Terms of Service
Last Modified 17/04/22
Agreement Notes
These Terms of Services govern the provision of website hosting and associated services provided by Encrypted Laser Limited, a company registered in England, with its registered number 10286642 and its registered address at 024 River Mill One, Station Road, London, SE13 5FL.
Encrypted Laser Limited will be referred to within this document as ('CyberWary') and using first-person pronouns.
The Client will be referred to within this document as ('Customer'), ('Client'), ('User') and using second-person pronouns.
Your use of any website, network or services owned or operated by CyberWary, including without limitation https://www.cyberwary.com (referred to as 'this site' or 'this website') signifies Your acceptance and compliance with these Terms of Service. CyberWary reserves the right to make changes to this site at any time. You warrant that You have read, understood and accepted the terms of this agreement before continuing use of services offered. CyberWary are not to be held at fault if You fail to read or comprehend the following contract made between You and CyberWary. This agreement applies to the use of the website and any service or server provided. You must comply with these terms when accessing our services via a computer, laptop, mobile device, tablet, watch or any other electrical device. You consent to resolve any dispute that You may have with CyberWary, our suppliers or the services offered, in the courts of England. If You are a consumer residing in one of the countries within the United Kingdom, You may bring Your claim in the country of Your residence – England, Scotland, Wales or Northern Ireland. The laws of England and Wale shall be applicable to this agreement and any disputes arising out of or in connection with it.
If You are a consumer, You have certain legal rights with respect to the purchase of Our services. For full details of Your legal rights and guidance on exercising them, it is recommended that You contact Your local Citizens Advice Bureau or Trading Standards Office. If the services are not performed in line with information that We have provided about them, You also have the right to request repeat performance or, if that is not possible or done within a reasonable time without inconvenience to You (or if Our breach concerns information about Us that does not relate to the performance of the services), You have the right to a reduction in price. If for any reason We are required to repeat the services in accordance with Your legal rights, We will not charge You for the same and We will bear any and all costs of such repeat performance. In cases where a price reduction applies, the reduction may be any sum up to the full price and, in cases where You have already made payment(s) to Us, may result in a full or partial refund. Refunds in these cases will be made by any applicable balance being applied to Your CyberWary account balance. Any such refunds, where applicable, will be issued without undue delay (and in any event within fourteen (14) calendar days starting on the date on which We agree that You are entitled to the refund) and applied to Your CyberWary customer account unless You request an alternative method as agreed on a case by case basis and at the sold discretion of CyberWary. Nothing in these Terms seeks to exclude or limit Your legal rights as a consumer. The terms of this paragraph apply to consumer customers only and not to business customers.
1. Service Updates
- We may, at Our sole discretion, alter, improve or otherwise modify Our services provided that any such change will not alter the services received by You to Your material disadvantage (which would include, but not limited to, the removal of certain features from hosting packages that We offer) except where the service is fully discontinued. In such cases, an alternative with similar service quality and price will be offered to You. You will be notified no later than fourteen (14) calendar days in advance of any planned changes and shall receive full details of any action required on Your part. You will not be subject to any additional charges during the billing period of a service for which You have already paid, or during the remaining duration of a custom service contract, resulting from a price increase, nor to any refunds resulting from a price decrease.
- We may take any action necessary to diagnose and/or rectify faults in the hosting hardware without any prior notice to You. If such diagnoses or rectification results is expected to cause an interruption to the provision of the service(s), You will be notified in advance.
- Periodically, CyberWary reserves the right to revise this Agreement and it is agreed by the Client that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. When a modification is made, it is agreed that the "Last Modified" date at the top of the document will be updated.
- Should You wish to terminate this Agreement due to any revisions made by Us, You must do so in writing via submitting a service cancellation through the agreed method as defined in this agreement within thirty (30) days of the "last modified" date described above by closing your account. Your continued use of the Services after the effective date of any such notice constitutes Your acceptance of such changes.
2. Our Responsibilities
- CyberWary agrees to furnish services, provided free as part of the associated research project, subject to complete compliance with these Terms of Service. CyberWary reserves the right to refuse Services to any potential Client and/or to deny renewal of any services to an existing Client, at the sole discretion of CyberWary.
