1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
1.1.1 app: means any application software or mobile application software (including all Content and Materials) generally titled as an app, mobile app, Web app, Web based app or on-line app in each case being a self-contained program or piece of software designed by HMA to fulfil a particular purpose and capable of being downloaded to a mobile device by a user either from the Site or from, a Third Party Site.
1.1.2 Brand Guidelines: means the guidance provided by Client to HMA on how to apply the Client brand to communications materials.
1.1.3 Content: shall mean all text, images, designs and data including but not limited to the Materials and all Derivative Work incorporated as content in the Site or any app and all additional content in the Site or any Third Party Site or in any app uploaded by any visitor or by HMA on behalf of the Client or any visitor and incorporated in the Site, any app or Third Party.
1.1.4 Commencement Date: means the date of this agreement or if earlier the date of commencement of the Services.
1.1.5 Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, trade secrets, know-how, techniques, source and object codes, disclosed in writing, on disc, memory stick or other portable device or by any other medium, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
a) identified as confidential at the time of disclosure; or
b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
1.1.6 Derivative Work: content that is developed and/or adapted and/or incorporated in the Site, any app or Third Party Site based on the Materials, such as a translation, musical arrangement, dramatisation, fictionalisation, video, motion picture version, sound recording, art reproduction, abridgement, condensation or any other form in which a work may be recast, transformed or adapted;
1.1.7 Fees: the amounts payable to HMA for the provision of the Services as calculated in accordance with the provisions of clause 5, at Schedule 1 and at Part 1 of Schedule 2 and as agreed between HMA and the Client from time to time;
1.1.8 Insolvency Event: means:
a) the inability of the party in question to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986;
b) the issue of an application for an administration order or a notice of intention to appoint an administrator in relation to the party in question;
c) the passing of a resolution or order for the party in question’s winding-up, dissolution, administration or reorganisation;
d) the declaration of a moratorium in relation to the indebtedness of the party in question;
e) the making of any arrangement or any proposal for any arrangement with any of the party in question’s creditors; and
f) the appointment of a liquidator, receiver, administrator, supervisor or other similar officer in respect of any of the party in question’s assets;
1.1.9 Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, including the development of any app , software programmes and source codes, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
1.1.10 Internet: means the global network of computer and communication tools accessible to individuals and organisations;
1.1.11 Marks: any and all trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans of each party, whether or not registered;
1.1.12 Materials: all data provided to HMA by the Client and all data and databases recorded and created on the Site, any app or Third Party Site including any Content intended for incorporation in the Site, any app or Third Party Site such as text, information, data, software, executable code, images, audio or video material in whatever medium or form but excluding the Site Software;
1.1.13 Servers: means any server computer equipment owned or used by HMA to fulfil its obligations under this agreement;
1.1.14 Service Failure: a material failure by HMA to deliver any part of the Services in accordance with the terms of this agreement;
1.1.15 Services: the Support and Hosting Services and the Site and app Design and Programming Services as agreed by the parties in writing from time to time;
1.1.16 Site: the website or websites (including all Content and Materials) or any other replication of such website or websites to be hosted by HMA pursuant to this agreement and any other website from time to time hosted by HMA at the Client’s request but excluding the Site Software;
1.1.17 Site and app Design and Programming Services: means the production of design concepts, design development, front and back-end programming, the development of any app and any similar, related or ancillary services as agreed by the parties in writing from time to time;
1.1.18 Site Software: the software, content management software and any app developed by HMA and either providing the platform and underlying software for hosting the Site or where the context admits for hosting the app or forming, activating and operating the features incorporated within the same;
1.1.19 Specification: the specification for the Site, any app or Third Party Site and functionality of the Site Software as set out in Schedule 3 and as further varied and developed by HMA at the request of the Client from time to time.
