HMA - Hosting Agreement
1. Definitions
Unless expressly stated otherwise the following definitions shall apply to the terms used in this Agreement:
"Confidential Information" means all information passing from one party to the other party relating to the business of the disclosing party, including but not limited to trade secrets, drawings, know-how, techniques, source and object code, business and marketing plans and projections, arrangements and agreements with third parties, customer information and customer information proprietary to customers, formulae, suppliers, concepts not reduced to material form, designs, plans and models but excludes information:
(a) which is in or becomes part of the public domain other than through breach of this Agreement;
(b) which the receiving party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the disclosing party or its representatives; or
(c) which the receiving party acquires from a third party entitled to disclose it;
"Client Content" means all materials placed on HMA Servers;
"Computer Virus" means any programmes or data incorporated into software or data that disrupts the proper operation of a computer hardware system or the associated software;
“Downtime" means any period during which the Website is unavailable due to equipment failure or loss of all Internet connectivity to the Servers.
"Hosting Services" means those services provided to the Client as described in item 1 of the Schedule to this Agreement;
"Intellectual Property" means all intellectual property rights relating to or owned by either Party to this Agreement anywhere in the world (including present and future intellectual property rights) including without limitation Confidential Information, business names, domain names, copyright, database rights, patents, trade or service marks, designs, software, software programs and source code and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights;
"Materials" means all materials owned by a party used in the provision of Hosting Services, including software programs and source code;
"On-Line Conduct Policy" means the policy setting out the terms and conditions on which the Client agrees to utilise HMA's network, systems, products and services;
"Personnel" means any employees, agents or contractors of either Party;
“Schedule” means the schedule in 3 parts attached to this agreement and deemed to form part of it.
“Servers” means HMA’s server computer equipment.
"Service Fee" means the fee specified in Item 1 of the Schedule to be paid by the Client for the performance by HMA of its obligations under this Agreement;
"Term" shall mean the period between the Commencement Date and the end date of this Agreement as specified in Clause 7 of this Agreement;
"Web Site" means the Client's web site or management system or Storehold or Photohold or E-mail system or other systems as hosted on HMA’s Servers.
2. Interpretation
2.1 In this Agreement, unless the context otherwise requires:
(a) a reference to any document is a reference to that document as varied, novated or replaced from time to time;
(b) the singular includes the plural and vice versa;
(c) a reference to a gender includes all other genders;
(d) a reference to a person or entity includes a natural person, a partnership, a corporation, trust, association, an unincorporated body, authority or other entity; and
(e) a reference to a person includes that person's legal personal representative, successors and permitted assigns;
2.2 Headings have been inserted for convenience only and shall not affect the interpretation of this Agreement.
3. Provision of Hosting Services
HMA will provide Hosting Services to the Client on the terms and conditions of this Agreement and as set out in the Schedule. No third party access is allowed to the hosting server unless agreed in writing prior to commencement of the hosting contract.
4. Availability
4.1 The Client acknowledges that HMA's systems, servers and equipment may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes.
4.2 HMA agrees to rectify faults or problems and to restore the system to full operational capacity as soon as reasonably practicable.
4.3 Notwithstanding the terms of Clauses 4.1 and 4.2, HMA agree to comply with the provisions of Item 2 in the Schedule in relation to any Downtime during the Term.
5. Limitation of Liability
5.1 HMA gives no condition, warranty or undertaking and makes no representation to the Client about the suitability of, or fitness of Hosting Services for the Client's purposes other than those conditions, warranties, undertakings or representations expressly set out in this Agreement.
5.2 With the exception of any rights which the Client may have under applicable law, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from these Terms to the fullest extent permitted by law.
5.3 Nothing in this Agreement excludes or limits the liability of HMA for
(i) death or personal injury caused by HMA's negligence; or
(ii) fraudulent misrepresentation.
5.4 Subject to sub-clauses 5.2 and 5.3:
(a) HMA's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total value of Hosting Services paid to HMA by the Client in terms of this Agreement; and
(b) HMA shall not be liable to the Client or any third party for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever or howsoever caused which arise out of or in connection with the Agreement, or for loss of profit, loss of business, loss of data, depletion of goodwill or loss occurring in the normal course of business or otherwise.
