidential Information:

(a) is known to the other party before disclosure under these Terms of Service and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the other party; or

(c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

13.5 The restrictions in this Clause 13 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

13.6 Upon the termination of the Contract, each party must immediately cease to use the other party’s Confidential Information.

13.7 Following the termination of the Contract, and within 30 days following the date of receipt of a written request from the other party, the relevant party must destroy or return to the other party (at the other party’s option) all media containing the other party’s Confidential Information, and must irrevocably delete the other party’s Confidential Information from its computer systems.

13.8 The provisions of this Clause 13 shall continue in force indefinitely following the termination of the Contract.

14. Data protection

14.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

14.2 The Customer warrants to File Sanctuary that it has the legal right to disclose all Personal Data that it does in fact disclose to File Sanctuary under or in connection with the Contract.

14.3 The Customer shall only supply to File Sanctuary, and File Sanctuary shall only process, in each case under or in relation to the Contract, the Personal Data of Data Subject categories and types explicitly notified to File Sanctuary in a Data Processing Agreement; and File Sanctuary shall only process the Customer Personal Data for the following purposes: to provide hosting and cloud services to the Customer, and to provide support to the Customer relating to these hosting and cloud services.

14.4 File Sanctuary shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 14.

14.5 File Sanctuary shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in these Terms of Service or any other document agreed by the parties in writing.

14.6 File Sanctuary shall promptly inform the Customer if, in the opinion of File Sanctuary, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.

14.7 Notwithstanding any other provision of these Terms of Service, File Sanctuary may process the Customer Personal Data if and to the extent that File Sanctuary is required to do so by applicable law. In such a case, File Sanctuary shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.

14.8 File Sanctuary shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

14.9 File Sanctuary and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including the measures specified in the information security policy of File Sanctuary (as it may be updated by File Sanctuary from time to time).

14.10 File Sanctuary must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, File Sanctuary shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Contract on 7 days written notice to File Sanctuary, providing that such notice must be given within the period of 7 days following the date that File Sanctuary informed the Customer of the intended changes. File Sanctuary shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on File Sanctuary by this Clause 14.

14.11 As at the Effective Date, File Sanctuary is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, third parties within the following categories: datacentre providers, transit network providers.

14.12 File Sanctuary shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

14.13 File Sanctuary shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. File Sanctuary may charge the Customer at its standard time-based charging rates for any work performed by File Sanctuary at the request of the Customer pursuant to this Clause 14.13.

14.14 File Sanctuary shall make available to the Customer all information necessary to demonstrate the compliance of File Sanctuary with its obligations under this Clause 14 and the Data Protection Laws.

14.15 File Sanctuary shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

14.16 File Sanctuary shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of File Sanctuary’s processing of Customer Personal Data with the Data Protection Laws and this Clause 14. File Sanctuary may charge the Customer at its standard time-based charging rates for any work performed by File Sanctuary at the request of the Customer pursuant to this Clause 14.16.

14.17 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under these Terms of Service, then the parties shall use their best endeavours promptly to agree such variations to these Terms of Service as may be necessary to remedy such non-compliance.

15. Warranties

15.1 File Sanctuary warrants to the Customer that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms of Service.

15.2 The Customer warrants to File Sanctuary that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms of Service.

15.3 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms of Service. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.

16. Indemnities

16.1 The Customer shall indemnify and shall keep indemnified File Sanctuary against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by File Sanctuary and arising directly or indirectly as a result of any breach by the Customer of these Terms of Service (a “Customer Indemnity Event“).

17. Limitations and exclusions of liability

17.1 Nothing in these Terms of Service will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(d) exclude any liabilities that may not be excluded under applicable law.

17.2 The limitations and exclusions of liability set out in this Clause 17 and elsewhere in these Terms of Service:

(a) are subject to Clause 17.1; and

(b) govern all liabilities arising under these Terms of Service or relating to the subject matter of these Terms of Service, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms of Service.

17.3 File Sanctuary shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

17.4 File Sanctuary shall not be liable to the Customer in respect of any loss of profits or anticipated savings.

17.5 File Sanctuary shall not be liable to the Customer in respect of any loss of revenue or income.

17.6 File Sanctuary shall not be liable to the Customer in respect of any loss of use or production.

17.7 File Sanctuary shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.

17.8 File Sanctuary shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.

17.9 File Sanctuary shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

17.10 The liability of File Sanctuary to the Customer under the Contract in respect of any event or series of related events shall not exceed the greater of:

(a) £100; and

(b) the total amount paid and payable by the Customer to File Sanctuary under the Contract in the 3 month period preceding the commencement of the event or events.

17.11 The aggregate liability of File Sanctuary to the Customer under the Contract shall not exceed the greater of:

(a) £100; and

(b) the total amount paid and payable by the Customer to File Sanctuary in the 12 month period under the Contract.

18. Force Majeure Event

18.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

18.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

18.3 A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

19. Termination

19.1 Either party may terminate the Contract by giving to the other party not less than 30 days’ written notice of termination.

19.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

(a) the other party commits any breach, and the breach is not remediable;

(b) the other party commits a breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c) the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).

19.3 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

19.4 File Sanctuary may terminate the Contract immediately by giving written notice to the Customer if:

(a) any amount due to be paid by the Customer to File Sanctuary under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b) File Sanctuary has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 19.4.

