Terms and Conditions

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WEBSITE DESIGN AGREEMENT

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 day other than Saturday or Sunday that is not a bank or public holiday;

“Commencement Date” : means the date when this agreement has been accepted by the Client in writing i.e. e-mail;

“Confidential Information” : means all business, technical, financial or other information created or exchanged between the Parties in the course of the Project including the existence of the Project;

“Preliminary Payment” : means a payment by way of deposit defined in Clause 4.1;

“Project” : means, collectively, the work to be carried out by the Contractor for the Client as set out in the Project Specification;

“Project Fees” : means the price for the Project as agreed by the Parties as set out in the Project Specification;

“Project Milestone” : means one of multiple phases that the Project has been divided up into as set out in the Project Specification;

“Project Specification” : means a document setting out in detail the work which the Client requires the Contractor to perform as referenced in Clause 2 of this Agreement and attached as Schedule 1 to this Agreement; and

“Site Materials” : means all components of the Web Site as supplied by the Client to the Contractor for the purpose of developing and creating the Web Site, and as created or otherwise sourced by the Contractor in the course of developing and creating the Web Site.  This includes, but is not limited to, source code, text, graphics, images and animations.

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 transmission or similar means;

1.2.2 a statute or a provisions 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; and

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.

1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.

1.4 Words imparting the singular number shall include the plural and vice versa.

1.5 References to any gender shall include the other gender.

 

2. Project Specification

2.1 The Parties have prepared and agreed upon a detailed Project Specification for the Website as set out in Schedule 1 to this Agreement.

2.2 The Project Specification sets out in full the work that is required by the Client.  The Specification includes (but is not necessarily limited to) details of the following:

2.2.1 the nature of the Client’s business and the purpose of the Web Site;

2.2.2 the type of work required, specifying either a new scratch-built Web Site, the re-design of the Client’s current website, or modifications to the current website;

2.2.3 the URL (Domain Name i.e. example.com) of the Web Site;

2.2.4 the Site Materials (where relevant) that the Client will supply to the Contractor for use in the Project along with details of when and where those materials are to be used;

2.2.5 drafts of code, text and / or visual layouts (where available) that reflect the work required by the Client; and

2.2.6 the time frame for the Project as advised by the Contractor.

2.3 Either Party may request or propose amendments to the Project Specification.  Any proposed amendments must be made in writing.  If either Party wishes to discuss such issues at a meeting that Party shall provide at least 7 Business Days’ notice to the other Party of the meeting.

2.4 The Contractor shall use its best and reasonable endeavours to adhere to all provisions in the Project Specification.  Where such requirements cannot reasonably be accommodated, the Contractor reserves the right to amend the Project Specification in accordance with sub-Clause 2.3 above.

 

3. Time

Whilst a Target completion or finish date may have been agreed, the Parties hereby agree that time shall not be of the essence.  The Parties have agreed upon a completion time in the Project Specification. The Contractor shall not be responsible for any Project over-runs, irrespective of the cause.

 

4. Fees, Payment and Expenses

4.1 The Client shall make a non-refundable Preliminary Payment amounting to 25% of the Project Fee by way of deposit prior to the commencement of the Project.  No work shall begin until the Preliminary Payment is received in full by the Contractor.

4.2 The agreed Project Fees shall be divided into a series of Milestone Payments, each falling due on the successful completion, delivery and acceptance of the relevant Project Milestone in accordance with the Project Specification.

4.3 Where the Client fails within a period of 6 months of the request for the same being made by the Contractor, to supply the relevant Site Materials (See clause 8.2) to enable the Contractor to complete the project or ‘Milestone’, the Contractor reserves the right to suspend the Project and to invoice for the full outstanding Project fees, which will become payable immediately.

4.4 The Client shall make any and all payments against invoices issued by the Contractor for the relevant amounts within 14 business days of the date of Invoice.

4.5 The Client shall cover the following expenses:

4.5.1 those including travel, hotel, computer consumables and other expenses which the Contractor may necessarily and properly incur for the purposes of the Project, other than expenses of travelling between normal places of residence and the place at which the Contractor carries on its business;

4.5.2 those incurred by the Contractor that may result from addressing any amendments to the Project Specification made under sub-Clauses 2.3 or 2.4 of this Agreement; and

4.5.3 those incurred by the Contractor in the correction of any faults identified during testing in accordance with sub-Clauses 12.3 and 12.6 of this Agreement.

4.6 The Client reserves the right to query any expenses detailed in sub-Clause 4.4 above and shall not be required to cover any expenses that are not directly related to the Project or those for which no valid receipts or invoices can be produced.

4.7 In the event that the Contractor faces additional expenses related to the Project that are outside the scope of those detailed in sub-Clause 4.4 above, such expenses shall not be incurred without the prior written consent of the Client.

4.8 Any and all amounts invoiced under this Agreement shall be inclusive of any value added tax.

 

5. Late Payment

If the Client fails to make any payment due to the Contractor under Clause 4 of this Agreement on the due date then, without prejudice to any other right or remedy available to the Contractor, the Contractor shall be entitled to:

5.1 terminate this Agreement by giving written notice to the Client provided that the Client fails to make the due payment within 40 Business Days after receiving written notice from the Contractor giving full particulars of the payment due and requiring such payment to be made within 14 Business Days;

5.2 charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 8 per cent per annum above the Bank of England base rate until payment in full is made (a part of a week or month being treated as a full week or month for the purpose of calculating interest); and

5.3 suspend the Project, resuming upon receipt of cleared funds amounting to all amounts due by the Contractor.  The Contractor shall not be liable for any Project delays occasioned by the Client’s failure to make required payments on time.

