4.2 All employees of the Data Processor having access to the Personal Data shall be fully
trained in the law of data protection and in the manner of dealing with Personal Data.
4.3 The Data Processor agrees to assist the Data Controller promptly with all subject access
requests which may be received from Data Subjects at the Data Controller’s costs.
4.4 The Data Processor undertakes not to disclose the Personal Data to a third party in any
circumstances other than at the specific request of the Data Controller or as otherwise
specified in this Agreement.
4.5 The data processing facilities and procedures of the Data Processor shall be subject to
inspection and audit on notice by the Data Controller (or its agents) during the Term of
this Agreement.
4.6 The Data Processor shall promptly carry out any request from the Data Controller
requiring the Data Processor to amend, transfer or delete the Personal Data or any part
of the Personal Data.
4.7 A copy of any notice or communication from any supervisory or government body
which relates directly or indirectly to the processing of the Personal Data received by
the Data Processor shall be provided immediately to the Data Controller.
4.8 If requested in writing by the Data Controller from time to time the Data Processor
shall provide to the Data Controller a copy of the Personal Data in the format and on
the media reasonably specified by the Data Controller.
4.9 The Data Processor shall maintain suitable and effective back up and/or disaster
recovery procedures at no cost to the Data Controller.
4.10 The Data Processor shall not under any circumstances use the Personal Data for any
other purpose than as permitted under this Agreement and shall not transfer the
Personal Data outside the European Economic Area unless authorised in writing to do
so by the Data Controller.
4.11 All processing of Personal Data pursuant to this Agreement shall be strictly according
to its terms and the written instructions of the Data Controller from time to time.
4.12 The Data Processor shall comply with applicable laws and ensure that the Personal
Data is processed in accordance with the data protection legislation applicable in the
United Kingdom.
5 Obligations of the Data Controller
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5.1 The Data Controller undertakes to provide to the Data Processor all relevant data
protection notices in respect of Data Subjects from time to time prior to use of the
Personal Data by the Data Processor.
5.2 In order to assist the Data Processor in the performance of its obligations, the Data
Controller shall use its reasonable endeavours to respond to requests for documents or
information and provide such assistance as may be reasonably required by the Data
Processor in connection with the processing or Services.
5.3 The Data Controller shall provide the Personal Data to the Data Processor, for the
purpose of providing the Services, in accordance with the requirements of Schedule [1]
and any timetable specified in that Schedule.
5.4 The instructions given by the Data Controller to the Data Processor in respect of the
Personal Data shall at all times be in accordance with the applicable data protection
legislation and the laws of the United Kingdom.
5.5 The Data Controller agrees to pay the Charges and any applicable expenses promptly
on the due date without set off, deduction or withholding.
5.6 The Data Controller shall provide copies and inform the Data Processor of any
applicable procedures.
6 Warranties
6.1 The Data Processor undertakes and warrants that it has in place suitable and effective
security measures for the protection of Personal Data and that its measures are
equivalent to the technical and organisational security measures required under the Data
Protection Act 1998.
6.2 The Data Processor warrants that it will carry out the Services in compliance with all
applicable laws, regulations, and the Data Controller.
6.3 The Data Processor warrants that it shall use its reasonable endeavours to prevent any
unauthorised or unlawful processing of personal data and to prevent the accidental loss
or destruction of, or damage to, personal data.
6.4 The Data Processor warrants and undertakes that it has adequate back up procedures
and disaster recovery systems.
7 Indemnity
152
Each party agrees to indemnify and keep the other indemnified against all costs,
expenses (including legal expenses), damages, loss, liabilities, demands, claims, actions
or proceedings which the other party suffers or incurs as a result of any breach of this
Agreement.
8 Charges
8.1 The Data Controller shall pay the Charges to the Data Processor for the performance of
the Services as specified in Schedule 2.
8.2 The Charges shall be paid in [pounds sterling] and are exclusive of VAT or any other
applicable tax.
8.3 In the event that payment is not made on the due date, the Data Controller shall be
entitled to charge default interest at the rate of [ ]% over the base rate from time to
time of [ ] Bank plc until payment is made in full.
9 Acknowledgements
9.1 The Data Processor acknowledges and agrees that the Data Controller retains all rights,
title and interest in and to the Personal Data, including any copyright and database
rights.
9.2 If the Data Processor creates any intellectual property rights, including copyright and
database rights, in the Personal Data in the course of providing the Services, the Data
Processor hereby assigns such intellectual property rights to the Data Controller with
full title guarantee, free from third party rights and for the full term during which those
rights and any renewals or extensions subsist.
9.3 The Data Controller may at any time by written notice to the Data Processor, require
the Data Processor to immediately suspend all or any part of the Services and/or resume
all or any part of the suspended Services as soon as practicable after receipt of the Data
Controller’s notice or as may otherwise be agreed between the parties.
9.4 The grant of any approval by the Data Controller under this clause in respect of the
appointment of any sub-processor shall not relieve the Data Processor from any liability
under this Agreement and the Data Processor shall remain responsible for obligations,
services and functions performed by any of its sub-processors to the same extent as if
those obligations, services and functions were performed by the Data Processor.
153
9.5 If at any time during the term of this Agreement the Data Processor wishes to appoint a
sub-processor, the Data Controller hereby gives to the Data Processor delegated
authority to act as its agent in the appointment of such sub-processor provided:
9.5.1 the Data Processor supplies the Data Controller with full details of the sub-
processor before its appointment and the Data Controller has consented to such
appointment;
9.5.2 the sub-processor contract is on terms which are substantially similar to the
ones set out in this Agreement;
9.5.3 the sub-processor contract terminates automatically on termination of this
Agreement for whatever reason; and
9.5.4 the Data Controller accepts no liability to the sub-processor in respect of any
failure by the Data Processor to carry out or perform any of its obligations
under the sub-processor contract.
10 Confidentiality
10.1 The Data Processor shall promptly notify the Data Controller if any Confidential
Information is required by law to be disclosed by it or any other person receiving it
under or pursuant to this Agreement and shall co-operate with the Data Controller
regarding the manner of such disclosure (but without prejudice to any obligation to
comply with any law). The obligations of confidentiality shall not apply to any
information which:
10.1.1 is or becomes generally known to third parties (other than as a result of a
breach of the provisions of this Agreement); or
10.1.2 which is already lawfully in, or which comes lawfully into, the Data
Processor’s possession other than under this Agreement; or
10.1.3 is independently developed by the Data Processor.
10.2 The Data Processor shall comply with the obligation under this clause 10 during the
term of this Agreement and or (for as long as the Confidential Information remains
confidential, whichever is longer) for a period of [ ] years from the date of termination
of this Agreement for whatever reason.
10.3 The Data Processor shall keep all Confidential Information disclosed to it by the Data
Controller under this Agreement secret and confidential and shall not allow it to be
used for any purposes other than those required or permitted by this Agreement
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10.4 The Confidential Information shall not be disclosed to any third party except insofar as
this may be required for the proper operation of this Agreement and then only under
appropriate confidentiality provisions approved by the Data Controller.
10.5 The Data Processor shall take all such steps as shall from time to time be necessary to
ensure compliance with the provisions of this clause [10] by its agent, employees and
sub-contractors or sub-processors.
11 Termination and Post-Termination
11.1 The Data Controller may terminate this Agreement upon service of written notice to the
Data Processor of not less than [ ] months specifying the termination date.
11.2 Following termination the Data Controller shall pay to the Data Processor any
undisputed amounts due for the Services received up to the termination date and the
Data Processor shall refund to the Data Controller a pro rata share of any Charges paid
in advance (if any) by the Data Controller for Services to be provided after the
termination date.
11.3 Either party may terminate this Agreement immediately on giving written notice to the
other in the event of:
11.3.1 [failure to make any payment due on the due date for payment;]
11.3.2 non-performance or material breach of any provision of this Agreement (which
the party in breach has failed to remedy following notice to remedy); or
11.3.3 repeated breaches of duties or obligations under this Agreement; or
11.3.4 a resolution being passed or an order being made for the winding up of the
other party (otherwise than for the purposes of solvent amalgamation or
reconstruction) or the other party becomes subject to an administration order
or a receiver or administrative receiver is appointed or an encumbrancer takes
possession of any of the other party’s property or assets or if the other party is
dissolved; or
11.3.5 the other party ceases or threatens to cease to carry on business in the United
Kingdom.
11.4 On termination of this Agreement (for whatever reason) the Data Processor shall
immediately cease to use the Personal Data and all Confidential Information.
11.5 At the Data Controller’s option and upon written request by the Data Controller, the
Data Processor shall either delete or arrange for the prompt and safe return to the Data
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Controller of all Confidential Information (including the Personal Data and any copies),
together with any other information or materials which have been created by the Data
Processor in the course of providing the Services which are in the Data Processor’s
possession or control.
11.6 If so requested, the Data Controller shall (through a director) certify that all copies of
the Personal Data and Confidential Information have been returned or destroyed in
compliance with this clause.
