WEB SERVICES AGREEMENT

Definitions

1.1    Except to the extent expressly provided otherwise, in this Agreement:

"Acceptance Criteria" means:

(a)    the Website conforming in all respects with the Website Specification; and

(b)    the Website being free from Website Defects;

"Acceptance Period" means a period of 10 Business Days following the supply of the Website Services to the Customer, or such other period as the parties may agree in writing;

"Acceptance Tests" means a set of tests designed to establish whether the Website meets the Acceptance Criteria, providing that the exact form of the tests shall be determined and documented by the Provider acting reasonably, and communicated to the Customer in advance of the commencement of the first Acceptance Period; 

"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

"Agreement" means all the documentation containing the provisions of this Agreement, namely the main body of this Agreement, the Schedules, the Annexes and each Statement of Work, including any amendments to that documentation from time to time;

"Annex" means any annex to a Schedule;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means the hours of 08:30 to 17:00 GMT/BST on a Business Day;

"Charges" means the following amounts:

(a)    the amounts specified in the subscription signed up to by the Customer;

(b)    such amounts as may be agreed in writing by the parties from time to time; and

"Confidential Information" means the Provider Confidential Information and the Customer Confidential Information;

"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);

"Customer Confidential Information" means:

(a)    any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Provider (acting reasonably) to be confidential; and

(b)    the terms of this Agreement;

"Customer Indemnity Event" has the meaning given to it in Clause 19.3;

"Customer Materials" means all works and materials supplied by or on behalf of the Customer to the Provider for use in connection with the Services;

"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement with respect to which the Provider is a data controller;

"Customer Representatives" means the person or persons identified as such in Paragraph 2 of Schedule 1 (Contract information), and any additional or replacement persons that may be appointed by the Customer giving to the Provider written notice of the appointment;

"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, for the period during which it is in force, the General Data Protection Regulation (Regulation (EU) 2016/679);

"Development Services" means the design and development of the Website by the Provider;

"Documentation" means the documentation for the Website produced by the Provider and delivered or made available by the Provider to the Customer;

"Domain Name Services" means the registration of domain names and the maintenance of domain name registrations by the Provider on behalf of the Customer;

"Effective Date" means the date of execution of this Agreement;

"Email Marketing Services" means some or all of the following services as specified in a Statement of Work: assisting with and advising upon the Customer's email marketing strategy; designing, in consultation with the Customer, the forms, emails and web pages to be used in connection with email marketing lists and campaigns; managing the Customer's email marketing lists; running the Customer's email marketing campaigns, including sending emails to addresses in the Customer's email marketing lists; and providing the Customer with written reports about these services detailing numbers of subscriptions and unsubscribes during each calendar month, and numbers of emails sent, returned and opened during each mailing;

"Expenses" means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider's obligations under this Agreement;

"Export Laws" means all applicable laws restricting and/or regulating:

(a)    the inter-jurisdictional import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information; and/or

(b)    the import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information to designated entities or persons, or to designated classes of entities or persons;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Data" means all data, works and materials: uploaded to or stored on the Hosting Platform by the Customer, or by any third party using any software made available by means of the Hosting Platform; transmitted by the Hosting Platform at the instigation of the Customer, or at the instigation of any third party using any software made available by means of the Hosting Platform; or supplied by the Customer to the Provider for uploading to, transmission by or storage on the Hosting Platform;

"Hosting Account" means an online account enabling a person to configure and manage the Hosting Services;

"Hosting Platform" means the platform managed by the Provider and used by the Provider to provide the Hosting Services, including the application, database, system and server software used to provide the Hosting Services, and the computer hardware on which that application, database, system and server software is installed;

"Hosting Services" means those web hosting services specified in a Statement of Work which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Maintained Software" means the Supported Website software platform;

"Maintenance Services" means the supply to the Customer of Updates and Upgrades;

"Marketed Websites" means any website or websites of the Customer in respect of which the Provider provides or has an obligation to provide marketing or advertising services under this Agreement;

"Minimum Term" means, in respect of this Agreement, the period of 1 month beginning on the Effective Date;

"Online Account" means any user or customer account on any third party website, or on any third party software application accessible via the internet, that is used by the Provider in the course of providing the Search Marketing Services, Advertising Management Services, Email Marketing Services and/or Social Media Marketing Services;

"Permitted Purpose" means for the use of the Services supplied by the Provider in this Agreement;

"Personal Data" has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679);

"Provider Confidential Information" means:

(a)    any information disclosed by or on behalf of the Provider to the Customer during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Customer (acting reasonably) to be confidential; and

(b)    the terms of this Agreement;

"Provider Credit" means a textual credit for the Provider incorporating a link to the website of the Provider, in a form agreed by the parties acting reasonably;

"Provider Indemnity Event" has the meaning given to it in Clause 19.1;

"Provider Representatives" means the person or persons identified as such in Paragraph 2 of Schedule 1 (Contract information), and any additional or replacement persons that may be appointed by the Provider giving to the Customer written notice of the appointment;

"Release" means, in respect of an Update or Upgrade produced by the Provider, the release of that Update or Upgrade to the customers of the Provider generally and, in respect of an Update or Upgrade produced by a person other than the Provider, the public release of that Update or Upgrade (and "Released" shall be construed accordingly);

"Remedy Period" means a period of 20 Business Days following the Customer giving to the Provider a notice that the Website has failed the Acceptance Tests, or such other period as the parties may agree in writing;

"Schedule" means any schedule attached to the main body of this Agreement;

"Search Marketing Services" means any or all of the following services, as agreed by the parties in a Statement of Work:

(a)    researching the history of websites, their structure and their performance in the search engine results pages;

(b)    keyword research in relation to websites;

(c)    formulating a search engine optimisation strategy for websites;

(d)    modification of websites (including adding, deleting and/or altering text, images, pages, meta-tags, titles, mark-ups, style sheets, scripts, applications, internal and external links and website structure);

(e)    paid and unpaid submissions to search engines, directories and other listings websites;

(f)     the creation and publication of websites, and of material and applications relating to the Customer on websites;

(g)    link building and link baiting;

(h)    the use of social media and social networks to generate signals that may have a direct or indirect effect on search engine rankings; and

(i)    other search engine optimisation techniques, whether known on the Effective Date or devised or disseminated thereafter;

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;

"Social Media Marketing Services" means the creation of accounts connected to the Customer on Social Media Platforms, the establishment and growth of user networks associated with such accounts, the creation of content for publication on and distribution through Social Media Platforms, the publication of such content on and distribution of such content through Social Media Platforms, and the monitoring and analysis of the impact of these services, as detailed in a Statement of Work;

"Social Media Platforms" means Facebook, InstagramTwitter, YouTube and LinkedIn, and any other social media platforms agreed by the parties in writing from time to time;

"Source Code" means software code in human-readable form, including human-readable code compiled to create software or decompiled from software, but excluding interpreted code;

"SSL Certificate Services" means the purchase of SSL certificates, the installation of SSL certificates and the maintenance of SSL certificates by the Provider on behalf of the Customer;

"Statement of Work" means a written statement of work agreed by or on behalf of each of the parties, setting out specific obligations of the parties under this Agreement, which may be in the form specified in Schedule 9 (Form of Statement of Work);

"Support Services" means support in relation to use of the Supported Website and the identification and resolution of errors in the Supported Website, the addition of content to the Supported Website, and minor changes in the layout and design of the Supported Website (providing that the Provider shall determine acting reasonably whether a proposed change is minor); for the avoidance of doubt, such services shall not include the provision of training services, significant changes in the layout or design of the Supported Website or any software development services;

"Supported Website" means the website or websites identified as such in a Statement of Work;

"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Third Party Materials" means those elements of the works and materials that are delivered to the Customer, or that the Provider has an obligation to deliver to the Customer, under this Agreement (excluding the Customer Materials), the Intellectual Property Rights in which are owned by a third party, and which are specified in a Statement of Work or which the parties agree in writing shall be incorporated into those works and materials;

"Update" means a hotfix, patch or minor version update to the Maintained Software;

"Upgrade" means a major version upgrade of the Maintained Software;

"Web Marketing Deliverables" means those works and materials created by or on behalf of the Provider in the course of the Provider providing the Search Marketing Services, Advertising Management Services, Email Marketing Services and/or Social Media Marketing Services that are delivered to the Customer, or that the Provider has an obligation to deliver to the Customer, under this Agreement;

"Website" means the website developed or to be developed by the Provider for the Customer under this Agreement, as specified in a Statement of Work, including all the Source Code for that website created by the Provider in the course of providing the Services;

"Website Defect" means a defect, error or bug in the Website having an adverse effect on the appearance, operation, functionality, security or performance of the Website, but excluding any defect, error or bug caused by or arising as a result of:

(a)    any act or omission of the Customer or any person authorised by the Customer to use the Website;

(b)    any use of the Website contrary to the Documentation by the Customer or any person authorised by the Customer to use the Website;

(c)    a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or

(d)    an incompatibility between the Website and any other system, network, application, program, hardware or software not specified as compatible in the Website Specification;

"Website Specification" means the specification for the Website set out in a Statement of Work, as it may be varied by the written agreement of the parties from time to time.

