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sting Agreement 17 ................... Website Hosting Agreement 14 SCHEDULE 1 Hosting Services Website Hosting Agreement 15 SCHEDULE 2 Service Fee Website Hosting Agreement 16 SCHEDULE 3 Trademarks Website Hordance with English Law. SIGNED by ) on behalf of THE DESIGNER ) ......................................................... SIGNED by ) on behalf of THE CLIENT ) ......................................n any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999. 25. ENGLISH LAW This Agreement shall be governed by and construed in accoreement freely, without duress and with the opportunity to obtain independent legal advice. 24. RIGHTS OF THIRD PARTIES This Agreement does not except as otherwise expressly stated confer any rights o relation to its subject-matter and supersedes all previous agreements whether written or oral or by implication between the Parties in relation to its subject-matter. The Parties have entered this Agr its equivalent in any country) by a party and only duly authorised representative of the other party. 23. ENTIRE AGREEMENT This Agreement shall constitute the entire agreement between the Parties inof a valid fax confirmation sheet. 22.3 Any notice, which affects the validity or existence of this Agreement shall only be delivered personally or sent by recorded delivery first class letter post (oansmission and shall be deemed to have been served, if by hand when delivered, if by post or airmail 48 hours after posting, if by email or facsimile transmission when despatched, and upon production egistration is not required, to its principal office. Any notice may be delivered personally or (within a country) by first class prepaid letter post (or the equivalent), or by airmail or facsimile trvisions of this clause. Website Hosting Agreement 13 22.2 Failing any such address being so set out or designated, notices shall be sent to the recipient's registered office or in a country where rbe given shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with the proonstrued as causing a partnership or a contract of employment between the parties. 22. NOTICES 22.1 Unless expressly stated otherwise elsewhere in this Agreement, all notices which are required to onflict between the provisions of this Agreement, the Outline Conduct Policy and the Schedules the provisions of this Agreement shall prevail. 21. NO PARTNERSHIP Nothing in this Agreement shall be cffected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement. 20. CONFLICT In the event of ambiguity or cparty's obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure. 19.3 As soon as practicable after an event of Force Majeure arises, the party as or failures to approve) of any government or government agency. 19.2 If a party is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, then that ation where the Hosting Company ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act or omission (including laws, regulations, disapprovalebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, transportation embargo, failure or delay in transportation, including without limitorce Majeure' means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rs signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or 18.5.3 is required by law to be disclosed. Website Hosting Agreement 12 19. FORCE MAJEURE 19.1 `Feement do not extend to information that: 18.5.1 was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; 18.5.2 is, or after the day this Agreement iompletion of the Hosting Services. 18.4 The parties' obligations to keep information confidential will survive the termination of this Agreement. 18.5 The obligations of confidentiality under this Agrntiality undertaking in a form approved by the other party. 18.3 All documents and other materials containing Confidential Information of either party will be returned to that party immediately upon cion of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidesing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information. 18.2 Either party may disclose Confidential InformatL INFORMATION 18.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each discloing or assets of such party; 17.2.6 cease or threaten to cease to carry on business; and 17.2.7 have any similar event occur under the law of any other jurisdiction in respect of it. 18. CONFIDENTIAeditors or become Website Hosting Agreement 11 subject to an administration order; 17.2.5 have a receiver or manager or similar official appointed over the whole or substantial part of its undertakention to appoint an administrator by that party or its directors or by a qualifying floating charge holder as provided in of the Insolvency Act 1986. 17.2.4 make any voluntary arrangement with its cr of competent jurisdiction shall make an order to that effect; 17.2.3 have an administrator appointed or documents are filed with the court in respect of such appointment or notice is served of an int)] days after receipt of a written request so to do; 17.2.2 pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a courtarty shall: 17.2.1 commit any material breach of any of its obligations under this Agreement which (in the case of a breach capable of being remedied) shall not have been remedied within [fourteen (14nt contained in this Agreement are false or inaccurate in any material way. 17.2 Either party shall be entitled to terminate this Agreement immediately by notice in writing to the other if the other p not remedied by the Client within [seven (7)] days after receipt by it of a notice in writing requiring the default to be remedied; or 17.1.4 any of the warranties or representations made by the Clieriting requiring the default to be remedied; 17.1.3 the Client fails to perform any of the obligations