NexGen Cloud Services - Terms and Conditions

Version dated 15 August 2023

What topics are included in the Terms and Conditions (“T&Cs”)?

T&Cs The following topics are covered by the additional documents listed below for which we include their hyperlink for access to them:

Data Processing Agreement, which outlines the terms of data processing on your behalf through our Services
Privacy Policy, which outlines how we collect, use, and share data in our Platforms and Services

Interpretation & definitions - Whom does this T&CS apply to?

References to “NexGen” or pronouns like “we”, “us” or “our”, are to NexGen Cloud Ltd, any affiliates and subsidiaries.

References to the “User” mean you as the consumer of our Services. If you access our Services on behalf of your organisation, “you” includes your organisation which you are representing to us you are entitled to bind under these T&Cs.

The capitalised terms below are given the following meanings in these T&Cs:

“Account” or “User Account” means the account you register for and create within the Platform in order to access and use the Services;

“Confidential Information” includes but is not limited to information relating to your Account, our technology, connection data/ information, beta services or other information relating to our business and the Services which is not generally known or disclosed to the public. It excludes information already known to you at the time of disclosure which was obtained by proper means, or which was business information which is documented as having been independently created by you;

“Force Majeure Event” has the meaning given to such term in clause 14.10;

“IP Rights” has the meaning given to such term in clause 2.1;

“Output” means all and any work product, results, data, images, calculations, simulations or other form of analysis or output whatsoever and howsoever created, derived or calculated as a result of the use of the Services;

“Platform” means the website and its embedded functionality located at https://www.hyperstack.cloud/ and any sub-domains thereof;

“Service Level Addendum” or “SLA” means the document setting out from time to time the service levels which we aim to provide to you with respect to the Services; and

“Services” has the meaning given to such term in clause 4.

What are the T&Cs?

When you create an account and access our Services, you agree to enter into a legally binding contract with us on the terms set out in these T&Cs relating to any products, Services or other applications or offers we provide to you from time to time.

When am I bound by these T&Cs?

You are bound by these T&Cs when, in connection with the purchase of one or more Services, you click on our Platform next to or below our T&Cs that you accept them.

TERMS AND CONDITIONS

1. Eligibility & Registration

1.1 (Registration compliant with Applicable Laws) You may register for a User Account, access our Platform and use the Services only to the extent such activities do not contravene any applicable law or regulation governing such activity. If we determine any such contravention has occurred, we shall promptly terminate all and any registrations, access or usage rights.

1.2 (Age restrictions) You must be 18 years old to use the Services or otherwise have the appropriate permission, consent and capacity to use the Services.

1.3 (Account registration) To access the Services, you must register for an account (“Account”). When you register for your Account, you provide personal data, including contact and payment information. How we process, protect and use this information is subject to the Privacy Policy and Data Processing Agreement.

2. NexGen’s Proprietary Rights

2.1 (IP Rights) The Platforms and Services are owned and/or provided by NexGen, including all content therein, including without limitation, any intellectual property such as logos, trademarks, interfaces, graphics, design, compilation, products, (together the “IP Rights”) that we provide are protected by intellectual property and other applicable legislation.

2.2 (Comments) Any comments you provide to us by way of beta-test feedback or otherwise via the chatbot or other form of communication with us may be used by us in our full and absolute discretion to change, update or provide new Services to you. In providing any feedback to us, you agree we retain full ownership of any associated Services, content and/or IP Rights.

2.3 (Open-source licenses) We provide some Services using content under third-party licences, including open-source licences. These T&Cs do not prevent you from using any such third-party content licences in any way.

3. Licences granted & beta-testing

3.1 (Grant of licence) Subject to compliance with the T&Cs and payment of all fees in connection with the Services, NexGen grants you a non-exclusive, revocable license to access and use the Platforms and/or Services.

3.2 (Licence subject to T&Cs) You may only use the Platform and Services as expressly authorised by us and as set forth in this T&CS. You shall abide by all intellectual property requirements notices restrictions in the Platforms, as applicable.

