Additional Services Terms
These Additional Services Terms (Hosting Services)(“Additional Terms”) together with the general terms of Trams Ltd (“General Terms”)[ http://www.trams.co.uk/terms] establish and control the terms and conditions under which Trams Ltd (“Trams”, “we”, “our” and “us”) agrees to provide Hosting Services (“Services”) to the person or entity paying the applicable fees for such services (“you” and “your”). By using the Services, you agree to these Additional Terms.
We are not obligated to provide or to continue providing Services unless you have paid us the applicable fees for the Services, you have paid us the applicable subscription fees or license fees to use the software, and you have paid the applicable fees to receive maintenance and support services to support the software.
The following definitions apply in these Additional Terms:
“Act” refers to the UK Data Protection Act 1998;
“Data Protection Laws” refers to:
(i) the Regulation (unless and until it is no longer directly applicable in the UK);
(ii) any UK implementing laws, regulations and secondary legislation under the Regulation (as amended or updated from time to time);
(iii) any successor legislation to the Regulation; and
(iv) the Act; and
“Regulation” refers to the EU General data Protection Regulation (2016/679).
Terms used in these Additional Terms relating to data privacy/protection (but not otherwise defined), such as personal data, data processor and data subject, shall have the meaning(s) given to them in the Act or the Regulation (as applicable).
II. Hosting Services:
Subject to these Additional Terms, we will host the JAMF Software Server (“JSS”/”System”) on two or more servers located within Europe and any TramsCloud Distribution Points on two or more servers located within Europe and/or other locations specified by you. Your JSS data at rest will reside on servers located within Europe and any TramsCloud Distribution Point data will reside within Europe and/or other locations specified by you. Subject to these Additional Terms, we will
(a) provide current versions of the JSS, Tomcat™, MySQL™ and a server operating system;
(b) provide you access to the JSS and any TramsCloud Distribution Points 24 hours a day, 7 days a week, except for regularly scheduled maintenance;
(c) provide you advance notice of any scheduled maintenance of the System;
(d) use commercially reasonable efforts to schedule maintenance of the System during non-peak usage hours;
(e) provide commercially reasonable back-up and storage for the System;
(f) provide commercially reasonable firewall protection for the System;
(g) use commercially reasonable efforts to provide protection from attack;
(h) monitor the System to ensure it is operational at all times, except for regularly scheduled maintenance; and
(i) comply with our obligations under the Data Protection Laws in relation to all personal data that you process and that we host for you on the System in connection with the Services.
III. System Availability Commitment:
Subject to these Additional Terms, we will provide at least 99.5% System Availability measured on a per calendar month basis. “System Availability” is calculated by subtracting from 100% the percentage of 5 minute periods during the month in which the JSS or TramsCloud Distribution Point was unavailable to you. The JSS or TramsCloud Distribution Point is “unavailable” if one of your authorized users cannot access and use material functions of the JSS or TramsCloud Distribution Point for a continuous period of five minutes or longer, excluding periods of scheduled maintenance.
The System Availability commitment does not apply if Service unavailability is:
(a) caused by your applications, equipment or facilities; or
(b) caused by your negligence, wilful misconduct or by others authorised by you; or
(c) caused by an action made at the specific request or direction of you; or
(d) a result of scheduled maintenance; or
(e) associated with DNS issues outside the direct control of Trams; or
(f) a result of other national networks/exchanges that adversely affect the ability to pass IP traffic on the Internet as a whole; or
(g) due to a third party service provided to Trams solely for the benefit of, and at the request of you; or
(h) due to a DDoS Attack; or
(i) caused by any Virus, system outage, system error, software defects or equipment failures affecting you or your equipment other than where such failure would be a breach of the relevant Services;
(j) due to Force Majeure; or
(k) due to other events or circumstances beyond our reasonable commercial control.
