TERMS & CONDITIONS
Please do take time to read these Terms and Conditions of use, we follow these in all of our Agency dealings – from client work to our in house content sites. Any questions or comments, do reach out to us.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING PROFILETREE
- WHO WE ARE AND HOW TO CONTACT US
- We are ProfileTree LLP, a limited liability partnership registered in Northern Ireland with registered number NC000806 and address, McSweeney Centre, 31 Henry Place Belfast, Northern Ireland, BT15 2AY (“we”, “us”, “our”).
- We provide a range of websites along with a number of social media channels. Any reference in these Terms to “ProfileTree” shall be a reference to any or all of those websites and social media channels (but excluding any content or platforms to the extent they are provided by third parties).
- Generally, ProfileTree is available at no charge to the user (“you”). However we do offer some premium services, including hosting and subscription services, for which there is a fee. These are our “Premium Services”. Any reference in these Terms to our “Services” shall be a reference to the provision of ProfileTree and/or the provision of our Premium Services. Our core agency services are listed here, but this list is not exclusive as we offer bespoke services and strategies to all clients.
- Any reference herein to “Terms” shall refer to the provisions set out in this document and shall also include the Hosting Service Terms If you have any questions about who we are, what we do, or the Terms, please feel free to contact us at the address above or by email to [email protected]. We detail our website hosting services here.
2. BY USING PROFILETREE YOU ACCEPT THESE TERMS
- In consideration for us providing you with our Services, you agree to comply with these Terms, and you acknowledge that these Terms form a legally binding agreement between you and us (“Agreement”). By using ProfileTree, you confirm that you accept these Terms. If you do not agree to these Terms, you must not use ProfileTree. We recommend that you print a copy of these Terms for future reference.
- To be eligible to use ProfileTree you must be over the age of 18.
- You are also responsible for ensuring that all persons who access ProfileTree through your internet connection are aware of these Terms and other applicable terms and conditions (please see clause 3 below for more information on this), and that they comply with them.
- We may amend these Terms from time to time. Every time you wish to use ProfileTree, please check these Terms to ensure you understand the terms that apply at that time. These Terms were most recently updated on 1st January 2020.
- In these Terms: references to clauses (unless otherwise provided) are references of the clauses of these Terms; words in the singular include the plural and in the plural include the singular; a reference to a particular law is a reference to it as it is in force for the time being, taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it; and references to “including” and “include(s)” shall be deemed to mean respectively, “including without limitation” and “include(s) without limitation”.
3. THERE ARE OTHER TERMS THAT MAY APPLY TO YOU
- These Terms refer to the following additional terms, which also apply to your use of ProfileTree and/or our Services:
- Our Privacy Notice which can be accessed here.
- If we are providing you with hosting services, our Hosting Services Terms, which are available here and shall apply if you have asked us to provide you with such services. If there is any ambiguity between the terms set out herein and our Hosting Services Terms, the latter shall prevail in respect of the Hosting Services.
4. WE MAY MAKE CHANGES TO PROFILETREE
- We may update and change ProfileTree from time to time to reflect changes to our services, our business and our users’ needs.
- We do not guarantee that our Services will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of ProfileTree for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal. Any such notice will be posted on ProfileTree.
5. PREMIUM SERVICES
Contract for Premium Services
- If you have asked us to provide Premium Services, you and we will only have entered into a contract for the provision by us of such Premium Services when we send an email confirming that we will provide you with the Premium Services you have requested, which contract shall be comprised of these Terms and, if we are providing you with hosting services, the Hosting Services Terms, which can be accessed also on this page
- While we hope we will always be in a position to do so, we have no obligation to accept a request from you to provide any Premium Services.
- We shall perform our Premium Services with reasonable care and skill. A full list of our Digital Marketing Agency Services are available here. Our marketing agency services include Website Hosting, Video Production and Marketing, Content Creation and Marketing, SEO or Search Engine Optimisation, Website Design and Development, Online Marketing Strategy, Digital Skills Training and Social Media Marketing Services. We also offer Alexa Voice Skill development from our Alexa Voice App development team.
Term and Termination
- Some of the Premium Services we offer are subject to a minimum term. We will make this clear to you before you sign up to receive the Premium Services. You agree to be bound by any such minimum term and you acknowledge that you shall not be entitled to any refund in respect of any amounts paid if you decide to terminate the Premium Services early.
- Subject to any minimum term agreed between you and us, you may terminate any Premium Services by giving us written notice of no less than 30 days. Any such termination will not affect the overall Agreement which shall continue until terminated.
- You agree to pay any fee agreed between us in full cleared funds on the date specified by us when you agree to receive the Premium Services.
