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Terms of Service

Last Updated: 12th October 2009

AGREED TERMS

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).

Contract: the Customer's purchase order and the Supplier's acceptance of it, or the Customer's acceptance of a quotation for Services by the Supplier under condition 2.2.

Customer: the person, firm or company who purchases Services from the Supplier.

Customer's Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.

Deliverables: all Documents, products and materials developed by the Supplier [or its agents, subcontractors, consultants and employees] in relation to the Services in any form, including [computer programs, data, reports and specifications (including drafts)

Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

In-put Material: all Documents, information and materials provided by the Customer relating to the Services including (without limitation), [computer programs, data, reports and specifications

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications

Services: the services to be provided by the Supplier under the Contract as set out in schedule 1 together with any other services which the Supplier provides, or agrees to provide, to the Customer.

Supplier: Anvil Hosting

Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

1.2 Headings in these conditions shall not affect their interpretation.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The schedules form part of the Contract.

1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6 A reference to writing or written includes faxes and e-mail.

1.7 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.8 References to conditions and schedules are to the conditions and schedules of the Contract.

2. APPLICATION OF CONDITIONS

2.1 These Conditions shall:

  • (a) Apply to and be incorporated into the Contract; and
  • (b) Prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by [law,] trade custom, practice or course of dealing.

2.2 The Customer's purchase order, or the Customer's acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services [specified in it] on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:

  • (a) By a written acknowledgement issued and executed by the Supplier; or
  • (b) (If earlier) by the Supplier starting to provide the Services,

When a contract for the supply and purchase of the Services on these conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.

2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for period of 30 days from its date, provided that the Supplier has not previously withdrawn it.

3. COMMENCEMENT AND DURATION

3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from [the date of acceptance by the Supplier of the Customer's offer in accordance with condition 2.2

3.2 Subject to condition 11, the Services supplied under the Contract shall continue to be supplied for a period of one year and, after that, shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than five days prior email of termination.

4. SUPPLIER'S OBLIGATIONS

a) Anvil Hosting shall provide Client with the Anvil Hosting hosting services, as described at www.anvilhosting.co.uk hereto. Anvil Hosting has the right to control and direct the means, manner, and method by which the host services are performed.

b) Anvil Hosting shall provide a reasonable level of technical support to Client via email or web page for the term of this Agreement.

c) Anvil Hosting has the right to perform and license products to others during the term of this Agreement. Anvil Hosting may elect to electronically monitor the host services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host services and protect its Clients. Anvil Hosting reserves the right to block any site hosted by Anvil Hosting that contains any content that Anvil Hosting deems in its sole discretion to be unacceptable or undesirable.

5. CUSTOMER'S OBLIGATIONS

5.1 The Customer shall:

a) Client represents and warrants that (i) Client is at least eighteen (18) years of age, (ii) Client possesses the legal right and ability to enter into this agreement, and (iii) the performance of Client's obligations and use of the Services by Client, its customers and users, will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other Anvil Hosting Clients' use of Services. Client assumes all risks related to processing of transactions related to electronic commerce. Client agrees to provide Anvil Hosting with accurate, complete and updated information required by the registration of the Anvil Hosting host service (Client Registration Data), including Client's legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Client agrees to notify Anvil Hosting within thirty (30) days of any changes in Client's Registration Data.

b) In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Anvil Hosting will have the right, in its sole discretion, to suspend or terminate immediately any Services.

c) Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and a third-party domain name registrar.

d) Third-party software available through the Services may be governed by separate end user licenses. By using the Services and the third-party software, Client agrees to be bound by the terms of such end user licenses regarding the applicable third-party software. Client consents and authorizes Anvil Hosting to delegate the authorizations Client provides to Anvil Hosting to its third party service provider(s) as Anvil Hosting deems necessary or desirable to provide the applicable Services. Client agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such third party service providers and such third party service providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. Client also agrees that all reference to “Anvil Hosting” within this Agreement and any incorporated terms are also deemed to include, where applicable, Anvil Hosting's agents, such as the third party service providers.

e) Client may not use the Services to send unsolicited advertising, promotional materials, or other forms of solicitation to the Anvil Hosting clients or other Internet users unless Client receives the express permission of such individuals. Client may not use the means of unsolicited advertising to advertise a site hosted on the Anvil Hosting network. Client may not use the Services to collect or “harvest” user-names of Anvil Hosting clients or other Internet users without the expressed prior permission of the member. Anvil Hosting reserves the right to block or filter mass email solicitations sent from sites hosted on the Anvil Hosting network.