 

6. Ownership of Site Materials

6.1 The Contractor shall retain legal and beneficial ownership of all Site Materials created by them under this Agreement until all charges are paid in full by the Client.  Upon receipt by the Contractor of all sums due and of a Final Project Acceptance form completed by the Client in accordance with Clause 13 of this Agreement, legal and beneficial ownership shall be immediately assigned to the Client.

6.2 The Client shall retain ownership of all Site Materials owned by them prior to entering into this Agreement.  No property shall be assigned to the Contractor by the Client at any time.

 

7. Intellectual Property

7.1 All Site Materials provided by the Client and the copyright, design rights and trademarks therein shall remain the property of the Client.  The Contractor shall use such Site Materials under licence for the sole purpose of completing the Project.

7.2 The Client warrants that they have obtained all relevant permissions and rights for the use of any Site Material that they provide that are owned by, or were otherwise created by, a third party.

7.3 The Contractor shall bear no responsibility for ensuring that Site Materials supplied by the Client carry with them the appropriate third party permissions for use and reproduction.

7.4 The Contractor shall retain ownership of the copyright subsisting in any and all Site Materials created by them under this Agreement until all charges are paid in full by the Client.  Upon receipt by the Contractor of all sums due and of a Final Project Acceptance form completed by the Client in accordance with Clause 13 of this Agreement, all relevant copyright shall be immediately assigned to the Client.

7.5 Except as expressly set out in this Clause 7, this Agreement does not transfer or grant to the Contractor any right, title or interest in any intellectual property rights belonging to the Client.

 

8. Site Materials Delivery

8.1 Unless it is specified otherwise in the Project Specification or otherwise agreed in writing by the Parties, all text shall be provided by the Client in electronic format and all photographs and other graphics shall either be in electronic format or of a suitable print quality for scanning.  The Contractor shall not be responsible for poor quality images where the poor quality is a direct result of the supply of poor quality originals from the Client.

8.2 The Client shall make all required Site Materials and other material available to the Contractor within 40 business days of the request for the same being made by the Contractor.  The Contractor shall not be liable for any delays caused by the Client’s failure to comply with this Sub-Clause.

8.3 The Contractor shall use its best and reasonable endeavours to return to the Client all Site Materials and other material originally supplied by the Client however such return is not guaranteed and the Contractor shall not be liable for any loss or damage to such material.  It is the Client’s responsibility to ensure that appropriate backups are made.

8.4 No material submitted by the Client should consist of anything which may, under the laws of England and Wales, be deemed immoral, offensive, obscene or illegal.  The Contractor reserves the right to reject such materials and is under a positive obligation to inform the relevant authorities of the Client’s possession of such material.

 

9. Grant of Licence

The Client hereby grants to the Contractor a non-exclusive licence to use any and all Site Materials provided by the Client for the purposes of completing the Project under the terms of this Agreement.  Such use shall be deemed to cover the restricted acts specified in Section 16 of the Copyright Designs and Patents Act 1988 and shall include, but not be limited to:

9.1 editing;

9.2 modification;

9.3 adaptation;

9.4 translation;

9.5 publication;

9.6 reproduction;

9.7 transmission;

9.8 distribution; and

9.9 display.

 

10. Project Updates

10.1 The Contractor shall provide from time to time updates, either written or verbally, detailing the progress of the Project, indicating any important matters for the attention of the Client.

10.2 In the event that the Project falls behind Project Specification in the opinion of either Party, either Party may request a meeting to further discuss the Project including rectifying delays and putting the Project back on Project Specification.

 

11. Delivery

11.1 Project Milestones will be delivered to the Client immediately following testing by the Contractor in accordance with sub-Clause 12.2 of this Agreement.

11.2 The complete Web Site will be delivered and hosted onto the Contractor hosting server of choice, unless otherwise agreed. (See Web Hosting Agreement for further details).

11.3 At the client request, the Web Site shall be delivered on a: CD, DVD, Memory Key or other type of media for no additional charge.  If the Client wishes the Web Site to be uploaded using File Transfer Protocol (“FTP”) to a hosting server of their choice by the Contractor, the Client shall pay an additional fee as set out in Schedule 2 to this Agreement.

11.4 Following delivery, the Client may request that the Contractor retains and securely stores a back-up copy of the Web Site.  The Contractor shall use its best and reasonable endeavours to keep such a back-up safe and secure and shall do so at no additional cost to the Client.

 

12. Testing

12.1 For the purposes of this Clause 12 “testing” shall be deemed to include (but not necessarily be limited to):

12.1.1 testing the functionality of all code on each individual page of the Web Site;

12.1.2 checking the integrity of all links;

12.1.3 checking animated or other video content for errors;

12.1.4 testing the functionality of all interactive features; and

12.1.5 testing the Web Site on all mainstream web browsers.

12.2 Prior to delivery of the completed Web Site to the Client, the Contractor will test the relevant sections of the Web Site thoroughly in accordance with sub-Clause 12.1 of this Agreement, and in accordance with any additional criteria agreed by the Parties in the Project Specification or otherwise in writing.

