Apex Hosting Limited
Web Hosting Agreement
Please read this Agreement carefully, as it sets out our and your legal rights and obligations in relation to our hosting Services.
You should print a copy of this Agreement for future reference. We will not file a copy of this Agreement specifically in relation to you, and it may not be accessible on our website in future. This Agreement is available in the English language only.
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ANTI-SPAM POLICY: You must not use any of our Services to send, relay, store or process Spam. Clause 1 of this Agreement sets out our definitions of "Spam", "Spammers" and "Spamming". We use technological measures to prevent the misuse of our Services by Spammers. Details of these measures in relation to dedicated servers and virtual servers are set out in the Schedule. We may also pass the details of Spammers to anti-Spam organisations. We may suspend Services and/or terminate this Agreement if you use our services for Spamming.
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1. Definitions and interpretation
1.1 In this Agreement:
"Agreement" means this agreement and any amendments to it from time to time;
"Apex" means Apex Hosting Limited, a company incorporated in England and Wales (registration number 6434038);
"Business Day" means any week day, other than a bank or public holiday in England;
"Charges" means the amounts payable by the Customer to Apex under or in relation to this Agreement as specified on the Apex website from time to time in relation to the Services purchased by the Customer or as expressly agreed between the parties;
"Customer" means Apex's customer for the Services under this Agreement, as specified on the Apex website registration form;
"Effective Date" means the date when this Agreement comes into force in accordance with Clause 2.2;
"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 and 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 website(s), application(s), software, script(s), database(s), image(s), video(s), audio material(s), text, databases, datasets and other data, works and materials hosted or to be hosted by Apex in accordance with the terms of this Agreement, whether by means of shared hosting, virtual private server hosting, dedicated hosting, co-location services or otherwise;
"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 works, materials or content that Apex determines in its absolute discretion constitute:
(a) material which breaches any applicable laws, regulations or legally binding codes, or infringes any third party Intellectual Property Rights or other rights, or is liable to give rise to any legal action under any applicable law; and
(b) materials or messages or communications which are offensive, abusive, racist, indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to another internet user, or constitute Spam;
"Resources" means the resources specified on the Apex website (which may include storage capacity, bandwidth allowance, processor usage allowance, memory usage allowance and database usage) in relation to the Services package purchased by the Customer;
"Schedule" means the schedule to this Agreement;
"Services" means the services detailed in Clause 3 and the Schedule;
"Spam" means emails and other electronic messages (whether commercial or non-commercial) that:
(a) are unsolicited;
(b) are sent in bulk (otherwise than to a properly and legally obtained and maintained opt-in subscriber list);
(c) contravene the provisions of the Data Protection Act 1998 and/or the Privacy and Electronic Communications (EC Directive) Regulations 2003 and/or any other applicable legislation; and/or
(d) we reasonably consider constitute spam,
and "Spammers" and "Spamming" will be construed accordingly;
"Term" means the term of this 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 this 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 this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilised in this Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
2. This Agreement
2.1 In order to enter into this Agreement, the Customer must complete and submit the registration form on the Apex website (indicating the Customer's agreement to the terms of this Agreement by ticking the appropriate check box).
2.2 This Agreement will come into force if and when Apex creates an account for the Customer enabling the Customer to utilise the Services, and will continue in force indefinitely, unless and until terminated in accordance with Clause 13. For the avoidance of doubt, Apex reserves the right to refuse to enter into this Agreement with a person seeking to become a Customer.
2.3 Where the Customer is a consumer then, subject to the limitations set out in this Clause 2.3, the Customer may cancel this Agreement by sending to Apex a written notice of cancellation at any time within 7 Business Days after the Effective Date; providing that Apex has not, at or before the time of the cancellation, commenced the provision of any Services under this Agreement. The Customer expressly agrees that Apex may begin providing the Services before the expiry of the 7 Business Day period. If the Customer cancels this Agreement under this Clause 2.3, the Customer will be entitled to a full refund of any Charges paid to Apex under the Agreement, which Apex will refund to the Customer by cheque within 30 days of the date of receipt of the notice of cancellation. The Customer acknowledges that this Agreement may not be cancelled under this Clause 2.3 in respect of domain name registrations or SSL certificates.
