Hosting Terms & Conditions

Hosting Services

The Agency will provide Hosting Services to the Client as of the Hosting Commencement Date in accordance in all material respects with the Hosting Service Levels.

Subject to payment by the Client of the Hosting Charge within 7 days of receipt of invoice from the Agency, the Agency will provide the Hosting Services for the duration of the Hosting Term as detailed in the Brief.

Liability

The Agency accepts liability for its own negligence or faults in the Deliverables, but only to the extent stated in this clause. The Agency does not exclude or restrict its liability for death or personal injury resulting from negligence. The Agency’s liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to the Agency’s charges for the Deliverables.

The Agency will not be liable to the Client for any loss or destruction of software or systems, temporary or otherwise, which occurs following use of the Deliverables except and to the extent that it is caused by the wilful default of one of the Agency’s employees. Although the Agency will endeavour to ensure that the Deliverables contain no software routine designed to permit unauthorised access, disable or erase existing software or software contained in the Deliverables or any data or hardware, the Agency shall not, except insofar as it cannot exclude its liability for death or personal injury caused by its negligence, be liable for any damage (physical or otherwise), loss or expense caused either directly or indirectly by use of the Deliverables.

The Agency shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Deliverables by a third party. Where such event could not reasonably have been prevented or controlled by the Agency, the Agency is not liable to the Client if any hardware or software used in conjunction with the Deliverables malfunctions, fails or is otherwise unable to communicate with other systems or Internet users (including where computer viruses have caused such failures) such that the use of the Deliverables is hindered or impeded. In any event the Agency is not liable to the Client for the following loss or damage, howsoever caused and even if foreseeable by the Agency:

1. Economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description;
2. Loss arising from any claim made against the Client by any other person; or
3. Loss or damage arising from the Client’s failure to fulfil its responsibilities or any matter under the control of the Client.
4. This clause sets out the entire financial liability of the Agency (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of any breach of this Contract; any use made by the Client of the Services and/or Deliverables in whole or in part; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract:
5. Except as expressly set out in this Contract, all warranties, conditions and other terms implied by statute or common law or otherwise are, to the fullest extent permitted by law, excluded from this Contract.
6. Nothing in this Contract limits or excludes the liability of the Agency for death or personal injury resulting from negligence; or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Agency, or for any liability which cannot be excluded or limited as a matter of law.
7. Subject to clause 3 above:

1. 1. The Agency shall not be liable for loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
   2. The Agency shall not be liable to the Client for any loss or destruction of software or systems, temporary or otherwise, which occurs following use of the Deliverables;
   3. Although the Agency will use reasonable endeavours to ensure that the Deliverables contain no software routine designed to permit unauthorised access, disable or erase existing software or software contained in the Deliverables or any data or hardware, the Agency will not be liable for any damage (physical or otherwise), loss or expense caused either directly or indirectly by use of the Deliverables;
   4. The Agency shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Deliverables by a third party;
   5. Where such event could not reasonably have been prevented or controlled by the Agency, the Agency is not liable to the Client if any hardware or software used in conjunction with the Deliverables malfunctions, fails or is otherwise unable to communicate with other systems or Internet users (including where computer viruses have caused such failures) such that the use of the Deliverables is hindered or impeded;
   6. The Agency shall not be liable for the loss arising from any claim made against the Client by any other person; or loss or damage arising from the Client’s failure to fulfil its responsibilities or any matter under the control of the Client;
   7. The Agency’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited to;
      1. Where the breach relates to the Hosting Services, to the annual Hosting Charge applicable to the Client at the date of the breach or where the Hosting Charge is calculated on a monthly basis, to 12 x the monthly Hosting Charge applicable to the Client as at the date of the breach;
      2. Where the beach does not relate to the Hosting Services and:
      1. 1. The Services are provided in their entirety for a fixed Job Cost in accordance with condition 5, to the fixed Job Cost paid or payable to the Agency by the Client; or
         2. The Services are provided solely on a time and materials basis in accordance with condition 5 and/or the Job Cost is calculated by a combination of fixed price and on a time and materials basis:
            1. Where the breach occurs before the first anniversary of the Services Start Date (as defined in condition 3.1 above), to the amount paid or payable to the Agency by the Client in respect of the Services to which the default relates (excluding any applicable  Hosing Charges) from the Services Start Date up to the date of the breach; or
            2. Where the Services continue for a period greater than 12 months, starting on the Services Start Date, to the amount paid or payable by the Client to the Agency in respect of the Services to which the default relates (excluding any applicable Hosting Charges) in the 12 month period prior to the breach.

Where applicable:

1. The Client may terminate the Contract in respect of Hosting Services on giving the Agency a minimum of 30 day’s advance written notice such notice to expire on the anniversary of the Hosting Commencement Date or any anniversary thereafter; and
2. The Agency shall be entitled to terminate the Contract in respect of Hosting Services at any time on giving the Client 14 day’s written notice.

Force majeure

The Agency shall have no liability to the Client under this Contract if it is prevented from or delayed in performing its obligations under this Contract from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Agency or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of the Agency’s or sub-contractors.

Matters beyond the Agency’s reasonable control

The Agency is not liable for any breach of this Contract caused by matters beyond its reasonable control including acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving the Agency’s employees), weather of exceptional severity or acts of local or central government or other authorities.