1.1.20 Support and Hosting Services Fees: as described in Part 1 of Schedule 2;
1.1.21 Support and Hosting Services Levels: as set out in Part 2 of Schedule 2;
1.1.22 Support and Hosting Services: means the ongoing technical support and website and/or app hosting by HMA and any similar, related or ancillary services as agreed by the parties in writing from time to time;
1.1.23 Term: means the period during which this agreement continues in force as set out in clause 13;
1.1.24 Territory: worldwide;
1.1.25 Third Party Site: means a third party hosting server, app store or other app repository;
1.1.26 VAT: value added tax chargeable under English law for the time being and any similar additional sales tax;
1.1.27 Working Days: Monday to Friday, excluding any public holidays in England and Wales;
1.1.28 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
2. The Client’s obligations
2.1 The Client shall promptly:
2.1.1 upon request from HMA provide all reasonable assistance in connection with this agreement;
2.1.2 provide HMA with reasonable co-operation in all matters relating to the Services;
2.1.3 provide to HMA such information as HMA may reasonably request in order to carry out the Services.
2.2 The Client shall advise HMA as soon as it becomes aware of any breach, or potential breach, of security which may adversely affect the Services.
2.3 The Client agrees that it will only use the Support and Hosting Services in accordance with the provisions of this agreement and HMA’s reasonable instructions from time to time.
2.4 The Client shall keep any access ID provided by HMA confidential and available only to personnel directly and necessarily involved in the provision of Content and management of the Site or app or Third Party Site.
2.5 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 the Site, any app or Third Party Site and the Support and 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 the Site, any app or Third Party Site and the Support and Hosting Services.
2.6 The Client shall not, without the prior written consent of HMA, at any time from the date of this agreement to the expiry of 12 months after the termination of this agreement and whether directly or indirectly or through any third party, solicit or entice away from HMA or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of HMA.
3. HMA’s obligations
3.1 HMA shall:
3.1.1 provide the Services to the Client on the terms and conditions of this agreement as updated from time to time and
3.1.2 provide the Services using reasonable skill and care, in accordance with the standard practices in the sector in which it operates;
3.1.3 provide the Services in accordance with all applicable laws and regulations; and
3.1.4 provide the Support and Hosting Services in accordance with the Support and Hosting Services Levels and if there is a Service Failure HMA shall:
a) notify Client immediately of becoming aware of the Service Failure;
b) deploy all additional resources and take all remedial action that is reasonably necessary to rectify or to prevent the Service Failure from recurring; and
3.1.5 perform the Services using personnel of appropriate and required skill, experience and qualification.
3.2 To the extent that HMA processes any personal data (as such terms are defined in the Data Protection Act 1998) on behalf of Client, HMA shall only do so in accordance with the instructions of Client and it shall have in place appropriate technical and organisational measures to protect the security of such personal data (and to guard against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data) in accordance with the requirements set out in the Seventh Data Protection Principle in Schedule 1 of the Data Protection Act 1998.
3.3 HMA shall take all precautions reasonably necessary to preserve the security and integrity of the Materials and to prevent any corruption or loss of the Materials.
3.4 HMA shall advise the Client as soon as it becomes aware of any breach, or potential breach, of security which may adversely affect the Services.
3.5 HMA shall be responsible for securing the physical security of the premises which HMA occupies and controls to prevent unauthorised access to any Materials held by HMA at such premises in relation to this agreement.
3.6 The Client acknowledges that HMA’s Servers, computer systems, equipment and connectivity infrastructure 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, inability to connect to the Internet or other causes.
3.7 HMA may, at its sole discretion, suspend the Support and Hosting Services (in whole or in part) if:
3.7.1 HMA is entitled to terminate this agreement for any reason; or
3.7.2 the suspension is for the purposes of carrying out scheduled or emergency maintenance pursuant to this agreement or to substitute, change, reconfigure, relocate or rearrange the Servers or any other connectivity infrastructure; or
3.7.3 the suspension is in accordance with an order, instruction or request of government, an emergency service organisation or other competent administrative authority or is a result of HMA otherwise losing any authorisation to provide the Support and Hosting Services.
3.8 HMA shall notify the Client as soon as reasonably possible of any suspension (if practicable) and HMA shall use all reasonable efforts to minimise the downtime incurred in taking such actions.
3.9 HMA shall not, without the prior written consent of the Client at any time from the date of this agreement to the expiry of 12 months after the termination of this agreement and whether directly or indirectly or through a third party, entice away from the Client or employ or attempt to employ any person who is, or has been, engaged as an employee or Sub-Contractor of the Client.