3. Services
3.1 Apex will provide to the Customer the Services that are the subject of any order agreed between the parties.
3.2 The Services will be provided in accordance with:
(a) the applicable provisions of the Schedule; and
(b) the relevant package specifications published on the Apex website from time to time (which may be varied by Apex at any time without notice to the Customer).
3.3 Apex will use its best endeavours to maintain the availability of shared hosting, dedicated hosting, virtual private servers and co-location Services 24/7 (subject to Clause 3.4 and the other provisions of this Agreement) but does not guarantee to do so.
3.4 Apex may suspend some or all of the Services in order to carry out scheduled maintenance or repairs.
3.5 The Customer's utilisation of Resources must not exceed the limits set out on the website in relation to the package the Customer has purchased, and in the event that utilisation does exceed those limits, Apex may (without prejudice to its other rights under this Agreement) suspend the provision of the Services to the Customer for such period and in such manner as Apex may in its sole discretion determine.
3.6 Apex will provide reasonable telephone and email-based ticket support to enable the Customer to make use of the Services. The Customer acknowledges that Apex does not undertake to provide any technical training or education to the Customer as part of this support service, and furthermore that the Customer may be required to have a reasonable level of knowledge and expertise in order to take advantage of this support service. The Customer also acknowledges that Apex will not provide any support in relation to any third party software or services.
4. Guarantee
4.1 If, within 30 days of the Agreement first coming into force in respect of any shared hosting service, or within 7 days in respect of any virtual server, the Customer notifies Apex using the interface on the Apex website that the Customer wishes to cancel the Agreement, then:
(a) the Agreement will be automatically cancelled from the date of receipt of the notification; and
(b) Apex will refund the Charges paid to Apex by the Customer under the Agreement in respect of any shared web hosting package or virtual server (excluding for the avoidance of doubt any Charges relating to co-location services, dedicated servers, domain names, SSL certificates or any addons related to any services) within 30 days of receipt of the Customer's notice of cancellation using the same means as the Customer used to pay the Charges in the first place.
4.2 A Customer may not exercise the right to cancel under Clause 4.1 if:
(a) the Customer has, during the 12 month period preceding the date of the notice or proposed notice, been a party to any contract with Apex; or
(b) the Customer has (or Apex reasonably suspects that the Customer has) breached any term of the Agreement or any other agreement between Apex and the Customer.
4.3 The right to cancel the Agreement under Clause 4.1 does not affect any statutory rights that Customers who are consumers may have (including any right of cancellation under Clause 2.3).
5. Customer Responsibilities
5.1 The Customer will provide Apex with all co-operation, information and documentation reasonably required for the provision of the Services.
5.2 The Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the Services.
5.3 The Services are provided to the Customer only. The Customer must not (unless the Customer has a reseller account) resell or sub-license the Services to any third party.
5.4 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.
5.5 It is the Customer's responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis (and the Customer must notify Apex immediately if it becomes aware that a password relating to the Services has been or may have been compromised or misused).
5.6 The Customer must keep fully up-to-date all the Customer's account details and registration details with Apex and with any third party service provider whose services are resold by Apex or provided to the Customer in connection with the Services.
5.7 The Customer hereby grants to Apex a licence to copy, store, back-up, publish and otherwise use the Hosted Materials for the purpose of fulfilling its obligations, and exercising its rights, under the Agreement. The Customer further grants to Apex the right to sub-license these rights for these purposes. The licences in this Clause 5.7 will continue after the termination of this Agreement until such time as the Hosted Materials are deleted from Apex's servers and back-up media.
5.8 The Customer must ensure that all scripts and/or software uploaded by or on behalf of the Customer to any Apex server are secured with the appropriate permissions settings.
5.9 The Customer must make regular back-ups of the Hosted Materials and all configuration settings relating to the Hosted Materials. Subject to the first paragraph of Clause 9, Apex shall not be liable for any losses arising out of any failure of the Customer to fulfil the obligations set out in this Clause. Save as expressly agreed by Apex in writing or required by law, Apex shall have no obligation to supply back-up copies of the Hosted Materials to the Customer during the Term or thereafter.