20. Effects of termination

20.1 Upon the termination of the Contract, all of the provisions of these Terms of Service shall cease to have effect, save that the following provisions of these Terms of Service shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.11, 5.9, 5.10, 5.11, 5.12, 5.13, 5.14, 7.5, 10.2, 10.4, 13, 14.1, 14.3, 14.4, 14.5, 14.6, 14.7, 14.8, 14.9, 14.10, 14.11, 14.12, 14.13, 14.14, 14.15, 14.16, 14.17, 16, 17, 20, 23, 25, 26, 27, 28.1, 28.2, 29, 30 and 31.

20.2 Except to the extent that these Terms of Service expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.

20.3 Upon the termination of this Contract, all amounts payable to File Sanctuary shall become immediately due and payable:

(a) all Charges outstanding at the date of termination; and

(b) where the Customer requests that the Contract terminates earlier than the expiry of the Service Minimum Period for any individual Services (as defined in the relevant Terms of Service and any Additional Terms Documents), the Customer shall pay a cancellation charge for each individual Service cancelled prior to the expiry of the applicable Service Minimum Period that is equal to the lesser of:

(i) any early termination charges and ongoing charges which File Sanctuary incurs with its applicable Service Providers due to any Service Minimum Period being terminated prior to its full term and which it cannot reasonably mitigate, plus a reasonable sum to reflect the profit that File Sanctuary would have earned had the Service Minimum Period been in force for its full term; and

(ii) 80% of the Charges which would have been payable for each Service from the date or termination to the end of the relevant Service Minimum Period, had it been in force for its full term.

20.4 On termination of any Contract for whatever reason the Customer shall cease to use the Services (which were provided thereunder) and ensure that all Users cease to use any of the Services (which were provided thereunder).

20.5 Save where the Contract has been terminated by File Sanctuary in accordance with clause 19:

(a) both parties shall co-operate and do such acts and things as may be reasonably necessary to facilitate the provision of Service(s) by an alternative provider and to ensure the provision of Services to Users remain uninterrupted provided that the Customer shall reimburse all reasonable costs incurred by File Sanctuary, and the parties shall negotiate in good faith any further transitional arrangements necessary ensuring the minimal disruption to existing Users.

21. Notices

21.1 Any notice from one party to the other party under these Terms of Service must be given by one of the following methods (using the relevant contact details set out in Clause 21.2:

(a) Using File Sanctuary’s preferred method, the support ticket system, either in the Customer Portal at https://www.filesanctuary.net/help or by emailing yourfriends@filesanctuary.net and receiving a ticket ID from the support ticket system in response;

(b) delivered personally or sent by courier, in which case the notice shall be deemed to be received within 10 days; or

providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

21.2 File Sanctuary’s contact details for notices under this Clause 17 are as follows: https://www.filesanctuary.net/help and yourfriends@filesanctuary.net.

21.3 The addressee and contact details set out in Clause 21.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 21.

22. Subcontracting

22.1 Subject to any express restrictions elsewhere in these Terms of Service, File Sanctuary may subcontract any of its obligations under the Contract.

22.2 File Sanctuary shall remain responsible to the Customer for the performance of any subcontracted obligations.

23. Assignment

23.1 The Customer hereby agrees that File Sanctuary may assign, transfer or otherwise deal with File Sanctuary’s contractual rights and obligations under these Terms of Service.

23.2 File Sanctuary hereby agrees that the Customer may assign, transfer or otherwise deal with the Customer’s contractual rights and obligations under these Terms of Service.

24. Escalation and Dispute Resolution

24.1 If a dispute arises out of or in connection with the Terms of Service and/or any Additional Terms Documents, or the performance, validity, or enforceability of them (Dispute) then, except as expressly provided in these Terms of Service, the parties shall follow the dispute escalation procedure set out on the File Sanctuary website.

24.2 Compliance with clause 16 shall not prevent the parties commencing or continuing court proceedings or referring the Dispute to Ofcom in accordance with any right (if any) either party may have to request a determination or other steps for its resolution.

25. No waivers

25.1 No breach of any provision of the Contract will be waived except with the express written consent of the party not in breach.

25.2 No waiver of any breach of any provision of the Contract shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Contract.

26. Severability

26.1 If a provision of these Terms of Service is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

26.2 If any unlawful and/or unenforceable provision of these Terms of Service would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

27. Third party rights

27.1 The Contract is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

27.2 The exercise of the parties’ rights under the Contract is not subject to the consent of any third party.

28. Variation

28.1 The Contract may not be varied except in accordance with this Clause 28.

28.2 The Contract may be varied by means of a written document signed by or on behalf of each party, or alternatively, by means of File Sanctuary updating the Terms of Service displayed at https://www.filesanctuary.net/terms.

28.3 File Sanctuary may vary the Contract by giving to the Customer at least 30 days’ written or electronic notice of the proposed variation, providing that if File Sanctuary gives to the Customer a notice under this Clause 28.3, the Customer shall have the right to terminate the Contract by giving written notice of termination to File Sanctuary at any time during the period of 14 days following receipt of File Sanctuary’s notice.

29. Entire agreement

29.1 The main body of these Terms of Service, the Schedules and the Services Order Form shall constitute the entire agreement between the parties in relation to the subject matter of the Contract, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

29.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract.

29.3 The provisions of this Clause 29 are subject to Clause 17.1.

30. Law and jurisdiction

30.1 These Terms of Service shall be governed by and construed in accordance with English law.

30.2 Any disputes relating to the Contract shall be subject to the exclusive jurisdiction of the courts of England.

31. Interpretation

31.1 In these Terms of Service, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

31.2 The Clause headings do not affect the interpretation of these Terms of Service.

31.3 References in these Terms of Service to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

31.4 In these Terms of Service, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

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