Web Hosting Terms
Please read these Web Hosting
Terms carefully, as they set out our and your legal rights and obligations in
relation to our web hosting services.
You should print a copy of these
Web Hosting Terms for future reference. We will not file a copy specifically in
relation to you, and they may not be accessible on our Website in future.
These Web Hosting Terms are
available in the English language only.
AGREEMENT:
1. Definitions
and interpretation
1.1 In the Agreement:
"Agreement"
means the agreement between the Company and the Customer incorporating these
Web Hosting Terms and the Registration Form and any amendments to it from time
to time;
"Business
Day" means any week day, other than a bank or public holiday in England;
"Business
Hours" means between 09:00 and 17:30 on a Business Day;
"Charges"
means the amounts payable by the Customer to the Company under or in relation
to the Agreement (as set out on the Registration Form);
"Company"
means "Mr Paul Ian Woodland trading as PW New Media, which has its principal
place of business at 88 Loxwood Avenue, Worthing, West Sussex, BN14 7RB;
"Confidential
Information" means:
(a) any information supplied (whether supplied in writing, orally
or otherwise) by one party to the other party marked as "confidential",
described as "confidential" or reasonably understood to be confidential; and
(b) The information provided in the documents listed on the
Registration Form;
"Control"
means the legal power to control (directly or indirectly) the management of an
entity (and "Controlled" will be construed accordingly);
"Customer"
means the customer for Services under the Agreement specified in the relevant
Registration Form;
"Effective
Date" means the date when the Agreement comes into force in accordance with
Clause 2.3;
"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 or
problems with the internet or a part of the internet, hacker 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);
"Hosted
Materials" means all websites, web applications, software, information,
data, databases and other works and materials stored, transmitted, published
or processed using the Services;
"Intellectual
Property Rights" means all intellectual property rights wherever in the
world, whether registered or unregistered, including any application or right
of application for such rights (and the "intellectual property rights" referred
to above include copyright and related rights, moral rights, database rights,
confidential information, trade secrets, know-how, business names, trade names,
domain names, trade marks, service marks, passing off rights, unfair
competition rights, patents, petty patents, utility models, semi-conductor
topography rights and rights in designs);
"Personal
Data" has the meaning given to it in the Data Protection Act 1998;
"Prohibited
Content" means:
(a) material which breaches any applicable laws, regulations or
legally binding codes, or infringes any third party Intellectual Property
Rights or other third party rights, or may give rise to any form of legal
action against the Company or the Customer or any third party;
(b) pornographic or lewd material;
(c) messages or communications which are offensive, abusive,
indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to
another internet user, or constitute spam or bulk unsolicited mail;
"Registration
Form" means the form on the Company's website enabling users to sign up as
Customers;
"Resources"
means the resources specified on the Registration Form;
"Services"
means the services provided under the Agreement, which may include shared
hosting, dedicated hosting, email services, domain name services and/or SSL
services, as specified on the Registration Form;
"Start Date"
means the date specified as such on the Registration Form;
"Term"
means the term of the Agreement; and
"Year"
means a period of 365 days (or 366 days if there is a 29 February during the
relevant period) starting on the Effective Date or on any anniversary of the
Effective Date.
1.2 In the Agreement, 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.
1.3 The Clause headings do not affect the interpretation of the
Agreement.
1.4 The ejusdem generis rule is not intended to be used in the
interpretation of the Agreement; it follows that a general concept or category
utilised in the Agreement will not be limited by any specific examples or
instances utilised in relation to such a concept or category.
2. The Agreement
2.1 In order to apply to become a Customer, the applicant must
complete and submit the Registration Form.
2.2 If the applicant makes any input errors during the order
process, these may be identified and corrected by the applicant before the
Registration Form is submitted by pressing the back button in their browser to
makes the necessary changes.
2.3 This Agreement will come into force if and when the Company
sends to the Customer an acceptance email, following the submission of a
completed Registration Form by the Customer.
2.4 This Agreement will continue in force
indefinitely, unless and until terminated in accordance with Clause 20.
3. Implementation and transition
3.1 The Company will make available the Services on or before the
Start Date.