12. Miscellaneous
12.1 Waiver: Failure by either party to exercise or enforce any rights available to that party
or the giving of any forbearance, delay or indulgence shall not be construed as a waiver
of that party’s rights under this Agreement.
12.2 Partnership or Agency: Nothing in this Agreement shall be construed as constituting a
partnership between the parties or as constituting either party as the agent of the other
for any purpose whatsoever except as specified in this Agreement.
12.3 Assignment: The Data Processor may not assign all or any part of this Agreement
without the prior written consent of the Data Controller.
12.4 Third Party Rights: Save as otherwise provided in this Agreement, a person who is
not a party to this Agreement shall not have the right (whether under the Contracts
(Rights of Third Parties) Act 1999 or otherwise) to enforce any provision of this
Agreement.
12.5 Data Subjects: Notwithstanding the foregoing exclusion of third party rights, this
Agreement is entered into for the benefit of the Data Subjects and the Data Subjects are
hereby entitled to enforce the provisions of this Agreement as a third party beneficiary.
12.6 Severance: If any provision of this Agreement shall be held to be illegal or
unenforceable in whole or in part under any enactment or rule of law such provision or
part shall, to the extent it is held to be illegal or unenforceable, be deemed not to form
part of this Agreement but the enforceability of the remainder of this Agreement shall
not be affected. If any provision or part of this Agreement is severed as illegal or
unenforceable, the parties shall seek to agree to modify this Agreement to the extent
necessary to render it lawful and enforceable and as nearly as possible to reflect the
intentions of the parties embodied in this Agreement including the illegal or
unenforceable provision or part.
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12.7 Entire Agreement: This Agreement and the documents attached to or referred to in
this Agreement shall constitute the entire understanding between the parties in relation
to the use, processing and transfer of any Personal Data which are the subject of this
Agreement.
12.8 Prior Agreement: This Agreement shall supersede all prior agreements, negotiations
and discussions between the parties, provided that nothing in this Agreement shall
exclude any liability which either party may have to the other in respect of any
statements made fraudulently by the other prior to the date of this Agreement.
12.9 Interpretation:
Headings: Headings are inserted for convenience only and shall not affect the
construction or interpretation of this Agreement and, unless otherwise stated, references
to clauses and Schedules are references to the clauses of and schedules to this
Agreement;
References: Any reference to any enactment or statutory provision shall be deemed to
include a reference to such enactment or statute as extended, re-enacted, consolidated,
implemented or amended and to any subordinate legislation made under it; and
Generality: The word “including” shall mean including without limitation or prejudice
to the generality of any description, definition, term or phrase preceding that word, and
the word “include” and its derivatives shall be construed accordingly.
12.10 Counterparts: This Agreement may be executed in two or more counterparts, each of
which will be considered an original, but all of which together shall constitute one and
the same instrument. The exchange of a fully executed Agreement (in counterparts or
otherwise) by fax shall be sufficient to bind the parties to the terms of this Agreement.
13. Notices
Notices shall be in writing and shall be sent to the other party marked for the attention
of the person at the address set out below. Correctly addressed notices sent by first class
mail shall be deemed to have been delivered [72] hours after posting and correctly
directed facsimile transmissions shall be deemed to have been delivered
instantaneously on transmission providing that they are confirmed within [72] hours by
first class mail confirmation of a copy.
14 Governing law and Jurisdiction
157
This Agreement shall be governed by and construed in accordance with English law
and each party hereby submits to the [non-]exclusive jurisdiction of the English courts.
If to the Data Controller:
Name/Title
Address
Telephone No
Fax No
If to the Data Processor:
Name/Title
Address
Telephone No
Fax No
[signatures on behalf of the parties]
SCHEDULE
158
SIGNED by …………………………………..
[a duly authorised officer for and on
behalf of [ ]]
[in the presence of:]
SIGNED by …………………………………..
[a duly authorised officer for and on
behalf of [ ]]
[in the presence of:]
3.24.9 (A) Web Development Agreement;
(A) WEBSITE DEVELOPMENT AGREEMENT
159
PARTIES: ] (“the Client”); and
] (“the
(1) [INSERT CLIENT] whose registered office is at [
(2) [INSERT DESIGNER] whose registered office is at [
Designer”).
INTRODUCTION:
(A) The Designer has expertise in web page development, design, operation and
maintenance.
(B) [Introduction to Client.]
(C) The Client wishes to appoint the Designer to develop the Client’s Website in
accordance with the Specification.
(D) The Designer has agreed to accept the appointment on the terms and conditions in this
Agreement.
TERMS OF AGREEMENT:
1. Definitions
1.1 In this Agreement, the following words and expressions shall have the following
meanings:
“Confidential Information” means all information passing from one party to the other
party relating to the business of the disclosing party (whether disclosed before or after
the date of this Agreement), including but not limited to trade secrets, drawings, know-
how, techniques, source code and object code, business and marketing plans and
projections, arrangements and agreements with third parties, customer information,
formulae, suppliers, concepts not reduced to material form, designs, plans and models;
“Business Day” means any day on which the banks are open for normal banking
business in the City of London (other than Saturdays or Sundays);
160
“Content” means all materials created or supplied by the Client to the Designer and all
materials developed by the Designer in the course of the Services;
“Commencement Date” means the date of this Agreement;
“Intellectual Property” means all intellectual property rights anywhere in the world
(including present and future intellectual property rights) relating to any Confidential
Information, business names and logos, copyright, database rights, patents, trade or
service marks, designs, software, computer data, generic rights, software programmes
and source code and all variations, modifications or enhancements to each of them
together with any application or right to apply for registration or protection of those
rights;
“Personnel” means any employees, [agents or contractors] of the Designer;
“Plan” means the plan set out in Annex C specifying the function and timetable for the
delivery of the Services and includes any updates on a regular basis by mutual
agreement between the parties;
“Services” means the services to be provided by the Designer under this Agreement
including, without limitation, those set out in Annex B;
“Specification” means the specification set out in Annex A and includes any variations
or modifications; and
“Website” means the Website of the Client as developed by the Designer in
accordance with this Agreement.
2. Interpretation
2.1 In this Agreement, unless the context otherwise requires:
2.1.1 a reference to any document is a reference to that document as varied, novated
or replaced from time to time;
2.1.2 the singular includes the plural and vice versa;
2.1.3 a reference to a gender includes all other genders;
2.1.4 a reference to a person or entity includes a natural person, a partnership,
corporation, trust, association, an unincorporated body, authority or other
entity; and
2.1.5 a reference to a person includes that person’s legal personal representative,
successors and permitted assigns.
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2.2 Headings have been inserted for convenience only and shall not affect the interpretation
of this Agreement.
3. Appointment of the Designer
The Client appoints the Designer to develop the Website in accordance with the
Specification and to provide the Services within the timeframe and in the manner
specified in the Plan and otherwise on the terms and conditions of this Agreement. The
Designer accepts the appointment on the terms and subject to the conditions of this
Agreement.
4. Obligations of the Designer
4.1 The Designer will develop the Website in accordance with this Agreement and in
accordance with any lawful requests and directions of the Client from time to time
during the term of this Agreement which relate to the development of the Website.
4.2 The Designer will assist in the functional and technical design of the Website according
to the Specifications in Annex A.
4.3 The Designer will assist the Client in the translation and incorporation of the Content
into the Website.
5. Obligations of the Client
The Client will give adequate publicity and recognition to the Designer as the developer
of the Website, having regard to the Client’s requirements and the layout of the
Website.
6. Price and Payment
6.1 The Client will pay to the Designer a fee of [£ ] (exclusive of VAT) for the
development of the Website.
6.2 [The Client will pay to the Designer the fee in the following instalments:
6.2.1 [£ ] on signing of this Agreement; and
6.2.2 [£ ] on delivery, testing and acceptance of the Website by the Client.]
7. Intellectual Property Rights
162
7.1 Ownership of and Intellectual Property in all Content remains vested at all times in the
Client.
7.2 Ownership of pre-existing Intellectual Property used in the creation of the Website will
remain vested at all times in the party who is the owner of such pre-existing Intellectual
Property.
7.3 Any pre-existing or other Intellectual Property rights owned by either party and
required for the performance by the other party of its obligations under this Agreement
or the use of the Website by the Client shall be licensed to that other party on a non-
exclusive, irrevocable royalty free basis for the period during which the use of those
rights by that party pursuant to this Agreement is required.
7.4 Neither party shall grant a sub-licence under the licences created pursuant to this clause
without the prior written consent of the other party, such consent not to be unreasonably
withheld or delayed.
8. Content
The Client shall be entitled to approve all materials and Content to be incorporated on
the Website.
9. Personnel
9.1 The Designer shall ensure that it has sufficient, suitable Personnel to perform its
obligations under this Agreement.
9.2 The Designer will immediately notify the Client if the Personnel are unavailable or
unable to perform this Agreement and will nominate replacement Personnel for the
Client’s approval within [three (3)] Business Days following such notification.
