Trading terms of NETMATTERS LTD
1. DEFINITIONS AND INTERPRETATION
Means any and all confidential information, (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, intellectual property, assets, strategy, products and customers;
Means any Content created or supplied or made available by The Customer to Supplier in accordance with the Agreement and as set out in the Schedule, including without limitation all and any text, graphics, logos, photographs, images, moving images (including video), sound, illustrations, software, data, calculations, algorithms, methods, information and other material and related documentation featured, displayed or used in or in relation to the Website (and also including without limitation any third party Submissions) and any updates, upgrades, new versions or releases of any of the foregoing;
|Domain Name Management||The management by the supplier of a domain name which resides upon one of the supplier domain control panels, where the supplier is the registrar and is responsible for processing the renewal and management of the domain name in question|
Means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder. Force Majeure does not include, without limitation, inability to pay or market or other circumstances which may make the terms of this Agreement unattractive to a party;
|Hosted Website||All web pages, web content, data bases, mailboxes and DNS records which reside upon the suppliers infrastructure|
|Intellectual Property Rights||
Means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, domain names and all similar rights and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
|IT Support Services Standards||
The Schedule appended to this Agreement;
Means the Services to be provided by Supplier for The Customer in the performance of this Agreement as set out in the Schedule;
Means the service levels identified in the Schedule
Means any user or other third party generated Content emailed or otherwise externally submitted to the Website;
Means the data collected by Supplier about users of and visitors to the Website, including Submissions and visitors’ behaviour when accessing the Website or otherwise in connection to the Website or as a result of this Agreement;
The website(s) and/or services relating to them as further described in the Schedule
The website(s) and/or services relating to them as further described in the Schedule
The carrying out by the Supplier of work to a Customers website which the supplier has full FTP access to and performs regular updates, changes and improvement on.
|Website Optimisation & Maintenance Service Standards||
(g) For clients who have a monthly website support agreement with the Supplier, a response to a request will be made within 4 business hours.
(h) The Supplier will use all reasonable endeavours to apply the update or change as categorised below-
(i) (a) Critical tasks to be attended to within 1 working day of being reported
(j) (b) High status task to be attended to within 1.5 working days of be reported
(k) (c) Medium tasks to be attended to within 5 working days
(l) (d) Low tasks to be attended to within 10 working days
In this Agreement, unless the context otherwise requires:
The singular includes the plural and vice versa;
‘Including’ (or similar words) means including without limitation;
References to this Agreement or any specified clause in this Agreement are to this Agreement or the specified clause as in force for the time being and as amended, varied, novated or supplemented from time to time in accordance with this Agreement;
Clause headings do not affect their interpretation;
References to legislation (including any subsidiary legislation) include any modification or re-enactment thereof;
This Agreement shall continue from the Commencement Date for one month at which point it will be renewed for successive periods of one month unless terminated earlier:
by either party for convenience on not less than 30 days prior written notice to the other.
in accordance with clause 20 (Termination);
The Supplier will provide the Services:
4. TIME FOR PERFORMANCE
Time shall be of the essence in respect of the following obligations under this Agreement:
Clause 8.1 and Clause 10.2;
5. CUSTOMER CONTENT
The Customer will provide the following Customer Content to Supplier. The Customer Content shall only be used by Supplier to enable Supplier to host the Website and provide the Services in relation to the Website. The Customer grants Supplier royalty-free, non-exclusive, non-transferable licence to use the Customer’s Content in order to provide the Services but not otherwise. The Customer shall ensure that all Content provided by it is not information that:
All Visitor Information and Submissions obtained by Supplier in the course of providing the Services shall belong to the Customer and shall be provided by Supplier to The Customer at The Customer’s reasonable request and expense.
6. SERVICE STANDARDS
Supplier represents and warrants the following standards:
The Website shall with effect from the Commencement Date and for the duration of the Agreement make the Website available to visitors pursuant to the Services 98.5% of the time.
We shall carry out such tests as we reasonably deem necessary after completion of work on the Service Items and We shall not be required to carry out tests in respect of each and every computer function
The Supplier shall provide the IT Support Services Standards and the Website Optimisation & Maintenance Service Standards where it is providing IT Support and/or Website Maintenance to the Customer
7. FAILURE TO ACHIEVE SERVICE STANDARDS
Failure to comply with the above standards referred to in clause 6 shall entitle The Customer to alternative hosting to be provided by the Supplier. These remedies shall be The Customer’s sole and exclusive remedy in respect of such failure.
8. FEES AND EXPENSES
The Customer shall pay Supplier the following amounts as set out in the Schedule:
9. TAXES AND DUTIES
All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by The Customer at the rate and in the manner for the time being prescribed by law.
10. INVOICING AND PAYMENT TIMETABLES
The Supplier shall invoice The Customer electronically to the email address notified by the Customer to the Supplier for all sums due under this Agreement monthly in arrears following supply of the relevant Services or items to which the invoice relates or as specified elsewhere in this Agreement if earlier.
