Development and Hosting Terms – Pitched

PITCHED
Incorporating Pitched Applications Limited and Pitched Booking Limited

RECITALS

The Company has expertise in website development and hosting for online holiday parks booking systems
The Customer wishes to appoint the Company to develop a website or application for the Customer to use for its business, as set out in the Statement of Work.
The Customer wishes to appoint the Company to host the website created on behalf of the Customer.
This agreement also encompasses the Content Standards (Appendix 1)

The parties hereby agree as follows:

DEFINITIONS

All terms in capitals used in these Consultancy Terms, shall have the meanings defined below:

Term	Meaning
“Acceptance Tests”	means the acceptance tests referred to in clause 10 of these Website Hosting Terms which test whether the Website provides the functions and meets the performance criteria set out in the Statement of Work;
“Agreement”	means these Website Hosting Terms together with the Order Form and all documents referred to in the Order Form and these Website Hosting Terms;
“Business Day”	means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Company:	means Pitched Applications Limited of Woodlands Court, Truro Business Park, Truro, Cornwall, TR9 9NH, United Kingdom;
“Confidential Information”	means all information disclosed by a disclosing party to a receiving party for the purposes of these Website Hosting Terms, including but not limited to all Customer Data incorporated in the Website or stored in any database used in conjunction with the Website, any password provided by the Company to aCustomer, Materials and the IPRs of each party;
“Consequential Loss”	means pure economic loss, special loss, losses incurred by any third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time;
“Content Standards”	means the content standards of the Company set out in the Statement of Work;
“Customer”	means the customer entity named in each Order Form;
“Customer Data”	means any and all materials, including without limitation any text, images, brand names or logos, copy material for uploading to the Website supplied by the Customer to the Company and all content displayed on the Website;
“Documentation”	means the documentation to be provided by the Company under clause 12 of these Website Hosting Terms;
“Domain Management Services”	means the provision of domain names as set out in the Order Form;
“DPA”	means the Data Protection Agreement of the Company, as amended from time to time;
“Effective Date”	means the start date of the Agreement as set out in each Order Form;
“Fees”	means the Website Development Fees, Hosting Service Fees and the Domain Management Fees plus any other fess set out in each Order Form (or included in any Statement of Work) payable by the Customer to the Company for the provision of the Website Hosting Services;
“Force Majeure”	means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, pandemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;
“Hardware”	means each item of hardware specified in a Statement of Work;
Hosting Services	means the Hosting Services set out in the SLA;
“Inappropriate Content”	means material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of the content standards detailed in the Content Standards;
“IPR”	means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Materials”	means all material, equipment, documents and other property of the Company;
“Order Form”	means each order form signed by the Company and the Customer during the term of the Agreement;
“Personnel”	means employees, agents and contractors of the Company;
“Privacy Policy”	means the privacy policy of the Company published at: Privacy and Cookie Policy \| Pitched , as amended from time to time;
“Ready for Use”	means the Website(s) installed and performing in accordance with clause 11.a of these Website Hosting Terms;
“SLA”	means the Service Level Agreement of the Company, as amended from time to time which sets out the hosting, support and maintenance services available for the Website(s);
“Statement of Work”	means the specification for the Website(s) and the planned schedule and sequence of events relating to the delivery of the Website(s) as set out in each Statement of Work attached to an Order Form and signed by the parties;
“Visitor”	means a visitor to the Website(s);
“Warranty Period”	means the period expiring on the date specified in clause 13.b of these Website Hosting Terms;
“Website(s)”	means the website(s) to be developed and delivered in accordance with the provisions of each Statement of Work andhosted subject to the terms of the SLA;
“Website Development Services”	means the development of the Website(s) as set out in the Statement of Work;
“Website Hosting Services”	means the Hosting Services, the Website Development Services and the Domain Management Services together;
“Website Hosting Terms”	means these website hosting terms.