9.3 The Designer will provide the replacement Personnel as approved in writing by the
Client at no additional charge and without unreasonable delay, interruption or
disruption, as soon as practicable, and in any event, within [five (5)] business days of
such notification.
9.4 If the Designer is unable to comply with clause 9.3 the Client shall have the right to
terminate the Agreement immediately.
10. Delivery, Testing and Acceptance
163
10.1 The Client will deliver the Services to the Client in accordance with the Plan, such Plan
to be developed by agreement between the parties within [fourteen (14)] days of the
Commencement Date.
10.2 The Client will conduct all initial testing of the Services prior to the Website going live
in accordance with the Specification and to the satisfaction of the Client.
10.3 If the Services as tested by the Client do not conform to the Specification and are not to
the satisfaction of the Client, the Client may by written notice to the Designer:
10.3.1 order the Designer to comply with this Agreement and fix a new date for
carrying out further tests on the same terms and conditions; or
10.3.2 reject the Services as not being in accordance with the Specification and, if the
Designer does not ensure compliance of the Services with the Specification
within [thirty (30)] days thereafter, such rejection will constitute a termination
of this Agreement.
10.4 The Designer will conduct further testing of the Services every [three (3)] months from
the initial testing on the same terms and conditions as this Agreement.
10.5 Content will only be released by the Designer onto the Website after review and
approval by the Client.
11. Performance Criteria
The Client and the Designer will perform their obligations in accordance with the
quality standards as specified in the Plan.
12. Change of Services
12.1 If the Client wishes to make any change(s) to the Services it shall notify the Designer in
accordance with the procedure under this clause 12.
12.2 The Client shall submit to the Designer a written request for change(s) to be made to
the Services (“Change Request”). The Change Request shall specify in detail what the
required change(s) is/are.
12.3 The Designer shall respond in writing to the Client to any Change Request within [two
(2)] working days of its receipt (“Change Request Response”). The Change Request
Response shall specify the technical details of such changes and the effect on the
delivery time specified in the Plan.
164
12.4 If the Change proposed is a material change to the Specification or the Plan and the
Client reasonably considers that the Designer should be entitled to compensation for
carrying out the same, prior to the Client confirming any costs for which it will
reimburse the Designer, the Designer shall provide the Client with an estimate of such
costs in writing. The Designer shall then only proceed once it has the Client’s consent
to do so and to incur such costs.
12.5 The Client shall notify the Designer in writing of its acceptance or rejection of the
Change Request Response within [one (1)] working day of its receipt.
12.6 If the Client rejects the Change Request Response, the Designer shall continue to
provide the Services and the rights and obligations of both the Client and the Designer
shall remain unchanged and in full force and effect.
12.7 If the Client accepts the Change Request Response the Services, Specification and the
Plan shall be deemed to be amended accordingly and the Designer shall from such time
provide the Services in accordance with the Specification and/or Plan as amended.
13. Term
This Agreement shall be for a term of [twelve (12)] months from the Commencement
Date unless otherwise terminated pursuant to its terms.
14. Warranties
14.1 Each party warrants to the other that it has authority to enter into and to perform its
obligations under this Agreement.
14.2 The Designer warrants and undertakes to the Client that:
14.2.1 the Services shall be performed by competent Personnel with appropriate
levels of experience and qualification and with all diligence, skill and care, in a
professional manner in accordance with the Agreement and Specification; and
14.2.2 any use made by the Client of the Services or any Intellectual Property or other
materials provided or licensed to the Client under this Agreement by the
Designer shall not infringe any Intellectual Property rights of any third party.
15. Indemnity
15.1 Each party (“the first party”) indemnifies and undertakes to keep indemnified the other
party, its officers, employees and agents (“the second party”) against any loss, damage,
165
liability, costs or expenses (including the cost of any settlement) arising out of any
claim, action, proceeding or demand that may be brought, made or prosecuted against
the second party by any person or arising out of or as a consequence of an unlawful or
negligent act or omission of the first party, its officers, employees or agents in any way
connected with this Agreement whether arising from any failure by the first party to
comply with the terms of this Agreement, infringement of any Intellectual Property
rights or otherwise.
15.2 The indemnity extends to and includes all costs, damages and expenses reasonably
incurred by the second party in defending any such action, proceeding, claim or
demands.
16. Termination
16.1 This Agreement may be terminated:
16.1.1 immediately by a party if the other party breaches any material obligation of
this Agreement and fails to remedy the breach within [fourteen (14)] days after
receiving a written notice from the non-defaulting party requiring it to remedy
the breach (if capable of remedy); or
16.1.2 immediately by written notice from the non-defaulting party to the defaulting
party if the defaulting party breaches a material provision of this Agreement
and that breach is not capable of being remedied.
16.2 A party will be deemed to be in default of this Agreement if:
16.2.1 that party ceases to carry on business;
16.2.2 that party ceases to be able to pay its debts as they become due;
16.2.3 that party passes a resolution, or a court makes an order that the party be
wound up otherwise than for the purpose of a bona fide reconstruction or
amalgamation;
16.2.4 has an administrator appointed or documents are filed with the court for the
appointment of an administrator or notice is given of an intention to appoint an
administrator by that party or its directors or by a qualifying floating charge
holder (as defined in paragraph 14, Schedule B1 of the Insolvency Act 1986);
16.2.5 a receiver, manager or similar official on behalf of a creditor or otherwise is
appointed in respect of the business or any part of the business of that party; or
166
16.2.6 that party is unable to pay its debts within the meaning of section 123 of the
Insolvency Act 1986; or
16.2.7 any similar or analogous event occurs under the law of any other jurisdiction
in respect of that party.
17. Consequences of Termination
17.1 Within [fourteen (14)] days after notice of termination is given to a party pursuant to
this Agreement (other than where notice of termination is given by the Designer to the
Client in accordance with a default under clause 16.2), the Designer will supply all
Content from the Website in electronic form to the Client and all software,
documentation and other media as set out in Annex B and forming part of the Services
in such format to enable a reasonably skilled third party to load the Website onto
another server, to operate the Website in accordance with the Specification and to
maintain and modify the Website, and the Designer must co-operate fully with the
Client to ensure adequate handover of the Website.
18. Confidentiality
18.1 Each party may use the Confidential Information of a disclosing party only for the
purposes of this Agreement and must keep confidential all Confidential Information of
each disclosing party except as provided in this clause 18.
18.2 Either party may disclose Confidential Information of the other party to those of its
employees and agents who have a need to know the Confidential Information for the
purposes of this Agreement but only if the employee or agent executes a confidentiality
undertaking in a form approved by the other party.
18.3 The Designer acknowledges that any information it obtains arising directly or indirectly
through operating the Services are the property of the Client and the Designer will keep
the information confidential.
18.4 The parties’ obligations to keep any information confidential will survive the
termination of this Agreement.
18.5 The obligations of confidentiality under this Agreement do not extend to information
that:
18.5.1 was rightfully in the possession of the receiving party before the negotiations
leading to this Agreement;
167
18.5.2 is, or after the day this Agreement is signed, becomes public knowledge
(otherwise than as a result of a breach of this Agreement); or
18.5.3 is required by law to be disclosed.
19. Data Protection
The Designer agrees and warrants to the Client that it will at all times comply with the
provisions and obligations imposed by the Data Protection Act 1998 including the
storing and processing of personal data and all personal data acquired by it. The
Designer agrees to indemnify the Client in respect of any loss, damage, liability, costs
or expenses incurred by the Client by reason of the unauthorised disclosure of personal
data or any breach of the Data Protection Act 1998.
20. Conflict
In the event of ambiguity or conflict between any of the provisions of this Agreement
and the Schedules or Annexures, [the provisions of this Agreement shall prevail over
the Schedules or Annexures to this Agreement].
[Insert boilerplate provisions.]
ANNEX A
Specification
ANNEX B
168
Services
ANNEX C
Plan
ANNEX D
Licence Fees
SIGNED by ………………………………
[a duly authorised officer for and on
behalf of [ ]]
[in the presence of:]
SIGNED by ………………………………
[a duly authorised officer for and on
behalf of [ ]]
[in the presence of:]
169
(B) WEB HOSTING AGREEMENT PRECEDENT
AGREEMENT DATED:[ ]200[ ]
BETWEEN: ]
]
(1) [A COMPANY] whose [registered office or principal place of business] is at [
(hereinafter referred to as “the Hosting Company”; and
(2) [A CLIENT] whose [registered office or principal place of business] is at [
(hereinafter referred to as [“the Client”].
INTRODUCTION:
(A) The Hosting Company will provide the Hosting Services to the Client on the terms and
conditions as set out in this agreement (“the Agreement”).
(B) The Hosting Company shall provide Hosting Services from the Data Centre unless
otherwise agreed by the Client.
(C) The Client has requested the Hosting Company to provide Hosting Services and the
Hosting Company agrees to provide Hosting Services to the Client as set out in the
Schedule to this Agreement.