on its part to be observed or performed pursuant to the Online Conduct Policy and such failure isny of the obligations on its part to be observed or performed pursuant to this Agreement and such failure is not remedied by the Client within [fourteen (14)] days after receipt by it of a notice in wamount to the Hosting Company due under this Agreement and does not make that payment within [seven (7)] days after receiving notice requiring the Client to do so; 17.1.2 the Client fails to perform aement. Website Hosting Agreement 10 17. TERMINATION 17.1 The Hosting Company may terminate this Agreement by notice in writing to the Client in the event that: 17.1.1 the Client fails to pay any Client a non-exclusive and nontransferable licence to use such works, items, materials and information for such purposes as are necessary in connection with the Web site for the duration of this Agreth this Agreement and if the works, items, materials or information referred to in clause 16.1 have been produced by the Hosting Company as part of the Hosting Services, the Hosting Company grants thee Hosting Company, whether such property is tangible or is in the nature of Intellectual Property (including copyright and rights of Confidential Information). 16.2 If the Client has fully complied wie produced or developed by the Hosting Company or under the Hosting Company's direction pursuant to or in the course of providing the Hosting Services shall remain the sole and complete property of thd properly incurred by the second party in defending any such action, proceeding claim or demands. 16. TITLE 16.1 The Client agrees that any works, items, materials or information of whatever naturnt whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise. 15.2 The indemnity extends to and includes all costs, damages and expenses reasonably an the second party any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, employees or agents in any way connected with this Agreeme agents (`the second party') against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted againsts by the Client or by another third party. 15. INDEMNITY 15.1 Each party (`the first party') indemnifies and undertakes to keep indemnified the other party, its officers, employees, contractors andther sites and that it will not divert any Client complaints or concerns to the Hosting Company. 14.4 The Hosting Company shall not be liable for defects resulting from improper use of Hosting Serviceputer Virus and will not damage or corrupt any other data or system; and Website Hosting Agreement 9 14.3.4 that it is solely responsible for communicating with persons who access its websites or oy standard, and take all other reasonable steps to ensure that any software used in connection with Hosting Services, and any material or data provided to the Hosting Company will be free from any Com any representation made by the Hosting Company which has not been expressly set out in this Agreement; 14.3.3 it shall install and maintain Computer Virus protection software of not less than industrtted by the Client to the Hosting Company under this Agreement will not infringe the rights of any person or contravene any law; 14.3.2 at the time of entering into this Agreement it is not relying on not knowingly infringe the Intellectual Property rights of any third party. 14.3 The Client to the Hosting Company warrants that: 14.3.1 the use by the Hosting Company of any works or Materials submi will be provided by appropriately qualified and experienced Personnel using all reasonable care and skill; 14.2.2 will in all material respects substantially comply with the Schedule; and 14.2.3 willm its obligations under this Agreement; and 14.1.2 it has the ability to perform its obligations under this Agreement. 14.2 The Hosting Company warrants to the Client that the Hosting Services: 14.2.1ute discretion sub-contract the performance of any of its obligations under this Agreement. 14. WARRANTIES 14.1 Each party warrants to the other that: 14.1.1 it has authority to enter and to perforg Agreement 8 Company's business and is necessary for the orderly and efficient provision of its hosting services to clients. 13. PERSONNEL AND SUB-CONTRACTORS The Hosting Company may in its absol Policy as published from time to time on the Hosting Company's Website at [insert URL]. The Hosting Company's Online Conduct Policy is a standard policy for the conduct of the Hosting Website Hostinapply to the communications means by which the Client obtains access to the Hosting Services. 12. ONLINE CONDUCT The Client acknowledges that it will comply with the Hosting Company's Online Conductll telecommunications services, computers and other equipment or services necessary to enable it to have access to the Hosting Services. The Client must comply with all the rules and regulations that f agreement in the form `This Website is hosted by the Hosting Company' and shall appear at the bottom of the Client's home page. 11. EQUIPMENT AND ACCESS The Client must provide, at its own cost, a Client's computers and racks. 10.2 The Client agrees to provide a link to the Hosting Company's home page from the Client's home page. This link shall be as agreed between the parties or in default ochedule 3 of the Schedule for the following purposes: 10.1.1 Use on the Hosting Company's website; 10.1.2 Use in the Hosting Company's written documentation; and 10.1.3 Data Centre signage to indicateCompany pursuant to this Agreement is required. 