Last updated 11 May 2008 PinchBox.com Terms and Conditions You indicate acceptance of these terms and conditions of service by placing an order with PinchBox. These terms and conditions will not be varied for individual customers. 1 DEFINITIONS 1.1 In this Agreement the following words and expressions shall have the following meanings: 1.1.1 "downtime" means any service interruption in the availability to visitors of the Website; 1.1.2 "intellectual property rights" means patents, trade marks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, whether registrable or not in any country; 1.1.3 "PinchBox" means PinchBox.com 1.1.4 "IP address" stands for internet protocol address which is the numeric address for the server; 1.1.5 "ISP" stands for internet service provider; 1.1.6 "server" means the computer server equipment operated by PinchBox in connection with the provision of the Services; 1.1.7 "the Services" means web hosting, domain name registration, email and any other services or facilities provided by PinchBox. 1.1.8 "spam" means sending unsolicited and/or bulk emails; 1.1.9 "virus" means a computer programme that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user's files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as "worms" or "trojan horses"; 1.1.10 "visitor" means a third party who has accessed the Website; 1.2 Product specifications and details may be found at www.pinchbox.com. 1.3 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders. 1.4 The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. 2 INTRODUCTION 2.1 The Customer wishes to provide PinchBox with data that will be hosted on PinchBox's servers and made accessible via the Internet. 2.2 PinchBox provides web hosting services and has agreed to host the Customer's data upon the following terms and conditions. 3 DUTIES 3.1 PinchBox shall provide to the Customer the Services specified in their order subject to the following terms and conditions. 3.2 The Customer shall deliver to PinchBox the website and the software used in the website which is owned by the Customer, or licensed to him by a third party or PinchBox ("the Customer Software), in a format specified by PinchBox. 4 CHARGES ,PAYMENT AND MONEY-BACK GUARANTEE 4.1 Our payment method is PayPal, which accepts a wide variety of payment options including Credit Card. 4.2 PinchBox do not accept cheques, bank transfers, postal orders, cash or any other form of payment other than those outlined in 4.1. 4.3 The Charges are inclusive of VAT. 4.4 PinchBox shall be entitled to charge interest in respect of late payment of any sum due under this Agreement, which shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the base rate of the Bank of England from time to time in force. 4.5 PinchBox do not provide credit facilities. 4.6 From time to time PinchBox may make enquiries on the Customers company, proprietor or directors of the Customers company with credit reference agencies. These agencies may record that a search has been made and share this information with other businesses. 4.7 Pro-rata refunds will not be issued for yearly services that are cancelled before the end of the year. 4.8 Should your chosen payment method fail PinchBox will attempt to settle your invoice using any other payment facilities available on your account. 4.9 All services will renew until cancelled by the customer. PinchBox emails the customers primary email address prior to renewal of services, it is the customers responsibility to cancel services prior to renewal as no refund can be made once renewal has occurred. Customers must notify us at least 72 hours before a service is renewed if they wish to cancel that service. The cancellation process must be fully completed by you before your account is cancelled. 5 IP ADDRESSES 5.1 PinchBox shall maintain control and ownership of the IP address that is assigned to the Customer as part of the Services and reserves the right in its sole discretion to change or remove any and all IP addresses. 5.2 Where PinchBox changes or removes any IP address it shall use its reasonable endeavours to avoid any disruption to the Customer. 6 SOFTWARE LICENCE AND RIGHTS 6.1 If the Customer requires use of software owned by or licensed to PinchBox ("PinchBox's software") in order to use the Services, PinchBox grants to the Customer and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use PinchBox Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Customer any right, title, interest or intellectual property rights in PinchBox Software. 6.2 In relation to PinchBox's obligations under this Agreement in connection with the provision of the Services, the Customer grants to PinchBox a royalty-free, world-wide, non-exclusive licence to use the Customer Software and all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the website ("the Content"). For the avoidance of doubt, this Agreement does not transfer or grant to PinchBox any right, title, interest or intellectual property rights in the Customer Software or the Content. 6.3 The Customer undertakes that he will not himself or through any third party, sell, lease, license or sublicense PinchBox Software. 6.4 PinchBox may make such copies of the Customer Content as may be necessary to perform its obligations under this Agreement, including back up copies of the Content. Upon termination or expiration of this Agreement, PinchBox shall destroy all such copies of the Content and other materials provided by the Customer as and when requested by the Customer. 7 SERVICE LEVELS AND DATA BACKUP 7.1 PinchBox shall use its reasonable endeavours to make the server and the Services available to the Customer 100% of the time but because the Services are provided by means of computer and telecommunications systems, PinchBox makes no warranties or representations that the Service will be uninterrupted or error-free and PinchBox shall not, in any event, be liable for interruptions of Service or downtime of the server. 7.2 PinchBox carries out data backups for use by PinchBox in the event of systems failure. PinchBox do not provide data restoration facilities for individual customers. Even though every effort is made to ensure data is backed up correctly PinchBox accepts no responsibility for data loss or corruption. 8 ACCEPTABLE USE POLICY 8.1 The website and use of the Services may be used for lawful purposes only and the Customer may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Customer agrees not to: 8.1.1 use the Services or the website in any way to send unsolicited commercial email or "spam", or any similar abuse of the Services; 8.1.2 send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities; 8.1.3 publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights (for the avoidance of doubt this includes licensed software distributed as Warez), via the Services or on the Website; 8.1.4 threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others; 8.1.5 engage in illegal or unlawful activities through the Services or via the Website; 8.1.6 make available or upload files to the website or to the Services that the Customer knows contain a virus, worm, trojan or corrupt data; or 8.1.7 obtain or attempt to obtain access, through whatever means, to areas of PinchBox's network or the Services which are identified as restricted or confidential. This includes leaving your home directory whilst using SSH access to servers. 