Webexpand Limited Terms & Conditions
Last updated 28 Feb 2018
1. Payment / Credit. If your account is not paid in full at any time, we reserve the right to take down the website and
email until such time as payment has been received in full. Deposits or payments are not refundable once design
work has commenced.
2. Variations. The work to be done by us is as described in the documentation attached to this Agreement or the agreed
specification. We reserve the right to charge additional fees to implement any changes to this Work.
3. Hosting. Only one website may be hosted on your account.
You may not resell this or re-allocate all or part of your or this space to another party. The terms and conditions of our
hosting company are hereby deemed to be incorporated herein and should be attached hereto. If not, please ask for a
4. Material. You will deliver to us all material that you want to be incorporated into the site in electronic format within
2 weeks hereof ; you warrant to us that you own all copyright and other intellectual property in it or that you have
appropriate licenses for it to be incorporated in the website and you agree to indemnify, defend, save and hold us
harmless from any and all demands, liabilities, costs, claims including reasonable legal fees asserted against us , our agents,
customers, officers or employees that may arise or result from any breach of such warranty
5. Content. You and the registrant of any site, not we, We are not responsible for the content, accuracy, legality
(according to any legal jurisdiction where the site may be viewed) and morality (according to the customs of any
person by whom the site might be viewed) of your site. You are responsible for the legality of the content of your
website. You are also responsible for ensuring that the content is accurate. The following are examples of
inappropriate content: racist material, pornographic or otherwise offensive material, cracks/hacks, copyright material
which you are not authorised to distribute, warez. This is not an exhaustive list and wWe reserve the right to remove
any content that we consider to be illegal, immoral, offensive or contrary to copyright laws or where we have received
a complaint from an official body. Persistent offenders will have their website taken down and their account closed
and no refunds will be given.
6. Browsers. The site will be designed to work in Google Chrome and Firefox at the time of design : We do not
guarantee that the site will look identical or attractive in other browsers or any future browser versions or any
7. Intellectual Property Rights. Material sourced by us for your site will be obtained only for the purpose of
incorporating it into your site and not for any other purpose. You agree not to seek to use it for such other purpose.
We grant to you a permanent non-exclusive licence in material created by us for your site but only for use with that
8. Availability and excess use policy. We host sites on shared servers. We do not guarantee service level agreements
and occasional down-time may occur on either the website or email. If your website traffic should build to a level
where we feel that it is affecting the server’s performance or affecting other websites then we reserve the right to
withdraw the site. We will of course aid you in sourcing an alternative hosting platform although no refund will be
9. Service modification. Should we need to switch hosts then you may experience down-time. We will keep this to a
minimum until we can reload your server onto a new server.
10. Back up of data. You agree to keep a local copy of your site as we cannot be held responsible for your data.
11. Domain names
a) We reserve the right to consider all requests for domain names and accept or reject them in accordance with our view of the
guidelines set by the relevant domain registration body
b) Upon acceptance and receipt of full payment, we will submit names for registration and make full registration if the domain
name is available.
c) The domain name will be held for 12 months and you will have the right to renew this domain name after this time on a 12
d) We will not issue refunds once a registration request has been completed.
e) We cannot guarantee that a domain name has been registered until we receive confirmation of the registration process.
f) We may cancel or suspend a domain name registration if we believe that completing the registration puts us in conflict with
guidelines issued by the relevant body or where we believe that there may be conflicts of rights to a particular domain name.
g) We do not accept any responsibility for the use of registered domain names especially where there may be conflict of rights
h) We do all we can to ensure that the registrants details are submitted correctly during the registration but cannot be held
responsible for any errors or loss of profit suffered by you, the registrant or any party linked to the registrant.
i) You and the (prospective) registrant warrant to us that all details as to the registrant submitted to us are true and correct, that
any alterations made are also true and correct and that the registrant consents to be registered and accepts that information on
him and his ownership of the domain name is made public.
j) We reserve the right to alter our terms or rates in line with those of domain registrars and hosts
k) The website or email may at times become unavailable (due to technical issues at our hosting company or with the internet)
and we cannot be held responsible for this and by signing this agreement you agree not to pursue any claim against us.l) We
cannot guarantee a particular position within a specific search engine for our marketing service. We will use our reasonable
endeavours to set the website pages up to produce a reasonable improvement on current search engine positions (assuming the
pages were not optimized correctly in the first instance).
12. Promotion. We shall be entitled to make reference to our relationship with you in our publicity material. You shall
allow us after completing the Work to permanently insert into our own website a link to your Website from our own
website and vice-versa using words of our choice for any links. You shall allow us to permanently insert into the
source code comments our name, author’s name, URL, and contact telephone number(s).
13. Internet Promotion. We shall endeavour to get your website listed well and usually sites get listed well using our
internet promotion service. As we can never be 100% sure of your competitor activity, there is never a firm
guarantee of a specific position within any search engine and you accept this by signing our order form.
14. Indemnification. You agree that you shall indemnify, defend, save and hold us harmless from any and all demands,
liabilities, costs, claims including reasonable legal fees asserted against us , our agents, customers, officers or employees
that may arise or result from any service provided or performed or agreed to be performed or any product sold by you,
your agents, employees or assigns. You agree to defend, indemnify and hold us harmless against liabilities arising out of;
(1) any injury to person or property caused by any product of yours sold or otherwise distributed in connection with our
server or our host’s server; (2) any material supplied by you infringing or allegedly on the proprietary rights of a third
party; (3) copyright infringement; (4) any defective product sold to a customer of yours from our server or our host’s
15. Limitation of Liability
a. All implied terms, conditions or other legal provisions are hereby excluded to the extent allowed by law
b. We shall not be liable to you for any loss or damage whatsoever or howsoever caused arising directly or
indirectly in connection with this Agreement the development of the Website, the Website itself any
software (including any bespoke software) its use application support or otherwise except to the extent to
which it is unlawful to exclude such liability
c. Notwithstanding the generality of the above, we expressly exclude liability for
i. indirect, financial or consequential loss
ii. loss of profit, business, revenue, goodwill or anticipated savings
iii.damage or corruption to other software or data
iv.damages whether direct indirect compensatory consequential exemplary special incidental or
d. In the event that any exclusion contained in this Agreement shall be held invalid for any reason and we
become liable for loss or damage that it might otherwise have been lawful to limit, you agree that our
liability for breach of this Agreement or other liability of us to you shall be limited to the total value of this
e. Notwithstanding the above, neither party shall exclude or limit its liability to the other for death or
personal injury caused by negligence
f. We agree that the above exclusions and limitations of liability are reasonable, reflect the respective
financial positions of the parties and that the price for our work reflects the position on liability.
