HOASTI Services Agreement
This agreement is made on the Commencement Date (as defined below) between the following parties (each a ‘party’ and together the ‘parties’):
(1) HOASTI Ltd a company incorporated in England and Wales whose registered number is 08945303 and whose registered office is at Pengates House, Worthing Road, Horsham, West Sussex RH13 8NH (the ‘Supplier’); and
(2) The person or entity that registers to use the Services (the ‘Customer’).
A HOASTI is a secure web hosting management system which enables web designers and developers to store and manage website hosting data as well as to host financial data for themselves and for any websites they host on a third party’s behalf. The data capable of being stored and managed by HOASTI includes data about registered web domains and sub-domains, ftp, DNS and CMS information, server data, email account information, and the costs relating to the aforementioned such as server charges and domain name charges.
B The parties have agreed that the Supplier shall provide the Customer with the Services (as defined below) on the terms and conditions set out in this agreement (“the Terms”).
1 Definitions and interpretation
|Associate||means in relation to a party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with that party from time to time;|
|Applicable Laws||means the laws of the United Kingdom and the European Union which apply to the provision of the Services;|
|Business Day||means a day (other than a Saturday or Sunday or public holiday) on which banks are generally open in London for non-automated normal business;|
|Change||means any change, amendment or alteration to the Contract;|
| Commencement Date
||means the date that the Customer first accesses the Services from the Website;|
|Confidential Information||means any and all confidential information, (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, intellectual property, assets, strategy, products and customers, including without limitation information relating to management, financial, marketing, technical and other arrangements or operations of any Associate, person, firm, or organisation associated with that party;|
|Control||means that a person owns directly or indirectly more than 50% of the shares or securities of the other person representing the right to vote on all or substantially all matters including the election of directors and Controls and Controlled shall be interpreted accordingly;|
||means data inputted by the Customer or with the Customer’s authority into the Website;|
|Data Protection Laws||means the Data Protection Act 1998 and all other applicable legislation implementing European Community Directives 95/46, 2002/58 and 2009/136, and any subsequent legislation in relation to the protection of personal data;|
|Fee||means the monthly fee (excluding any taxes and duties) payable by Customer in accordance with the pricing plan as set out in the Website Terms;|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of the Contract unattractive to a party;|
|Good Industry Practice||means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances;|
|Intellectual Property Rights||means copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, mask works, utility models, domain names and all similar rights and, in each case:(i) whether registered or not,
(ii) including any applications to protect or register such rights,
(iii) including all renewals and extensions of such rights or applications,
(iv) whether vested, contingent or future and
(v) wherever existing;
|Services||means the HOASTI web hosting management services made available (as may be changed or updated from time to time by Supplier) via the Website;|
|Supplier Personnel||means the people providing the Services or otherwise performing Supplier’s obligations or exercising its rights under the Contract;|
|Trial Period||means the period of 30 days from the Commencement Date;|
|Third Party Software||means any software programs or applications supplied to Customer by third parties and not by Supplier;|
|User||means any person or entity, other than the Customer, that uses the Services with the Customer’s authorization;|
|VAT||means:(i) value added tax as defined in the Value Added Tax Act 1994 and
(ii) any similar tax in any other jurisdiction;
|Website||means http://www.hoasti.com and https://app.hoasti.com|
||means each successive period of 12 months beginning on the Commencement Date.|
In the Contract, unless the context otherwise requires:
1.2.1 The masculine includes the feminine and vice versa;
1.2.2 The singular includes the plural and vice versa;
1.2.3 References to sub-clauses, clauses, Schedules or Appendices (if any) are to sub-clauses, clauses, Schedules or Appendices of the Terms;
1.2.4 References to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
1.2.5 ‘Including’ (or similar words) means including without limitation;
1.2.6 References to the Contract or any specified clause in the Contract are to this Contract or the specified clause as in force for the time being and as amended, varied, novated or supplemented from time to time in accordance with the Contract;
1.2.7 Clause headings do not affect their interpretation;
1.2.8 References to legislation (including any subsidiary legislation) include any modification or re-enactment thereof;
1.2.9 A document is in agreed form if initialled or signed by the parties;
1.2.10 Writing includes manuscript, telexes, facsimiles, emails, and other legible, permanent forms; and
1.2.11 Reference to any English action, remedy, method of judicial proceeding, court, legal document, legal concept, legal status, legal doctrine or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates in that jurisdiction to the English equivalent.
2.1 The Terms incorporate the terms and conditions on the Website (“Website Terms”), and together form the Contract between the parties.
2.2 In the event of conflict or inconsistency between documents, the Website Terms shall take precedence over these Terms.
