Alexio Solutions Limited | 1.1.2017
Terms & conditions
PLEASE READ CAREFULLY BEFORE CLICKING TO ACCEPT AND SUBSCRIBING TOALEXIO SOLUTIONS’ HOSTING SERVICES:
This agreement is a legal agreement between you(Customer or you) and Alexio Solutions Limited, incorporated and registered in England with company number 10271160 whoseregistered office is at International House, 1-6Yarmouth Place, London, Mayfair, United Kingdom, W1J 7BU (Alexio, Licensor, us or we) forhosting services.
IMPORTANT NOTICE TO ALL USERS:
(1) BY CLICKING ON THE “AGREE TO THE TERMS ANDCONDITIONS” BOX, YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BINDYOU. THE TERMS OF THIS AGREEMENT INCLUDE, IN PARTICULAR, LIMITATIONS ONLIABILITY IN CLAUSE 8.
(2) IF YOU DO NOT AGREE TO THE TERMS OF THISAGREEMENT, WE WILL NOT PROVIDE HOSTING SERVICES TO YOU AND YOU MUST NOT CLICKON THE “AGREE TO THE TERMS AND CONDITIONS” BOX AND MUST IMMEDIATELY DISCONTINUEUSE AND/OR RECEIPT OF HOSTING SERVICES FROM US.
Alexio is a provider of webhosting and associated services, Customer would like Alexio to provide the website hosting on the terms and conditionsset out in this agreement.
The definitions and rules of interpretation inthis clause apply in this agreement.
Business Day: any day other than a Saturday, Sunday or publicholiday in England when banks in London are generally open for business.
Charges: the charges in respect of the Services set out onyour invoice / Alexio’s website alexio.co
Confidential Information: all information,whether technical or commercial (including all specifications, drawings anddesigns, disclosed in writing, on disc, orally or by inspection of documents orduring discussions between the parties), where the information is:
(a) identified as confidentialat the time of disclosure; or
(b) ought reasonablyto be considered confidential given the nature of the information or thecircumstances of disclosure.
Customer Data: the data inputted by the Customer, or the Supplier on the Customer’s behalf for thepurpose of using the Services or facilitating the Customer’s use of theServices.
Effective Date: the date on which you click to accept theterms of this agreement and first subscribe to the Services.
GDPR: General Data Protection Regulation. Intellectual Property Rights: patents, utility models, rights toinventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up andtrade dress, goodwill and the right to sue for passing off or unfaircompetition, rights in designs, rights in computer software, database rights,rights to use, and protect the confidentiality of, confidential information(including know-how and trade secrets) and all other intellectual propertyrights, in each case whether registered or unregistered and including allapplications and rights to apply for and be granted, renewals or extensions of,and rights to claim priority from, such rights and all similar or equivalentrights or forms of protection which subsist or will subsist now or in thefuture in any part of the world.
Materials: the content provided by the Customer from timeto time and/or incorporated in the Site.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each BusinessDay.
Services: the hosting services to be provided under thisagreement.
Site: the website at a URL to be agreed in writingbetween the partiesto be hosted by Alexio under this agreement.
Visitor: a visitor to the Site.
1.2 Clause and Schedule headings shall not affectthe interpretation of this agreement.
1.3 References to clauses and Schedules are (unlessotherwise provided) references to the clauses and Schedules of this agreement.
1.4 If there is an inconsistency between any of theprovisions in the main body of this agreement and the Schedules, the provisionsin the main body of this agreement shall prevail.
1.5 Unless the context otherwise requires, words inthe singular shall include the plural and in the plural include the singular.
1.6 A reference to a statute or statutory provisionis a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to a statute or statutory provisionshall include all subordinate legislation made from time to time under thatstatute or statutory provision.
1.8 Any words following the terms including, include, in particular, for example or any similar expressionshall be construed as illustrative and shall not limit the sense of the words,description, definition, phrase or term preceding those terms.
