CODE STUDIO LIMITED
HOSTING SERVICES AGREEMENT
NOTICE TO USER: PLEASE READ THESE HOSTING TERMS CAREFULLY. BY TICKING THE BOX TO INDICATE YOUR ACCEPTANCE OF THESE HOSTING TERMS, YOU ACCEPT, FOR AND ON BEHALF OF THE COMPANY WHOSE DETAILS YOU HAVE ENTERED ON THE SERVICE ORDER FORM ("THE CUSTOMER") THE FOLLOWING TERMS AND CONDITIONS FROM CODE STUDIO LIMITED OF 124 SEAFORTH GARDENS, EPSOM, SURREY, KT19 0NW ("CODE STUDIO"). THE CUSTOMER AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THESE HOSTING TERMS. THE CUSTOMER AGREES THAT IT IS ENFORCEABLE AS IF IT WERE A WRITTEN NEGOTIATED AGREEMENT SIGNED BY THE CUSTOMER. IF THE CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT OR IF YOU ARE NOT AUTHORISED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF THE CUSTOMER, DO NOT CLICK "I ACCEPT".
IT IS HEREBY AGREED between the parties as follows:
1. DEFINITIONS
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"Acceptable Use Policy" means the rules of the Hosting Provider at www.rackspace.co.uk/aboutus/acceptable_use.htm;
"Agreement" means this Hosting Services Agreement between the parties, the Service Order Form and the Acceptable Use Policy;
"Bandwidth" means the bandwidth to be provided by Code Studio as part of the Services, as set out in the Service Order Form;
"Billing Period" means the period to which each payment of the Fees relates, as set out in the Service Order Form;
"Confidential Information" has the meaning given to it in clause 10;
"Fees" means the fees set out in the Service Order Form;
"Firewall Protection" means the firewall protection set out in the Customer's Service Order Form;
"Hosting Provider" means Rackspace Managed Hosting Limited, the supplier of the hosting services which Code Studio provides to the Customer under this Agreement;
"Initial Term" means the minimum term for which Code Studio shall provide the Services, as set out in the Service Order Form;
"Intellectual Property Rights" means all intellectual property rights, including patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;
"Professional Services" means any non-standard professional consulting or support services provided to the Customer under this Agreement;
"Rackspace Technology" means the proprietary technology (including software) and documentation of the Hosting Provider and any related Intellectual Property Rights and any improvements to any of it;
"Rules" means those in this Agreement and the Acceptable Use Policy;
"Server Space" means the server space to be provided by Code Studio as part of the Services, as set out in the Service Order Form;
"Services" means the services to be provided by Code Studio as set out in the Service Order Form;
"Service Commencement Date" means the date on which Code Studio will commence providing the Services and is the date on which Code Studio generates an e-mail to the Customer which enables the Customer to send and receive information to and from the servers provided for the Services;
"Service Order Form" means the order form completed by the Customer during the online sign-up process;
"Supplemental Fees" means all fees payable by the Customer in respect of Professional Services, which shall be charged at Code Studio's then current time and materials rates;
"Web Solution" means the Customer's website or other materials in respect of which Code Studio are providing the Services, as set out in the Service Order Form.
2. CONTRACT CREATION AND TERM
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This Agreement comes into force with effect from the Service Commencement Date. Code Studio will provide the Services from the Service Commencement Date throughout the Initial Term and continue afterwards until either party ends the Agreement in accordance with the clause headed "Ending this Agreement".
3. WHAT CODE STUDIO WILL DO FOR THE CUSTOMER
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3.1 In consideration of payment of the Fees, the Customer's compliance with the Rules (together with all other reasonable instructions by Code Studio) and all the terms of this Agreement, Code Studio will use its reasonable endeavours to perform the Services throughout both the Initial Term and thereafter until this Agreement is terminated.
3.2 Code Studio reserves the right to make changes to the Services and to establish procedures for the use of the Services. The Hosting Provider may change the Rules by posting any amendments and alterations to the existing Rules on its website at www.rackspace.co.uk to take effect 15 days from the date of posting.