TERMS OF AGREEMENT:
1. Definitions
Unless expressly stated otherwise the following definitions shall apply to the terms
used in this Agreement
170
“Client Content” means all materials created or supplied by the Client to Hosting
Company;
“Commencement Date” means the date upon which the Term shall commence as
specified in clause 7 of this Agreement;
“Computer Virus” means any programs or data incorporated into software or data that
disrupts the proper operation of a computer hardware system or the associated software;
“Confidential Information” means all information passing from one party to the other
party relating to the business of the disclosing party (whether disclosed before or after
the date of this Agreement), including but not limited to trade secrets, drawings, know-
how, techniques, source and object code, business and marketing plans and projections,
arrangements and agreements with third parties, customer information and customer
information proprietary to customers, formulae, suppliers, concepts not reduced to
material form, designs, plans and models;
“Data Centre” means the premises at [ ] from which the Hosting Company is to
provide the Hosting Services;
“Expenses” means the out of pocket expenses incurred by the Hosting Company in
acquiring anything reasonably necessary for it to perform the requirements imposed on
it by this Agreement;
“Excusable Downtime” means any period of scheduled maintenance and any period
during which any Hosting Services or Website is unavailable as a direct consequence of
any breach of the Agreement by the Client, the negligence of the Client or its
employees, servants or agents, any defect in any Website (other than any defect caused
by an act or omission the Hosting Company), any incompatibility between platform
software and content and any defect in any software provided by the Client to the
Hosting Company under the Agreement;
“Hosting Services” means those services provided to the Client as described in item 1
of the Schedule to this Agreement;
“Intellectual Property” means all intellectual property rights relating to or owned by
either party to this Agreement anywhere in the world (including present and future
intellectual property rights) including without limitation Confidential Information,
business names or logos, domain names, copyright, database rights, patents, trade or
service marks, designs, software, computer data, generic rights, software programmes
and source code and all variations, modifications or enhancements to each of them
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together with any application or right to apply for registration or protection of those
rights;
“Materials” means all materials owned by a party used in the provision of the Hosting
Services, including software programs and source code;
“Online Conduct Policy” means the policy setting out the terms and conditions on
which the Client agrees to utilise the Hosting Company’s network, systems, products
and services;
“Personnel” means any employees, officers, [agents or contractors of either party];
“Service Fee” means the fee specified in item 2 of the Schedule to be paid by the
Client for the performance by the Hosting Company of its obligations under this
Agreement;
“Term” means the period between the Commencement Date and the end date of this
Agreement as specified in clause 7 of this Agreement; and
“Website” means the Client’s website or sites as hosted by the Hosting Company.
2. Interpretation
2.1 In this Agreement, unless the context otherwise requires:
2.1.1 a reference to any document is a reference to that document as varied, novated or
replaced from time to time;
2.1.2 the singular includes the plural and vice versa;
2.1.3 a reference to a gender includes all other genders;
2.1.4 a reference to a person or entity includes a natural person, a partnership,
corporation, trust, association, an unincorporated body, authority or other entity;
and
2.1.5 a reference to a person includes that person’s legal personal representative,
successors and permitted assigns.
2.2 Headings have been inserted for convenience only and shall not affect the interpretation
of this Agreement.
3. Provision of the Hosting Services
The Hosting Company will provide the Hosting Services to the Client on the terms and
conditions of this Agreement and as set out in item 1 of the Schedule.
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4. Availability
4.1 The Client acknowledges that the Hosting Company’s systems, servers, and equipment
may from time to time be inoperative or only partly operational as a consequence of
mechanical breakdown, maintenance, hardware or software upgrades,
telecommunication connectivity problems or other causes outside its control.
4.2 In the event of any such interruptions the Hosting Company will notify the Client by e-
mail or facsimile as soon as reasonably practicable of any such interruptions to its
ability to provide the Hosting Services.
4.3 The Hosting Company agrees to rectify faults or problems and to restore the system to
full operational capacity as soon as reasonably practicable.
5. Limitation of Liability
5.1 The Hosting Company gives no condition, warranty, or undertaking, and makes no
representation to the Client about the suitability of, or fitness of, the Hosting Services
for the Client’s purposes other than those conditions, warranties, undertakings or
representations expressly set out in this Agreement.
5.2 All warranties, conditions and other terms implied by statute or common law (save for
the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from
the terms of this Agreement to the fullest extent permitted by law.
5.3 Nothing in this Agreement excludes or limits the liability of the Hosting Company for:
5.3.1 death or personal injury caused by the Hosting Company’s negligence; or
5.3.2 from fraudulent misrepresentation or fraud.
5.4 Subject to sub-clauses 5.2 and 5.3:
5.4.1 the Hosting Company’s total liability in contract, tort (including negligence or
breach of statutory duty), misrepresentation or otherwise, arising in connection
with the performance or contemplated performance of this Agreement shall be
limited to the Service Fees received in relation to the Hosting Services; and
5.4.2 in no event shall the Hosting Company be liable to the Client whether arising
under this Agreement or in tort (including negligence or breach of statutory
duty), misrepresentation or however arising, for any Consequential Loss.
“Consequential Loss” shall for these purposes mean (i) pure economic loss;
(ii) losses incurred by any customer of the Client or other third party; (iii) loss
of profits (whether categorised as direct or indirect); (iv) losses arising from
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business interruption; (v) loss of business revenue, goodwill, anticipated
savings; (vi) losses whether or not occurring in the normal course of business,
wasted management or staff time; (vii) loss or corruption of data.
6. Client Content
6.1 The Hosting Company will not be responsible for the accuracy and/or functionality of
the Client Content in the form in which it is provided by the Client or as modified upon
and in accordance with the Client’s instructions for inclusion on the Website.
6.2 If the Hosting Company reasonably forms the view that the Client Content of any
Website may be pornographic, defamatory, misleading or deceptive or otherwise in
breach of any third party’s rights or in contravention of applicable law, the Hosting
Company may without prior notice or any liability remove that Client Content from the
Website and shall within twenty-four (24) hours thereafter notify the Client of its
removal.
6.3 The Client shall indemnify and hold harmless the Hosting Company and its affiliates,
employees, agents, contractors, directors, officers and third party providers from all
liabilities, demands, costs and expenses (including legal expenses) arising in connection
with any Client Content including but not limited to the posting and/or transmission of
Client Content on the Website.
7. Term
This Agreement will commence on [ ] [ ] 200[ ] and will subsist for a period
of [ ] months unless earlier terminated in accordance with its terms.
8. Charges and Payment
8.1 The parties agree that unless expressly stated in writing by the Hosting Company all
fees, charges and payments set out in this Agreement or any Schedule to it are
exclusive of VAT.
8.2 The Client will pay the Hosting Company the Service Fees for the Hosting Services as
specified and calculated in item 2 of the Schedule within [fourteen (14]) days after the
date the Hosting Company’s invoice is sent.
8.3 The Client shall reimburse the Hosting Company for all agreed Expenses reasonably
incurred by the Hosting Company in performing its obligations under this Agreement.
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8.4 The Client acknowledges that there may be additional charges or Expenses in relation
to additional services required by the Client beyond those set out in this Agreement.
Any such additional charges or Expenses will be agreed on in writing in advance
between the parties and invoiced separately.
8.5 If the Client is in arrears in any payment due to the Hosting Company under this
Agreement, the Client will pay, in addition to the arrears, interest at the rate of [three
per cent (3%)] per annum on all arrears for each day during which the default
continues.
8.6 Without limiting any other right or remedy available to the Hosting Company, the
Hosting Company may on giving [seven (7)] days’ written notice, and without having
to account for or to repay any money previously paid to it pursuant to the terms of this
Agreement, refuse to commence, complete or deliver any work or otherwise comply
with the provisions of this Agreement on the Hosting Company’s part to be observed or
performed in the event the Client:
8.6.1 fails to pay any sums due to the Hosting Company under this Agreement; or
8.6.2 otherwise defaults in the due observance and performance of this Agreement.
9. Ownership
9.1 The parties acknowledge that this Agreement does not have the effect of transferring
the ownership of any Intellectual Property.
9.2 Any Intellectual Property owned by either party and required for the performance by
the other party of its obligations under this Agreement shall be licensed to that other
party on a non-exclusive, royalty-free basis for the purpose of fulfilling that party’s
obligations under this Agreement and for the period during which the use of that
Intellectual Property by that party pursuant to this Agreement is required.
9.3 Subject to clause 9.6, the Client acknowledges and agrees that the Hosting Company
will own all Intellectual Property in connection with the Hosting Company’s Materials
and that all other Intellectual Property in Materials produced or created by the Hosting
Company or on its behalf or provided by the Hosting Company will remain
permanently with the Hosting Company regardless of whether such Material is in its
original form or in a form modified for the Client’s use.
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9.4 Subject to the Client not being in breach of this Agreement, the Hosting Company
grants to the Client a non-exclusive, royalty-free licence to use the Materials for the
duration of this Agreement.