Interpretation
1. Clause, schedule and paragraph headings shall not affect the interpretation of these Website Hosting Terms.
2. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.;
3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
4. Unless the context otherwise requires, words in the singular shall include the plural, and in the plural shall include the singular.
5. References to clauses and schedules are to the clauses and schedules of the Agreement; references to paragraphs are to paragraphs of the relevant schedule to the Agreement.
Appointment of the Company
1. The Customer appoints the Company and the Company accepts such appointment to provide the Website Hosting Services in accordance with the provisions of these Website Hosting Terms and subject to the terms of the Agreement.
Term
1. The term of the Agreement shall begin on the Effective Date and continue for a fixed period or 12 months, (“Fixed Term”). On expiry of the Fixed Term, the Agreement shall automatically renew for successive further 12 month periods, on the first and each subsequent anniversary of the Effective Date, (each a “Renewal Term”) unless or until either party serves notice to terminate the Agreement by giving at least 30 days written notice before any anniversary of the Effective Date.
2. Notwithstanding the aforesaid either party may terminate this Agreement pursuant to clause 20 of these Website Hosting Terms.
Supply of the Website Hosting Services
The company shall:
1. Perform the tasks allocated to the Company in the Statement of Work.
2. Carry out the work set out in the Statement of Work to develop the Website to provide the functions and meet the performance criteria set out in the Statement of Work.
3. Provide the Website Ready for Use.
4. Provide the Documentation or training.
5. Providing the Hosting Services and make Customer Data available to Visitors of the Website as set out in the SLA.
6. During the Warranty Period, provide the Website in accordance with clause 13 of these Website Hosting Terms.
7. Co-operate with all third-party suppliers of hardware and software to be used with or affecting the Website.
8. Ensure that any subcontractors of the Company permitted to provide services on the Company’s behalf under the Agreement comply with the Statement of Work, and the DPA to the extent required to enable the Company to perform its obligations in compliance with the terms of the Agreement.
9. Use reasonable endeavours to meet any performance or delivery dates specified in the Statement of Work, but any such dates shall only be estimates and time shall not be of the essence for performance or delivery of the Website.
10. Has right to make any changes to the Website which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Website
11. Set up and manage e-mail accounts on the Customer‘s behalf. Such work will be provided by a third party with whom the Customer must enter into a direct agreement for the provision of such services. The Customer hereby acknowledges and agrees that the Company shall have no liability to the Customer in connection with such agreement or the services provided by third party.
12. Where performance of any Company obligations is prevented or delayed by any act or omission of the Customer or failure of the Customer to perform any of its obligations:
  1. The Company shall without limiting its other rights or remedies, have the right to suspend performance of the Website Hosting Services until the Customer remedies its default, and to rely on the Customer’s default to relieve the Company from the performance of any of its obligations to the extent that the default prevents ordelays performance of any of the Company‘s obligations;
  2. The Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company‘s failure or delay to perform any of its obligations; and
  3. The Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the default; and
  4. The Company shall be entitled to charge the Customer for all work.
Customer Obligations
The company shall:
1. Ensure before entering into the Agreement that the description of the Website set out in the Statement of Work is complete and accurate.
2. Perform the tasks allocated to it in the Statement of Work.
3. Provide the Company promptly with all information the Company reasonably requires and co-operate with the Company so that the Company is not delayed in performing its obligations under the Agreement.
4. Provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required to complete the Website Hosting Services.
5. Provide the Company with such information and materials as it may reasonably require in order to supply the Website Hosting Services, and ensure that such information is accurate in all material respects. The Customer acknowledges that the Company’s ability to provide the Website Hosting Services is dependent upon the Customer’s full and timely co-operation as well as the accuracy and completeness of Customer Data.
6. Obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Website Hosting Services are to commence, including, without limitation, those required in respect of all Customer Data.
7. Keep and maintain all Materials, at the Company’s premises in safe custody at its own risk and maintain all Materials in good condition until returned to the Company, and not dispose of or use the Materials other than in accordance with the Company’s written instructions or authorisation.
8. Ensure that Customer Data does not infringe any applicable laws, regulations or third party rights (including, without limitation, IPRs) and that Customer Data does not include any Inappropriate Content.
