Looking for website design or development? Get a free quote today

Or you can visit our extensive portfolio to see examples of our past work.

Terms and Conditions

WEBCRATE TERMS AND CONDITIONS

THIS AGREEMENT is made on the completion of the purchase of services from WebCrate Ltd.

BETWEEN:

(1) WebCrate Ltd. (hereinafter referred to as ‘the Hosting Company’)


(2) The WebCrate Ltd. customer (hereinafter referred to as ‘the Client’)

Recitals:

(1) The Hosting Company will provide the Hosting Services to the Client on the terms and conditions as set out in this agreement.

(2) The Hosting Company shall provide Hosting Services from the Data Centre unless otherwise agreed by the Client.

(3) The Client has requested that the Hosting Company to provide Hosting Services and the Hosting Company agrees to provide Hosting Services to the Client.

1. DEFINITIONS

Unless expressly stated otherwise the following definitions shall apply to the terms used in this Agreement:

‘Agreement’ means this web hosting agreement;
‘Client Content’ means all materials created or supplied by the Client to Hosting Company;
‘Commencement Date’ means the date upon which the Term shall commence as specified in clause 7 of this Agreement;
‘Computer Virus’ means any programs or data incorporated into software or data that disrupts the proper operation of a computer hardware system or the associated software;
‘Confidential Information’ means all information passing from one party to the other party relating to the business of the disclosing party (whether disclosed before or after the date of this Agreement), including but not limited to trade secrets, drawings, know-how, techniques, source and object code, business and marketing plans and projections, arrangements and agreements with third parties, customer information and customer information proprietary to customers, formulae, suppliers, concepts not reduced to material form, designs, plans and models;
‘Data Centre’ means the premises at from which the Hosting Company is to provide the Hosting Services;
‘Expenses’ means the out of pocket expenses incurred by the Hosting Company in acquiring anything reasonably necessary for it to perform the requirements imposed on it by this Agreement;
‘Excusable Downtime’ means any period of scheduled maintenance and any period during which any Hosting Services or Website is unavailable as a direct consequence of any breach of the Agreement by the Client, the negligence of the Client or its employees, servants or agents, any defect in any Website (other than any defect caused by an act or omission the Hosting Company), any incompatibility between platform software and content and any defect in any software provided by the Client to the Hosting Company under the Agreement;
‘Hosting Services’ means those services purchased by, and provided to the Client under this Agreement;
‘Intellectual Property’ means all intellectual property rights relating to or owned by either party to this Agreement anywhere in the world (including present and future intellectual property rights) including without limitation Confidential Information, business names or logos, domain names, copyright, database rights, patents, trade or service marks, designs, software, computer data, generic rights, software programmes and source code and all variations, modifications or enhancements to each of them together with any application or right to apply for registration or protection of those rights;
‘Materials’ means all materials owned by a party used in the provision of the Hosting Services, including software programs and source code;
‘Online Conduct Policy’ means the policy setting out the terms and conditions on which the Client agrees to utilise the Hosting Company’s network, systems, products and services;
‘Personnel’ means any employees, officers, agents or contractors of either party;
‘Service Fee’ means the fee to be paid by the Client for the performance by the Hosting Company of its obligations under this Agreement;
‘Term’ means the period between the Commencement Date and the end date of this Agreement as specified in clause 7 of this Agreement and;
‘Website’ means the Client’s website or sites as hosted by the Hosting Company.

2. INTERPRETATION

2.1 In this Agreement, unless the context otherwise requires:
2.1.1 a reference to any document is a reference to that document as varied, novated or replaced from time to time;
2.1.2 the singular includes the plural and vice versa;
2.1.3 a reference to a gender includes all other genders;
2.1.4 a reference to a person or entity includes a natural person, a partnership, corporation, trust, association, an unincorporated body, authority or other entity; and
2.1.5 a reference to a person includes that person’s legal personal representative, successors and permitted assigns.
2.2 Headings have been inserted for convenience only and shall not affect the interpretation of this Agreement.

3. PROVISION OF THE HOSTING SERVICES

The Hosting Company will provide the Hosting Services to the Client on the terms and conditions of this Agreement.