2. Term

2.1    This Agreement shall come into force upon the Effective Date.

2.2    This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 22 or any other provision of this Agreement.

2.3    From time to time during the Term, the parties may agree in writing particular Statements of Work.

2.4    Unless the parties expressly agree otherwise in writing, each Statement of Work agreed by the parties shall form a part of this Agreement.

3. Services

3.1    The Provider shall provide to the Customer those Services that the parties have agreed in a Statement of Work shall be so provided.

3.2    The Provider shall devote such of its personnel's time and expertise to the performance of the Services as may be necessary for their satisfactory and timely completion.

3.3    The Provider shall keep the Customer informed about the progress of the Services and, in particular, shall promptly provide information about such progress following receipt of a written request from the Customer to do so.

3.4    The Provider shall comply with all reasonable internal policies and procedures operated by the Customer, communicated by the Customer to the Provider and affecting the provision of the Services.

3.5    The Provider may suspend the provision of any or all of the Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to do so.

4. Customer obligations

4.1    Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

(a)    co-operation, support and advice;

(b)    information and documentation; and

(c)    governmental, legal and regulatory licences, consents and permits,

        as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.

4.2    The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.

4.3    Save as expressly provided in this Agreement, the Customer shall be responsible for obtaining and where relevant paying for any licences of third party software that may be required for the use of the Services.

4.4    The Customer shall be responsible for ensuring that its passwords relating to the Services are securely constructed, are kept securely and not disclosed to any unauthorised person; and the Customer must notify the Provider as soon as practicable if the Customer becomes aware that any password relating to the Services has been or may have been compromised or misused.

5. Customer Materials

5.1    The Customer must supply to the Provider the Customer Materials specified in a Statement of Work, in accordance with the timetable specified in a Statement of Work.

5.2    The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Materials to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, together with the right to sub-license these rights to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.

5.3    The Customer warrants to the Provider that the Customer Materials will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

6. Customer Trade Marks

6.1    Within 10 Business Days following the Effective Date, the Customer shall provide or make available to the Provider representations of the Customer Trade Marks in a digital format reasonably satisfactory to the Provider.

6.2    The Customer grants to the Provider a non-exclusive licence to use the Customer Trade Marks during the Term for the purposes (and only for the purposes) of enabling the provision of the Services to the Customer, and providing that the Customer has given its prior written consent in relation to the type of use in question, or the Customer has not objected to the type of use within the period of 10 Business Days following receipt of a written notice from the Provider detailing the type of use in question.

6.3    The Provider must ensure that all uses of the Customer Trade Marks will be in accordance with any style guide supplied or made available by the Customer to the Provider.

6.4    The Provider shall ensure that all instances of the use of the Customer Trade Marks will be of a reasonable professional standard.

6.5    Notwithstanding any other provision of this Agreement, the Provider must not use the Customer Trade Marks in any way that:

(a)    may invalidate or lead to the revocation of or otherwise jeopardise any registered trade mark protection benefiting the Customer Trade Marks;

(b)    may assist with any application to cancel or invalidate any registered Customer Trade Mark or any opposition to any application by the Customer to register any Customer Trade Mark;

(c)    is likely to cause harm to the goodwill attaching to any of the Customer Trade Marks;

(d)    may prejudice the right or title of the Customer to the Customer Trade Marks; or

(e)    is liable to bring the Customer or any Customer Trade Mark into disrepute.

6.6    All goodwill arising as a result of, or in relation to, the use of the Customer Trade Marks will accrue exclusively to the Customer.

6.7    If the Customer considers that a use of the Customer Trade Marks by the Provider breaches the provisions of this Clause 6 or is otherwise undesirable, the Customer may issue a notice to the Provider requesting that such usage cease, and the Provider must ensure that such usage will cease within 5 Business Days following receipt of such a notice.

6.8    The Customer warrants to the Provider that the use by the Provider of the Customer Trade Marks in accordance with this Agreement will not infringe any person's Intellectual Property Rights in any jurisdiction and under any applicable law.

6.9    The Provider will not by virtue of this Agreement obtain or claim any right, title or interest in or to the Customer Trade Marks except as expressly set out in this Agreement.

6.10  Within 10 Business Days following the termination of this Agreement, the Provider must cease to use the Customer Trade Marks and must:

(a)    remove or permanently obscure Customer Trade Marks that appear on any works and materials in the possession or control of the Provider; and

(b)    to the extent that neither removal nor permanent obscuring is practicable, deliver to the Customer or destroy (as the Customer shall determine) all those works and materials in the possession or control of the Provider on which the Customer Trade Marks appear.

7. Third Party Materials

7.1    The Provider must not incorporate any Third Party Materials into any works or materials that the Provider delivers or has an obligation to deliver to the Customer under this Agreement unless those Third Party Materials are supplied by or on behalf of the Customer to the Provider or the parties have agreed in a Statement of Work or otherwise in writing to the incorporation of the relevant Third Party Materials into the relevant works or materials.

7.2    Subject to any express written agreement between the parties, the Provider shall ensure that the Third Party Materials are:

(a)    licensed to the Customer in accordance with the relevant licensor's standard licensing terms (which the Customer acknowledges may be open source or Creative Commons licensing terms);

(b)    licensed to the Customer on reasonable terms notified by the Provider to the Customer; or

(c)    sub-licensed by the Provider to the Customer on reasonable terms notified in writing by the Provider to the Customer.

8. Representatives

8.1    The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in this Agreement will be given by a Provider Representative to a Customer Representative, and the Customer:

(a)    may treat all such instructions as the fully authorised instructions of the Provider; and

(b)    must not comply with any other instructions in relation to that subject matter.

8.2    The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in this Agreement will be given by a Customer Representative to a Provider Representative, and the Provider:

(a)    may treat all such instructions as the fully authorised instructions of the Customer; and

(b)    must not comply with any other instructions in relation to that subject matter.

9. Management

9.1    The parties shall hold management meetings by telephone conference or using internet-based conferencing facilities at the reasonable request of either party.

9.2    A party requesting a management meeting shall give to the other party at least 20 Business Days' written notice of the meeting.

9.3    Wherever necessary to enable the efficient conduct of business, the Provider shall be represented at management meetings by at least 1 Provider Representative and the Customer shall be represented at management meetings by at least 1 Customer Representative.

10. Charges

10.1  The Customer shall pay the Charges to the Provider in accordance with this Agreement.

10.2  If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.

10.3  All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.

10.4  The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 5% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.

11. Expenses

11.1  The Customer shall reimburse the Provider in respect of any Expenses, providing that the Provider must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

11.2  The Provider must collect and collate evidence of all Expenses, and must retain such evidence during the Term and for a period of 30 days following the end of the Term.

11.3  Within 10 Business Days following receipt of a written request from the Customer to do so, the Provider must supply to the Customer such copies of the evidence for the Expenses in the possession or control of the Provider as the Customer may specify in that written request.

12. Timesheets

12.1  The Provider must:

(a)    ensure that the personnel providing Services, the Charges for which will be based in whole or part upon the time spent in the performance of those Services, complete reasonably detailed records of their time spent providing those Services; and

(b)    retain such records during the Term, and for a period of at least 1 month following the end of the Term.

12.2  Within 10 Business Days following receipt of a written request, the Provider shall supply to the Customer copies of such of the timesheets referred to in Clause 12.1 and in the Provider's possession or control as the Customer may specify in that written request.

