Terms and Conditions for Hosting Services
These are the standard hosting terms and conditions of the supply of the Services by Phurix (‘the Host’)
These terms and conditions and any acceptable use policy imposed by the Host
from time to time (available on our website) (‘the Conditions’)
represent the terms and conditions on which the Host will deliver to the Customer
any or all of the Services Any variation to these Conditions shall be inapplicable
unless in writing and approved by the Host.
Services: Means domain name registration, web site hosting, email and any other service or facility provided by the Host to the Client as further detailed at clause 1.1.
Fees: Means all the fees and charges payable by the Client for the Services or otherwise and shall be in accordance with the scale of charges and rates published from time to time by us on our web site.
1.1 The Host agrees to provide to the Customer the Services on the terms described in this Agreement. The Host agrees to place the website of the Customer in accordance with this Agreement on the computer server owned or operated by the Host and allow storage of information received by the Customer or from the general public on such server on a monthly basis subject to the limits as more particularly described above and further agrees to provide on a monthly basis those maintenance services described above. All Services under this Agreement shall be performed in accordance with the Host’s standard procedures so long as such procedures do not conflict with the express terms of this Agreement. Nothing under this Agreement shall affect the Customer's statutory rights in particular but without limitation those under the Consumer Credit Act 1974 or the Data Protection Act 1998.
1.2 Domain Name Registration
1.2.1 The Customer acknowledges that a domain name may occasionally show as available when the domain name has in fact been recently registered with another user name and the Customer further acknowledges and accepts that this is through no fault or omission of the Host’s and agree that the Host or any of its officers should not be held in any way liable for this occurrence.
1.2.2 The registration and use of the Customer’s domain name (‘Domain Name’) is subject to the terms and conditions of use applied by the relevant naming authority; the Customer shall ensure that it is aware of those terms and conditions and that it complies with them. The Customer shall have no right to bring any claim against the Host in respect of refusal to register a domain name. Any administration charge paid by the Customer to the Host in respect of registering the domain name shall be nonrefundable notwithstanding refusal by the naming authority to register the domain name to the Customer.
1.2.3 The Host shall have no liability in respect of any intellectual property rights dispute concerning the use by the Customer of the Domain Name or any domain name; any dispute between the Customer and any other person must be resolved between the Customer and the third party concerned in such dispute. If any such dispute arises, the Host shall be entitled, at the Host’s discretion and without giving any reason, to withhold, suspend or cancel the Domain Name. The Host shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
1.2.4 The Host shall not release any domain to another provider unless full payment for that domain has been received by the Host.
1.2.5 Any Domain Name that is not paid for in full when the Customer requests the Host to register the Domain Name may be de-tagged on or after registration and will result in the Customer paying the full registration fee to the registrar.
1.2.6 The Customer is responsible for carrying out transfers of Domain Names.
1.2.7 Domain Names may not be transferred from one registrar to another within 90 days of the domains expiry date or within 30 days after the registration date.
1.2.8 All Domain Names are ultimately the Customer’s responsibility. All renewal and expiry dates are publicly available in the whois database and the Customer should ensure it is familiar with this and arrange any renewals accordingly. The Host takes no responsibility, under any circumstances for the expiry of a Domain Name and any subsequent effect on the Customer’s business.
2.1 Fees must be paid in sterling. If the Customer’s cheque is returned as unpaid for any reason the Customer will be liable for a "returned cheque" charge of £25.
2.2 Fees and charges shall be due and payable in advance of the Host’s provision of the Services.
2.3 If the Customer applies for a refund under the Host’s 14-day money back guarantee the Customer shall be liable for the cost of any Domain Name registrations which were made as part of the hosting plan, including any ‘free’ domains registered.
2.4 Where payment of the Fees for the Services are due at regular intervals and the Customer signs up to recurring billing cycles with the Host or the Host’s card processor, the Host will re-debit the Customers credit or debit card for subsequent payments of the Fees when they become due, the Host does not guarantee that the Customer will be informed prior to this. It is the Customer’s responsibility to ensure funds are available.
2.5 Where refunds are available under any limited ‘money back’ offer, these refunds shall be returned minus any non-refundable service charges incurred. Such service charges include, but are not limited to registration of Domain Names. 2.6 Upon refund of a payment which has had Domain Name costs deducted, the
Domain Name will remain registered to the Customer.