f) Client shall be solely responsible for all content available on or through its site, and shall at all times be subject to the terms of this Agreement, Anvil Hosting's then-standard Terms of Service (“TOS”) and any generally applicable guidelines and service standards published by Anvil Hosting. Client warrants that its site hosted on the Anvil Hosting network (i) will conform to the Anvil Hosting TOS attached hereto as Exhibit A; (ii) will not infringe and will not contain any content that infringes on or violates any copyright, U.S. or U.K patent or any other third-party right; and (iii) will not contain any content which violates any applicable law, rule or regulation. Anvil Hosting shall have no obligations with respect to the content available on or through any site hosted on the Anvil Hosting network, including, but not limited to, any duty to review or monitor any such content. Anvil Hosting reserves the right to block any site that violates any of the above-stated terms, or which in Anvil Hosting's sole discretion, Anvil Hosting deems objectionable or offensive, or otherwise violates a law or Anvil Hosting policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.

g) Client agrees that it will use the Services only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the TOS, as updated by Anvil Hosting from time to time. The TOS are incorporated herein and made a part hereof by this reference. Anvil Hosting may change the TOS, with notice, which notice may be provided by posting such new TOS at the Anvil Hosting Site. Client may request a current copy of the TOS by sending or faxing a request to Anvil Hosting. Client agrees that it has received, read and understands the current version of the TOS.

h) Unless otherwise specified, all work performed hereunder by Anvil Hosting, is the property of Anvil Hosting, and all title and interest therein shall vest in Anvil Hosting. To the extent that title to any such works may not, by operation of law, vest in Anvil Hosting all rights, title and interest therein are hereby irrevocably assigned to Anvil Hosting. All such materials shall belong exclusively to Anvil Hosting, and Anvil Hosting shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give Anvil Hosting and any person designated by Anvil Hosting such reasonable assistance, at Anvil Hosting's expense, as is required to perfect the rights defined in this paragraph.

i) Client agrees that Anvil Hosting may refer to Client, or Client's business in Anvil Hosting marketing materials, the Anvil Hosting website, and communication to Anvil Hosting's current and prospective clients. Client grants Anvil Hosting a limited license and permission to use any Client trade name and/or trademark for such, and only for such, purposes.

5.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.

6. CHARGES AND PAYMENT

6.1 In consideration of the performance of the Services, Client shall pay Anvil Hosting monthly in advance the amount set forth in Anvil Hosting's customer database as such records are amended from time to time for the Services during the term of this Agreement.

6.2 Client shall receive a confirmation letter via e-mail at the time Client contracts for the Services, which shall confirm the fees payable to Anvil Hosting. Thereafter, Client shall receive a monthly billing statement for the upcoming month. The monthly billing statement shall indicate any changes in fees, which fees shall become effective upon thirty (30) days' notice as set forth in Section 2.4 herein.

6.3 Client is responsible for all activities and charges resulting from Client's use of the Services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. Client acknowledges that no refunds will be given by Anvil Hosting in the event that Client's account is terminated by Anvil Hosting or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the Services until Client notifies Anvil Hosting by sending an e-mail with account information to sales@anvilhosting.co.uk.

6.4 Current rates for using the Services may be obtained on our web site at www.anvilhosting.co.uk. Anvil Hosting reserves the right to change fees, surcharges, monthly membership fees or to institute new fees at any time. In addition, Anvil Hosting may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Client upon sign up. If Anvil Hosting does not receive the full amount of Client's Service account balance within twenty eight (28) days of invoice date, a late charge equal to 1.5% per month or highest amount allowed by law per month may be added to Client's bill and shall be due and payable. Client shall also be responsible for all legal and collection fees arising from Anvil Hosting's efforts to collect any unpaid balance of Client's account(s), and Anvil Hosting may terminate Client's account immediately without further notice to Client.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to condition 7.2, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Supplier terminates the Contract under condition 11.1, this licence shall automatically terminate.

7.2 The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer's use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.

8. CONFIDENTIALITY AND THE SUPPLIER'S PROPERTY

8.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain.

8.2 The Customer may disclose such information:

  • (a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer's obligations under the Contract; and
  • (b) As may be required by law, court order or any governmental or regulatory authority.

8.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.

8.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.

9. LIMITATION OF LIABILITY

9.1 This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:

  • (a) Any breach of the Contract;
  • (b) Any use made by the Customer of the Services, the Deliverables or any part of them; and
  • (c) Any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.

9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

9.3 Nothing in these Conditions limits or excludes the liability of the Supplier:

  • (a) For death or personal injury resulting from negligence; or
  • (b) For any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
  • (c) For any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.

