This website is maintained by Spicyapple Ltd. Your use of this website is subject to the following terms and conditions of use, which you should review carefully as you are deemed to have accepted them through use of the website.
Spicyapple Ltd (Spicyapple, ‘we’ or ‘us’) refers to the owner of the website refers to the owner of the website whose registered office is Spicyapple Ltd, C/O Lesstax2pay 169 High Street, Barnet, Herts, EN5 5SU. Spicyapple Ltd is a limited company registered in England and Wales under company number 6298938.
The term ‘you’ refers to the user or viewer of our website. The use of this website is subject to the following terms of use:
This Site is subject to regular updating and revision. Although we attempt to ensure the accuracy and timeliness of the information on this website, Spicyapple makes no representation and gives no warranty that such information is accurate, complete or current. You should not rely on the information provided on this website for any purpose, and we take no responsibility for any errors or omissions. Where information has been obtained from third party sources, it is believed to be reliable but has not been independently checked by Spicyapple, and we take no responsibility for the completeness, accuracy or currency of such information.
In your use of this Site, you are responsible for ensuring that you comply with any relevant laws or regulations, and the information on this Site is not directed at, and must not be accessed or otherwise used by, any person to whom such information may not be provided under applicable laws or regulations.
We maintain the right to delete or modify in part or in full any information on this Site without prior notice.
We do not guarantee that material on this Site will be free from viruses. It is your responsibility to take protective steps such as virus checking.
To the fullest extent permissible by law, Spicyapple assumes no responsibility or liability for any information published on this Site and further disclaims all liability in respect of such information, provided that the foregoing limitation does not exclude or restrict any duty or liability Spicyapple may have to a client under UK Law. Spicyapple shall not be liable for data transmission errors such as data loss or damage or alterations of any kind including but not limited to, any direct, indirect or consequential loss or loss of profit suffered as result of using the services provided on the Site. Spicyapple reserves the right to grant access to this Site at its absolute discretion. Access may be denied by Spicyapple at any time, for any reason, without notice.
In some cases, we may provide links to third party websites for your convenience or to provide further information. We endeavour to select the most appropriate websites to link with; however, we do not control the content of these websites. By your use of this Site you acknowledge that Spicyapple can accept no responsibility for the content of these external sites and should you choose to use them then you do so at your own risk.
The copyright in all material presented on this Site, unless specifically indicated otherwise, is owned by (or licensed to) Spicyapple or our clients and must not be reproduced in any medium without a licence save as provided in terms of this paragraph. You may view the Site and download any part of it to a personal computer so that you can view it for private purposes. None of the material, nor its content, nor any copy of it, may be altered in any way, transmitted to, or distributed to any other party without the express prior written permission of Spicyapple in each case.
We may change these terms and conditions of use at any time and will display only the current version on our website. If you access our website after we have changed these terms of use you will be accepting the changed versions.
These terms and conditions of use are subject to English law and to the exclusive jurisdiction of the English courts.
Spicyapple Ltd issues this document. The company shall be known throughout this document as Spicyapple.
Use of Spicyapple Services constitutes acceptance and agreement to our TOS (Terms of Service). All service provisions are subject to the TOS (Terms of Service) of Spicyapple. The TOS may be changed from time to time at the discretion of Spicyapple. The client understands that changes to the TOS by Spicyapple shall not be grounds for non-payment.
Spicyapple agrees to provide the client with web hosting services for a monthly or annual fee. Spicyapple will never require clients to advertise for Spicyapple on their website in any way shape or form unless agreed upon, such as a non-profit organisation receiving complimentary hosting. Clients are allowed to use Spicyapple services for personal and/or business/commercial websites or content.
All services provided by Spicyapple may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United Kingdom (or any other country) law is prohibited. This includes, but is not limited to: copyrighted material, material that is threatening or obscene, material that is “adult only” content, or material protected by trade secrets and other statue. The subscriber agrees to indemnify and hold harmless Spicyapple from any claims resulting from the use of the service which damages the subscriber or any other party.
Spicyapple does not allow adult membership “xxx” related websites, pornography and sex-related content on its servers. Nor do we allow adult subscription or membership based “pay sites”. This includes sexual content, or links to adult content hosted elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet. Links to such materials are also prohibited. Spicyapple will be the sole arbiter as to what constitutes a violation of this provision.