13. Payments

13.1  The Provider shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in a Statement of Work.

13.2  The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 13.

13.3  The Customer must pay the Charges by debit card, credit card, direct debit or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).

13.4  If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:

(a)    charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

14. Reversion of assignments and licences

14.1  Notwithstanding any other provision of this Agreement, the licences and assignments granted by the Provider to the Customer under this Agreement are subject to the payment by the Customer of all amounts owing to the Provider under this Agreement in full and on time.

14.2  If the Customer owes any amount to the Provider under this Agreement and fails to pay that amount to the Provider within 30 days following the receipt of a notice requiring it to do so and specifying that the assignments will revert and the licences will terminate if the amount remains unpaid, then the Provider may immediately revert the assignments and terminate the licences granted by the Provider under this Agreement by giving written notice of reversion and termination to the Customer.

15. Confidentiality obligations

15.1  The Provider must:

(a)    keep the Customer Confidential Information strictly confidential;

(b)    not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;

(c)    use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Customer Confidential Information; and

(e)    not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.

15.2  The Customer must:

(a)    keep the Provider Confidential Information strictly confidential;

(b)    not disclose the Provider Confidential Information to any person without the Provider's prior written consent, and then only under conditions of confidentiality approved in writing by the Provider;

(c)    use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Provider Confidential Information; and

(e)    not use any of the Provider Confidential Information for any purpose other than the Permitted Purpose.

15.3  Notwithstanding Clauses 15.1 and 15.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

15.4  No obligations are imposed by this Clause 15 with respect to a party's Confidential Information if that Confidential Information:

(a)    is known to the other party before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

(b)    is or becomes publicly known through no act or default of the other party; or

(c)    is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

15.5  The restrictions in this Clause 15 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

15.6  Upon the termination of this Agreement, each party must immediately cease to use the other party's Confidential Information.

15.7  Following the termination of this Agreement, and within 5 Business Days following the date of receipt of a written request from the other party, the relevant party must destroy or return to the other party (at the other party's option) all media containing the other party's Confidential Information, and must irrevocably delete the other party's Confidential Information from its computer systems.

15.8  The provisions of this Clause 15 shall continue in force indefinitely following the termination of this Agreement, at the end of which period they will cease to have effect.

16. Publicity

16.1  The Customer must not make any public disclosures relating to this Agreement or the subject matter of this Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the Provider;

16.2  Nothing in this Clause 16 shall be construed as limiting the obligations of the parties under Clause 15.

17. Data protection

17.1  The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.

17.2  The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in Paragraph 1 of Schedule 8 (Data processing information).

17.3  The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement, Personal Data of the types specified in Paragraph 2 of Schedule 8 (Data processing information).

17.4  The Provider shall only process the Customer Personal Data for the purposes specified in Paragraph 3 of Schedule 8 (Data processing information).

17.5  The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 17.

17.6  The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in this Agreement or any other document agreed by the parties in writing.

17.7  Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

17.8  The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

17.9  The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in Paragraph 4 of Schedule 8 (Data processing information).

17.10 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. The Provider is hereby authorised by the Customer, as at the Effective Date, to engage those third parties identified in, or falling within the processor categories specified in, Paragraph 5 of Schedule 8 (Data processing information) to process the Customer Personal Data. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes. The Provider shall ensure that each third party processor is subject to the equivalent legal obligations as those imposed on the Provider by this Clause 17.

17.11 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.

17.12 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.

17.13 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under the Data Protection Laws.

17.14 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

17.15 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of [the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 17.

17.16 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

18. Warranties

18.1  The Provider shall provide the Services with reasonable skill and care.

18.2  The Provider warrants to the Customer that:

(a)    the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)    the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and

(c)    the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

18.3  The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

18.4  All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

19. Indemnities

19.1  The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of this Agreement (a "Provider Indemnity Event").

19.2  The Customer must:

(a)    upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;

(b)    provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;

(c)    allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and

(d)    not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,

        and the Provider's obligation to indemnify the Customer under Clause 19.1 shall not apply unless the Customer complies with the requirements of this Clause 19.2.

19.3  The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement (a "Customer Indemnity Event").

19.4  The Provider must:

(a)    upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b)    provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;

(c)    allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and

(d)    not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,

        and the Customer's obligation to indemnify the Provider under Clause 19.3 shall not apply unless the Provider complies with the requirements of this Clause 19.4.

19.5  The indemnity protection set out in this Clause 19 shall be subject to the limitations and exclusions of liability set out in this Agreement.

20. Limitations and exclusions of liability

20.1  Nothing in this Agreement will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

20.2  The limitations and exclusions of liability set out in this Clause 20 and elsewhere in this Agreement:

(a)    are subject to Clause 20.1; and

(b)    govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

20.3  Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

20.4  Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

20.5  Neither party shall be liable to the other party in respect of any loss of revenue or income.

20.6  Neither party shall be liable to the other party in respect of any loss of use or production.

20.7  Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

20.8  Neither party shall be liable to the other party in respect of any loss or corruption of any data or database.

20.9  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

20.10 The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed the greater of:

(a)    £1000; and

(b)    the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.

20.11 The aggregate liability of the Provider to the Customer under this Agreement shall not exceed the greater of:

(a)    £1000; and

(b)    the total amount paid and payable by the Customer to the Provider under this Agreement.

21. Force Majeure Event

21.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

21.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

21.3  A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

22. Termination

22.1  The Provider may terminate this Agreement by giving to the Customer not less than 30 days' written notice of termination, expiring after the end of the Minimum Term. The Customer may terminate this Agreement by giving to the Provider not less than 30 days' written notice of termination, expiring after the end of the Minimum Term.

22.2  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party commits any breach of this Agreement, and the breach is not remediable;

(b)    the other party commits a breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c)    the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).

22.3  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)    is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)   is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or

(d)    if that other party is an individual:

(i)    that other party dies;

(ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)   that other party is the subject of a bankruptcy petition or order.

22.4  The Provider may terminate this Agreement immediately by giving written notice to the Customer if:

(a)    any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    the Provider has given to the Customer at least 30 days' written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 22.4.

23. Effects of termination

23.1  Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 4.4, 6.10, 7.1, 11.2, 11.3, 12, 13.2, 13.4, 14, 15, 16, 17.2, 17.3, 17.4, 17.5, 17.6, 17.7, 17.8, 17.9, 17.10, 17.11, 17.12, 17.13, 17.14, 17.15, 17.16, 19, 20, 23, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35 and 36, Paragraphs 2.7, 3.9, 4.1, 5 and 8 of Schedule 2 (Web design and development services), Paragraphs 2.7, 3.1, 3.2, 3.3, 3.5, 3.8, 3.9, 4.4 and 6.4 of Schedule 3 (Hosting services), Paragraphs 4.5, 5.2 and 6.4 of Schedule 4 (Domain Name Services), Paragraphs 2.5 and 3.4 of Schedule 5 (SSL Certificate Services), Paragraph 4 of Schedule 6 (Web support and maintenance services) and Paragraphs 1, 8 and 9.1 of Schedule 7 (Web marketing services)].

23.2  Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

23.3  Within 30 days following the termination of this Agreement for any reason:

(a)    the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,

        without prejudice to the parties' other legal rights.

24. Non-solicitation of personnel

24.1  The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 12 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Provider who has been involved in any way in the negotiation or performance of this Agreement.

24.2  The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 12 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer who has been involved in any way in the negotiation or performance of this Agreement.

25. Further assurance

25.1  The Provider must use reasonable endeavours to:

(a)    do or procure the doing of all acts; and

(b)    execute or procure the execution of all documents,

        that the Customer may reasonably request from time to time in order to perfect or confirm the Customer's ownership of the rights assigned by this Agreement.

25.2  The Provider must provide to the Customer at the cost and expense of the Customer such reasonable assistance as the Customer may request in order to register rights assigned to the Customer by this Agreement, or licensed to the Customer under this Agreement, with any intellectual property office or registry.

25.3  The Provider must provide to the Customer at the cost and expense of the Customer all reasonable assistance in connection with any legal proceedings relating to the rights assigned under this Agreement that are brought by, or against, the Customer.

26. Notices

26.1  Any notice given under this Agreement must be in writing, whether or not described as "written notice" in this Agreement.

