You indicate acceptance of these terms and conditions of service by placing an order with Tortilla Hosting (part of Tortilla Media Ltd). Acceptance of these terms and conditions includes acceptance of our Privacy and Data Policy. These terms and conditions will not be varied for individual clients.
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 "Tortilla" and "Tortilla Hosting" are part of and mean Tortilla Media Ltd
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 Tortilla Hosting 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 Tortilla Hosting.
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 http://www.tortilla-hosting.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 INTRODUCTION2.1 The Client wishes to provide Tortilla Hosting with data that will be hosted on Tortilla Hosting's servers and made accessible via the Internet.
2.2 Tortilla Hosting provides web hosting services and has agreed to host the Client's data upon the following terms and conditions.
3.1 Tortilla Hosting shall provide to the Client the Services specified in their order subject to the following terms and conditions.
3.2 The Client shall deliver to Tortilla Hosting the website and the software used in the website which is owned by the Client, or licensed to him by a third party or Tortilla Hosting ("the Client Software), in a format specified by Tortilla Hosting.
4 CHARGES ,PAYMENT AND MONEY-BACK GUARANTEE
4.1 Payment methods include credit cards (including MasterCard and Visa), PayPal, bank transfer and cheques
4.2 Tortilla Hosting do not accept postal orders, cash or any other form of payment other than those outlined in 4.1
4.3 The Charges are exclusive of VAT, which if payable shall be paid by the Client.
4.4 Tortilla Hosting 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 Tortilla Hosting do not provide credit facilities.
4.6 From time to time Tortilla Hosting may make enquiries on the Client's company, proprietor or directors of the Client's company with credit reference agencies. These agencies may record that a search has been made and share this information with other businesses.
4.7 Tortilla Hosting may provide "Money-Back Guarantees" on certain products. Should your product qualify for this guarantee please raise a support ticket at http://www.tortilla-hosting.com within 30 days of placing your order for a full refund. This guarantee excludes domain names which may not be cancelled once ordered. Clients are limited to using the money-back guarantee once.
4.8 Pro-rata refunds will not be issued for yearly services that are cancelled before then end of the year.
4.9 Should your chosen payment method fail Tortilla Hosting will attempt to settle your invoice using any other payment facilities available on your account.
4.10 All services will renew until cancelled by the Client. Tortilla Hosting emails the Clients primary email address prior to renewal of services, it is the Clients responsibility to cancel services prior to renewal as no refund can be made once renewal has occurred. Clients 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 Tortilla Hosting shall maintain control and ownership of the IP address that is assigned to the Client 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 Tortilla Hosting changes or removes any IP address it shall use its reasonable endeavours to avoid any disruption to the Client.
6 SOFTWARE LICENCE AND RIGHTS
6.1 If the Client requires use of software owned by or licensed to Tortilla Hosting ("Tortilla Hosting's software") in order to use the Services, Tortilla Hosting grants to the Client and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use Tortilla Hosting 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 Client any right, title, interest or intellectual property rights in Tortilla Hosting Software.
6.2 In relation to Tortilla Hosting's obligations under this Agreement in connection with the provision of the Services, the Client grants to Tortilla Hosting a royalty-free, world-wide, non-exclusive licence to use the Client 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 Tortilla Hosting any right, title, interest or intellectual property rights in the Client Software or the Content.
6.3 The Client undertakes that he will not himself or through any third party, sell, lease, license or sublicense Tortilla Hosting Software.
6.4 Tortilla Hosting may make such copies of the Client 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, Tortilla Hosting shall destroy all such copies of the Content and other materials provided by the Client as and when requested by the Client.
7 SERVICE LEVELS AND DATA BACKUP
7.1 Tortilla Hosting shall use its reasonable endeavours to make the server and the Services available to the Client 100% of the time but because the Services are provided by means of computer and telecommunications systems, Tortilla Hosting makes no warranties or representations that the Service will be uninterrupted or error-free and Tortilla Hosting shall not, in any event, be liable for interruptions of Service or downtime of the server.
7.2 Tortilla Hosting carries out data backups for use by Tortilla Hosting in the event of systems failure. Tortilla Hosting do not provide data restoration facilities for individual Clients. Even though every effort is made to ensure data is backed up correctly Tortilla Hosting 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 Client may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Client 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 Client 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 Tortilla Hosting'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 Client has full responsibility for the content of the Website. For the avoidance of doubt, Tortilla Hosting 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 Client fails to comply with the Acceptable Use Policy outlined in Clause 8.1 Tortilla Hosting shall be entitled to withdraw the Services and terminate the Client's account without notice.
9 ALTERATIONS AND UPDATES
All alterations and updates to the website shall be made by the Client using the online account management facility, FTP access or SSH access where available. The Client will be issued with a user name and password in order to access the account. The Client must take all reasonable steps to maintain the confidentiality of this user name and password. If the Client reasonably believes that this information has become known to any unauthorised person, the Client agrees to immediately inform Tortilla Hosting and the password will be changed.
10.1 The Client warrants and represents to Tortilla Hosting that Tortilla Hosting's use of the Content or the Client Software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Client has the authority to license the Content and the Client Software to Tortilla Hosting 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, Tortilla Hosting shall not be liable to the Client as a result of any viruses introduced or passed on to the Client.
The Client agrees to indemnify and hold Tortilla Hosting, Tortilla Media Ltd 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 Tortilla Hosting arising out of any breach by the Client 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 Tortilla Hosting's liability for death or personal injury resulting from Tortilla Hosting's negligence or that of its employees, agents or sub-contractors.
12.2 The entire liability of Tortilla Hosting to the Client 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 Tortilla Hosting be liable to the Client 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 Tortilla Hosting had been made aware of the possibility of the Client 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 Tortilla Hosting shall have the right to terminate this Agreement with immediate effect by notice in writing to the Client if the Client 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 Clients account will be deleted.
14.1 Tortilla Hosting may assign or otherwise transfer this Agreement at any time.
14.2 The Client may not assign or otherwise transfer this Agreement or any part of it without Tortilla Hosting'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.
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.
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 Tortilla Hosting will provide a full refund for that domain name.
20.2 Please return to the main terms and conditions area of this website to view terms and conditions for individual domain name registrars.
Tortilla Hosting are not responsible for Client programming issues other than ensuring that programming languages such as Perl, PHP and ASP are installed and functioning on the web hosting system.
To protect your privacy we will not distribute your details to third parties, unless required to do so by law.
23 DATA TRANSFER
23.1 Web hosting accounts include a certain amount of data transfer, if you exceed this amount in any one month your account will be deactivated until you have upgraded to an account that has more data transfer included.
23.2 Web hosting accounts are prohibited from hosting file distribution websites (including but not limited to music, video and software), adult content orientated websites, hosting banners, graphics or cgi scripts for other websites, storing pages, files or data as a repository for other websites or personal computers, giving away web space under a domain, sub domain or directory.
24 SERVER USAGE
Should your account use more than 5% of the servers processing power and as a result have a detrimental effect on other Clients we will discuss with you alternative solutions for your hosting requirements.
25 AFFILIATE PROGRAMME
Commission earned via the affiliate programme will only be paid by using a valid direct debit/credit mandate on your account. It is the Clients responsibility to ensure they have this facility. In the event of the Client not being able to obtain this facility then no commission will be paid.
26 EMAIL NEWSLETTER
Tortilla Hosting communicates with it's Clients 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. Clients are prohibited from using the server as a file/backup repository. Clients are expected to employ good house keeping when maintaining their account.
28 MAIL BOXES
Mail boxes not accessed for 100 days or more may be deleted from the system.