- Any fees which we quote to you are unless expressly stated otherwise, exclusive of VAT (which shall be payable by you).Without prejudice to any other rights or remedies which we might have if you fail to make any payment when due:
- you shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of the Bank of Ireland from time to time. Such interest shall accrue daily from the due date until actual payment of the overdue amount along with any interest accrued, whether before or after judgment; and we shall be entitled to suspend all Services to you, including your access to your User Account until payment has been made in full.
- All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. YOU MUST KEEP YOUR ACCOUNT DETAILS SAFE
- If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party.
- We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms.
- If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at [email protected].
7. HOW YOU MAY USE PROFILETREE
- In consideration for you agreeing to comply with these Terms (and in respect of any Premium Services, payment of the agreed fee) we hereby grant you a non-exclusive, non-assignable, non-transferable, non-sub-licensable licence to access and use ProfileTree solely and strictly for your own personal use.
- You are not permitted to use any content on ProfileTree for commercial purposes without obtaining a licence to do so from us or our licensors.
- You agree not to access (or attempt to access) any part of ProfileTree by any means other than through the interface provided by us. You specifically agree not to access (or attempt to access) any part of ProfileTree through any automated means, including use of scripts, robots, spiders, scrapers or web crawlers. You agree that you will not (a) take any action that imposes, or may impose (in each case in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (b) (save to the extent permitted by governing law) copy, duplicate, reproduce, rent, lease, loan, sell, trade, resell, modify, create derivative works, distribute or publicly display any part of ProfileTree without prior written consent from us; (c) interfere or attempt to interfere with the proper working of ProfileTree or any activities conducted via ProfileTree; (d) bypass any measures we may use to prevent or restrict access to ProfileTree; and (e) attempt to reverse engineer, decompile or otherwise seek to obtain access to any source code in ProfileTree. You agree that you will not engage in any activity that interferes with or disrupts ProfileTree or the servers and networks that are connected to ProfileTree.
8. UPLOADING CONTENT TO PROFILETREE
From time to time you may be given the option to upload content on to, or send content using, ProfileTree. There are some materials that are not appropriate or welcome. In particular, you may not upload, store or transmit via ProfileTree any content (which term shall include text, images, media files or content displayed in any other format) that threatens, bullies or humiliates any other person; that is harmful, threatening, abusive, vulgar, harassing, defamatory, inflammatory, libellous, tortious, hateful or racially, ethnically or otherwise objectionable or invasive of another’s rights, including rights of celebrity, privacy and intellectual property; that is obscene or pornographic or would be deemed inappropriate for anyone aged 18 or under; that contains malware, viruses, spyware, adware, worms, Trojans or other malicious software; that is illegal or violates any export controls; that is fraudulent or deceptive or misleading; that depicts violence against people or property; that promotes or depicts racism, bigotry or hatred toward any individual or group; and/or that includes any requests for payment information on landing pages or lead capture; and/or any material sent from an anonymous, false or unmonitored address.
By uploading any content on to, or transmitting via, ProfileTree (any such content, “Your Content”):
- you hereby grant us (and our employees, agents and sub-contractors) a world-wide, royalty-free, non-exclusive, sub-licensable and transferable licence to use Your Content for the purposes of providing our services (“Content Licence”);
- you acknowledge that any such content will be considered non-confidential and non-proprietary;
- you acknowledge and agree that we have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to ProfileTree constitutes a violation of their intellectual property rights, or of their right to privacy;
- you acknowledge and agree that you are solely responsible for securing and backing up your content;
you represent and warrant that:
- you have the rights, power and authority necessary to grant the Content Licence above;
- you have the lawful right to upload, reproduce, distribute and store Your Content, including the necessary consents which may be required in order to lawfully share, copy or transmit a third party journal or article which may be protected by copyright (as well as other moral rights);
- the uploading, reproduction and/or distribution of Your Content will not breach any obligations of confidentiality to any other third party;
- the uploading, reproduction and/or distribution of Your Content will not constitute or encourage a criminal offence or violate the rights of any party or otherwise create liability or violate any relevant local, national or international law; and
- Your Content complies with the restrictions set out in clause 8.1; and
- you acknowledge and agree that you will be liable to us and indemnify us for any breach of the warranties set out in clause 8.2.5 above. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
- We have the right to remove any posting you make on ProfileTree if, in our opinion, your post does not comply with the content standards set out in this clause 8.1. we reserve the right to remove or edit any content, without notice and at our sole discretion, if we determine that it is not in compliance with these Terms or is notified to us as objectionable by a third party, and to provide your IP address and other identifying information to law enforcement authorities, where appropriate, and take any and all other legal action at our disposal if we believe you have breached these Terms.