3.2 At the request of the Customer, the Company will:
(a) where the Company holds any Customer website(s) on its development
servers, transfer such website(s) from its development servers; or
(b) use reasonable endeavours to assist with the transition of
any Customer website(s) from any third party host.
4. Shared hosting
4.1 This Clause 4 applies where the Company agrees to make
available to the Customer shared hosting.
4.2 The Company will make available to the Customer hosting
capacity on a shared server meeting the specification set out on the website.
4.3 The Company will make available to the Customer the ability to
access, update or amend the Hosted Materials by FTP or similar means.
4.4 For the avoidance of doubt, the Customer will not have
administration rights in relation to any shared server, and the Company may
refuse any request to change the configuration of a shared server at its sole
discretion.
4.5 Charges payable in respect of shared hosting will be as
specified on the Registration Form or as agreed between the Company and the
Customer.
5. Dedicated hosting
5.1 This Clause 5 applies where the Company agrees to make
available to the Customer a dedicated server.
5.2 The Company will make available for the exclusive use of the
Customer a dedicated server meeting the specification set out on the Regsitration
Form in all material respects, and will grant to the Customer administration
rights with respect to that server.
5.3 The Customer acknoweldges that the Company will not provide
support in connection with the adminsitration of any dedicated server, and the
Customer warrants that it has all necessary expertise to configure, manage and
keep the dedicated server secure at all times.
5.4 The Company may from time to time require that the Customer
apply software and/or hardware upgrades to the dedicated server.
5.5 For the avoidance of doubt, dedicated servers made available
under the Agreement will remain the property of the Company at all times.
5.6 Charges payable in respect of dedicated servers will be as
specified on the Registration Form or as agreed between the Company and the
Customer.
7. Email services
7.1 This Clause 7 applies where the Company agrees to provide to
the Customer email transmission, storage and/or management services.
7.2 The Company will upon request provide POP3/IMAP and webmail
email services to the Customer.
7.3 If the Customer or a mailbox exceeds the relevant storage
limit set out on the website, the Company may delete stored emails to bring the
Customer or mailbox within the storage limit.
8. Domain name registration
8.1 Subject to the payment of the applicable Charges in advance,
the Company will attempt to register domain names that the Customer orders
using the interface on the the Company website, but does not warrant that it
will be able to do so. Domain name orders will be subject to the provisions of
this Clause 8.
8.2 Charges in respect of domain name registrations are
non-refundable.
8.3 Domain name registrations will be subject to periodic renewal
fees and transfer fees as stated on the the Company website from time to time.
8.4 The Customer warrants that the information submitted for the
purposes of a domain name registration is current, accurate and complete, that
it has the legal right to apply for and use the domain name, and that its use
of the domain name will not infringe any person's Intellectual Property Rights
or other legal rights.
8.5 The Customer undertakes to keep the information required for
the purposes of a domain name registration up-to-date (which changes may be
subject to additional Charges).
8.6 The Customer acknowledges that certain information submitted
for the purposes of a domain name registration will be published on the
internet via "WHOIS" services.
8.7 The Company may reject in its sole discretion any request to
register a particular domain name.
8.8 The Company will not offer any advice in relation to any
actual or potential domain name dispute, and will have no liability in respect
of the suspension or loss of a domain name by the Customer as a result of any
domain name arbitration procedure or court proceedings.
8.9 The Company will have no responsibility for the Customer's use
or retention of a domain name once registered, and it will be the Customer's
responsibility to ensure that domain names are renewed and that applicable
renewal charges are paid.
8.10 The Customer acknowledges that domain names will be subject to
the rules and policies from time to time of the relevant registry or
registration authority, and the Customer agrees to abide by all such rules and
policies.
8.11 Charges payable in respect of domain name services will be as
specified on the Registration Form.
9. SSL certificates
9.1 Subject to the payment of the
applicable Charges in advance, the Company will attempt to obtain SSL
certificates that the Customer orders using the interface on the Company's website.
SSL certificate orders will be subject to the provisions of this Clause 9.