12.3 In the event that the Contractor identifies any faults in the relevant sections of the Web Site, it shall use its best and reasonable endeavours to correct such faults in a timely manner prior to testing by the Client in accordance with sub-Clause 12.4 below.

12.4 Following the completion of testing by the Contractor and the making of any necessary corrections to the relevant sections of the Website, the completed Web Site will be delivered to the Client in accordance with Clause 11 of this Agreement.  Upon delivery, the Client shall have a period of 14 Business Days (the “Testing Period”) to test the relevant sections of the Web Site in accordance with sub-Clause 12.1 of this Agreement.

12.5 In the event that the Client identifies any faults in the relevant sections of the Web Site, it shall inform the Contractor, in detail, of such faults in writing at the end of the Testing Period.

12.6 Following the receipt of details of any faults from the Client, the Contractor shall use its best and reasonable endeavours to correct such faults in a timely manner.

12.7 Any additional work required to correct faults under sub-Clauses 12.3 and 12.6 of this Agreement, shall be completed at no extra cost to the Client save for any reasonable expenses as detailed in sub-Clause 4.4.3 of this Agreement.

 

13. Acceptance and Release

13.1 Following the completion of the Web Site to the Client’s satisfaction, including the correction of any faults found during testing the Contractor shall provide a Final Project Acceptance form for the Client to complete and return indicating completion and acceptance of the Web Site.

13.2 The Client shall only acquire all rights to use the completed Web Site in full upon the Contractor’s receipt of the completed, signed Final Project Acceptance form.

 

14. Publicity

14.1 The Client hereby agrees to the placement of a hyperlink to the Contractors web site on the footer of the Web Site (a “Contractor Link”).

14.2 The Contractor Link shall take the form of a logo or other relevant image or shall be in the form of text.

14.3 The Client shall retain the Contractor Link on their Web Site until the Web Site is redesigned by another party, such redesign creating more than a merely insubstantial difference of impression upon an average user, whichever is earlier.

 

15. Contractor’s Warranties

15.1 The Contractor hereby represents and warrants to the Client that:

15.1.1 the Web Site will, after completion, delivery and any remedial work required following testing, provide the facilities and functions and otherwise perform as set out in the Project Specification;

15.1.2 the Contractor has and will continue to have the right to grant all the rights and licences granted herein or that it purports to grant to the Client pursuant to and under the terms of this Agreement;

15.1.3 the Client’s use and operation of the Web Site will not infringe the intellectual property rights of any third party;

15.1.4 no Site Materials created or sourced by the Contractor will contain anything that is in any way unlawful, harmful, threatening, obscene, harassing, discriminatory, defamatory or otherwise objectionable or that facilitates or promotes violence, terrorism, or any other criminal activity;

15.1.5 the Client will require no software other than that specified in the Project Specification to operate the Web Site; and

15.1.6 all services provided to the Client by the Contractor shall be provided in a timely and orderly fashion by skilled and experienced personnel acting with all due care and skill in accordance with the best professional standards current in the website design industry.

15.2 In the event that the Contractor receives written notice from the Client of any breach of the warranties set out in sub-Clause 15.1 above, the Contractor shall at its own expense promptly remedy the defect or error in question.

15.3 The Contractor shall have no liability or obligation under the warranty in sub-Clause 15.2 unless it has received written notice of the defect or error in question no later than 12 months following the Client’s final acceptance of the Web Site in accordance with Clause 13 of this Agreement.

 

16. Client’s Warranties

16.1 The Client hereby represents and warrants to the Contractor that:

16.1.1 it has the power and authority to enter into and perform its obligations under this Agreement; and

16.1.2 no Site Materials created or sourced by the Client will contain anything that is in any way unlawful, harmful, threatening, obscene, harassing, discriminatory, defamatory or otherwise objectionable or that facilitates or promotes violence, terrorism, or any other criminal activity

16.2 In the event that the Client receives written notice from the Contractor of any breach of the warranties set out in sub-Clause 16.1 above, the Client shall at its own expense promptly remedy the defect or error in question.

 

17. Liability

17.1 Subject to Clause 18 of this Agreement, the Contractor shall not be liable to the Client for any indirect or consequential loss the Client may suffer even if such loss is reasonably foreseeable or if the Contractor has been advised of the possibility of the Client incurring it.

17.2 The Contractor’s entire liability to the Client in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to £1000.

17.3 Notwithstanding any other provision in this Agreement, the Contractor’s liability to the Client for death or injury resulting from his own negligence or that of his employees, agents or sub-contractors shall not be limited.

 

18. Indemnity

18.1 The Contractor shall indemnify the Client against any and all liability, loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the Client or by a third party whether direct, indirect or consequential arising out of any dispute or contractual, tortious or other claims or proceedings brought by a third party alleging infringement of his intellectual property rights by parts of the Web Site created or supplied by the Contractor provided that:

18.1.1 this indemnity shall not apply to any infringement of a third party’s intellectual property rights arising as a direct result of any alteration or modification of any Site Materials provided by the Client;

18.1.2 in addition to the above indemnity, where an injunction restraining use by the Client of the Web Site or any other content (as delivered by the Contractor) or any part of it is, in the reasonable good faith opinion of the Client’s legal advisers communicated in writing to the Contractor, likely to be granted by the court to the third party, the Contractor shall either:

18.1.2.1 do all acts and things necessary to render those parts of the Web Site or other content created or procured by the Contractor, or the appropriate part of them, non-infringing without affecting any of the Contractor’s other duties and obligations under this Agreement; or

18.1.2.2 obtain a licence from the third party granting the Client the right to continue using the Web Site or other content (as delivered by the Contractor) or the part of them that infringes.

