All contracts that the Provider may enter into from time to time for the provision of the Provider's services shall be governed by these Terms and Conditions, and the Provider will ask the Customer for the Customer's express written acceptance of these Terms and Conditions before providing any such services to the Customer.

  1. Definitions

    1. Except to the extent expressly provided otherwise, in these Terms and Conditions:

      "Acceptance Criteria" means:
      (a) the Website conforming in all material respects with the Website Specification; and
      (b) the Website being free from Website Defects;

      "Acceptance Period" means a period of 10 Business Days following the supply of the Website to the Customer or the resupply of the Website to the Customer in accordance with Paragraph 3 of Schedule 1 (Web design and development services), or such other period as the parties may agree in writing;

      "Acceptance Tests" means a set of tests designed to establish whether the Website meets the Acceptance Criteria, providing that the exact form of the tests as set out under User Acceptance Testing or determined and documented by the Customer, and communicated to the Provider in advance of the Statement of Work being agreed;

      "Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

      "Annex" means any annex to a Schedule;

      "Business Day" means any weekday other than a bank or public holiday in England;

      "Business Hours" means the hours of 08:30 to 17:30 GMT/BST on a Business Day;

      "Charges" means the following amounts:
      (a) the amounts specified in Section 8 of the Statement of Work;
      (b) such amounts as may be agreed in writing by the parties from time to time; and
      (c) amounts calculated by multiplying the Provider's standard time-based charging rates (as notified by the Provider to the Customer before the date of the Contract) by the time spent by the Provider's personnel performing the Services (rounded up by the Provider to the nearest quarter hour);

      "Confidential Information" means the Provider Confidential Information and the Customer Confidential Information;

      "Contract" means a contract made under these Terms and Conditions between the Provider and the Customer;

      "Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);

      "Customer" means the person or entity identified as such in Section 1 of the Statement of Work;

      "Customer Confidential Information" means:
      (a) any information disclosed by or on behalf of the Customer to the Provider during the Term or at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Provider (acting reasonably) to be confidential; and
      (b) the terms of the Contract;

      "Customer Indemnity Event" has the meaning given to it in Clause 20.3;

      "Customer Materials" means all works and materials supplied by or on behalf of the Customer to the Provider for use in connection with the Services;

      "Customer Personal Data" means Personal Data that is processed by the Provider on behalf of the Customer in relation to the Contract and shall include personal names, business names, addresses, email addresses, telephone numbers and IP addresses;

      "Customer Representatives" means the person or persons identified as such in Section 9 of the Statement of Work, and any additional or replacement persons that may be appointed by the Customer giving to the Provider written notice of the appointment;

      "Customer Trade Marks" means the registered and unregistered trade marks of the Customer identified in Section 6 of the Statement of Work;

      "Design Services" means the design of the Website by the Provider;

      "Design and Development Services" means the design and development of the Website by the Provider;

      "Development Services" means the development of the Website by the Provider;

      "Documentation" means the documentation for the Website produced by the Provider and delivered or made available by the Provider to the Customer;

      "Domain Name Services" means the registration of domain names and the maintenance of domain name registrations by the Provider on behalf of the Customer;

      "Effective Date" means the date of execution of the Contract;

      "Email Marketing Services" means some or all of the following services as specified in Section 3 of the Statement of Work: assisting with and advising upon the Customer's email marketing strategy; designing, in consultation with the Customer, the forms, emails and web pages to be used in connection with email marketing lists and campaigns; and providing the Customer with written reports about these services detailing numbers of subscriptions and unsubscribes during each calendar month, and numbers of emails sent, returned and opened during each mailing;

      "Email Services" means those email services specified in Section 3 of the Statement of Work which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;

      "Expenses" means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider's obligations under the Contract;

      "Export Laws" means all applicable laws restricting and/or regulating:
      (a) the inter-jurisdictional import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information; and/or
      (b) the import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information to designated entities or persons, or to designated classes of entities or persons;

      "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third-party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