Educational adult websites, dating sites, and adult e-commerce stores are allowed. If you are in any doubt we strongly recommend checking with Spicyapple support before hosting such websites. Spicyapple will be the sole arbiter as to what constitutes a violation of this provision.
Adult / Pornographic
Hacking programs / Hacking Archives / Hacking Information
Warez Sites
Spam / Spamming Software
Violation of indecency and obscenity laws can result in criminal penalties.
Material accessible to you through Spicyapple’s Services may be subject to protection under United Kingdom (or any other country) copyright laws, or laws protecting trademarks, trade secrets or proprietary information. Except when expressly permitted by the owner of such rights, you must not use the Spicyapple Service in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you access or receive through the Spicyapple Network. If you use a domain name in connection with the Spicyapple Service or similar service, you must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.
Spicyapple takes a zero tolerance approach to the sending of Unsolicited Email (SPAM). Very simply this means that Clients of Spicyapple may not use or permit others to use our service for sending SPAM Emails. Clients of Spicyapple may not host, or permit hosting of, sites or information that is advertised by SPAM from other services. Violations of this policy carry severe penalties, including termination of service.
If a customer is found to be in violation of our SPAM policy, Spicyapple may, at its sole discretion, restrict, suspend or terminate a customer’s account. In addition, Spicyapple may impose a £100 penalty for each spam policy violation. Spicyapple solely reserves the right to refuse or cancel service to known spammers. Lastly, Spicyapple reserves the right to determine what violates this policy. As such, any violation may result in cancellation of services without refund.
Spicyapple does not allow the use of “catch all” email accounts. This is the practise of anything@yourdomain.com directing all mail to a single mailbox. This practice is out-of-date and causes extreme surges of spam, both for you and for our spam filtering servers. To use an email address you must login to your control panel and create the required mailbox, catch-all mailboxes are banned and if found will be removed without notice or your account disabled.
Some domain names may receive such a high volume of spam email that it will not be possible for us to provide SpamExperts filtering service to them, due to the extreme usage. While SpamExperts is a dedicated system for handling huge volumes of spam it does have limits. Should the amount of spam or number of mailboxes in use on a domain break what Spicyapple believes to be ‘fair use’ limits for your hosting package then we will inform you that SpamExperts services will not be continued for your domain or an upgrade of package may be suggested to help cover the cost of providing this service.
SpamExperts is only provided for “incoming” email to mail servers hosted within the Spicyapple network. We do not provide spam filtering services for mail servers hosted elsewhere, such as Microsoft Exchange, gmail or any other email service not provided by and managed by Spicyapple.
We do not allow background-running programs. This includes any IRC related software such as bouncers and bots. We provide a hosting service not a shell service. You are not allowed to compile and run software on our hosting servers.
You are free to use any scripts (such as php, cgi or perl) you wish provided they do not affect the normal operations of the server and they are not mentioned specifically below.
Scripts that are commonly known for causing server disruption include large cgi-based message forums, auctions, galleries, and banner exchanges. In the event a script affects normal server and/or administrative operations, Spicyapple reserves the right to disable the account pending client cooperation and resolution.
Scripts we do not allow include:
Chat servers/scripts of any kind are strictly prohibited.
Formmail scripts specifically using the filename “formmail” are prohibited.
Formmail and contact forms are acceptable providing the script is not named “formmail” for its filename and providing that you maintain the latest version of the script and it remains secure and un-abused by spammers.
We do allow you to have ONE remote MySQL user if requested. The user must have a fixed, non changing, IP address for us to grant access to. You can request a remote MySQL user via our helpdesk.
Customers may not use the Spicyapple Network to attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the customer, logging into a server or account the customer is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization’s security policy. Customers may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. Spicyapple will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.
We use trusted 3rd parties for the hosting we provide. For security reasons our hosting providers operate ‘closed’ datacentre facilities. Physical access to any servers or related equipment at any hosting locations is not permitted. Only fully authorised staff are permitted access to work onsite at these facilities.
Spicyapple provides technical support to its Hosting Clients.
Spicyapple limits technical support to its area of expertise, this is providing web hosting services and related features.
