Terms and Conditions

This Agreement is made by and between Web Propel, a company incorporated in England and having its registered office and you, the Client.

DEFINITIONS
1. “Agreement” means these terms and conditions of supply as amended from time to time;
2. “Hosting Services” means the services to be provided by Web Propel to Client pursuant to this Agreement as detailed in Schedule 1, as amended from time to time;
3. “Website” means Client’s website or websites developed by Web Propel for Client.
4. “Servers” means the computer equipment and software used by Web Propel to host the Website or any item or items thereof from time to time;
5. “Internet” means an interconnected system of networks that connects computers around the world via the TCP/IP protocol to facilitate data transmission and exchange.
6. “Availability” means the availability of Client’s Website via the Internet, demonstrated by means of either a ping or HTTP request to the homepage, records of which shall be maintained by Web Propel and shall be evidence of availability in the event of a dispute.
7. “Downtime” means in respect of any month the total time during which Client’s Website is not available via the Internet; for purposes of this provision Downtime excludes:
  1. any period of essential maintenance, announced by Web Propel at least 48 hours in advance of the maintenance commencing and agreed by Client;
  2. any period during which any service or Website is unavailable as a direct consequence of any breach of the Agreement by Client, the negligence of Client or its employees, servants or agents, any defect in any of the Websites (other than any defect caused by an act or omission of Web Propel), any incompatibility between platform software and content and any defect in any software provided by Client to Web Propel under the Agreement.
  Any period of Downtime is deemed to commence from the time Client reports it in writing to Web Propel, or time Web Propel notes the fault, until Web Propel resolves the incident.
8. “Fees” means the fees payable by Client for the design, development and installation of the Deliverables and the provision of the Services under this Agreement and set out in Schedule 1 of this Agreement, as amended from time to time;
9. “Intellectual Property” means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design, domain names and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
10. “Materials” means all materials owned by a party used in the provision of Hosting Services, including operating systems and software programmes.
11. Unless the context requires otherwise words in the singular include the plural and vice versa and words for any gender shall include all genders. Reference to persons includes a body corporate.
12. Reference to any statute or statutory provision includes a reference to statutory instruments and orders made further to it and includes consolidations or amendments or modifications or re-enactments.
13. The headings are inserted for convenience only and shall not affect the construction of this Agreement.
14. Unless otherwise stated a reference to a Clause or a Schedule or a party is a reference to a Clause in or a Schedule to or a party to this Agreement.
15. Reference to writing includes any method of reproducing words in a legible and non-transitory form.
Web Propel's OBLIGATIONS
1. In consideration of the payment of the Fees, Web Propel hereby agrees to:
  1. provide Hosting Services from a dedicated hosting facility “Data Centre” in accordance with Schedule 1;
  2. maintain the Servers and Materials used by Web Propel for the purpose of providing Hosting Services, including any relevant application software or middleware;
  3. perform daily on-site backups of the Website (including data and data-files) taking all necessary steps to keep them;
  4. perform weekly off-site backups of the Website (including data and data-files) by transferring the Website (including data and data-files) from the dedicated hosting facility to Web Propel offices taking all necessary steps to keep them secure;
AVAILABILTY
1. Web Propel will use reasonable endeavours to ensure that the Website has guaranteed levels of availability from Monday to Sunday, including public holidays, within England. Availability will be measured in accordance to “Availability” calculations pursuant to Schedule 1.
2. If availability to the Website falls below the guaranteed levels in any month, then the Fees specified in Schedule 1 shall be reduced in accordance with the “Compensation” calculations pursuant to Schedule 1.
3. For the purpose of this paragraph, “Available” means that the Website will be accessible via the Internet. For the avoidance of doubt Client understands that the Internet is not owned by any single entity; that it is a network of networks; and that sections of the Internet may be temporarily inaccessible through no fault or responsibility of Web Propel.
4. For the purpose of this paragraph and for any compensation calculations, non-availability of the Website shall be called “Downtime” and excludes periods of planned and essential maintenance pursuant to clause 6 and any suspension of services due to negligence or breach of Agreement by Client or its employees, servants or agents pursuant to Schedule 1.