1.9 References to content include any kind of text, information, image, or audio orvideo material which can be incorporated in a website for access by a visitorto that website.
Alexio shall provide the Services. Alexio shall usecommercially reasonable endeavours to make the Services available 24 hours aday, seven days a week, except for:
(a) plannedmaintenance carried out during the maintenance window of 10.00 pm to 2.00 amUK time; and
(b) unscheduledmaintenance performed outside Normal Business Hours, provided that Alexio hasused reasonable endeavours to give the Customer at least 5 hours notice in advance.
3. Customer responsibilities
3.1 The Customer shall be responsible for theaccuracy and completeness of any content on the Site.
3.2 The Customer shall comply with all applicablelaws and regulations with respect to its activities under this agreement.
4. Charges and payment
4.1 The Customer shall pay the Charges to theSupplier for the Services in accordance with this clause 4.1.
4.2 The Customer shall on the Effective Date provideto the Supplier valid, up-to-date and complete credit card details or approvedpurchase order information acceptable to the Supplier and any other relevantvalid, up-to-date and complete contact and billing details and, if the Customerprovides:
(a) it’s credit carddetails to the Supplier, the Customer hereby authorises the Supplier to billsuch credit card:
(i) on the Effective Date for theCharges payable in respect of the Initial Term; and
(ii) thereafter each calendar monthafter the Effective Date for the Charges payable in respect of the next Renewal Period;
(b) its approved purchase order information to the Supplier, the Supplier shall invoicethe Customer:
(i) on the Effective Date for theCharges payable in respect of the Initial Term; and
(ii) at least 30 days prior to each calendar month after the Effective Date for the Charges payable in respect ofthe next Renewal Period, and the Customer shall pay each invoice within 5 days after the date of such invoice.
4.3 If the Supplier has not received payment within10 days after the due date, and without prejudice to any other rights andremedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s accountand access to all or part of the Services and the Supplier shall be under noobligation to provide any or all of the Services while the invoice(s) concernedremain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Lloyds Bank from time to time,commencing on the due date and continuing until fully paid, whether before orafter judgment.
4.4 All amounts and fees stated or referred to inthis agreement:
(a) shallbe payable in [pounds sterling];
(b) are, subject to clause 6.3, non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
5.1 Each of the parties warrants to the other thatit has full power and authority to enter into and perform this agreement.
5.2 Alexio shall perform the Services withreasonable care and skill.
5.3 This agreement sets out the full extent ofAlexio’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which mightotherwise be implied into this agreement or any collateral contract (whether bystatute or otherwise) are hereby expressly excluded.
6. Limitation of remedies and liability
6.1 Nothing in this agreement shall operate toexclude or limit either party’s liability for:
(a) death or personalinjury caused by its negligence; or
(b) any breach of theterms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any otherliability which cannot be excluded or limited under applicable law.
6.2 Subject to clauses 6.3 and 8.3, neither partyshall be liable under or in connection with this Agreement or any collateralcontract for any:
(a) loss of revenue;
(b) loss of actual oranticipated profits;
(c) loss of contracts;
(d) loss of the use ofmoney;
(e) loss ofanticipated savings;
(f) loss of business;
(g) loss ofopportunity;
(h) loss of goodwill;
(i) loss ofreputation;
(j) loss of, damage toor corruption of data; or
(k) any indirect orconsequential loss,
in each case howsoever arising, whether suchloss or damage was foreseeable or in the contemplation of the parties andwhether arising in or caused by breach of contract, tort (includingnegligence), breach of statutory duty or otherwise.
6.3 Subject to clause 6.1, Alexio’s aggregateliability in respect of claims based on events in any calendar year arising outof or in connection with this agreement or any collateral contract, whether incontract or tort (including negligence) or otherwise, shall in no circumstancesexceed 100% of the total Charges payable by the Customer to Alexio under thisagreement in that calendar year.