16. Assignment. Either of us may assign the benefit (together with the burden) of this Agreement without seeking
permission. The assignor shall notify the other party of the assignment and give details of the assignee as soon as possible
17. Cancellation. We reserve the right to cease hosting services, giving you 30 days notice. Upon such termination, no
refunds will be given as payment is made monthly. No refunds will be made should you breach any of these terms and
conditions. You may cancel your hosting service with us by giving us 30 days notice in writing. No refunds will be issued
for initial design, registration or other charges.
18. Entire Agreement. This Agreement shall constitute the entire agreement and understanding between the parties in
respect of all matters which are referred to herein. Any previous or separate Agreements undertakings and obligations
between the parties are hereby abrogated.
19. Representations. All representations, warranties or other assurances made by or on behalf of us to you other than as
set out in this Agreement do not form part of this Agreement nor shall they legally be enforceable or actionable.
20. Juristriction. These terms shall be governed and construed under the laws of England. Both we and you both submit to
the exclusive jurisdiction of the English Courts.
21. Website Content. All website content (images, typed word document / email) is required within 30 days of ordering
else the project is deemed to be completed and finished.
V2018 ( These are our host’s terms and conditions which you are agreeing to also )
Heart Internet Ltd Terms and Conditions
This page was last updated: 17th March 2015 (by Heart Internet)
This page (together with the documents referred to on it) tells you the terms and conditions on which we supply our services described on our website www.heartinternet.uk to you (“Services”). Our primary services are a domain name registration and renewal service(“Domain Registration and Renewal Service”) or our website hosting service (“Hosting Service”).
Please read these terms and conditions carefully before ordering any Services from our website. You should understand that by ordering any of our Services, you agree to be bound by these terms and conditions.
Please read through these terms and conditions carefully and print a copy for future reference.
Please understand that if you refuse to accept these terms and conditions, you will not be able to order any Services from our website.
- By placing an order for the Services, you consent to us sending to you our regular newsletter. This newsletter is our primary method of communicating with you and will inform you of changes to our website, notify you of planned outages and updates, and keep you informed about our services generally.
Information about us
- www.heartinternet.uk is a site operated by Heart Internet Limited (“we”, “us” and “our”). We are registered in England and Wales under company number 04866768 and have our registered office at Heart Internet Ltd, 5th Floor, The Shipping Building, Old Vinyl Factory, 252-254 Blyth Road, Hayes, UB3 1HA. Our trading address is 2 Castle Quay, Nottingham NG7 1FW. Our VAT number is 927 1292 22.
- By placing an order through our website, you warrant that:
- you are legally capable of entering into binding contracts
- you are at least 18 years old.
- If you are acting on behalf of a company or other business, you further warrant that you personally have the authority to bind that company or business on whose behalf you are placing an order.
- By placing an order through our website, you warrant that:
The order process
- You can only place an order for the Services once you have successfully registered an account with us. Information that you provide while registering an account with us must be complete and accurate. You agree that we may block access to your account and the Services we supply if we reasonably believe that the information you have supplied is inaccurate. You must keep your user name and password secret at all times and not allow anyone else to use it. You must contact us immediately if you believe your user name and password has become known to someone else.
- Before you submit an order (by clicking the “Submit Order” button) you will be shown your order on screen including details of the Services you have wish to order and the price payable. You will then have an opportunity to identify and correct any input errors in your order for the Services.
- You will only be allowed to submit an order once you have registered a credit card or debit card on your account or set up a paperless direct debit.
- After placing an order for the Services we will give you details of the Services you have ordered. We will send the same details to you in an email, together with an invoice, to the email address you provided when you registered your account with us.
- You can view copies of the invoices we have sent you and details of what you have purchased from our website by logging into your account.
How the contract is formed between you and us
- After placing an order, you will receive an e-mail from us accepting your order and, if appropriate, letting you know that the Hosting Service you have purchased has been activated (“Acceptance Confirmation”). Your order constitutes an offer to us to buy our Services and all orders are subject to acceptance by us. The contract between us (“Contract”) will only be formed when we send you the Acceptance Confirmation. We may also decline your order for the Services for any reason, in which case we will tell you so.
- The Contract will relate only to those Services we have confirmed in the Acceptance Confirmation. We will not be obliged to supply any other Services which may have been part of your order until such Services have been confirmed in a separate Acceptance Confirmation.
- We may provide links on our site to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking that products or services you purchase from companies to whose website we have provided a link on our website will be of satisfactory quality, and any such warranties are DISCLAIMED by us absolutely. This DISCLAIMER does not affect your statutory rights against the third party seller.
- If you are buying as a consumer (i.e., not within the course of your business), ordinarily, the Consumer Protection (Distance Selling) Regulations 2000 allow you to cancel the Contract at any time within fourteen (14) working days, beginning on the day after you received the Acceptance Confirmation. However, by placing your order for the Services, you agree to us starting supply of those Services before the end of the seven working day cancellation period referred to here. As such, you will not have the right to cancel the Contract under the Consumer Protection (Distance Selling) Regulations 2000.
- This provision does not otherwise affect your statutory rights.
Our limited money back guarantee
- Once the Contact has been formed you may, subject to clause 8.2, only cancel the Contract in relation to the Hosting Service you have purchased (unless your Hosting Service includes the use of a dedicated hosting server or VPS/ Hybrid Server in which case you may not cancel the Contract). In such cases, you may cancel at any time within thirty (30) days, beginning on the day after you received the Acceptance Confirmation. If you do so, you will receive a full refund of the price paid for the Hosting Service you have cancelled. We will refund the price you have paid to the credit card, debit card or other account you used to make that payment. No other refund will be made. Limited to one per customer.
- To cancel the Contract under clause 8.1, you must inform us in writing through our support ticket system https://customer.heartinternet.uk/manage/ticket.cgi before the end of the thirty (30) day period mentioned in clause 8.1. As part of our cancellation process, we will respond to you via our support ticket system to confirm your cancellation request. You must re-confirm your cancellation request via our support ticket system or we will continue to supply the Hosting Service and your cancellation under clause 8.1 will be ineffective.