4. Site content
4.1 The Client acknowledges that HMA has no control over any Content placed on the Site, any app or any Third Party Site by the Client or a visitor to the Site, any app or any Third Party Site and does not purport to monitor the Content of the Site, any app or any Third Party Site. (as all Content is the sole responsibility of the Client).
4.2 HMA may remove Content from the Site or any app or remove or request the removal of any Content from a Third Party Site where it reasonably suspects such Content infringes any applicable laws, regulations or third party rights (such as material that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”), provided that HMA notifies the Client immediately if it suspects or becomes aware of any allegation that Content on the Site, any app or on any Third Party Site may be Inappropriate Content and gives the Client a reasonable opportunity to amend it.
4.3 HMA shall immediately (or as soon as is practicable) comply with any written request by the Client to remove any Content from the Site, any app or Third Party Site or to prevent any person from gaining access to the Site, any app or any Third Party Site.
4.4 The Client acknowledges that it is solely responsible for the accuracy of the Content and that it is solely responsible also for any Content uploaded to the Site, any app or to any Third Party Site by any visitor and the Client agrees to fully and effectually indemnify HMA against all damages, losses and expenses arising directly or indirectly as a consequence of any Materials or Content provided by the Client or any Content uploaded to the Site, any app or any Third Party Site by a visitor, whether authorised or unauthorised.
4.5 HMA will have no liability for any loss or damage to any data stored on Servers or back-up facilities and the Client will maintain adequate insurance cover in respect of any loss or damage to data stored on Servers or back-up facilities.
5.1 The Client shall pay the Fees for the Services in accordance with quoted prices and as agreed by HMA and the Client from time to time.
5.2 HMA shall (unless otherwise agreed in writing) invoice the Client annually in advance in respect of Support and Hosting Services and monthly in respect of the Fees (and VAT, where appropriate) and the Client shall except where there is a legitimate dispute as to the Fees which are the subject of the invoice, pay the invoice within 30 days of date of invoice.
5.3 Without prejudice to any other right or remedy that HMA may have, if the Client fails to pay any Fees in full on the due date HMA may charge interest on the outstanding amount at the rate of 4% above the base lending rate from time to time of Barclays Bank plc accruing on a daily basis and being compounded quarterly or such higher rate as is prescribed under the Late Payment of Commercial Debts (Interest) Act 1998 until payment is made, whether before or after any judgment.
5.4 Any sums payable by the Client shall be paid clear of any deductions, withholdings, set-offs or counterclaims except any deduction or withholding which may be required by law in relation to tax.
5.5 Any quotations given by HMA are valid for a period of 30 Working Days from the date of the quotation and HMA reserves the right to amend any quotation after this time by giving the Client written notice.
5.6 HMA may increase the rates at which HMA’s personnel or other resources are charged to the Client not more than once in each calendar year subject to giving the Client one month’s prior notice of any increase.
5.7 Notwithstanding clause 5.6 above, if HMA has agreed to a fixed price in relation to the Support and Hosting Services or any other Services provided under this agreement then HMA reserves the right to amend the fixed price on giving notice to the Client if the scope of, or functionality required in, the Support and Hosting Services changes or increases as a result of the Client changes, requirements or instructions.
5.8 Without limiting any other right or remedy available to HMA, HMA may on giving seven 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, continue, complete or deliver any work or Services or otherwise comply with the provisions of this agreement on HMA’s part to be observed or performed in the event that the Client:
5.8.1 fails to pay any sums due to HMA under this agreement within 30 days of the date of invoice; or
5.8.2 otherwise defaults in the due observance and performance of this agreement.
6. Intellectual Property Rights
6.1 Title to and ownership of all Intellectual Property Rights in the Site Software shall remain with HMA. Subject to the Client’s payment of all Fees and other sums due to HMA under this agreement, HMA grants to the Client a perpetual, irrevocable, non-exclusive, royalty-free and (except to the extent permitted at clauses 6.1.1 and 6.1.2) non-transferable licence to use the Site Software for its business purposes and to the extent required to perform its obligations pursuant to this agreement. Notwithstanding the generality of clause 6.1:
6.1.1 the licence to the Client of the Site Software shall extend also to any in-house or third party developer engaged by the Client to the extent required to enable the Client to make proper use of the Content and to support the Content; and
6.1.2 the licence of the Site Software shall be freely transferable by the Client in the event of a sale or other disposal of the Client’s business or a division of its business to a third party to the extent that the third party shall thereafter be entitled to continue the Client’s business as a successor to the Client.