      "Hosted Data" means all data, works and materials: uploaded to or stored on the Hosting Platform by the Customer, or by any third-party using any software made available by means of the Hosting Platform; transmitted by the Hosting Platform at the instigation of the Customer, or at the instigation of any third-party using any software made available by means of the Hosting Platform; or supplied by the Customer to the Provider for uploading to, transmission by or storage on the Hosting Platform;

      "Hosting Account" means an online account enabling a person to configure and manage the Hosting Services;

      "Hosting Platform" means the platform managed by the Provider and used by the Provider to provide the Hosting Services, including the application, database, system and server software used to provide the Hosting Services, and the computer hardware on which that application, database, system and server software is installed;

      "Hosting Backup Services" means those web hosting backup services specified in Section 3 of the Statement of Work which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;

      "Hosting Services" means those web hosting services specified in Section 3 of the Statement of Work which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;

      "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

      "Maintained Software" means the Supported Website software and the software detailed under Hosting Server Software and Updates;

      "Maintenance Services" means the application to the Maintained Software of Updates and Upgrades;

      "Minimum Term" means, in respect of the Contract, the period specified in Section 2 of the Statement of Work;

      "Permitted Purpose" means the use of Confidential Information in delivering the Services as agreed by the parties in Section 3 of the Statement of Work;

      "Personal Data" has the meaning given to it in the Data Protection Act 1998;

      "Provider" means Cultrix Limited, a company incorporated in England and Wales (registration number 04556716) having its registered office at Kendray Business Centre, Thornton Road, Barnsley, South Yorkshire, S70 3NA;

      "Provider Confidential Information" means:
      (a) any information disclosed by or on behalf of the Provider to the Customer during the Term or at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Customer (acting reasonably) to be confidential; and
      (b) the terms of the Contract;

      "Provider Credit" means a textual credit for the Provider incorporating a link to the website of the Provider, in a form agreed by the parties acting reasonably;

      "Provider Indemnity Event" has the meaning given to it in Clause 20.1;

      "Provider Representatives" means the person or persons identified as such in Section 9 of the Statement of Work, and any additional or replacement persons that may be appointed by the Provider giving to the Customer written notice of the appointment;

      "Release" means, in respect of an Update or Upgrade produced by the Provider, the release of that Update or Upgrade to the customers of the Provider generally and, in respect of an Update or Upgrade produced by a person other than the Provider, the public release of that Update or Upgrade (and "Released" shall be construed accordingly);

      "Remedy Period" means a period of 20 Business Days following the Customer giving to the Provider a notice that the Website has failed the Acceptance Tests, or such other period as the parties may agree in writing;

      "Schedule" means any schedule attached to the main body of these Terms and Conditions;

      "Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

      "Source Code" means software code in human-readable form, including human-readable code compiled to create software or decompiled from software, but excluding interpreted code;

      "SSL Certificate Services" means the purchase of SSL certificates, the installation of SSL certificates and the maintenance of SSL certificates by the Provider on behalf of the Customer;

      "Statement of Work" means a written statement of work agreed by or on behalf of each of the parties;

      "Support Services" means support in relation to use of the Supported Website and the identification and resolution of errors in the Supported Website, the addition of content to the Supported Website, and minor changes in the layout and design of the Supported Website (providing that the Provider shall determine acting reasonably whether a proposed change is minor); for the avoidance of doubt, such services shall not include the provision of training services, significant changes in the layout or design of the Supported Website or any software development services;

      "Supported Website" means the website or websites identified as such in the Statement of Work;

      "Term" means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

      "Terms and Conditions" means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions, the Schedules, the Annexes and the Statement of Work, including any amendments to that documentation from time to time;

      "Third-Party Materials" means those elements of the works and materials that are delivered to the Customer, or that the Provider has an obligation to deliver to the Customer, under the Contract (excluding the Customer Materials), the Intellectual Property Rights in which are owned by a third-party, and which are specified in the Statement of Work or which the parties agree in writing shall be incorporated into those works and materials;

      "Training" means the training for the Website that the Provider has an obligation to deliver to the Customer, under these Terms and Conditions;