9. Not use the Company’s network to attempt to circumvent user authentication or the security of any host, network or accounts. 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 authorised to access, password cracking, probing the security of other networks in search of weakness or violation of any other organisation’s security policy.
10. 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. If the Customer is an initiator or target of adenial of service attack that adversely affects the Company’s or a third party’s network, the Company will terminate the Customer’s account without warning and without any liability and the Customer shall be held responsible for any charges that may result from this action.
11. Communicate any modifications or request for changes to the Statement of Work to the Company in writing.
12. Maintain backups of all Customer Data.
Fees, Invoicing and Payment
1. All Fees shall be calculated as set out in the Order Form and/or Statement of Work, as applicable.
2. The Company shall invoice the Customer the Fees as set out in the Statement of Work.
3. All Fees shall be in invoiced and payable in pounds Sterling and are exclusive of any applicable VAT which shall be paid in addition.
4. The Customer shall pay the Company all Fees immediately upon receipt of invoices in full and cleared funds by BACS to a bank account nominated in writing by the Company and time for payment shall be of essence.
5. The Customer shall pay all amounts due under the Agreement in full without deduction or withholding except as required by law and shall not be entitled to assert any credit, set off or counterclaim against the Company in order to justify withholding payment or any such amount in whole or in part. The Company may without limiting its other rights or remedies set off any amount owing to the Company by the Customer against any amount payable by the Customer to the Company.
6. The Company shall in addition to charging the Fees, charge for any expenses reasonably incurred by Personnel in providing the Website Hosting Services, including but not limited to travelling expenses, accommodation costs,subsistence and associated expenses and the costs of services provided by third parties and required by the Company to provide the Website Hosting Services and for the cost of any materials.
7. The Company may increase any ongoing Fees once in any 12 month period during the term of the Agreement. The Company shall give the Customer as least 60 days notice in writing of any proposed increase in the Fees. If such increase is not acceptable to the Customer it must notify the Company in writing within 30 days of the date of the notice that it wishes to terminate the Agreement and such termination notice shall be effective on the expiry of the 60 day notice period, unless the parties agree otherwise in writing.
8. If the Customer exceeds any bandwidth limit set out in the Order Form or otherwise notified by the Company, the Customer will be charged excess usage fees. Such excess usage fees shall be invoiced as additional fees calculated in accordance with the Fees section of the Statement of Work.
9. If any sum due under this Agreement is not paid in full by its due date for payment, the Company may charge interest on the overdue amount at the statutory rate accruing on a daily basis from the due date for payment until the date of actual payment.
10. The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
Intellectual Property Rights
1. To the extent that the Company, its subsidiaries or affiliates or Personnel shall have created, developed or used software, data, programs, Materials, content or other IPRs in connection with providing the Website Hosting Services to the Customer, the Company, its subsidiaries or affiliates shall have and retain exclusive ownership and other rights therein, including, without limitation possession.
2. The Company grants the Customer a non-exclusive, non-transferrable, royalty-free licence to use and reuse the source code and object code of the Website, the Documentation and other material created by the Company or its Personnel, for its own internal business purposes.
3. The Customer, or it licensors retain ownership and title in all IPRs in Customer Data. The Customer warrants that it is entitled to provide Customer Data to the Company for use in connection with the provision of the Website Hosting Services and that the Company is entitled to use the Customer Data in providing the Website Hosting Services as set out in the Agreement.
4. The Customer acknowledges and agrees that the Company may include a statement such as: “Website designed by Pitched” on the home page of the Website along with a link to the Company’s own website
Personnel
1. The Company shall ensure that it has sufficient, suitable Personnel to perform its obligations under these Website Hosting Terms.
2. The Company must ensure that its Personnel comply with the Customer’s usual staff and security if attending the Customer’s premises.
Systems Testing
1. The Company shall prepare and submit to the Customer in accordance with the Statement of Work:
  1. Sufficient tests, test results and test data to indicate whether the Website provides the functions and meets the performance criteria set out in the Statement of Work and such tests will include at least those tests which assess the performance of the Website as against the criteria set out in the Statement of Work; and
  2. The results expected to be achieved by carrying out the tests on the Hardware using the Website and the applicable system software.
2. The Company will provide the Customer with access to the Website in order for the Customer to carry out the Acceptance Tests.
Acceptance Testing
1. The Customer shall within 10 Business Days of being granted access to the Website (the “Acceptance Testing Period”) perform the Acceptance Tests.