18.1.3 the Client gives written notice to the Contractor of any claim or proceeding as soon as reasonably possible following receipt of it;

18.1.4 the Client makes no admission of liability and gives the Contractor sole authority to defend or settle the claim or proceedings at the Contractor’s cost and expense; and

18.1.5 the Client gives the Contractor all reasonable assistance in connection with any such claims or proceedings at the Contractor’s cost and expense.

18.2 The Client agrees to fully indemnify and hold the Contractor free from any and all claims for intellectual property infringement that may arise out of the Client’s failure to obtain the required permissions and rights for the use of any Site Material provided.

 

19. Notices

19.1 All notices under this Agreement shall be in writing.

19.2 Notices shall be deemed to have been duly given:

19.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient;

19.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated;

19.2.3 on the fifth Business Day following mailing, if mailed first class, postage prepaid; or

19.2.4 on the tenth Business Day following mailing, if mailed by airmail, postage prepaid.

19.3 In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other party.

 

20. Confidentiality

20.1 During the term of this Agreement and after termination or expiration of this Agreement for any reason for a period of 12 months starting on the date signed by both parties, the following obligations shall apply to the Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”).

20.2 Subject to sub-Clause 20.3, the Receiving Party:

20.2.1 may not use any Confidential Information for any purpose other than the performance of his obligations under this Agreement;

20.2.2 may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and

20.2.3 shall make every effort to prevent the use or disclosure of the Confidential Information.

20.3 The obligations of confidence referred to in all provisions of this Clause 20 shall not apply to any confidential information that:

20.3.1 is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;

20.3.2 is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;

20.3.3 is required to be disclosed by any applicable law or regulation; or

20.3.4 is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party.

20.4 Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this Clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which he may be entitled.

20.5 The obligations of the Parties under all provisions of this Clause shall survive the expiry or the termination of this Agreement for whatever reason.

 

21. Termination

21.1 Either Party (an “Initiating Party”) may terminate this Agreement with immediate effect by written notice to the other party (the “Breaching Party”) on or at any time after the occurrence of an event specified in sub-Clause 21.2.

21.2 The events referred to in sub-Clause 21.1 are:

21.2.1 the Breaching Party committing a material breach of this Agreement and failing to remedy that breach within 10 Business Days starting on the day after receipt of notice from the Initiating Party giving details of the breach and requiring the Breaching Party to remedy the breach;

21.2.2 the Breaching Party passing a resolution for winding up, a court of competent jurisdiction making an order for the Breaching Party’s winding up or the presentation of a petition for the Breaching Party’s winding up that is not dismissed within seven days (other than, in each case, for the purposes of solvent amalgamation or reconstruction in such a manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the Breaching Party’s obligations under this Agreement);

21.2.3 the making of an administration order in relation to the Breaching Party or the appointment of a receiver over or an encumbrancer taking possession of or selling an asset of the Breaching Party; or

21.2.4 the Breaching Party making an arrangement or composition with his creditors generally or making an application to a court of competent jurisdiction for protection from his creditors generally.

21.3 An act or omission by a person who controls, is under common control with, or is controlled by a Party that would be a breach of this Agreement on his part if it were an act or omission of the Party shall be deemed to be a breach of this Agreement by the Party.

21.4 Termination of this Agreement for whatever reason shall not affect either:

21.4.1 the accrued rights and liabilities of the Parties arising in any way out of this Agreement as at the date of termination and in particular but without limitation the right to recover damages against the other; or

21.4.2 provisions that are expressed to survive this Agreement, which shall remain in full force and effect.

 

22. Relationship of Parties

Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Contractor and the Client.

 

23. Assignment

Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.

 

24. Non-Solicitation

24.1 The Client undertakes that it shall not during this Agreement, nor during the period of 12 months following the termination of this Agreement, either, on its own account or in conjunction with or on behalf of any other person, firm or company, solicit or entice away any employee of the Contractor.

24.2 The Client undertakes that it shall not during this Agreement, nor during  a period of 12 months following the termination of this Agreement, either, on its own account or in conjunction with or on behalf of any other person, firm or company, without the Contractor’s prior knowledge and agreement, solicit or endeavour to solicit any business of the same nature as the Project from any person who at any time within 5 years prior to the relevant date has been a customer of the Contractor.

 

25. Force Majeure

Neither Party to this Agreement shall 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 control of the Party in question.

 

26. Severance

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 shall be deemed severed from the remainder of this Agreement.  The remainder of this Agreement shall be valid and enforceable.

 

27. Entire Agreement

27.1 This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement.  Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.

27.2 Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.

 

28. No Waiver

The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement.  Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

 

29. Non-exclusivity

The relationship between the Parties under this Agreement is and shall remain non-exclusive.  Both parties are free to enter into similar relationships with other parties.

 

30. Law and Jurisdiction

30.1 This Agreement shall be governed by the laws of England and Wales.

30.2 Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of England and Wales.