9.2 Charges in respect of SSL certificates are non-refundable.
9.3 SSL certificates will be subject to periodic fees as stated on
the Company website from time to time.
9.4 The Customer warrants that the information submitted for the
purposes of an SSL certificate is current, accurate and complete.
9.5 The Customer undertakes to keep the information required for
the purposes of an SSL certificate up-to-date.
9.6 Charges payable in respect of SSL certificates will be as
specified on the Registration Form.
10. Support
10.1 The Customer must make all requests for support Services
through the helpdesk, and all such requests must include at least the following
information: account username, affected domain name and contact email address.
10.2 The Company will use reasonable endeavours to resolve issues
raised by the Customer.
10.3 The Company will:
(a) make back-ups of the Hosted Materials on a daily basis, and
will retain such back-ups for 14 days; and
(b) arrange for the off-site storage of a current back-up of the
Hosted Materials
10.4 The Company will not make back-ups of email messages that have
been downloaded by the Customer.
11. Services: general provisions
11.1 The Customer's utilisation of Resources must not exceed the
limits set out on the Registration Form. If the Customer's utilisation of
Resources exceeds those limits, the parties will endeavour to agree a variation
to the Agreement. If the parties cannot agree such a variation within a
reasonable period (being not more than 10 days) following notice from the
Company to the Customer requesting such variation, and Resource utilisation
continues to exceed those limits, the Customer will be deemed to be in material
breach of the Agreement for the purposes of Clause 20.
11.2 The Company may suspend some or all of the Services in order
to carry out scheduled maintenance or repairs. Subject to this, the Company
will use reasonable endeavours to maintain the Services at the availability
level specified on the website.
12. Customer Responsibilities
12.1 The Customer will provide the Company with all co-operation,
information and documentation reasonably required for the provision of the
Services, and the Customer will be responsible for procuring any third party
co-operation reasonably required for the provision of the Services.
12.2 The Customer will be responsible for obtaining suitable
licences of third party software (such as email client software) which are
required for the full use of the Services.
12.3 It is the Customer's responsibility to keep any passwords
relating to the Services confidential, and to change such passwords on a
regular basis. The Customer will notify the Company immediately if it becomes
aware that a password relating to the Services is or may have been compromised
or misused.
13. Acceptable Use
13.1 The Customer must not use any of the Services:
(a) to host, store, send, relay or process any Prohibited
Content;
(b) for any purpose which is unlawful, fraudulent, or infringes
any third party rights;
(c) in any way which may put the Company in breach of a
contractual or other obligation owed by the Company to any internet service
provider.
13.2 The Customer acknowledges that the Company does not purport to
monitor the content of Hosted Materials or the use of the Services.
13.3 Where the Company reasonably suspects that there has been a
breach of the provisions of this Clause 13, the Company may:
(a) delete or amend the relevant Hosted Materials; and/or
(b) suspend any or all of the Services and/or the Customer's
access to any or all Services while it investigates the matter.
13.4 Any breach by the Customer of this Clause 13 will be deemed to
be a material breach of the Agreement for the purposes of Clause 20.
14. Charges and payment
14.1 The Company will issue invoices for the Charges to the
Customer from time to time during the Term.
14.2 The Customer will pay the Charges to the Company of an invoice
issued in accordance with Clause 14.1.
14.3 All Charges stated in or in relation to the Agreement are
stated exclusive of VAT, unless the context requires otherwise.
14.4 Charges must be paid by debit or credit card, bank transfer or
by cheque (using such payment details as are notified by the Company to the
Customer from time to time).
14.5 If the Customer does not pay any amount properly due to the
Company under or in connection with the Agreement, the Company may:
(a) charge the Customer interest on the overdue amount at the
rate of 5% per year above the base rate of HSBC Bank Plc from time to time
(which interest will accrue daily until the date of actual payment, be
compounded quarterly, and be payable on demand); or
(b) claim interest and statutory compensation from the Customer
pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
14.6 The Company may vary the Charges by giving to the Customer at
least 30 days' notice of variation expiring at any time after the end of the
Minimum Term.
15. Warranties
15.1 The Customer warrants to the Company that it has the legal
right and authority to enter into and perform its obligations under the
Agreement.