9.5 The Client may not modify the Hosting Company’s Materials for any purpose without
the prior written consent of the Hosting Company.
9.6 The Hosting Company acknowledges and agrees that the Client will own:
9.6.1 all Intellectual Property in the Client Content of the Website; and
9.6.2 all rights in connection with the internet domain names attaching to the
respective Website.
9.7 The Client will procure for the Hosting Company a licence on a non-exclusive, royalty-
free basis to use any existing Intellectual Property owned by a third party and required
for the performance by the Hosting Company of its obligations under this Agreement
and for the period during which the use of those rights by the Hosting Company
pursuant to this Agreement is required.
10. Marketing
10.1 The parties acknowledge and agree that Hosting Company may use the Client’s names,
logos, domain names and trade marks set out in item 3 of the Schedule for the
following purposes:
10.1.1 on the Hosting Company’s website;
10.1.2 in the Hosting Company’s written documentation; and
10.1.3 Data Centre signage to indicate Client’s computers and racks.
10.2 The Client agrees to provide a link to the Hosting Company’s home page from the
Client’s home page. This link shall be as agreed between the parties or in default of
agreement in the form “This Website is hosted by the Hosting Company” and shall
appear at the bottom of the Client’s home page.
11. Equipment and Access
The Client must provide, at its own cost, all telecommunications services, computers
and other equipment or services necessary to enable it to have access to the Hosting
Services. The Client must comply with all the rules and regulations that apply to the
communications network or system by which the Client obtains access to the Hosting
Services.
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12. Online Conduct
The Client acknowledges that it will comply with the Hosting Company’s Online
Conduct Policy as published from time to time on the Hosting Company’s Website at
[www.hostingcompany.com]. The Hosting Company’s Online Conduct Policy is a
standard policy for the conduct of the Hosting Company’s business and is necessary for
the orderly and efficient provision of its hosting services to clients.
13. Personnel and Sub-Contractors
The Hosting Company may in its absolute discretion sub-contract the performance of
any of its obligations under this Agreement.
14. Warranties
14.1 Each party warrants to the other that:
14.1.1 it has authority to enter and to perform its obligations under this Agreement;
and
14.1.2 it has the ability to perform its obligations under this Agreement.
14.2 The Hosting Company warrants to the Client that the Hosting Services:
14.2.1 will be provided by appropriately qualified and experienced Personnel using
all reasonable care and skill;
14.2.2 will in all material respects substantially comply with the Schedule; and
14.2.3 will not knowingly infringe the Intellectual Property rights of any third party.
14.3 The Client warrants to the Hosting Company that:
14.3.1 the use by the Hosting Company of any works or Materials submitted by the
Client to the Hosting Company under this Agreement will not infringe the
rights of any person or contravene any law;
14.3.2 at the time of entering into this Agreement it is not relying on any
representation made by the Hosting Company which has not been expressly set
out in this Agreement;
14.3.3 it shall install and maintain Computer Virus protection software of not less
than industry standard, and take all other reasonable steps to ensure that any
software used in connection with the Hosting Services, and any material or
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data provided to the Hosting Company will be free from any Computer Virus
and will not damage or corrupt any other data or system; and
14.3.4 that it is solely responsible for communicating with persons who access its
websites or other sites and that it will not divert any Client complaints or
concerns to the Hosting Company.
14.4 The Hosting Company shall not be liable for defects resulting from improper use of
Hosting Services by the Client or by another third party.
15. Indemnity
15.1 Each party (“the first party”) indemnifies and undertakes to keep indemnified the other
party, its officers, employees, contractors and agents (“the second party”) against any
costs or expenses (including the cost of any settlement) arising out of any claim, action,
proceeding or demand that may be brought, made or prosecuted against the second
party by any person arising out of or as a consequence of an unlawful or negligent act
or omission of the first party, its officers, employees or agents in any way connected
with this Agreement whether arising from any failure by the first party to comply with
the terms of this Agreement or otherwise.
15.2 The indemnity extends to and includes all costs, damages and expenses reasonably and
properly incurred by the second party in defending any such action, proceeding, claim
or demands.
16. Title
16.1 The Client agrees that any works, items, materials or information of whatever nature
produced or developed by the Hosting Company or under the Hosting Company’s
direction pursuant to or in the course of providing the Hosting Services shall remain the
sole and complete property of the Hosting Company, whether such property is tangible
or is in the nature of Intellectual Property (including copyright and rights of
Confidential Information).
16.2 If the Client has fully complied with this Agreement and if the works, items, materials
or information referred to in clause 16.1 have been produced by the Hosting Company
as part of the Hosting Services, the Hosting Company grants the Client a non-exclusive
and non-transferable licence to use such works, items, materials and information for
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such purposes as are necessary in connection with the Website for the duration of this
Agreement.
17. Termination
17.1 The Hosting Company may terminate this Agreement by notice in writing to the Client
in the event that:
17.1.1 the Client fails to pay any amount to the Hosting Company due under this
Agreement and does not make that payment within [seven (7)] days after
receiving notice requiring the Client to do so;
17.1.2 the Client fails to perform any of the obligations on its part to be observed or
performed pursuant to this Agreement and such failure is not remedied by the
Client within [fourteen (14)] days after receipt by it of a notice in writing
requiring the default to be remedied;
17.1.3 the Client fails to perform any of the obligations on its part to be observed or
performed pursuant to the Online Conduct Policy and such failure is not
remedied by the Client within [seven (7)] days after receipt by it of a notice in
writing requiring the default to be remedied; or
17.1.4 any of the warranties or representations made by the Client contained in this
Agreement are false or inaccurate in any material way.
17.2 Either party shall be entitled to terminate this Agreement immediately by notice in
writing to the other if the other party shall:
17.2.1 commit any material breach of any of its obligations under this Agreement
which (in the case of a breach capable of being remedied) shall not have been
remedied within [fourteen (14)] days after receipt of a written request so to do;
17.2.2 pass a resolution for winding-up (otherwise than for the purpose of a bona fide
scheme of solvent amalgamation or reconstruction) or a court of competent
jurisdiction shall make an order to that effect;
17.2.3 have an administrator appointed or documents are filed with the court in
respect of such appointment or notice is served of an intention to appoint an
administrator by that party or its directors or by a qualifying floating charge
holder as provided in paragraph 14, Schedule B1 of the Insolvency Act 1986;
17.2.4 make any voluntary arrangement with its creditors or become subject to an
administration order;
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17.2.5 have a receiver or manager or similar official appointed over the whole or
substantial part of its undertaking or assets;
17.2.6 cease or threaten to cease to carry on business; or
17.2.7 have any similar event occur under the law of any other jurisdiction in respect
of it.
18. Confidential Information
18.1 Each party may use the Confidential Information of a disclosing party only for the
purposes of this Agreement and must keep confidential all Confidential Information of
each disclosing party except to the extent (if any) the recipient of any Confidential
Information is required by law to disclose the Confidential Information.
18.2 Either party may disclose Confidential Information of the other party to those of its
employees and agents who have a need to know the Confidential Information for the
purposes of this Agreement but only if the employee or agent executes a confidentiality
undertaking in a form approved by the other party.
18.3 All documents and other materials containing Confidential Information of either party
will be returned to that party immediately upon completion of the Hosting Services.
18.4 The parties’ obligations to keep information confidential will survive the termination of
this Agreement.
18.5 The obligations of confidentiality under this Agreement do not extend to information
that:
18.5.1 was rightfully in the possession of the receiving party before the negotiations
leading to this Agreement;
18.5.2 is, or after the day this Agreement is signed, becomes public knowledge
(otherwise than as a result of a breach of this Agreement); or
18.5.3 is required by law to be disclosed.
19. Force Majeure
19.1 “Force Majeure” means anything outside the reasonable control of a party, including
but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts
of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine
restriction, labour dispute, labour shortage, power shortage, transportation embargo,
failure or delay in transportation, including without limitation where the Hosting
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Company ceases to be entitled to access the Internet or ceases to have access to the
Internet for whatever reason, any act or omission (including laws, regulations,
disapprovals or failures to approve) of any government or government agency.
19.2 If a party is wholly or partially precluded from complying with its obligations under
this Agreement by Force Majeure, then that party’s obligation to perform in accordance
with this Agreement will be suspended for the duration of the Force Majeure.
19.3 As soon as practicable after an event of Force Majeure arises, the party affected by
Force Majeure must notify the other party of the extent to which the notifying party is
unable to perform its obligations under this Agreement.
20. Conflict
In the event of ambiguity or conflict between the provisions of this Agreement, the
Outline Conduct Policy and the Schedules the provisions of this Agreement shall
prevail.
[Insert boilerplate provisions.]
