1.2 Content. Client shall post all materials comprising the Website, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the “Client Content”), which shall be in a correct format (as specified by Host in consultation with Client). Client acknowledges that Website construction and management is Client’s responsibility. Host shall not be responsible for Website management or files lost or damaged by Client. Host recommends that Client maintain backups of content outside of space associated with the Hosting Services. Host maintains system backups that are intended only to recover from system failure. The system backups are not intended for restoration of files to individual sites.
1.3 Availability of Website. Unless otherwise indicated on Schedule A hereto, the Website shall be accessible to third parties via the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of Hosting Services, Client’s sole and exclusive remedy and Host’s sole and exclusive liability for any loss or interruption of Hosting Services shall be as follows: for loss or interruption of Hosting Services which is due to (i) causes other than scheduled maintenance and required repairs; (ii) causes beyond the control of Host; or (iii) causes which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Hosting Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future Hosting Services equal to a pro rata portion of Hosting Services fees for the period of downtime.
1.4 Additional Storage and Transfer. Client agrees that it will not exceed the bandwidth or storage space limits applicable to the purchased Hosting Services. In the event that the Website exceeds the limits included in the Hosting Services, or should Client request or require increased limits, Host will automatically bill Client for any such upgrade in the level of Hosting Services, or the additional incremental storage required by Client’s use to be included in the Hosting Services, on a time and materials basis and in accordance with the fee schedule set forth in the plan that includes the appropriate storage amounts.
1.5 Updates. Updates to the Website shall be the sole responsibility of the Client. Host shall provide the necessary SFTP access to allow Client to make the updates.
2.2 Proprietary Rights of Host. All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Host or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Host to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “Host Materials”) shall remain the sole and exclusive property of Host or its suppliers. To the extent, if any, that ownership of the Host Materials does not automatically vest in Host by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Host all rights, title and interest which Client may have in and to the Host Materials. Client acknowledges and agrees that Host is in the business of hosting Websites, and that Host shall have the right to provide to third parties services which are the same or similar to the Hosting Services, and to use or otherwise exploit any Host Materials in providing such services.
2.3 Confidentiality. Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party; (ii) was known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.
3.2 Acceptable Use Policy. Host does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by Client via the Website. An Acceptable Use Policy (“AUP”) is in effect for the Hosting Services. Any violation of the AUP may result in the immediate cancellation or suspension of any or all Services without warning.
4.2 Chargeback. If Client initiates a chargeback with the provider of a credit card or initiates a similar action to a payment provider allowed by Host for charges billed by Host for Hosting Services, Hosting Services will be immediately suspended without notice. Reestablishment of service following a chargeback or similar action will require sufficient explanation for the action and payment of the disputed charge and/or Host’s bank dispute fee.
4.3 Increase in Fees. Host expressly reserves the right to change the fees charged hereunder for the Hosting Services with advanced notice to the Client. If Client does not agree to any such pricing change, it may cancel the Hosting Services within thirty (30) days from the date of your notice; otherwise all such changes shall be effective with respect to Client’s account and Client agrees that Host is authorized to charge the payment method provided by Client for any new Hosting Services Fee, on the next monthly or annual (as applicable) payment cycle.
4.4 Additional Services Fees. Unless otherwise agreed in writing, Client shall pay to Host all fees for Additional Services on a time and materials basis as invoiced by Host.
4.5 Breach for Failure to Pay. Failure of Client to fully pay any fees within sixty (60) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Host, and will be sufficient cause for immediate termination of this Agreement by Host. Any such suspension does not relieve Client from paying past due fees plus interest and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, lawyers’ fees, court costs and collection agency fees.
4.6 Taxes. Client shall pay or reimburse Host for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Host under this Agreement; excluding, however, income taxes on profits which may be levied against Host.
5.2 Client Warranties. Client represents and warrants that: (i) Client has the power and authority to enter into and perform its obligations under this Agreement; (ii) Client shall use commercially reasonable efforts to prevent unauthorized access to any restricted areas of the Website and any databases or other sensitive material generated from or in connection with the Website; and (iii) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Website. Should Client receive notice of a claim regarding the Website, Client shall promptly provide Host with written notice of such claim.
5.3 Disclaimer of Warranty. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.2 Indemnification by Host. Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action arises out of the gross negligence or wilful misconduct of Host.
6.3 Indemnification Process. In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing paragraphs. The indemnified party may, at its own expense, assist in the defence if it so chooses, provided that the indemnifying party shall control such defence and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.
8.2 Termination. Either party may terminate this Agreement if a bankruptcy proceeding is instituted against the other party which is acquiesced in and not dismissed within thirty (30) days, or results in an adjudication of bankruptcy, or the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of notice specifying the breach, except that the cure period for failures of payment obligations shall be ten (10) days. Host may terminate this Agreement at any time and for any reason by providing written notice of termination to Client and refunding a pro rata portion of fees paid to Client for Hosting Services not yet rendered on the date of termination.
8.3 Termination and Payment. Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
8.4 Site Transition. Upon expiration or earlier termination of this Agreement, Host shall keep the Website publicly accessible for a period of thirty (30) days following the date of expiration or earlier termination of this Agreement and if requested by Client, Host may provide Client with transition services, at its then current rates, including Hosting Services and assistance in transitioning the Website to an alternate provider.
9.2 Cooperation. The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
9.3 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party and this Agreement shall not be interpreted or construed to create an association, agency, joint venture, partnership, franchise or employee relationship between the Parties.
9.4 Amendments. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced.
9.5 Client Identification. Upon written permission from Client, Host may use the name of and identify Client as a client in advertising, publicity, or similar materials distributed or displayed to prospective clients.
9.6 Force Majeure. Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labour disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
9.7 Governing Law (except for US users). This Agreement is governed by English law and the Parties agree to submit to the exclusive jurisdiction of the English courts, provided that use of Host in the United States is governed by Section below entitled "Governing law & jurisdiction (for US users)".
9.8 Governing law & jurisdiction (for US users). If you access Host services from the US, these terms and conditions are governed by the laws of the United States of America and the laws of the State of New York. You agree that exclusive jurisdiction for any claim or dispute with Host or relating in any way to your use of Host resides in the courts of the County of New York, State of New York, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the County of New York, State of New York, in connection with any such dispute and including any claim involving Host or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. You agree that any cause of action or claim that you may have with respect to your use of Host must be commenced within one year after the act or omission giving rise to the claim or cause of action arose.9.9 Assignment. Client shall not assign, without the prior written consent of Host, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
9.10 Notice. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if by e-mail, upon confirmation thereof; or (iii) if by next day delivery service, upon such delivery. All notices to Host shall be addressed as follows:
BrightThemes Ltd, 3 Furzey Avenue Southampton Hampshire SO45 3GU
Attention: Pete Heslop
All notices to client shall be addressed to the address on file with Host, which shall be updated, as needed, by Client.
9.11 Waiver. The waiver of failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
9.12 Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
9.13 Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the parties hereto.
9.14 Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
9.15 Approvals and Similar Actions. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
9.16 Survival. All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
9.17 Primary Contact. Client shall designate one (1) person who will act as the primary liaison for all communications regarding the Services.
9.18 Reference. Client is advised to print a copy of this Agreement for its records, as the Agreement may need be referenced from time to time.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date set forth above. By creating an account with Tap, you agree to be bound by the terms of this Agreement and have used your electronic signature to agree to the terms of this Agreement.