15.2 The Company warrants to the Customer:
(a) that it has the legal right and authority to enter into and
perform its obligations under the Agreement; and
(b) that it will perform its obligations under the Agreement with
reasonable care and skill.
15.3 All of the parties' liabilities and obligations in respect of
the subject matter of the Agreement are expressly set out in the terms of the
Agreement. To the maximum extent permitted by applicable law, no other terms
concerning the subject matter of the Agreement will be implied into the
Agreement or any related contract.
16. Indemnity
The Customer hereby indemnifies and undertakes to keep
indemnified the Company against all liabilities, losses, costs, expenses
(including legal expenses and amounts paid upon advice in settlement of any
legal action) arising out of or in connection with:
(a) any breach by the Customer of any term of the Agreement; and
(b) any activity upon, or any breach of security of, the
Customer's dedicated server.
17. Limitations and exclusions of liability
17.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or
personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or
fraudulent misrepresentation by that party;
(c) limit any liability of a
party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party 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 the Agreement:
(a) are subject to Clause 17.1;
(b) govern all liabilities arising under the Agreement or in
relation to the subject matter of the Agreement, including liabilities arising
in contract, in tort (including negligence) and for breach of statutory duty;
and
17.3 The Company will not be liable in respect of any loss of
profits, income, revenue, use, production or anticipated savings.
17.4 The Company will not be liable for any loss of business,
contracts or commercial opportunities.
17.5 The Company will not be liable for any loss of or damage to
goodwill or reputation.
17.6 The Company will not be liable in respect of any loss or
corruption of any data, database or software.
17.7 The Company will not be liable in respect of any special,
indirect or consequential loss or damage.
17.8 The Company will not be liable for any losses arising out of a
Force Majeure Event.
17.9 The Company's liability in relation to any event or series of
related events will not exceed the greater of:
(a) £10; and
(b) the total amount paid or (if greater) payable by the Customer
to the Company under the Agreement during the 1 month period immediately
preceding the event or events giving rise to the claim.
17.10 The Company's aggregate liability under the Agreement will not
exceed the greater of:
(a) £10; and
18. Data protection
18.1 The Customer warrants that it has the legal right to disclose
all Personal Data that it does in fact disclose to the Company under the
Agreement, and that the processing of that Personal Data by the Company for the
purposes of and in accordance with the terms of the Agreement will not breach
any applicable laws (including the Data Protection Act 1998).
18.2 The Company warrants that:
(a) it will act only on instructions from the Customer in
relation to the processing of any Personal Data performed by the Company on
behalf of the Customer; and
(b) it has in place appropriate security measures (both technical
and organisational) against unlawful or unauthorised processing of Personal
Data and against loss or corruption of Personal Data processed by the Company
on behalf of the Customer.
19. Confidentiality
19.1 Each party will keep confidential the Confidential Information
of the other party, and will not disclose that Confidential Information except
as expressly permitted by this Clause 19.
19.2 Each party will protect the confidentiality of the
Confidential Information of the other party using at least reasonable security
measures.
19.3 The Confidential Information of a party may be disclosed by
the other party to its employees and professional advisers, provided that each
recipient is legally bound to protect the confidentiality of the Confidential
Information.
19.4 These obligations of confidentiality will not apply to
Confidential Information that:
(a) has been published or is known to the public (other than as a
result of a breach of the Agreement);
(b) is known to the receiving party, and can be shown by the
receiving party to have been known to it, before disclosure by the other party;
or
(c) is required to be disclosed by law, or by an order (binding
upon the relevant party) of a competent governmental authority, regulatory body
or stock exchange.
20. Termination
20.1 Either party may terminate the Agreement at any time by giving
written notice to the other party.
20.2 Either party may terminate the Agreement immediately by giving
written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to
remedy the breach within 10 days of receipt of a written notice requiring it to
do so; or
(b) fails to pay any amount due under the Agreement in full and
on time.