SCHEDULE
Item 1 – Hosting Services
Item 2 – Service Fee
Item 3 – Client Names, Logos and Trade Marks
3.24.10 WEBSITE MATERIALS AND AGREEMENTS
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(A) COPYRIGHT NOTICE
1. Unless otherwise expressly stated, copyright, database right or similar rights in all
material presented on this Site (including graphical images, text, video clips,
reprographics, sounds, demos, patches and other files) is owned, controlled or licensed
by [Operator] or its affiliates and is protected or covered by copyright, trade mark,
intellectual property law and other proprietary rights.
2. You have limited permission to display, print or download extracts from these pages for
your personal non-commercial and non-profit use only and you shall not be entitled to
commercialise any such material in any way.
3. Any copies of the pages of the Site which you save to disk or to any other storage
system or medium may only be used for subsequent viewing purposes or to print
extracts for personal use.
4. You may not (whether directly or indirectly including through the use of any program)
create a database in an electronic or other form by downloading and storing all or any
part of the pages from this Site without our prior written consent save as expressly
authorised by an agreement in writing between us.
5. Unless with our prior permission no part of this Site may be reproduced or transmitted
to or stored in any other website, nor may any of its pages or part thereof be
disseminated in any electronic or non electronic form, nor included in any public or
private electronic retrieval system or service.
6. [Linking to the home page of our Site is greatly appreciated but written permission for
using our name, logo and linking to our site is required. Please contact
[[email protected]]. No deep linking or framing will be permitted without prior
written agreement. We reserve the right to revoke such permission at any time. Linking
to our Site is subject to our [Linking Terms and Conditions].]
7. You may not amend, republish, distribute, reproduce, adapt or modify any of the
materials on this Site or use any of the materials for public performance or otherwise
make commercial use of this Site or any materials located on it without our prior
written consent.
8. The permission granted terminates automatically if you breach any of these terms or
other terms and conditions applicable to this Site.
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9. Nothing on this Site or your use of any of the services shall be construed as conferring
any licence or other rights under the intellectual property or other proprietary rights of
the owners and operators of [operatornetwork.co.uk], its affiliates or any third party,
whether implied or otherwise, save as expressly provided.
(B) DISCLAIMER
The contents of this Site are subject to the matters set out below:
1. Contents are only for general information or use by our clients (as indicated).
2. The information on this page and Site is updated from time to time. However, we
hereby exclude any warranties (whether expressed or implied), as to the quality,
accuracy, efficacy, completeness, performance, fitness for a particular purpose of this
page, the Site or any of its contents, including (but not limited) to any price quotes or
non-fraudulent representations contained within the Site.
3. We will not be liable for any damages (including, without limitation, damages for any
consequential loss or loss of business opportunities or projects, or loss of profits)
howsoever arising and whether in contract, tort or otherwise from the use of or inability
to use the Site, or any of its contents and materials, or from any action or omission
taken as a result of using the Site or any such contents. In any event our liability for all
damages and losses (including negligence) shall not in any circumstances exceed the
amount paid by you, if any, for accessing this Site.
4. This Site contains material in the form of information, price quotes or representations
submitted by third parties and we accept no responsibility for the content or accuracy of
such material nor do we make any representations by virtue of the contents of this Site
in respect of the guaranteed availability of any services advertised.
5. We make no warranty that the contents of the Site are free from infection by viruses or
anything else which has contaminating or destructive properties and shall have no
liability in respect thereof.
6. All liability is excluded to the fullest extent permitted by applicable law including any
implied terms as the content of this Site is provided “as is” without warranties of any
kind. We reserve the right to change all the contents of this Site at any time without
notice to you.
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English law and jurisdiction applies with respect to contents of this Site. We control and
operate this Site from our offices in the United Kingdom. If you do not agree with the
governing law or these terms, please do not use this Site.
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(C) USER RULES OF CONDUCT/[FORUM/FACILITY]
By participating in and using this Facility you represent that you have read, accept and are
bound by this acceptable use policy.
[Participation in the [Operator] feedback forum facility (“the Facility”) [and exchange of e-
mails with other users] will be subject to rules of good practice and courtesy to others. The
principal purpose of our Facility is to facilitate information and feedback by users regarding [
].]
These postings, discussions and debates are intended to be open, honest and as unfettered as
legally possible. To assist the Facility, we expect participants in the Facility to follow these
few basic guidelines (which form part of the terms and conditions for access and use of our
website and services) as are acceptable for a use policy:
1. You cannot upload to [www.website.co.uk] (“the Website”) or otherwise distribute or
publish through the Facility or the Website any matter or material which is or may be
considered abusive, pornographic, illegal, defamatory, obscene, racist or which is
otherwise unlawful or designed to cause disruption to any computer systems or
network.
2. No user shall post any message to the Facility which is in violation of the acceptable
use policies in respect of this Facility. We reserve the right to delete and remove all
postings.
3. You are fully and solely responsible for your postings, messages, comments or
discussions and accept liability for any resulting actions. The comments, postings and
messages are opinions of the respective contributors or authors and do not necessarily
reflect our opinions. We accept no responsibility for and make no representations
relating to any messages, postings, comments and discussions. We do not confirm or
represent the legitimacy, accuracy, reliability, correctness or currency of any data or
postings entered by a user.
[You consent to the disclosure through the software of your e-mail address. We believe
and hope that the availability of such e-mail addresses can facilitate the growth of an
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on-line community within our Facility and ensure that participants take full
responsibility for their postings.]
4. The Facility cannot under any circumstances be used for commercial purposes by any
participant or user.
5. We do not and cannot review every message posted on the Facility or Website.
Accordingly, we are not responsible for the content of the postings, discussions and
messages.
6. You grant us a royalty free irrevocable permission to reproduce, download and print
your postings, comments and messages. We reserve and retain the right or ability to
remove the availability or ability of participants to post comments in the event of any
breach of these acceptable use provisions.
7. We will enforce appropriate sanctions against any of our Facility users or customers
who are responsible for abuse of the Facility. Such sanctions may include, but are not
limited to (a) a formal warning, (b) suspension of access through our Website or
machines, (c) suspension of access to the Facility site or section, (d) termination of
membership, or (e) termination of any registration of the user with our Website or
services.
9. By participation and use of this service, each user acknowledges that they will remain
solely responsible for the content of their messages, comments and postings.
10. We accept no responsibility for loss of data, information in any form or other matters
whatsoever which result from the use of the Facility.
11. We shall be entitled without liability to the user and at our discretion to remove any
such content from our server immediately.
12. You agree to indemnify and undertake to keep indemnified [Operator/the operators of
the Facility and the Website, their officers, servants and agents] against any costs or
expenses (including the cost of any settlement) arising out of any claim, action,
proceeding or demand that may be brought, made or prosecuted against any of them
arising out of or as a consequence of an unlawful or negligent act or omission or an
infringement of any third party rights which arise out of or are connected in any way
with the Facility and/or arising out of a breach of this acceptable use policy.
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By participating in and using this Facility, you represent, undertake, accept and acknowledge
that you have read and accept the [disclaimer notice, copyright notice, terms and conditions
of use and our privacy and data protection policy.]
(D) DATA SECURITY POLICY
We control physical security in relation to the information and personal data that is contained
at our facilities and restrict access to the site, buildings, computer rooms, office desk,
technology areas, equipment and other facilities where unauthorised access by people could
compromise our security.
All proprietary or confidential information, including personal data, is contained or stored on
computer and any that is contained and stored on manual files is locked up and secure.
We control access to information and personal data, including existing procedures for
authorising and authenticating users as well as software controls for restricting access and
techniques for protecting data such as encryption.
We maintain a business continuity plan as a contingency plan which identifies our business
functions and assets (including personal data) which would need to be maintained in the
event of disaster and set out the procedures for protecting and restoring them if necessary.
In respect of detection and investigation of breaches where they occur, we have in place
relevant controls which should alert us to a breach in security. We endeavour to investigate
every breach of security.
The Company cannot guarantee the security of any personal information or data disclosed to
it or collected by it.
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(E) PRIVACY POLICY AND DATA PROTECTION STATEMENT
We are strongly committed to the protection of your privacy online and accordingly, we take
protective measures to protect the personal information provided to us by you. We also take
further measures to comply with the relevant statement regarding what we can do with
personal information we obtain from you.
We are notified under the Data Protection Act 1998 and intend to comply with all our
obligations under that Act. You consent to our processing of your information.
This privacy policy is not intended to, and does not, create any contractual or other legal
rights or obligations on either your or our part.
In order to assist us you may provide us with information from time to time which we may
require or use for the purposes of providing you with any required services, information or
requested activity including contacting you and providing notification to you in relation to
such services or related activity.
We may provide the data collected from you to members of our group companies [or other
third party including our agents and contractors in connection with the service]. We will
inform you prior to disclosing your information to any third party. If you can be identified
from the information that is disclosed, then we will not disclose such information without
prior notification to you and we will obtain your permission to do so. You may inform us at
any time not to pass on or share your personal information with any third parties.
The registration information you provide may be required to use the service or Site. We will
store this information and data and use it to contact you, provide you with further details of
the services and otherwise for the normal use, provision of services and improvement of the
Site, unless you ask us not to do so.