6.2 All Intellectual Property Rights (including such copyright as may exist at law) in the Site, arising in connection with this agreement shall be the property of the Client.
6.3 The Client grants to HMA a non-exclusive, non-transferable and royalty-free licence to use the Content, the Materials, the Site and where applicable any Third Party Site or app to the extent required to perform its obligations pursuant to this agreement.
6.4 Any and all information provided by visitors to the Site when visiting the Site (such as name, address and e-mail address) that is collected through any user registration process or otherwise shall be owned by the Client.
6.5 HMA shall indemnify the Client against all damages, losses and expenses arising directly or indirectly by virtue of any negligent act or omission on the part of HMA resulting in a claim that the Site or the Site Software infringes any Intellectual Property Rights of a third party or is libellous, defamatory, obscene or otherwise contains Inappropriate Content.
6.6 The indemnity in clause 6.5 is subject to the following conditions:
6.6.1 The Client notifying HMA in writing of the action or claim;
6.6.2 The Client making no admissions or settlements without HMA’s prior written consent;
6.6.3 The Client giving HMA all information and assistance that HMA may reasonably require; and
6.6.4 The Client allowing HMA complete control over the litigation and settlement of any action or claim.
PROVIDED that HMA shall not be responsible for any damages, losses or expenses arising directly or indirectly by virtue of any unauthorised intrusion, access or attack to the Site, any app or Third Party Site or to the Site Software or to the Content contained upon the same or other malicious activity by persons known or unknown intending to seek and exploit any weaknesses in the Servers, the HMA computer systems, the connectivity infrastructure, the Site Software, the Site, any app or any Third Party Site and/or the Content contained upon the same and it is expressly agreed that HMA shall have no liability as to any damages, losses or expenses arising directly or indirectly as a result of any such unauthorised intrusion, access or attack as aforesaid.
6.7 The Client shall indemnify HMA against all damages, losses and expenses arising directly or indirectly as a result of or in connection with any claim that the Support and Hosting Services by reason of any Content provided by the Client to HMA or uploaded by the Client or any visitor to the Site, any app or to any Third Party Site infringes any Intellectual Property Rights of any third party, contains any virus or malicious software, or is libellous, defamatory or obscene or otherwise contains Inappropriate Content.
6.8 The indemnity in clause 6.7 is subject to the following conditions:
6.8.1 HMA notifying the Client in writing of the action or claim;
6.8.2 HMA making no admissions or settlements without the Client’s prior written consent;
6.8.3 HMA giving the Client all information and assistance that the Client may reasonably require; and
6.8.4 HMA allowing the Client complete control over the litigation and settlement of any action or claim.
6.9 The Client shall not in any circumstances or at any time:
6.9.1 alter, adapt, reverse engineer or decompile the Site Software except as permitted by law;
6.9.2 reproduce or deal in the Site Software (in whole or in part) in any way; or
6.9.3 make copies of the Site Software except to the extent reasonably necessary for back-up purposes or for other purposes permitted by this agreement;
The obligations of the Client in clause 6.9 shall not be affected by the expiry or termination of this agreement.
6.10 The Client acknowledges that HMA is (or its licensor are) the owner of all Intellectual Property Rights in the Site Software and that nothing in this agreement shall result in the Client owning any Intellectual Property Rights in the Site Software and that HMA (or its licensor or successor) may further develop the Site Software or any component part of the Site Software for any purposes.
7.1 Each party acknowledges and agrees for all purposes that all Marks associated with the other party or the other party’s services, products, literature, promotional materials or otherwise, whether or not registered, constitute the other party’s exclusive property.
7.2 Subject to clauses 7.3 to clause 7.8, each party (“Proprietor”) grants to the other party (“Licensee”) a non-exclusive, non-transferable, non-assignable, royalty-free licence to use the Proprietors Marks. The Licensee shall use such Marks solely for the purposes of performing its obligations under this agreement, including in connection with any advertising, marketing and promotional activities undertaken and materials developed pursuant to this agreement.