4. AVAILABILITY

4.1 The Client acknowledges that the Hosting Company’s systems, servers, and equipment may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes outside its control.
4.2 In the event of any such interruptions the Hosting Company will notify the Client by email or facsimile as soon as reasonably practicable of any such interruptions to its ability to provide the Hosting Services.
4.3 The Hosting Company agrees to rectify faults or problems and to restore the system to full operational capacity as soon as reasonably practicable.

5. LIMITATION OF LIABILITY

5.1 The Hosting Company gives no condition, warranty, or undertaking, and makes no representation to the Client about the suitability of, or fitness of the Hosting Services for the Client’s purposes other than those conditions, warranties, undertakings or representations expressly set out in this Agreement.
5.2 With the exception of any rights which the Client may have under applicable law in all warranties, conditions and other terms implied by statute or common law are excluded from the terms of this Agreement to the fullest extent permitted by law.
5.3 Nothing in this Agreement excludes or limits the liability of the Hosting Company for:
5.3.1 death or personal injury caused by the Hosting Company’s negligence; or
5.3.2 from fraudulent misrepresentation or fraud.
5.4 Subject to sub-clauses 5.2 and 5.3:
5.4.1 the Hosting Company’s total liability in contract, tort, (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the Service Fees received in relation to the Hosting Services; and
5.4.2 in no event shall the Hosting Company be liable to the Client whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. ‘Consequential Loss’ shall for these purposes mean (i) pure economic loss (ii) losses incurred by any customer of the Client or other third party (iii) loss of profits (whether categorised as direct or indirect) (iv) losses arising from business interruption (v) loss of business revenue, goodwill, anticipated savings (vi) losses whether or not occurring in the normal course of business, wasted management or staff time (vii) loss or corruption of data.

6. CLIENT CONTENT

6.1 The Hosting Company will not be responsible for the accuracy and / or functionality of the Client Content in the form in which it is provided by the Client or as modified upon and in accordance with the Client’s instructions for inclusion on the Website.
6.2 If the Hosting Company reasonably forms the view that the Client Content of any Website may be pornographic, defamatory, misleading or deceptive or otherwise in breach of any third party’s rights or in contravention of applicable law, the Hosting Company may without prior notice or any liability remove that Client Content from the Website and shall within twenty-four (24) hours thereafter notify the Client of its removal.
6.3 The Client shall indemnify and hold harmless the Hosting Company and its affiliates, employees, agents, contractors, directors, officers and third party providers from all liabilities, demands, costs and expenses (including legal expenses) arising in connection with any Client Content including but not limited to the posting and / or transmission of Client Content on the Website.

7. TERM

This Agreement will commence immediately upon purchase of a WebCrate service and will subsist for the full term of the product unless earlier terminated in accordance with its terms.

8. CHARGES AND PAYMENT

8.1 The parties agree that unless expressly stated in writing by the Hosting Company all fees, charges and payments set out in this Agreement are exclusive of VAT.
8.2 The Client will pay the Hosting Company the Service Fees for the Hosting Services within seven (7) days after the date the Hosting Company’s invoice is sent.
8.3 The Client shall reimburse the Hosting Company for all agreed Expenses reasonably incurred by the Hosting Company in performing its obligations under this Agreement.
8.4 The Client acknowledges that there may be additional charges or Expenses in relation to additional services required by the Client beyond those set out in this Agreement. Any such additional charges or Expenses will be agreed on in writing in advance between the parties and invoiced separately.
8.5 If the Client is in arrears in any payment due to the Hosting Company under this Agreement, the Client will pay, in addition to the arrears, interest at the rate of three (3%) per annum on all arrears for each day during which the default continues.
8.6 Without limiting any other right or remedy available to the Hosting Company, the Hosting Company may on giving ten (10) days written notice, and without having to account for or to repay any money previously paid to it pursuant to the terms of this Agreement, refuse to commence, complete or deliver any work or otherwise comply with the provisions of this Agreement on the Hosting Company’s part to be observed or performed in the event the Client:
8.6.1 fails to pay any sums due to the Hosting Company under this Agreement; or
8.6.2 otherwise defaults in the due observance and performance of this Agreement.