3.3 (Beta services) We may involve you with your consent in beta-testing of new products and services. We shall do so on the following basis: (a) any feedback you provide is done on a voluntary basis; (b) we may utilise your feedback as set out in section 2.2; (c) the beta-test period may end at any time but no later than the formal offering of Services the subject of the beta-test; and (d) any such testing for which you agree to engage with us shall be on a strict no-liability basis.

4. The Services

4.1 (Services) We provide you Services from time to time as set out in the Appendix to the Service Level Addendum located at nexgencloud.com/slas

4.2 (Services delivery format) The Services are provided via the Platform allowing you access to your requested virtual private server environment or via an API for you to configure the Services in your own applications.

4.3 (Responsibility for configuration) You are solely responsible for the configuration and usage of the Services, including for the security (encryption etc…) and backup of your Output.

4.4 (Non-compliance or breach of T&Cs) We may, in our sole discretion, refuse to provide or continue providing access to the Platform and/or the Services to any person or entity and change eligibility criteria at any time, including if you fail to comply with the T&Cs.

4.4 (Storage location) You can specify the geographic region and jurisdiction in which your Output is to be stored, such options being available when you order storage. In so doing, you consent to us storing your Output in such specified locations and its transfer thereto. In the absence of any specification or express written agreement between us, we may store your Output in our available locations, determined by in our sole discretion. You represent that your selection of data storage location complies with any applicable laws and third-party rights.

5. Service levels

(Service level addendum) Service levels with respect to each Service and the consequence of failure to meet such levels shall be set out in the Service Level Addendum.

6. Rules governing usage of the Services

6.1 (Sanctions) We shall refuse to offer Services and may suspend or terminate the Services if we determine that your usage, or any distribution by you of the Services infringes or would infringe, either directly or indirectly, any mandatory requirements of sanctions regimes in the UK, the United States of America and the European Union.

6.2 (Acceptable use) You may only use the Services provided such usage does not constitute illegal, abusive, deceitful, fraudulent, violent or threatening conduct or otherwise seek to introduce a computer virus or malware or violate security of any network or system (broadly defined).

6.2 (Vicarious responsibility, Account security)
(a) You retain full responsibility for the consequences of the usage of the Services on your Account, be it your own use, including without limitation, that of your employees, any third party or customers. You shall ensure that any other users of your Account are expressly bound by these T&Cs, where applicable.
(b) You must ensure to protect your Account with appropriate access controls, strong passwords and their safeguarding by appropriate systems and controls.
(c) You are solely responsible for any unauthorised access to your Account and must notify us immediately if it occurs.
(d) You must notify us immediately of any security breaches affecting your Account and assist us, upon request, to resolve the issue through responding to any of our questions relating to your usage of the Services and/or the incident, to the best of your ability.

6.4 (Theft of intellectual property) Unless otherwise expressly agreed with us in writing or otherwise permissible under applicable law, you must not or cause to permit:
(i) the copying, derivation, reverse-engineering, or any form of appropriation of the Services, application and/or Platform; or
(ii) create derivative works of any part of the Platform and/or Services.

6.5 (Information disclosure, Platform integrity) We may disclose any information required to respond to the requests for information of any competent governmental authority or validly served legal process. We may do all things necessary to enforce the T&Cs and to ensure the integrity, reputation and security of the Platform and the Services.

7. Payments

7.1 (Credit card, payment processing) To access the Services, you must enter your credit card and other required information, including all necessary know-your-customer information in your Account portal, such information to be stored by our third-party payment processors, to pre-pay for the Services in US dollars. In connection with your use of such third-party payment processing facilities, you shall also be subject to their own terms and conditions in force from time to time.

7.2 (Requirement to ensure credit available) When the credit on your Account has been fully utilised, the Service will temporarily cease (and your data stored for a maximum of seven (7) calendar days) until you authorise the prepayment of an additional amount of credit. The cost of the storage will create a negative balance on your Account which must be settled to retrieve your data and/or to recommence usage of your Account and the Services.

7.3 (Monthly invoicing request) Depending on the level of Services, you may request credit lines and monthly invoicing which may be agreed in writing.