7.3 All uses by the Licensee of the Proprietor’s Marks shall be in accordance with such quality control standards as the Proprietor may promulgate from time to time. The Licensee shall refrain from all uses of the Proprietor’s Marks to which the Proprietor objects.
7.4 All uses of the Proprietor’s Marks by the Licensee, including all goodwill arising, shall accrue solely to the benefit of the Proprietor.
7.5 All promotional literature and other materials prepared by either party in connection with its promotional obligations under this agreement shall bear appropriate copyright and trade mark notices as prescribed by the party whose content or branding is included therein.
7.6 HMA shall comply with any Brand Guidelines provided to them in writing by the Client.
7.7 The Licensee shall not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to the Proprietor’s Marks.
7.8 At no time during the Term or thereafter shall the Licensee attack, challenge or file any application with respect to any Proprietors Marks.
8. Domain Names
8.1 If HMA acquires any domain names on behalf of the Client, HMA agrees that:
8.1.1 the domain names shall be the property of the Client and HMA shall use the domain names solely in accordance with this agreement;
8.1.2 whilst HMA does not in any manner warrant or represent that any particular domain name is available for registration, subject to availability, HMA shall then properly register the domain names and shall procure that all administration, invoicing and any other communications relating to the domain names are sent directly to the Client, unless otherwise agreed with the Client; and
8.1.3 it shall provide the Client with all reasonable assistance as may be required in the transferring of the administration of the domain names to the Client upon termination of this agreement;
8.1.4 Unless otherwise agreed in writing the Client has full responsibility for the renewal of the domain name.
8.2 The registration and use of domain names is subject to the terms and conditions of the relevant naming authority.
8.3 If payments are not received in respect of domain name registrations HMA may cancel or retain the same.
8.4 The Client is responsible for ensuring that it has all necessary rights to use domain names registered through HMA and the Client agrees to fully and effectually indemnify HMA against all damages, losses and expenses arising directly or indirectly in relation to any dispute or claim that the domain name infringes the ownership or any Intellectual Property Rights of a third party.
8.5 HMA gives no warranty that the domain name will not infringe the rights of any third party and in the event of a dispute between the Client and any third party in respect of the right to use a domain name, HMA retains the right to suspend or cancel a disputed domain name.
9.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
9.2 Confidential Information may only be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
9.3 All Content supplied by the Client to HMA shall, at all times, be and remain the exclusive property of the Client, but shall be held by HMA in safe custody at its own risk and maintained and kept in good condition by HMA until returned to the Client where practicable and if capable of return. Content shall not be disposed of or used other than in accordance with the Client’s written instructions or authorisation.
9.4 The obligations set out in this clause 9 shall not apply to Confidential Information that the receiving party can demonstrate:
9.4.1 is or has become publicly known other than through breach of this clause 9; or
9.4.2 was in the possession of the receiving party prior to disclosure by the other party; or
9.4.3 was received by the receiving party from an independent third party who has full right of disclosure; or
9.4.4 was independently developed by the receiving party; or
9.4.5 was required to be disclosed by a governmental authority, by order of the court or otherwise by operation of law.
9.5 The obligations of confidentiality in this clause 9 shall not be affected by the expiry or termination of this agreement.
10.1 Each of the parties warrants to the other:
10.1.1 that it has full power and authority to enter into and perform this agreement; and
10.1.2 this agreement is authorised and executed by its duly authorised representative.
10.2 HMA warrants that it:
10.2.1 will perform its obligations under this agreement with reasonable skill and care and that the Site and Site Software will perform substantially in accordance with the Specification; and
10.2.2 is the owner or the authorised licensee of the Intellectual Property Rights in the Site Software and is authorised to sublicense the same to the Client for the purposes of this agreement .