9. OWNERSHIP

9.1 The parties acknowledge that this Agreement does not have the effect of transferring the ownership of any Intellectual Property.
9.2 Any Intellectual Property owned by either party and required for the performance by the other party of its obligations under this Agreement shall be licensed to that other party on a non-exclusive, royalty-free basis for the purpose of fulfilling that party’s obligations under this Agreement and for the period during which the use of that Intellectual Property by that party pursuant to this Agreement is required.
9.3 Subject to clause 9.6, the Client acknowledges and agrees that the Hosting Company will own all Intellectual Property in connection with the Hosting Company’s Materials and that all other Intellectual Property in Materials produced or created by the Hosting Company or on its behalf or provided by the Hosting Company will remain permanently with the Hosting Company regardless of whether such Material is in its original form or in a form modified for the Client’s use.
9.4 Subject to the Client not being in breach of this Agreement, the Hosting Company grants to the Client a non-exclusive royalty-free licence to use the Materials for the duration of this Agreement.
9.5 The Client may not modify the Hosting Company’ Materials for any purpose without the prior written consent of the Hosting Company.
9.6 The Hosting Company acknowledges and agrees that the Client will own:
9.6.1 all Intellectual Property in the Client Content of the Website; and
9.6.2 all rights in connection with the Internet domain names attaching to the respective Website.
9.7 The Client will procure for the Hosting Company a licence on a non-exclusive, royalty-free basis, to use any existing Intellectual Property owned by a third party and required for the performance by the Hosting Company of its obligations under this Agreement and for the period during which the use of those rights by the Hosting Company pursuant to this Agreement is required.

10. MARKETING

10.1 The parties acknowledge and agree that the Hosting Company may use the Client’s names, logos, domain names and trademarks for the following purposes:
10.1.1 Use on the Hosting Company’s website;
10.1.2 Use in the Hosting Company’s written documentation; and
10.1.3 Data Centre signage to indicate Client’s computers and racks.

11. EQUIPMENT AND ACCESS

The Client must provide, at its own cost, all telecommunications services, computers and other equipment or services necessary to enable it to have access to the Hosting Services. The Client must comply with all the rules and regulations that apply to the communications means by which the Client obtains access to the Hosting Services.

12. PERSONNEL AND SUB-CONTRACTORS

The Hosting Company may in its absolute discretion sub-contract the performance of any of its obligations under this Agreement.

13. WARRANTIES

13.1 Each party warrants to the other that:
13.1.1 it has authority to enter and to perform its obligations under this Agreement; and
13.1.2 it has the ability to perform its obligations under this Agreement.
13.2 The Hosting Company warrants to the Client that the Hosting Services:
13.2.1 will be provided by appropriately qualified and experienced Personnel using all reasonable care and skill;
13.2.2 will in all material respects substantially comply with their specification; and
13.2.3 will not knowingly infringe the Intellectual Property rights of any third party.
13.3 The Client to the Hosting Company warrants that:
13.3.1 the use by the Hosting Company of any works or Materials submitted by the Client to the Hosting Company under this Agreement will not infringe the rights of any person or contravene any law;
13.3.2 at the time of entering into this Agreement it is not relying on any representation made by the Hosting Company which has not been expressly set out in this Agreement;
13.3.3 it shall install and maintain Computer Virus protection software of not less than industry standard, and take all other reasonable steps to ensure that any software used in connection with Hosting Services, and any material or data provided to the Hosting Company will be free from any Computer Virus and will not damage or corrupt any other data or system; and
13.3.4 that it is solely responsible for communicating with persons who access its websites or other sites and that it will not divert any Client complaints or concerns to the Hosting Company.
13.4 The Hosting Company shall not be liable for defects resulting from improper use of Hosting Services by the Client or by another third party.

14. INDEMNITY

14.1 Each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party, its officers, employees, contractors and agents (‘the second party’) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, employees or agents in any way connected with this Agreement whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise.
14.2 The indemnity extends to and includes all costs, damages and expenses reasonably and properly incurred by the second party in defending any such action, proceeding claim or demands.