Spicyapple does not offer support for application specific issues such as php programming, cgi programming, html, website design and development or any other such issue unless you are signed up to one of our Website Care Plans. If you host multiple websites for your own clients, Spicyapple does not provide technical support for YOUR Clients.
Any additional work you may require from Spicyapple staff which does not fall within usual support boundaries is charged at a rate of £60 GBP per hour, in 30 minute increments. All charges will be discussed before work commences on a per incident basis. Examples of work beyond the boundaries of normal support include: site scripting problems, script installation, website design and development.
Requests for cancellation must be submitted via email to hello@spicyapple.io. Your cancellation will be confirmed by email and logged on your account. Once an account has been terminated we do not retain any data or backups. We will offer to zip up and send you a final copy of your website and any other customer data we have such as images, media, backups, user guides etc.
Spicyapple has a 14 day notice period for cancellation of your account. Cancellation must be received at least 14 days before your next invoice due date. Spicyapple will then stop all recurring payments and you will not be charged again. Any invoices due within the notice period, or overdue invoices on your account must be paid in full prior to cancellation.
Changing a domains DNS to another provider or transferring a domain away from Spicyapple does not constitute a hosting cancellation request. A cancellation request must be submitted via email and will be confirmed by Spicyapple.
The customer acknowledges that, termination of the agreement for any reason will result in Spicyapple ceasing to provide the applicable services, with the consequences that flow from such cessation, including (but not limited to), deletion of data .e.g. hosting account(s), mailboxes and backups.
Establishment of this service is dependant upon receipt by Spicyapple of payment of all stated charges. Subsequent payments are due on a reoccurring date that coincides with the date of signup (monthly or yearly terms).
Service may be interrupted on accounts that fall overdue (such as a credit card being declined or expired). Spicyapple may, at its sole discretion, charge a fee of £15.00GBP to reinstate a suspended account.
When payment is declined from your chosen payment method we will send an email notification and retry payment the following day, this will occur 3 times over a 3-5 day period. After this period if we have not received payment or had notice from you that the due payment is in hand, your account will be suspended or terminated at the sole discretion of Spicyapple.
It is very important you keep your email address and telephone numbers on file with us current. Failure to keep us updated with accurate contact information may mean important communications don’t reach you, resulting in suspension or termination of your hosting account.
A service charge, equal to the charge incurred by Spicyapple, will be charged to your account for each cheque, chargeback, disputed payment, or any other form of payment that is returned to Spicyapple unpaid.
All payments to Spicyapple are non-refundable. This includes any setup fee and subsequent charges regardless of usage. If you dispute a charge that, in Spicyapple’s sole discretion is a valid charge under the provisions of this TOS, you agree to pay Spicyapple an Administrative Fee for costs associated with pursuing that payment.
If you are paying annually for hosting services and cancel early before your 12 months of service is over, we will issue a pro-rata refund for full unused months at time of cancellation. Spicyapple does not charge or refund days or part-months.
Spicyapple does not offer any kind of “money back guarantee” or initial “trial period”.
All domain name registration fees are non-refundable, in whole or in part, even if your domain name registration is suspended, cancelled or transferred prior to the end of your term. Please be careful when ordering as spelling mistakes and ‘typos’ cannot be corrected or refunded.
UK, EU and USA clients will be billed in GBP (Pounds Sterling) and prices are not subject to VAT as we are not yet VAT registered.
Spicyapple reserves the right to change the pricing of products and/or services at any time at its own discretion.
We will notify you at least 14 days before your product or service is renewed if the price is changing. If you do not agree to such price changes, please cancel your services in accordance with our standard procedure. If you do not cancel, you will be deemed to have accepted the new prices, and they will be charged to the credit card or other payment method registered to your account.
Spicyapple does not provide paper or hard-copy invoices. PDF invoices are sent via email and can be re sent upon request.
Spicyapple is not liable for expiry or loss of your domain name.
Before a domain expires you will be reminded to renew your domain by email to the address we hold on file for you. We strongly recommend keeping an eye on your renewal dates in your billing area and your diary too. On the date a domain expires it will be deactivated by the registry, and no longer display your website. Once a domain is deactivated upon expiry you will typically have somewhere between 5 and 30 days to contact us to renew the domain name at our regular renewal rates before it drops into “redemption period” where the cost to renew then increases substantially. Note that some registries (such as .EU) place an expired domain into redemption immediately.