3.3 Code Studio does not guarantee continuous or uninterrupted use of the Customer's Web Solution, including but not limited to times when routine maintenance, repairs, reconfigurations or upgrades are required or in circumstances beyond the control of Code Studio or the Hosting Provider. In the event of network downtime Code Studio shall only be liable for up to one month's Fees for the servers affected but will not otherwise be liable for failing to provide the Services.
3.4 Code Studio or the Hosting Provider may monitor, intercept and/or block any content belonging to the Customer or users of the Customer's Web Solution, content or data for the purposes of ensuring that the Services are used lawfully. If Code Studio is asked to permit any relevant authority to inspect the content, the Customer agrees that Code Studio or the Hosting Provider can do so.
3.5 Code Studio will use its reasonable endeavours to provide access to the Server Space to the Customer as soon as Code Studio can and within any agreed time frame as set out in the Service Order Form.
3.6 Code Studio does not guarantee that the Services will be free of errors, and the Customer expressly agrees that minor errors are not a breach of this Agreement. In the event that the Customer tells Code Studio in writing of a material error which substantially affects the Customer's use of the Services, Code Studio shall do what it reasonably can to remedy the error.
3.7 Although Code Studio does not warrant that the Services or the technology to provide them will be free from viruses, Code Studio and/or the Hosting Provider will regularly check for the presence of viruses.
4. PAYMENT
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4.1 On the Service Commencement Date Code Studio will send the Customer an invoice in respect of the Fees payable during the first Billing Period.
4.2 After that, Code Studio will send the Customer an invoice for the Fees payable during each subsequent Billing Period on the first day of such Billing Period.
4.3 Code Studio shall send the Customer an invoice for all Supplemental Fees either as soon as Code Studio has provided the relevant Professional Services or at the end of the calendar month during which the relevant Professional Services are provided.
4.4 All payments shall be made in Pounds Sterling on or before the invoice date. All fees are exclusive of applicable Value Added Tax or other relevant taxes.
4.5 Code Studio reserves the right to vary the Fees after the Initial Term and/or amend its payment terms or billing practices by giving the Customer not less than 30 days prior written notice to take effect on the last day of the month following the month in which such notice is given. After the Initial Term, Code Studio may adjust the Fees no more often than once per twelve (12) month period.
4.6 If the Customer does not pay within 28 days after the invoice date Code Studio reserves the right to charge interest at 5% per year above Cater Allen Private Bank Ltd base lending rate from the invoice date until the date of actual payment and on at least 3 days notice, suspend any or all of the Services until payment of the invoice, any interest above, and any sums due below are received by Code Studio.
5. CUSTOMER COMMITMENTS
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5.1 The Customer shall provide and maintain his/its own equipment, software and communications lines, including any public lines required by the Customer properly to access the Customer's Web Solution, content or data. Unless otherwise agreed by Code Studio and the Customer under separate development or other contracts, the Customer will be solely responsible for any changes to the Customer's Web Solution.
5.2 All Internet use is subject to security vulnerabilities and the Customer acknowledges that a security breach could be disastrous for the Customer as well as for Code Studio. The Customer's use of the Internet is at the Customer's own risk. Code Studio requires the Customer to use at least reasonable security precautions in the light of its business and the Services the Customer is using. The Acceptable Use Policy describes in detail the security precautions which Code Studio requires the Customer to take.
5.3 Services are provided subject to the Customer's proper use and therefore, the Customer undertakes that his or its agent's use of the Services will not:
5.3.1 be in breach of the Rules and any other applicable laws, codes or regulations including data protection;
5.3.2 involve theft, fraud, drug-trafficking, money-laundering and/or terrorism;
5.3.3 incite violence, sadism, cruelty or racial hatred;
5.3.4 facilitate prostitution or paedophilia;
5.3.5 be defamatory, pornographic, obscene, indecent, abusive, offensive or menacing;
5.3.6 introduce intentionally or knowingly into the Services any virus or other contaminating program or fail to use an up to date virus-scanning program on all material downloaded from the Services;
5.3.7 be used to send unsolicited e-mails ("spam");
5.3.8 disclose your login names, passwords and other confidential information relating to your access to the Services;
5.3.9 "spoof" other computer networks and users; or
5.3.10 unreasonably interfere with other customers' use of the Services.