6. Acceptable Use
6.1 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 that may negatively affect the network, equipment, services and/or servers of Apex or any Apex client, whether by reason of taking up an unreasonable amount of server resources or otherwise (and Apex will determine, acting reasonably, whether or not any particular activity falls within this Paragraph 6.1(c);
(d) in any way which may be reasonably expected to put Apex in breach of a contractual or other obligation owed by Apex to any of its service providers.
6.2 Apex reserves the right to suspend the Services and/or remove Hosted Materials where it reasonably suspects a breach of Clause 6.1.
6.3 The Customer acknowledges that Apex does not purport to monitor the Hosted Materials or the use of the Services.
6.4 Without prejudice to its other rights under this Agreement, where Apex reasonably suspects that there has been a breach of the provisions of this Clause 6, Apex may suspend any or all of the Services while it investigates the matter (without prejudice to the Customer's obligations to pay the Charges).
6.5 Where a Customer has breached Clause 6.1 by hosting, storing, sending, relaying or processing Spam, Apex reserves the right to send to any established anti-Spam organisation such details of the Customer's account as Apex consider reasonably necessary to enable such organisations to properly conduct their business (which may include the Customer's name, address, email address, telephone number and IP address).
6.6 The Customer acknowledges that the actions of third parties in relation to the Services could negatively affect the network, equipment, services and/or servers of Apex or an Apex client, for instance where a Customer website is subject to a denial of service attack. In these circumstances, Apex may suspend any or all of the Services (without prejudice to the Customer's obligations to pay the Charges) and/or terminate the Agreement by giving written notice of termination to the Customer under Clause 11.1, providing that such termination shall be effective immediately and the notice period referred to in Clause 11.1 shall not apply.
7. Charges and payment
7.1 Apex will issue invoices to the Customer by email as follows:
(a) if monthly billing applies, the first invoice will be issued on the Effective Date and subsequent invoices will be issued on or around the same day of each following calendar month;
(b) if quarterly billing applies, the first invoice will be issued on the Effective Date and subsequent invoices will be issued on or around the same day of each following quarter year;
(c) if bi-annual billing applies, the first invoice will be issued on the Effective Date and subsequent invoices will be issued on or around the same day of each following half year;
(d) if annually billing applies, the first invoice will be issued on the Effective Date and subsequent invoices will be issued on or around each anniversary of the Effective Date;
(e) if biennially billing applies, the first invoice will be issued on the Effective Date and subsequent invoices will be issued approximately biennially thereafter; and
(e) if triennially billing applies, the first invoice will be issued on the Effective Date and subsequent invoices will be issued approximately triennially thereafter,
providing that Charges in respect of domain names and SSL certificates must be paid in advance, and invoices in respect of any additional Services purchased by the Customer may be issued by Apex at any time after such purchase.
7.2 The Customer must pay the Charges within 5 days of the date of issue of the relevant invoice, unless:
(a) the relevant Charges are payable in advance; or
(b) the relevant Charges are in respect of a dedicated server or co-location services, in which cases the Charges must be paid on the date of issue of the invoice.
7.3 Apex is not currently registered for VAT, and no VAT will be payable upon the Charges. If Apex registers for VAT during the Term, VAT will be payable by the Customer in addition to the Charges.
7.4 The Customer consents to Apex storing the Customer's credit/debit card details to take payments due under this Agreement.
7.5 Apex will attempt to take payment on the date on the invoice. (If payment is not taken in this way, Charges must be paid by following the hyperlinks in the email invoice Apex will send to the Customer or in the customer's billing control panel.)
7.6 Apex may increase the applicable Charges by giving to the Customer not less than 30 days' written notice of the increase, providing that such increases will not affect Charges that have been paid to Apex before the date of the increase.