2.7 The Fees are not refundable, except where otherwise stated in this Agreement.
2.8 Fees are exclusive of value added tax, which shall be paid by the Customer if the Host charges it.
2.9 Additional charges may be made at the Host’s current standard consultancy rates for advanced support, custom programming or configuration, or software installation over and above the Services.
2.10 Where any Fees are late the Host shall have the following rights: -
2.10.1 The Host reserves the right to charge interest on any Fees which are overdue at the rate of 5 percent above Barclays Bank plc base rate for the time being.
2.10.2 Where Fees are 7-14 days late the Host has the right to suspend the Services pending payment of all outstanding Fees and interest thereon along with a reasonable administration charge for reconnection of the Services.
2.10.3 Where Fees are 15 or more days late the Host has the right to terminate the Services altogether. For the avoidance of doubt any Fees and interest thereon outstanding at the date of termination of the Services shall remain due and owing.
All payments due under this Agreement are net of applicable taxes.
4.1 This Agreement shall be effective commencing on the date stated overleaf for a period of three calendar months (unless otherwise agreed in writing) and if not terminated by either party at the end of that period thereafter on a continuing basis unless and until either party gives to the other not less than 30 days notice in writing or the Agreement is terminated pursuant to another provision of this Agreement.
4.2 In addition to its termination rights under the rest of this Agreement the Host may immediately terminate this Agreement under clause 2.10 or where it is in
breach of any other of its obligations under this Agreement. On termination by the Host under this clause, all payments that would then be due by the Customer to the Host shall become immediately payable.
4.3 The following clauses will survive termination of this Agreement; 2, 5, 6, 7 and 9.
5 Customer responsibilities
5.1 In addition to the obligations of the Customer as otherwise specified in this Agreement, the Customer shall be solely responsible for the following:
5.1.1 the accuracy and content of any information provided by the Customer to the Host; and
5.1.2 any information, programs and other information that the Customer receives as a result of the use of the Services, including without limitation, the entire responsibility of any losses of data, programs, breaches of security, viruses and disabling or harmful devices that the Customer may download or otherwise experience as a result of the Customer's use of the Services.
5.2 The Customer shall notify the Host at least 7 days in advance if it intends to change its business details or stop providing any of the goods or services being offered through the Host.
5.3 The Customer agrees to use the Services in a manner consistent with any and all applicable laws and regulations.
5.4 The Customer shall obtain any and all necessary consents and clearances to enable the Customer to lawfully make use of all and any intellectual property rights through the Services, including without limitation, clearance and/or consents in respect of the Customer’s proposed domain name.
5.5 The Customer agrees to adhere to the Host’s then current acceptable use policy.
All materials, documentation, computer programs, inventions (whether or not patentable), pictures, audio, video, artistic works and all works of authorship, including all worldwide rights therein under patent, copyright, trade secret or other property right, created or developed by the Host while providing Services (collectively, ‘Work Product’) are owned by the Host. The Host shall not be liable to return any artwork or other material supplied by the Customer for the purposes of Services. Work Product shall not include the Confidential Information (defined below) of the Customer. If ownership of all right, title and interest of the intellectual property rights in the Work Product shall not otherwise vest exclusively in the Host, the Customer assigns to the Host and upon the future creation thereof automatically assigns to the Host without further consideration, the ownership of all Work Product.
7 Limitation of liability
7.1 In no event (death or personal injury excepted) will the Host be liable to the Customer for any indirect, incidental or consequential damages arising out of the Web Hosting Services or any products provided under this Agreement, even if the Host has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to the Customer. The Host’s liability to the Customer for actual damages for any cause whatsoever, regardless of the form of the action, will be strictly limited to 125% of the Fees paid for the prior 12 months.
7.2 The Customer acknowledges that a domain name may occasionally show as available when the domain name has in fact been recently registered with another user name and the Customer further acknowledges and accepts that this is through no fault or omission of the Host and agrees that the Host should not be held in any way liable for this occurrence.
7.3 The Host inevitably relies on and utilises and may provide the Customer with access to, third party services (‘Third Parties’) in particular cPanel/WHM and software packaged by Darkorb Communications. The Customer acknowledges and understands that the Host cannot and does not make any representation undertakings or warranties either expressly or implied regarding the Third Parties’ products or services. The Customer acknowledges and agrees that use of any Third Party products or services is at its sole risk and that the Host limits its liability to the fullest extent permissible by applicable law in respect of any loss or damages, whether direct or indirect incurred and suffered by the Customer in respect of any Third Parties’ actions or services.