2.3 Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
2.4 Any additional schedules, orders or other documents agreed by the parties in future which are not referred to in the Contract shall not form part of the Contract unless expressly incorporated by agreement in writing and signed by a director of the Supplier.
2.5 By accessing the Services via the Website Customer acknowledges that it has read and understood these Terms and the Website Terms and agree to be bound by the Contract.
3 Commencement Date and Duration
The Contract commences and takes effect from the Commencement Date and shall continue on a rolling monthly basis until terminated in accordance with clause 8.3 or clause 12.
Supplier shall provide the Services in accordance with the Contract.
5.1 Both parties shall comply with their respective designated responsibilities specified in the Contract.
5.2 Supplier shall perform its obligations so as to meet the agreed service standards set out in clause 7.
5.3 Supplier shall procure that all Services by Supplier Personnel shall be carried out in accordance with Good Industry Practice.
6 Customer obligations
6.1 To pay the Fees in accordance with clause 10.
6.2 Customer shall use the Services and the Website for its own lawful and legitimate internal business purposes in accordance with the Contract.
6.3 Customer shall be responsible for:
6.3.1 ensuring that all Users comply with the Contract when using the Services;
6.3.2 the accuracy and quality of all Data;
6.3.3 ensuring that suitably secure passwords are used by Customer or Users to protect against unlawful access to the Services and that all usernames and passwords are kept secure and confidential. Supplier accepts no liability whatsoever for loss of Customer or User passwords or for any unlawful access to the Website by virtue of a third party obtaining and using Customer or User passwords.
6.4 As a condition of these Terms, when accessing the Website or using the Services, Customer must:
6.4.1 not attempt to modify, copy, adapt, reproduce, disassemble, decompile, or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use the Services;
6.4.2 not attempt to undermine the security or integrity of Supplier’s computing systems or networks used to provide the Services and the Website, or a third party’s computing systems or networks where the Services are hosted by a third party;
6.4.3 not to use, or misuse, the Services or the Website in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services;
6.4.4 not upload, post, email or otherwise send or transmit any material that may be offensive or contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of Supplier’s or other users’ computing devices or software.
6.5 Where Supplier specifies in the Contract that minimum computer or operating system requirements apply for use of the Services, Customer shall ensure that such minimum requirements are met before using the Services.
6.6 The Services are provided at Customer’s request and it is Customer’s sole responsibility for verifying that the Services and the Website are suitable for its own needs.
7 Service Standards
7.1 Supplier represents and warrants that the Website and Services do and shall meet the following standards:
7.1.1 Supplier shall make all commercially reasonable efforts to make the Website available to visitors pursuant to the Services during normal business hours. Supplier shall make all commercially reasonable efforts to provide Customer with prior email notification of all scheduled and emergency interruptions to the availability of the Website, and shall use all reasonable endeavours to keep such interruptions to a minimum.
7.1.2 the Services shall, for the duration of these Terms, be delivered in accordance with Good Industry Practice.
8 Trial Period
8.1 Supplier grants to Customer the right to access the Services during the Trial Period free of charge.
8.2 Supplier recommends that Customer use the Trial Period to satisfy itself that the Services and the Website are suitable for its needs.
8.3 At the end of the Trial Period this Contract will automatically continue, and the Fees will apply, unless Supplier receives written notice of termination at least 3 Working Days prior to the end date of the Trial Period.
9.1 Supplier warrants and represents to Customer that:
9.1.1 it has the right, power and authority to enter into this Contract and grant to Customer the rights contemplated herein;
9.1.2. it will secure the Website according to Good Industry Practice;
9.1.3 the Website is designed to comply with Data Protection Laws and all Applicable Legislation;
9.1.4 the Services will be performed by suitably qualified and competent personnel who shall perform the Services with reasonable care and skill
The warranties and representations specified in the above clause are subject to Customer giving notice to Supplier as soon as it is reasonably able upon becoming aware of the breach of warranty or representation. When notifying Supplier of a breach Customer shall use reasonable endeavours to provide Supplier with such documented information, details and assistance as Supplier may reasonably request.
9.2 All other warranties and representations, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
10 Fees and invoicing
10.1 Supplier may amend the Fee from time to time and any changes to the Fee will be published in the Website Terms and shall take effect seven (7) days from the date of publication on the Website.
10.2 Customer is entitled to move to a difference pricing plan whereby a different level of Fee will be payable by Customer, by notifying Supplier in writing at least five (5) Working Days prior to the end of the current contract month and such changes to the Fees shall take effect from the start of the next contract month. Any Fees paid in advance by Customer shall not be refunded in the event of a pricing plan change.