6. Client Content
6.1 HMA will not be responsible for the accuracy and functionality of the Client Content. The client will indemnify HMA for any claims made against the content of the website.
6.2 If HMA reasonably forms the view that the Client Content of any Web Site may be pornographic, defamatory, misleading or deceptive or otherwise in breach of any third party's rights, HMA may remove that Client Content from the Web Site and shall within twenty four (24) hours thereafter notify the Client of its removal in respect of all losses of whatsoever nature incurred by HMA as a result of the Client Content of the Web Site being pornographic, defamatory, misleading, deceptive or otherwise in breach of any third party’s rights.
6.3 HMA will have no liability for any loss or damage to any data stored on Servers or back-up facilities.
6.4 The Client will maintain adequate insurance cover in respect of any loss or damage to data stored on Servers or back-up facilities.
7. Term
This Agreement will commence on the Commencement Date and will subsist for an initial period of 12 months (the “Initial Period”) unless earlier terminated in accordance with its terms. Following the Initial Period, this agreement shall automatically continue in force unless terminated in accordance with its terms or by either party on giving the other 30 days written notice.
8. Charges and Payment
8.1
(a) The Client will pay HMA the Service Fees specified in Item 1 of the Schedule for Hosting Services together with any VAT and other applicable taxes at the then prevailing rate ("Service Fees").
(b) The Client may also purchase additional services from HMA at the then current rate as set out within Item 1 ("Additional Fees").
8.2 The Client will pay the Service Fees within 30 days after the date of HMA's invoice.
8.3 Any Additional Fees and out of pocket expenses and charges will be agreed on in writing in advance between the parties and invoiced separately. The Client shall reimburse HMA for any such Additional Fees and out of pocket expenses reasonably incurred by HMA.
8.4 If the Client is in arrears in any payment due to HMA under this Agreement, the Client will pay, in addition to the arrears, interest at the rate of four per centum (4%) per annum above the base rate for the time being of HSBC plc on all arrears calculated on a daily basis from the date the default occurs until payment is made in full as well before as after judgement .
8.5 Without limiting any other right or remedy available to HMA, HMA may on giving seven (7) days notice, and without having to account for or to repay any money previously paid to it pursuant to the terms of this Agreement, refuse to commence, complete or deliver any work or otherwise comply with the provisions of this Agreement on HMA's part to be observed or performed in the event the Client:
(a) fails to pay any sums due to HMA under this Agreement; or
(b) otherwise defaults in the due observance and performance of this Agreement.
9. Ownership
9.1 The Parties acknowledge that this Agreement does not have the effect of transferring the ownership of any Intellectual Property.
9.2 Any Intellectual Property owned by either party and required for the performance by the other party of its obligations under this Agreement shall be licensed to that other party on a non-exclusive, royalty-free basis for the sole purpose of fulfilling that party's obligations under this Agreement and for the period during which the use of that Intellectual Property by that party pursuant to this Agreement is required.
9.3 Where the Client places or installs their own Material on HMA's Servers, the Client is responsible for ensuring that they have secured all necessary licences required for the performance by HMA of its obligations under this Agreement and for the period during which the use of those rights by HMA pursuant to this Agreement is required.
10. Domain Name Registration
On request, and subject to Additional Fees, HMA may act as an Agent and register domain names on behalf of the Client. At no time do HMA represent that any particular domain name is available for registration. The registration and use of domains names is subject to the terms and conditions of the relevant naming authority. The contract for registration is between the Client and the naming authority. If payments are not received in respect of domain name registrations HMA may cancel or retain them. HMA gives no warranty that the domain name will not infringe the rights of any third party. The Client is responsible for ensuring they have rights to use domain names that are registered through HMA and the Client hereby indemnifies HMA for any loss of whatsoever nature incurred by HMA in that regard. In the event of a dispute between the Client and third parties in respect of the rights to domain names, HMA retains the right to suspend or cancel disputed domain names. Unless otherwise stated the Client has full responsibility for the renewal of the domain name.
11. Acceptable Use Policy
11.1 The Client acknowledges that it will comply with the Acceptable Use Policy as published from time to time on HMA's web site.