2. If the Customer believes that the Website does not materially comply with the specification included in the Statement of Work it shall notify the Company in writing setting out full reasons for this view, with specific examples prior to the expiry of the Acceptance Testing Period.
3. The Company shall determine whether or not the failure of the Website to pass the Acceptance Tests is based upon non-compliance with the specification or results from a defect which is caused by an act or omission of the Customer, or its subcontractors or agents for whom the Company has no responsibility (“Non-Supplier Defect”). Where the failure is due to A Non-Supplier Defect the Website will be deemed to have been accepted.
4. The Company shall provide assistance reasonably requested by the Customer to remedy any Non-Supplier Defect by supplying additional services or products. The Customer shall pay the Company on a time and materials basis for all such additional services and products at the rates set out in the Order Form.
5. If the Website fails the Acceptance Tests due to the Website not materially complying with the specification, the Company shall set a date for repeating the Acceptance Tests.
6. If following the repeated Acceptance Tests the Website still does not materially comply with the specification, (provided that non-compliance does not result from any Non-Supplier Defect which shall be dealt with as in clause 10.d above) then at the sole discretion of the Company the Company may:
  1. make further changes to the Website at no charge to the Customer; or
  2. agree additional charges with the Customer to cover such further work.
7. If such additional charges cannot be agreed the Company shall be under no further obligation to the Customer in respect of the Website and shall terminate the Agreement in relation to the Website Hosting Services with immediate effect without liability to the Customer. Any Website Development Fees already paid by the Customer to the Company in connection with the Website Development Services shall not be refunded and all outstanding already invoiced Website Development Fees shall become immediately payable. However, the Company shall waive its right to invoice and be paid any Website Development Fees which were to be invoiced or which were payable on delivery of the Website. In such circumstances, any licence to use the Website will terminate and, for the avoidance of doubt, the Customer shall have no right to access or use the Website.
8. The Website will be deemed to have passed any Acceptance Tests in any event if:
  1. the Customer provides the Company with written confirmation of the successful Acceptance Tests of the Website prior to the end of the Acceptance Testing Period; or
  2. the Customer commences use of the Website in a live environment as its primary software system for the provision of the functionality the Website is designed to deliver; or
  3. the Acceptance Testing Period expires without the Customer making any written complaint or incident report to the Company concerning the Website.
Ready for Use
1. Following acceptance of the Website, the Website will be ready for use (“Ready for Use”).
2. Once the Website is Ready for Use if any changes which are not necessary to ensure that the Website complies with the Statement of Work are requested by the Customer, the Company will charge for making such changes on a time and material basis at the rates set out in the Order Form.
3. Prior to and/or up to a period of 1 month after the Website is Ready for Use the Company we will provide up to an aggregate of 2 hours of time to make aesthetic changes to the look and feel of the Website at the request of the Customer, at no charge. Any time incurred in excess of 2 hours or requested more than 1 month after the Website is ready for Use, will be charged for by the Company on a time and materials basis in accordance with the rates set out in the Order Form.
Documentation
1. The Company shall provide the Customer with user documentation or training (as specified in the Statement of Work) and non-software deliverables containing sufficient information to enable the Customer to make full use of the Website in conjunction with the Hardware and the applicable system software
Warranties
1. The Hosting Services shall be provided with reasonable skill and care and in accordance with the SLA.
2. The Company warrants that the Website will:
  1. comply with the specification set out in the Statement of Work; and
  2. be free from material defects.
3. If at any time before the date 90 days after the date the Website is Ready for Use, the Company becomes aware of, or the Customer advises the Company of any failure of the Website to comply with the warranties given under clause 13.b above, the Company shall promptly correct that failure.
4. All remedial work or replacement of the whole or any part of the Website carried out by the Company is warranted by the Company to the same extent as the Website from the date the work was completed or the part was replaced as the case may be.
5. If the Company is unable to correct any failure in accordance with clause 13.b above, the Customer may elect:
  1. to continue using the Website; or
  2. to reject the Website and terminate the Agreement under clause 20 below.
6. If the Customer elects under clause 13.e.i to continue using the Website:
  1. the Website Development Fees payable for the Website will be reduced by an amount attributable to that part of the Website that does not provide the functions and meet the performance criteria set out in the Statement of Work; and
  2. the Company must refund to the Customer the difference, if any, between the total amount of the Website Development Fees actually paid by the Customer under this Agreement to the date of the election and thereduced Website Development Fees or total amount payable under this Agreement.
