CLIMATE POSITIVE WEBSITE CARE PLAN Terms and Conditions

THESE ARE THE WEBSITE HOSTING TERMS AND CONDITIONS AS REFERRED TO IN THE PROPOSAL FOR WEB DESIGN AND DEVELOPMENT

Agreed terms

1. Interpretation

The definitions and rules of interpretation in this clause apply in this agreement. Where any defined terms are used in addition to those listed in clause 1.1 they shall be the same defined terms as those included in clause 1.1 of the Global Bay Terms and Conditions for Web Design and Development.

• Definitions:

• Acceptance: the acceptance or deemed acceptance of the Site by the Customer under clause
• Acceptance Tests: the tests to be carried out on the Site as set out in clause 4.
• Change Control Procedures: the procedures set out in clause 12.
• Charges: the hosting charges in respect of the Services, together with any charges arising from the Change Control Procedures.
• Conditions: the terms and conditions set out in the Global Bay Terms and Conditions for Web Design and Development.
• Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information is:
  1. identified as confidential at the time of disclosure; or
  2. ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
• Effective Date: the date of Acceptance.
• Host: shall mean the Supplier.
• Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Materials: the content provided to the Host by the Customer from time to time for incorporation in the Site.
• Non-Host Defects: the defects described in clause 3.
• Project Plan: the timetable within which the Supplier will implement the Project as agreed in writing between the Supplier’s Representative and Customer’s Representative.
• Services: the hosting services to be provided under this agreement as described in the Proposal.
• Site: the website as referred to in the Project Plan to be hosted by the Host under this agreement.
• Site Software: the software for the Site commissioned by the Customer as described in the Project Plan or as agreed between the Customer and Supplier in writing.
• Site Specification: the specification for the Site as described in the Project Plan or as agreed between the Customer and Supplier in writing.
• User: a visitor to or user of the Site.
• Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
  • Clause and Schedule headings shall not affect the interpretation of this agreement.
  • A reference to writing or written excludes fax but not email.
  • References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of this agreement.
  • If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement prevail.
  • Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
  • A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
  • A reference to legislation or a legislative provision includes all subordinate legislation made from time to time under that legislation or legislative provision.
  • Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
  • References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a user of that website.

2. Services

The Host shall perform its obligations in accordance with the Project Plan. In particular:

• provided the Host receives a copy of the Site Software and Materials following a reasonable written request, the Host shall set up the Site for Acceptance Testing in line with the Project Plan; and
• the Host shall, as soon as reasonably practicable after Acceptance, provide the Services in accordance with this agreement.

3. Customer responsibilities
   • The Customer shall be responsible for the accuracy and completeness of the Materials.
   • The Host shall not be liable for any delays in implementing the Project Plan resulting from the Customer’s failure to fulfil any of its obligations set out in the Project Plan. The Host reserves the right to invoice the Customer for any additional expenses reasonably incurred by the Host as a result of such delays.
4. Acceptance
   • The Acceptance Tests shall test compliance of the Site in line with the Project Plan.
   • If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub-contractors or agents for whom the Host has no responsibility (Non-Host Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Host Defect. The Host shall provide assistance reasonably requested by the Customer in remedying any Non-Host Defects by supplying additional services or products. If so requested, the Customer shall pay the Host in full for all such additional services and products at the Host’s then current fees and prices.
   • Acceptance of the Site shall be deemed to have taken place in accordance with the Conditions.
5. Charges and payment
   • The Host shall issue a monthly or annual VAT invoice in respect of the Charges (as detailed in the Project Plan or in writing between Customer and Host), and the Customer shall pay to the Host the Charges set out in the Host’s invoice within 30 days of the date of the Host’s invoice.
   • All Charges are exclusive of VAT.
   • If the Customer fails to make any payment due to the Host under this agreement by the due date for payment, then, without limiting the Host’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time but at 4% a year for any period when that base rate is below 0%.
6. Warranties
   • Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
   • The Host shall perform the Services with reasonable care and skill.
   • The Host warrants that the Site will perform substantially in accordance with the Site Specification for a period of 90 days from Acceptance. If the Site does not so perform, the Host shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.
   • The warranty set out in clause 6.3 shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by the Site Software or any Materials.
   • The Supplier shall not be in breach of the warranties at clause 6.2 and clause 6.3 to the extent that such breach is attributable to any third party development work carried out on the Site, which has not been created or undertaken by the Supplier.
   • This agreement sets out the full extent of the Host’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
   • The Host:
     • does not warrant that:
       • the Customer’s use of the Services or the Site will be uninterrupted or error-free; or
       • the Services or the Site will be free from Vulnerabilities
     • the Services or the Site will comply with any Heightened Cybersecurity Requirements.

