1.1 These terms and conditions are expressly incorporated into the contract made between 5quidhost Ltd and the Customer for the provision of the Services.
2.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
"Account" an account where Customer data is stored and processed by the Customer. The Customer’s data is stored on one or more of 5quidhost’s servers in an area specifically reserved for data generated by, uploaded by, created by or otherwise stored by the Customer. This includes data held in the home directory of the Customer and data stored in database tables.
“Charges” the charges for the Services as set out or referred to in the Order Acceptance.
“Commencement Date” has the meaning as set out in clause 3.3.
“Conditions” these terms and conditions as amended from time to time in accordance with clause 28.1.
“Confidential Information” has the meaning as set out in clause 15.
“Contract” the contract between 5quidhost and the Customer for the supply of Services in accordance with these Conditions.
“Customer” the person, firm, company, organisations, associations or body as set out in the Order.
“Intellectual Property Rights” all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
“Materials” the content incorporated into the Site.
“Order Acceptance” means an email sent by 5quidhost to the Customer to confirm that it has accepted the Order for the Services in accordance with clause 3.3.
“Order” means the Customer’s offer to purchase the Services made using 5quidhost’s electronic order form.
“Services” means the provision of the website and email hosting and related services including shared hosting (standard or reseller), virtual private server hosting or dedicated server hosting described or referred to in the Order Acceptance.
“Service Levels” means the service levels (if any) set out in the SLA.
“Site Software” the software for the Site commissioned by the Customer.
“Site” the Customer’s website to be hosted by 5quidhost.
“SLA” means, in respect of each Service purchased by the Customer, the service levels detailed in Schedule 1 of these Conditions.
“ 5quidhost” means 5quidhost Ltd registered in Scotland with company number SC320459 whose registered office is at Westpoint, 4 Redheughs Rigg, South Gyle, Edinburgh, EH12 9 DQ.
“Visitor” a visitor to the Site.
3.1 Each Order for the Services by the Customer shall be deemed to be an offer by the Customer to buy the Services subject to these Conditions. No Order shall be accepted by 5quidhost if the Customer, as a natural person, is less than 18 years old. The Customer shall ensure that the terms of the Order are complete and accurate.
3.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Customer’s documentation.
3.3 No Order placed by or acceptance of a quotation or proposal by the Customer shall be deemed to be accepted by 5quidhost nor shall a Contract come into existence until an Order Acceptance is issued by 5quidhost and 5quidhost has subsequently activated the Account and notified the Customer of its login details (“the Commencement Date”).
4.1 The Services shall be supplied from the Commencement Date and, after that shall continue to be supplied unless the Contract is terminated by one of the parties giving the other written notice to expire in accordance with clause 19.
5.1 5quidhost shall use reasonable endeavors to provide the Services.
5.2 5quidhost shall be responsible for the provision of an amount of data storage and processing capability on the servers which it operates.
5.3 Subject to clause 12.4, 5quidhost shall use reasonable endeavors to support the Customer in relation to matters specific to the Services.
5.4 5quidhost may provide data back-up facilities but does not provide any warranty as to the accuracy, availability, suitability or accessibility of such back-up facilities. 5quidhost may attempt to recover any lost data where the loss is caused by the fault of either party, but is not obliged to do so and in no way warrants the likelihood of a successful recovery.
6.1 5quidhost shall deliver the Services in accordance with the SLA.
6.2 The Customer acknowledges that the Services are not provided free of faults or uninterrupted and that 5quidhost does not give an undertaking to do so. 5quidhost shall not be held responsible for any failure to meet the Service Levels which results from the Customer’s use of the Site Software or any Materials.
6.3 The Customer agrees that payment of service credits by 5quidhost in accordance with the SLA shall be the Customer’s sole remedy for unavailability of the Services.
7.1 The Customer shall cooperate with 5quidhost in all matters relating to the Services.
7.2 The Customer shall ensure the accuracy and completeness of the Materials.
7.3 The Customer shall be responsible for activity originating from the Site unless the Site is hacked or its address is forged.