7.7 Apex may suspend or remove access to any or all Services if any payment (including payments under the Agreement and payments under any other contract between the Customer and Apex) is not made by the Customer to Apex in full and on time . Where Apex has suspended or removed access to a Service under this Clause 7.7, the Service will not be resumed unless and until all outstanding amounts are paid in full by the Customer to Apex. For the avoidance of doubt, the Customer will have no right of access to their account or any Hosted Materials during the suspension of any Services.
7.8 Where an invoice has been issued by Apex to the Customer in respect of hosting Services, the Customer will have no right to request that the applicable billing period to which the invoice relates be changed (for example from annual to monthly billing).
7.9 Where the Customer's has paid amounts to Apex by way of account top-up or account credit, the Customer acknowledges that such amounts are non-refundable, and that such amounts will not be repaid if the Agreement is terminated (except as specified in Clause 12).
8. Warranties and indemnity
8.1 The Customer warrants to Apex that:
(a) it has the legal right and authority to enter into and perform its obligations under this Agreement;
(b) all the information the Customer providers to Apex in connection with this Agreement and the Services will be true, accurate, complete and non-misleading; and
(c) it will not upload or install any malicious or insecure scripts and/or software on any Apex server.
8.2 Apex warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement; and
(b) that it will perform its obligations under this Agreement with reasonable care and skill.
8.3 All of the parties' liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
8.4 The Customer will indemnify Apex and will keep Apex indemnified against all damages, losses and expenses (including legal expenses) incurred by Apex and arising as a result of any breach by the Customer of any provision of this Agreement.
9. Limitations of liability
9.1 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.
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:
(a) are subject to Clause 9.1; and
(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.
9.3 Apex will not be liable to the Customer in respect of any loss of profits, income, revenue, use, production or anticipated savings.
9.4 Apex will not be liable to the Customer for any loss of business, contracts or commercial opportunities.
9.5 Apex will not be liable to the Customer for any loss of or damage to goodwill or reputation.
9.6 Apex will not be liable to the Customer in respect of any loss or corruption of any data, database or software.
9.7 Apex will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
9.8 Apex's liability to the Customer in any Year will in no circumstances exceed the greater of GBP £200 and the total amount paid by the Customer to Apex under this Agreement during that Year.
9.9 Where a Force Majeure Event gives rise to a failure or delay in Apex performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event, and Apex will not be liable under or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence), in respect of any losses arising out of a Force Majeure Event.
9.10 The Customer acknowledges that, whilst Apex will use reasonable technologies and procedures to secure its servers, its servers and/or the Customer's web space may from time to time be subject to attack by hackers, and Apex does not (subject to Clause 9.2) guarantee that server or web space security will never be breached and will not be liable from any losses arising out of such a breach.
9.11 The Customer further acknowledges that hardware failures may from time to time affect the provision of the Services. Apex's only obligation in respect of hardware failures will be to use reasonable endeavours to promptly repair or replace the relevant hardware. Subject to this and Clause 9.1, the Customer agrees that Apex will not be in breach of this Agreement as a result of any such hardware failure, and will not be liable to the Customer in respect of any such hardware failure.
10. Data protection
10.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Apex under this Agreement, and that the processing of that Personal Data by Apex for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws (including the Data Protection Act 1998).
10.2 Apex warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Apex 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 Apex on behalf of the Customer.
10.3 Notwithstanding the other provisions of this Agreement, Apex reserves the right to disclose information concerning the Customer, the Customer's account and the Hosted Materials to the police where appropriate, and in any circumstances where Apex is required to disclose the information by virtue of any law or regulation, or judicial or governmental request or order.
11. Termination
11.1 Apex may terminate this Agreement at any time by giving at least 30 days' written notice to the Customer.
11.2 Apex may terminate this Agreement immediately by giving written notice to the Customer if the Customer:
(a) commits any breach of any term of this Agreement;
(b) becomes insolvent or bankrupt, or enters into any insolvency or bankruptcy procedure or proceedings;
(c) (being an individual) dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs; or
(d) acts in an racist, sexist, abusive or otherwise offensive manner toward any member of Apex's staff or any Apex contractor.