III. Service Availability Credit:
Subject to your valid submission of a System Availability Credit request, we will issue you a credit (“System Availability Credit”) if your System Availability for any calendar month is below 99.5% solely as a direct result of an act or omission of us under these Additional Terms but not to the extent that any reduction in System Availability arises out of any act or omission of you or a third party or circumstances beyond our control. Credits will be calculated in accordance with the following schedule:
98.5% to 99.5% - 3 days of service added
95.0% to 98.4% - 7 days of service added
94.9% or below - 15 days of service added
IV. Service Credit Request:
To receive a System Availability Credit, your account with us must be in good standing, and you must open a technical support case by sending an email to firstname.lastname@example.org. The credit request must include, in the body of the email, the dates and times of each incident of unavailability, and the functions that you were performing or were unable to perform during each incident. We may request additional information from you to verify unavailability or identify the cause of these incidents, and you agree to cooperate with our requests. We will issue you the Service Availability Credit or provide you with notice stating the reason for denial of the Service Availability Credit within 30 days after we have received all requested information from you. The System Availability Credit is the only remedy we will provide to you in connection with service interruptions.
V. Data Recovery and Restoration Request:
We will conduct regularly scheduled backups of the System and your data (including personal data) on the System, but we do not guarantee their availability. The scope and scheduling of backups is at our sole discretion. You may initiate a restoration request by opening a technical support case by sending an email to email@example.com. All data restorations are subject to availability of the relevant data. We will not maintain historical backup copies of the System or your data on the System for the purpose of point in time data recovery or archival.
VI. Authorized Use:
Subject to these Additional Terms, you and your authorized representatives that have obtained from us a user name and established a password, may access and use the System solely for your internal business purposes. Your use of the JSS or third-party software is subject to the terms and conditions of your license agreement that governs the JSS or the licensor of the third-party software. You represent that you have the right to grant Trams the right to make a copy of any third- party software you provide to us for the purpose of hosting the application for you. You are responsible for maintaining the confidentiality of the password(s) assigned to you and your representatives, and ensuring that the passwords assigned to your representatives are not shared or disclosed to anyone. You agree to immediately notify us if a password is lost, stolen, disclosed to an unauthorized person or has otherwise been compromised. You are solely responsible for any and all activities made under the user names made available to you and your representatives.
VII. Use Restrictions:
By accessing and using the System, you agree not to do any of the following:
(a) upload any files that contain viruses or other harmful computer code;
(b) unreasonably burden or interfere with the operation of the System, or any of the servers, computers, routers, network, Internet or software that is a part of, or that interacts with, the System;
(c) defeat or circumvent any controls or security measures of the System, software installed on the System or any portion of the foregoing, or attempt to do any of these things;
(d) exceed the authorization provided to you by these Additional Terms to use the System; or
(e) continue to access or use the System after we have notified you that your access or authorization has been terminated or suspended.
VIII. Customer Infrastructure:
You must provide, at your expense, the necessary:
(a) internal network, hardware, software applications, current operating systems and supported web browsers (excluding the software that we provide as listed in the section entitled “Hosting Services”.);
(b) computers and servers; and
(c) Internet service, all as sufficient or necessary to access and use the System, as applicable technical requirements are communicated or changed by us from time to time in our sole discretion.
You will provide information or other materials related to your content (including copies of client-side applications) as reasonably requested by us to verify your compliance with these Additional Terms and the General Terms. We may monitor data in transit on our network to verify your compliance with these Additional Terms. You will not block or interfere with our monitoring, but you may use encryption technology or firewalls to help keep your content confidential. You will reasonably cooperate with us to identify the source of any problem with the Services that we reasonably believe may be attributable to your content or any end user materials that you control.
If we reasonably believe any of your content infringes any applicable law or misappropriates the rights of any third party or otherwise infringes a material term of these Additional Terms, we will notify you of this and may request that such content be removed or access to it be disabled. If you do not remove or disable such content within 2 days of receiving notice, we may take steps to remove or disable access. In the event that we remove content without prior notice, we will provide prompt notice to you unless prohibited by law.
X. Privacy and Data Protection:
X(i) In connection with providing the Services to you, and in uploading any personal data to the System, you recognise that all data is encrypted in transit using HTTPS/SSL encryption and stored in encrypted databases. Our infrastructure support staff are the only personnel who have physical access to your data, for the purposes of providing support only. Data can be accessed by our staff, but for very limited processing purposes only.
We therefore consider that we have extremely limited control over any personal data you upload to the System. The only personal data that is in your possession or control to which we may have access (and therefore assume processing responsibilities for under the Regulation) are:
a. contact details, and related information provided to us, for allowing access to the System;
b. the management of these Additional Terms; and/or
c. for providing access to and/or liaising with any helpdesk or support teams as required for the performance of our obligations in respect of the Services.