Redemption Period – Once a domain is in the “redemption period” the cost to renew it increases by $250 USD (approx £179 GBP) +VAT. This is a cost charged by the registry and passed on to you by us. Redemption periods last between 30 and 60 days, and then the domain is released to the public so anyone can re-register your domain and you will lose it.
Any domain name registered by Spicyapple (as your registrar) is yours to keep. You can transfer your domain name to a different registrar at any time once the domain is 90 days old – Newly registered domains do have a 90 day waiting period where they cannot be transferred from Spicyapple to a different registrar.
The same 90 day ‘no transfer’ window applies when an expired domain is renewed or restored after being in the registry redemption period. Once 90 days have passed from renewing such domains they are then free to be transferred again.
Some domain names are classed as “premium” by the registries that operate them and although they may show up in availability results they cannot be registered at our usual rates. Similarly some registries reserve domains so they may only be registered under certain conditions that are checked after placing an order. If you attempt to register a domain name that is either premium or reserved then our sales team will contact you as the order may need to be cancelled or further details discussed.
Spicyapple offers a website migration service from other hosting companies if a price is agreed to in advance of signing up for hosting. The success of this service is dependent on the type and quality of the hosting being used as the source for your data. We do not guarantee the quality of migrations, which are offered on a best effort basis, and are largely dependent on the responsiveness and level of testing to be completed by the client.
Migrations are performed in a single batch. If you have 100 websites then we will arrange a window to migrate all 100 sites together. It is not feasible to perform migrations site-by-site over large periods of time, unless special terms are agreed with your account manager as part of the on-boarding process.
Any additional work you may require from Spicyapple staff which does not fall within usual migration boundaries is charged at a rate of £60 GBP per hour, in 30 minute increments. All charges will be discussed before work commences on a per incident basis.
When upgrading your service with Spicyapple if a change in server type is required we can usually extend our free migration service to help make the move as painless as possible.
When downgrading (or making significant and frequent changes) it will not always be possible to offer a free migration service, and reasonable charges will be applicable to migration work where the client does not wish to migrate themselves.
Spicyapple offers website care plans each offering various levels of maintenance and/or support per month. Please note that the services listed on our care plans are there for guidance only and we make no promises that website patches, or support will be carried out or provided within any kind of pre-agreed time limits. For example:
Dedicated & Cloud server customers should also read and agree to the following before signing up for service with Spicyapple:
Our dedicated and cloud solutions include server management in the monthly fee. Spicyapple defines server management as general maintenance, updates and security hardening of core packages to ensure the server performs as expected. We also include additional administrative duties (such as installing custom server software requirements or accommodating customer requests) of up to 2 hours per month with your server. Additional management work, over this 2 hour inclusive, incurs a service fee based on a £100GBP/hour (+VAT) labour rate, billed in half-hour increments with a half-hour minimum charge.
Dedicated server specifications may vary over time as technology changes and our stocks are sold and replenished. All hardware provided by Spicyapple to the customer will be of comparable specification and performance to those shown on the Spicyapple website or in any written quotation.
Spicyapple will make all reasonable efforts to satisfy the customer’s requests for technical and/or administrative changes to the customer’s dedicated servers. Certain tasks, such as repairing software/system faults caused by the customer, or installing certain additional software packages, may, at the sole discretion of Spicyapple, incur a service fee based on a £60GBP/hour labour rate, billed in half-hour increments with a half-hour minimum charge.
Customers are responsible for and subject to all software vendor licensing terms, conditions, restrictions, and limitations. It is the customer’s responsibility to ensure conformance to and abide by the specific terms and conditions of each application’s licensing agreements.
Dedicated and Cloud servers come with an included amount of monthly bandwidth. It is possible for your server to utilise more bandwidth than the included amount, it is not a hard quota where the server will stop responding when breached. Additional bandwidth beyond your included quota is charged at a rate of £10 per 10GB.