11.3 Apex may terminate this Agreement by closing the Customer's account in the event that:
(a) the Customer fails to pay any amount due to Apex under the Agreement within 14 days following the end of the period for payment specified in Clause 7.2; or
(b) fails to pay any amount due to Apex under any other contract between Apex and the Customer within 14 days following the date the payment became due under that other contract.
(c) any invoice outstanding will be referred to Daniels Silverman Limited and will be subject to a surcharge of 20% plus VAT to cover the collection costs incurred. This surcharge together will all other charges and legal fees incurred will be the responsibility of the customer and will be legally enforceable.
11.4 The Customer may terminate this Agreement:
(a) if the Agreement relates in whole or part to co-location Services, by giving to Apex least 30 days' notice of termination; or
(b) otherwise, immediately,
in each case by either: (i) creating an appropriate support ticket using the Customer's administration panel on the Apex website; or (ii) by giving such other notice of termination as may be expressly accepted by Apex from time to time.
11.5 If there is no recorded activity on the Customer's Services account for a continuous period of 24 months, then Apex may terminate this Agreement immediately by closing the Customer's account (whether or not the Customer has credits on the account).
12. Effects of termination
12.1 Upon the termination of this Agreement under by Apex under Clause 11.1, the Customer will be entitled to a refund of:
(a) any element of the Charges paid in respect of any Services to be provided in the period after the effective date of termination (which amount will be calculated by Apex using any reasonable methodology); and
(b) any credits held in the Customer's account at the effective date of termination.
12.2 Save as provided in Clause 2.3, Clause 4 and Clause 12.1:
(a) the Customer will not be entitled to any refund of the Charges on termination of this Agreement or otherwise (or released from any obligation to pay Charges which have been incurred, become payable or been invoiced); and
(b) the Customer will not be entitled to a refund of any credits held in the Customer's account at the effective date of termination.
12.3 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 5.7, 8, 9, 12 and 13.
12.4 Termination of this Agreement will not affect either party's accrued rights (including accrued rights to be paid) as at the date of termination.
12.5 Save as expressly provided in the Agreement, the Customer shall have no right to have access to the Hosted Materials (including emails and permission settings) after termination of the Agreement.
12.6 Where the Agreement is terminated by Apex under Clause 11.3, Apex will retain a copy of the Hosted Materials for the 14 day period referred to in that Clause, providing that the Hosted Materials may be deleted by Apex:
(a) at the end of that 14 day period; or
(b) if the Customer gives to Apex notice of termination before the end of that 14 day period, at any time after such notice has been given.
12.7 If a Customer requests access to the Hosted Materials after the termination of the Agreement and Apex (in its sole discretion) agrees to provide access, such access will be subject to payment of such fee as may be notified by Apex to the Customer at that time.
13. General
13.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
13.2 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this 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).
13.3 Apex may vary this Agreement by posting a new version on its website and notifying the Customer of the new version. Subject to this, this Agreement may only be varied by a written document agreed by each of the parties.
13.4 Apex may freely assign its rights and obligations under this Agreement without the Customer's consent (providing where the Customer is a consumer that such an assignment does not serve to reduce the guarantees benefiting the Customer under this Agreement). Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.
13.5 Apex may subcontract any of its obligations under this Agreement to any third party.
13.6 This 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 this Agreement are not subject to the consent of any third party.
13.7 Subject to Clause 9.1:
(a) this Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of this Agreement; and
(b) each party acknowledges that no representations or promises not expressly contained in this Agreement have been made by or on behalf of the other party.