[/single_tab][single_tab title=”Web Hosting Agreement” tab_id=”web-hosting-agreement”]

WEB HOSTING AGREEMENT

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 day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in United Kingdom;

“Client Website” means the website that the Host is hosting for the Client and refers to all parts of that website including, but not limited to, component files and related services such as email;

“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);

“Fee” means the sum payable by the Client to the Host in order to receive the Service;

“Hosting Hardware” means any and all computer and networking equipment used by the Host in the provision of the Service including, but not limited to, servers and network infrastructure;

“Hosting Package” means the Hosting Service provided by the Hostas detailed in the Schedule 1 of the Website Design Agreement;

“Hosting Software” means any and all software used by the Host in the provision of the Service;

“Intellectual Property Rights” means copyright (and related rights), designs, patents, trade marks and any and all other intellectual property rights. This includes all such rights, whether they are registered or unregistered, and the rights to apply for renewals or extensions of those rights (where relevant); and

“Service” means, collectively, all components of the Host’s website hosting service as provided to the Client and fully described in Schedule 1 of the Website Design Agreement.

1.2 Unless the context otherwise requires, each reference in this Agreement to:

1.2.1 “writing”, and any similar 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; and

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 shall have no effect upon the interpretation of this Agreement.

1.4 Words imparting the singular number shall include the plural and vice versa.

1.5 References to any gender shall include the other gender.

1.6 References to persons shall include corporations.

 

2. The Service

2.1 Provision of the Service shall commence on the date when this agreement has been accepted by the Client in writing.

2.2 The Host is under no obligation to provide any services that do not form a part of the Service as defined in Schedule 1 of the Website Design Agreement unless the Host and Client enter into a new written agreement for the provision of additional services.

2.3 The Host may, in its sole discretion, alter, improve or otherwise modify the Service, provided that any such change will not alter the Service received by the Client to the Client’s material disadvantage (which shall include, but not be limited to, the removal of features from the Hosting Package). No alterations to the Service shall affect the Fee payable by the Client.

2.4 Notwithstanding the provisions of sub-Clause 2.4 the Host may take any action necessary to diagnose and/or rectify faults in the Hosting Hardware or Hosting Software without any prior notice to the Client. If such diagnosis or rectification results in an interruption to the provision of the Service, the Client shall be notified in accordance with the provisions of Clause 3.

 

3. Availability of Service

3.1 The Host will use reasonable endeavours to ensure that the Service is provided to the Client on a constant, uninterrupted basis throughout the term of this Agreement.

3.2 The Host do not warrant that the Service will be uninterrupted, error-free or secure from unauthorised access, or that they will meet your individual requirements. Whilst the Host will use reasonable endeavours to make the Service available, the Host shall not have any Liability if for any reason the Service are unavailable for any time or for any period. The Host make no warranty that your Service will be uninterrupted, timely or error-free. Due to the nature of the Internet, this cannot be guaranteed. However, the Host will use reasonable endeavours to ensure at least a 99.00% uptime Service availability level.

3.3 Notwithstanding sub-Clause 3.1, the Host shall not be liable for Hosting Hardware downtime or interruptions to the provision of the Service where such downtime or interruptions last for any time or for any period.

3.4 Where the provision of the Service is interrupted through the fault of any third party, the Host shall bear no responsibility or liability.

 

4. Fees and Payment

4.1 Fees for the Hosting Package are detailed in Schedule 2 of the Website Design Agreement.

4.2 The Client shall be required to pay all Fees due in advance of a 12 months period of Service provision unless otherwise agreed.

4.3 For the first 12 months period of Service provision, payment of Fees shall take place on the 15th of each month. For subsequent 12 months periods of Service provision, the Host shall send to the Client a renewal notice and invoice not less than 30 Business Days prior to the expiry of the then current 12 month period. Payment must be made within 14 Business Days of receipt of the renewal notice and invoice in order for provision of the Service to continue without interruption.

4.4 The Host shall be free at any time to change the price of its services (including, but not limited to, the Hosting Package provided to the Client under this Agreement). The Client shall not be subject to any additional charges during a 12 month period of Service Provision resulting from a price increase, nor to any refunds resulting from a price decrease. Any changes in Fees due shall be reflected in subsequent renewals only. The Host reserves the right to continue charging old Fees for renewals.

4.5 All Fees payable by the Client to the Host shall be paid in full, without set off or deduction. The Host reserves the right to suspend the Service or terminate this Agreement if Fees are not paid on or before the due date.

 

5. Changes to this Agreement

5.1 The Host reserves the right to change the terms of this Agreement and any and all other terms and conditions and/or policies which may affect the Client in order to comply with changes in the law.

5.2 The Client shall be informed of any changes made under this Clause 5 and shall be deemed to be bound by them 14 days after receipt of the notice.

5.3 If the Client does not agree, within 14 days, to be bound by any changes made under this Clause 5, they may terminate this Agreement in accordance with sub-Clause 13.5.

 

6. Client Undertakings and Obligations

6.1 The Client may not use the Service (including, but not limited to, the Hosting Hardware and/or the Hosting Software) for any unlawful or otherwise inappropriate purposes. This includes, but is not limited to:

6.1.1 Distribution of computer viruses, malware, spyware or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent;

6.2 The Client may not use the Client Website to link to any other websites or systems hosting any material described in sub-Clause 6.1.