Spicyapple does not guarantee the off site backups of your server. We take CDP backups as a precaution but cannot guarantee their availability, usability, or integrity. We schedule 4 backups per day but due to the number of variables which can dictate the speed a successful backup can be obtained it may not be possible to get 4 full backups on any given day, backups are therefore scheduled on a best effort basis which may vary from day to day. Spicyapple can accept no responsibility for any loss of data or consequences arising from this. Spicyapple always advises clients to take their OWN back ups of all data regularly for your own disaster recovery requirements.
Any attempts to undermine, slander, libel, threaten, or cause harm to a Spicyapple service, customer, employee, or the company directly is strictly prohibited and is grounds for immediate termination without refund. In addition, we will pursue all attempts to the fullest extent of the law.
Spicyapple reserves the right at its sole discretion to refuse or cancel service. Violation of any of Spicyapple’s TOS could result in a warning, suspension, or account termination. Accounts terminated due to policy violations will not be refunded. Domains terminated due to policy violations will not be released to the customer.
Spicyapple will not otherwise disclose its customers’ personal and account information unless Spicyapple has reason to believe that disclosing such information is necessary to identify, make contact with, or bring legal action against someone who may be causing harm or interfering with the rights or property of Spicyapple, Spicyapple’ customers, or others, or where Spicyapple has a good faith belief that the law requires such disclosure.
Spicyapple also will not, except for reasons stated below, disclose to third parties the contents of any electronic mail, electronic communications, or other electronic data that Spicyapple stores or transmits for its customers. The circumstances under which Spicyapple will disclose such electronic customer communications or data are when: * it is necessary in order to provide service to the customer including backups * it is necessary to protect the legitimate interests of Spicyapple and its customers * it is required to cooperate with dispute policies, court orders, warrants, or other legal processes that Spicyapple determines in its sole discretion to be valid and enforceable * it is necessary to provide to a law enforcement agency when the contents appear to pertain to the commission of a crime
It is the policy of Spicyapple to not disclose any personal information or account data to third parties without prior consent of the individual unless instructed to do so by a court of law or other legal warrant/document.
Spicyapple will in the normal course of its business collect personal information from clients and prospective clients, for the purposes of billing, customer service, provision of information, as well as other legitimate business reasons. This information may be stored in a number of ways including electronic and paper formats.
Any person may request a copy of personal information pertaining to themselves, which shall be provided free of charge after reasonable proof of identity. Any personal information held on our systems will be deleted on request and after reasonable proof of identity.
We may also store information about you using cookies which we can later access when you visit our websites at a later date. If you want to delete any cookies that are already on your computer, please refer to your system administrator who will be able to help you locate and remove these cookies. If you want to stop cookies being stored on your computer in future, please refer to your browser manufacturer’s instructions by clicking “Help” in your browser menu. Please note that taking either of these measures may prevent you accessing features offered from our sites.
As with most websites, when you visit one of our sites, we will log your IP address and time of access which may be used later for research or fault investigation processes.
Spicyapple always strives to provide the highest standards of customer service. However, in the unlikely event of you having a complaint we will always do everything possible to ensure it is dealt with quickly and fairly.
Please contact us on the telephone number below to speak to us:
Email: hello@spicyapple.io
Telephone: 07748963128
If our team are unable to resolve your complaint they will refer the issue to someone at director level. Upon receipt of your complaint the director will investigate thoroughly and respond back to you directly.
If you prefer to put the complaint in writing please use our UK postal address below:
Spicyapple Ltd, 8 Crofton Avenue, Bexley, Kent, United Kingdom.
Please include your account domain name and as much detail as possible in your request, so we can fully investigate your concerns before contacting you. Finally, please note that postal complaints may take longer to process and we would always advise customers (wherever possible) to contact us directly by email or telephone.
Customer agrees that it shall defend, indemnify, save and hold Spicyapple (or it’s employee’s/owners) harmless from any and all demands, liabilities, losses, costs and claims, including reasonable legal fees asserted against Spicyapple, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, it’s agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Spicyapple against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Spicyapple server; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party and (3) copyright infringement. Customer agrees to limit the liability of Spicyapple to the amount paid for service.
Spicyapple will not be responsible for any damages your business may suffer. Spicyapple makes no warranties of any kind, expressed or implied for services we provide. Spicyapple disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Spicyapple and its employees. Spicyapple makes no “uptime” guarantees. The Client agrees that Spicyapple shall not be liable for any damages as a result of loss of hosting services or hosted data. The Client further acknowledges that Spicyapple’s liability for its own negligence is zero, and Spicyapple may not be held responsible. Liability or Damages in any event may not exceed an amount equivalent to charges payable by Client for services during the period damages occurred. In no event shall Spicyapple be liable for any special or consequential damages, loss of revenue or injury.