8.1.8 operate or attempt to operate IRC bots or other permanent server processes. 8.2 The Customer has full responsibility for the content of the Website. For the avoidance of doubt, PinchBox is not obliged to monitor, and will have no liability for, the content of any communications transmitted by virtue of the Services. 8.3 If the Customer fails to comply with the Acceptable Use Policy outlined in Clause 8.1 PinchBox shall be entitled to withdraw the Services and terminate the Customer's account without notice. 9 ALTERATIONS AND UPDATES All alterations and updates to the website shall be made by the Customer using the online account management facility, FTP access or SSH access where available. The Customer will be issued with a user name and password in order to access the account. The Customer must take all reasonable steps to maintain the confidentiality of this user name and password. If the Customer reasonably believes that this information has become known to any unauthorised person, the Customer agrees to immediately inform PinchBox and the password will be changed. 10 WARRANTIES 10.1 The Customer warrants and represents to PinchBox that PinchBox's use of the Content or the Customer Software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Customer has the authority to license the Content and the Customer Software to PinchBox as set out in Clause 6.2. 10.2 All conditions, terms, representations and warranties that are not expressly stated in this Agreement, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, PinchBox shall not be liable to the Customer as a result of any viruses introduced or passed on to the Customer. 11 INDEMNITY The Customer agrees to indemnify and hold PinchBox and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against PinchBox arising out of any breach by the Customer of the terms of this Agreement or other liabilities arising out of or relating to the Website. 12 LIMITATION OF LIABILITY 12.1 Nothing in these terms and conditions shall exclude or limit PinchBox's liability for death or personal injury resulting from PinchBox's negligence or that of its employees, agents or sub-contractors. 12.2 The entire liability of PinchBox to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen. 12.3 In no event shall PinchBox be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or PinchBox had been made aware of the possibility of the Customer incurring such a loss. 13 TERM AND TERMINATION 13.1 This Agreement will become effective on the date the service is ordered and shall continue until terminated by either party in writing of its intention to terminate the Agreement. 13.2 PinchBox shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due. 13.3 Either party may terminate this Agreement forthwith by notice in writing to the other if: 13.3.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or 13.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or 13.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or 13.3.4 the other party ceases to carry on its business or substantially the whole of its business; or 13.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets. 13.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination. 13.5 On termination all data held in the customers account will be deleted. 14 ASSIGNMENT 14.1 PinchBox may assign or otherwise transfer this Agreement at any time. 14.2 The Customer may not assign or otherwise transfer this Agreement or any part of it without PinchBox's prior written consent. 15 FORCE MAJEURE Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events. 16 SEVERANCE If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated. 17 NOTICES Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served 2 days following the date of posting. 18 ENTIRE AGREEMENT This Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. This Agreement may be updated without notice. 19 GOVERNING LAW AND JURISDICTION This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts. 20 DOMAIN NAME REGISTRATION 20.1 Domain names are not deemed to be successfully registered until they appear in the relevant whois database of the top level domain name registrar. In the event that a domain name is unavailable when we attempt to register it PinchBox will provide a full refund for that domain name, this will be the full limit of our liability. 20.2 Please return to the main terms and conditions area of this website to view terms and conditions for individual domain name registrars. 20.3 PinchBox will make reasonable endeavors to renew domains where the renewal fee has been paid. In the event that we are unable to renew a domain name and that domain name is subsequently lost, the limit of our liability shall be the renewal fee for that domain name. 21 SCRIPTING PinchBox are not responsible for customer programming issues other than ensuring that programming languages such as Perl, PHP, Python, Miva and ASP are installed and functioning on the web hosting system. 22 PRIVACY To protect your privacy we will not distribute your details to third parties, unless required to do so by law. 23 BANDWIDTH 23.1 Web hosting accounts include a certain amount of bandwidth, if you exceed this amount in any one month your account will be deactivated until you have upgraded to an account that has more bandwidth included or until the start of the following month. Your bandwidth usage is shown in the eXtend Control Panel. 23.2 Web hosting accounts that host file distribution (including but not limited to music, video and software) are limited to a maximum bandwidth of 25 GB per month for file distribution. 23.3 Web hosting accounts are prohibited from hosting hardcore pornographic material, hosting graphics or scripts for other websites, storing pages, files or data as a repository for other websites or as a backup, giving away web space under a domain (including Resellers giving away free websites), sub domain or directory. 24 SERVER USAGE 24.1 Should your account use more than 5% of the servers processing power and as a result have a detrimental effect on other customers we will discuss with you alternative solutions for your hosting requirements. 24.2 PinchBox does not allow proxy sites of any nature to be hosted on its network. 25 AFFILIATE PROGRAMME Commission earned via the affiliate programme will only be paid using PayPal. It is the customers responsibility to ensure they have this facility. In the event of the customer not being able to obtain this facility then no commission will be paid. 26 EMAIL NEWSLETTER PinchBox communicates with it's customers via email and as such you agree to receive by email our regular newsletter which contains amongst other things changes to our terms and conditions, notification of major outages, updates to our products & features and special offers. 27 WEBSPACE USAGE Unlimited web space is available for genuine web site content, content must be linked into web pages. Customers are prohibited from using the server as a file/backup repository. Customers are expected to employ good house keeping when maintaining their account. 28 MAIL BOXES Mail boxes not accessed for 100 days or more will be deleted from the system. 29 DEACTIVATED ACCOUNTS When a web hosting account is deactivated, you agree that after 50 days this account may be deleted from the system without notice.