The Customer agrees to indemnify Code Studio against all liability it incurs as a result of the Customer's breach of any of paragraphs 5.3.1 to 5.3.10.
5.4 The Customer agrees that Code Studio or the Hosting Provider may suspend Services without telling the Customer and without liability if: (i) Code Studio or the Hosting Provider believe that the Services are being used in violation of the Rules; (ii) the Customer does not cooperate with Code Studio's investigation of any suspected violation of the Rules; (iii) there is an attack on the Customer's servers or other event for which Code Studio or the Hosting Provider reasonably believe that the suspension of Services is necessary to protect their network or other customers, or (iv) if required by law or regulation.
5.5 The Customer acknowledges that in the course of providing the Services, Code Studio and the Hosting Provider will be required to electronically reproduce the Customer's content by making transitory electronic copies.
5.6 The Customer agrees to reimburse Code Studio for its costs and expenses arising from any breach of the Rules or the breach of a third party's rights by the Customer or clients of the Customer or user's content, data or equipment.
6. OWNERSHIP RIGHTS
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Code Studio and the Customer agree that this Agreement does not transfer any rights of ownership in the technology or Intellectual Property Rights of the other party or its suppliers or licensors. The Customer agrees not to try to access Code Studio's and/or its third party suppliers' source code or other trade secrets.
7. LIABILITY
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7.1 Code Studio agrees to provide the Firewall Protection, but Code Studio is not liable to the Customer if there is any unauthorised access to the Customer's Web Solution, content or data through use of Code Studio's Services unless the access was caused by Code Studio's gross negligence.
7.2 Code Studio will not be liable in any way for any increased costs or expenses, loss of profit, business contracts, revenues or expected savings or any special, indirect or consequential damage whatsoever arising out of any provision or use of the Services or Professional Services or of any error or defect in either or of the performance, non-performance or delayed performance by Code Studio under this Agreement.
7.3 Code Studio's total aggregate liability for any loss or damage arising out of, or in connection with, the Services or this Agreement will not exceed the amount equal to the Fees received by Code Studio during the previous 3 months of this Agreement.
7.4 Nothing in this Agreement excludes or limits Code Studio's liability for death or personal injury caused by Code Studio's negligence or for fraudulent misrepresentation.
7.5 To the maximum extent permitted by applicable law, the Customer agrees that the Services are used at the Customer's sole risk and are provided 'as is' without warranty of any kind, whether express or implied, including, but not limited to, any warranties (if any) arising by statute or otherwise in law, all of which are hereby excluded. Code Studio does not guarantee, warrant or make any representation that the Services or any related technology will meet the Customer's requirements, or be uninterrupted or error-free, or that defects will be corrected. Code Studio does not guarantee, warrant or make any representation regarding the use or the results of the use of the Services or related technology in terms of correctness, accuracy, reliability, currentness or otherwise. No oral or written information or advice given by Code Studio or its authorised representatives shall create a warranty.
7.6 Code Studio will not be deemed to be in breach of this Agreement or be liable for any delay, failure of performance or interruption of the Services to the Customer or loss caused by anything which is outside Code Studio's reasonable control.
7.7 The Customer shall indemnify Code Studio against any liability Code Studio incurs to third parties resulting from the Customer's use of the Services and/or the Professional Services.
8. OTHER PEOPLE'S PRODUCTS
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8.1 At the Customer's request and subject to the Customer entering into such third party's standard contracts, Code Studio may provide third party software and/or services and may also provide product support for them.
8.2 Code Studio will use Microsoft Software to provide the Services and the Customer therefore agrees to the Customer License Terms for Microsoft Software that appear at http://www.rackspace.co.uk/aboutus/microsoftlicense.htm.
8.3 The Customer agrees that the use of third party products in accordance with their standard contracts is at the Customer's sole risk and Code Studio is not responsible in any way for their performance, features or failures.
9. ENDING THE AGREEMENT
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9.1 At the end of the Initial Term either party to this Agreement may end this Agreement without reason by giving at least 30 days' notice in writing.