13.8 This Agreement will be governed by and construed in accordance with the laws of England and Wales.
Schedule
The Services
1. Shared hosting
Where Apex agrees to provide shared hosting to the Customer, the provisions of this Paragraph 1 will apply (in addition to the other terms of this Agreement):
(a) Apex will provide hosting on a shared server and make available the Resources for this purpose;
(b) Apex will enable the Customer to update, edit and amend the Hosted Materials from time to time via FTP or the control panel file manager;
(c) Apex will provide POP3, IMAP and Webmail email services to the Customer, together with anti-Spam protection for associated mailboxes (providing that: (i) the Customer will be limited to a maximum of 1000 outgoing emails per day, per hosting account; and (ii) Apex reserves the right to adjust and lock the Customer's Spam settings and/or to disable "catch-all" mailboxes, where these result in excessive Spam (in Apex's opinion) being received or processed by or through the email services);
(d) Apex reserves the right to transfer the Hosted Materials between servers without giving notice to the Customer;
(e) Charges payable in respect of shared hosting and related services will be as specified on the Apex website from time to time;
(f) Charges payable in respect of shared hosting will be payable monthly, quarterly, bi-annually, annually, biennially or triennially in advance;
(g) where Apex provides an "unlimited bandwidth" service to the Customer, and in the reasonable opinion of Apex the use of bandwidth by the Customer is excessive, or where such use impacts materially upon the services being provided by Apex to its other customers, or upon the cost of providing services to its customers, Apex may: (i) contact the Customer to discuss the issue; and/or (ii) issue a notice to the Customer capping the Customer's bandwidth usage; and in the event that the Customer breaches a notice issued in accordance with this Paragraph 1(g) the Customer will be deemed to be in material breach of this Agreement.
(h) where Apex provides an "unlimited bandwidth" service to the Customer, the Customer must not use the Services for any of the following purposes: (i) data (including video) streaming; (ii) hosting files unrelated to a website published through the Services; (iii) hosting files intended to be or in fact available for download other than via a website published through the Services; (iv) setting up sub-domains and/or other directories for the use of any third party or by means of pointing a domain name with a URL frame to the sub domain and/or directory. Apex will determine, acting reasonably, whether or not any particular activity falls within this Paragraph 1(h).
2. Dedicated hosting
Where Apex agrees to provide a dedicated server to a Customer, the provisions of this Paragraph 2 will apply:
(a) the Customer will be responsible for the activity and security of the dedicated server (whether or not Apex provides a firewall service in respect of the dedicated server);
(b) the Customer hereby indemnifies and will indemnify Apex against all losses arising out of activity upon, or any breach of security of, the Customer's dedicated server;
(c) Charges payable in respect of dedicated servers and related services will be as specified on the Apex website from time to time;
(d) Charges payable in respect of additional bandwidth will be charged at £20 per Mbit using the 95th Percentile billing rule (1Mbit is roughly equal to 330GB) and are subject to change without prior notice. More information on 95th percentile billing can found here: http://en.wikipedia.org/wiki/Burstable_billing;
(e) Charges payable in respect of dedicated servers will be payable monthly, quarterly, bi-annually, annually, biennially or triennially in advance, and Apex may suspend or remove access to a dedicated server if any payment is not made in full and on time;
(f) all dedicated servers will be set up with an apexadmin (on Windows servers) or root2 (on Linux servers) account, and the Customer must not (and must not attempt to) remove, disable or change the account or account password in any way or otherwise limit or prevent Apex from accessing the account or server;
(g) Apex may log in to the dedicated server at any time to inspect the server and the usage of the server, and if Apex cannot gain access to the dedicated server a result of the apexadmin/root2 account being altered in any way, Apex reserves the right to suspend the server immediately (and terminate the Agreement under Clause 11);
(h) the Customer must not use Internet Relay Chat daemon software (IRCDs) or file sharing applications on or in relation to the Customer's dedicated server without the prior express written consent of Apex;
(i) the Customer must not change, attempt to change or add new IP address(es) other than those specifically allocated by apex for a dedicated server;
(j) unless Apex expressly agrees otherwise, the Customer will be responsible for backing up the Customer's data and the configuration of the dedicated server;
(h) any re-installation of software by Apex on a dedicated server will be subject to such charge as Apex may notify to the Customer (unless the need for re-installation arises out of the default of Apex under the Agreement); and
(k) Apex will automatically block port 25/tcp and port 587/tcp inbound/outbound on each dedicated server for the purpose of Spam prevention (providing that Apex may agree to remove such blocks upon the presentation to Apex of the passport or driving licence of the Customer or, where the Customer is a company, a director of the Customer).