Spicyapple can accept no responsibility for any loss of data or consequences arising from this. Spicyapple always advises clients to back up their site data regularly for their own protection. Spicyapple does not guarantee its own backups of customer data and is not liable for any loss of data, loss of backups or inability to restore service after implementing its disaster recovery plan.
Spicyapple furthermore expects that its customers who provide hosting services (resellers) to others will ensure its customers fully comply with all applicable laws and this Spicyapple TOS. A reseller’s client’s failure to comply with those laws and our TOS will violate this policy.
If a customer provides hosting services (resellers) to others and decides to cancel their reseller hosting account with Spicyapple then Spicyapple will not be responsible for maintaining hosting for the resellers customers. Spicyapple has no agreement or responsibility to any resold services. Resold services to others are your own responsibility.
All communications (emails, verbal or written) are between Spicyapple and the client. These communications are private and are therefore not to be shared with any other parties.
This agreement is made between the customer (as specified in the customer details section when placing your order) and Spicyapple. If you are purchasing hosting on behalf of another party please ensure you specify the account owners details in the customer details section. Spicyapple will only be able to communicate with regards to the account with the registered customer and not a third-party.
Finally, Spicyapple wishes to emphasize that in accepting services, customers indemnify Spicyapple for the violation of any law or Spicyapple policy that results in loss to Spicyapple or the bringing of any claim against Spicyapple. This means that if Spicyapple is sued because of activities of the customer that violate any law, or this policy, the customer will pay any damages awarded against Spicyapple, plus costs and reasonable legal fees.
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
We may change these terms and conditions of use at any time and will display only the current version on our website. If you access our website after we have changed these terms of use you will be accepting the changed versions.
These terms and conditions of use are subject to English law and to the exclusive jurisdiction of the English courts.
Questions about the Terms of Service should be sent to us at hello@spicyapple.io.
Failure to comply with any of our terms of service will result in grounds for immediate account deactivation or removal.
This Addendum (the “Addendum”) amends, with effect from and including 25 May 2018 (the “Effective Date”), the agreement between the Provider and the Client, (“Controller”) and any other agreements entered into between the parties (the “Agreement”). To the extent this Addendum is not consistent with any terms of the Agreement the terms of this Addendum shall prevail. Other than as indicated herein, capitalized terms and definitions contained herein shall have the same meaning as specified in the Agreement.
(A) As of 25 May 2018 the General Data Protection Regulation (EU) 2016/679 (“GDPR”) will apply in the EEA replacing Directive 95/46/EC and its local implementing legislation in the UK, the Data Protection Act 1998 (“DPA 1998”). Accordingly, the parties can no longer rely on compliance with the DPA 1998 in the UK as being sufficient for controlling, processing or protecting data.
(B) In order to comply with its legal and regulatory obligations, the parties wish to update the terms of the Agreement to comply with the GDPR on the terms as set out in this Addendum.
Therefore, the parties, intending to be legally bound, and in consideration of the needs for both parties to comply with their respective obligations under the GDPR, agree that any data controller, processing and protection provisions (and/or any other provisions in the Agreement relating to the DPA 1998) shall, as at the Effective Date, be deleted and the following clause shall be incorporated into the Agreement:
1.1 For the purposes of this Agreement the following defined terms shall have the following meanings:
“Data Protection Law” shall mean (a) Data Protection Act 1998; or (b) from 25th May 2018, the General Data Protection Regulation ((EU) 2016/679 (“GDPR”), read in conjunction with and subject to any applicable UK national legislation that provides for specifications or restrictions of the GDPR’s rules; or (c) from the date of implementation, any applicable legislation that supersedes or replaces the GDPR in the UK or which applies the operation of the GDPR as if the GDPR were part of UK national law, which may include the Data Protection Act 2017;
“personal data”, “controller”, “processor”, “data subject”, and “processing” (and other parts of the verb ‘to process’) shall have the meaning set out in the Data Protection Law.