9.4 Subject to condition 9.2 and condition 9.3

  • (a) The Supplier shall not be liable for:
    • (i) Loss of profits;
    • (ii) Loss of Internet Connection
    • (iii) Loss of business;
    • (iv) Depletion of goodwill and/or similar losses;
    • (v) Loss of anticipated savings;
    • (vi) Loss of goods;
    • (vii) Loss of contract;
    • (viii) Loss of use;
    • (ix) Loss of corruption of data or information;
    • (x) Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
  • (b) The Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.

10. DATA PROTECTION

The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services.

11. TERMINATION

11.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than five day's written notice or immediately on giving notice to the other if:

  • (a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than five days after being notified in writing to make such payment; or
  • (b) The other party commits a breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within days of that party being notified in writing of the breach; or
  • (c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
  • (d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986] or (being a partnership) has any partner to whom any of the foregoing apply]; or
  • (e) A creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within [14] days; or
  • (f) The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
  • (g) There is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
  • (h) In addition to any other rights it may have under this Agreement or applicable law, Anvil Hosting may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a default in payment, or (ii) Client's breach or failure to comply with the TOS or other policies of Anvil Hosting. Client may terminate this Agreement if Anvil Hosting breaches any material term or written notice of same. If this Agreement is terminated by Anvil Hosting under this Section 11.1h, all balance of the then current term shall immediately become due and payable. In addition to the foregoing, Anvil Hosting reserves the right to prohibit any conduct or to remove any materials or content in violation of the TOS or which Anvil Hosting believes in its sole discretion to be illegal or potentially harmful to others or may expose Anvil Hosting to harm or liability.
  • (i) Upon expiration, cancellation or termination of this contract, Client shall relinquish any Internet protocol (“IP”) numbers, address or address blocks assigned to Client by Anvil Hosting or its network services supplier (but not the URL or top level domain connected therewith). Anvil Hosting reserves, in its sole discretion, the right to change or remove any and all such IP numbers addresses or address blocks.

11.2 The parties acknowledge and agree that any breach of conditions Section 11.1 shall constitute a breach for the purposes of this condition 11.2

11.3 On termination of the Contract for any reason:

  • (a) The Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
  • (b) The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.

11.4 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:

  • (a) Section 7;
  • (b) Section 8;
  • (c) Section 9;
  • (d) Section 11; and
  • (e) Section 21.

12. FORCE MAJEURE

Anvil Hosting and its affiliates, agents, employees, or licensors (including third party service providers) shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, ware, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.

13. VARIATION

13.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Supplier requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.

13.2 Subject to condition 13.1, no variation of the Contract or these Conditions or of any of the documents referred to in they shall be valid unless it is in writing and signed by or on behalf of each of the parties.

14. WAIVER

14.1 A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.

14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

15. SEVERANCE

15.1 In the event any one or more of the provisions of the Contract or any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.

16. ENTIRE AGREEMENT

16.1 This agreement and the exhibits reference herein, sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which are different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.

17. ASSIGNMENT

17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract[, declare a trust of] or deal in any [other] manner with all or any of its rights or obligations under the Contract.

17.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract[, declare a trust of] or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

17.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.

18. NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

19. RIGHTS OF THIRD PARTIES

A person who is not a party to the Contract shall not have any rights under or in connection with it.

20. NOTICES

20.1 Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below:

  • 1) On the delivery date if delivered personally to the party, or a representative of the party;
  • 2) One business day after deposit with a commercial overnight carrier, with written verification of receipt;
  • 3) Five business days after the mailing date, whether or not received, if sent by Royal Mail, return receipt requested;
  • 4) On the delivery date if transmitted by facsimile or email.

If to Anvil Hosting:

info@anvilhosting.co.uk

If to Client:

To Clients mailing or email address provided at account set-up.

21. GOVERNING LAW AND JURISDICTION

21.1 This Agreement, and all future agreements Client may enter into with Anvil Hosting, unless otherwise indicated on such other agreement, will be governed by the laws of the United Kingdom, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with Anvil Hosting in United Kingdom or elsewhere. Unless a dispute would be governed by an applicable arbitration clause, Client agrees to submit to the personal and exclusive jurisdiction of the courts located within the United Kingdom. If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.

Schedule 1 Services

The services that we provide under the contract for our customers are:

Web Hosting – where we provide space on our server to allow our customers to provide there own website accessible via the World Wide Web

Domain name registration – This is where we assign a domain name is assigned to your website by registering you with an approved registrar.