3. Virtual servers
Where Apex agrees to provide a virtual server to a Customer, the provisions of this Paragraph 3 will apply:
(a) the Customer will be responsible for the activity and security of the virtual server (whether or not Apex provides a firewall service in respect of the virtual server);
(b) the Customer hereby indemnifies and will indemnify Apex against all losses arising out of activity upon, or any breach of security of, the Customer's virtual server;
(c) Charges payable in respect of the virtual servers and related services will be as specified on the Apex website from time to time;
(d) Charges payable in respect of additional bandwidth will be at Apex's standard rates for additional bandwidth from time to time (and are subject to change without prior notice);
(e) Charges payable in respect of virtual servers will be payable monthly, quarterly, bi-annually, annually, biennially or triennially in advance, and Apex may suspend or remove access to a virtual server if any payment is not made in full and on time;
(f) all virtual servers will be set up with an apexadmin (on Windows servers) or root2 (on Linux servers) account, and the Customer must not (and must not attempt to) remove, disable or change the account or account password in any way or otherwise limit or prevent Apex from accessing the account or server;
(g) Apex may log in to the virtual server at any time to inspect the server and the usage of the server, and if Apex cannot gain access to the virtual server a result of the apexadmin/root2 account being altered in any way, Apex reserves the right to suspend the server immediately (and terminate the Agreement under Clause 11);
(h) the Customer must not use Internet Relay Chat daemon software (IRCDs) or file sharing applications on or in relation to the Customer's virtual private server without the prior express written consent of Apex;
(i) the Customer must not change, attempt to change or add new IP address(es) other than those specifically allocated by apex for a virtual server;
(j) unless Apex expressly agrees otherwise, the Customer will be responsible for backing up the Customer's data and the configuration of the virtual server;
(k) Apex will automatically block port 25/tcp and port 587/tcp inbound/outbound on each virtual private server for the purpose of Spam prevention (providing that Apex may agree to remove such blocks upon the presentation to Apex of the passport or driving licence of the Customer or, where the Customer is a company, a director of the Customer).
4. Co-location services
Where Apex agrees to provide co-location services to a Customer, the provisions of this Paragraph 4 will apply:
(a) the Customer will be responsible for the activity and security of any co-located server and for ensuring that that server functions properly (whether or not Apex provides a firewall service in respect of the co-located server);
(b) the Customer hereby indemnifies and will indemnify Apex against all losses arising out of activity upon, or any breach of security of, the Customer's co-located server, and any malfunction of the Customer's co-located server;
(c) the Customer acknowledges the Customer is responsible for ensuring that any co-located server does not suffer damage or data loss or corruption in the event of a power failure, power surge or similar electrical fault or phenomenon, and that Apex will not be liable in respect of losses arising out of such a fault or phenomenon;
(d) the Customer may gain access to the co-located server by prior appointment only, must supply reasonably sufficient identification to gain access to the data centre housing the co-located server, and any such access may at the option of Apex be supervised by Apex or a representative of Apex;
(e) access to a co-located server will be subject to any terms imposed by the relevant data centre from time to time;
(f) Charges payable in respect of co-located servers will be as agreed between Apex and the Customer (as they may be varied from time to time through the agreement of the parties);
(g) Charges payable in respect of additional bandwidth will be charged at £20 per Mbit using the 95th Percentile billing rule (1Mbit is roughly equal to 330GB) and are subject to change without prior notice. More information on 95th percentile billing can found here: http://en.wikipedia.org/wiki/Burstable_billing;
(h) any fixed element of the Charges payable in respect of co-located servers will be payable monthly, quarterly, bi-annually, annually, biennially or triennially in advance, and any variable element monthly in arrears;
(i) if Apex reasonably suspects that the co-location Services are being used in a manner that breaches the terms of the Agreement, then: (i) Apex may suspend the co-location Services without liability to the Customer for any losses arising from the suspension; and (ii) the Customer must within 24 hours of receipt of a written request from Apex supply to Apex the root/admin password for the relevant co-located server, to enable Apex to investigate;
(j) the Customer must not use Internet Relay Chat daemon software (IRCDs) or file sharing applications on or in relation to the Customer's co-located server without the prior express written consent of Apex;
(k) the Customer agrees that Apex may hold the Customer's hardware and refuse to return such hardware to the Customer in the event that any amount is owed by the Customer to Apex under the Agreement (and where such amount is outstanding for more than 90 days, title to the hardware will be automatically transferred to Apex, providing that any amounts raised by Apex from the sale of such hardware (less costs of sale and administration fees) will be set off against the amount owed by the Customer to Apex).