1.2 Each party shall comply at all times with Data Protection Law and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Data Protection Law.
1.3 In the context of this Agreement, Spicyapple Ltd will act as “processor” to the Controller who may act as either “processor” or “controller” with respect to the personal data. Notwithstanding the foregoing, the parties acknowledge that:
1.3.1 where Spicyapple Ltd only provides colocation services under the Agreement Spicyapple Ltd will not be a Processor; and
1.3.2 where personal data is not accessible to Spicyapple Ltd it shall not be a Processor, and therefore, in either case, the obligations of clause 1.7 shall not apply to Spicyapple Ltd.
1.4 The Controller represents and warrants to Spicyapple Ltd that with respect to any personal data processed pursuant to this Agreement:
1.4.1 all personal data is necessary for the purpose for which it is processed, accurate and up-to date (and Controller shall at all times comply with Spicyapple Ltd’s standard Terms of Service policy);
1.4.2 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Controller has implemented appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the personal data;
1.4.3 the Controller has obtained all the necessary consents from data subjects to process the personal data and to outsource the processing of any personal data to Spicyapple Ltd and the Controller covenants that it shall notify Spicyapple Ltd in writing if there are any material changes to these consents or to the personal data that Spicyapple Ltd processes under this Agreement; and
1.4.4 it is not aware of any circumstances likely to, and will not instruct Spicyapple Ltd to process the personal data in a manner that is likely to, give rise to a breach of the Data Protection Law (or any other applicable data protection or privacy laws).
1.5 The Controller acknowledges and agrees that pursuant to its obligation under Article 28(1) of the GDPR to only appoint processors providing sufficient guarantees to implement appropriate technical and organisational measures to meet the requirements of the GDPR, it has assessed Spicyapple Ltd’s applicable technical and organisational measures and considers them to be sufficient, taking into account the nature, scope, context and purpose of the processing undertaken pursuant to the Agreement.
1.6 Controller acknowledges and agrees that it is responsible for ensuring the compliance of any of its businesses, affiliates or subsidiaries located in a territory outside the EEA with Data Protection Law in relation to transfers of personal data from Spicyapple Ltd to Controller.
1.7 Where Spicyapple Ltd processes personal data on behalf of Controller, with respect to such processing, Spicyapple Ltd shall:
1.7.1 process the personal data only in accordance with the Agreement (as amended by this Addendum) and the documented instructions of the Controller given from time to time. The Controller acknowledges that Spicyapple Ltd is under no duty to investigate the completeness, accuracy or sufficiency of such instructions and any additional instructions outside the scope of this Agreement (as amended by this Addendum) require prior written approval between Spicyapple Ltd and Controller (including agreement on any fees payable by Controller to Spicyapple Ltd for carrying out such instructions);
1.7.2 only permit the personal data to be processed by persons who are bound by enforceable obligations of confidentiality and take steps to ensure such persons only act on Spicyapple Ltd’s instructions in relation to the processing;
1.7.3 protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the personal data and having regard to the nature of the personal data which is to be protected (and the Controller shall notify Spicyapple Ltd immediately if the nature of such personal data changes in a material way);
1.7.4 remain entitled to appoint third party sub-processors. A list of our data centres and sub-processors can be found on our website here https://spicyapple.io/compliance [as may be updated by Spicyapple from time to time in accordance with these Terms] and is subject to change. Where Spicyapple Ltd appoints a third party sub-processor, it shall, with respect to data protection obligations:
(a) ensure that the third party is subject to, and contractually bound by, at least the same obligations as Spicyapple Ltd; and
(b) remain fully liable to Controller for all acts and omissions of the third party, and all sub-processors engaged by Spicyapple Ltd as at the effective date of this Addendum shall be deemed authorized;
1.7.5 in addition to the sub-processors engaged pursuant to paragraph 1.7.4 (above), be entitled to engage additional or replacement sub-processors, subject to:
(a) the provisions of paragraph 1.7.4(a) and 1.7.4(b) being applied; and
(b) Spicyapple Ltd notifying the Controller of the additional or replacement sub-processor, and where Controller objects to the additional or replacement sub-processor, the parties shall discuss the objection in good faith;
1.7.6 notify Controller without undue delay after becoming aware that it has suffered a personal data breach;