7.4 (Account status notifications) You shall receive notifications in relation to the payment and credit status of your Account from us from time to time.

7.5 (Sales tax, value added tax, goods and services tax, etc…)
(a) Depending on your Account profile/ characteristics, including, without limitation, your jurisdiction and legal form, you may be subject to certain sales, value-added, good and services or other taxes (if applicable), which if so, will be automatically added to your Account charges (and separately identified) for the Services.
(b) If you disagree with these calculations in sub-clause 7.5(a) above, please contact us immediately failing which we may be unable to obtain any refund of such additional amounts on your behalf.
(c) You may be required to provide relevant taxation identification numbers which may be used by us, as required under applicable law or regulation, to collect any such Taxes and to remit them on your behalf to your relevant taxing authority.
(d) You are responsible for all and any consequences of non-compliance of any applicable tax law and regulations, including any fines, penalty taxes or other additional amounts levied on, or howsoever demanded to, you by your relevant taxing authority(ies) in whichever jurisdiction to the extent any declarations made by you in your Account are false, inaccurate or misleading.

7.6 (Service credits) We occasionally offer Service credits from time to time to allow you to test our Services. These credits have no intrinsic value and may not be transferred or sold and may be cancelled by us at any time for reasons including, without limitation, your failure to use them within a reasonable time or due to any other conduct which contravenes these T&Cs.

8. Confidentiality

8.1 (Confidentiality) Unless otherwise agreed in writing with us, you must:
(a) protect and maintain the confidentiality of any Confidential Information disclosed to you whilst providing to you the Services and your use of the Platform;
(b) use such information strictly for your use and enjoyment of the Services and/or the Platform; and
(c) not use it for any other purpose.

9. No Warranty

9.1 (“As is” basis) The Platforms and Services, including without limitation any content delivered as a part thereof, are provided “as is” and on an “as available” basis.

9.2 (No implied warranties) Other than as set out in the SLA, NexGen disclaims all warranties of any kind, whether express or implied, relating to the Platform and the Services , including but not limited to: (a) any implied warranty of merchantability, fitness for a particular purpose; (b) any warranty arising from any market convention or expectation; or (c) any warranty relating to availability, accuracy, error rate, system integrity, or uninterrupted access. We do not warrant that: (i) the Platform or Services will be secure or available at any time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the Platform or Services is free of viruses or other harmful components; or (iv) the results of using the Platform or Services will meet your requirements. Your use of the Platform and Services is solely at your own risk.

9.3 (Limitations subject to applicable law) The limitations, exclusions, and disclaimers in this clause 9 apply to the fullest extent permitted by law.

10. Limitation of Liability

10.1 (Primary limitation of liability) To the fullest extent permitted by law, we shall not have any liability to you for any direct, indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, or any other intangible loss) in connection with your or any third-party’s use (or inability of use) of, or access to (or inability of access to), your Account on the Platform or the Services, whether based in contract, tort (including negligence), statute, or otherwise and whether we have been informed of the possibility of damage. To the fullest extent permitted by law, we shall have no liability for any data lost, destroyed or otherwise rendered inaccessible, due to a failure to back it up or for any other reason.

10.2 (Maximum liability) Except as provided in clause 13 and to the fullest extent permitted by law, our maximum aggregate liability to you for any claim in connection with your use of the Platform or the Services, whether in contract, tort, or otherwise, is limited to the amount you paid to us for the Services at issue in the month prior to the event or circumstance giving rise to the relevant claim.

11. Indemnification

11. 1 (Primary obligation to indemnify) You shall indemnify and hold us and any of our officers, agents, employees, contractors or advisors harmless for any and all losses suffered (of whatever kind), claims defended and any liabilities costs and expenses (including all legal fees) incurred connection with your or any third-party’s use of the Platform, your Account and/or the Services (whether or no legal or negligent or otherwise), any breach of the T&Cs, any applicable laws and regulations or infringement of any third party intellectual property rights.