10.3 All amounts due under the Contract are exclusive of VAT, sales or other tax applicable which shall be paid in addition by Customer at the rate and in the manner for the time being prescribed by law.
10.4 Supplier shall invoice Customer monthly in arrears and Customer shall pay such sums in full without set-off or counterclaim within 30 days from the date of invoice.
10.5 Where sums due hereunder are not paid in full by the due date, Supplier may, without limiting its other rights, charge interest on such sums at 4% above the base rate of HSBC from time to time in force.
10.6 Interest will apply from the due date for payment until actual payment in full, whether before or after judgment.
11 Intellectual Property Rights and indemnity
11.1 Title to, and all Intellectual Property Rights in the Website, any documentation relating to the Services or Intellectual Property Rights arising in connection with the performance of the Services by Supplier, remain Supplier’s property or the property of Supplier’s licensors.
11.2 Title to, and all Intellectual Property Rights in the Data remain the property of Customer. Customer grants Supplier a royalty-free, non-exclusive licenceto use, copy, transmit, and store Customer information and Data for the purposes of enabling Customer to access and use the Services and for any other purpose related to the provision of the Services to Customer.
11.3 Customer must maintain copies of and back up all Data inputted into the Wesbite. Supplier adheres to Good Industry Practice to prevent data loss but Supplier makes no guarantees that there will be no loss to Data. Supplier expressly excludes liability for any loss or corruption of Data howsoever caused.
11.4 Each party (the ‘Indemnifying Party’) shall indemnify and keep indemnified and hold harmless the other (the ‘Indemnified Party’) from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Indemnfied Party as a result of or in connection with any action, demand or claim that use of the Indemnifying Party’s Intellectual Property Rights by the other party infringes the Intellectual Property Rights of any third party (‘IPR Claim’), provided that the Indemnifying Party shall not have any such liability if the Indemnified Party:
11.4.1 does not notify the Indemnifying Party in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
11.4.2 makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of Indemnifying Party (which shall not be unreasonably withheld or delayed);
11.4.3 does not let the Indemnifying Party at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim; or
11.4.4 does not, at the Indemnifying Party’s request and own expense, give the Indemnifying Party all reasonable
12.1 Either party may terminate the Contract immediately at any time during the Trail Period. Thereafter, either party may terminate for any reason on giving not less than 30 days prior written notice to the other, whereupon the Contract shall cease on the expiry of such written notice.
12.2 Either party may immediately terminate the Contract, without prejudice to its other rights and remedies, by giving notice in writing to the other party if the other:
12.2.1 is in material or persistent breach of any of its obligations under the Contract and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
12.2.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
12.3 On termination of the Contract for any reason:
12.3.1 Customer will immediately pay all invoices of Supplier then outstanding;
12.3.2 Supplier will, within 10 Business Days of termination, invoice Customer for all Services not yet invoiced and Customer will pay such invoice within a further 10 Business Days;
12.3.3 the accrued rights and liabilities of the parties will not be affected; and
12.3.4 clauses which expressly or by implication are to survive termination will do so.
13 Limits on liability
1.1 Subject to the following sub-clauses, in no event shall Supplier’s aggregate liability (whether in contract, tort (including negligence) or otherwise) in respect of all claims, losses, damages and/or expenses (including legal fees) (whether in respect of a single occurrence or a series of occurrences) arising under or in connection with the Contract exceed the Fees paid by Customer in the 12 month period preceding the date when the claim arose.
13.2 Supplier shall have no liability whatsoever where Customer has accessed the Website or used the Services in a manner which is not in accordance with the Contract.
1.3 Each party’s liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with the Contract shall not extend to any:
1.3.1 loss of profits;
1.3.2 loss of business opportunity;
1.3.3 loss of goodwill;
1.3.4 loss of data;
1.3.5 loss of anticipated savings; or
1.3.6 any special, indirect or consequential loss or damage whatsoever.
1.4 The parties agree that the limitations on liability in these Terms are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under these Terms.
1.5 Notwithstanding the above or other limitations and exclusions of liability set out in these Terms, neither party excludes or limits any liability for:
1.5.1 personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
1.5.2 fraud or fraudulent misrepresentation; or
1.5.3 any breach of any obligations implied by section 2 of the Supply of Products and Services Act 1982; or
1.5.4 any other liability to the extent the same cannot be excluded or limited by law.
14 Data protection
1.1 In this Clause 14, ‘personal data’, ‘data subject’, ‘data processor’ and ‘processing’ have the meanings given to them in the Data Protection Act 1998 (“DPA”) unless otherwise stated.