15. TITLE

15.1 The Client agrees that any works, items, materials or information of whatever nature produced or developed by the Hosting Company or under the Hosting Company’s direction pursuant to or in the course of providing the Hosting Services shall remain the sole and complete property of the Hosting Company, whether such property is tangible or is in the nature of Intellectual Property (including copyright and rights of Confidential Information).
15.2 If the Client has fully complied with this Agreement and if the works, items, materials or information referred to in clause 16.1 have been produced by the Hosting Company as part of the Hosting Services, the Hosting Company grants the Client a non-exclusive and non-transferable licence to use such works, items, materials and information for such purposes as are necessary in connection with the Web site for the duration of this Agreement.

16. TERMINATION

16.1 The Hosting Company may terminate this Agreement by notice in writing to the Client in the event that:
16.1.1 the Client fails to pay any amount to the Hosting Company due under this Agreement and does not make that payment within ten (10) days after receiving notice requiring the Client to do so;
16.1.2 the Client fails to perform any of the obligations on its part to be observed or performed pursuant to this Agreement and such failure is not remedied by the Client within fourteen (14) days after receipt by it of a notice in writing requiring the default to be remedied; or
16.1.3 any of the warranties or representations made by the Client contained in this Agreement are false or inaccurate in any material way.
16.2 Either party shall be entitled to terminate this Agreement immediately by notice in writing to the other if the other party shall:
16.2.1 commit any material breach of any of its obligations under this Agreement which (in the case of a breach capable of being remedied) shall not have been remedied within fourteen (14) days after receipt of a written request so to do;
16.2.2 pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect;
16.2.3 have an administrator appointed or documents are filed with the court in respect of such appointment or notice is served of an intention to appoint an administrator by that party or its directors or by a qualifying floating charge holder as provided in of the Insolvency Act 1986.
16.2.4 make any voluntary arrangement with its creditors or become subject to an administration order;
16.2.5 have a receiver or manager or similar official appointed over the whole or substantial part of its undertaking or assets of such party;
16.2.6 cease or threaten to cease to carry on business; and
16.2.7 have any similar event occur under the law of any other jurisdiction in respect of it.

17. CONFIDENTIAL INFORMATION

17.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
17.2 Either party may disclose Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
17.3 All documents and other materials containing Confidential Information of either party will be returned to that party immediately upon completion of the Hosting Services.
17.4 The parties’ obligations to keep information confidential will survive the termination of this Agreement.
17.5 The obligations of confidentiality under this Agreement do not extend to information that:
17.5.1 was rightfully in the possession of the receiving party before the negotiations leading to this Agreement;
17.5.2 is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or
17.5.3 is required by law to be disclosed.

18. FORCE MAJEURE

18.1 ‘Force Majeure’ means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, transportation embargo, failure or delay in transportation, including without limitation where the Hosting Company ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
18.2 If a party is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure.
18.3 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.

19. CONFLICT

In the event of ambiguity or conflict between the provisions of this Agreement and other relevant agreements the provisions of this Agreement shall prevail.

20. NO PARTNERSHIP

Nothing in this Agreement shall be construed as causing a partnership or a contract of employment between the parties.

21. NOTICES

21.1 Unless expressly stated otherwise elsewhere in this Agreement, all notices which are required to be given shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with the provisions of this clause.
21.2 Failing any such address being so set out or designated, notices shall be sent to the recipient’s registered office or in a country where registration is not required, to its principal office. Any notice may be delivered personally or (within a country) by first class prepaid letter post (or the equivalent), or by airmail or facsimile transmission and shall be deemed to have been served, if by hand when delivered, if by post or airmail 48 hours after posting, if by email or facsimile transmission when despatched, and upon production of a valid fax confirmation sheet.
21.3 Any notice, which affects the validity or existence of this Agreement shall only be delivered personally or sent by recorded delivery first class letter post (or its equivalent in any country) by a party and only duly authorised representative of the other party.

22. ENTIRE AGREEMENT

This Agreement shall constitute the entire agreement between the Parties in relation to its subject-matter and supersedes all previous agreements whether written or oral or by implication between the Parties in relation to its subject-matter. The Parties have entered this Agreement freely, without duress and with the opportunity to obtain independent legal advice.

23. RIGHTS OF THIRD PARTIES

This Agreement does not except as otherwise expressly stated confer any rights on any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999.

24. ENGLISH LAW

This Agreement shall be governed by and construed in accordance with English Law.