11.2 (Defence) We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, without limiting your indemnification obligations with respect to that matter, in which event you will make best efforts to assist and cooperate with us in defending the matter at your expense.

12. Termination

12.1 (Termination rights) We reserve the right to terminate your Account and/or your access to the Platform and/or the Services, at any time and in our sole discretion for any breach of the T&Cs, with or without notice, and with immediate effect. In limited circumstances involving serious breaches of the T&Cs, you acknowledge you may lose some or all data associated with your Account. However, in the normal course of events, your associated data shall be hibernated/stored to enable you to save and promptly retrieve your data.

12.2 (Fees status at termination) Unless otherwise agreed in writing, any monies paid to us are non-refundable and any fees still outstanding at the time of such termination shall be immediately due and payable.

12.3 (Rights to cease) Upon termination, any and all rights granted to you by these T&Cs will immediately be terminated, save your rights to save and retrieve your stored data for a limited time period.

12.4 (Surviving clauses) Clauses 2.1-2.3, 8, 10, 11, 12, 13, and 14 shall survive the termination of your Account and these T&Cs otherwise ceasing to apply.

13. Dispute Resolution and Arbitration

13.1 (LCIA Rules) Any dispute arising out of or in connection with these T&Cs, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.

13.2 (Arbitration) The number of arbitrators shall be one.

13.3 (Location of arbitration) The seat, or legal place, of arbitration shall be London.

13.4 (English language) The language to be used in the arbitral proceedings shall be English.

13.5 (Small claims permissible) Despite the other provisions of clause 13, nothing in this T&CS will waive, preclude, or otherwise limit the right of either party to bring an individual action in the Small Claims Court in England and Wales.

13.6 (No class actions) Each party may bring claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

14. Miscellaneous Provisions

14.1 (Entire agreement) These T&Cs constitute 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.

14.2 (Severance) If any provision or part-provision of these T&Cs is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the T&Cs.

14.3 (Updates) We may unilaterally update and/or modify and update these T&Cs and notify you by email. You are deemed to accept any such updates if you continue to use the Services after the date of such updates. If you disagree with any such changes, your sole recourse shall be to terminate your Account with us.

14.4 (Waiver) No failure or delay by a party to exercise any right or remedy provided hereunder or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.5 (Assignment) You must not assign or otherwise transfer, secure or pledge your rights under these T&Cs, in whole or in part, without our prior written consent. We may assign, transfer or delegate our rights hereunder and/or cause our obligations hereunder to be novated to third parties without notice or consent. Subject to this section, this T&CS will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns, and any assignment or transfer in violation of this section will be void.

14.6 (Governing Law) These T&Cs and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

14.7 (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 these T&Cs, their subject matter or formation.

14.8 (Notices, electronic communication) Notices shall be sent my email to us at [email protected]. You shall receive electronic notices from us to your email address associated with your Account. Notices are effective when sent, whether or not received by you. You must ensure your email address associated with your Account is always correct. You confirm that any form of communication from us, including without limitation notices, disclosures comply with any legal communication requirements to which you are subject.

14.9 (Service provider) Nothing in these T&Cs is intended to, or shall be deemed to, establish any partnership or joint venture between us, constitute any party the agent of another party, or authorise any party to make or enter any commitments for or on behalf of the other party.

14.10 (Force Majeure) NexGen shall not be liable for any failure to perform its obligations hereunder due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, electronic viruses, worms or corrupting microcode, fire, flood, earthquake, epidemic, pandemic, accident, strikes, radiation, inability to secure transportation, failure of communications or electrical lines, facilities, fuel, energy, labour or materials (each, a “Force Majeure Event”). If a Force Majeure Event occurs, NexGen’s time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby. NexGen shall: (A) give notice of suspension of its obligations as soon as reasonably practicable stating the date and extent of such suspension and the cause thereof; (B) use its best efforts to remedy or remove such force majeure with the least practicable delay; and (C) resume the performance of its obligations as soon as reasonably practicable after the remediation or removal of the cause.

14.11 (Rights of Third Parties) Unless it expressly states otherwise, these T&Cs do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these T&Cs.

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