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.
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) having its registered office at 28 River Lea Gardens, Clitheroe, BB7 1QQ;
“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 in relation to the package 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);
“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) erotic images, or other pornographic or lewd material;
(b) 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
(c) materials or 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;
“Resources” means the resources specified on the Apex website (which may include storage capacity, bandwidth allowance and processor usage allowance) in relation to the Services package purchased by the Customer;
“Services” means the services detailed in Clause 3;
“Term” means the term of this Agreement;
“Website” means the website (or websites) hosted or to be hosted by Apex in accordance with the terms 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 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 the Customer has not, at or before the time of the cancellation, taken advantage of any of the Services to be provided under this Agreement. 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 (other than Charges paid in respect of domain names, SSL certificates, colocation & gaming services), which Apex will refund to the Customer by cheque within 30 days of the date of receipt of the notice of cancellation.
2.4 At the request of the Customer, Apex will use reasonable endeavours to assist with the transition of the Website from any third party host.
3. Services
3.1 Apex will from the Effective Date provide the following Services to the Customer:
(a) hosting the Website on a shared server (and making available the Resources for this purpose);
(b) enabling the Customer to update, edit and amend the Website from time to time via FTP or the control panel file manager;
(c) providing a POP3 and webmail email services to the Customer, together with anti-spam protection for associated mailboxes; and
(d) reasonable email-based ticket support to enable the Customer to make use of the above Services.
3.2 The Services in Clause 3.1 will be provided in accordance with the package specifications published on the Apex website from time to time (which, subject to Clause 3.1, 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 the hosting 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 reserves the right to transfer the Website and associated data between servers without giving notice to the Customer.
3.7 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 will be subject to periodic fees and transfer fees (of UK £10.00, payable where you ask us to release a domain name to another registration agent or a registrar) 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; and
(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 Customer agrees to abide by all such rules and policies.
3.7 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) 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
3.8 Apex may from time to time agreed in writing to provide co-location services to a Customer, in which case the following provisions of this Clause 3.8 will apply (in addition to the other terms of this Agreement):
(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 do 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); and
(g) any fixed element of the Charges payable in respect of co-located servers will be payable monthly or annually in advance, and any variable element monthly in arrears.
4. Guarantee
4.1 If, within 30 days of the Agreement first coming into force, 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 that Agreement in respect of any standard web hosting package (excluding for the avoidance of doubt any Charges made in respect of extras such as domain names, domain pointers, dedicated IP addresses, additional bandwidth, SSL certificates, colocation and gaming 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 at any time previously entered into an agreement with Apex for the provision of services and has exercised a cancellation right identical or similar to the right set out in Clause 4.2; or
(b) the Customer has breached any term of the Agreement.
4.3 The right to cancel the Agreement under this Clause 4 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 other Services.
5.2 The Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the other 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 Save to the extent that Apex expressly agrees otherwise, where Apex provides a dedicated server to the Customer, the Customer shall be responsible for the activity and security of that server, and for ensuring that that server functions properly.
5.7 Save to the extent that Apex expressly agrees otherwise, the Customer shall indemnify Apex against all losses arising out of activity upon, or any breach of security of, any dedicated server used by the Customer.
6. Acceptable Use
6.1 The Customer must not use the Website or 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 be reasonably expected to put Apex in breach of a contractual or other obligation owed by Apex to any of its internet service providers.
6.2 Apex reserves the right to suspend the Services and/or remove content from the Website where it reasonably suspects such content is Prohibited Content.
6.3 The Customer acknowledges that Apex does not purport to monitor the content of the Website or the use of the Services.
6.4 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:
(a) contact the Customer to discuss the Customer to discuss the issue; and/or
(b) 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 Clause 6.4(b) the Customer will be deemed to be in material breach of this Agreement.
6.5 Where Apex provides an “unlimited bandwidth” service to the Customer, the Customer must not use the Services for any of the following purposes:
(a) data streaming;
(b) hosting files unrelated to the Website;
(c) hosting files intended to be or in fact available for download other than via the Website;
(d) 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 Clause 6.5.
6.6 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).
7. Charges and payment
7.1 Apex will issue invoices to the Customer by email as follows:
(a) if the Customer has opted for monthly billing, 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; and
(b) if the Customer has opted for Yearly billing, 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;
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 Except where Charges are payable in advance, the Customer must pay the Charges within 5 days of the date of issue of the relevant 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 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.
8. Warranties and indemnity
8.1 The Customer warrants to Apex that it has the legal right and authority to enter into and perform its obligations under this Agreement.
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. Liability
9.1 Nothing in this Agreement will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party's negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability which may not be excluded or limited under applicable law.
9.2 Subject to Clause 9.1, Apex's liability to the Customer under or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) Apex will not be liable for any:
(i) loss of profits, income or anticipated savings,
(ii) loss or corruption of any data, database or software,
(iii) reputational damage or damage to goodwill,
(iv) loss of any commercial opportunity, or
(v) indirect, special or consequential loss or damage; and
(b) Apex's liability in any Year will in no circumstances exceed the greater of UK £200 and the total amount paid by the Customer to Apex under this Agreement during that Year.
9.3 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.
9.4 The Customer acknowledges that Apex will not back-up the Website or associated data, and that it is the Customer's responsibility to do so (and, subject to Clause 9.1, Apex will not be liable for any losses arising out of the Customer's failure to do so).
9.5 The Customer further acknowledges that hardware failures may from time to time affect the provision of the Services, and subject to Clause 9.1 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 Website 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 (including any failure to pay any amount due to Apex under this Agreement);
(b) becomes insolvent or bankrupt, or enters into any insolvency or bankruptcy procedure or proceedings; or
(c) (being an individual) dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs.
11.3 This Agreement will automatically terminate in the event that the Customer fails to pay any amount due to us in respect of hosting Services within the period specified in Clause 7.2.
11.4 The Customer may terminate this Agreement immediately by giving us written notice of termination using the Customers administration panel on the Apex website.
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 any element of the Charges paid in respect of any Services to be provided period after the effective date of termination (which amount will be calculated by Apex using any reasonable methodology).
12.2 Save as provided in Clause 2.3, 4 and Clause 12.1, 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 become payable).
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, 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 Apex will retain a copy of the Website and all data associated with the Website for a period of 14 days after the date of effective termination of this Agreement. After that period, Apex will delete the Website and all data associated with the Website.
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 This Agreement may not be varied except by a written document signed by or on behalf of 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 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. Subject to Clause 9.1, 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.