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The information may be disclosed to third parties to enable you to gain access to any
restricted part of the Site, enable you to receive information which you have requested to be
sent to you by post or for you to receive specified services.
We may use cookies to store and track information about you. This will assist us in
measuring the effectiveness of banner advertising and provide more accurate analysis of site
activity. A cookie is a small amount of data that is sent to your browser from a web server
and stored on your computer.
We are taking and will endeavour to continue taking all reasonable steps in order to protect
your personal information and data. However, we cannot guarantee the security of any
personal information or data you disclose online, having regard to the nature of the internet.
We may use encryption technology from time to time to assist in protecting any information
or data which you submit. In any event, you accept the inherent security implications of
disclosing information over the internet and agree not to hold us responsible for any breach of
security unless we have been negligent or wilfully in default of our obligations under the
relevant legislation.
At any time, if you are concerned that the information we hold about you is incorrect, please
do not hesitate to contact us to correct such information.
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5.24.11 ASP AGREEMENT
DATED[ ]200[...]
PARTIES:
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(1) [PROVIDER NAME], [if a company [name] a company incorporated in [place of
incorporation], company registration number [ ] and having its registered office
at [address]/if a natural person [name] of [address]] (“the Provider”); and
(2) [CUSTOMER NAME], [if a company [name] a company incorporated in [place of
incorporation], company registration number [ ] and having its registered office
at [address]/if a natural person [name] of [address]] (“the Customer”).
INTRODUCTION:
(A) The Provider delivers and manages computer applications and technology services
from data centres to multiple users [via the Internet/via a virtual private network].
(B) The Provider has agreed to provide the Services to the Customer in accordance with the
terms and subject to the conditions set out below.
TERMS OF AGREEMENT
In consideration of payment of the Fees to the Provider under this Agreement,
IT IS AGREED THAT:
1. Definitions
In this Agreement, the following words shall have the following meanings:
“Confidential Information” means any and all information in whatsoever form
relating to the Provider or the Customer, or the business, prospective business, technical
processes, computer software (both source code and object code), Intellectual Property
Rights or finances of provider or the Customer (as the case may be), or compilations of
two or more items of such information, whether or not each individual item is in itself
confidential, which comes into a party’s possession by virtue of its entry into this
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Agreement or provision of the Services, and which the party regards, or could
reasonably be expected to regard, as confidential and any and all information which has
been or may be derived or obtained from any such information;
“Fees” means the fees as set out in Schedule 2;
“Intellectual Property Rights” means all copyrights, patents, utility models, trade
marks, service marks, registered designs, moral rights, design rights (whether registered
or unregistered), technical information, know-how, database rights, semiconductor
topography rights, business names and logos, computer data, generic rights, proprietary
information rights and all other similar proprietary rights (and all applications and
rights to apply for registration or protection of any of the foregoing) as may exist
anywhere in the world;
“Operating Rules” means any Provider rules or protocols, in whatever form recorded,
that affect the Customer’s access to or use of the Services, and made available by the
Provider from time to time to the Customer;
“Services” means the software applications services of the Provider, as specified in
Schedule 1 , and made available to the Customer (together with any Operating Rules)
and including any computer software programs and, if appropriate, Updates thereto;
“Term” means the period of [twelve (12) months] from execution of this Agreement;
and
“Updates” means any new or updated applications, services or tools (including any
computer software programs) made available by the Provider as part of the Services.
2. Services
2.1 The Customer engages the Provider and the Provider agrees to provide the Services in
accordance with the terms of this Agreement.
2.2 The Provider agrees to provide the Services with effect from [date] (from which date
this Agreement shall be deemed to have commenced) until completion of the Term or
sooner termination in accordance with the terms of this Agreement.
2.3 The provision of the Services may be extended or resumed from time to time by
agreement of the parties in writing, whereupon the terms and conditions of this
Agreement shall continue to apply subject to satisfactory renegotiation of the terms of
the Schedules or equivalent documents replacing them.
2.4 The Provider shall be the Customer’s exclusive provider of the Services.
191
2.5 The Provider warrants that by performing the Services it will not knowingly infringe
the rights of any third party (including but not limited to Intellectual Property Rights) in
any jurisdiction or be in breach of any obligations it may have to a third party. The
Provider further warrants that it is not prohibited from providing the Services by any
statutory or other rules or regulations in any relevant jurisdiction.
3. Licences
3.1 Subject to the Customer’s payment of the Fees, the Customer is granted a non-
exclusive and non-transferable licence to use the Services (including any associated
software, Intellectual Property Rights and Confidential Information) during the Term.
Such licence shall permit the Customer to make such copies of software or other
information as are required for the Customer to receive the Services.
3.2 All Intellectual Property Rights and title to the Services (save to the extent
incorporating any Customer or third party owned item) shall remain with the Provider
and/or its licensors and no interest or ownership therein is conveyed to the Customer
under this Agreement. No right to modify, adapt or translate the Services or create
derivative works therefrom is granted to the Customer. Nothing in this Agreement shall
be construed to mean, by inference or otherwise, that the Customer has any right to
obtain source codes for the software comprised within the Services.
3.3 Disassembly, decompilation or reverse engineering and other source code derivation of
the software comprised within the Services is prohibited. To the extent that the
Customer is granted the right by law to decompile such software in order to obtain
information necessary to render the Services interoperable with other software (and
upon written request by the Customer identifying relevant details of the Services(s)
with which interoperability is sought and the nature of the information needed), the
Provider will provide access to relevant source codes or information. The Provider has
the right to impose reasonable conditions including but not limited to the imposition of
a reasonable fee for providing such access and information.
3.4 Unless otherwise specified in this Agreement, the Services are provided and may be
used solely by the Customer as part of the Customer’s [website/desktop architecture].
The Customer may not:
(i) lease, loan, resell or otherwise distribute the Services save as permitted in
writing by the Provider;
192
(ii) use the Services to provide ancillary services related to the Services; or
(iii) except as permitted in this Agreement, permit access to or use of the Services
by or on behalf of any third party.
3.5 The Customer warrants and represents that it shall maintain reasonable security
measures (as may change over time) covering, without limitation, confidentiality,
authenticity and integrity to ensure that the access to the Services granted under this
Agreement is limited as set out under this Agreement.
4. Payments and Ordering
4.1 In consideration of the provision of the Services by the Provider, the Customer shall
pay to the Provider the Fees as set out in Schedule 2.
4.2 The Provider shall render invoices to the Customer in respect of the Fees and such
disbursements as shall have been reasonably incurred by the Provider [solely] in
connection with the provision of the Services on a monthly basis or at such other times
or periodical basis as agreed between the parties from time to time. The Customer shall
not account to the Provider for any Fees or disbursements unless an invoice has been
provided.
4.3 Payment by the Customer shall be without prejudice to any claims or rights which the
Customer may have against the Provider and shall not constitute any admission by the
Customer as to the performance by the Provider of its obligations under the Agreement.
[The Customer shall be entitled to withhold payment of the disputed amount of any
invoice.]
4.4 All invoices by the Provider to the Customer shall be rendered in [pounds sterling] and
shall be payable in full by the customer together with any Value Added Tax (if
applicable) within [thirty (30)/fourteen (14)] business days of receipt of a properly
rendered invoice. Where payment for the provision of the Services is late, the Provider
reserves the right to suspend the provision of the Services by giving [ ] days’ notice to
the Customer and shall be entitled to charge interest on all overdue Fees and
disbursements (including disputed amounts that are withheld) at a rate of [ ]% above
the annual base rate of [ ] Bank.
4.5 For the purposes of this Agreement, “Business Day” shall mean any day (other than
Saturday or Sunday) when the cleaning banks are open for normal banking business in
the city of London.
193
5. Warranties
5.1 The Provider warrants that it has the right to license the Services and that the Services
will operate to provide the facilities and functions implemented by the Provider. The
foregoing warranties shall not:
(i) cover deficiencies or damages relating to any third party components not
furnished by the Provider; or
(ii) any third party provided connectivity necessary for the provision or use of the
Services.
In the event of a breach of the warranties under this clause 5, the Provider shall have no
liability or obligations to the Customer other than to reimburse the Fees for the
Services.
5.2 [The Provider undertakes and agrees that it has or will take out adequate insurance to
cover the liability accepted by it in this clause 5 and agrees to produce at the
Customer’s request a copy of the policy or policies and proof of payment of the
premiums for inspection by the Customer.]
5.3 [Except as expressly stated in this Agreement, all warranties and conditions, whether
express or implied by statute, common law or otherwise (including but not limited to
satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent
permitted by law. No warranty is made regarding the results of usage of the Services or
that the functionality of the Services will meet the requirements of the Customer or that
the Services will operate uninterrupted or error free. This clause shall survive the
termination of this Agreement.]
6. Limitation of Liability
6.1 The Provider does not exclude or limit its liability to the Customer for fraud, death or
personal injury caused by any negligent act or omission or wilful misconduct of the
Provider in connection with the provision of the Services.