10.3 HMA warrants to the Client that to the best of HMA’s present knowledge the Site Software and HMA’s Marks:
10.3.1 do not violate any law, statute, ordinance or regulation (including the laws and regulations governing export control);
10.3.2 do not violate any laws regarding unfair competition, anti-discrimination or false advertising; and
10.3.3 do not contain any viruses, Trojan horses, worms, time bombs or other malicious computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
10.4 The Client warrants to HMA that to the best of the Client’s present knowledge the Content (including the Materials) and the Client’s Marks:
10.4.1 do not violate any law, statute, ordinance or regulation (including the laws and regulations governing export control);
10.4.2 are not defamatory, trade libellous, unlawfully threatening or unlawfully harassing or contain Inappropriate Content;
10.4.3 are not obscene or pornographic or liable to incite racial hatred or acts of terrorism and do not contain child pornography;
10.4.4 do not violate any laws regarding unfair competition, anti-discrimination or false advertising; and
10.4.5 do not contain any viruses, Trojan horses, worms, time bombs or other malicious computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
10.5 The Client warrants to HMA that:-
10.5.1 it is the owner of any Intellectual Property Rights in the Content;
10.5.2 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;
10.5.3 it will take all reasonable steps to ensure that any software used in connection with the Site Software and any Content (including the Materials) provided to HMA will be free of any viruses, Trojan horses, worms, time bombs or other malicious computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information and will damage or corrupt the Servers or any other computer systems owned or operated by HMA;
10.5.4 that it is solely responsible for the actions of all visitors to the Site, any app or Third Party Site (whether authorised or unauthorised) and that it is solely responsible also for communicating with persons who visit, maintain or access the Site, any app or Third Party Site and that it will not divert any complaints concerning the Content contained within or operation of the Site, any app or Third Party Site to HMA;
10.5.5 where the client allows its own customers or other parties to maintain details, information or data within the Site, any app or Third Party Site, the Client will remain fully responsible for the actions of such persons.
11.1 HMA shall effect and maintain with a reputable insurance company a policy or policies of insurance, which HMA considers (acting reasonably) necessary to provide an adequate level of cover for professional indemnity insurance, employer’s liability and public liability.
11.2 HMA shall give the Client, within 5 Working Days of a written request, copies of all insurance policies referred to in this clause 11 or a broker’s verification of insurance to demonstrate that the appropriate cover is in place, together with receipts or other evidence of payment of the latest premiums due under those policies.
12. Limitation of liability
12.1 The following provisions set out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other party in respect of:
12.1.1 any breach of this agreement howsoever arising;
12.1.2 any use made by the Client of the Services; and
12.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
12.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
12.3 Nothing in these conditions limits or excludes the liability of either party:
12.3.1 for death or personal injury caused by negligence;
12.3.2 for fraud or fraudulent misrepresentation.
12.4 The Client agrees and acknowledges:
12.4.1 that it shall have sole responsibility for results obtained from the use by the Client of the Services and for conclusions drawn from such use; and
12.4.2 HMA gives no condition, warranty or undertaking and makes no representation to the Client about the suitability of, or fitness of the Site Software for the Client’s purposes other than those conditions, warranties, undertakings or representations expressly set out in this agreement.
12.5 Subject to clause 12.3:
12.5.1 Neither party shall in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent), or otherwise for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings and any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
12.5.2 The provisions of clause 12.5.1 shall not limit the Client’s right to recover any of the following from HMA:
a) additional operational and administrative costs and expenses;
b) any additional cost of procuring and implementing replacement services; and
c) any marketing and public relations costs.
12.5.3 Each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall in all circumstances be limited to the Fees paid or payable for the Services during the 12 month period preceding the date on which the claim arises.
12.6 The limitation of liability in clause 12.5 shall not apply in relation to any breach by the Client of clause 10.5.1 or breach by HMA of clause 10.2.2.
13. Term and Termination
13.1 This agreement shall commence on the Commencement Date and shall (except as expressly provided otherwise in this agreement) continue in force for 12 months after the Commencement Date and thereafter shall automatically continue in force unless terminated in accordance with its terms or by either party on giving the other 30 days’ written notice.
13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
13.2.1 the other party commits a material breach of this agreement and (if such a breach is remediable) fails to remedy that breach within 20 Working Days of that party being notified in writing of the breach; or
13.2.2 the other party suffers an Insolvency Event or ceases or threatens to cease to carry on business; or
13.2.3 during the continuance of any force majeure event, as detailed in clause 14, that effects all or substantially all of the Services and which continues for more than 20 Working Days.