6.3 The Client undertakes to monitor and supervise any and all third-party activity on the Client Website (including, but not limited to, the submission of material by users and the use of communication systems such as forums). Any third-party activity that may fall within the provisions of sub-Clause 6.1 must be stopped or removed, as appropriate.

6.4 The Client undertakes to ensure that any and all personal information collected through the Client Website is gathered, processed and held in accordance with the relevant provisions of the Data Protection Act 1998.

6.5 The Client undertakes to ensure that any and all e-commerce conducted through the Client Website complies with all relevant laws in force at the relevant time including, but not limited to, the Distance Selling Regulations 2000 and the EU E-Commerce Directive 2000.

6.6 The Client shall be responsible for all activity relating to the Client Website.

6.7 The Client shall use reasonable endeavours to ensure that the Host is furnished with any information reasonably required by the Host to provide the Service in a timely manner.

 

7. Intellectual Property Rights

7.1 The Client shall not acquire any rights in or over any Intellectual Property Rights subsisting in any materials and/or property owned by the Host or by any third parties (where, for example, the Host is using materials under licence).

7.2 The Host shall not acquire any rights in or over any Intellectual Property Rights subsisting in any materials and/or property owned by the Client or by any third parties (where, for example, the Client is using materials under licence) including, but not limited to, the Client Website.

7.3 The Client hereby agrees to fully indemnify the Host against all costs, expenses, liabilities, losses, damages, claims and judgments that the Host may incur or be subject to as a result of the infringement of any Intellectual Property Rights arising out of the Client’s failure to obtain the necessary rights and permissions from third parties with respect to any materials used by the Client as hosted by the Host under this Agreement.

 

8. Limitation of Host’s Liability

8.1 Subject to the provisions of sub-Clause 3.4 and the remainder of this Clause 8, and to the fullest extent permitted by law, the Host shall not be liable to the Client or to any third party, whether in contract or tort (including negligence) for any loss or damage, direct or indirect, whether foreseeable or otherwise (including any indirect, consequential, special or exemplary damages) arising from:

8.1.1 interruptions or downtime to the Service;

8.1.2 any damage, loss or corruption of data (including, but not limited to, the Client Website or any part thereof);

8.1.3 any incompatibility, whether of the Hosting Software, Hosting Hardware or the Client Website with any of the Client’s equipment (or that of any third party);

8.1.4 any inability, on the part of the Client, to use the Service (including, but not limited to, failure to follow reasonable instructions provided by the Host);

8.1.5 the loss of confidentiality caused by the storage of information on the internet (this does not refer to the mutual confidentiality obligations of the Parties under Clause 11).

8.2 Nothing in this Agreement shall exclude the Host’s liability for death or personal injury resulting from its negligence or that of its employees or agents.

8.3 Nothing in this Agreement shall exclude the Host’s liability for fraud or fraudulent misrepresentation.

8.4 Nothing in this Agreement excludes or restricts the Host’s liability for any loss resulting from its failure to use reasonable skill and care, from its gross negligence, or from its wilful misconduct.

 

9. Warranty Disclaimer

Subject to the provisions of this Agreement, the Host gives no further warranty, express or implied, in connection with the Service as to fitness for purpose, quality, non-infringement or merchantability.

 

10. Client Indemnity

The Client shall fully indemnify the Host against all costs, expenses, liabilities, losses, damages and judgments that the Host may incur or be subject to as a result of any of the following:

10.1 The Client’s misuse of the Service;

10.2 The Client’s breach of this Agreement;

10.3 The Client’s negligence or other act of default;

10.4 The activities of third parties conducted on or through the Client Website.

 

11. Confidentiality

11.1 Each Party undertakes that, except as provided by sub-Clause 11.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of this Agreement and for 1 year after its termination:

11.1.1 keep confidential all Confidential Information;

11.1.2 not disclose any Confidential Information to any other party;

11.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;

11.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and

11.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 11.1.1 to 11.1.4 above.

11.2 Either Party may:

11.2.1 disclose any Confidential Information to:

11.2.1.1 any sub-contractor or supplier of that Party;

11.2.1.2 any governmental or other authority or regulatory body; or

11.2.1.3 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 (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 11.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 11, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

11.2.2 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. In making such use or disclosure, that Party must not disclose any part of the Confidential Information which is not public knowledge.

11.3 The provisions of this Clause 11 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.

 

12. Force Majeure

12.1 Neither Party to this Agreement shall 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 control of the Party in question.

 

13. Term and Termination

13.1 The initial period of Service provision shall commence on the 1st January of each year. This term shall last for a period of 12 months, subject to any provisions in this Agreement to the contrary (including, but not limited to, this Clause 13).

13.2 Subsequent periods of Service provision shall last for periods of 12 months each and shall follow on from a previous period, without interruption, subject to the fulfilment of the Client’s payment obligations under Clause 4. All subsequent periods of Service provision shall remain subject to the terms of this Agreement unless expressly stated otherwise.

13.3 Either Party may immediately terminate this Agreement by giving written notice to the other Party if:

13.3.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within14 Business Days of the due date for payment;

13.3.2 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 14 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;

13.3.3 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;

13.3.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

13.3.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide 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);

13.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;

13.3.7 that other Party ceases, or threatens to cease, to carry on business; or

13.3.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 13, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.