7. Intellectual property rights
7.1 The Customer retains all Intellectual PropertyRights in the Site and Materials, and grants Alexio a licence to suchIntellectual Property Rights to the extent required to perform its obligationsunder this agreement.
7.2 The Customer shall indemnify Alexio against alldamages, losses and expenses arising as a result of any action or claim thatthe Site or the Materials infringe any Intellectual Property Rights of a thirdparty.
7.3 The indemnities in clause 7.2 and clause 8.3 aresubject to the following conditions:
(a) the indemnifiedparty promptly notifies the indemnifier in writing of the action or claim;
(b) the indemnifiedparty makes no admissions or settlements without the indemnifier’s priorwritten consent;
(c) the indemnifiedparty gives the indemnifier all information and assistance that the indemnifiermay reasonably require; and
(d) the indemnifiedparty allows the indemnifier complete control over the litigation andsettlement of any action or claim.
7.4 The indemnities in clause7.2, and clause 8.3 maynot be invoked to the extent that the action or claim arises out of theindemnifier’s compliance with any designs, specifications or instructions ofthe indemnified party.
8. Site content
8.1 The Customer shall ensure that the Materials donot infringe any applicable laws, regulations or third party rights (such asmaterial which is obscene, indecent, pornographic, seditious, offensive,defamatory, threatening, liable to incite racial hatred or acts of terrorism,menacing, blasphemous or in breach of any third party Intellectual PropertyRights) (Inappropriate Content).
8.2 The Customer acknowledges that Alexio has nocontrol over any content placed on the Site by Visitors and does not purport tomonitor the content of the Site. Alexio reserves the right to remove contentfrom the Site where it reasonably suspects such content is InappropriateContent. Alexio shall notify the Customer if it becomes aware of any allegationthat content on the Site may be Inappropriate Content.
8.3 The Customer shall indemnify Alexio against alldamages, losses and expenses arising as a result of any action or claim thatthe Materials or any other material posted to, or linked to, the Siteconstitutes Inappropriate Content.
9. Data protection
9.1 In this clause 9 , Personal Data has the meaning given in the Data Protection Act1998.
9.2 To the extent Alexio processes any Personal Dataon behalf of the Customer:
(a) it shall act onlyon instructions from the Customer (who is the Data Controller as defined in the Data Protection Act 1988); and
(b) it has in placeappropriate technical and organisational security measures against unauthorisedor unlawful processing of Personal Data and against accidental loss ordestruction of, or damage to, Personal Data.
9.3 The Customer shall own all right, title andinterest in and to all of the Customer Data and shall have sole responsibilityfor the legality, reliability, integrity, accuracy and quality of the CustomerData.
9.4 Each party agrees to comply with the DataProtection Act (and the GDPR).
10. Term and termination
10.1 This agreement shall commence on the EffectiveDate and shall continue, unless terminated earlier in accordance with this clause10 , for a period of one calendar month from the Effective Date (Initial Term), and,thereafter, this agreement shall be automatically renewed for successiveperiods of one calendar month (each a RenewalPeriod) unless terminated in accordance with clause 10.2.