- Notwithstanding any other provision herein, we may retain and use at our discretion for our own business purposes, statistical data collected from or in connection with your use of ProfileTree , provided that it does not contain any Personal Data (as such term is defined in the General Data Protection Regulation (EU) 2016/67).
9. USER-GENERATED AND THIRD PARTY CONTENT
- ProfileTree may include information and materials uploaded by other users of the site, including links to bulletin boards, chat rooms and social media sites. This information and these materials have not been verified or approved by us. The views expressed by other users on ProfileTree do not represent our views or values.
- In order to enable us to provide access to ProfileTree free of charge, we may also display third party content on ProfileTree and/or include third party content (including advertising goods, services, courses or websites) in messages or newsletters which we send to our users (any such content, “Third Party Content”). While we may provide a platform for the display and/or communication of such Third Party Content, we do not undertake any vetting or authentication process in respect of that content. As such, to the fullest extent permitted by law, we expressly exclude any liability for any direct, indirect, special, incidental loss or damage which may arise in respect of your use of or reliance upon any Third Party Content.
- Although we make reasonable efforts to update the information on ProfileTree, we make no representations, warranties or guarantees, whether express or implied, that the content on ProfileTree is accurate, complete or up to date. Nor can we accept responsibility to you and/or anyone else, for any third party content uploaded on to or made accessible via ProfileTree. As such, you acknowledge and agree that:
- we have no duty to moderate any content accessible via ProfileTree and that you are solely responsible for any content which you (or any third party) upload, transmit and/or store using ProfileTree;
- any use by you of or reliance upon any content accessible via ProfileTree is at your sole risk. We do not endorse any promotions, products, services or campaigns which may be published or sent via ProfileTree nor do we endorse or make any representations or guarantees in respect of any research, adverts or other materials;
- we do not endorse any Third Party Content, nor do we moderate any Third Party Content. Any use of or reliance upon such Third Party Content is at your sole risk. You expressly understand and agree that we do not make any express or implied representations or warranties to you in relation to any such Third Party Content, including fitness for purpose, infringement or merchantability, nor do we endorse or make any representations or guarantees in respect of any research, adverts or other material;
- the content on ProfileTree is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on ProfileTree; and
- where ProfileTree contains links to other sites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them. We have no control over the contents of those sites or resources.
- If you wish to complain about information and materials uploaded to ProfileTree, please contact us on [email protected].
10. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
Whether you are a consumer or a business user:
- We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
- You agree and acknowledge that you are in a better position than us to foresee and evaluate any potential damage or loss which you may suffer in connection with your use of ProfileTree or our services; that we cannot adequately insure our potential liability to you; and that, accordingly, the exclusions and limitations contained in this clause 10 are reasonable. You also undertake at all times to mitigate any such damage or loss.
- You agree to indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and all other professional costs and expenses (calculated on a full indemnity basis) suffered or incurred by us, arising out of any third party claims against us which arise in connection with a breach of these Terms by you
If you are a business user:
- We exclude all implied conditions, warranties, representations or other terms that may apply to our Services, including ProfileTree and/or any content on it.
- We will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with: (i) use of, or inability to use, ProfileTree; or (ii) use of or reliance on any content displayed on ProfileTree. In particular, we will not be liable for: (a) loss of profits, sales, business, or revenue; (b) business interruption; (c) loss of anticipated savings; (d) loss of business opportunity, goodwill or reputation; or (e) any indirect or consequential loss or damage.
- Subject to clause 10.1 above, our aggregate liability to you in respect of any loss or damage suffered by you and arising out of or in connection with the use of ProfileTree or services by you or any third party shall not exceed any amounts paid by you to us in the 6 months preceding the date of your claim.
If you are a consumer user:
- Please note that we only provide ProfileTree for domestic and private use. You agree not to use ProfileTree for any commercial or business purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
- Subject to clause 10.1 above, our aggregate liability to you in respect of any loss or damage suffered by you and arising out of or in connection with the use of ProfileTree by you or any third party shall not exceed the sum of £10. You acknowledge that since the site and any materials on the site are provided free of charge, this is limitation is reasonable.
11. HOW WE MAY USE YOUR PERSONAL INFORMATION
We will only use your personal information as set out in our privacy notice, which can be accessed here.
12. OUR INTELLECTUAL PROPERTY RIGHTS
- You agree not to use any of the trademarks, trade names, service marks, copyrights, logos, domain names, and/or other distinctive brand features displayed in ProfileTree belonging to us or any third party unless you have valid written permission to do so. You agree not to alter, remove or obscure any proprietary notices (including copyright and trademark notices) which may appear in or be held within ProfileTree.