X(ii) We will not use your personal data except:
a. as described in these Additional Terms;
b. as permitted by our General Terms;
d. in accordance with the requirements of the Data Protection Laws.
To the extent that you process any personal data relating to Trams (or its staff) at any time under or in connection with the Services, or your access to the System, you agree only to process that data in accordance with the requirements of the Data Protection Laws.
X(iii) In relation to all personal data that you upload to the System, you warrant to us that:
a. it is accurate and up-to date;
c. you have made sufficient enquiries and are satisfied that we have the appropriate resources and expertise to ensure the continued security of your personal data
X(iv) In relation to any and all personal data that we process under or in connection with the Services, we shall:
a. process that data in accordance with section X(i) of these Additional Terms, and any other written instructions you may provide to us (from time to time);
b. ensure that we have appropriate technical and organisational measures in place to protect against the unauthorised or unlawful processing of, or accidental loss, destruction or damage to, any of your personal data;
c. ensure that all personnel, contractors, agents or representatives who have access to the System, are:
1. limited to those who need access in order for Trams to meet its obligations under the Services;
2. informed of the confidential and sensitive nature of personal data; and
3. are aware of the Data Protection Laws (including their obligations and data subjects’ rights under them);
d. not transfer any personal data outside of the EEA, or a territory deemed to ensure the adequate protection of personal data (as determined by the European Commission from time to time) without your prior written consent;
e. provide suitable and prompt assistance to you (at your cost) where you are required to respond to any request from any data subject in connection with any of their rights under the Data Protection Laws, or any investigations conducted by the Information Commissioner’s Office at any time;
f. provide copies of all personal data held by us, in the format reasonably specified by you, at any time (at your cost);
g. notify you promptly upon discovery if we become aware of any personal data breach, including where any personal data is lost, destroyed or becomes damaged, corrupted or unusable;
h. notify you if we receive a complaint, notice or communication which relates (directly or indirectly) to how we process personal data, and co-operate with you in relation to such complaint; and
i. keep and maintain complete and accurate records of personal data processed on your behalf.
X(v) For the purposes of sub-section X(iii)(b), what is appropriate shall be determined by the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (at the relevant time).
X(vi) You shall, at all times indemnify and keep indemnified Trams against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by Trams arising from any breach of its obligations owed to data subjects under the Data Protection Laws, whether caused by you or your agents or sub-contractors in connection with these Additional Terms and the Services.
We will provide the Services for the period of time specified in the Order Form (“Agreement”). If the term of the order (“Term”) is not specified then a minimum period of 12 months from the date of order (“Order Date”) will apply. Unless the Agreement is ended by not less than 90 days before the end of the 12 month period then it will automatically renew for a further 12 month period.
We may suspend or terminate the Services in accordance with these Additional Terms.
We may suspend the Services and your access to or use of any portion or all of the System immediately upon notice to you if we determine:
(a) your use of the System (i) poses a security risk to the System or any third party, (ii) may adversely impact the System or the systems or data of any other customer, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be illegal or fraudulent;
(b) you are in breach of these Additional Terms, including if you are delinquent on your payment obligations; or
(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
If we suspend the Services or your access to, or use of, any portion or all of the System for the reason described in this section:
(a) it will not be deemed to be a breach of any of our obligations to you;
(b) you remain responsible for all fees and charges you have incurred through the date of suspension.
Our right to suspend the Services or your access to or use of the System is in addition to our right to terminate the Services pursuant to the section entitled “Termination.”
We may terminate the supply of the Services and the Agreement immediately upon notice to you if you breach these Additional Terms or if any act or omission by you results in a suspension described in the section entitled “Suspension”.
We may terminate the Services upon 30 days’ notice to you:
(a) if our relationship with a third party partner who provides servers, software or other technology we use to provide the System expires, terminates or requires us to change the way we provide the Services;
(b) if we believe providing the Services could create a substantial security risk for us or any third party; or
(c) in order to comply with applicable law or requests of governmental entities.
XIV. Effect of Termination:
Upon the effective date of termination of the Services for any reason, your access to and permission to use the System is revoked and you are no longer authorized to access the System for any purpose. Access to our servers and computer network, including the System, after termination of the Service will constitute “unauthorised access to computer material" under section 1 of the Computer Misuse Act 1990.