7. Limitation of liability
   • Nothing in this agreement limits any liability which cannot legally be limited including but not limited to the Host’s liability for:
     • death or personal injury caused by the Host’s negligence;
     • fraud or fraudulent misrepresentation; and
     • breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
   • Subject to clause 1:
     • the Host shall have no liability for any:
       • loss of profits;
       • loss of business;
       • wasted expenditure;
       • depletion of goodwill or similar losses;
       • loss or corruption of data or information; and
       • any special, indirect or consequential loss, costs, damages, charges or expenses.
     • the Host’s total aggregate liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the Charges paid the Host by the Customer in the 12 month period proceeding the date on which the claim arose.
   • References to liability in this clause 7 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
   • Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Host’s Intellectual Property Rights.
8. Intellectual property rights
   • The Customer retains all Intellectual Property Rights in the Site Software and Materials and grants the Host a licence to such Intellectual Property Rights to the extent required by the Host to perform its obligations under this agreement.
   • All Intellectual Property Rights in any works arising in connection with the performance of the Services by the Host (Works) shall be the property of the Host, and the Host hereby grants to the Customer a non-exclusive licence to such Intellectual Property Rights to the extent required by the Customer to receive the benefit of, or perform its obligations under, this agreement.
   • The Customer shall indemnify the Host against all damages, losses and expenses arising as a result of any action or claim that the Site Software or the Materials infringe any Intellectual Property Rights of a third party.
   • The Host shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Customer’s receipt and use of the Works in accordance with this agreement infringe the Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 3.
   • The indemnities in clause 3, clause 8.4, and clause 9.4 are subject to the following conditions:
     • the indemnified party promptly notifies the indemnifier in writing of the action or claim;
     • the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
     • the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
     • the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
   • The indemnities in clause 3, clause 8.4 and clause 9.4 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
   • At its own expense, the Customer shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to clause 2.
9. Site content
   • The Host shall update the Site with Materials provided by the Customer from time to time, but no more than once in any month during the term of this agreement. The Host shall not be required to spend more than 30 minutes in any relevant month discharging its obligations under this clause1 (and for the avoidance of doubt, such time in updates will not cumulate over the Initial Term or any Renewed Term).
   • The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (such as but not limited to material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
   • The Host shall include only the Materials on the Site. The Customer acknowledges that the Host has no control over any content placed on the Site by Users and does not purport to monitor the content of the Site. The Host reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content or is otherwise obliged to by law.
   • The Customer shall indemnify the Host against all damages, losses and expenses arising as a result of any action or claim that the Materials or any other material posted to, or linked to, the Site constitutes Inappropriate Content.
   • The Host may include the statement “Powered by Global Bay” (or such reasonably similar wording as it elects to signify the Supplier’s hosting of the Site) on the home page of the Site.
10. Data protection
    • Clause 11 of the Conditions shall apply to these Website Hosting terms and conditions.
11. Term, termination and survival
    • This agreement commences on the Effective Date and, unless terminated earlier in accordance with this clause 11, shall continue until the first anniversary of the Effective Date (Initial Term). At the end of the Initial Term or any Renewed Term(meaning any term of this agreement following a renewal under this clause) (as applicable), unless one party gives at least 1 month’s prior written notice to the other to terminate this agreement on the last day of the Initial Term, or any Renewal Term as the case may be, the term of this agreement shall be automatically renewed for a period of one year commencing on the expiry of the Initial Term or any Renewed Term (as applicable). Any Renewed Term is likewise subject to earlier termination in accordance with clause 11.2.
    • Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
      • the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
      • the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 20 Business Days after being notified in writing to do so;
      • the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
      • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or [(being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
      • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
      • an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
      • the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
      • a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
    • On termination of this agreement by the Host pursuant to clause 2, all licences granted by the Host under this agreement shall terminate immediately.
    • On expiry or termination of this agreement otherwise than on termination by the Host under clause 2 the Host shall:
      • promptly return to the Customer the Site Software and all Materials and shall provide to the Customer an electronic copy of the Site (including all content on the Site).
      • provide such assistance as is reasonably requested by the Customer to transfer the hosting of the Site to the Customer or another service provider, subject to payment of the Host’s expenses reasonably incurred.
    • On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
12. Change control

Any request to change the scope of the Services shall be processed in accordance with the Change Control Procedure set out in clause 13 of the Conditions.

13. Force majeure

The parties force majeure rights and obligations shall be as detailed in clause 14 of the Conditions.

14. Confidentiality
    • The parties confidentiality rights and obligations shall be as detailed in clause 16 of the Conditions.
15. Notices
    • Any notice given to a party under or in connection with this agreement contract shall be given in accordance with clause 17 of the Conditions.
16. Assignment and other dealings

Except where permitted under clause 10, neither party shall assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

17. Entire agreement
    • This agreement and the Conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
    • Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
    • Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
18. Third party rights
    • This agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
19. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

20. Waiver
    • A waiver of any right or remedy is only effective if given in writing.
    • A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
21. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

22. Severance
    • If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
    • If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. No partnership or agency
    • Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
    • Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Governing law and jurisdiction
    • The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
    • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.