- You will not have any right under clause 8.1 to cancel the Contract for the supply of any other Services other than that noted in clause 8.1. Therefore, the Services which may not be cancelled include (but are not limited to):
- Hosting Services where you request a dedicated hosting server
- Domain Registration and Renewal Services
- Use of SSL certificates and other ‘add on’ products.
Price and payment
- The price of any Services will be as quoted on our website from time to time, except in cases of obvious error. These prices exclude VAT.
- The total cost of your order of the Services will be set out clearly in your Shopping Basket before you submit your order for the Services.
- Prices are liable to change at any time. We will notify you of a change in our prices at least thirty (30) days before the price increase comes into force. Any such price increase will not be effective until the Minimum Term (as defined in clause 20.3) expires. If you do not agree to such price changes, please cancel your Services in accordance with clause 20.3.1. If you do not cancel you will be deemed to have accepted the new prices, and they will be charged to the credit card, debit card or other payment method registered to your account.
- Our website contains the details of a large number of Services and it is always possible that, despite our best efforts, some of the Services listed on our website may be incorrectly priced. Where a Service’s correct price is less than our stated price, we will charge the lower amount when accepting your order. If a Service’s correct price is higher than the price stated on our website, we will normally, at our discretion, either contact you for instructions before accepting your order, or reject your order and notify you of such rejection.
- We are under no obligation to provide the Services to you at the incorrect (lower) price, even after we have sent you an Acceptance Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mis-pricing.
- You must register a payment method for the Services you have ordered before submitting your order. You may pay by credit or debit card or, alternatively, you may set up a paperless direct debit against your account. We will take payment from the payment method you have registered against your account immediately upon sending you our Acceptance Confirmation or shortly thereafter. If we subsequently reject your order, we will refund the payment you have made to the credit card, debit card or other account you used to make the payment.
- Please note that when purchasing a Service, you are obliged to pay for that Service for the whole of the Minimum Term (as defined in clause 20.3) that applies to it (unless you have cancelled the Service under clause 8.1) even though you may pay by monthly direct debit payments. Consequently, you must not cancel your direct debit payments without first cancelling your Services under clause 20.3.1.
- We reserve the right to seek to recover any outstanding amounts due by you by other means, including referring the debt to an external debt recovery agent and/or by taking appropriate legal action. If your outstanding payment is referred to our external debt recovery agent then you may become liable for additional fees and charges and you agree to pay such charges in addition to the outstanding amount owed to us.
- Time for payment shall be of the essence. No payment shall be deemed to have been received until we have received cleared funds. If your chosen method of payment is not authorised by your credit card provider or bank, you hereby authorise us to seek payment from any other credit card, debit card or direct debit registered against your account. Further, if your payment is still not authorised we may, at our discretion, suspend or terminate any Services we provide to you from time to time, even if payment in respect of such Services is not outstanding.
- We warrant that (subject to the other provisions of these terms and conditions) any Services purchased from us through our website will be provided with reasonable care and skill.
- We will not be liable for a breach of the warranty in clause 10.1 unless:
- you give written notice of the breach to us through our support ticket system https://customer.heartinternet.uk/manage/ticket.cgi
- we are given a reasonable opportunity after receiving the notice of examining our provision of the Services to you.
- We will not be liable for a breach of the warranty in clause 10.1 if:
- the problem arises because you failed to follow our oral or written instructions as to the use of the Services (if there are any)
- you alter the Services without our written consent
- the problem arises because of misuse
- Subject to clause 10.2 and clause 10.3, if we are in breach of the warranty in clause 10.1 we will, at our expense, use all reasonable commercial efforts to remedy the breach promptly or refund the price of the Services at the pro rata Contract price. This constitutes your sole and exclusive remedy for any breach of the warranty set out in clause 10.1. Notwithstanding the foregoing, we do not warrant that your use of the Services will be uninterrupted or error-free.
- We reserve the right to modify the Services without notice to you provided such modification does not adversely effect your access to, or use of, the Services or detract from the overall performance of the Services. Any change which may have such adverse effect on you or may detract from the overall performance of the Services will be notified to you at least sixty (60) days prior to the change taking effect.
- You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf which is not set out on our website or otherwise confirmed in writing by us. Nothing in this clause will exclude or limit our liability to you for fraudulent misrepresentation.
Access to the Hosting Service
- You are responsible for making all arrangements necessary for you to have access to our Hosting Services. You are also responsible for ensuring that all persons who access our Services through your Internet connection are aware of these terms and conditions (and in particular our acceptable use policy
Hosting Service service levels
- We will use our reasonable endeavours to make our servers available to you as part of the Hosting Service you purchase for ninety-nine point nine nine (99.99) per cent of each calendar month. We do not warrant access to our servers will be uninterrupted or error free but we shall use reasonable endeavours to keep downtime to a minimum. We shall make all commercially reasonable efforts to provide you with advanced notification of all scheduled and emergency outages through the system status page http://www.webhostingstatus.com on our website and through our newsletter.
- Service credits are not given for any form of downtime or service unavailability.
- You will have no right, title or interest in any internet protocol address (“IP address”) allocated to you, and any IP address allocated to you is allocated as part of the Hosting Service you purchased and is not portable or otherwise transferable by you in any manner whatsoever.
- If an IP address is re-numbered or re-allocated by us, we shall use our reasonable endeavours to avoid any disruption to you.
- You agree that you shall have no right, title or interest to any IP address upon expiry or termination of the Services, and that the acquisition by you of a new IP address following expiry or termination of the Services shall be solely your responsibility.
Back-up of your material and our servers
- It is your responsibility to maintain appropriate and up-to-date back-up copies of any data, information or other material you upload (or permit to be uploaded) onto our servers (“Material”) as part of your use of the Hosting Services. In the event of loss of or damage to your Material, you will not be given access to the server back-up we maintain pursuant to our archiving procedure.
- We will follow our archiving procedures for the data stored on our servers. In the event of any loss or damage to our servers, your sole and exclusive remedy will be for us to use reasonable commercial efforts to restore the data on our servers (including your Material) from the latest back-up we maintained in accordance with our archiving procedure. We will not be responsible for any loss, destruction, alteration or disclosure of your Material caused by you or any third party.