6.2 In no event shall the Provider be liable to the Customer whether arising under this
Agreement or in tort (including negligence or breach of statutory duty),
misrepresentation or however arising, for any Consequential Loss. “Consequential
Loss” shall for the purposes of this clause mean (i) pure economic loss; (ii) losses
incurred by any client of the Customer or other third party; (iii) loss of profits (whether
194
categorised as direct or indirect); (iv) losses arising from business interruption; (v) loss
of business revenue, goodwill or anticipated savings; (vi) losses whether or not
occurring in the normal course of business, wasted management or staff time; and (vii)
loss or corruption of data.
6.3 Subject to clauses 6.1 and 6.2, the total liability of the Provider (whether in contract,
tort or otherwise) under or in connection with this Agreement or based on any claim for
indemnity or contribution shall not exceed [one hundred per cent (100%)] of the total
Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer
to the Provider during the preceding [twelve] ([12]) month period or, if the duration of
the Agreement has been less than [twelve] ([12]) months, such shorter period, as
applicable.
6.4 [In no event shall the Customer raise any claim under this Agreement more than [two
(2)] years after (i) the discovery of the circumstances giving rise to such claim; or (ii)
the effective date of the termination of this Agreement. This clause shall survive the
termination of this Agreement.]
6.5 The Customer hereby acknowledges and agrees that in entering into this Agreement,
the Customer had recourse to its own skill and judgement and has not relied on any
representations made by the Provider, any employees or agents of the Provider.
7. Intellectual Property Indemnification
7.1 The Provider, at its own expense, shall:
(i) defend, or at its option, settle any claim or suit brought against the Customer
by a third party on the basis of infringement of any Intellectual Property Rights
by the Services (excluding any claim or suit deriving from any Customer
provided item); and
(ii) pay any final judgement entered against the Customer on such issue or any
settlement thereof,
provided that: (a) the Customer notifies the Provider promptly of each such claim or
suit; (b) the Provider is given sole control of the defence and/or settlement; and (c) the
Customer fully co-operates and provides all reasonable assistance to the Provider in the
defence or settlement.
195
7.2 If all or any part of the Services becomes, or in the opinion of the Provider may
become, the subject of a claim or suit of infringement, the Provider at its own expense
and sole discretion may:
(i) procure for the Customer the right to continue to use the Services or the affected
part thereof; or
(ii) replace the Services or affected part with other suitable non-infringing service(s);
or
(iii) modify the Services or affected part to make the same non-infringing.
7.3 The Provider shall have no obligations under this clause 7 to the extent that a claim is
based on:
(i) the combination, operation or use of the Services with other services or software
not provided by the Provider, if such infringement would have been avoided in
the absence of such combination, operation or use; or
(ii) use of the Services in any manner inconsistent with this Agreement; or
(iii) the negligence or wilful misconduct of the Customer.
7.4 The Customer shall indemnify and hold the Providers and its suppliers or agents
harmless from and against any cost, losses, liabilities and expenses, including
reasonable legal costs arising from any claim relating to or resulting directly or
indirectly from (i) any claimed infringement or violation by the Customer of any
Intellectual Property Rights with respect to the Customer’s use of the Services outside
the scope of this Agreement; (ii) any access to or use of the Services by a third party,
and (iii) use by the Provider of any Customer provided item.
8. Indemnity
8.1 Subject to clause 7, each party (“the first party”) indemnifies and undertakes to keep
indemnified the other party, its officers, servants and agents (“the second party”)
against any costs or expenses (including the cost of any settlement) arising out of any
claim, action, proceeding or demand that may be brought, made or prosecuted against
the second party by any person arising out of or as a consequence of an unlawful or
negligent act or omission of the first party, its officers, servants or agents in any way
connected with this Agreement whether arising from any failure by the first party to
comply with the terms of this Agreement or otherwise.
196
8.2 The indemnity contained in clause 8.1 above extends to and includes all costs, damages
and expenses (including legal fees and expenses) reasonably incurred by the second
party in defending any such action, proceeding claim or demands.
9. Termination
9.1 The Provider may immediately terminate this Agreement or the provision of any
Services provided pursuant to this Agreement if the Customer has used or permitted the
use of the Services otherwise than in accordance with this Agreement.
9.2 The Customer shall be entitled to terminate this Agreement at any time without notice
if the Provider is prohibited, under the laws of England or otherwise, from providing
the Services.
9.3 Either party shall be entitled to terminate this Agreement at any time without notice if:
(i) the other party ceases or threatens to cease to carry on business; or
(ii) the other party is unable to pay its debts or enters into compulsory or voluntary
liquidation (other than for the purpose of effecting a reconstruction or
amalgamation in such manner that the company resulting from such
reconstruction or amalgamation shall be bound by and assume the party’s
obligations hereunder);
(iii) the other party compounds with or convenes a meeting of its creditors or has a
receiver, manager or similar official appointed in respect of its assets; or
(iv) the other party has an administrator appointed or documents are filed with the
court for the appointment of an administrator or notice is given of an intention to
appoint an administrator by such party or its directors or by a qualifying floating
charge holder (as defined in paragraph 14, Schedule B1 of the Insolvency Act
1986); or
(v) any similar event occurs under the law of any other jurisdiction in respect of that
party.
9.4 Either party shall be entitled to terminate this Agreement on written notice to the other
party if the other party commits a material breach of any term of this Agreement which,
in the case of a breach capable of remedy, shall not have been remedied within [five
(5)] business days of receipt by the other party of a notice from the non-defaulting party
specifying the breach and requiring it to be remedied.
197
9.5 On request, and in any event on termination of this Agreement for whatever reason,
each party shall deliver up all Confidential Information and (to the extent not so
comprised therein) all correspondence, documents and other property belonging or
relating to the other party, and neither party shall, without the prior written consent of
the other, make or retain copies of any such documents.
9.6 Termination of this Agreement for whatever reason shall not affect the accrued rights 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. Clauses
4, 7, 8, 9, 10, 11 and 12 shall, for the avoidance of doubt, survive the expiration or
sooner termination of this Agreement and shall remain in force and effect.
10. Confidential Information
10.1 Each party may use the Confidential Information of a disclosing party only for the
purposes of this Agreement and must keep confidential all Confidential Information of
each disclosing party except to the extent (if any) the recipient of any Confidential
Information is required by law to disclose the Confidential Information.
10.2 Either party may disclose the Confidential Information of the other party to those of its
employees and agents who have a need to know the Confidential Information for the
purposes of this Agreement but only if the employee or agent executes a confidentiality
undertaking in a form approved by the other party.
10.3 Both parties agree to return all documents and other materials containing Confidential
Information immediately upon completion of the Services.
10.4 The obligations of confidentiality under this Agreement do not extend to information
that:
(i) was rightfully in the possession of the receiving party before the negotiations
leading to this Agreement;
(ii) is, or after the day this Agreement is signed, becomes public knowledge
(otherwise than as a result of a breach of this Agreement); or
(iii) is required by law to be disclosed.
11. Data Protection
Each party undertakes to comply with its obligations under the Data Protection Act
1998.
198
12. Third Parties
[Nothing contained in this Agreement or in any instrument or document executed by
any party in connection with the provision of the Services is intended to be enforceable
pursuant to the Contracts (Rights of Third Parties) Act 1999.]
13. Force Majeure
13.1 Except with respect to obligations to pay the Fees or other charges, “Force Majeure”
means anything outside the reasonable control of a party, including but not limited to,
acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public
enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour
dispute, labour shortage, power shortage [including without limitation where the
Provider ceases to be entitled to access the internet for whatever reason, server crashes,
deletion, corruption, loss or removal of data], transportation embargo, failure or delay
in transportation, any act or omission (including laws, regulations, disapprovals or
failures to approve) of any government or government agency.
13.2 If a party is wholly or partially precluded from complying with its obligations under
this Agreement by Force Majeure, then that party’s obligation to perform in accordance
with this Agreement will be suspended for the duration of the Force Majeure.
13.3 As soon as practicable after an event of Force Majeure arises, the party affected by
Force Majeure must notify the other party of the extent to which the notifying party is
unable to perform its obligations under this Agreement.
14. Dispute Resolution Procedure
[In the event of any disputes, controversy or claim arising out of or in relation to this
Agreement and subsequent amendments of this Agreement, the Provider and the
Customer agree to have such disputes, controversy or claim referred to and resolved in
accordance with the [WIPO [Expedited] Arbitration Rules]. The tribunal shall consist
of [three arbitrators/a sole arbitrator]. The place of arbitration shall be [details]. The
language to be used in these proceedings shall be English. The dispute, controversy or
claim shall be resolved in accordance with the laws of [ ]. The parties will ensure that
the resolution or disposition is fully and promptly carried out.]
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[Insert required boilerplate provisions. See Precedent 3.5, clause 23.]
15. Law
This Agreement shall be governed by English law and the parties submit to the [non-
]exclusive jurisdiction of the English Courts.
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