Hosting – Full Terms & Conditions
1. Definitions and Interpretation
1.1 in this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any business/working day (other than Saturday or Sunday, public/bank holidays);
“Confidential Information” means in relation to either party any information which is disclosed to that party by the other party (whether or not developed by the other) including, without limitation (a) the preparation and Specifications of the Deliverables, (b) pre-existing or new information that relates to all ideas, designs, methods, discoveries, improvements, products or other results of consulting services, (c) trade secrets, (d) product data, (e) proprietary rights, (f) business and financial affairs, (g) product developments, and (h) customer and employee information;
“Content” means all text, graphics, animation, audio and/or digital video components and all other components of the Deliverables and the selection and arrangement thereof, other than the Code whether created by Vaccoda or provided by the Client for purposes of developing the Deliverables, including without limitation any Intellectual Property Rights therein;
“Intellectual Property Rights” means any patent, copyright, trademark and design rights (in either case registered or unregistered) format rights, topography rights, trade secrets, moral right, right of attribution or integrity right to confidentiality know-how or other intellectual or industrial property rights or proprietary rights arising under the laws of any jurisdiction (including, without limitation, all claims and causes of action for infringement, misappropriation or violation thereof and all rights in any registrations and renewals);
“Pre-existing Work” means any pre-existing original works of authorship contained in the Content as identified in the Work Statement;
“Web” means a global computer network of servers and files containing text and graphics accessible through use of hypertext transfer protocol (“HTTP”); and
1.2 unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to this Agreement;
1.2.5 a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.2.6 a “Party” or the “Parties” refer to the parties to this Agreement.
1.3 the headings used in this Agreement are for convenience only and will have no effect upon the interpretation of this Agreement.
1.4 words imparting the singular number will include the plural and vice versa.
2. Vaccoda’s Responsibilities:
2.1 provide all facilities, equipment, online staff and services necessary to host, operate, manage and maintain the Web Site in accordance with the terms of this Agreement and all applicable laws and regulations;
2.2 configure, install, house, maintain, monitor and operate all computer equipment, server, software, network equipment and other components thereof, in a commercially reasonable manner designed to maximise the reliability and security thereof;
2.3 use reasonable efforts to protect the Web Site from unauthorised interruptions, viruses and outside attacks (including, without limitation, by installing appropriate firewalls, backup systems and other protective devices);
2.4 use reasonable efforts to maximise the online accessibility of the Web Site to users of the Web;
2.5 (if agreed with the Client) use reasonable efforts to collect such information from users of the Web Site as the Client may reasonably request (including at a minimum, and without limitation, the name, address, telephone number, e-mail address, facsimile number and usage information of each user); provided, however, that the Contractor may provide users of the Web Site with a means to elect to maintain the privacy and confidentiality of their information (and, for users making such an election, the Client hereby agrees to use such user information solely for internal purposes and not for any direct marketing purpose);
2.6 guide users of the Web Site to proper software for viewing and working with content as necessary;
2.7 inform the Client of any disruptions caused by unruly visitors to the Web Site;
2.8 provide the Client with reasonable technical support via telephone and e-mail in connection with the use of the Web Site and co-operate with the Client in directing customer support inquiries to the appropriate party.
2.9 but without having any obligation to do so:
2.9.1 Vaccoda publish credits, disclaimers or other materials on the Web Site as it reasonably deems appropriate.
2.9.2 from time to time right to review the Web Site and remove or edit content which, in its sole discretion, Vaccoda considers offensive, libellous, obscene or otherwise unlawful or objectionable (including without limitation, hyperlinks, framed content or meta tags which Vaccoda considers potentially infringing of third party intellectual property rights); provided, however, that Vaccoda will attempt to contact the Client prior to removing or editing such content. The parties will attempt to meet in good faith to resolve any such issues.
3. Client’s Responsibilities
In connection with using the Web Site the Client will:
3.1 be responsible for the maintenance, renewal, control and editorial content of the Web Site and will accept that Vaccoda is not responsible for reviewing the text, graphics, animation, audio and/or digital video components prior to uploading such content onto the Web Site and that Vaccoda is not required to upload new content or alterations to existing content provided by the Client during the Term, unless agreed for separately, at additional cost to the client.
3.2 ensure that the content will be and remain fully compatible with the Web Site; provided, however, upon request from the Client, and at the Client’s sole expense, Vaccoda will make commercially reasonable efforts to assist the Client in resolving any content related compatibility problem.