Hosting Service usage limitations
- Your limitations are:
- your Material is linked into web pages
- you do not use the Hosting Service as a backup of, or repository for, your Material
- you maintain good housekeeping to maintain your Material
- you comply with our acceptable use policy https://www.heartinternet.uk/terms/acceptable-use-policy.
- The Hosting Service package you order includes the per calendar month bandwidth allowance applicable to that hosting package as this is set out on this website at the time of your order. The Hosting Service you have ordered will be automatically suspended if this monthly bandwidth allowance is exceeded. If this happens, you have to upgrade your Hosting Service package to one which includes a higher monthly bandwidth allowance, or wait for the Hosting Service to resume at the start of the following calendar month. You can monitor your monthly bandwidth usage in the eXtend control panel http://www.extendcp.co.uk
- Unless the Hosting Service package you order includes a dedicated server, you will only be allowed to use a maximum of five (5) per cent of our server’s processing capacity when using the Hosting Service package you order. At our absolute discretion, we may allow your usage to exceed this limitation, and we will speak to you about your hosting requirements if your usage has, or may have, a detrimental effect on our other customers.
- The Hosting Service package you order includes the number of mailboxes applicable to that hosting package as this is set out on our website at the time of your order. However, any mailboxes that have not been accessed for one hundred (100) clear days will be automatically deleted from our system.
- When using the Services, you must comply with our Terms of Website Use https://www.heartinternet.uk/terms/heart-internet-ltd-website-terms-of-use and our Acceptable Use Policy https://www.heartinternet.uk/terms/acceptable-use-policy and these are incorporated into the Contract by reference. Any conflict between our terms of website use and these terms and conditions, will be resolved in favour of these terms and conditions.
- We shall be entitled to terminate the Contract, or suspend or terminate the provision of any individual Services, if you are in breach of our Terms of Website Use https://www.heartinternet.uk/terms/heart-internet-ltd-website-terms-of-use or our Acceptable Use Policy https://www.heartinternet.uk/terms/acceptable-use-policy
- Your limitations are:
- If a problem has arisen with regard to the Services or your registered account, you can access support through our support ticket system https://customer.heartinternet.uk/manage/ticket.cgi twenty-four (24) hours a day, seven (7) days a week.
- Our support team will help resolve any problems you have with the Services you are receiving. We will not provide programming support to you, but, as part of our Hosting Services, our servers are compatible with many programming languages.
- Where the Contract includes our Domain Registration and Renewal Service:
- we will endeavour to procure the registration of the domain name you request
- we will not be liable in the event that the relevant domain name registry refuses to register the domain name you request, or subsequently suspends or revokes any registration for that domain name
- we shall not act as your agent or on your behalf in any dealings with domain name registry
- the registration of the domain name you request and its ongoing use is subject to the relevant domain name registry’s terms and conditions of use which you should obtain and consider https://www.heartinternet.uk/terms/
- you are responsible for ensuring that you are aware of the terms referred to in clause 17.1.4 so that you can comply with them
- the domain name you request will only have been successfully registered when you appear as the registrant on the appropriate “whois” database of the top level domain name registrar
- we shall have the absolute discretion to require you to select a replacement domain name to the one you have requested to be registered, and may suspend or terminate our performance of the Domain Registration and Renewal Service, if, in our opinion, there are reasonable grounds for us to believe that your current choice of name is, may or is likely to be in bad faith, breach of the provisions of these terms and conditions or any legal or regulatory requirement
- you confirm and warrant that you are the owner of any trade mark in any domain name (or have the authority of the owner of any trade mark to use such name) that you have requested be registered.
- You confirm and warrant that you are the legal owner of any domain name (or have the authority of the legal owner to use such domain name) supplied by you, or otherwise authorised by you, for use as a domain name in connection with any website in relation to which the Hosting Service supplied to you is used.
- Once the domain name has been successfully registered, it will need to be renewed periodically to ensure you retain your registration of it. We will send you renewal notices thirty (30) days and seven (7) days before the renewal date of your registered domain name. These notices will be sent to the email address then registered against your account. You hereby authorise us to automatically renew the domain name for you unless you have cancelled the Domain Registration and Renewal Service in accordance with clause 20.1.1. The price for the renewal will be as set out in the renewals page of the customer administration area and will be charged against one of the payment methods then registered against your account.
- You acknowledge and agree that we may place a number of locks on any domain registered with us either at the time of registration or at any time thereafter and without further notice to you. The locks that we may place on a domain include ‘clientDeleteProhibited’, ‘clientTransferProhibited’ and ‘clientUpdateProhibited’.
- Where the Contract includes our Domain Registration and Renewal Service:
Intellectual property rights
- You, or your licensor, retain all intellectual property rights in your Material, and you grant to us a worldwide, non-exclusive, royalty free licence to use, store and maintain your Material on our servers and publish your Material on the Internet for the purpose of providing the Hosting Service to you. You warrant that your Material does not infringe the intellectual property rights of any third party and you have the authority to grant the licence in this clause 18.1 to us. We may make such copies as may be necessary to perform our obligations, including making back-up copies of your Material.
- You will defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services or of any claim or action that your Material infringes, or allegedly infringes, the intellectual property rights of a third party.
- If you download software we own from our website, we grant you a non-exclusive, non-transferable royalty free licence to use that software for the purpose set out on our website in relation to that software. Such licence will automatically terminate when we stop providing the Hosting Services to you.
- Any third party software that you download from our website shall be licensed to you on the standard software licence terms of the owner of the intellectual property rights in that third party software as those licence terms are notified to you at the time you download such software.
- We retain all intellectual property rights in the Hosting Services (other than in your Material) and our software referred to in clause 18.3. Accordingly, you must not decompile, disassemble or reverse engineer the Hosting Services or our software.
- We will defend you against any claim that the Hosting Services (but not materials stored or maintained on our servers by third parties) infringe any United Kingdom intellectual property rights of a third party (other than infringements referred to in clause 18.2), and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
- you give prompt notice of any such claim
- you make no admissions or settlements without our prior written consent
- you provide reasonable co-operation to us in the defence and settlement of such claim, at your expense
- we are given sole authority to defend or settle the claim.