1.2 It is agreed between the parties that:
14.2.1 for the purposes of the DPA Customer is the data controller and data processor of personal data input by Customer or a User into the Website; and
1.2.2 personal data processed through the Website shall be under the Customer’s sole control and ownership.
1.3 Customer warrants that it has obtained the consent of data subjects, in accordance with the DPA, prior to obtaining and processing personal data through the Website.
1.4 It is the reasonable belief of the parties that Customer is the data controller and data processor of personal data and that no Supplier Personnel is processing personal data through the Website. However, in the event that Supplier is deemed to be a data processor Customer shall indemnify and keep Supplier indemnified from and against any costs, losses, damages, expenses and/or liabilities (including without limitation any legal fees and expenses) which may be suffered or incurred by Supplier arising out of or in connection with any unlawful processing of personal data.
Customer warrants that it shall comply with all Data Protection Laws that apply in relation to Data processed in connection with the Contract.
Neither party shall (except with the written consent of the other) directly or indirectly solicit or entice away from the employment of the other (or attempt to do so) any person employed or engaged by such other party in the performance of the Contract at any time during the term of the Contract or for a period of 12 months after the termination or expiry of the Contract.
16 Confidential Information
16.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under the Contract.
16.2 Each party undertakes to:
16.2.1 disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors (including Supplier Personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under the Contract; and
16.2.2 to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
16.3 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.
16.4 The provisions of this clause shall not apply to information which:
16.4.1 is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
16.4.2 is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
16.4.3 is independently developed by the recipient, without access to or use of such information; or
16.4.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
16.5 The obligations under this clause shall survive the variation, expiry or termination of the Contract for a period of five years thereafter.
17.1 The Terms may be signed in any number of counterparts and by the parties on separate counterparts, each of which when signed and dated shall be an original, and such counterparts taken together shall constitute one and the same agreement. The Contract shall not be effective until each party has signed one counterpart of the Term.
18 Rights of third parties
Except as expressly provided in the Contract, for the purposes of the Contracts (Rights of Third Parties) Act 1999, the Contract is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any right or remedy of such a person that exists or is available apart from that Act.
In respect of any indemnity given by either party under the Contract, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.
20 Entire agreement
The Contract contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in the Contract. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in the Contract. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
21 Force Majeure
21.1 A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:
1.1.1 promptly notifies the other of the Force Majeure event and its expected duration, and
1.1.2 uses reasonable endeavours to minimise the effects of that event.
1.2 If, due to Force Majeure, a party:
(i) is unable to perform a material obligation, or
(ii) is delayed in or prevented from performing its obligations for a continuous period of more than 90 days,
the other party may, within a further ten days terminate the Contract on notice, otherwise the Contract shall continue in full force and effect.
22 Further assurance
Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to the Contract.
23.1 Notices under the Contract must be in writing and sent to the other party’s registered office (or such other applicable address for service in any other Schedules or agreed by the parties from time to time in writing). Notices may be given, and will be deemed received if correctly addressed:
(i) by first-class post: two Business Days after posting;
(ii) by airmail: seven Business Days after posting;
(iii) by hand: on delivery; and
(iv) by facsimile: on receipt of a successful transmission report from the correct number.
Provisions which by their terms or intent are to survive termination of the Contract will do so.
The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
26.1 Each clause of the Contract is severable and distinct from the others. If any clause in the Contract (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced):
(i) the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable; and
(ii) without limiting the foregoing, in such circumstances the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of the Contract as soon as possible.
27 Compliance with law
Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties hereunder, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other party or its employees, agents and representatives .
28 Assignment and subcontracting
No party may assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the other’s prior written consent.
The Contract shall be binding upon, and enure to the benefit of, each of the parties, their respective personal representatives and their respective successors in title .
No amendment or variation of the Contract will be valid unless agreed in writing by an authorised signatory of each party.
31 Record keeping
Each party will maintain appropriate records of any matters relevant to the performance of its obligations under the Contract. These may include the specific records in such format and for such period as the parties may agree in the Commercial Schedule (or other applicable Schedules).
Any rights, powers or remedies conferred upon a party by the Contract shall be in addition to and without prejudice to all other rights, powers and remedies available to the party under general law (except expressly excluded in the Contract).
Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy .
Customer may not set off any amount Supplier owes it against any amount it owes to Supplier in relation to the Contract unless otherwise agreed.
All payments under the Contract will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction. If a party is compelled by law to deduct or withhold any taxes, levies, duties, charges and withholdings of any kind, it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
34 Governing law and jurisdiction
34.1 The Contract will be governed by the law of England and Wales.
34.2 Disputes will be submitted to the exclusive jurisdiction of the courts of England and Wales.
This agreement has been entered into on the date stated at the beginning of it.