26.2  Any notice given by the Customer to the Provider under this Agreement must be:

(a)    delivered personally;

(b)    sent by courier;

(c)    sent by recorded signed-for post];

(d)    sent by fax;

(e)    sent by email; or

(f)    submitted using the Provider's online contractual notification facility,

        using the relevant contact details set out in Paragraph 3 of Schedule 1 (Contract information).

26.3  Any notice given by the Provider to the Customer under this Agreement must be:

(a)    delivered personally;

(b)    sent by courier;

(c)    sent by recorded signed-for post;

(d)    sent by fax;

(e)    sent by email; or

(f)    submitted using the Customer's online contractual notification facility,

        using the relevant contact details set out in Paragraph 3 of Schedule 1 (Contract information).

26.4  The addressee and contact details set out in Paragraph 3 of Schedule 1 (Contract information) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 26.

26.5  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

26.6  A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a)    in the case of notices delivered personally, upon delivery;

(b)    in the case of notices sent by courier, [upon delivery;

(c)    in the case of notices sent by post, [48 hours after posting;

(d)    in the case of notices sent by fax, at the time of the transmission of the fax (providing the sending party retains written evidence of the transmission);

(e)    in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent); and

(f)    in the case of notices submitted using an online contractual notification facility, upon the submission of the notice form.

27. Subcontracting

27.1  The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

27.2  The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

28. Assignment

28.1  The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider's contractual rights and obligations under this Agreement.

28.2  The Provider hereby agrees that the Customer may assign, transfer or otherwise deal with the Customer's contractual rights and obligations under this Agreement.

29. No waivers

29.1  No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

29.2  No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.

30. Severability

30.1  If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

30.2  If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

31. Third party rights

31.1  This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

31.2  The exercise of the parties' rights under this Agreement is not subject to the consent of any third party.

32. Variation

32.1  This Agreement may not be varied except by means of a written document signed by or on behalf of each party.

33. Entire agreement

33.1  The main body of this Agreement, the Schedules, the Annexes and each Statement of Work shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

33.2  Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.

33.3  The provisions of this Clause 33 are subject to Clause 20.1.

34. Export control

34.1  The Customer acknowledges that materials and/or information supplied to the Customer under this Agreement may be subject to the Export Laws.

34.2  The Customer must comply with the Export Laws insofar as they affect materials and information supplied to the Customer under this Agreement.

34.3  Without prejudice to the generality of Clause 34.2, the Customer:

(a)    must not import, export, supply, disclose, transfer or transmit any materials or information supplied to the Customer under this Agreement if such import, export, supply, disclosure, transfer or transmission would contravene any embargo or exclusion list applying under the Export Laws; and

(b)    must, where applicable, obtain all licences and consents required under the Export Laws for any import, export, supply, disclosure, transfer or transmission by or on behalf of the Customer of materials or information supplied to the Customer under this Agreement.

35. Law and jurisdiction

35.1  This Agreement shall be governed by and construed in accordance with English law.

35.2  Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.

36. Interpretation

36.1  In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

36.2  The Clause headings do not affect the interpretation of this Agreement.

36.3  References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

36.4  In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

EXECUTION

The parties have indicated their acceptance of this Agreement by confirming they have read and accept the Terms & Conditions based in this agreement from the sign-up tick box on our website.

 

SCHEDULE 1 (CONTRACT INFORMATION)

1. Minimum Term

30 days

2. Representatives

The Provider Representatives are: Richard Pigden, Director of Simply. Website Support.
The Customer Representatives are as included on the sign-up form on the Simply. Website Support website.

3. Contractual notices

.uk
Customer contractual notices email address as included on the Plan sign-up form on the Simply. Website Support website.

 

SCHEDULE 2 (WEB DESIGN AND DEVELOPMENT SERVICES)

1. Obligation to provide Development Services

1.1    The Provider shall provide to the Customer any Development Services specified in a Statement of Work or otherwise agreed by the parties in writing in accordance with this Schedule 2.

2. Development Services

2.1    The Provider shall use all reasonable endeavours to ensure that the Development Services are provided in accordance with the timetable set out in a Statement of Work, and that copies of the Website and Documentation are delivered to the Customer by means of a secure online file sharing system, on a USB memory stick or on optical disk in accordance with that timetable.

2.2    The Customer acknowledges that a delay in the Customer performing its obligations under this Agreement may result in a delay in the performance of the Development Services; and subject to Clause 20.1 of the main body of this Agreement the Provider will not be liable to the Customer in respect of any failure to meet the Development Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.

2.3    The Provider shall ensure that the Source Code, and any interpreted code, comprised in the Website created by or on behalf of the Provider during the provision of the Development Services is written to a professional standard, conforms with any coding standards document agreed between the parties, and incorporates sufficient commentary to enable a competent third party developer to understand, adapt, maintain and update the code.

2.4    The Provider shall keep the Customer reasonably informed of the progress of the Development Services and, in particular, shall inform the Customer of any substantial obstacles or likely delays in the performance of the Development Services.

2.5    The Customer must promptly, following receipt of a written request from the Provider to do so, provide written feedback to the Provider concerning the Provider's proposals, plans, designs and/or preparatory materials relating to the Website and made available to the Customer with that written request.

2.6    The Provider shall during the course of the Development Services at the request of the Customer make accessible to the Customer a current development version of the Website for the purposes of enabling the Customer to assess the progress of the Development Services and provide feedback to the Provider regarding the Website.

2.7    If this Agreement terminates (for whatever reason) before the delivery of the completed Website or Documentation to the Customer, the Provider must within 14 days following such termination deliver to the Customer all work in progress towards the Website and Documentation.

3. Acceptance procedure

3.1    During each Acceptance Period, the Provider shall ensure that the Website is accessible to the Customer and the Customer shall carry out the Acceptance Tests.

3.2    The Provider hereby grants to the Customer a non-exclusive non-transferable and non-sublicensable licence to use the Website during each Acceptance Period solely for the purpose of conducting the Acceptance Tests.

3.3    The Provider shall provide to the Customer at the Customer's cost and expense all such assistance and co-operation in relation to the carrying out of the Acceptance Tests as the Customer may reasonably request.

3.4    Before the end of each Acceptance Period, the Customer shall give to the Provider a written notice specifying whether the Acceptance Tests have been passed or failed.

3.5    If the Customer fails to give to the Provider a written notice in accordance with Paragraph 3.4 or uses the Website for any purpose other than the conduct of the Acceptance Tests, then the Website shall be deemed to have passed the Acceptance Tests.

3.6    If the Customer notifies the Provider that the Acceptance Tests have been failed, then the Customer must provide to the Provider, at the same time as the giving of the notice, written details of the results of the Acceptance Tests including full details of the identified failure.

3.7    If the Customer notifies the Provider that the Website has failed the Acceptance Tests:

(a)    if the Provider agrees with the Customer that the Website has not passed the Acceptance Tests, then the Provider must correct the issue and re-supply the Website to the Customer before the end of the Remedy Period; or

(b)    otherwise, then the parties must meet as soon as practicable and in any case before the expiry of the Remedy Period and use their best endeavours to agree whether the Website has not passed the Acceptance Tests and, if appropriate, a plan of action reasonably satisfactory to both parties, and they must record any agreement reached in writing.

3.8    Notwithstanding the other provisions of this Paragraph 3, but subject to any written agreement of the parties to the contrary, the maximum number of rounds of Acceptance Tests under this Paragraph 3 shall be 3, and if [the final round of Acceptance Tests is failed, the Provider shall be deemed to be in material breach of this Agreement.

3.9   If the Customer notifies the Provider that the Website has passed the Acceptance Tests or the Website is deemed to have passed the Acceptance Tests under this Paragraph 3, then subject to Clause 20.1 of the main body of this Agreement the Customer will have no right to make any claim under or otherwise rely upon any warranty given by the Provider to the Customer in this Agreement in relation to the conformance of the Website to the Website Specification or the absence of Website Defects from the Website, unless the Customer could not reasonably have been expected to have identified the breach of that warranty during the testing process.

4. Intellectual Property Rights

4.1    The Provider hereby assigns to the Customer with full title guarantee all of the Intellectual Property Rights in the Website and the Documentation, whether those Intellectual Property Rights exist on the Effective Date or come into existence during the Term, excluding the Intellectual Property Rights in the Customer Materials and the Third Party Materials. This assignment is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals, and includes the right to bring proceedings for past infringements of the assigned rights. This assignment shall take effect in respect of a work upon the delivery of that work to the Customer.