Intellectual Property Warranty
1. The Company warrants that the use of the Website Hosting Services by the Customer (excluding any Customer Data, Customer IPRs) will not infringe the IPRs of any third party.
Limitation of Liability
1. The Company does not exclude its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of the Company or its Personnel in connection with provision of the Website Hosting Services.
2. The Company shall be liable for any breaches of these Website Hosting Terms caused by the acts of omissions of its Personnel as if such breaches had been caused by the Company itself.
3. Subject to clauses 15.a and 15.b, the total liability of each party to the other in aggregate (whether in contract, tort or otherwise) for any and all claims arising out of or related to these Website Hosting Terms or based upon any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Website Hosting Fees (excluding all taxes) paid or payable by the Customer to the Company for the Website to which a claim relates during the preceding twelve (12) month period. If the duration of the Agreement has been less than twelve (12) months, such shorter period shall apply.
4. The parties acknowledge and agree that in entering into the Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.
Indemnity
1. Subject to the financial cap on liability set out in clause 15.c, the Company shall defend, indemnify and hold harmless the Customer, its customers or agents against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) resulting directly or indirectly from:
  1. any infringement or breach by the Company of any third party’s IPRs relating to use of the Website or Hosting Services (excluding any claim resulting from the Customer’s IPRs or Customer Data);
  2. the Customer’s use of any Materials;
  3. the Company’s breach of the terms of the DPA or its obligations as a data processor under applicable data protection law or regulations;
  4. the Company breaching the confidentiality provisions of these Website Hosting Terms.
2. The indemnity given by the Company in clause 16.a above is subject to:
  1. the Company being given prompt notice of any such claim;
  2. the Customer providing reasonable co-operation to the Company in the defence and settlement of such claim, at the Company’s expense; and
  3. the Company being given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, the Company may procure the right for the Customer to continue using the Website or Hosting Services, replace or modify the Website or Hosting Services so that they become non- infringing or, if such remedies are not reasonably available, terminate the Website Hosting Services and the Agreement on giving 3 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
4. In no event shall the Company, its employees or Personnel be liable to the Customer to the extent that the alleged infringement is based on:
  1. a modification of the Website or Hosting Services by anyone other than the Company; or
  2. the Customer’s use of the Website or Hosting Services in any manner inconsistent with this Agreement; or
  3. the combination, operation or use of Website or Hosting Services with other services or software not provided by the Company if such infringement would have been avoided in the absence of such combination, operation or use; or
  4. the negligence or wilful misconduct of the Customer; or
  5. the Customer’s use of the Website or Hosting Services after notice of the alleged or actual infringement from the Company or any appropriate authority.
5. Subject to the financial cap on liability set out in clause 15.c, the Customer shall defend, indemnify and hold harmless the Company, its officers and Personnel against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) resulting directly or indirectly from:
  1. any infringement or breach by the Customer or Visitors of any third party’s IPRs relating to use of the Website or Hosting Services (excluding any claim resulting from the Materials of the Company’s IPRs);
  2. use by the Company of any Customer Data or third party provided item that is imported into or used on the Website;
  3. breaches of data protection law or regulations or the terms of the DPA by the Customers of Visitors;
  4. any access or use of the Website or Hosting Services by Visitors;
  5. the Customer breaching the confidentiality provisions of this Agreement.
6. The indemnity given by the Customer in clause 16.e above is subject to:
  1. the Customer being given prompt notice of any such claim;
  2. the Company providing reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
  3. the Customer being given sole authority to defend or settle the claim.
Confidentiality
1. Each party agrees during and after the term of the Agreement to preserve the confidentiality of, and not directly or indirectly reveal, report, publish, disclose or transfer or use for its own or any other purposes Confidential Information of the other party except:
  1. in the circumstances set out in clause 17.b below;
  2. to the extent otherwise expressly permitted by these Website Hosting Terms; or
  3. with the prior consent in writing of the party to whose affairs such Confidential Information relates.
2. The circumstances referred to in clause 17.a.i above are:
  1. where the Confidential Information is in the public domain;
  2. where the Confidential Information enters the public domain otherwise than as a result of a breach of the obligations of the receiving party in clause 17;
  3. if and to the extent the receiving party makes disclosure of the Confidential Information to any person:
    