      "Update" means a hotfix, patch or minor version update to the Maintained Software;

      "Upgrade" means a major version upgrade of the Maintained Software;

      "Website" means the website developed or to be developed by the Provider for the Customer under the Contract, as specified in the Statement of Work, including all the Source Code for that website created by the Provider in the course of providing the Services;

      "Website Defect" means a defect, error or bug in the Website having a material adverse effect on the appearance, operation, functionality, security or performance of the Website, but excluding any defect, error or bug caused by or arising as a result of:
      (a) any act or omission of the Customer or any person authorised by the Customer to use the Website;
      (b) any use of the Website contrary to the Documentation or Training by the Customer or any person authorised by the Customer to use the Website;
      (c) a failure of the Customer to perform or observe any of its obligations in these Terms and Conditions; and/or
      (d) an incompatibility between the Website and any other system, network, application, program, hardware or software not specified as compatible in the Website Specification; and

      "Website Specification" means the specification for the Website set out in Section 4 of the Statement of Work, as it may be varied by the written agreement of the parties from time to time.

  2. Term

    1. The Contract shall come into force upon the Effective Date.

    2. The Contract shall, in the case of Web Design and Development Services, continue in force until the Acceptance Criteria is met, upon which the Contract shall terminate automatically or, for all other Services, continue in force until 12 months after the Effective Date, or the Minimum Term specified in Section 2 or the Statement of Work, at the beginning of which the Contract shall renew automatically, subject to termination in accordance with Clause 23 or any other provision of these Terms and Conditions.

    3. Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.

  3. Services

    1. The Provider shall provide to the Customer those Services that the parties have agreed in the Statement of Work shall be so provided.

    2. The Provider shall devote such of its personnel's time and expertise to the performance of the Services as may be necessary for their satisfactory and timely completion.

    3. The Provider shall keep the Customer informed about the progress of the Services and, in particular, shall promptly provide information about such progress following receipt of a written request from the Customer to do so.

    4. The Provider shall comply with all reasonable internal policies and procedures operated by the Customer, communicated by the Customer to the Provider and affecting the provision of the Services.

    5. The Provider may suspend the provision of any or all of the Services if any amount due to be paid by the Customer to the Provider under the Contract is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to do so.

  4. Customer obligations

    1. Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
      (a)    co-operation, support and advice;
      (b)    information and documentation; and
      (c)    governmental, legal and regulatory licences, consents and permits,
      as are reasonably necessary to enable the Provider to perform its obligations under the Contract.

    2. The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Contract.

    3. Save as expressly provided in these Terms and Conditions, the Customer shall be responsible for obtaining and where relevant paying for any licences of third-party software that may be required for the use of the Services.

    4. The Customer shall be responsible for ensuring that its passwords relating to the Services are securely constructed, are kept securely and not disclosed to any unauthorised person; and the Customer must notify the Provider as soon as practicable if the Customer becomes aware that any password relating to the Services has been or may have been compromised or misused.

  5. Customer Materials

    5.1    The Customer must supply to the Provider the Customer Materials specified in Section 4 of the Statement of Work, in accordance with the timetable specified in Section 7 of the Statement of Work.

    5.2    The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Materials to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under these Terms and Conditions, together with the right to sub-license these rights to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under these Terms and Conditions.

    5.3    The Customer warrants to the Provider that the Customer Materials when used by the Provider in accordance with these Terms and Conditions will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

  6. Customer Trade Marks

    6.1    Within 10 Business Days following the Effective Date, the Customer shall provide or make available to the Provider representations of the Customer Trade Marks in a digital format reasonably satisfactory to the Provider.

    6.2    The Customer grants to the Provider a non-exclusive licence to use the Customer Trade Marks during the Term for the purposes (and only for the purposes) of enabling the provision of the Services to the Customer, and providing that the Customer has given its prior written consent in relation to the type of use in question, or the Customer has not objected to the type of use within the period of 10 Business Days following receipt of a written notice from the Provider detailing the type of use in question.