10. MARKETING 10.1 The parties acknowledge and agree that Hosting Company may use the Client's names, logos, domain names and trademarks set out in S Property owned by a third party and required for the performance by the Hosting Company of its obligations under this Agreement and for the period during which the use of those rights by the Hosting n with the Internet domain names attaching to the respective Website. The Client will procure for the Hosting Company a licence on a nonexclusive, royalty-free basis, to use any existing Intellectualedges and agrees that the Client will own: 9.6.1 all Intellectual Property in the Client Content of the Website; and 7 9.3 9.4 9.5 9.6 Website Hosting Agreement 9.6.2 9.7 all rights in connectiorials for the duration of this Agreement. The Client may not modify the Hosting Company' Materials for any purpose without the prior written consent of the Hosting Company. The Hosting Company acknowlm or in a form modified for the Client's use. Subject to the Client not being in breach of this Agreement, the Hosting Company grants to the Client a non-exclusive royalty-free licence to use the Mateoduced or created by the Hosting Company or on its behalf or provided by the Hosting Company will remain permanently with the Hosting Company regardless of whether such Material is in its original fore Client acknowledges and agrees that the Hosting Company will own all Intellectual Property in connection with the Hosting Company's Materials and that all other Intellectual Property in Materials prling that party's obligations under this Agreement and for the period during which the use of that Intellectual Property by that party pursuant to this Agreement is required. Subject to clause 9.6, thparty and required for the performance by the other party of its obligations under this Agreement shall be licensed to that other party on a non-exclusive, royalty-free basis for the purpose of fulfilment. 9. 9.1 9.2 OWNERSHIP The parties acknowledge that this Agreement does not have the effect of transferring the ownership of any Intellectual Property. Any Intellectual Property owned by either erved or performed in the event the Client: 8.6.1 8.6.2 fails to pay any sums due to the Hosting Company under this Agreement; or otherwise defaults in the due observance and performance of this Agreey paid to it pursuant to the terms of this Agreement, refuse to commence, complete or deliver any work or otherwise comply with the provisions of this Agreement on the Hosting Company's part to be obsimiting any other right or remedy available to the Hosting Company, the Hosting Company may on giving [seven (7)] days written notice, and without having to account for or to repay any money previousl addition to the arrears, interest at the rate of three (3%) per annum on all arrears for each day during which the default continues. 8.2 8.3 8.4 8.5 Website Hosting Agreement 6 8.6 Without lwill be agreed on in writing in advance between the parties and invoiced separately. If the Client is in arrears in any payment due to the Hosting Company under this Agreement, the Client will pay, inacknowledges that there may be additional charges or Expenses in relation to additional services required by the Client beyond those set out in this Agreement. Any such additional charges or Expenses any's invoice is sent. The Client shall reimburse the Hosting Company for all agreed Expenses reasonably incurred by the Hosting Company in performing its obligations under this Agreement. The Client VAT. The Client will pay the Hosting Company the Service Fees for the Hosting Services as specified and calculated in item 2 of the Schedule within [fourteen (14)] days after the date the Hosting Comp1 CHARGES AND PAYMENT The parties agree that unless expressly stated in writing by the Hosting Company all fees, charges and payments set out in this Agreement or any Schedule to it are exclusive of ion of Client Content on the Website. 7. TERM This Agreement will commence on [ ][ ] 200[ ] and will subsist for a period of [ ] months unless earlier terminated in accordance with its terms. 8. 8.d party providers from all liabilities, demands, costs and expenses (including legal expenses) arising in connection with any Client Content including but not limited to the posting and / or transmisshours thereafter notify the Client of its removal. 6.3 The Client shall indemnify and hold harmless the Hosting Company and its affiliates, employees, agents, contractors, directors, officers and thirtion of applicable law, the Hosting Company may without prior 6.2 Website Hosting Agreement 5 notice or any liability remove that Client Content from the Website and shall within twenty-four (24) ing Company reasonably forms the view that the Client Content of any Website may be pornographic, defamatory, misleading or deceptive or otherwise in breach of any third party's rights or in contraven or functionality of the Client Content in the form in which it is provided by the Client or as modified upon and in accordance with the Client's instructions for inclusion on the Website. If the Hostng in the normal course of business, wasted management or staff time (vii) loss or corruption of data. 5.4.2 6. 6.1 CLIENT CONTENT The Hosting Company will not be responsible for the accuracy and /oss of profits (whether categorised as direct or indirect) (iv) losses arising from business interruption (v) loss of business revenue, goodwill, anticipated savings (vi) losses whether or not occurrir however arising, for any Consequential Loss. `Consequential Loss' shall for these purposes mean (i) pure economic loss (ii) losses incurred by any customer of the Client or other third party (iii) lting Services; and in no event shall the Hosting Company be liable to the Client whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation oory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the Service Fees received in relation to the Hosnegligence; or from fraudulent misrepresentation or fraud. Subject to sub-clauses 5.2 and 5.3: 5.4.1 the Hosting Company's total liability in contract, tort, (including negligence or breach of statuthe fullest extent permitted by law. 5.3 Nothing in this Agreement excludes or limits the liability of the Hosting Company for: 5.3.1 5.3.2 5.4 death or personal injury caused by the Hosting Company's lient may have under 4 5.2 Website Hosting Agreement applicable law in all warranties, conditions and other terms implied by statute or common law are excluded from the terms of this Agreement to the Hosting Services for the Client's purposes other than those conditions, warranties, undertakings or representations expressly set out in this Agreement. With the exception of any rights which the Cicable. 