7.4 The Customer shall be responsible for ensuring the security of its username and password and where relevant any cryptographic key in relation to the Services.
7.5 The Customer shall ensure adequate back-up coverage for the Services, local and off-server copies of any Material or any other data held within an Account.
7.6 The Customer shall have the requisite knowledge required in relation to the Services as set out in clause 12.4.
8.1 The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, liable to incite racial or religious hatred, or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
8.2 The Customer shall ensure that its Site does not link to Inappropriate Content on third party websites.
8.3 Customer acknowledges that 5quidhost does not have any control over content placed on the Site by Visitors or the Customer. 5quidhost does not purport to monitor the content of the Site. Where 5quidhost reasonably suspects such content is Inappropriate Content, it may immediately remove the Inappropriate Content from the Site and suspend or terminate the Site. 5quidhost may require that the Customer removes any Inappropriate Content from the Site.
8.4 The Customer shall indemnify 5quidhost against all damages, losses and expenses arising as a result of any action or claim that the Materials or any other material posted to, or linked to the Site constitutes Inappropriate Content.
8.5 The Customer may include the statement “Powered by 5quidhost Limited” on the home page of its Site in a form to be agreed.
8.6 5quidhost reserves the right to check the Customer’s system files, email accounts, and other data held on its servers for Inappropriate Content as deemed necessary.
9.1 The Customer shall not undertake any of the following activities in relation to the Services:
9.1.1 attempting without authorisation to access a computer system;
9.1.2 pirating (distributing copyrighted material in violation of copyright law, including (but not limited to) video and audio formats such as MP3s, MPEG's, ROMs, and ROM emulators);
9.1.3 schemes to defraud;
9.1.4 trafficking in obscene material;
9.1.5 spamming (sending unsolicited advertising to those with which the Customer has no existing business relationship, posting off-topic advertising in newsgroups);
9.1.6 passive spamming (promoting a website hosted by 5quidhost by spamming from some other source);
9.1.7 spoofing (using a return email address which is not the valid reply address of the sender or sending an email message which does not contain enough information to enable the recipient to identify the party who is really sending the message);
9.1.8 trolling (posting controversial messages in newsgroups to generate responses);
9.1.9 mailbombing (inundating a user with email without any serious intent to correspond);
9.1.10 subscribing an individual to an electronic mailing list without that person's express permission;
9.1.11 hacking and cracking;
9.1.12 sending server broadcast messages or messages on an intrusive basis to any directly or indirectly attached network;
9.1.13 accessing data not intended for the Customer;
9.1.14 probing the security of any network;
9.1.15 spawning too many processes;
9.1.16 port scans, ping floods, packet spoofing, forging router information, denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land, teardrop;
9.1.17 promulgation of viruses;
9.1.18 IRC bots such as eggdrop or BitchX;
9.1.19 distributing mass emailing programs;
9.1.20 running any programs including internet relay chat, IRC bots etc in the background on 5quidhost’s server without 5quidhost’s prior written consent; and
9.1.21 using more than 20% of 5quidhost’s resources in respect of a single server (or processing node) which the Customer’s Account is hosted on. In the event that this limit is exceeded the Customer will be required to reduce its use.
9.2 The Customer shall send an e-mail to email@example.com if it is unsure whether its proposed activities fall within clause 9.1.
9.3 In the event that the Customer is in breach of clause 9.1, 5quidhost may suspend or terminate the Contract. 5quidhost reserves the right to disclose the details of any such a breach as required by law or any governmental or regulatory authority or by any court or other authority of competent jurisdiction.
10.1 If the Customer is using an Account which has either disk space or bandwidth set to 'unlimited' the Customer agrees to be subject to the following terms:
10.1.1 the Account in question will be primarily used for the purposes of web hosting and e-mail hosting. The Customer shall not store large files or make available downloads of large files; and
10.1.2 the Customer shall not make excessive demands on the resources of 5quidhost’s server; this includes, but is not limited to, the CPU usage required to perform data processing for the purposes of making backups and other administrative tasks as well as the CPU usage required to actually serve the Site on the Account.