- In the defence or settlement of the claim, we may obtain for you the right to continue using the Hosting Services, replace or modify the Hosting Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract with you without liability to you (in which case we will refund to you the price you have paid on a pro-rata basis). We will have no liability to defend or indemnify you if the alleged infringement is based on:
- a modification of the Hosting Services by anyone other than us
- your use of the Hosting Services in a manner contrary to our instructions or our Acceptable Use Policy https://www.heartinternet.uk/terms/acceptable-use-policy
- your use of the Hosting Services after notice of the alleged or actual infringement from us or any appropriate authority.
- The foregoing states your sole and exclusive rights and remedies, and our entire obligations and liability, for the infringement of any third party’s intellectual property rights by the Hosting Services.
- We do not monitor and will not have any liability for your Material or any other communication you transmit, or allow to be transmitted, by virtue of the Hosting Services.
- Due to the public nature of the Internet, we shall not be liable for the protection of the privacy of electronic mail or any other information transferred through the Internet or via any network provider and no guarantee or representation is given that the Hosting Services will be free from hackers or unauthorised users. You shall be liable for the content of any emails transmitted by virtue of the Hosting Services, for any material you upload to, or allow to be uploaded to, our servers and for ensuring compliance at all times with all relevant legislation (including, but not limited to the Data Protection Act 1998 and all other privacy laws, regulations and guidance notes made or issued thereunder).
- All conditions, terms, representations and warranties that are not expressly set out in these terms and conditions (or the documents referred to in them) are hereby expressly excluded.
- We do not exclude or limit in any way our liability:
- for death or personal injury caused by our negligence;
- under section 2(3) of the Consumer Protection Act 1987
- for fraud or fraudulent misrepresentation
- for any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
- We will not be responsible for the following types of losses (in each case whether direct, indirect or consequential) and whether they are caused by our negligence or otherwise:
- loss of income or revenue
- loss of business
- loss of profits or contracts
- loss of anticipated savings
- loss of goodwill
- loss of software or data
- wasted expenditure (such as pay per click advertising costs)
- wasted management or office time.
- Subject to clause 19.4 and clause 19.5, our maximum aggregate liability under or in connection with the performance or contemplated performance of the Contract, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed one hundred and ten (110) per cent of the price you have paid to us for the Services during the twelve (12) months preceding the event giving rise to the liability in question. Accordingly, you are advised to acquire business interruption insurance, or other appropriate insurance, to protect you and your business in the event of interruption of the Services (in particular the Hosting Service).
- Where you buy any product or service from a third party seller through following a link on our website to such third party’s website, the seller’s individual liability will be set out in the seller’s terms and conditions. You should consult such terms and conditions.
Duration of the Services and cancellation
- That part of the Contract relating to our Domain Registration and Renewal Service will commence on the date we send you our Acceptance Confirmation. It will continue until:
- we have registered the domain name you have requested (the “Domain Name”) and you subsequently ask us not to renew the registration of your Domain Name by logging into your domains control panel https://customer.heartinternet.uk/ and setting the Domain Name renewal option to “cancel” before the renewal date
- we terminate the supply of our Domain Registration and Renewal Service by notice to you because:
- the Domain Name is no longer available for registration
- clause 17.1.7 applies
- you are in breach of clause 17.1.8
- of some other reason preventing the registration of the Domain Name.
- If we terminate the Domain Registration and Renewal Service under clauses 18.104.22.168, 22.214.171.124 or 126.96.36.199, we will refund the price you have paid for the Domain Registration and Renewal Service to the credit card, debit card or other account you used to make the payment.
- That part of the Contract relating to Services other than our Domain Registration and Renewal Service will also commence on the date we send you our Acceptance Confirmation. Unless such Services are terminated as provided in this clause 20.3, they shall continue for the minimum period of time that applies to the Service you have purchased (as these are set out on our website and subsequently confirmed in the Acceptance Confirmation) (“Minimum Term”). After expiry of the Minimum Term, they will continue on a month to month basis until terminated:
- by you, as a Consumer, informing us of your decision to cancel the Contract by a clear statement (e.g. a letter sent by post, fax, e-mail, through our support ticket system (https://customer.heartinternet.uk/manage/ticket.cgi.) and providing thirty (30) days notice. You may use the model cancellation form, but it is not obligatory
- by you, as a Business customer, informing us of your decision to cancel the Contract by contacting our customer support department via support ticket system (https://customer.heartinternet.uk/manage/ticket.cgi)
- by us giving to you at least thirty (30) days advanced notice in written sent to the then current email address registered against your account
- by exercising your right as a Consumer, to cancel the Contract(s) within the “cooling off period” i.e. within 14 (calendar) days of purchase. To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired. Please note that the Cooling Off period only applies to Consumers, not Business Customers. If you are unsure whether you are a Business Customer or a Consumer, you can view the definitions of these terms in the Definitions section of our Terms and Conditions.
- As part of our cancellation process, we will respond to you through our support ticket system. You must re-confirm your cancellation request via our support ticket system or we will continue to supply the relevant Services and your cancellation will be ineffective. You cannot cancel any of your Services by letter, email or telephone. You will not receive any refund of the price you have paid for the Services you have cancelled
- The monthly price for Services we supply under Contracts that continue on a month to month basis under clause 20.3 shall be charged monthly in advance directly to a credit card, debit card or other payment method registered against your account. Such payment will be taken on the same date of the month as on which the Services had originally commenced (“Payment Date”) unless or until you cancel the Services in accordance with clause 20.3.1. We will not provide you with a refund for a cancellation that is part-way through a billing period. Where the Payment Date does not recur in a particular month (e.g., 31 January, but there is no 31 February), you will be charged on the closest preceding date to the Payment Date (e.g., 28 February) for that month
- Without prejudice to any other right to terminate or suspend the Services we may have under these terms and conditions, our Terms of Website Use https://www.heartinternet.uk/terms/heart-internet-ltd-website-terms-of-use or our Acceptable Use Policy https://www.heartinternet.uk/terms/acceptable-use-policywe may terminate the Contract at any time by giving you thirty (30) days advance notice by emailing you at the email address registered against your account. If we cancel the Services, we will refund to you the price you have paid for the Services on a pro-rata basis for the unexpired Minimum Term
- Notwithstanding anything to the contrary in these terms and conditions, if you are in breach of an obligation of these terms and conditions we may terminate the Contract by seven (7) days notice to you and/or, at our absolute discretion, terminate or suspend without notice any individual Services we provide to you from time to time.