After termination of the Services, you remain responsible for all fees and charges you have incurred through the effective date of termination.
Where these Additional Terms are terminated (for any reason), we will:
(a) immediately export all of your data from our live System to a separate secure server for 30 days; and
(b) delete this data after the 30 day storage period expires (subject to any data retained by our backup server).
Any data deleted as a result of termination of these Additional Terms will be backed up on our server for 90 days from the termination date, after which point it will be erased, unless you provide us with a written request according to the procedures described in the section entitled “Data Recovery and Restoration Request”, at which point we will provide to you a copy of the most recent backup of your data on the System that is available to us.
XV. Your Proprietary Rights:
As between you and us, you or your licensors own all right, title, and interest in and to your data. Except as provided in the section entitled “Our Proprietary Rights”, we obtain no rights to your data from you or your licensors. You consent to our use of your data to provide the Services to you. We may disclose your data to provide the Services to you or any of your representatives or to comply with any request of a governmental or regulatory body (including court orders).
XVI. Our Proprietary Rights:
As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Services, the System, and the software installed on the System. Except for the limited right to access and use the System in accordance with these Additional Terms, you obtain no rights (including any related intellectual property rights) from us or our licensors to the Services, the System, or the software installed on the System. You may not transfer your right to access and use the System outside the scope of the Services without specific prior authorisation.
All recommendations, ideas, suggestions or feedback that you or your representatives provide to us regarding the Services, System or software installed on the System will be owned by us and you hereby assign these to us.
You authorize us to collect, store, aggregate, analyze, and disclose anonymous data and information about your use of the System (“Usage Data”). Usage Data does not contain any information which identifies you or any individual user. You agree that Usage Data will be owned by us and you hereby assign the Usage Data to us.
XVII. Disclaimer of Warranties:
Except as expressly set forth in these Additional Terms, the General Terms and the Order Form, we make no warranties regarding the Services or System, including, but limited to, any caching servers. We disclaim all implied warranties including the implied warranties of merchantability and fitness for a particular purpose. We do not warrant against interference with your enjoyment of the System or Services, that the functions contained in the System or Services will meet your requirements, that the operation of the System or Services will be uninterrupted or error-free, or that defects in the System will be corrected. No oral information or advice given by us or one of our representative will create a warranty.
XVIII. Limitation of Liability:
Nothing in these Additional Terms shall operate to exclude or limit Trams’s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
In no event will we, [[our affiliates, or our successors or assigns]] be liable for:
(a) loss of revenue;
(b) loss of actual or anticipated profits;
(c) loss of contracts;
(d) loss of the use of money;
(e) loss of anticipated savings;
(f) loss of business;
(g) loss of opportunity;
(h) loss of goodwill;
(i) loss of reputation; or
(j) any indirect or consequential loss,
in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise. Whilst we further exclude any liability to you in relation to the loss or corruption of, or damage to, any data you upload to the System, nothing in these Additional Terms will limit any liability we may have to the data subject as a result of our failure to comply with sub-section X(iv)(b) at any time.
In no event, will Trams’ total liability to you for damages (other than as may be required by applicable law in cases involving personal injury, fraud or death) exceed the amount you have actually paid to use the System and the Services in the 12 months period immediately preceding a claim against us.
XX. Site Content:
You shall ensure that any content that we host as part of the Services does not infringe any applicable laws, regulations or third party rights such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or terrorism, menacing, blasphemous or in breach of any third party intellectual property rights (“Inappropriate Content”).
You shall indemnify Trams against all damages, losses and expenses arising as a result of any action or claim against it related to your use or uploading of Inappropriate Content.
We may change, revise, or replace these Additional Terms with 30 days notice to you. Your continued use of the System and Services after any such change takes effect constitutes your acceptance of such changes.
XXII. Third Parties:
A person who is not a party to agreement with us shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
If any provision of these Additional Terms shall be determined invalid, unlawful or unenforceable to any extent, then such provision shall be deemed deleted. Any modification or deletion of a provision under this clause shall not affect the validity and enforceability of the rest of these Additional Terms.
If there is any conflict or inconsistency between any of the provisions of these Additional Terms and any other terms and conditions including the General Terms, then these Additional Terms shall prevail.
XXV. Governing Law:
These Additional Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.