3.3 be solely responsible for collecting any and all required sales, use and value added taxes and other governmental charges and duties from users of the Web Site.
3.4 in all respects comply with all legislation relating to the products, goods or services it offers through the Web Site and the content of the Web Site and will indemnify and hold harmless Vaccoda from and against all actions claims and demands in respect of any action brought against Vaccoda in relation to any Content contained on the Web Site, including (but not by way of limitation) all legal and other costs incurred by Vaccoda in connection therewith.
3.5 Vaccoda is not responsible in any way whatsoever for transferring across existing client websites, installing databases or new websites to the server or configuring websites in any way, unless this is agreed beforehand. Vaccoda reserves the right to charge fees for the time taken to undertake such works.
4. Hosting Fees
4.1 the Client shall pay to the Contractor the Hosting Fee for hosting the Web Site in accordance with the terms and conditions of this Agreement.
4.2 Vaccoda may, at any time, change the price of hosting, provided 1 months’ written notice is supplied to the Client. Where payment has already been made for a specified period, no further payment nor reimbursement shall be due and new fees shall take effect from the next payment due. The Contractor reserves the right to continue charging the Client old rates where new rates are higher.
4.3 the Client may change its hosting requirements at any time. In the event that such requirements are changed, Vaccoda may adjust the fees due accordingly.
4.4 all fees payable by the Client to Vaccoda shall be paid in full, without set off or deduction. Vaccoda has the right to suspend or terminate hosting services if fees are not paid on or before the due date.
5. Term and Termination
5.1 this Agreement will remain in effect through the Term.
5.2 either party will have the right, exercisable by giving not less than 3 months’ written notice to the other at any time prior to the expiry of the Term (or any further period for which this Agreement has been extended pursuant to this pursuant to this provision) to extend this Agreement for a further period of 12 months.
5.3 either party may terminate this Agreement after the Website has been developed and commissioned by giving to the other not less than 12 months’ written notice, to expire on or at any time after the date upon which the Web Site has gone live.
5.4 either party may terminate this Agreement by giving written notice to the other party if:
5.4.1 any sum owing to that party by the other party under any of the provisions of this Agreement is not paid within 30 days of the due date for payment;
5.4.2 the other party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 30 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
5.4.3 an encumbrancer takes possession, or (where the other party is a company) a receiver is appointed, of any of the property or assets of that other party;
5.4.4 the other party makes any voluntary arrangement with his or its creditors or (being a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
5.4.5 the other party (being an individual or firm) has a bankruptcy order made against him or it or (being a company) goes into liquidation (except for the purposes of amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement);
5.4.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other party;
5.4.7 the other party ceases, or threatens to cease, to carry on business;
5.4.8 control of the other party is acquired by any person or connected persons not having control of that other party on the date of this Agreement.
5.5 for the purposes of Clause 5.4.2, a breach will be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).
5.6 the rights to terminate this Agreement given by this Clause 4 will not prejudice any other right to remedy of either party in respect of the breach concerned (if any) or any other breach.
6. Effects of Termination
Upon the termination of this Agreement for any reason:
6.1 any sum owing by the Client to Vaccoda under any of the provisions of this Agreement will be immediately payable and the Client will pay Vaccoda for all unpaid invoices and uncompensated staff time and expenses up to the date of termination; provided, however, that if the Deliverables are being provided on a fixed price billing basis, all staff time and expenses will be paid as if on a time and material billing basis;
6.2 each party will forthwith cease to use, either directly or indirectly, any Confidential Information, and will forthwith return to the other party any documents in its possession or control which contain or record any Confidential Information;
6.3 any provision of this Agreement which is expressed to continue in force after termination will continue in full force and effect;
6.4 subject as provided in this Clause 6, and except in respect of any accrued rights, neither party will be under any further obligation to the other.
7. Rights in Content and Software
7.1 all items and materials delivered by Vaccoda to the Client hereunder, and all Intellectual Property Rights associated with any of the foregoing, will be owned exclusively by Vaccoda, and no right, title or interest in or to any of the same.
7.2 the Client’s logos, trademarks, trade names, copyright materials and the Client’s Pre-existing Work remain the Client’s sole property. Vaccoda agrees that the service mark, uniform resource locator (“URL”) and the IP numeric equivalent will be obtained by and remain the sole property of the Client.
7.4 all rights in all items and materials delivered by Vaccoda to the Client which are not expressly granted to the Client herein are reserved to Vaccoda.