4.2    To the maximum extent permitted by applicable law:

(a)    the Provider irrevocably and unconditionally waives all moral rights (including rights of paternity and rights of integrity) in respect of the Website and the Documentation to which the Provider may at any time be entitled; and

(b)    the Provider undertakes to ensure that all individuals involved in the preparation of the Website and/or the Documentation will irrevocably and unconditionally waive all moral rights (including rights of paternity and rights of integrity) in respect of the Website and/or the Documentation to which they may at any time be entitled.

5. Provider Credit

5.1    The Provider may include the Provider Credit on each page of the Website in a position of the footer of the website.

5.2    The Customer must retain the Provider Credit on the Website and any adapted version of the Website, must not interfere with the Provider Credid in any way which will have or may reasonably be expected to have a negative impact upon the value of the Provider Credit to the Provider, and may only remove the Provider Credit at the Provider's request.

6. Warranties

6.1    The Provider warrants to the Customer that:

(a)    the Website as provided will conform in all material respects with the Website Specification;

(b)    the Website will be supplied free from Website Defects and will remain free from Website Defects for a period of at least 3 months following the supply of the Website;

(c)    the Website will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(d)    the Website shall incorporate security features reflecting the requirements of good industry practice.

6.2    The Provider warrants to the Customer that the Website and Documentation, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law; providing however that the Provider shall have no liabilities under this Paragraph 6.2 in respect of any such breach caused by the Customer Materials or the Third Party Materials.

6.3    The Provider warrants to the Customer that the Website and Documentation, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law; providing however that the Provider shall have no liabilities under this Paragraph 6.3 in respect of any such infringement caused by the Customer Materials or the Third Party Materials.

6.4    If the Provider reasonably determines, or any third party alleges, that the use of the Website by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may acting reasonably at its own cost and expense:

(a)    modify the Website in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Website Defects into the Website and must not result in the Website failing to conform with the Website Specification; or

(b)    procure for the Customer the right to use the Website in accordance with this Agreement.

7. Acknowledgements and warranty limitations

7.1    The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Website will be wholly free from defects, errors and bugs.

7.2    The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Website will be entirely secure.

7.3    The Customer acknowledges that the Website is only designed to be compatible with that software (including web browser and web server software) that is specified as compatible in the Website Specification; and the Provider does not warrant or represent that the Website will be compatible with any other software.

7.4    The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Website; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Website or the use of the Website by the Customer or any other person will not give rise to any legal liability on the part of the Customer or any other person.

8. Non-compete

8.1    The Provider shall not during the Term or for a period of 3 months following the end of the Term create or develop, agree to create or develop, or otherwise become involved in the creation or development of any website or software program that the Provider knows (or should know) will (or is reasonably likely to) compete for users and/or customers with the Website.

8.2    The Provider acknowledges and agrees that the Customer has a legitimate interest in restricting the Provider from using knowledge and expertise gained as a result of this Agreement to assist competitors and potential competitors of the Customer and that the restrictions set out in this Paragraph 8 are reasonable and go no further than necessary to protect that legitimate interest.

9. Termination of Development Services

9.1    Either party may terminate the Development Services under a Statement of Work by giving to the other party at least 90 days' written notice of termination expiring at any time after the end of the Minimum Term.

9.2    If the Development Services are terminated in accordance with the provisions of this Paragraph 9:

(a)    the Customer must pay to the Provider any outstanding Charges in respect of Development Services provided to the Customer before the date of effective termination of the Development Services;

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Development Services that were to be provided to the Customer after the date of effective termination of the Development Services;

(c)    the Provider must promptly deliver to the Customer such elements of the Website and Documentation as are complete and all work in progress in respect of the Website and Documentation; and

(d)    this Agreement will continue notwithstanding such termination.

9.3    For the avoidance of doubt, the Development Services shall automatically terminate upon the termination of this Agreement.

 

SCHEDULE 3 (HOSTING SERVICES)

1. Obligation to provide Hosting Services

1.1    The Provider shall provide to the Customer any Hosting Services specified in a Statement of Work or otherwise agreed by the parties in writing in accordance with this Schedule 3.

2. Hosting Services

2.1    The Provider shall create a Hosting Account for the Customer and shall manage that Hosting Account for the customer.

2.2    The Provider hereby grants to the Customer a right to use the Hosting Services for the business purposes of the Customer in accordance with any relevant documentation supplied by the Provider to the Customer during the Term.

2.3    The right granted by the Provider to the Customer under Paragraph 2.2 is subject to the following limitations:

(a)    the Hosting Account may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;

(b)    the Hosting Account may only be used by the named users identified in a Statement of Work, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein; and

(c)    the Hosting Account must not be used at any point in time by more than the number of concurrent users specified in a Statement of Work, providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein.

2.4    Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Paragraph 2.2 is subject to the following prohibitions:

(a)    the Customer must not sub-license its right to access and use the Hosting Account;

(b)    the Customer must not permit any unauthorised person to access or use the Hosting Account; and

(c)    the Customer must not make any alteration to the Hosting Platform, except as permitted by the documentation supplied by the Provider to the Customer.

2.5    The Customer shall use reasonable endeavours, including reasonable security measures relating to Hosting Account access details, to ensure that no unauthorised person may gain access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

2.6    The parties acknowledge and agree that Annex 1 (Availability SLA) to this Schedule 3 shall govern the availability of the Hosting Services.

2.7    For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Hosting Platform, either during or after the Term.

2.8    The Provider may suspend the provision of the Hosting Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosting Services on this basis.

3. Use of Hosting Services

3.1    The use of the Hosting Services shall be subject to the resource limitations relating to data storage, bandwidth and processor utilisation that are set out in a Statement of Work.

3.2    The Provider may charge the Customer in respect of any use of the Hosting Services that breaches the applicable resource limitations, at such rate or rates as are specified in a Statement of Work.

3.3    The Customer acknowledges and agrees that the the Provider may implement technological measures to prevent or inhibit the use of the Hosting Services in any way that breaches the applicable resource limitations.

3.4    The Customer must comply with Annex 2 (Acceptable Use Policy) to this Schedule 3, and must ensure that all persons using the Hosting Services with the authority of the Customer or by means of the Hosting Account comply with Annex 2 (Acceptable Use Policy) to this Schedule 3.

3.5    The Customer acknowledges and agrees that the Provider may send to any established and recognised anti-spam organisation such details of the Customer (which may include personal names, business names, addresses, email addresses, telephone numbers and IP addresses) as the Provider considers reasonably necessary to enable the relevant organisation to properly conduct its business.

3.6    The Customer must not use the Hosting Services in any way that causes, or may cause, damage to the Hosting Services or Hosting Platform or impairment of the availability or accessibility of the Hosting Services.

3.7    The Customer must not use the Hosting Services:

(a)    in any way that is unlawful, illegal, fraudulent or harmful; or

(b)    in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3.8    The Customer must ensure that any software (including scripts) uploaded to the Hosting Platform is reasonably secure, has the appropriate file access permissions set and does not contain any malicious code.

3.9    If there is a breach of this Paragraph 3 or Annex 2 (Acceptable Use Policy) to this Schedule 3, the Provider may suspend the Hosting Services or any element of the Hosting Services until such time as the breach is remedied or the Customer has purchased additional resources. The Provider must give to the Customer at least 24 hours' prior written notice of such action.

4. Scheduled maintenance

4.1    The Provider may from time to time suspend the Hosting Services and/or access to the Hosting Account for the purposes of scheduled maintenance, providing that such scheduled maintenance must be carried out in accordance with this Paragraph 4.

4.2    The Provider shall where practicable give to the Customer at least 10 Business Days' prior written notice of scheduled maintenance that is likely to affect the availability of the Hosting Services or Hosting Account or is likely to have a material negative impact upon the Hosting Services or Hosting Account.

4.3    The Provider shall ensure that all scheduled maintenance is carried out outside Business Hours.

4.4    The Provider shall ensure that, during each calendar month, the aggregate period during which the Hosting Services and/or Hosting Account are unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance, does not exceed 24 hours.

5. Hosted Data

5.1    The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Hosted Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.

5.2    The Customer warrants to the Provider that the Hosted Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

5.3    The Provider shall create a back-up copy of the Hosted Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosting Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.