1.7.7 at Controller’s cost and not more than once in any 12 month period permit Controller (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit (during business hours and on reasonable notice) Spicyapple Ltd’s data processing activities to enable Controller to verify and/or procure that Spicyapple Ltd is complying with its obligations under clause 1.2. Controller shall ensure that its adheres to any applicable Spicyapple Ltd site and security policies in the performance of such audit or inspection;
1.7.8 on Controller’s reasonable request and at Controller’s cost, assist Controller to respond to requests from data subjects who are exercising their rights under the Data Protection Law (insofar as it is reasonable for Spicyapple Ltd to do so);
1.7.9 save where such countries have been deemed by the European Commission to be providing an adequate level of protection pursuant to the relevant provisions of Data Protection Law, not process personal data outside the EEA without the prior written consent of Controller and, where Controller consents to such transfer, to comply with any reasonable instructions notified to Spicyapple Ltd by it. Notwithstanding the foregoing, Spicyapple Ltd is expressly permitted to and instructed by Controller that it may transfer personal data to any Spicyapple Ltd subsidiary and any Spicyapple Ltd subcontractor, subject to first ensuring that adequate protections are in place to protect the personal data consistent with the requirements of Data Protection Law;
1.7.10 on Controller’s reasonable request and at Controller’s cost, assist (insofar as it is reasonable to do so, taking into account the nature of the information available to the Spicyapple Ltd and any restrictions on disclosing the information, such as confidentiality) Controller to comply with the Controller’s obligations pursuant to Articles 32-36 of the GDPR (or such corresponding provisions of the Data Protection Law), comprising (if applicable): (a) notifying a supervisory authority that Controller has suffered a personal data breach; (b) communicating a personal data breach to an affected individual; © carrying out an impact assessment; and (d) where required under an impact assessment, engaging in prior consultation with a supervisory authority; and
1.7.11 unless applicable law requires otherwise, upon termination of the Agreement delete or return all personal data provided by Controller to Spicyapple Ltd (except to the extent this is not reasonably technically possible or prohibited by law).
2.1 Controller shall indemnify and hold harmless on demand Spicyapple Ltd for any loss, damage, liabilities, penalties, expenses or fines incurred (whether foreseeable or unforeseeable or direct or indirect) (“Losses”) as a result of:
2.1.1 the Controller breaching its obligations under clause 1 (Data Processing);
2.1.2 any unsuccessful claim by a data subject when such claim holds both Controller and Spicyapple Ltd as jointly and severally liable under the Data Protection Laws.
2.2 Where under Data Protection Law (including without limitation Article 82 of the GDPR) Spicyapple Ltd and Controller incur joint and several liability (as Controller and Processor with any other person) and, as such, Spicyapple Ltd incurs Losses (other than for damage caused by processing where it has not complied with obligations under Data Protection Law specifically directed to Processors or where it has acted outside or contrary to Controller’s lawful instructions under the Agreement), Controller shall indemnify Spicyapple Ltd on demand against all such Losses, save for such liability as corresponds directly to Spicyapple Ltd’s part of the responsibility for the damage caused by Spicyapple Ltd’s breach of the obligations of Data Protection Law or under this Agreement.
3.1 Neither party excludes or limits liability to the other party for any matter for which it would be unlawful for the parties to exclude liability.
3.2 Subject to Clause 3.1, with respect to any claim relating to a breach of Data Protection Law or a breach of this Addendum, Spicyapple Ltd shall not in any circumstances be liable to the Controller whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
3.2.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; and
3.2.2 any loss or corruption (whether direct or indirect) of personal data or information;
3.3 Subject to Clause 3.1, Spicyapple Ltd’ total aggregate liability to the Controller in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with a breach of Data Protection Laws or a breach of this Addendum or any collateral contract shall in all circumstances be limited to the greater of:
3.3.1 the Charges paid or payable by Controller to Spicyapple Ltd under the relevant Agreement in the Initial Term; or
3.3.2 the total Charges paid or payable by the Controller to Spicyapple Ltd under the relevant Agreement in the contract year concerned.
This Addendum and any dispute or claim arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England. The parties agree that the courts of England will have exclusive jurisdiction to settle any dispute (whether contractual or non-contractual) arising from or in connection with the Addendum.
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