5. Domain name registration
Subject to the payment of the applicable Charges in advance, Apex will attempt to register domain names that the Customer orders using the interface on the Apex website, but does not warrant that it will be able to do so. Domain name orders will be subject to the following provisions:
(a) Charges in respect of domain name registrations are non-refundable;
(b) domain name registrations may be subject to periodic fees and transfer fees (including fees for transfers to new registrants, registrars and registration agents) as notified by Apex to the Customer or as stated on the Apex website from time to time;
(c) 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 third party's Intellectual Property Rights or other legal rights;
(d) 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);
(e) the Customer acknowledges that certain information submitted for the purposes of a domain name registration will be published on the internet via "WHOIS" services;
(f) Apex may reject in its sole discretion any request to register a particular domain name;
(g) Apex 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;
(h) Apex will have no responsibility for 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;
(i) 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. In the case of .uk domain names, the Customer agrees to abide by the Nominet Terms and Conditions of Domain Name Registration, available at: http://www.nominet.org.uk/registrants/aboutdomainnames/legal/terms/;
(j) the Customer further agrees to abide by the terms and conditions of Apex's third party supplier of domain name Services from time to time (Apex's supplier at the date of drafting is eNom, and its terms are available at: http://www.enom.com/terms/default.asp); and
(k) the Customer may not transfer a domain name registered with Apex to any third party registrar or registration agent during the period of 60 days following the date of registration of the domain name.
6. SSL certificates
Subject to the payment of the applicable Charges in advance, Apex will attempt to obtain SSL certificates that the Customer orders using the interface on the Apex website. SSL certificate orders will be subject to the following provisions:
(a) Charges in respect of SSL certificates are non-refundable;
(b) SSL certificates will be subject to periodic fees as stated on the Apex website from time to time;
(c) the Customer warrants that the information submitted for the purposes of an SSL certificate is current, accurate and complete;
(d) the Customer undertakes to keep the information required for the purposes of an SSL certificate up-to-date; and
(e) where an SSL certificate is supplied from GeoTrust, the Customer agrees to the terms of the applicable subscription agreement (as amended from time to time):
(i) the Quick SSLTM Subscriber Agreement, located at http://www.geotrust.com/resources/cps/pdfs/quickssl_SA.pdf
(ii) the QuickSSL PremiumTM Subscriber Agreement, located at http://www.geotrust.com/resources/cps/pdfs/quickssl_premium_SA.pdf
(iii) the TrueBusinessIDTM Subscriber Agreement, located at http://www.geotrust.com/resources/cps/pdfs/True_businessid_SA_4.1.pdf
(iv) the TrueBusinessID® Wildcard Subscriber Agreement, located at http://www.geotrust.com/resources/legal/terms.htm
(f) where an SSL certificate is supplied from RapidSSL, the Customer agrees to abide by the applicable terms and conditions of RapidSSL (as amended from time to time): http://www.rapidssl.com/legal/
7. Gaming services
Where Apex agrees to provide gaming services to a Customer, the provisions of this Paragraph 6 will apply in addition to the provisions of Paragraph 1 (Shared hosting) (excluding (c) unless Apex specifically agrees to provide email services):
(a) where the Customer has selected a Half Life TV (HLTV) add-on, it must not be used to connect to any other server other than the Customer's server provided by Apex; and
(b) the Customer must not remove or alter in any way the "Apex Hosting" branding at the beginning of the gaming server's hostname, unless the Customer has paid for a de-branded gaming server (and any breach of this term will be deemed to be a material breach of this Agreement).