5.4    Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Hosting Platform the Hosted Data stored in any back-up copy created and stored by the Provider in accordance with Paragraph 5.3. The Customer acknowledges that this process will overwrite the Hosted Data stored on the Hosting Platform prior to the restoration.

5.5    Save to the extent expressly provided otherwise in this Agreement, the Customer shall be responsible for creating and maintaining back-ups of the Hosted Data and any other relevant data relating to the Hosting Services, and if necessary for restoring such data to the Hosting Platform.

6. Termination of Hosting Services

6.1    Either party may terminate the Hosting Services under a Statement of Work by giving to the other party at least 30 days' written notice of termination expiring at any time after the end of the Minimum Term.

6.2    If the Hosting Services are terminated in accordance with the provisions of this Paragraph 6:

(a)    the Customer must pay to the Provider any outstanding Charges in respect of Hosting Services provided to the Customer before the date of effective termination of the Hosting Services;

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Hosting Services that were to be provided to the Customer after the date of effective termination of the Hosting Services; and

(c)    this Agreement will continue notwithstanding such termination.

6.3    For the avoidance of doubt, the Hosting Services shall automatically terminate upon the termination of this Agreement.

6.4    If the Hosting Services terminate in accordance with this Paragraph 6 or this Agreement terminates, then the Provider shall ensure that the Hosted Data is available to the Customer for download from the Hosting Platform during the period up to the date of effective termination and for a period of at least 48 hours thereafter. Save as provided in this Paragraph 6.4, the Provider shall have no obligations following such termination to supply or make available to the Customer the Hosted Data.

 

ANNEX 1 (AVAILABILITY SLA)

1. Introduction to availability SLA

1.1    This Annex 1 sets out the Provider's availability commitments relating to the Hosting Services.

1.2    In this Annex 1, "uptime" means the percentage of time during a given period when the Hosting Services are available at the gateway between public internet and the network of the hosting services provider for the Hosting Services.

2. Availability

2.1    The Provider shall use reasonable endeavours to ensure that the uptime for the Hosting Services is at least 99% during each calendar month.

2.2    The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.

2.3    The Provider shall report uptime measurements to the Customer in writing, in respect of the last calendar month, when requested by the customer.

3. Exceptions

3.1    Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Paragraph 2.1:

(a)    a Force Majeure Event;

(b)    a fault or failure of the internet or any public telecommunications network;

(c)    a fault or failure of the Provider's hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;

(d)    a fault or failure of the Customer's computer systems or networks;

(e)    any breach by the Customer of this Agreement; or

(f)    scheduled maintenance carried out in accordance with this Agreement.

 

ANNEX 2 (ACCEPTABLE USE POLICY)

1. Introduction

1.1    This acceptable use policy (the "Policy<") sets out the rules governing:

(a)    the use of the website, any successor website, and the services available on that website or any successor website (the "Services"); and

(b)    the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").

1.2    References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Simply. Website Support (and "we" and "our" should be construed accordingly).

1.3    By using the Services, you agree to the rules set out in this Policy.

1.4    We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.

1.5    You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.

2. General usage rules

2.1    You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

2.2    You must not use the Services:

(a)    in any way that is unlawful, illegal, fraudulent or harmful; or

(b)    in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

2.3    You must ensure that all Content complies with the provisions of this Policy.

3. Unlawful Content

3.1    Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

3.2    Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:

(a)    be libellous or maliciously false;

(b)    be obscene or indecent;

(c)    infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(d)    infringe any right of confidence, right of privacy or right under data protection legislation;

(e)    constitute negligent advice or contain any negligent statement;

(f)    constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g)    be in contempt of any court, or in breach of any court order;

(h)    constitute a breach of racial or religious hatred or discrimination legislation;

(i)    be blasphemous;

(j)    constitute a breach of official secrets legislation; or

(k)    constitute a breach of any contractual obligation owed to any person.

3.3    You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4. Graphic material

4.1    Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.

4.2    Content must not depict violence in an explicit, graphic or gratuitous manner.

4.3    Content must not be pornographic or sexually explicit.

5. Marketing and spam

5.1    You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.

5.2    Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

5.3    You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.

5.4    You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.

6. Gambling

6.1    You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

7. Monitoring

7.1    You acknowledge that we may actively monitor the Content and the use of the Services.

8. Data mining

8.1    You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

9. Harmful software

9.1    The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

9.2    The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

 

SCHEDULE 4 (DOMAIN NAME SERVICES)

1. Obligation to provide Domain Name Services

1.1    The Provider shall provide to the Customer in accordance with this Schedule 4 any Domain Name Services specified in a Statement of Work or otherwise agreed by the parties in writing.

2. Registration of domain names

2.1    The Provider shall attempt to register any domain names that the Customer orders by means of a Statement of Work, subject to the payment of the applicable Charges in advance.

2.2    The Provider may reject any request to register a particular domain name by giving a written notice of rejection to the Customer, notwithstanding the other provisions of this Paragraph 2.

2.3    The Provider does not guarantee that any attempt to register a domain name will be successful.

3. Maintenance of domain name registrations

3.1    The Provider shall use reasonable endeavours to maintain the registration of any domain names registered through the Domain Name Services, subject to the payment in advance by the Customer to the Provider of any Charges due in respect of the renewal of such domain name registrations.

4. Customer obligations and Domain Name Services

4.1    The Customer warrants to the Provider that:

(a)    the information submitted by or on behalf of the Customer for the purposes of a domain name registration is current, accurate and complete;

(b)    the Customer has the legal right to apply for and use the domain name; and

(c)    the use of the domain name by the Customer will not infringe any person's Intellectual Property Rights or other legal rights.

4.2    The Customer shall promptly notify the Provider of any changes to the information required for the purposes of a domain name registration, and the Customer acknowledges that additional Charges may be payable in respect of the updating of that information with the relevant third parties.

4.3    The Customer acknowledges that certain information submitted for the purposes of a domain name registration will be published on the internet via "WHOIS" services.

4.4    With reference to each domain name in respect of which the Domain Name Services are provided, the Customer must comply with all the rules and policies from time to time of the relevant registry or registration authority.

4.5    With reference to each domain name in respect of which the Domain Name Services are provided, the Customer hereby agrees to and must comply any applicable domain name registration agreement notified by the Provider to the Customer (including any amendments notified by the Provider to the Customer).

5. Domain name disputes

5.1    The Provider shall not and shall have no obligation to offer or provide any legal or other advice in relation to any actual or potential domain name dispute.

5.2    Subject to Clause 20.1 of the main body of this Agreement, the Provider shall have no liability in respect of the suspension or loss of a domain name as a result of any domain name arbitration procedure or court proceedings.

6. Termination of Domain Name Services

6.1    Either party may terminate the Domain Name Services under a Statement of Work by giving to the other party at least 30 days' written notice of termination expiring at any time after the end of the Minimum Term.

6.2    If the Domain Name Services are terminated in accordance with the provisions of this Paragraph 6:

(a)    the Customer must pay to the Provider any outstanding Charges in respect of Domain Name Services provided to the Customer before the date of effective termination of the Domain Name Services;

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Domain Name Services that were to be provided to the Customer after the date of effective termination of the Domain Name Services; and

(c)    this Agreement will continue notwithstanding such termination.

6.3    For the avoidance of doubt, the Domain Name Services shall automatically terminate upon the termination of this Agreement.

6.4    Upon the termination of the Domain Name Services (whether or not this Agreement is terminated), then all of your rights in or in respect of relevant domain names shall immediately cease, save to the extent that you have transferred relevant domain names to another domain name registration service provider before the date of effective termination.

 

SCHEDULE 5 (SSL CERTIFICATE SERVICES)

1. Obligation to provide SSL Certificate Services

1.1    The Provider shall provide to the Customer in accordance with this Schedule 5 any SSL Certificate Services specified in a Statement of Work or otherwise agreed by the parties in writing.

2. SSL Certificate Services

2.1    The Provider shall endeavour to purchase and install any SSL certificate that the Customer orders by means of a Statement of Work, subject to the payment of the applicable Charges in advance.

2.2    The Provider shall use reasonable endeavours to maintain any SSL certificate subscriptions arranged through the SSL Certificate Services, subject to the payment in advance by the Customer to the Provider of any Charges due in respect of the renewal of such domain name registrations.