10.2 5quidhost shall be the sole arbiter in determining whether the Customer is in breach of clause 10.1. In the event of a breach, 5quidhost reserves the right to propose alternative hosting arrangements for the Customer which might include moving to a hosting plan with quoted disk space and bandwidth limits. If 5quidhost and the Customer cannot agree an alternative hosting arrangement for the Customer, 5quidhost may terminate the Contract by written notice under clause 19.2.
11.1 The Customer shall make payment of the Charges due from time to time in accordance with this clause 11 and (in the case of the first payment of any Charges under a Contract) prior to the Customer receiving the Services.
11.2 The Customer shall make payment of the Charges in full and cleared funds within 11 days of receiving an email requesting payment of the Charges to be made.
11.3 All Charges are inclusive of VAT.
11.4 5quidhost reserves the right to increase the Charges from time to time.
11.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay 5quidhost any amount on the due date, 5quidhost may charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC plc, accruing on a daily basis and being compounded quarterly until payment is made after as well as before judgment.
11.6 All sums payable to 5quidhost under this Contract shall become due immediately on its termination, despite any other provision.
11.7 All sums payable to 5quidhost under this Contract shall be paid in full without any set off, counterclaim, deduction or withholding.
12.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Contract.
12.2 5quidhost shall perform the Services with reasonable skill and care.
12.3 This Contract sets out the full extent of 5quidhost’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this Contract (whether by statute or otherwise) are hereby expressly excluded.
12.4 The Customer shall have the requisite level of knowledge in relation to internet languages, protocols, and software when using the Services. For example, web publishing requires a knowledge of HTML, locating and linking documents, FTP-ing web contents, graphics, text, sound, image mapping; FrontPage web publishing requires a knowledge of the FrontPage tools as well as knowledge of the use of FTP; CGI-Scripts requires a knowledge of the UNIX environment, tar & gzip commands, perl, shell scripts, permissions; and the use of e-mail accounts requires a knowledge of the use of e-mail programs to receive and send mail and program configuring.
13.1 The Customer shall own all Intellectual Property Rights in the Site Software and Materials. The Customer licenses all such rights to 5quidhost free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable 5quidhost to perform its obligations pursuant to this Contract. This licence shall terminate when the Contract terminates for any reason.
13.2 The Customer shall indemnify 5quidhost against all damages, losses and expenses arising as a result of any action or claim that the Site Software or the Materials infringe any Intellectual Property Rights of a third party.
14.1 In this clause 14, Personal Data has the meaning given in the Data Protection Act 1998.
14.2 5quidhost and the Customer acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the data controller and 5quidhost is the data processor of any Personal Data.
14.3 The Customer is responsible for complying with the Data Protection Act 1998, which without limitation includes taking appropriate measures to ensure the security of any Personal Data; this may include encrypting Personal Data.
14.4 5quidhost may from time to time make copies of Personal Data for backup purposes only, but it is not under an obligation to do so. Any Personal Data transmitted to another server as part of the copying process will take place over an encrypted link and the copy will not be disclosed to a third party.
14.5 The Customer agrees that 5quidhost may allow a third party access to the Personal Data where this is required as part of routine server management undertaken by that third party for 5quidhost and provided that such third party is required to keep such data confidential and not to use such data for any other purpose.
14.6 5quidhost may disclose the Personal Data as required by law or any governmental or regulatory authority or by any court or other authority of competent jurisdiction.
15.1 The parties shall keep in strict confidence all technical or commercial know-how, specification, inventions, processes or initiatives which are of a confidential nature and have been disclosed by a party to the other party, its employees, officers, representatives, agents or subcontractors and any other confidential information concerning the business or its products.
15.2 The parties shall ensure that their employees, officers, representatives, advisers, agents or subcontractors to whom they disclose such information comply with this clause 15.