    6.3    The Provider must ensure that all uses of the Customer Trade Marks will be in accordance with any style guide supplied or made available by the Customer to the Provider.

    6.4    The Provider shall ensure that all instances of the use of the Customer Trade Marks will be of a reasonable professional standard.

    6.5    Notwithstanding any other provision of these Terms and Conditions, the Provider must not use the Customer Trade Marks in any way that:
    (a)    may invalidate or lead to the revocation of or otherwise jeopardise any registered trade mark protection benefiting the Customer Trade Marks;
    (b)    may assist with any application to cancel or invalidate any registered Customer Trade Mark or any opposition to any application by the Customer to register any Customer Trade Mark;
    (c)    is likely to cause harm to the goodwill attaching to any of the Customer Trade Marks;
    (d)    may prejudice the right or title of the Customer to the Customer Trade Marks; or
    (e)    is liable to bring the Customer or any Customer Trade Mark into disrepute.

    6.6    All goodwill arising as a result of, or in relation to, the use of the Customer Trade Marks will accrue exclusively to the Customer.

    6.7    If the Customer considers that a use of the Customer Trade Marks by the Provider breaches the provisions of this Clause 6 or is otherwise undesirable, the Customer may issue a notice to the Provider requesting that such usage cease, and the Provider must ensure that such usage will cease within 5 Business Days following receipt of such a notice.

    6.8    The Customer warrants to the Provider that the use by the Provider of the Customer Trade Marks in accordance with these Terms and Conditions will not infringe any person's Intellectual Property Rights in any jurisdiction and under any applicable law.

    6.9    The Provider will not by virtue of the Contract obtain or claim any right, title or interest in or to the Customer Trade Marks except as expressly set out in these Terms and Conditions.

    6.10  Within 10 Business Days following the termination of the Contract, the Provider must cease to use the Customer Trade Marks and must:
    (a)    remove or permanently obscure Customer Trade Marks that appear on any works and materials in the possession or control of the Provider; and
    (b)    to the extent that neither removal nor permanent obscuring is practicable, deliver to the Customer or destroy (as the Provider shall determine) all those works and materials in the possession or control of the Provider on which the Customer Trade Marks appear.

  7. Third-Party Materials

    7.1    The Provider must not incorporate any Third-Party Materials into any works or materials that the Provider delivers or has an obligation to deliver to the Customer under the Contract unless those Third-Party Materials are supplied by or on behalf of the Customer to the Provider or the parties have agreed in the Statement of Work or otherwise in writing to the incorporation of the relevant Third-Party Materials into the relevant works or materials.

    7.2    Subject to any express written agreement between the parties, the Provider shall ensure that the Third-Party Materials are:
    (a)    licensed to the Customer in accordance with the relevant licensor's standard licensing terms (which the Customer acknowledges may be open source or Creative Commons licensing terms);
    (b)    licensed to the Customer on reasonable terms notified by the Provider to the Customer; or
    (c)    sub-licensed by the Provider to the Customer on reasonable terms notified in writing by the Provider to the Customer.

  8. Representatives

    8.1    The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in the Contract will be given by a Provider Representative to a Customer Representative, and the Customer:
    (a)    may treat all such instructions as the fully authorised instructions of the Provider; and
    (b)    must not comply with any other instructions in relation to that subject matter.

    8.2    The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in the Contract will be given by a Customer Representative to a Provider Representative, and the Provider:
    (a)    may treat all such instructions as the fully authorised instructions of the Customer; and
    (b)    must not comply with any other instructions in relation to that subject matter.

  9. Management

    9.1    The parties shall hold management meetings at each party's offices, by telephone conference or using internet-based conferencing facilities:
    (a)    at the reasonable request of either party.

    9.2    A party requesting a management meeting shall give to the other party at least 10 Business Days' written notice of the meeting.

    9.3    Wherever necessary to enable the efficient conduct of business, the Provider shall be represented at management meetings by at least 1 Provider Representative and the Customer shall be represented at management meetings by at least 1 Customer Representative.