- Expiry or termination of the Contract shall be without prejudice to any rights and liability of either of us arising in any way under that Contract as at the date of expiry or termination.
- That part of the Contract relating to our Domain Registration and Renewal Service will commence on the date we send you our Acceptance Confirmation. It will continue until:
Deletion of your data
- If you cancel your Services, any data we hold or host in relation to the Services you have cancelled will be immediately and permanently deleted from our system. Accordingly, you are strongly advised to make appropriate copies of such data before you cancel your Services.
- If you have purchased a Hosting Service aimed at resellers, your package will allow multiple accounts to be set up for your customers. If you disable any of these accounts and they remain disabled for fifty (50) clear days, we will immediately and permanently delete those disabled accounts (and all the data hosted in relation to them) from our system.
- Additional terms and conditions may apply for our offers. If so, you will be advised of them at the relevant point.
- Applicable laws require that some of the information or communications we send to you should be in writing. When using our website, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
- All notices given by you to us must be given though our support ticket system https://customer.heartinternet.uk/manage/ticket.cgi. We may give notice to you at either the then current e-mail or postal address registered against your account with us.
Third party rights and transfer of rights and obligations
- Neither you nor we intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
- The Contract is binding on you and us and on our respective successors and assigns.
- You may not transfer, assign, charge or otherwise dispose of the Contract, or any of your rights or obligations arising under it, without our prior written consent.
- We may transfer, assign, charge, sub-contract or otherwise dispose of the Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.
Events outside our control
- We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by events outside our reasonable control (“Force Majeure Event”).
- A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
- misuse, alteration or interference by you or any third party of our servers or systems (including virus and hacker attacks);
- strikes, lock-outs or other industrial action;
- civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
- fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
- mpossibility of the use of public or private telecommunications networks; and
- the acts, decrees, legislation, regulations or restrictions of any government.<
- Our performance under the Contract will be deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
- If we fail, at any time during the Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
- A waiver by us of any default shall not constitute a waiver of any subsequent default.
- No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 24.
- If any of these terms and conditions or any provisions of the Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- These terms and conditions and any document expressly referred to in them represent the entire agreement between us both in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
- We each acknowledge that, in entering into the Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these terms and conditions.
- Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in these terms and conditions.
Our right to vary these terms and conditions
- We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.
- You will be subject to the policies and terms and conditions in force at the time that you order services from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Acceptance Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven (7) working days of receipt by you of the Acceptance Confirmation).
- No variation of these terms and conditions shall be valid unless it is in writing and signed on our behalf.
Law and jurisdiction
- Contracts for the purchase of Services through our site will be governed by English law. Any dispute arising from, or related to, such the Contract shall be subject to the exclusive jurisdiction of the courts of England and Wales. English is the language offered for the conclusion of the contract between us both.
WPENGINE TERMS OF SERVICE v2018
WPENGINE TERMS OF SERVICE WHICH YOU ARE AGREEING TO ALSO IF YOU SIGN OUR CONTRACT / ORDER FORM
These Terms and Conditions, together with any terms which you clicked-through in the process of purchasing services (an “Order”), our Service Level Agreement (“SLA”) located at (http://wpengine.com/sla/), and the Acceptable Use Policy (“AUP”) located at (http://wpengine.com/aup/), each of which is incorporated by reference, set forth the terms and conditions pursuant to which WP Engine (“we”, “us”, or “our”) will provide the Services to you (“Agreement”). Capitalized terms used but not defined herein have the meanings ascribed to them in the Order. We may update this Agreement from time-to-time. In the event of a material change to this Agreement, we will provide you with written notice. Your continued use of the Services following such updates constitutes your acceptance of the same. If you do not agree to the terms of any modification, you may terminate this Agreement in accordance with the Termination section below.
CONTRACTING PARTY AND AUTHORIZED USERS
- While signing up, you provided personal information of the account owner (“Customer”). The Customer is the sole owner of the account. By agreeing to these terms, you represent and warrant that you have the authority to bind Customer to this Agreement.
- You may designate through the customer portal up to four users that have authority to make changes to the account (“Authorized User(s)”). In addition, any other individual who is able to provide us with evidence satisfactory to us that such individual has the authority to act on your behalf (e.g. the last four digits of the credit card used for the Fees) will also be able to access the account.
- Each person or entity that accesses your account is required to abide by the terms of this Agreement. You acknowledge that you are fully responsible for all liabilities incurred through use of the account the Services including all damages, losses and liabilities caused by each user. You shall promptly notify us in the event that you become aware of any violation of this Agreement. You are solely responsible for the security and confidentiality of the account information, including user names and passwords, and you will ensure that no unauthorized party uses the account.
PROVISION AND USE OF THE SERVICES
- Subject to the terms and conditions of the Agreement, we will provide the Services to Customer. The Services may only be used for their intended purposes and in accordance with this Agreement. You shall provide us with all assistance as reasonably required for us to activate and operate the Services.
- You acknowledge that we may engage third parties to provide or enable elements of the Services.
- From time-to-time we may cease supporting aspects of the Services (any such event, an “End of Life”). Should components of the Services come to an End of Life, we will attempt to replace them with comparable components, but may not be able to do so. An End of Life is not a breach of this Agreement.
- Certain aspects of the Services may be in beta form as designated by us (“Beta Services”). In addition to the disclaimers of warranty set out in this Agreement, the Beta Services are provided on an as-is basis with the express understanding that they may not have been tested, have faults, and may not be as secure as other elements of the Services. Any SLA does not apply to the Beta Services. We reserve the right to terminate the Beta Services at any time, even if you have relied on them as a material inducement to enter into this Agreement. We make no guarantee that Beta Services will be put into production.
- If you order a dedicated IP address from us, you have the right to use this IP address only during the Term.
- While we do provide backup, there is no guarantee that the backup will work properly and that the content will be completely recovered or formatted properly. You are solely responsible for keeping a separate backup of any data that you do not want to lose.
- We provide support through a variety of methods (e.g. knowledgebase, forums, chat) (“Support”). Please refer to https://my.wpengine.com/ for the most current support information.