4.2 4.3 5. 5.1 LIMITATION OF LIABILITY The Hosting Company gives no condition, warranty, or undertaking, and makes no representation to the Client about the suitability of, or fitness of tnterruptions to its ability to provide the Hosting Services. The Hosting Company agrees to rectify faults or problems and to restore the system to full operational capacity as soon as reasonably practty problems or other causes outside its control. In the event of any such interruptions the Hosting Company will notify the Client by email or facsimile as soon as reasonably practicable of any such iervers, and equipment may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectiviovide the Hosting Services to the Client on the terms and conditions of this Agreement and as set out in Schedule 1. 4. 4.1 AVAILABILITY The Client acknowledges that the Hosting Company's systems, stted assigns. 2.1.5 2.2 Headings have been inserted for convenience only and shall not affect the interpretation of this Agreement. 3. PROVISION OF THE HOSTING SERVICES The Hosting Company will pr partnership, corporation, trust, association, an unincorporated body, authority or other entity; and a reference to a person includes that person's legal personal representative, successors and permiing Agreement 3 2.1.2 2.1.3 2.1.4 the singular includes the plural and vice versa; a reference to a gender includes all other genders; a reference to a person or entity includes a natural person, aTERPRETATION In this Agreement, unless the context otherwise requires: 2.1.1 a reference to any document is a reference to that document as varied, novated or replaced from time to time; Website Hostas specified in clause 7 of this Agreement and; means the Client's website or sites as hosted by the Hosting Company. `Online Conduct Policy' `Personnel' `Service Fee' `Term' `Website' 2. 2.1 INhedule 2 to be paid by the Client for the performance by the Hosting Company of its obligations under this Agreement; means the period between the Commencement Date and the end date of this Agreement on which the Client agrees to utilise the Hosting Company's network, systems, products and services; means any employees, officers, agents or contractors of either party; means the fee specified in Schts; `Materials' means all materials owned by a party used in the provision of the Hosting Services, including software programs and source code; means the policy setting out the terms and conditions ights, software programmes and source code and all variations, modifications or enhancements to each of them together with any application or right to apply for registration or protection of those rig) including without limitation Confidential Information, business names or logos, domain names, copyright, database rights, patents, trade or service marks, designs, software, computer data, generic rAgreement anywhere in the world (including present and `Expenses' `Excusable Downtime' `Hosting Services' `Intellectual Property' Website Hosting Agreement 2 future intellectual property rightspany under the Agreement; means those services provided to the Client as described in Schedule 1 to this Agreement; means all intellectual property rights relating to or owned by either party to this er than any defect caused by an act or omission the Hosting Company), any incompatibility between platform software and content and any defect in any software provided by the Client to the Hosting Comrvices or Website is unavailable as a direct consequence of any breach of the Agreement by the Client, the negligence of the Client or its employees, servants or agents, any defect in any Website (othpany in acquiring anything reasonably necessary for it to perform the requirements imposed on it by this Agreement; means any period of scheduled maintenance and any period during which any Hosting Se, plans and models; `Data Centre' means the premises at [insert address] from which the Hosting Company is to provide the Hosting Services; means the out of pocket expenses incurred by the Hosting Comprojections, arrangements and agreements with third parties, customer information and customer information proprietary to customers, formulae, suppliers, concepts not reduced to material form, designsty (whether disclosed before or after the date of this Agreement), including but not limited to trade secrets, drawings, know-how, techniques, source and object code, business and marketing plans and ed software; means all information passing from one party to the other party relating to the business of `Computer Virus' `Confidential Information' Website Hosting Agreement 1 the disclosing parhall commence as specified in clause 7 of this Agreement; means any programs or data incorporated into software or data that disrupts the proper operation of a computer hardware system or the associatement: `Agreement' `Client Content' `Commencement Date' means this web hosting agreement; means all materials created or supplied by the Client to Hosting Company; means the date upon which the Term side Hosting Services to the Client as set out in the Schedule to this Agreement. 