  10. Charges

    10.1  The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.

    10.2  If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.

    10.3  All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

    10.4  The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation.

  11. Expenses

    11.1  The Customer shall reimburse the Provider in respect of any Expenses, providing that the Provider must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

    11.2  The Provider must collect and collate evidence of all Expenses, and must retain such evidence during the Term and for a period of 90 days following the end of the Term.

    11.3  Within 10 Business Days following receipt of a written request from the Customer to do so, the Provider must supply to the Customer such copies of the evidence for the Expenses in the possession or control of the Provider as the Customer may specify in that written request.

  12. Timesheets

    12.1  The Provider must, for all Services where the Charges for which are based in whole or part upon the time spent in the performance of those Services:

    (a)    ensure that the personnel providing Services complete reasonably detailed records of their time spent providing those Services; and

    (b)    retain such records during the Term, and for a period of at least 12 months following the end of the Term.

    12.2  Within 10 Business Days following receipt of a written request, the Provider shall supply to the Customer copies of such of the timesheets referred to in Clause 12.1 and in the Provider's possession or control as the Customer may specify in that written request.

  13. Payments

    13.1  The Provider shall issue invoices for the Charges to the Customer, in the case of Web Design and Development services, on or after the invoicing dates set out in Section 8 of the Statement of Work, in the case of other services, on or before the Effective Date.

    13.2  The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 13 or, in the case of Domain Name Services and SSL Certificates, on the receipt of an invoice issued in accordance with this Clause 13 and before any domain name or certificate is registered or renewed.

    13.3  The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque (using such payment details as are notified by the Provider to the Customer from time to time).

    13.4  If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
    (a)    charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
    (b)    claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

  14. Reversion of assignments and licences

    14.1  Notwithstanding any other provision of these Terms and Conditions, the licences and assignments granted by the Provider to the Customer under these Terms and Conditions are subject to the payment by the Customer of all amounts owing to the Provider under the Contract in full and on time.

    14.2  If the Customer owes any amount to the Provider under the Contract and fails to pay that amount to the Provider within 30 days following the receipt of a notice requiring it to do so and specifying that the amount remains unpaid, then the Provider may immediately revert the assignments and terminate the licences granted by the Provider under these Terms and Conditions by giving written notice to the Customer.

  15. Confidentiality obligations

    15.1  The Provider must:
    (a)    keep the Customer Confidential Information strictly confidential;
    (b)    not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
    (c)    use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
    (d)    act in good faith at all times in relation to the Customer Confidential Information; and
    (e)    not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.

    15.2  The Customer must:
    (a)    keep the Provider Confidential Information strictly confidential;
    (b)    not disclose the Provider Confidential Information to any person without the Provider's prior written consent, and then only under conditions of confidentiality approved in writing by the Provider;
    (c)    use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care;
    (d)    act in good faith at all times in relation to the Provider Confidential Information; and
    (e)    not use any of the Provider Confidential Information for any purpose other than the Permitted Purpose.

    15.3  Notwithstanding Clauses 15.1 and 15.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

    15.4  No obligations are imposed by this Clause 15 with respect to a party's Confidential Information if that Confidential Information:
    (a)    is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
    (b)    is or becomes publicly known through no act or default of the other party; or
    (c)    is obtained by the other party from a third-party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

    15.5  The restrictions in this Clause 15 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

    15.6  Upon the termination of the Contract, each party must immediately cease to use the other party's Confidential Information.

    15.7  Following the termination of the Contract, and within 5 Business Days following the date of receipt of a written request from the other party, the relevant party must destroy or return to the other party (at the other party's option) all media containing the other party's Confidential Information, and must irrevocably delete the other party's Confidential Information from its computer systems.

    15.8  The provisions of this Clause 15 shall continue in force indefinitely following the termination of the Contract.

  16. Publicity

    16.1  Neither party may make any public disclosures relating to the Contract or the subject matter of the Contract (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

    16.2  Nothing in this Clause 16 shall be construed as limiting the obligations of the parties under Clause 15.

  17. Data protection

    17.1  The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with these Terms and Conditions, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).