13.4 For the purposes of sub-Clause 13.3.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.

13.5 The Client shall have the additional right to request the early termination of the Service and of this Agreement by written notice of 1 month. The following shall apply to such early termination:

13.5.1 The issuing of refunds shall be at the Host’s sole discretion.

13.5.2 If the Client wishes to terminate during the course of a 12 months period of Service provision, the Service shall end 1month after the Host receives the Client’s notice.

13.5.3 If the Client sends a termination notice under sub-Clause 13.5 in error or changes their mind, the Host must be informed within 14 Business Days of that notice that the Client wishes their Account to be restored. Any notification outside of this period shall require a new Account to be set up with the Client being required to pay for a full 12 months period. The Client shall be required to pay a re-activation fee of £25 in addition to the return of the previously refunded Fees in proportion to the remainder of the original 12 months period of Service provision.

13.6 The rights to terminate this Agreement given by this Clause 13 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

 

14. Effects of Termination

Upon the termination of this Agreement for any reason:

14.1 the Host shall ensure the complete and secure removal of the Client Website and all related material from the Hosting Hardware;

14.2 any sum owing by either Party to the other under any of the provisions of this Agreement shall become immediately due and payable;

14.3 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement shall remain In full force and effect;

14.4 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination;

14.5 subject as provided in this Clause 14 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and

14.6 each Party shall (except to the extent referred to in Clause 11) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.

 

15. No Waiver

No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

 

16. Further Assurance

Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of this Agreement into full force and effect.

 

17. Costs

Subject to any provisions to the contrary each Party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.

 

18. Set-Off

Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under this Agreement or any other agreement at any time.

19. Time

19.1 The Parties agree that all times and dates referred to in this Agreement shall be of the essence of this Agreement.

 

20. Relationship of the Parties

Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.

 

21. Third Party Rights

21.1 No part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

21.2 Subject to this Clause 21 this Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.

 

22. Notices

22.1 All notices under this Agreement shall 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.

22.2 Notices shall be deemed to have been duly given:

22.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

22.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or

22.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

22.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.

In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

 

23. Entire Agreement

23.1 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.

23.2 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.

 

24. Counterparts

This Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.

 

25. Severance

In the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.

 

26. Law and Jurisdiction

26.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

26.2 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) shall fall within the jurisdiction of the courts of England and Wales.

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DOMAIN NAME AGREEMENT

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 day other than Saturday or Sunday that is not a bank or public holiday;

“Commencement Date” : means the date when this agreement has been accepted by the Client in writing; and

“Confidential Information” : means all business, technical, financial or other information created or exchanged between the Parties in the course of performing their obligations under this Agreement including the existence of this Agreement.

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 provisions 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; and

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.

1.3          The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.

1.4          Words imparting the singular number shall include the plural and vice versa.

1.5          References to any gender shall include the other gender.

 

2.            Sale of Domain Name

2.1          The Purchaser hereby agrees to pay to the Vendor within 14 Business Days of the Commencement Date the sum of the Domain Name (the “Sale Price”) as per Schedule 1 of the Website Design Agreement, in consideration for the transfer and assignment of the Domain Name.

2.2          Payment of the Sale Price shall be made in accordance with Clause 3 of this Agreement.

2.3          The Vendor hereby agrees that they shall execute the transfer of the Domain Name in accordance with Clause 4 of this Agreement within 14 Business Days of receipt of the Sale Price.

 

3.            Payment of Sale Price

3.1          Payment shall be made by means of a direct transfer to a bank account nominated by the Vendor.

3.2          In the event that the Purchaser fails to pay all sums due within the time limit specified in Clause 2 of this Agreement, subject to Clause 14 of this Agreement, the Vendor shall be free to continue using the Domain Name as they wish or to enter into an alternative agreement for sale with a third party.  The Purchaser shall lose any right to purchase the Domain Name.

 

4.            Transfer of Domain Name

4.1          The Vendor shall submit all documentation to the Registrar required to effect the transfer of the Domain Name following receipt of the Sale Price in accordance with sub-Clause 2.3 of this Agreement.

4.2          Both Parties hereby agree to perform any further actions that may be required by the Registrar to effect the transfer of the Domain Name in a timely manner.

4.3          Any and all costs associated with the transfer of the Domain Name, including those of registration, shall be borne solely by the Purchaser.

 

5.            No Reservation of Rights

Upon the performance by the Purchaser of its obligations under Clause 3 of this Agreement the Purchaser shall become solely entitled to the Domain Name and shall have the right to use or dispose of it as they see fit.  The Vendor shall cease to have title to the Domain Name and none of the rights associated therewith shall revert to the Vendor at any time without the prior written authorisation of the Purchaser.

 

6.            Additional Rights

6.1          In the event that the Vendor has registered the Domain Name as a trade mark, it is hereby agreed that the Vendor will take all necessary steps to effect the assignment of that trade mark to the Purchaser at the same time as the Domain Name.

6.2          The Vendor hereby undertakes to remove any and all references to the Domain Name (save those regarding its sale and transfer that do not fall within Clause 10 of this Agreement) from any and all promotional materials published by the Vendor.