GENERAL SUPPORT
If Client wishes to notify Web Propel of any problem or queries, they should send an e-mail either to their account manager or alternatively mail@webpropel.com Calls may also be made, but all problems must be stated in writing. Web Propel shall rectify the problem remotely or make technicians available on site within 2 hours of receipt of the notification of the problem.
MAINTENANCE
Client accepts that Web Propel may need to temporarily suspend all Services for the purpose of repair, maintenance or improvement of any of its systems. Web Propel shall notify Client 48 hours in advance of any planned suspension, and warrants that any planned suspension of Services will only occur with Client’s agreement. Client shall not be entitled to any discount, refund or other credit in the case of any outage, which is beyond Web Propels reasonable control.
FEES AND PAYMENT
1. In consideration for the provision of the Deliverables, Client shall pay Web Propel the Fees in accordance with the Implementation Schedule, and such fees shall be payable within 30 days of the date of the invoice.
2. Web Propel reserves the right to charge interest at the rate of four percent (4%) above the base lending rate of HSBC Bank PLC on invoices which are overdue for payment from the due date to the date of actual payment
3. All sums due under this Agreement are exclusive of value added tax which shall be paid by Client at the rate and in the manner prescribed by law.
SECURITY
1. Both Web Propel and Client recognise that it is impossible to maintain flawless security, but Web Propel will use all reasonable endeavours to prevent security breaches and unauthorised access to the Site, Servers, Website, data and data files including all back-up material.
2. Web Propel shall establish and maintain reasonable safeguards against the destruction, loss or unauthorised alteration of the Site, Servers, Website, data and data files including all back-up material.
3. Client shall also follow reasonable security procedures where appropriate to restrict their internal access to the Site, Servers, Website, data and data files including all back-up material.
4. Web Propel shall ensure that the Website files, updates, programs and contents will, during the duration of this Agreement, be screened with anti-virus tools.
5. Web Propel shall maintain and continue to maintain throughout the term of this Agreement a backup of Client’s Website, data and data files including all back-up material.
INTELLECTUAL PROPERTY
1. The Parties acknowledge that this Agreement does not have the effect of transferring the ownership of any Intellectual Property.
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 Party on a non-exclusive, royalty-free basis for the sole purpose of fulfilling that Part’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.
WARRANTIES
1. Each of the parties warrants that it has full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder.
2. Web Propel hereby warrants that:
  1. it will perform its obligations under this Agreement with reasonable care and skill and in accordance with industry best practice;
  2. they will conform substantially with the Specification at the Acceptance Date;
  3. it owns and/or is licensed to use any Materials for the purposes of this Agreement and will maintain such permissions and clearances during the term of this Agreement.
3. Web Propel reserves the right to use in any way it thinks fit, any operating system, software programme, hardware and/or server configuration, skills and techniques acquired or used by Web Propel in the performance of this Agreement.
4. Web Propel agrees to indemnify Client against all damages, costs and expenses (including reasonable legal fees) reasonably incurred by it in respect of claims made against Client that the use of the Hosting Services (other than the Material) in accordance with this Agreement infringes any third party's copyright (enforceable in the UK) in the Hosting Services, provided that Client:
  1. shall notify Web Propel forthwith on it becoming aware of any claim or potential claim;
  2. shall not settle compromise or negotiate the settlement of any such third party claim without the prior consent of Web Propel (such consent not to be unreasonably withheld);
  3. if requested by Web Propel, shall pass the conduct of any such claim to Web Propel (at Web Propel's cost);
  4. shall (at Web Propel's cost) give such assistance as Web Propel may reasonably require to settle or oppose any such claim.