    17.2  The Provider warrants to the Customer that:
    (a)    it will act only on instructions from the Customer in relation to the processing of Customer Personal Data;
    (b)    it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Customer Personal Data and against loss or corruption of Customer Personal Data;
    (c)    it will only process the Customer Personal Data for the purposes of performing its obligations and exercising its rights under the Contract;
    (d)    it will process the Customer Personal Data in compliance with all applicable laws; and
    (e)    it will not transfer or permit the transfer of Customer Personal Data to any place outside the EEA without the prior written consent of the Customer.

    17.3  The Provider shall notify the Customer as soon as practicable if:
    (a)    any of the Customer Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable;
    (b)    the Provider receives any complaint or regulatory notice which relates to the processing of any of the Customer Personal Data; or
    (c)    the Provider receives a request from a data subject for access to any of the Customer Personal Data.

    17.4  The Provider shall co-operate with the Customer in relation to:
    (a)    any request from the Customer to amend or delete any of the Customer Personal Data;
    (b)    any complaint or regulatory notification relating to the processing of any of the Customer Personal Data; and
    (c)    any request from a data subject for access to any of the Customer Personal Data,
            at the cost and expense of the Customer.

    17.5  The Provider shall ensure that access to the Customer Personal Data is limited to those Provider personnel who have a reasonable need to access the Customer Personal Data to enable the Provider to perform its duties under the Contract; any access to the Customer Personal Data must be limited to such part or parts of the Customer Personal Data as are strictly necessary.

    17.6  The Provider shall take reasonable steps to ensure the reliability of any Provider personnel who have access to the Customer Personal Data. Without prejudice to this general obligation, the Provider shall ensure that all relevant Provider personnel are informed of the confidential nature of the Customer Personal Data, have undertaken training in the laws relating to handling Personal Data, and are aware of the Provider's duties in respect of that Personal Data.

  18. Warranties

    18.1  The Provider shall provide the Services in accordance with the standards of skill and care reasonably expected from a service provider in the Provider's industry.

    18.2  The Provider warrants to the Customer that:
    (a)    the Provider has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;
    (b)    the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions; and
    (c)    the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

    18.3  The Provider warrants to the Customer that:
    (a)    the Platform and Hosted Services will conform in all material respects with the Provider’s obligations under these Terms and Conditions;
    (b)    the Provider will apply Updates and Upgrades to the Platform as made available by the vendor, and deemed appropriate by the Provider;
    (c)    the Platform will incorporate security features reflecting the requirements of good industry practice.

    18.4  The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

    18.5  If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
    (a)    modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
    (b)    procure for the Customer the right to use the Hosted Services in accordance with this Agreement.

    18.6  The Customer warrants to the Provider that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.

    18.7  All of the parties' warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.

  19. Acknowledgements and warranty limitations

    19.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

    19.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

    19.3  The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in Annex 4 (Hosting Services Specification); and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

    19.4  The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

  20. Indemnities

    20.1  The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of these Terms and Conditions (a "Provider Indemnity Event").

    20.2  The Customer must:
    (a)    upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
    (b)    provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
    (c)    allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
    (d)    not admit liability to any third-party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third-party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
            without prejudice to the Provider's obligations under Clause 20.1.

    20.3  The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a "Customer Indemnity Event").

    20.4  The Provider must:
    (a)    upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
    (b)    provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
    (c)    allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
    (d)    not admit liability to any third-party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third-party and relating to the Customer Indemnity Event without the prior written consent of the Customer,
            without prejudice to the Customer's obligations under Clause 20.3.

    20.5  The indemnity protection set out in this Clause 20 shall be subject to the limitations and exclusions of liability set out in the Contract.

  21. Limitations and exclusions of liability

    21.1  Nothing in these Terms and Conditions will:
    (a)    limit or exclude any liability for death or personal injury resulting from negligence;
    (b)    limit or exclude any liability for fraud or fraudulent misrepresentation;
    (c)    limit any liabilities in any way that is not permitted under applicable law; or
    (d)    exclude any liabilities that may not be excluded under applicable law.