 

7.            Vendor Warranties and Indemnity

7.1          The Vendor hereby warrants and represents that:

7.1.1     they are the registrant and sole legal and beneficial owner of the Domain Name;

7.1.2     they have all the necessary rights to fully effect the transfer and assignment of the Domain Name in accordance with the terms and conditions of this Agreement;

7.1.3     the Domain Name is free from any claims and encumbrances;

7.1.4     there is, at the Commencement Date, no pending litigation or other dispute concerning the Domain Name or any related rights; and

7.1.5     the Domain Name does not infringe any trade mark or other third party rights.

7.2          The Vendor hereby agrees to fully indemnify and hold harmless the Purchaser against any and all liability, loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the Purchaser whether direct, indirect or consequential arising out of any dispute or contractual, tortious or other claims or proceedings brought by a third party alleging infringement of his intellectual property rights in respect of any of the representations made in sub-Clause 7.1 above.

7.3          The provisions of sub-Clause 7.2 shall apply provided:

7.3.1     the Purchaser gives written notice to the Vendor of any claim or proceeding as soon as reasonably possible following receipt of it;

7.3.2     the Purchaser makes no admission of liability and gives the Vendor sole authority to defend or settle the claim or proceedings at the Vendor’s cost and expense; and

7.3.3     the Purchaser gives the Vendor all reasonable assistance in connection with any such claims or proceedings at the Vendor’s cost and expense.

 

8.            Purchaser Warranties and Indemnity

8.1          The Purchaser hereby warrants and represents that:

8.1.1     they will not use the Domain Name in such a way that infringes any trade mark or other proprietary right of the Vendor or of any third parties; and

8.1.2     they will not use the Domain Name in connection with any purpose which may, under the laws of England and Wales, be deemed immoral, offensive, obscene or illegal.

8.2          The Purchaser hereby agrees to fully indemnify and hold harmless the Vendor against any and all liability, loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the Vendor whether direct, indirect or consequential arising out of any dispute or contractual, tortious or other claims or proceedings brought by a third party alleging infringement of his intellectual property rights in respect of any of the representations made in sub-Clause 8.1 above or arising out of any breach by the Purchaser of any of its obligations under the terms and conditions of this Agreement.

8.3          The provisions of sub-Clause 8.2 shall apply provided:

8.3.1     the Vendor gives written notice to the Purchaser of any claim or proceeding as soon as reasonably possible following receipt of it;

8.3.2     the Vendor makes no admission of liability and gives the Purchaser sole authority to defend or settle the claim or proceedings at the Purchaser’s cost and expense; and

8.3.3     the Vendor gives the Purchaser all reasonable assistance in connection with any such claims or proceedings at the Purchaser’s cost and expense.

 

9.            Liability

9.1          Subject to Clause 7 of this Agreement, the Vendor shall not be liable to the Purchaser for any indirect or consequential loss the Purchaser may suffer even if such loss is reasonably foreseeable or if the Vendor has been advised of the possibility of the Purchaser incurring it.

 

10.         Confidentiality

10.1       During the term of this Agreement [and after termination or expiration of this Agreement for any reason for a period of12 months starting on date signed by both parties, the following obligations shall apply to the Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”).

10.2       Subject to sub-Clause 10.3, the Receiving Party:

10.2.1  may not use any Confidential Information for any purpose other than the performance of his obligations under this Agreement;

10.2.2  may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and

10.2.3  shall make every effort to prevent the use or disclosure of the Confidential Information.

10.3       The obligations of confidence referred to in all provisions of this Clause 10 shall not apply to any confidential information that:

10.3.1  is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;

10.3.2  is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;

10.3.3  is required to be disclosed by any applicable law or regulation; or

10.3.4  is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party.

10.4       Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this Clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which he may be entitled.

10.5       The obligations of the Parties under all provisions of this Clause shall survive the expiry or the termination of this Agreement for whatever reason.

 

11.         Termination

11.1       Subject to Clause 14 of this Agreement, the Vendor may terminate this Agreement in the event that the Purchaser fails to pay the Sale Price within the time period specified in sub-Clause 2.1 of this Agreement.

11.2       Subject to Clause 14 of this Agreement, the Purchaser may terminate this Agreement in the event that the Vendor fails to execute the transfer of the Domain Name along with any other related rights as set out in Clause 6 within the time period specified in sub-Clause 2.3 of this Agreement.

11.3       Upon termination by the Purchaser any and all sums paid under this Agreement by the Purchaser shall be returned immediately.

 

12.         Assignment

Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.

 

13.         Notices

13.1       All notices under this Agreement shall be in writing.

13.2       Notices shall be deemed to have been duly given:

13.2.1  when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient;

13.2.2  when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated;

13.2.3  on the fifth Business Day following mailing, if mailed first class, postage prepaid; or

13.2.4  on the tenth Business Day following mailing, if mailed by airmail, postage prepaid.

13.3       In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other party.

 

14.         Force Majeure

Neither Party to this Agreement shall 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 control of the Party in question.

 

15.         Severance

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 shall be deemed severed from the remainder of this Agreement.  The remainder of this Agreement shall be valid and enforceable.

 

16.         Entire Agreement

16.1       This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement.  Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.

16.2       Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.

 

17.         No Waiver

The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement.  Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

 

18.         Law and Jurisdiction

18.1       This Agreement shall be governed by the laws of England and Wales.

18.2      Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of England and Wales.

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