10.2 Without affecting any other right or remedyavailable to it, either party may terminate this agreement with immediateeffect by giving written notice to the other party if:
(a) the other partyfails to pay any amount due under this agreement on the due date for paymentand remains in default not less than 10 days after being notified in writing tomake such payment (for the avoidance of doubt, the sums due remain payable andthe Customer shall not receive a refund of any fees paid in advance for theterminated period);
(b) the other partycommits a material breach of any other term of this agreement which breach isirremediable or (if such breach is remediable) fails to remedy that breachwithin a period of 20 Business Days after being notified in writing to do so;
(c) the other partysuspends, or threatens to suspend, payment of its debts or is unable to pay itsdebts as they fall due or admits inability to pay its debts or (i) (being acompany or limited liability partnership) is deemed unable to pay its debtswithin the meaning of section 123 of the Insolvency Act 1986; (ii) (being anindividual) is deemed either unable to pay its debts or as having no reasonableprospect of so doing, in either case, within the meaning of section 268 of theInsolvency Act 1986; or (iii) (being a partnership) has any partner to whom anyof the foregoing apply;
(d) the other partycommences negotiations with all or any class of its creditors with a view torescheduling any of its debts, or makes a proposal for or enters into anycompromise or arrangement with any of its creditors other than (being acompany) for the sole purpose of a scheme for a solvent amalgamation of thatother party with one or more other companies or the solvent reconstruction ofthat other party;
(e) a petition isfiled, a notice is given, a resolution is passed, or an order is made, for orin connection with the winding up of that other party (being a company) otherthan for the sole purpose of a scheme for a solvent amalgamation of that otherparty with one or more other companies or the solvent reconstruction of thatother party;
(f) an application ismade to court, or an order is made, for the appointment of an administrator, orif a notice of intention to appoint an administrator is given or if anadministrator is appointed, over the other party (being a company);
(g) the holder of aqualifying floating charge over the assets of that other party (being acompany) has become entitled to appoint or has appointed an administrativereceiver;
(h) a person becomesentitled to appoint a receiver over all or any of the assets of the other partyor a receiver is appointed over all or any of the assets of the other party;
(i) the other party(being an individual) is the subject of a bankruptcy petition or order;
(j) a creditor orencumbrancer of the other party attaches or takes possession of, or a distress,execution, sequestration or other such process is levied or enforced on or suedagainst, the whole or any part of the other party’s assets and such attachmentor process is not discharged within 14 days;
(k) any event occurs,or proceeding is taken, with respect to the other party in any jurisdiction towhich it is subject that has an effect equivalent or similar to any of theevents mentioned in clause 10.2(c) to clause 10.2(j) (inclusive); or
(l) the other partysuspends or ceases, or threatens to suspend or cease, carrying on all or asubstantial part of its business.
10.3 On termination of this agreement by Alexiopursuant to clause 10.2, all permissions granted by Alexio under this agreementshall terminate immediately.
10.4 On expiry or termination of this agreementotherwise than on termination by Alexio under clause 10.2 Alexio shall:
(a) promptly return tothe Customer any Materials or shall confirm that it has deleted them.
(b) provide suchassistance as is reasonably requested by the Customer but not assit withtransfer the hosting of the Site to the Customer or another service provider, subject to payment of Alexio’s expenses reasonably incurred.
10.5 On expiry or termination of this agreement, allprovisions of this agreement shall cease to have effect, except that anyprovision of this agreement that expressly or by implication is intended tocome into or continue in force on or after termination or expiry of thisagreement shall remain in full force and effect.
11. Force majeure
Neither party shall be in breach of thisagreement nor liable for delay in performing, or failure to perform, any of itsobligations under this agreement if such delay or failure result from events,circumstances or causes beyond its reasonable control. In such circumstances,the affected party shall be entitled to a reasonable extension of the time forperforming such obligations. If the period of delay or non-performance continuesfor 3 months, the party not affected may terminate this agreement by giving 7days’ written notice to the affected party.
12.1 Each party shall protect the ConfidentialInformation of the other party against unauthorised disclosure by using thesame degree of care as it takes to preserve and safeguard its own confidentialinformation of a similar nature, being at least a reasonable degree of care.
12.2 Confidential Information may be disclosed by thereceiving party to its employees, affiliates and professional advisers,provided that the recipient is bound in writing to maintain the confidentialityof the Confidential Information received.
12.3 The obligations set out in this clause 12 shallnot apply to Confidential Information that the receiving party can demonstrate:
(a) is or has becomepublicly known other than through breach of this clause12 ; or
(b) was in thepossession of the receiving party prior to disclosure by the other party; or
(c) was received bythe receiving party from an independent third party who has full right ofdisclosure; or
(d) was independentlydeveloped by the receiving party; or
(e) was required to bedisclosed by a governmental authority, provided that the party subject to suchrequirement to disclose gives the other party prompt written notice of therequirement.