15.3 The obligations set out in this clause 15 shall not apply to confidential information that the receiving party can demonstrate:
15.3.1 is or has become publicly known other than through breach of this clause 15; or
15.3.2 was in the possession of the receiving party prior to disclosure by the other party; or
15.3.3 was received by the receiving party from an independent third party who has full right of disclosure; or
15.3.4 was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
15.4 This clause 15 shall survive termination of the Contract.
16.1 5quidhost maintains control and ownership of any and all IP numbers and addresses that may be assigned to the Customer and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses.
17.1 The Customer may terminate this Contract by written notice to be received by 5quidhost within seven (7) days’ following the Commencement Date. Any Charges paid will be refunded following termination in accordance with this clause 17.
18.1 Neither party limits liability for:
18.1.1 death or personal injury caused by its negligence (or its officers, agents or employees);
18.1.2 fraud or fraudulent misrepresentation committed by a party (or its officers, agents or employees); or
18.1.3 any other liability which cannot be excluded or limited under applicable law.
18.2 Except as regards its liability to the other under clause 18.1, 5quidhost shall not be liable to the Customer, whether in contract, tort (including negligence) or otherwise for any:
18.2.1 loss of revenue;
18.2.2 loss of actual or anticipated profits;
18.2.3 loss of anticipated savings;
18.2.4 business interruption;
18.2.5 loss of business;
18.2.6 loss of opportunity;
18.2.7 loss of goodwill;
18.2.8 loss of reputation;
18.2.9 loss of, damage to or corruption of data or Materials; or
18.2.10 any special, indirect or consequential loss or damages,
in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties, which for the avoidance of doubt may include 5quidhost’s servers going offline or being unavailable and whether arising in or caused by breach of contract, tort (including negligence) breach of statutory duty or otherwise.
18.3 Subject to clause 18.1, 5quidhost’s entire liability under or in relation to the Contract and in relation to the Services (whether in contract, tort (including negligence) or otherwise) shall in no circumstances exceed an amount equal to the Charges paid by the Customer to 5quidhost during the six months immediately prior to the month in which the cause of action arose.
18.4 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
19.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving written notice to the other if:
19.1.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
19.1.2 the other party has a receiver, administrative receiver, liquidator or administrator appointed, is the subject of bankruptcy proceedings, ceases to trade, passes a resolution for or is the subject of a winding up order (except for the purpose of a solvent amalgamation or reconstruction), makes any composition or arrangement with creditors or is unable to pay any debts as and when they fall due; or
19.1.3 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
19.2 5quidhost may suspend the Services (in whole or part) or terminate the Contract without liability to the Customer with immediate effect upon the provision of notice in writing to the Customer in the event that:
19.2.1 5quidhost reasonably believes that the services are being used in an unauthorised or illegal manner;
19.2.2 the Customer is in material breach of any of its obligations under this Contract; or
19.2.3 the Customer fails to make any payment on the due date.
19.3 Without limiting its other rights or remedies, either party shall have the right to terminate the Contract by giving the other:
19.3.1 7 days written notice in respect of any shared hosting (standard or reseller) service, which for the avoidance of doubt shall exclude any Level1 plan for which clause 19.3.2 shall apply, such notice to expire after the expiry of the first month following the Commencement Date; or
19.3.2 30 days written notice for virtual private server services, dedicated server services and Level 1 shared hosting services, such notice to expire after the expiry of the first three months following the Commencement Date.
19.4 Upon the service of notice pursuant to clause 19.3, the Customer will be responsible for any Charges relating to the notice period.
19.5 On termination of this Contract 5quidhost may delete all Material and files created pursuant to this Contract.
19.6 On expiry or termination of this Contract, all provisions of this Contract shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
20.1 A party shall have no liability to the other party under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of 5quidhost’s subcontractors.
21.1 5quidhost may at any time assign, transfer, subcontract 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.
21.2 The Customer shall not, without the prior written consent of the 5quidhost, assign, transfer, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
22.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to that party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, sent by email to that party’s email address (notified to the other party for contact purposes), or sent by fax to that party's main fax number.
22.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax or email, on the next Business Day after transmission.