- If you abuse our support staff or any employee of WP Engine, we may terminate this agreement and your access to the Services effective immediately.
- During our interactions with you, including while providing Support, we may solicit or you may provide feedback about the Services. You agree that we are free to use and disclose this feedback for any purpose. If we make any changes to our current services or products, or develop new products or services, using the feedback, then you agree that we own all right, title and interest to such changes or new products or services.
- The charges for the Services are set out on the Order (“Fees”). Fees applicable to any renewal Term will be at our then-current rates. Overages may apply if your use of the Services exceeds your plan limits (e.g. exceeding the number of monthly visitors). Additionally, we may adjust the Fees if there is a change to the configuration your sites or your use of the Services (including changes to CPU or RAM consumption, cacheability, bandwidth, visitors, or transfer).
- You will be charged the Fees beginning on the Effective Date. Our schedule of payments is set out on the Order; if no schedule is stated, Fees are due in full in advance, except that Fees for applicable overages will be invoiced and charged in arrears. All Fees are payable in U.S. dollars and are not refundable. We will collect the Fees by debiting the electronic payment method that you have provided to us. Credit, debit, or other similar sources of payment may be debited up to one week prior to the due date. You must keep the method of payment current and able to be debited. If payment is not made by or on the due date, we may charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly.
- We may be required to collect taxes on the Services. Taxes (excluding taxes on our income) will be added to the Fees and you agree to pay them, unless you provide us with a valid tax exemption certificate. If you elect to pay via a wire transfer or credit transfer then you are responsible for any transfer fees, which will be automatically added to the Fees.
- If you do not pay on time, we may suspend or terminate the Services and terminate this Agreement. In addition, Third Party Services may be forfeited. We may also send you to collections, and add to the Fees any charges associated with collecting unpaid Fees. If the Services are suspended because we do not receive payment, we will preserve Customer Content (defined below) in accordance with our normal backup processes and procedures. After that time the Customer Content will be deleted.
- If the Order references any money-back guarantee, this guarantee applies only to our standard Services and not to Third Party Services (e.g. domain names), set up or migration Services, or other Services that are custom or non-standard.
- The WP Engine Automated Migration plugin must be used within 60 days from account creation. We do not guarantee plugin availability after 60 days from account creation.
- We do not claim any ownership rights in your content that you provide to us in connection with the Services (“Customer Content“). However, to provide the Services, we need you to grant us a right to use the Customer Content. As such, you hereby grants to us, our affiliates, providers of Third Party Services, and subcontractors a non-exclusive, fully-paid, perpetual, royalty-free, , transferable, revocable, worldwide license to use, modify, publicly perform, publicly display, reproduce, and distribute the Customer Content (in whole or in part) but only to the extent necessary to provide the Services.
- WP Engine and its licensors own all right, title, and interest in and to Services and the systems and networks used to provide such Services (including all system generated data (e.g. performance data)), including all modifications, improvements, upgrades, derivative works, and feedback provided by you or any Authorized User and all intellectual property rights in and to any of the foregoing. You agree to assign all right, title, and interest you may have in the foregoing to us. Except for the express rights granted herein, we do not grant any other licenses, whether express or implied, to any of WP Engine’s intellectual property including software, services and products.
TERM AND TERMINATION
- The term of this Agreement and any Order is one-month starting from the date Customer signs up (“Initial Term”). Upon expiration of the Initial Term, this Agreement and any Order automatically renew for successive one month periods (each a “Renewal Term”) unless one party notifies the other in writing of its intent not to renew no later than thirty days prior to the expiration of the then-current Renewal Term or the Agreement or Order is otherwise terminated in accordance with the terms of this Agreement.
- Either party may terminate this Agreement and any Order at any time for any reason at any time for any reason or no reason by providing the other party with 30 days’ prior written notice. Additionally, we may terminate this Agreement or any Order immediately if (i) you fail to pay for Services on time, (ii) your use of the Services endangers or negatively affects our networks or systems, violates the law or our AUP, or inhibits our ability to provide services to our other customers.
- Upon any termination or expiration of this Agreement we will stop providing the Services. This means that Customer’s Content may not be available. It is Customer’s sole obligation to keep separate backups and to download the Customer Content prior to termination or the expiration this Agreement.
- “Confidential Information” means any information disclosed by us to you, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that we identify as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. You agrees to preserve the confidential nature of the our Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with this Agreement. We will have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section. You agree to promptly report any breaches of this section to us.
- Each party represents and warrants that it has the power, authority and legal right to enter into this Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference.
- Customer represents and warrants that it owns or has a license for all intellectual property and other proprietary rights necessary to make the license grants to us contained herein. At our request, Customer will provide us evidence of this ownership or license. Customer represents and warrants that our use of the Customer Content in accordance with such license will not infringe the intellectual property or other proprietary rights of any individual or entity. Customer also represents and warrants that all information it provides to us is complete, accurate and up-to-date. Finally, Customer represents and warrants that if it is a natural person, that it is over eighteen years of age.
- OTHER THAN AS IS EXPRESSLY SET OUT IN THE SLA, THE SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTIES SECTION, ABOVE, (i) WP ENGINE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND (ii) WP ENGINE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY AND REMEDIES
- IN NO EVENT SHALL OUR LIABILITY ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO US IN THE THREE MONTHS PRECEDING THE CLAIM.
- IN NO EVENT SHALL WE OR OUR LICENSORS HAVE ANY LIABILITY TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, THE SERVICES OR FOR ANY CONTENT, OR ANY INTERRUPTION IN THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- CUSTOMER AGREES THAT OUR SLA CONTAINS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INTERRUPTION, PARTIAL UNAVAILABILITY, AND COMPLETE UNAVAILABILITY OF THE SERVICES, AND ANY OTHER ITEM SET OUT IN THE SLA.
- THE DISCLAIMERS AND LIMITATIONS PROVIDED HEREIN DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- You agree to defend us against any claim, demand, suit or proceeding made or brought against us by a third party arising out of your conduct that constitutes a violation of our Authorized Use Policy. Customer will indemnify us for damages finally awarded against us in connection with any such claim (or for a settlement amount Customer consents to).