- To the fullest extent allowed by law, CyberWary provides all services "AS IS" and "AS AVAILABLE" basis, without any form of warranty, whether expressed or implied and disclaims all implied or expressed warranties that the services are merchantable, of satisfactory quality, accurate, fit for a purpose or need, or non-infringing. No verbal or written information given by a representative of CyberWary will be regarded as a warranty. If You are a consumer, We have an obligation to provide Our services with reasonable skill and care and in line with information supplied to You. We will use reasonable endeavours to ensure that Our services are provided to You on a constant, uninterrupted basis.
- CyberWary, Our affiliates, and Our suppliers shall not be liable for any indirect, special, incidental, consequential or exemplary losses arising from Your use of, or inability to use, any services provided. These exclusions apply to any claims for lost profits, data loss, loss of goodwill, computer breakdown or malfunction, or any other business damages or losses, even if CyberWary knew or should have known of the possibility of such damages. Nothing in this agreement excludes Our liability for death or personal injury resulting from Our negligence or that of Our employees or agents. Nothing in this agreement excludes Our liability for fraud or fraudulent misrepresentation. If You are a consumer, We do not exclude Our liability for any loss resulting from Our failure to use reasonable skill and care, from Our gross negligence, or from Our wilful misconduct.
- CyberWary is not to be held liable for backing up the Client's information or service data. If data loss occurs, the Customer will be entirely responsible for their data. The Customer agrees that breach of, or non-compliance, with these Terms and Conditions will result in a permanent service termination.
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You shall fully indemnify Us against all costs, expenses, liabilities, losses, damages and judgements that We may incur or be subject to as a result of any of the following:
- Your misuse of the service;
- Your breach of these Terms and/or the Agreement;
- Your negligence or other act of default; and/or
- The activities of third parties conducted on or through Your services.
3. Acceptable Use Policy
- Any attempt to exploit any service not in accordance with this agreement or for malicious purposes in any way is grounds for immediate termination of an account and its services.
- The User will not scan any system hosting material which is abusive, vulgar, hateful, harassing, obscene, profane, threatening, invasive of a person's privacy, or otherwise in violation of any UK law on any service.
- CyberWary are not to be held responsible for any downtime caused by a DoS or DDoS attack. CyberWary will offer a best effort attempt to stop all incoming DDoS or DoS attacks by utilising data center provided DDoS protection hardware, however, will not stand in the way of attacks if the service is provoking attacks.
- You shall be responsible for all activity relating to any Client website.
- You must not perform a scan on any device that you do not own or whereby you do not have written consent from its legal owner.
- You must ensure that We are furnished with any information reasonably required to provide the service in a timely manner.
- You shall not acquire any rights in or over any intellectual property rights subsisting in any materials and/or property owned by Us or by any third parties (where, for example, We are using materials under licence). Any materials owned by Us used by You in the normal course of the service are used under a non-exclusive licence only to the extent required in order for Us to provide the service to You.
- We shall not acquire any rights in or over any intellectual property rights subsisting in any materials and/or property owned by You or by any third parties (where, for example, You are using materials under licence). Any such rights are used under a non-exclusive licence only to the extent required in order for Us to provide the service to You.
- You hereby agree to fully indemnify Us against all costs, expenses, liabilities, losses, damages, claims and judgements that We may incur or be subject to as a result of the infringement of any intellectual property rights arising out of Your failure to obtain the necessary rights and permissions from third parties with respect to any materials used by You as hosted by Us under this agreement.
4. Electronic Notifications
- Your affirmative act of using the Services constitutes Your electronic signature to these Terms of Service and Your approval to enter into agreements with CyberWary electronically. You also agree that CyberWary may send to You in digital form any privacy or other notices, disclosures, reports, records, communications or other records regarding the Services. CyberWary can send You electronic Notices to the email address that You provided to CyberWary during the initial sign up. The delivery of any Notice from CyberWary is effective when communicated by CyberWary, regardless of whether You read the Notice when You receive it or whether You are provided with the service details. You can revoke Your consent to receive Notices electronically by cancelling or discontinuing Your use of the applicable Services. All contracts performed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed agreement.
5. Data Protection
- In so far as required both parties agree that they will comply with all applicable requirements of the General Data Protection Regulation (Directive 2016/679), the Data Protection Act 2018 and any other applicable data protection laws ("the Data Protection Legislation"). This Section 10 is in addition to and does not relieve, remove or replace a party's obligations under the Data Protection Legislation.