2.3    The Customer warrants to the Provider that all the information submitted by or on behalf of the Customer for the purposes of an SSL certificate purchase or otherwise in respect of an SSL certificate is current, accurate and complete.

2.4    The Customer shall promptly notify the Provider of any changes to the information required for the purposes of an SSL certificate purchase, and the Customer acknowledges that additional Charges may be payable in respect of the updating of that information with the relevant third parties.

2.5    With reference to each SSL certificate in respect of which the SSL Certificate Services are provided, the Customer hereby agrees to and must comply any applicable SSL certificate subscription agreement notified by the Provider to the Customer (including any amendments notified by the Provider to the Customer).

3. Termination of SSL Certificate Services

3.1    Either party may terminate the SSL Certificate Services under a Statement of Work by giving to the other party at least 30 days' written notice of termination expiring at any time after the end of the Minimum Term.

3.2    If the SSL Certificate Services are terminated in accordance with the provisions of this Paragraph 3:

(a)    the Customer must pay to the Provider any outstanding Charges in respect of SSL Certificate Services provided to the Customer before the date of effective termination of the SSL Certificate Services;

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of SSL Certificate Services that were to be provided to the Customer after the date of effective termination of the SSL Certificate Services; and

(c)    this Agreement will continue notwithstanding such termination.

3.3    For the avoidance of doubt, the SSL Certificate Services shall automatically terminate upon the termination of this Agreement.

3.4    Upon the termination of the SSL Certificate Services (whether or not this Agreement is terminated), then all of your rights in or in respect of relevant SSL certificates shall immediately cease.

 

SCHEDULE 6 (WEB SUPPORT AND MAINTENANCE SERVICES)

1. Obligation to provide Support Services and Maintenance Services

1.1    The Provider shall provide to the Customer any Support Services and Maintenance Services specified in a Statement of Work or otherwise agreed by the parties in writing in accordance with this Schedule 6.

2. Maintenance Services

2.1    The Provider shall provide the Maintenance Services to the Customer [during the Term].

2.2    The Provider shall provide the Maintenance Services in accordance with Annex 2 (Maintenance SLA) to this Schedule 6.

2.3    The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

2.4    Either party may terminate the Maintenance Services by giving to the other party at least 30 days' written notice expiring on or at any time after the first anniversary of the Effective Date.

2.5    If the Provider stops or makes a good faith decision to stop providing maintenance services in relation to the Maintained Software to its customers generally, then the Provider may terminate the Maintenance Services by giving at least 60 days' written notice of termination to the Customer.

2.6    If the Maintenance Services are terminated in accordance with the provisions of this Paragraph 2:

(a)    the Customer must pay to the Provider any outstanding Charges in respect of Maintenance Services provided to the Customer before the termination of the Maintenance Services;

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Maintenance Services that were to be provided to the Customer after the termination of the Maintenance Services; and

(c)    the provisions of this Paragraph 2, excluding this Paragraph 2.6, shall cease to apply, but the other provisions of this Agreement will continue notwithstanding such termination.

2.7    For the avoidance of doubt, the Maintenance Services shall automatically terminate upon the termination of this Agreement.

3. Support Services

3.1    The Provider shall provide the Support Services to the Customer during the Term.

3.2    The Provider shall provide the Support Services in accordance with Annex 1 (Support SLA) to this Schedule 6.

3.3    The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

3.4    Either party may terminate the Support Services by giving to the other party at least 30 days' written notice expiring on or at any time after the first anniversary of the Effective Date.

3.5    If the Support Services are terminated in accordance with the provisions of this Paragraph 3:

(a)    the Customer must pay to the Provider any outstanding Charges in respect of Support Services provided to the Customer before the termination of the Support Services;

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Support Services that were to be provided to the Customer after the termination of the Support Services; and

(c)    the provisions of this Paragraph 3, excluding this Paragraph 3.5, shall cease to apply, but the other provisions of this Agreement will continue notwithstanding such termination.

3.6    For the avoidance of doubt, the Support Services shall automatically terminate upon the termination of this Agreement.

4. Minimum Services commitment

4.1    If the time spent by the personnel of the Provider performing the Support Services and the Maintenance Services during any calendar month that is entirely within the Term does not exceed the agreed support hours in total, then the Charges in respect of that period shall be calculated as if the personnel of the Provider did spend such amount of time performing those Services during that period.

 

ANNEX 1 (SUPPORT SLA)

1. Introduction

1.1    This Annex 1 sets out the service levels applicable to the Support Services.

2. Helpdesk

2.1    The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Annex 1.

2.2    The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

2.3    The Provider shall ensure that the helpdesk is accessible by telephone, email and using the Provider's web-based ticketing system.

2.4    The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.

2.5    The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.

3. Response and resolution

3.1    Issues raised through the Support Services shall be categorised as follows:

(a)    extreme: the Supported Website is inoperable or a core function of the Supported Website is unavailable;

(b)    high: a core function of the Supported Website is significantly impaired;

(c)    medium: a core function of the Supported Website is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Supported Website is significantly impaired; and

(d)    low: any impairment of the Supported Website not falling into the above categories; and any cosmetic issue affecting the Supported Website; the addition of content to the Supported Website; and any minor layout or design changes to the Supported Website.

3.2    The Provider shall determine, acting reasonably, into which severity category an issue falls.

3.3    The Provider shall use all reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:

(a)    extreme 1 Business Hour;

(b)    high: 4 Business Hours;

(c)    medium: 1 Business Day; and

(d)    low: 5 Business Days.

3.4    The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

3.5    The Provider shall use all reasonable endeavours to resolve issues raised through the Support Services promptly, and in any case in accordance with the following time periods:

(a)    extreme: 2 Business Hours;

(b)    high: 8 Business Hours;

(c)    medium: 4 Business Days; and

(d)    low: 10 Business Days.

4. Provision of Support Services

4.1    The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

5. Limitations on Support Services

5.1    If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed the number of hours agreed <then:

(a)    the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and

(b)    the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.

5.2    The Provider shall have no obligation to provide Support Services in respect of any issue caused by:

(a)    the improper use of the Supported Website by the Customer; or

(b)    any alteration to the Supported Website made without the prior consent of the Provider.

 

ANNEX 2 (MAINTENANCE SLA)

1. Introduction

1.1    This Annex 2 sets out the service levels applicable to the Maintenance Services.

2. Updates

2.1    The Provider shall perform Updates to the Maintained Software atleast twice per calendar month.

2.2    The Provider shall apply each Update to the Maintained Software within the period of 20 Business Days following Release unless the Customer gives to the Provider prior written notice that the Provider should not apply the Update to the Maintained Software.

3. Upgrades

3.1    The Provider shall keep the Customer reasonably informed during the Term of the plans for the release of Upgrades by the Provider; however, except to the extent that the parties agree otherwise in writing, the Provider shall have no obligation to release Upgrades with features requested by the Customer or to take into account the opinions of the Customer in relation to its plans for the release of Upgrades.

 

SCHEDULE 7 (WEB MARKETING SERVICES)

1. Obligation to provide web marketing services

1.1    The Provider shall provide to the Customer any Search Marketing Services, Advertising Management Services, Email Marketing Services and Social Media Marketing Services specified in a Statement of Work or otherwise agreed by the parties in writing in accordance with this Schedule 7.

2. Search Marketing Services

2.1    The Provider undertakes to the Customer that it will not, in the course of providing the Search Marketing Services, use any technique that is in clear breach of the Google Webmaster Guidelines< (in the form published at the time the relevant technique is actively used).

2.2    The Customer acknowledges and agrees that:

(a)    search engine algorithms will change from time to time, which may affect website rankings in the search engine results pages, and the Provider has no control over such changes;

(b)    it can take months for the Search Marketing Services to have any significant effects upon the ranking of a website in the search engine results pages;

(c)    website promotion is an ongoing task and, should the Customer terminate this Agreement and/or stop promoting a website, that may have a negative impact upon the effects of the Search Marketing Services;

(d)    the Provider will not be responsible for any alterations to a website made by the Customer or any third party that reverse or otherwise affect changes made to that website by the Provider in connection with the Search Marketing Services; and

(e)    notwithstanding the Search Marketing Services, a website's search engine results page rankings and traffic levels may decrease as well as increase.