13.3 HMA may terminate the agreement in whole or in part without liability to the Client in the event that:
13.3.1 The Client fails to pay any amount to HMA due under this agreement and does not make such payment within 10 Working Days following service of a written demand requiring payment provided that the invoice which is the subject of a written demand is not legitimately disputed by the Client.
13.3.2 The Client fails in any material respect to perform any of the obligations on its part to be observed or performed pursuant to this agreement; or
13.3.3 Any of the warranties or representations made by the Client contained in this agreement are false or inaccurate in any material respect..
13.4 The Client may terminate the agreement in whole or in part without liability to HMA in the event of serious or repeated Service Failures upon providing 30 days’ prior written notice.
13.5 Termination of this agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
13.6 On termination of this agreement:
13.6.1 HMA shall provide all such assistance as is reasonably requested by the Client to transfer the hosting of the Site to the Client or another service provider, subject to payment of HMA’s expenses reasonably incurred and calculated by reference to HMA’s standard hourly or daily rate in force at the time of notice of termination;
13.6.2 HMA shall, for a period of three months following receipt by either party of a notice of termination (“Handover Period”), co-operate with the Client and/or its replacement supplier and provide such transitional assistance as may be reasonably required by the Client to facilitate the migration of the Site together with any app developed or hosted pursuant to this agreement together with any Content and Services from HMA and (where it is within HMA’s power) the owner of any Third Party Site to the Client and/or its replacement supplier. The management of such transitional assistance will be the responsibility of the Client and any such assistance from HMA will be provided by HMA and paid for by the Client at a fee to be agreed between the parties.
13.7 Following the Handover Period:
13.7.1 HMA shall promptly return to the Client all Content (where practicable and where such Content is capable of return) following the Handover Period; and
13.7.2 all licences granted by HMA under this agreement shall continue following the end of the Handover Period; and
13.7.3 the licences granted by the Client shall terminate.
13.8 Upon termination of this agreement, however arising, and subject to any obligations under the Handover period the parties shall return (where capable of return) or destroy (at the other party’s option) any Confidential Information belonging to the other, which shall include any documentation, information, configurations and passwords held by it and relating to the Site.
13.9 Clauses 13.6 to 13.8 shall survive the termination of this agreement, however arising.
14. Force majeure
Neither party shall in any circumstances have any liability to the other under this agreement if it is prevented from, or delayed in, performing its obligations under this agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving its workforce or that of any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage (including damage to any computer system created by any virus, Trojan horse, worm, time bomb or other malicious computer programming routines or damage resulting from any unauthorised intrusion, access or attack to any computer system carried out by persons known or unknown), loss of access or connection to the internet for whatever reason, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of supplier or sub-contractors.
15.1 Except as provided at clauses 3.7, 3.8, 4.2, the proviso at clause 6.6 and clause 12.4, each party (“the first party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the second party”) against all damages, losses and expenses arising directly or indirectly as a consequence of any unlawful or negligent act or omission of the first party, its officers, servants and agents or arising from any failure by the first party to comply with the terms of this agreement.
15.2 The indemnity extends to and includes all costs, damages and expenses reasonably incurred by the second party in defending any action, proceeding, claim or demand arising as a consequence of any such unlawful or negligent act or breach of agreement as aforesaid although as limited as provided at clause 12.5.
16.1 Severance – If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
16.2 Entire Agreement – This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous hosting agreements, drafts, arrangements, understandings or agreements between them (including any usage or custom and any terms arising through any course of dealing), whether written or oral, relating to the subject matter of this agreement.
16.3 Waiver – No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.4 No partnership or agency – Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
16.5 Third party rights – Unless the right of enforcement is expressly granted, it is not intended that any provision of this agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this agreement.
16.6 This agreement may be executed in any number of counterparts, each of which when executed shall be an original, but all the counterparts together shall constitute one document.
Neither party shall, without the prior written consent of the other (such consent not to be unreasonably withheld or delayed), assign, transfer, charge or deal in any other manner with all or any of its rights or obligations under this agreement PROVIDED that HMA may sub-contract the performance of any of its obligations under this agreement.
All notices given by the Client to HMA must be given to HMA at firstname.lastname@example.org or 42 Sackville Street, Barnsley S70 2DB. HMA may give notice to the Client at either email or post. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
19. Governing Law and jurisdiction
This agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.