5. Client agrees to indemnify Web Propel against all damages, costs and expenses (including reasonable legal fees) reasonably incurred by it in respect of claims made against Web Propel that the use of the Material in accordance with this Agreement infringes any third party's Intellectual Property or any applicable legislation provided that Web Propel:
  1. shall notify Client forthwith on it becoming aware of any claim or potential claim;
  2. shall not settle compromise or negotiate the settlement of any such third party claim without the prior consent of Client (such consent not to be unreasonably withheld);
  3. if requested by Client, shall pass the conduct of any such claim to Client (at Client's cost); and
  4. shall (at Client's cost) give such assistance as Client may reasonably require to settle or oppose any such claim.
LIMITATIONS OF LIABILITY
1. Web Propel's total liability in contract, tort, negligence or otherwise arising out of or in connection with the performance or observance of its obligations, or otherwise, in respect of this Agreement shall be limited in aggregate to all sums paid by Client under this Agreement.
2. In any event, neither party shall be liable to the other under, or in connection with, this Agreement in contract, tort, negligence, pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise for any loss of business, contracts, profits or anticipated savings or for any indirect or consequential or economic loss whatsoever.
3. Web Propel excludes all conditions, terms, representations (other than fraudulent or negligent representations) and warranties relating to the Deliverables, whether imposed by statute or by operation of law or otherwise, that are not expressly stated herein, including without limitation, the implied warranties of satisfactory quality and fitness for a particular purpose.
4. Nothing in this Agreement shall exclude or limit either party's liability to the other for death or personal injury resulting from the negligence of the other.
5. Each provision in this Clause 10 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding termination of this Agreement.
TERMINATION
1. This Agreement shall take effect from the date hereof and shall continue thereafter unless terminated by either party in accordance with its terms.
2. Either party shall be entitled to terminate this Agreement forthwith on written notice in the event that the other:
  1. is in material breach of the terms of this Agreement and having received from the party not in breach, written notice of such breach stating the intention to terminate the Agreement if not remedied, fails to remedy the breach within 30 days;
  2. shall have a receiver or administrative receiver or administrator appointed over it or over any part of its undertakings or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all the liabilities of it) or a court of competent jurisdiction shall make an order to that effect or shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on its business;
  3. but otherwise on three calendar months written notice on the other.
CONSEQUENCES OF TERMINATION
1. In the event of termination of this Agreement:
  1. Client agrees with Web Propel promptly to (i) provide Web Propel with all outstanding payments (if any) due to it and (ii) cease making any reference, whether written or oral, to the relationship with Web Propel.
2. On termination of this agreement Web Propel may, at its discretion, cease providing any Services to Client pursuant to this Agreement and shall be entitled to remove the Deliverables from the Server and store the same in electronic format.
3. None of the parties hereunder shall be liable to pay any compensation to the other for loss of profits or loss of goodwill arising as a result of the termination of this Agreement.
4. Termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to such termination.
5. The provisions of Clauses 1,9,10,11,12,14 and 15 shall survive termination of this Agreement.
ADVERTISING STANDARDS
1. Client shall abide by the guidelines and rulings of the Advertising Standards Authority, the British Code of Advertising Practice, the British Code of Sales Promotion Practice and IPA Code of Advertising Standards and Practice and any other codes of advertising standards laid down voluntarily within the advertising industry to ensure that all advertising placed on behalf of Client is legal, decent, honest, truthful and non defamatory.
2. Client shall inform Web Propel as soon as reasonably practicable if it considers that any claim or trade description in any proposed advertisement supplied by Client to Web Propel regarding Client’s goods or services is false or misleading in relation to such goods or services.
3. Client will indemnify Web Propel and keep Web Propel fully and effectively indemnified against all damages, costs, expenses (including legal fees) reasonably incurred by Web Propel in respect of any breach by Client of this Clause 13.
CONFIDENTIALITY
1. Both Client and Web Propel agree to keep and treat as confidential and not disclose to any third party (other than to those employees, agents or advisors of the party who need to know for the purposes of this Agreement), any information relating to the business, affairs, finances or trade secrets of the other and regardless of its nature ("Confidential Information") strictly confidential, nor to make use of such information for any purpose whatsoever.