9.2 Code Studio may end this Agreement by notice in writing with immediate effect if the Customer:
9.2.1 breaches this Agreement and, if capable of being fixed, the Customer has not fixed it within 7 days of Code Studio's notice telling the Customer to fix it; or
9.2.2 is declared bankrupt or is unable to pay its debts or enter into compulsory or voluntary liquidation or compound with or convene a meeting of your creditors or have a receiver or manager or an administrator appointed or cease for any reason to carry on business or take or suffer any similar action which in Code Studio's opinion means that the Customer may be unable to pay its debts.
9.3 On termination of this Agreement for whatever reason (i) the rights and/or obligations which have accrued prior to termination shall not be effected; (ii) in the event that such termination occurs prior to the end of the Initial Term, the Customer shall pay all Fees and Supplemental Fees due up to the end of the Initial Term; (iii) all confidential information, passwords and documentation shall be returned to Code Studio; and (iv) the Customer will give up any Internet protocol numbers addresses or address blocks allocated to the Customer and if the Customer fails to give up any allocated Internet protocol and related products Code Studio may change or remove them; and (v) Code Studio shall have no further duty to provide Services or Professional Services to the Customer. If the Customer requests the support of Code Studio to move its websites to another hosting provider Code Studio may provide this as part of the Professional Services, subject to payment of the relevant Supplemental Fees.
10. CONFIDENTIALITY
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10.1 Each party agrees to use and to procure that its employees, agents and sub-contractors use all reasonable endeavours to ensure that all data and information relating to the other's business provided to or acquired by it, its employees, agents or sub-contractors ("Receiving Party") under this Agreement, including but not limited to the Rackspace Technology, data, drawings, specifications, and documentation, are treated as secret and confidential and will not be disclosed to any third party without the prior written consent of the other party unless:
10.1.1 the information was already lawfully known or became lawfully known to the Receiving Party independently of its involvement in this Agreement, or
10.1.2 the information is or becomes within the public domain other than due to the wrongful disclosure by the Receiving Party, or
10.1.3 disclosure or use is necessary for the proper and effective performance of the Receiving Party's rights under this Agreement, or
10.1.4 disclosure is required by a person or body having a legal right, duty or obligation to have access to the information and then only in pursuance of such a legal right, duty or obligation, or
10.1.5 disclosure is to those employees, agents or sub-contractors who need to know the information in order to perform obligations under this Agreement.
10.2 The provisions of this clause 10 shall survive the termination of this Agreement.
11. LAW AND DISPUTES
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11.1 This Agreement shall be governed by English law.
11.2 Each party agrees to attempt in good faith to resolve any dispute first by discussing it. If the dispute cannot be resolved within a period of 30 days then each party agrees to the exclusive jurisdiction of the English Courts.
12. GENERAL
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12.1 This Agreement together with the Service Order Form and the Rules supersedes all prior agreements, arrangements and understandings and is the entire agreement between Code Studio and the Customer in relation to the subject matter of this Agreement. Any changes must be agreed in writing and signed by authorised representatives of both parties.
12.2 If any part of this Agreement is unenforceable the remainder will continue to apply.
12.3 Code Studio and the Customer shall not be considered to be partners nor shall either party be responsible for any act or failure to act of the other or have the right or authority to bind the other in any way.
12.4 A third party shall not have any rights under this Agreement.
12.5 The Customer may not transfer its rights or duties under this Agreement without the prior written consent of Code Studio. Code Studio may transfer its rights or duties and may also delegate some of its rights or duties to third parties.
12.6 Any notice to Code Studio shall be given at the address given at the beginning of this Agreement by letter or by email to support@codestudio.com. Any notice to the Customer shall be given at the address given in the Service Order Form on the last page of this Agreement by letter or by email. A letter shall be delivered by recorded delivery post and will be deemed to have been given 3 working days after the day on which it was sent. Emails will be deemed to have been received by 5pm on the date sent.
12.7 If a party does not enforce a right available to it under this Agreement in any particular instance, then that will not prevent it from enforcing that right in future or in any other instance.