1. DEFINITIONS Unless expressly stated otherwise the following definitions shall apply to the terms used in this Agrerovide Hosting Services from the Data Centre unless otherwise agreed by the Client. The Client has requested that the Hosting Company to provide Hosting Services and the Hosting Company agrees to provred to as "the Client") Recitals: (1) (2) (3) The Hosting Company will provide the Hosting Services to the Client on the terms and conditions as set out in this agreement. The Hosting Company shall pd office or principal place of business] is at [ (hereinafter referred to as "the Hosting Company") ] [A CLIENT] whose [registered office or principal place of business] is at [ ] (hereinafter refer use of these materials is subject to the "Terms and Conditions" found at findlegalforms.com. WEBSITE HOSTING AGREEMENT THIS AGREEMENT is made the BETWEEN: (1) (2) day of 200 [ ] whose [registere INTERRUPTION) HOWEVER USED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THESE MATERIALS. TheOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATE OR PROFITS; OR BUSINESS NEEDS. THE MATERIALS ARE USED AT YOUR OWN RISK. IN NO EVENT WILL: I) FLF, ITS AGENTS, PARTNERS, OR AFFILIATES; OR II) THE PROVIDERS, AUTHORS OR PUBLISHERS OF ITS MATERIALS, BE RESPONSIBLE OR LIABLE F these materials. THESE MATERIALS ARE PROVIDED "AS-IS." FLF DOES NOT GIVE ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY OR COMPLETENESS FOR ANY OF THE MATERIALS FOR YOUR PARTICULAR Only an attorney / solicitor can provide legal advice. An attorney/solicitor should be consulted for all serious legal matters. No Attorney-Client / Solicitor-Client relationship is created by use oflause 8 Clause 10 Clause 12 Clause 19 DISCLAIMER: FindLegalForms, Inc. ("FLF") is not a law firm and does not provide legal advice. The use of these materials is not a substitute for legal advice.the link if appropriate in this clause. This clause specifically includes power shortages and access to the internet as force majeur events which they cannot be held liable for. Clause 5 Clause 6 Cay object to this clause and its insertion will often be a matter for individual negotiation. Most Host companies will already have an acceptable `online conduct policy'. The Host will need to insert lause provides for the Host to use the client's name and its trade marks for marketing and promotional reasons. The trade marks to be used can be incorporated in this section. Obviously some clients m Generally Host companies vary in how they calculate their charges. Payment can be a flat charge or sometimes linked to the volume of traffic or the amount of data transmitted from the website. This cill note in clause 8.2 it refers to the Service Fees as set out in schedule 2 at the back of the agreement. The Host will need to set out in this schedule it services and the fees it wishes to charge.appearing on websites hosted by them. The indemnity in clause 6.3 should therefore not be deleted as it provides some protection to the host. This clause sets out the payment terms for the Host. You w The client is responsible for the content of the websites. However in in some jurisdictions it has been held that hosting companies could be liable for inappropriate content or defamatory statements ending on the negotiating size and the relationship of the parties this may or may not be enforceable by the courts. The courts will decide on the facts whether it is reasonable to have such a clause.rotects the Host form any liability to the websites being inoperative for any reason. This clause limits the liability of the Host to the amount he has been paid by the client under the agreement. Deping, email forwarding, website maintenance and website management generally. Clause 4 Most online businesses will require their website to be available 24 hours a day, 365 days a year. This clause pies complete this section as precisely as possible setting out payment details, contact details and the services to be provided. In addition to normal hosting services the Host may provide virus scannement. We would refer you to the following clauses: Clause 3 You will note that this clause refers to the services to be provided by the Host as set out in schedule 1. It is imperative that the partbering within square brackets this means that you must check the clause numbering to ensure that the clause numbers referred to are still correct if you have changed or deleted any clauses of the agres. These square brackets mean that this is an instruction to you and you will need to either fill in the missing information or delete or amend the wording as appropriate. Where you see the clause numents clear uncomplicated language has been used throughout and therefore the terms will be self-explanatory. You will see throughout the agreement blank spaces or words contained within square bracketl sets out the basic provisions for a hosting agreement without covering these service levels in detail. These will obviously need to be agreed between the parties individually. As with all our agreem the host must provide will also alter depending on the size of the website, the proposed volume of traffic, the security required for content and the requirements for connectivity. This agreement wil.e. the client's website is hosted on a single server which only which only contains the client's website, or the server stores a number of different clients' websites and their content). The services conditions for that host company. Hosting services typically comprise the storage of a web site and its content on a service provider's server. Such hosting services may be `dedicated' or `shared' (iCOMMENTARY Website Hosting Agreement This website hosting agreement has been drafted principally form the perspective of the hosting company and it is intended that this would be a standard terms and