8.1 each Party undertakes that, except as provided by sub-Clause 8.2 or as authorised in writing by the other Party, it will, at all times during the continuance of this Agreement and after its termination:
8.1.1 keep confidential all Confidential Information;
8.1.2 not disclose any Confidential Information to any other person;
8.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms and conditions of this Agreement;
8.1.4 not make any copies of, record in any way or part with possession of any Confidential Information;
8.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 8.1.1 to 8.1.4 above.
8.2 either Party may:
8.2.1 disclose any Confidential Information to:
188.8.131.52 any sub-Vaccoda or supplier of that Party;
184.108.40.206 any governmental or other authority or regulatory body;
220.127.116.11 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 18.104.22.168 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 8, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made;
8.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
8.3 the provisions of this Clause 8 will continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
9. Representations, Warranties, Limitations and Indemnity
9.1 the Client warrants that:
9.1.1 no part of the Web Site including the Content provided by the Client:
22.214.171.124 infringes on any Intellectual Property Rights of others;
126.96.36.199 is defamatory to any third party or violates any third parties rights of privacy or publicity.
9.2 it is the owner of all rights in, or has obtained any written permission necessary to use on any part of the Web Site the Content it provides.
9.3 it will review the accuracy of all Content, information and data contained on the Web Iste regularly to confirm that it remains compliant with the terms of this Agreement.
9.4 the Client will defend, indemnify and hold Vaccoda harmless from all liability and expenses (including, but not limited to legal fees) arising from such claim.
9.6 each party warrants that it has full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights described herein to the other party.
9.7 except as specifically provided in this Clause, Vaccoda hereby disclaims and the Client hereby waives all other warranties, express or implied, with respect to the Deliverables and all services provided here-under, arising by law or otherwise, including without limitation:
9.7.1 any implied warranty of merchantability, fitness for a particular purpose non-infringement or arising from course of dealing, course of performance or usage of trade;
9.7.2 any obligation, liability, right, remedy, claim in tort, notwithstanding any fault, negligence, strict liability or product liability of Vaccoda(whether active, passive or imputed).
9.8 nothing in this Agreement excludes the liability of either party for death or personal injury or fraud
In addition to its rights of termination, the Client’s exclusive remedies for Vaccoda’s default hereunder will be to obtain the repair, replacement or correction of the defective services, software or equipment to the extent warranted under this Agreement. If such remedy is not economically or technically feasible or effective, then the Client may obtain an equitable partial or full credit or refund of amounts paid with respects to the defective services or Deliverable, subject to the limitation set forth immediately below.
11. Force Majeure
Neither Party to this Agreement will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the reasonable control of the Party in question.
12. Nature of the Agreement
12.1 this Agreement is personal to the Parties and neither Party may assign, mortgage, or charge (otherwise than by floating charge) any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld but Vaccoda will at all times during the Term be able to use such sub-contractors or other persons as it in its sole discretion will decide to perform all or any part of the service provided hereunder provided that:
12.1.1 such sub-contractors or other persons are made subject to the relevant parts of this Agreement
12.1.2 that Vaccoda remains at all times primarily liable for the proper provision of those services.
12.2 this Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
12.3 each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.4 no failure or delay by either Party in exercising any of its rights under this Agreement will be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of the same or any other provision.
12.5 at any time after the date hereof each of the Parties will, at the request and cost of the other Party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the Party so requiring may reasonably require for the purpose of giving to the Party so requiring the full benefit of all the provisions of this Agreement.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of this Agreement. The remainder of this Agreement will be valid and enforceable.
14. Relationship of the Parties
14.1 nothing in this Agreement will constitute, or be deemed to constitute, a partnership between the Parties nor, except as expressly provided, will it constitute, or be deemed to constitute an agency of any other Party for any purpose.
14.2 subject to any express provisions to the contrary in this Agreement, Vaccoda will have no right or authority to, and will not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of the Client or bind the Client in any way.
15.1 all notices under this Agreement will be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
15.2 notices will be deemed to have been duly given:
15.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient;
15.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated;
15.2.3 on the fifth Business Day following mailing, if mailed by national ordinary mail, postage prepaid;
15.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
16. Law and Jurisdiction
16.1 this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) will be governed by, and construed in accordance with, the laws of England and Wales.
16.2 any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) will fall within the jurisdiction of the courts of England and Wales.
Hosting – Acceptable Usage Policy
Please also see our Hosting Acceptable Usage Policy. Click here to read this.
Do You Have A Question?
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