11.2 The Acceptable Use Policy is a standard policy for the conduct of HMA's business and is necessary for the orderly and efficient provision of its hosting services to clients.
11.3 In the event of the Client breaching the Acceptable Use Policy, HMA retains the right to suspend or terminate the provision of Hosting Services and shall within twenty four (24) hours thereafter notify the Client of such suspension.
12. Equipment and Access
The Client must provide, at its own cost, all telecommunications services, computers and other equipment or services necessary to enable it to have access to Hosting Services. The Client must comply with all applicable legal requirements, rules and regulations that apply to the communications means by which the Client obtains access to Hosting Services.
13. Personnel and Sub-Contractors
HMA may in its absolute discretion sub-contract the performance of any of its obligations under this Agreement.
14. Warranties
14.1 Each party warrants that:
(a) it has authority to enter and to perform its obligations under this Agreement; and
(b) it has the ability to perform its obligations under this Agreement.
14.2 HMA warrants that Hosting Services will in all respects comply with Item 1 in the Schedule.
14.3 The Client warrants that:
(a) the use by HMA of any works or Materials submitted by the Client to HMA under this Agreement will not infringe the rights of any person or contravene any law;
(b) at the time of entering into this Agreement it is not relying on any representation made by HMA which has not been expressly set out in this Agreement;
(c) it will take all reasonable steps to ensure that any software used in connection with Hosting services and any material or data provided to HMA will be free from any Computer Virus and will not damage or corrupt any other data or system;
(d) That it is solely responsible for communicating with persons who maintain or access its Web Sites and that it will not divert any complaints or concerns from such persons to HMA.
(e) Where the Client allows its own customers to maintain details within the web space provided as part of the Hosting Service, the Client remains fully bound by this contract and is responsible for the activities and actions of such persons.
14.4 HMA shall not be liable for defects resulting from improper use of Hosting Services by the Client or by another third party.
15. Indemnity
15.1 Each party ("the first party") indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents ("the second party") against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise.
15.2 The indemnity extends to and includes all costs, damages and expenses reasonably incurred by the second party in defending any such action, proceeding, claim or demands.
16. Termination
16.1 HMA may terminate this Agreement by notice in writing to the Client in the event that:
(a) The Client fails to pay any amount to HMA due under this Agreement and does not make that payment within fourteen (14) days after receiving notice requiring the Client to do so;
(b) The Client fails to perform any of the obligations on its part to be observed or performed pursuant to the On-Line Conduct Policy, or
(c) The Client fails to perform any of the obligations on its part to be observed or performed pursuant to this Agreement, or
(d) Any of the warranties or representations made by the Client contained in this Agreement are false or inaccurate in any material way.
16.2 Either party shall be entitled to terminate this Agreement forthwith by notice in writing to the other if the other party shall:
(a) commit any material breach of any of its obligations under this Agreement
(b) pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect;
(c) make any voluntary arrangement with its creditors or become subject to an administration order;
(d) have a receiver or administrative receiver appointed;
(e) cease or threaten to cease to carry on business.
16.3 This contract replaces any previous hosting agreements between HMA and the Client.
17. Confidential Information
17.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
17.2 Either party may disclose Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
17.3 All documents and other materials containing Confidential Information of either party will be returned to that party immediately upon completion of Hosting Services.
17.4 The parties' obligations to keep information confidential will survive the termination of this Agreement.
17.5 The obligations of confidentiality under this Agreement do not extend to information that:
(a) was rightfully in the possession of the receiving party before any negotiations leading to this Agreement;
(b) is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or
(c) is required by law to be disclosed.
18. Force Majeure
18.1 "Force Majeure" means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, transportation embargo, failure or delay in transportation, including without limitation where Xtraordinary ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
18.2 If a party is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, then that party's obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure.
18.3 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
19. Notification
19.1 Any notices given by HMA to the Client may be given by e-mail, facsimile or letter.
19.2 The Client shall be responsible for ensuring that HMA has been provided with up to date information to allow HMA to serve notices in terms of Clause 19.1
20. Jurisdiction
The parties agree that this Agreement shall be subject to the Law of England and to the exclusive jurisdiction of the English Courts.
Version: 2
Last updated: April 2011