20.3 Either party may terminate the Agreement immediately by giving
written notice 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 Agreement);
(d) (where that other party is an individual) that other party
dies, or as a result of illness or incapacity becomes incapable of managing his
or her own affairs, or is the subject of a bankruptcy petition or order.
21. Effects of termination
21.1 Upon termination all the provisions of the Agreement will
cease to have effect, save that the following provisions of the Agreement will
survive and continue to have effect (in accordance with their terms or
otherwise indefinitely): Clauses 1, 14.5, 16, 17, 19.1 to 19.4, 21 and 22.3 to
22.12.
21.2 Termination of the Agreement will not affect either party's accrued
rights (including accrued rights to be paid) as at the date of termination.
21.3 If the Agreement is terminated under Clause 20.1, or by the
Customer under Clause 20.2 or 20.3 (but not in any other case):
(a) the Company will promptly provide to the Customer an
electronic copy of the Hosted Materials;
(b) the Company will provide such assistance as is reasonably
requested by the Customer to transfer the hosting of the Hosted Materials to
the Customer or another service provider, subject to payment of the Company's
reasonable expenses; and
21.4 The Customer will not be entitled to any refund of Charges on
termination, and will not be released from any obligation to pay Charges to the
Company.
22. General
22.1 Any notice given under the Agreement must be in writing
(whether or not described as "written notice" in the Agreement) and must be
delivered personally, sent by post, or sent by email, for the attention of the
relevant person, and to the relevant address, email address given below in the
case of the Company or specified on the website in the case of the Customer (or
as notified by one party to the other in accordance with this Clause).
The Company
PW New Media
88 Loxwood
Avenue
Worthing
West Sussex
BN14 7RB
United Kingdom
customerservice@desk.liquidsix.com
22.2 A notice will be deemed to have been received at the relevant
time set out below (or where such time is not within Business Hours, when
Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of
delivery;
(b) where the notice is sent by first class post, 48 hours after
posting; and
(c) where the notice is sent by email, at the time of the
transmission (providing the sending party retains written evidence of the transmission).
22.3 No breach of any provision of the Agreement will be waived
except with the express written consent of the party not in breach.
22.4 If a Clause of the Agreement is determined by any court or
other competent authority to be unlawful and/or unenforceable, the other
Clauses of the Agreement will continue in effect. If any unlawful and/or
unenforceable Clause would be lawful or enforceable if part of it were deleted,
that part will be deemed to be deleted, and the rest of the Clause will continue
in effect (unless that would contradict the clear intention of the parties, in
which case the entirety of the relevant Clause will be deemed to be deleted).
22.5 Nothing in the Agreement will constitute a partnership, agency
relationship or contract of employment between the parties.
22.6 The Agreement may not be varied except by a written document
signed by or on behalf of each of the parties.
22.7 The Company may freely assign its rights and obligations under
the Agreement without the Customer's consent. Save as expressly provided in
this Clause or elsewhere in the Agreement, neither party may without the prior
written consent of the other party assign, transfer, charge, license or
otherwise dispose of or deal in the Agreement or any rights or obligations
under the Agreement.
22.8 The Company may subcontract any of its obligations under the
Agreement to any third party.
22.9 Each party agrees to execute (and arrange for the execution
of) any documents and do (and arrange for the doing of) any things reasonably
within that party's power, which are necessary to enable the parties to
exercise their rights and fulfil their obligations under the Agreement.
22.10 The Agreement is made for the benefit of the parties, and is
not intended to benefit any third party or be enforceable by any third party.
The rights of the parties to terminate, rescind, or agree any amendment,
waiver, variation or settlement under or relating to the Agreement are not
subject to the consent of any third party.
22.11 The Agreement constitutes the entire agreement and
understanding of the parties in relation to the subject matter of the
Agreement, and supersedes all previous agreements, arrangements and
understandings between the parties relating to the subject matter of the
Agreement. Subject to Clause 17.1, each party acknowledges that no
representations or promises not expressly contained in the Agreement have been
made by or on behalf of the other party.
22.12 The Agreement will be governed by and construed in accordance
with the laws of England and Wales; and the courts of England will have
exclusive jurisdiction to adjudicate any dispute arising under or in connection
with the Agreement.