- The parties acknowledge that for the purposes of the Data Protection Legislation, You, the customer, is the data controller and We are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The personal data that We will have access to in order to provide Our services under this agreement may include but is not limited to such categories of data subjects as Your customers, employees, subcontractors and other parties' details, including names, contact information, and other types of personal data as may be necessary for the provision of services by Us and for the duration of the provision of Our services.
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In addition to Our promises in Clause 5.1, We, as a data processor undertake to process personal data in connection with Our performance of Our obligations under this agreement as follows:
- Process personal data only on Your instructions unless We are required by the laws of any member of the European Union or by the laws of the European Union applicable to Us to process personal data (“Applicable Laws”). Where We are relying on laws of a member of the European Union or European Union laws as the basis for processing personal data, We will notify You, if possible, of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Us from so notifying You;
- Ensure that We have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result and having regard to the state of technological development and the cost of implementing any measures;
- Ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- Not transfer any personal data outside of the European Economic Area unless the following conditions are fulfilled: a) We or You have provided appropriate safeguards in relation to the transfer; b) We comply with Our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and c) We comply with Your reasonable instructions in respect of any such processing.
- Assist You, at Your cost, in responding to any request from a data subject and in ensuring compliance with Our obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- Notify You without undue delay on becoming aware of a personal data breach;
- Maintain records where appropriate to demonstrate Our compliance with this Section (and allow for audits as may be agreed between the parties).
- In addition to Your promises in Clause 5.1 You agree to ensure that You have all necessary appropriate consents and notices in place, as well as a lawful basis to enable lawful transfer of the personal data to Us for the duration and purposes of this agreement.
- You consent to Us appointing third party processors as detailed within Our Privacy Policy (https://www.cyberwary.com/pp). We confirm that We have entered or (as the case may be) will enter with each of the third party processors into a written agreement substantially on the terms similar to those set out in this Section 5. As between You and Us, We shall remain full liable for all acts or omissions of any third party processor appointed by Us in accordance with this Section 5.
- We may revise this Section to replace it with any applicable controller to processor standard Clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced).
- Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Section 5.
6. General
- This contract, policies, rules and guidelines posted on Our website constitute the entire contract between You and CyberWary and supersede all previous or contemporaneous written or oral agreements. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a method consistent with applicable law to reflect, as tightly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
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Except as authorised in writing by the other party, each party shall, at all times during the term of this agreement and for five (5) years after its termination;
- Keep confidential all confidential information of the other party;
- Not disclose any confidential information of the other party to any other party;
- Not use any confidential information of the other party for any purpose other than as contemplated by and subject to this agreement;
- Not to make any copies of, record in any way or party with possession of any confidential information of the other party; and
- Ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does not act which, if done by that party, would be a breach of this Clause 6.2.
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Either party may disclose any confidential information of the other party to:
- Any sub-contractor or supplier of the party;
- Any governmental or other authority or regulatory body; or
- Any employee or officer of that party or of any other aforementioned persons, parties or bodies;
- To such extent only as is necessary for the purposes contemplated by this agreement, or as required by law. In each case that party shall first inform the person, party or body in question that the confidential information is confidential and obtaining and submitting to the other party a written confidentiality undertaking.
- Either party may use any confidential information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the acceptance of this agreement, or at any time after that date becomes public knowledge through no fault of the receiving party.
- The provisions of the Clauses 6.2 and 6.3 shall continue in force in accordance with their terms, notwithstanding the termination of this agreement for any reason.
- Subject to any obligations by You to pay for Our services, neither party to this agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
- No failure or delay by either party in exercising any of its rights under this agreement shall be deemed to be a waiver of that right.
- No part of this agreement is intended to apply to any third party and the Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement to the fullest extent possible.
- Subject to Clause 6.7, this agreement shall continue and be binding on the transferee, successors and assigns of either party as required.
- All notices or communications shall be given to Us by electronic Email communication.
- In the event that one or more of the provisions of this agreement is found to be unlawful, invalid or otherwise unenforceable, that/ those provision(s) shall be deemed severed from the remainder of this agreement. The remainder of the agreement shall be valid and enforceable.
- You agree that the applicable law and jurisdiction shall be as stated at the beginning of these Terms.