22.3 This clause 22 shall not apply to the service of any proceedings or other documents in any legal action.
23.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
23.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
24.1 The Contract constitutes the entire Contract between the parties and supersedes any previous negotiation, written, oral or electronic communication, arrangement or agreement between them or any other statement or representation made by either of them in relation to the subject matter of this contract (except that neither party hereby seeks to exclude liability for fraudulent misrepresentation).
24.2 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of 5quidhost which is not set out in the Contract.
25.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
25.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
26.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership 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.
27.1 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 or enforce any term of this Contract, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
28.1 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by 5quidhost.
29.1 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1.1 “Connectivity” means the provision of data transport between the Account and the Internet.
1.2 “Downtime" means (subject to paragraph 1.3 below) a period of time measured in minutes and determined solely by either 5quidhost’s monitoring systems or 5quidhost’s third party monitoring systems during which an Account (or hardware on which the Account is hosted) fails to achieve Connectivity.
1.3 A period of Downtime shall not be deemed to have occurred if it arises as a result of any of the following:
1.3.1 scheduled maintenance. 5quidhost shall undertake scheduled maintenance whenever possible at times that have minimal impact on the Customer and shall use reasonable endeavors to give the Customer no less than 48 hours notice in advance. All notice shall be sent to the Customer in accordance with Clause 22 of the Contract.
1.3.2 circumstances beyond the reasonable control of the Supplier as set out in Clause 20.1 of the Contract, which may also include a DDoS or other network attacks, upstream or 3 rd party network outages.
1.3.3 5quidhost suspending the Services (in whole or in part) pursuant to Clause 19.2 of the Contract.
1.3.4 the Customer using more than 20% of 5quidhost’s resources in respect of a single server (or processing node) which the Customer’s Account is hosted on.
2.1.1 99.9% of the total minutes in any calendar month in respect of 5quidhost’s standard hosting services and budget VPS services; or
2.1.2 99.98 % of the total minutes in any calendar month in respect of 5quidhost’s Turbo Plus plans and standard VPS services.
2.2 In the event that the Customer experiences a period of Downtime, the Customer shall promptly notify 5quidhost by sending an email to , and in any event by no later than 30 minutes following commencement of a period of Downtime.
2.3 If the Customer fails to notify 5quidhost promptly of any Downtime, or notifies 5quidhost once Connectivity has been restored, it will not be eligible for a Service Level Credit in respect of that period.
2.4 Upon receiving a notification of Downtime from the Customer, 5quidhost shall use reasonable endeavors to ensure that Connectivity is restored as soon as possible.
3.1 C = Minutes of Downtime / Minutes in Calendar Month * Days in Calendar Month.
3.1.1 C will be rounded up to the nearest integer value of days.
3.1.2 The value of 'C' will be a minimum of 1 day (24 hours).
3.1.3 The value of Service Level Credits issued in any one calendar month will not exceed 14 days.
3.1.4 Periods of Downtime reported within 1 hour of each other will count as a single instance of Downtime for the purposes of calculating Service Level Credits.
3.1.5 In respect of the Service Level set out in paragraph 2.1.1 above, each instance of Downtime must be longer than 0.1% of the total minutes in the calendar month in question. Any period of Downtime which is shorter than this will not be eligible for a Service Level Credit.
3.1.6 In respect of the Service Level set out in paragraph 2.1.2 above, each instance of Downtime must be longer than 0.02% of the total minutes in the calendar month in question. Any period of Downtime which is shorter than this will not be eligible for a Service Level Credit.
3.1.7 Any Service Level Credit shall extend the period of the provision of the Services by 5quidhost to the Customer.
3.2 By way of example only, a period of Downtime of 60 minutes in a calendar month with 30 days shall result in a Service Level Credit of one day which is calculated as follows:
3.2.1 60 / 43200 * 30 = 0.0416666667 (which is rounded up to a one day credit).
3.2.2 If three such separate instances of Downtime occurred in one calendar month, 3 days of Service Level Credits could be claimed.
3.3 A Service Level Credit shall not be converted into any monetary value which the Customer may either receive as a refund or set off against any liability of the Customer to 5quidhost.