The Customer shall pay such sums in full without set-off or counterclaim within 30 days from the date of invoice or on the due date for payment specified in the Schedule if earlier.
The Supplier reserves the right in its sole discretion to suspend any or all of the Services if any payments owing under this agreement are more than 30 days overdue and shall have no liability to the Customer if as a result of a domain name renewal fee not being paid by the relevant due date the renewal/registration of that domain name is unable to be made.
Where sums due hereunder are not paid in full by the due date, the Supplier may, without limiting its other rights, charge interest on such sums at the Late Payment of Commercial Debts rate from time to time in force.
Interest will apply from the due date for payment until actual payment in full, whether before or after judgment
12. PRICE VARIATION
The amounts due under this Agreement shall not change except as mutually agreed in accordance with the terms of this agreement.
The Supplier warrants and represents to the Customer that:
Supplier has the right, power and authority to enter into this Agreement and grant to The Customer the rights (if any) contemplated herein;
Any Services will be performed:
by suitably competent personnel who shall exercise all due skill and care and all due diligence in the execution thereof as to conform with all statutory requirements and applicable regulations relating to the Services and the Website;
in such a way as not to cause any fault or malfunction in any related software, products or system of the Customer; and
in such a way as not to cause any interruption to the business processes of the Customer (other than any agreed and unavoidable interruption which is required in order to perform the Services in a proper and efficient manner).
The warranties and representations specified in the above clause are subject to the Customer giving notice to the Supplier as soon as it is reasonably able upon becoming aware of the breach of warranty or representation. When notifying the Supplier of a breach the Customer shall use its reasonable endeavours to provide the Supplier with such documented information, details and assistance as the Supplier may reasonably request.
All other warranties and representations, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
Any warranties and representations given in by the Supplier with respect to the performance of any Website shall not apply to the extent that the defect or error is wholly caused by any Customer Content or third party software used in connection with the Website (save to the extent that the Supplier requested or required the use of such third pay software).
14. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
Each party (the ‘Indemnifying Party’) shall indemnify and keep indemnified and hold harmless the other (the ‘Indemnified Party’) from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Indemnified Party as a result of or in connection with any action, demand or claim that use or operation of any Content or Software provided by the Indemnifying Party infringes the Intellectual Property Rights of any third party ('IPR Claim'), provided that the Indemnifying Party shall not have any such liability if the Indemnified Party:
does not notify the Indemnifying Party in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of Indemnifying Party (which shall not be unreasonably withheld or delayed);
does not let the Indemnifying Party at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim; or
does not, at the Indemnifying Party’s request and own expense, give the Indemnifying Party all reasonable assistance in the circumstances described above.
15. LIMITS ON LIABILITY
Subject to the following sub-clauses, in no event shall the aggregate liability of any party to the other (whether it contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed:
£2M in respect of any one claim or series of related claims; and
provided that this shall be subject to an overall limit of £2M in respect of any and all claims, losses and damages arising under or in connection with this Agreement.
The above limits on liability shall apply in respect of the indemnities under clause 14 Intellectual Property Rights
Each party’s liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any:
loss of profits;
loss of business opportunity;
loss of goodwill;
loss of data;
loss of anticipated savings; or;
any special, indirect or consequential loss or damage whatsoever.
The parties agree that the limitations on liability in this Agreement are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement
personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
fraud or fraudulent misrepresentation; or
any breach of any obligations implied by section 12 of the Sale of Products Act 1979 or section 2 of the Supply of Products and Services Act 1982; or
any other liability to the extent the same cannot be excluded or limited by law.
16. RIGHTS OF THIRD PARTIES
Except as expressly provided in this Agreement, for the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any right or remedy of such a person that exists or is available apart from that Act.
17. ENTIRE AGREEMENT
This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
18. FORCE MAJEURE
A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:
promptly notifies the other of the Force Majeure event and its expected duration, and
uses reasonable endeavours to minimise the effects of that event.
If, due to Force Majeure, a party:
is unable to perform a material obligation, or
is delayed in or prevented from performing its obligations for a continuous period of more than 60 days,
the other party may, within a further 10 days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect
19. FURTHER ASSISTANCE
is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
The Customer may without prejudice to its other rights and remedies by notice in writing to The Supplier immediately terminate this Agreement if the Supplier ceases carrying on business
In the event of termination of this Agreement for any reason, each party shall:
within 7 days of such termination return (or, at the other party’s option, destroy) all Confidential Information in its possession or under its control and all copies of such information; and
perform their respective obligations with respect to exit management as set out in this Agreement.
Termination of this Agreement for whatever reason shall not operate to affect any provisions that expressly or by implication survive termination.
Notices under this Agreement must be in writing and sent to the other party’s address specified in the Schedule (or such other applicable address for service agreed by the parties from time to time in writing). Notices may be given, and will be deemed received if correctly addressed:
by first-class post: two Business Days after posting;
by airmail: seven Business Days after posting;
by hand: on delivery; and
by email: on receipt of a read return mail from the correct address within 24 hours from delivery if no notice of delivery failure is received.