2.3    Subject to Clause 20.1 of the main body of this Agreement, and save as expressly provided elsewhere in this Agreement, the Provider does not give any guarantees in relation to the outcomes of the Search Marketing Services, and in particular does not guarantee that the Search Marketing Services will result in higher search engine results page rankings, increased website traffic, increased revenue or increased profits.

3. Advertising Management Services

3.1    The Provider shall ensure that the Advertising Management Services are provided in such a way as to meet, or have a reasonable prospect of meeting, the marketing objectives set out in a Statement of Work or otherwise agreed by the parties in writing.

3.2    The Customer shall supply to the Provider such marketing materials as the parties may have agreed in writing will be supplied by the Customer, and such other marketing materials as the Provider may reasonably request from the Customer. Such marketing materials shall be supplied in accordance with any timetable agreed by the parties, or promptly if no such timetable has been agreed. The parties acknowledge and agree that such marketing materials shall constitute Customer Materials for the purposes of this Agreement.

3.3    The Provider shall give to the Customer written notice of the form of each new or modified advertisement created by the Provider on behalf of the Customer through the Advertising Management Services. Such notice shall be given at least 10 Business Days before the proposed first publication date of the new or modified advertisement.

3.4    The Provider shall, within 10 Business Days following receipt of notice of a new or modified advertisement, either approve, reject or request modifications to the advertisement, in each case in writing. The Customer must not publish an advertisement unless it has received the Provider's approval in writing.

3.5    Without prejudice to any other rights the Customer may have, the Customer may at any time request (in writing) that the Provider arrange for an advertisement published through the Advertising Management Services to be removed from publication; and following receipt of such a request the Provider must seek to remove the relevant advertisement from publication as soon as reasonably practicable.

3.6    The Provider shall be responsible for paying third party services providers in respect of fees for advertisements published through the Advertising Management Services, providing that the Provider shall pass those advertising fees on to the Customer through the Charges.

4. Email Marketing Services

4.1    The Customer shall ensure that any email addresses and associated personal information provided by or on behalf of the Customer to the Provider for use in connection with the Email Marketing Services has been collected in accordance with applicable law, and that the use of such information by the Provider in accordance with this Agreement or the instructions of the Customer will not breach any applicable law.

5. Social Media Marketing Services

5.1    Each party must comply with the terms and conditions of the Social Media Platforms in respect of its activities relating to the Social Media Marketing Services and this Agreement more generally.

5.2    Subject to Clause 20.1 of the main body of this Agreement, but notwithstanding any plans or projections communicated by the Provider to the Customer, the Provider does not give any guarantees in relation to the outcomes of the Social Media Marketing Services, and in particular does not guarantee that the Social Media Marketing Services will result in increased website traffic, user engagement, revenue or profits.

6. Customer web marketing obligations

6.1    The Customer shall provide to the Provider:

(a)    assistance in determining appropriate keywords and keyword phrases to be targeted using the Services;

(b)    such articles, blog posts and other written materials as the Provider may reasonably request in connection with the performance of the Services;

(c)    direct access to analytical data concerning the Customer's relevant websites, such as data concerning referral sources, visitor activity, website usage, conversion rates and similar; and

(d)    an email account using a relevant Customer domain name.

6.2    The Customer acknowledges that the promotion of a website may lead to increased bandwidth, processing capacity and/or storage requirements for the website, and the Customer shall be responsible for arranging and paying for any services required to meet such requirements.

7. Marketed Websites

7.1    The Customer shall provide to the Provider, promptly following receipt of a written request from the Provider, the facilities to access and make changes to the Marketed Websites to the extent reasonably necessary to enable the Provider to fulfil its obligations under this Agreement.

7.2    The Customer must not reverse, revert or materially alter any changes to the Marketed Websites made by or upon the instructions of the Provider in the course of providing the Web Marketing Services without obtaining the Provider's prior written consent.

7.3    The Customer must not use the Marketed Websites:

(a)    to host, store, send, relay or process any material; or

(b)    for any purpose,

        which is unlawful, illegal or fraudulent, or which breaches any applicable laws, regulations or legally binding codes, or infringes any third party rights, or may give rise to any form of legal action against any person.

8. Online Accounts

8.1    The Provider shall have and retain all rights to any Online Accounts that were created by or on behalf of the Provider before the Effective Date or were used by the Provider in the connection with the fulfilment of the Provider's obligations under this Agreement only after they had been used by the Provider to provide services to one or more third parties. The Provider shall have no obligation to provide to the Customer any access to such Online Accounts, whether during or after the Term.

8.2    The Customer shall have and retain all rights to any Online Accounts that are created by the Customer or by any third party on behalf of the Customer, whether or not the Customer provides to the Provider login details to enable the Provider to utilise those Online Accounts. The Provider must not take any action that will prevent the Customer from continuing to access and use such Online Accounts. The Provider must not without the prior written consent of the Customer use such Online Accounts after the end of the Term.

8.3    If the Provider creates any Online Accounts after the Effective Date (excluding accounts that the Provider uses to provide services to a third party customer before use in connection with the fulfilment of the Provider's obligations under this Agreement), then the Customer shall have and retain all rights to such Online Accounts. The Provider must promptly following receipt of a written request from the Customer supply to the Customer login details for such Online Accounts. If the Provider has not previously done so, the Provider must promptly following the end of the Term supply to the Customer login details for such Online Accounts, and the Provider must not itself use any such Online Accounts after the end of the Term without the prior written consent of the Customer.

8.4    The parties may from time to time agree in writing derogations from the rules set out in this Paragraph 8 relating to the Online Accounts.

9. Intellectual Property Rights

9.1    The Provider hereby assigns to the Customer with full title guarantee all of the Intellectual Property Rights in the Web Marketing Deliverables, whether those Intellectual Property Rights exist on the Effective Date or come into existence during the Term, excluding the Intellectual Property Rights in the Customer Materials and the Third Party Materials. This assignment is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals, and includes the right to bring proceedings for past infringements of the assigned rights. This assignment shall take effect in respect of a work upon the delivery of that work to the Customer.

9.2    To the maximum extent permitted by applicable law:

(a)    the Provider irrevocably and unconditionally waives all moral rights (including rights of paternity and rights of integrity) in respect of the Web Marketing Deliverables to which the Provider may at any time be entitled; and

(b)    the Provider undertakes to ensure that all individuals involved in the preparation of the Web Marketing Deliverables will irrevocably and unconditionally waive all moral rights (including rights of paternity and rights of integrity) in respect of the Web Marketing Deliverables to which they may at any time be entitled.

10. Termination of these Services

10.1  Either party may terminate the Services specified in a Statement of Work and supplied or to be supplied under this Schedule 7 by giving to the other party at least 30 days' written notice of termination expiring at any time after the end of the Minimum Term.

10.2  If the Services under this Schedule 7 are terminated in accordance with the provisions of this Paragraph 10:

(a)    the Customer must pay to the Provider any outstanding Charges in respect of those Services provided to the Customer before the date of effective termination of those Services;

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of those Services that were to be provided to the Customer after the date of effective termination of those Services; and

(c)    this Agreement will continue notwithstanding such termination.

10.3  For the avoidance of doubt, Services supplied or to be supplied under this Schedule 7 shall automatically terminate upon the termination of this Agreement.

 

SCHEDULE 8 (DATA PROCESSING INFORMATION)

  1. Categories of data subject
  • Customer’s contacts and end users such as Customer’s employees, contractors, collaborators, customers, prospects, suppliers and subcontractors.
  • Individuals attempting to communicate with or transfer Personal Data to the Customer.
  1. Types of Personal Data
  • Contact Information, such as name and email address
  • Navigational data, such as website usage information, email data, system usage data, application integration data, and other electronic data submitted, stored, sent, or received by end users via the hosting servers.
  1. Purposes of processing
  • Personal Data will be processed for purposes of providing the website maintenance, support, hosting, backups or development services set out and otherwise agreed to in the agreement
  1. Security measures for Personal Data
  • Servers protected by firewall, SSL encryption and two factor authentication
  • Website(s) protected by additional website firewall and strong passwords
  • Laptops encrypted and strong passwords enforced
  1. Sub-processors of Personal Data
  • Amazon Web Services for backup storage
  • Linode (London UK) for server hardware
  • SendGrid for email delivery through server, e.g. contact forms
  • Accelo for CRM and tickets for support requests
  • Google GSuite for file storage and emails between Provider and Customer