12.4 The obligations of confidentiality in thisclause 12 shall not be affected by the expiry or termination of this agreement.
13.1 Any notice given to a party under or inconnection with this agreement contract shall be in writing and shall be:
(a) delivered by handor by pre-paid first-class post or other next working day delivery service atits registered office (if a company) or its principal place of business (in anyother case); or
(b) sent by fax to itsmain fax number.
13.2 Any notice shall be deemed to have beenreceived:
(a) if delivered byhand, on signature of a delivery receipt;
(b) if sent bypre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting.
(c) if sent by fax, at9.00 am on the next Business Day after transmission.
13.3 This clause does not apply to the service of anyproceedings or other documents in any legal action or, where applicable, anyarbitration or other method of dispute resolution.
13.4 A notice given under this agreement is not validif sent by email.
Neither party may assign, transfer, mortgage,charge, subcontract, declare a trust over or deal in any other manner with anyof its rights or obligations under this agreement, in whole or in part, withoutthe prior written consent of the other party, such consent not to beunreasonably withheld or delayed.
15. Entire agreement
15.1 This agreement constitutes the entire agreementbetween the parties and supersedes and extinguishes all previous agreements,promises, assurances, warranties, representations and understandings betweenthem, whether written or oral, relating to its subject matter.
15.2 Each party agrees that it shall have no remediesin respect of any statement, representation, assurance or warranty (whethermade innocently or negligently) that is not set out in this agreement. Eachparty agrees that it shall have no claim for innocent or negligentmisrepresentation based on any statement in this agreement.
16. Third party rights
16.1 A person who is not a party to this agreementshall not have any rights under the Contracts (Rights of Third Parties) Act1999 to enforce any term of this agreement.
16.2 No one other than a party to this agreement,their successors and permitted assignees, shall have any right to enforce anyof its terms.
No variation of this agreement shall beeffective unless it is in writing and signed by the parties (or theirauthorised representatives).
No failure or delay by a party to exercise anyright or remedy provided under this agreement or by law shall constitute awaiver of that or any other right or remedy, nor shall it prevent or restrictthe further exercise of that or any other right or remedy. No single or partialexercise of such right or remedy shall prevent or restrict the further exerciseof that or any other right or remedy.
19. Rights and remedies
Except as expressly provided in this agreement,the rights and remedies provided under this agreement are in addition to, andnot exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of thisagreement is or becomes invalid, illegal or unenforceable, it shall be deemedmodified to the minimum extent necessary to make it valid, legal andenforceable. If such modification is not possible, the relevant provision orpart-provision shall be deemed deleted. Any modification to or deletion of aprovision or part-provision under this clause shall not affect the validity andenforceability of the rest of this agreement.
20.2 If any provision or part-provision of thisagreement is invalid, illegal or unenforceable, the parties shall negotiate ingood faith to amend such provision so that, as amended, it is legal, valid andenforceable, and, to the greatest extent possible, achieves the intendedcommercial result of the original provision.
21. No partnership or agency
21.1 Nothing in this agreement is intended to, orshall be deemed to, establish any partnership or joint venture between any ofthe parties, constitute any party the agent of another party, or authorise anyparty to make or enter into any commitments for or on behalf of any otherparty.
21.2 Each party confirms it is acting on its ownbehalf and not for the benefit of any other person.
22. Governing law
This agreement and any dispute or claim(including non-contractual disputes or claims) arising out of or in connectionwith it or its subject matter or formation shall be governed by and construedin accordance with the law of England and Wales.
Each party irrevocably agrees that the courts ofEngland and Wales shall have exclusive jurisdiction to settle any dispute orclaim (including non-contractual disputes or claims) arising out of or inconnection with this agreement or its subject matter or formation.
This agreement has been entered into on the Effective Date.