22. EXIT MANAGEMENT
If this Agreement expires or is terminated in whole or in part for any reason The Supplier shall, subject to payment of any reasonable fees (and any outstanding payments due being met and cleared), provide all reasonable assistance to The Customer to ensure the orderly migration of this Agreement, the Website and/or the Services to The Customer or, at The Customer's request, a replacement Supplier. The remaining provisions of this clause shall not prejudice or restrict the generality of this obligation.
Immediately on termination of this Agreement (subject to all outstanding and due payments being met and cleared), The Supplier shall return to The Customer or as directed by The Customer the Website, and all Customer Content together with all other materials and assets and other information provided to The Supplier by The Customer or by users of the Website. The Supplier shall not be obliged to supply to The Customer any Supplier Software at termination or expiry of this Agreement and any licence of such Software shall not continue following termination or expiry of this Agreement except as expressly agreed.
The Supplier shall (if requested by The Customer to do so and at The Customer’s reasonable cost and expense at the then current rate of The Supplier) continue to provide the Services and a domain name server for a period of 30 days following the date of expiry or termination of this agreement.
Provisions which by their terms or intent are to survive termination of this Agreement will do so.
24. DATA PROTECTION
In this Agreement, 'personal data', 'data', 'data subject' and 'processing' have the meanings given to them in the Data Protection Act 1998 unless otherwise stated.
Each party must comply with all Data Protection Laws that apply to it in relation to any personal data processed in connection with this Agreement ('Protected Data').
Without prejudice to the generality of the above clause, in respect of Protected Data disclosed to The Supplier in connection with this Agreement (and whether disclosed by The Customer, data subjects or otherwise), The Supplier must ensure that, where it processes such Protected Data as a data processor on behalf of The Customer as data controller (and without limitation to any other confidentiality or other restrictions on its use of information), it:
only processes the Protected Data for purposes notified to it by The Customer consistent with the terms of this Agreement and/or the relevant data subjects; and
maintains appropriate technical and organisational measures (including appropriate policies communicated to employees, management and review of ongoing compliance and effective security measures) to prevent any unauthorised or unlawful processing of the Protected Data; and to guard against accidental loss or destruction of, or damage to, the Protected Data.
25. CONFIDENTIAL INFORMATION
Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.
Each party undertakes to:
disclose the other party's Confidential Information only to those of its officers, employees, agents and contractors (including Supplier Personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party's Confidential Information immediately upon becoming aware of the same.
The provisions of this clause shall not apply to information which:
is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
is independently developed by the recipient, without access to or use of such information; or
is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure
The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of five years thereafter.
Each clause of this Agreement is severable and distinct from the others. If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced):
the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable; and
without limiting the foregoing, in such circumstances the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
27. COMPLIANCE WITH LAW
Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties hereunder, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other party or its employees, agents and representatives.
28. ASSIGNMENT AND SUBCONTRACTING
No party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other’s prior written consent.
This Agreement shall be binding upon, and enure to the benefit of, each of the parties, their respective personal representatives and their respective successors in title.
No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.
31. WAIVER BOOKMARK
Any rights, powers or remedies conferred upon a party by this Agreement shall be in addition to and without prejudice to all other rights, powers and remedies available to the party under general law (except expressly excluded in this Agreement).
Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
32. SET-OFF BOOKMARK
Neither party may set off any amount the other owes it against any amount it owes the other party in relation to this Agreement unless otherwise agreed.
All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction. If a party is compelled by law to deduct or withhold any taxes, levies, duties, charges and withholdings of any kind, it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
33. DISPUTE RESOLUTION
Any dispute to be resolved pursuant to this Agreement shall first be submitted for resolution to the directors (or persons of comparable authority) of each party for resolution. If such directors are unable to resolve the dispute within 10 days after the date on which the Notice of Breach is received by the other party (or such longer time as is mutually agreed in writing), then each party shall be free to pursue whatever remedies hereunder, at law or in equity may be available to it in respect of the subject matter of the dispute.
34. GOVERNING LAW AND JURISDICTION
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter is governed by and shall be construed in accordance with the laws of England and Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any disputes and claims which may arise out of, or in connection with, this Agreement.
NB Any reference to functionality, content or design works mentioned in a quotation or a functional specification is given with the proviso that it is the Suppliers interpretation that takes precedence as to what is meant and therefore included in the quotation or price. Clarification of what is meant on any particular point, can be requested by the Customer at any time. It is at the Suppliers discretion to confirm whether any assumed or implied functionality is included as part of the price stated. Any works carried out hold a limited discretionary warranty.
Any issues not covered in this Schedule after completion of any agreed works, will be assessed and the Supplier at its sole discretion will deem whether they will be updated free of charge or are a chargeable service.