    21.2  The limitations and exclusions of liability set out in this Clause 21 and elsewhere in these Terms and Conditions:
    (a)    are subject to Clause 21.1; and
    (b)    govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

    21.3  Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

    21.4  Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

    21.5  Neither party shall be liable to the other party in respect of any loss of revenue or income.

    21.6  Neither party shall be liable to the other party in respect of any loss of use or production.

    21.7  Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

    21.8  Neither party shall be liable to the other party in respect of any loss or corruption of any data or database.

    21.9  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

    21.10 The liability of each party to the other party under the Contract in respect of any event or series of related events shall not exceed the greater of:
    (a)    £1,000,000; and
    (b)    the total amount paid and payable by the Customer to the Provider under the Contract in the 12 month period preceding the commencement of the event or events.

    21.11 The aggregate liability of each party to the other party under the Contract shall not exceed the greater of:
    (a)    £1,000,000; and
    (b)    the total amount paid and payable by the Customer to the Provider under the Contract.

  22. Force Majeure Event

    22.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

    22.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
    (a)    promptly notify the other; and
    (b)    inform the other of the period for which it is estimated that such failure or delay will continue.

    22.3  A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

  23. Termination

    23.1  The Provider may terminate the Contract by giving to the Customer written notice of termination. The Customer may terminate the Contract by giving to the Provider not less than 30 days' written notice of termination after the end of the Minimum Term.

    23.2  Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
    (a)    the other party commits any material breach of the Contract, and the breach is not remediable;
    (b)    the other party commits a material breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
    (c)    the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).

    23.3  Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
    (a) the other party:
         (i)     is dissolved;
         (ii)    ceases to conduct all (or substantially all) of its business;
         (iii)    is or becomes unable to pay its debts as they fall due;
         (iv)   is or becomes insolvent or is declared insolvent; or
         (v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
    (b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
    (c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or
    (d) if that other party is an individual:
         (i)     that other party dies;
         (ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
         (iii)    that other party is the subject of a bankruptcy petition or order.

    23.4  The Provider may terminate the Contract immediately by giving written notice to the Customer if:
    (a)    any amount due to be paid by the Customer to the Provider under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
    (b)    the Provider has given to the Customer written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 23.4.

  24. Effects of termination

    24.1  Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.4, 6.10, 7.1, 11.2, 11.3, 12, 13.2, 13.4, 14, 15, 16, 20, 21, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36 and 37, Paragraphs 2.7, 3.9, 4.1 and 5 of Schedule 1 (Web design and development services), Paragraphs 2.7, 3.1, 3.2, 3.3, 3.5, 3.8, 3.9, 6.4 and 8.4 of Schedule 2 (Hosting services), Paragraphs 3.1, 3.2, 3.3 and 4.4 of Schedule 3 (Hosting backup services), Paragraphs 3.1, 3.2, 3.3, 3.4 and 4.4 of Schedule 4 (Email Services), Paragraphs 4.5, 5.2 and 6.4 of Schedule 5 (Domain Name Services), and Paragraphs 2.5 and 3.4 of Schedule 6 (SSL Certificate Services).

    24.2  Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.

    24.3  Within 30 days following the termination of the Contract for any reason:
    (a)    the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Contract; and
    (b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Contract,
            without prejudice to the parties' other legal rights.

  25. Non-solicitation of personnel

    25.1  The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 12 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Provider who has been involved in any way in the negotiation or performance of the Contract.

    25.2  The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 12 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer who has been involved in any way in the negotiation or performance of the Contract.

  26. Further assurance

    26.1  The Provider must use reasonable endeavours to:
    (a)    do or procure the doing of all acts; and
    (b)    execute or procure the execution of all documents,
            that the Customer may reasonably request from time to time in order to perfect or confirm the Customer's ownership of the rights assigned by these Terms and Conditions.

    26.2  The Provider must provide to the Customer at the cost and expense of the Customer such reasonable assistance as the Customer may request in order to register rights assigned to the Customer by the Contract, or licensed to the Customer under the Contract, with any intellectual property office or registry.