    (a)      in compliance with any requirement of law;
    
    (b)      in response to a requirement of any applicable regulatory authority to which the party is subject where such requirement has the force of law; or
    
    (c)      in order to obtain tax or other clearances or consents from the Inland Revenue or other relevant taxing or regulatory authorities; or
    
    (d)      to the employees, directors, agents, consultants and professional advisers of the receiving party.
  Provided that any such information disclosable pursuant to clauses 17.b.iii(a) – (c) above shall only be disclosed to the extent required by law.
3. The restrictions contained in this clause 17 shall continue to apply after the termination or expiry of the Agreement without limit in time.
Data Protection
1. Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
2. To the extent that personal data is processed by the Company providing the Website Hosting Services to the Customer, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations and their contractual obligations set out in the DPA.
3. If a third party alleges infringement of its data protection rights, the Customer shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
4. Where the Company collects and processes personal data as a data controller, when providing the Website Hosting Services to the Customer or Visitors, such collection and processing shall be in accordance with the Privacy Policy.
Force Mejeure
1. Except with respect to the Customer’s obligation to pay the Website Hosting Fees, if a party is wholly or partially unable to comply with its obligations under these Website Hosting Terms due to Force Majeure, then that party’s obligation to perform in accordance with the provisions of the Website Hosting Terms will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Website Hosting Terms. Neither party shall be liable to the other as a result of any delay or failure to perform an obligation resulting from a Force Majeure event.
Termination
1. The Agreement may be terminated or the provision of the Website and/or Hosting Services may be suspended by the Company immediately by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement by the due payment date.
2. The Agreement may be terminated immediately by written notice by the non-breaching party:
  1. for a material breach of the Website Hosting Terms and the breaching party fails to remedy the breach within fourteen (14) days after receiving a written notice from the non-defaulting party requiring it to remedy the breach; or
  2. if a Force Majeure event lasts more than 30 days; or
  3. if a party defaults as set out in clause 20.c below.
3. A party will be deemed to be in default if:
  1. there is any change in the direct or indirect beneficial ownership or control of that party (other than changes as notified before the Effective Date);
  2. that party disposes of the whole or part of its business, operations or business other than in the ordinary course of business (other than changes as notified to the Customer before the Effective Date);
  3. that party ceases to carry on business;
  4. that party ceases to be able to pay its debts as they become due;
  5. that party passes a resolution, or a court makes an order that the party be wound up otherwise than for the purpose of a bona fide reconstruction or amalgamation;
  6. a receiver, manager or administrator on behalf of a creditor is appointed in respect of the business or any part thereof of that party;
  7. that party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
  8. any similar event occurs under the law of any other jurisdiction in respect of that party.
Consequences of Termination
1. The Customer shall immediately pay the Company all outstanding unpaid invoices and the Company shall invoice the Customer in respect of any service supplied but for which no invoice has been submitted. Such invoices shall be payable immediately upon receipt by the Customer.
2. The obligations of confidentiality under clause 17 (Confidential Information) shall continue to apply to the parties (in addition to any assignee) after termination, completion or assignment of the Agreement and each party shall return or destroy all Confidential Information of the other party within 7 days of termination.
3. Termination of the Agreement will not affect the accrued rights or remedies of either party and all clauses which by their nature should continue in force after the effective date of termination shall remain unaffected.
4. Any licences granted to the Customer by Company shall cease on the effective date of termination.
Miscellaneous
1. The Customer is not permitted to assign any of the rights, benefits or obligations arising under these Website Hosting Terms unless the Company gives its prior written approval.
2. Each party acknowledges that it has not entered into these Website Hosting Terms in reliance on any statement or representation, whether or not made by the other party, except in so far as the representation has been incorporated into the Website Hosting Terms.
3. These Website Hosting Terms and any documents referred to in them, constitute the entire agreement and understanding between the parties and supersede all prior agreements, negotiations and discussions between the parties relating to the provision and use of the Website Hosting Services. Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company‘s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Website described in them and shall not form part of these Website Hosting Terms.
4. Should one or more of the provisions of these Website Hosting Terms be deemed to be invalid, illegal or unenforceable, the remaining clauses shall remain unaffected. The parties shall then agree to substitute the invalid clause by a clause that is legally and economically as far as possible comparable to the invalid clause.
5. In the event of any inconsistency between the provisions of an Order Form and the Website Hosting Terms, the terms ofthe Order Form shall prevail.
6. The terms of the Agreement may only be modified, or any rights under it waived, in a written document executed by both parties.
7. The Company’s relationship with the Customer during the term of the Agreement shall be that of an independent contractor. The Company shall not have, and shall not represent that it has, any power, right or authority to bind the Customer, or to assume or create any obligation or responsibility, express or implied, on behalf of the Customer.
8. The Company shall not be entitled to any pension, bonus, sick pay, holiday or other fringe benefits from the Customer and the Company shall bear exclusive responsibility for the discharge of any income tax, national insurance contributions, VAT and other taxation liability arising out of any fees paid under the Agreement and shall indemnify the Customer against all payments which it may be required to make by the Inland Revenue or other similar authority.
9. A waiver of any right under these Website Hosting Terms is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under these Website Hosting Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10. Any notice required to be given under these Website Hosting Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes or sent by email where specifically permitted by these Website Hosting Terms. Unless expressly stated otherwise in these Website Hosting Terms, E-mail is specifically excluded. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
11. Nothing contained in these Website Hosting Terms is intended to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
12. Each party will pay its own legal, accountancy and other costs and expenses incurred by it in the negotiation and preparation of the Agreement.
Governing Law and Jurisdiction
1. These Website Hosting Terms 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 and Wales and the parties shall submit to the exclusive jurisdiction of the English courts.

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