2. The obligations contained in Clause 14.1 shall not extend to information which is:
  1. in or comes into the public domain other than by breach of this Agreement or any other duty of confidence; and
  2. known by either party, in connection with the other party and which has been disclosed to either party by a third party (other than Web Propel or Client) and not in breach of any duty of confidence;
  3. is obtained from a third party without breach of this Clause or any other duty of confidence;
  4. is trivial or obvious; and
  5. a disclosure which is required to be made by order of a court or regulatory authority of competent jurisdiction.
3. The obligations contained in this Clause 14 shall continue notwithstanding the expiration or termination of this Agreement and each party shall so bind its directors and employees.
4. Other than required by law or any regulatory body, Web Propel shall not be entitled to reveal to any third party the details of its appointment hereunder, without specific written consent from Client.
NOTICES
1. Any notices required to be given under this Agreement shall be in writing and shall be deemed to have been duly served if hand delivered or sent by facsimile within the United Kingdom by first class registered or recorded delivery post and outside the United Kingdom by registered airmail post correctly addressed to the relevant party's address as specified in this Agreement or at such other address as either party may designate from time to time in accordance with this Clause.
2. Any notice pursuant to Clause 15.1 shall be deemed to have been served:
  1. if hand delivered at the time of delivery by posting through the letter box of the correct addressee in accordance with Clause 15.1 above;
  2. if sent by facsimile within one hour of transmission during business hours at its destination or within 24 hours if not within business hours but subject to proof by the sender that it holds an acknowledgement confirming receipt of the transmitted notice in readable form; and
  3. if sent by post within 48 hours of posting (exclusive of the hours of Sunday) if posted to an address within the country of posting and seven days of posting if posted to an address outside the country of posting.
FORCE MAJEURE
1. Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party for any delay in the performance of or any failure to perform any obligations under this Agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or failure is due to circumstances beyond its reasonable control including without limitation flood, fire, earthquake, riots, industrial disputes not involving employees of such party or computer viruses not arising through the fault of either party (“Force Majeure”).
2. A party suffering an event of Force Majeure shall promptly notify the other of the nature and extent of the circumstances giving rise to Force Majeure.
3. If the relevant Force Majeure prevails for a continuous or aggregate period in excess of two months after the date on which the Force Majeure begins, the parties shall enter into bona fide discussions with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be reasonable in all the circumstances.
4. Notwithstanding the foregoing, the occurrence of a Force Majeure event shall not relieve Client from its obligation to pay Web Propel any amounts then due and owing to Web Propel pursuant to the terms of this Agreement.
DATA PROTECTION
Each of the parties warrants to the other that they have or they are in the process of applying for all requisite registrations under the Data Protection Act 1988 ("Act") and will maintain such registrations throughout the term of this Agreement and will comply with the provisions of the Act.
ENTIRE AGREEMENT
This Agreement (as amended from time to time) together with any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement. Client confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly in this Agreement been made a representation and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement save that the agreement of Client contained in this Clause shall not apply in respect of any fraudulent or negligent misrepresentation whether or not such has become a term of this Agreement
ALTERATION OF AGREEMENT
No alteration or modification of, or addition to any provision of this Agreement, shall be valid unless made in writing and signed by a duly authorised representatives of each of the parties.
INVALIDITY AND SEVERABILITY
If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect that shall not affect or impair the legality, validity or enforceability of any other provision of this Agreement.
REMEDIES AND WAIVERS
1. No delay or omission on the part of either party in exercising any rights, power or remedy provided by law or under this Agreement shall impair such rights, power or remedy or operate as a waiver thereof.
2. The single or partial exercise of any right, power or remedy provided by law or under this Agreement shall not preclude any other further exercise thereof or the exercise of any other right, power or remedy.
3. The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law.
NO PARTNERSHIP
Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
FURTHER ASSURANCE
Each party undertakes with the other to do all things reasonably within its power which are necessary or desirable to give effect to the spirit and intent of this Agreement.
COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original but all the counterparts together shall constitute one and the same instrument.
LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with English law and the parties hereto irrevocably agree to submit in respect of any matter arising out of or connected with this Agreement to the exclusive jurisdiction of the English court.