    26.3  The Provider must provide to the Customer at the cost and expense of the Customer all reasonable assistance in connection with any legal proceedings relating to the rights assigned under these Terms and Conditions that are brought by, or against, the Customer.

  27. Notices

    27.1  Any notice given under these Terms and Conditions must be in writing, whether or not described as "written notice" in these Terms and Conditions.

    27.2  Any notice given by the Customer to the Provider under these Terms and Conditions must be:
    (a)    delivered personally;
    (b)    sent by courier;
    (c)    sent by recorded signed-for post;
    (d)    sent by fax;
    (e)    sent by email; or
            using the relevant contact details set out in Section 10 of the Statement of Work.

    27.3  Any notice given by the Provider to the Customer under these Terms and Conditions must be:
    (a)    delivered personally;
    (b)    sent by courier;
    (c)    sent by recorded signed-for post;
    (d)    sent by fax;
    (e)    sent by email; or
    (f)    submitted using the Customer's online contractual notification facility,
            using the relevant contact details set out in Section 10 of the Statement of Work.

    27.4  The addressee and contact details set out in Section 10 of the Statement of Work may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 27.

    27.5  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

    27.6  A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:
    (a)    in the case of notices delivered personally, upon delivery;
    (b)    in the case of notices sent by courier, upon delivery;
    (c)    in the case of notices sent by post, 48 hours after posting;
    (d)    in the case of notices sent by fax, at the time of the transmission of the fax (providing the sending party retains written evidence of the transmission);
    (e)    in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent); and
    (f)    in the case of notices submitted using an online contractual notification facility, upon the submission of the notice form.

  28. Subcontracting

    28.1  The Provider may subcontract any of its obligations under the Contract.

    28.2  The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

  29. Assignment

    29.1  The Provider must not assign, transfer or otherwise deal with the Provider's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that the Provider may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time.

    29.2  The Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

  30. No waivers

    30.1  No breach of any provision of the Contract will be waived except with the express written consent of the party not in breach.

    30.2  No waiver of any breach of any provision of the Contract shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Contract.

  31. Severability

    31.1  If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

    31.2  If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

  32. Third-party rights

    32.1  The Contract is for the benefit of the parties, and is not intended to benefit or be enforceable by any third-party.

    32.2  The exercise of the parties' rights under the Contract is not subject to the consent of any third-party.

  33. Variation

    33.1  The Contract may not be varied except by means of a written document signed by or on behalf of each party.

  34. Entire agreement

    34.1  The main body of these Terms and Conditions, the Schedules, the Annexes and the Statement of Work shall constitute the entire agreement between the parties in relation to the subject matter of the Contract, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

    34.2  Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract.

    34.3  The provisions of this Clause 34 are subject to Clause 21.1.

  35. Export control

    35.1  The Customer acknowledges that materials and/or information supplied to the Customer under these Terms and Conditions may be subject to the Export Laws.

    35.2  The Customer must comply with the Export Laws insofar as they affect materials and information supplied to the Customer under these Terms and Conditions.

    35.3  Without prejudice to the generality of Clause 35.2, the Customer:
    (a)    must not import, export, supply, disclose, transfer or transmit any materials or information supplied to the Customer under these Terms and Conditions if such import, export, supply, disclosure, transfer or transmission would contravene any embargo or exclusion list applying under the Export Laws; and
    (b)    must, where applicable, obtain all licences and consents required under the Export Laws for any import, export, supply, disclosure, transfer or transmission by or on behalf of the Customer of materials or information supplied to the Customer under these Terms and Conditions.

  36. Law and jurisdiction

    36.1  These Terms and Conditions shall be governed by and construed in accordance with English law.

    36.2  Any disputes relating to the Contract shall be subject to the exclusive jurisdiction of the courts of England.

  37. Interpretation

    37.1  In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
    (a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
    (b)    any subordinate legislation made under that statute or statutory provision.

    37.2  The Clause headings do not affect the interpretation of these Terms and Conditions.

    37.3  References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

    37.4  In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.