7.4 The Customer shall indemnify the Host and keep the Host indemnified and hold it harmless from and against any breach by the Customer of these terms of business and any claim brought against the Host by a third party resulting from the provision of Services by the Host to the Customer and its use of the Services and the Server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by the Host in consequences of the Customer’s breach or non-observance of this Agreement.
7.5 Nothing in this clause 7 is extended to exclude or limit the Host’s liability in respect of fraud or gross negligence.
8 Limitations of service
8.1 The Host does not guarantee that the Customer or any third parties will be able to access the HomePage created by the Host at any particular time. The Host access services are provided on an ‘as-is, as-available’ basis. The Customer acknowledges that the need for routine maintenance and error correction may result in down time and that the Host cannot control the timing or volume of attempts to access the Host’s server.
8.2 The Host reserves the right to reduce the Customer’s site or disable part of the Customer’s site to the extent that the site requires data transfer in excess of the given amount in any one month instead of charging an additional fee as detailed at the beginning of these Conditions.
9 Confidential Information
Each party shall use the same care and discretion, but in no event less than reasonable care and discretion, to prevent disclosure, publication or dissemination of the other party's Confidential Information (defined below) as it employs with similar information of its own; and shall not use, reproduce, distribute, disclose or otherwise disseminate the Confidential Information except in connection with the performance of its obligations under this Agreement.
As used in this Agreement the term ‘Confidential Information’ means any and all data and information relating to the business of the disclosing party (i) of which the receiving party becomes aware as a consequence of or through this Agreement; (ii) which has value to the disclosing party and is not generally known by its competitors; (iii) which is treated by the disclosing party as confidential; and (iv) which has been reduced to tangible form and marked clearly and conspicuously with a legend identifying its confidential or proprietary nature, provided, however, that Confidential Information does not include any data or information which is already known to the receiving party, or which (1) has become generally known to the public through no wrongful act of the receiving party; (2) has been rightfully received by the receiving party from a third party without restriction on disclosure and without, to the knowledge of the receiving party, a breach of an obligation of confidentiality running directly or indirectly to the other party; (3) has been disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or other protection against public disclosure, or is required to be disclosed by operation of law; (4) is independently developed by the receiving party without use, directly or indirectly, of the Confidential Information received from the other party; or (5) is furnished to a third party by the disclosing party under this Agreement without restrictions on the third party's right to disclose the information. Confidential Information may include, but is not limited to, information relating to the products, processes or financial affairs of the disclosing party.
10 Data transmission
The Host may collect, hold, control, use and transmit data obtained from and about the Customer and visitors to the website in the course of providing the Services and the website. Pursuant to this Agreement the Customer agrees to such data being so used and further agrees that it may be transmitted to others in accordance with the Host’s registration under the Data Protection Act 1998.
11 Force majeure
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 6 months, either party may terminate this Agreement by written notice to the other party.
12.1 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name of or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.2 Due to changes in technology the Host will certainly will be adding more services, both hardware and software to its service that it provides. In the event that such upgrades cause downtime, depending on the circumstances refunds would be giving out at the discretion of the management.
12.3 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees in full.
12.4 All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, when sent by confirmed fax, or 3 days after being sent by prepaid first class post to the address of the party to be notified as set out in this Agreement or such other address as such party last provided to the other by written notice.
12.5 Neither party shall have any right or ability to assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of the other (and any such attempt shall be void), except that a party may assign and transfer this Agreement and its rights and obligations under this Agreement to any third party who succeeds to substantially all its business or assets.
12.6 This Agreement is drawn up in the English language. If this Agreement is translated into another language, the English language text shall in any event prevail.
12.7 If any portion of this Agreement is illegal or unenforceable, such portion(s) shall be excluded from this Agreement to the minimum extent required and the balance of this Agreement shall remain in full force and effect and enforceable.
12.8 The failure by the Host to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
12.9 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement and can only be modified or waived by a subsequent written agreement signed by both parties. However the obligations of the parties under any preexisting non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
12.10 The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
12.11 This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties accept the non-exclusive jurisdiction of the English courts over any claim or matter arising under or in connection with this Agreement.