SECURITY; SAFE HARBOR
- We will maintain commercially reasonable administrative, physical and technical safeguards designed to help ensure the security of our internal networks from malicious activity and to provide for the privacy, confidentiality and integrity thereof. However, security is a shared responsibility. You agree to configure your use of the Services in such a way as to maintain the security of our Services and network (e.g. by only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords).
- Should we determine that there has been a security breach that has compromised your account we agree to notify you as soon as reasonably possible but only after we have investigated the breach and fulfilled our legal obligations under applicable law. You agree to the same notification obligations should you determine that there has been a breach.
- Data Controller/Data Processor. This section applies only to customers that are located in a European Economic Area member state. We are the data controller for the personal data those customers submit through the sign up process (e.g. contact information, credit card number). For all other personal data collected through provision of the Services (i.e. any personal data submitted through supported sites), we are the data processor. Where we are the data processor, we will endeavor to use such personal data only as instructed by the customer and not for any other purposes.
- Publicity. Upon our written request, the parties will cooperate on and issue a press release, provided that neither party may do so without providing the other party a reasonable opportunity for input. During the term, either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard trademark usage guidelines. You will allow our public relations agencies or in-house staff to interview, write, and place case studies and written endorsements in initial news, reviews, and editorial calendar opportunities. You also agree to participate in phone interviews with prospective customers and investors, industry analysts, and review and news editors as requested by from time to time.
- Governing Law and Venue. This Agreement is governed by the laws of the State of Texas, without regard to its choice of law statutes. Any disputes must be brought in the U.S. District Court for the Western District of Texas, located in Austin, Texas. If that U.S. District Court cannot hear the dispute, the dispute shall be brought before the State District Courts of Travis County located in Austin, Texas. The parties agree that venue and jurisdiction is proper in this court and agree not to contest notice from this court. The United Nations Convention on the International Sale of Goods is disclaimed. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT. The parties further agree that the pricing and terms of this Agreement were made in reliance upon agreement to this paragraph.
- ARBITRATION AND CLASS ACTION WAIVER. Both parties agree that, except as otherwise provided herein, all disputes (including any dispute involving interpretation, applicability, enforceability, or formation of the Agreement, including any claim that the Agreement or any part of it is void or voidable)will be resolved by binding, individual arbitration under the American Arbitration Association’s rules. Both parties waive trial by jury. As an alternative, either party may bring a claim in Customer’s local “small claims” court if permitted by that court’s rules. Additionally, either party may seek emergency injunctive relief by filing for such in accordance with the Governing Law and Venue section above. Customer may bring claims only on its own behalf. Neither party may participate in a class action or class-wide arbitration for any claims covered by this Agreement. Customer also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either party may elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.WP Engine will pay all arbitration fees (excluding attorneys’ fees) for claims less than $10,000. WP Engine will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- You may opt out of this agreement to arbitrate. If Customer does opt out, neither party can require the other to participate in an arbitration proceeding. To opt out, Customer must notify us in writing, via the folloowing email or mail address, within thirty (30) days of the date that Customer first became subject to this arbitration provision: WP Engine, Inc. ATTN: LEGAL – Arbitration Opt-Out, 504 Lavaca, Suite 1000, Austin, TX 78701; and/or, email@example.com. Customer must include their name, residence address, and a clear statement that Customer wants to opt out of this arbitration agreement. If the prohibition against class actions and other claims brought on behalf of third parties or arbitration clause contained above is found to be unenforceable or if Customer opts-out of arbitration then all of the preceding language in this section will be null and void and the Governing Law and Venue section shall control. This arbitration agreement will survive the termination of Customer’s relationship with us. The parties further agree that the pricing and terms of this Agreement were made in reliance upon agreement to this paragraph.
- Amendment and Waiver. Except as expressly provided herein, this Agreement, including any other contracts incorporated by reference, may only be amended as agreed by the parties in a written amendment (including by a click-to-accept that is accepted by you or Authorized User). The parties further agree that upgrades (e.g. moving up a service plan level), downgrades (e.g. moving down a service plan level), and additional services (e.g. adding account management services) may be agreed via electronic communication (e.g. ticket or email) that is acknowledged by authorized representatives for both parties. If one party fails to exercise, or delays exercising, any right, remedy or power set out in this Agreement, this will not operate as a waiver of that right, remedy or power, whether under this Agreement or at law or equity.
- Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, provided that no consent is required in connection with a merger, reorganization, sale of assets or similar transaction. Any purported assignment in violation of this section shall be null and void. The Agreement will be binding on all permitted successors and assigns.
- Severability. Any provision in this Agreement that is held to be illegal or unenforceable in any jurisdiction will be effective only up to the extent of such illegality or unenforceability, if possible, and willnot invalidate the remaining provisions of the paragraph or this Agreement. To the largest extent possible, the illegal or unenforceable provision will be restated to reflect the parties’ intent.
- Entire Agreement. This Agreement, and any document incorporated by reference, states the entire agreement between the parties with respect to the subject matter and supersedes all previous proposals, negotiations and other written or oral communications between the parties. Customer’s pre-printed purchase orders will have no force or effect.
- Order of Precedence. If there is a conflict between this Agreement and any contracts incorporated by reference, they shall have the following precedence: Order, Agreement, then the applicable exhibit or other referenced document.
- Force Majeure. We shall not be deemed to be in default of this Agreement, or to have breached any of its provisions, as a result of a delay, failure in performance, or interruption in the Services which result, either directly or indirectly, from any circumstances beyond our reasonable control including acts of god, acts of civil or military authority, civil disturbance, war, strikes, fire, laws, regulations, governmental acts, third party network unavailability, and/or failure of telecommunication facilities.
- Third Party Beneficiaries; Relationship. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Neither party has the authority to make any representations, claims or warranties of any kind on behalf of the other party, nor on behalf of that party’s affiliates, agents, subcontractors, licensors or third-party suppliers.
- Notices. Except as otherwise required herein, notices shall be effective when delivered, as indicated by a delivery receipt, or, in the case of notices delivered by post, five business days after being mailed to the designated address by first class mail. Notices to you may be made to the address set out in our customer record or electronically, through the Customer’s portal or via email to an Authorized User. You will send all notices to us at the following address: WP Engine Legal Department, 504 Lavaca Street, Suite 1000, Austin, TX 78701.
- Survival. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality, limitation of liability and indemnification) will survive termination or expiration and continue in full force and effect.