- In the event that your use of ProfileTree if used in accordance with these Terms, infringes any intellectual property rights of a third party, we may, at our sole discretion and expense, replace or modify ProfileTree so that it is no longer infringing or obtain for you the right to continue using ProfileTree. This therefore constitutes your sole remedy in relation to any claim of infringement in respect of ProfileTree.
- For the purposes of this clause 12, any reference to “ProfileTree” shall include any content in any content or materials on the site, emails and/or other correspondence, videos or images (or attachments thereto) which you may receive from us from time to time.
13. RULES ABOUT LINKING TO PROFILETREE
- You may link to ProfileTree, provided that:
- you do so in a way that is fair and legal and does not damage our reputation or take advantage of it;
- you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists;
- you must not establish a link to ProfileTree in any website that is not owned by you;
- ProfileTree must not be framed on any other site, nor may you create a link to any part of ProfileTree other than the home page; and
- we reserve the right to withdraw linking permission at any time at our sole discretion.
- The website in which you are linking must comply in all respects with the content standards set out in clause 8.1 above.
- We may at any time terminate this Agreement, at our sole discretion, and with you with no liability to you, if:
- you materially breach any provision of these Terms (or act in a manner which we believe shows that you do not intend to, or are unable to comply with these Terms);
- we have received a complaint or complaints from any user in respect of your actions and/or use of ProfileTree which we believe is or could be damaging to us; or
- we cease to provide ProfileTree and/or do business.
- On termination of these Terms, the following clauses shall apply:
- the licence granted under clause 7.1 shall immediately terminate;
- if we have terminated these Terms other than for a reason set out in clause 14.1, we will refund you for any services paid for but not received owing to the termination;
- we reserve the right to promptly delete any content you have uploaded to ProfileTree (it is your responsibility to make sure you have and maintain a back-up of any such documents and/or content);
- all of the legal rights, obligations and liabilities that you and we have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and in particular the provisions of clauses 5.6, 5.8, 5.9, 8, 9, 10, 11, 12.1, 12.2, 14.2, 15 and 16 shall survive termination of these Terms.
15. GENERAL PROVISIONS
- You shall not assign, transfer or sub-license any of your rights or obligations under these Terms, other than as expressly provided for in these Terms. We may at any time assign all or any of our rights and transfer all or any of our obligations under these Terms.
- Failure or neglect by us to enforce any of the provisions of these Terms at any time shall not be construed or deemed to be a waiver of our rights, nor shall this in any way affect the validity of the whole or any part of these Terms, nor prejudice our rights to take subsequent action.
- We shall not be liable to you in the event that we are unable to perform any of our obligations under these Terms owing to circumstances beyond our reasonable control, including acts of god, governmental actions, an outbreak of hostilities (whether war is declared or not), or in the event of a national emergency or terrorist intervention.
- If any part of any provisions of these Terms shall be or become invalid, unlawful or unenforceable to any extent, then the remainder of such provisions and all other provisions of these Terms shall continue to be valid and enforceable to the fullest extent permitted by law.
- These Terms represents the entire agreement between you and us in relation to the subject matter of these Terms and neither you nor us has relied upon any statement or representation made by the other in agreeing to enter these Terms.
16. WHICH COUNTRY’S LAWS APPLY TO ANY DISPUTES?
- These Terms, their subject matter and their formation (and any non-contractual disputes or claims) are governed by Northern Irish law. We both agree to the exclusive jurisdiction of the courts of Northern Ireland.
- You acknowledge that we own or licence all legal rights, title and interest in and to ProfileTree including any intellectual property rights which subsist therein which we may send to you from time to time (whether those rights happen to be registered or not, and wherever in the world those right may exist) and that all intellectual property rights in ProfileTree (including source code in the software) belong to and shall remain vested in us (or where relevant our licensors). Nothing in these Terms shall confer on you any right, title or interest in any intellectual property rights (except the rights of use set out in these Terms).
PROFILETREE WEBSITE HOSTING & MANAGEMENT: TERMS AND CONDITIONS
Please read this Terms of Service Agreement carefully, as it contains important information regarding your legal rights and remedies.
This Terms of Service Agreement (“Agreement”) is entered into by and between ProfileTree (“Host”) and you (“Client”). This Agreement is made effective as of the date of your use of this website (“Site”) or the date of electronic acceptance. Host and Client are sometimes referred to herein collectively as the “parties” or individually as a “party.”
1.1 Hosting Services
Host agrees to provide Client with services for website hosting (the “Website”) as set forth or as described during the registration process (the “Hosting Services”). Host shall provide the Hosting Services so that the Website is accessible to third parties. Except as expressly provided herein, Client agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any services or performing any tasks not specifically agreed to between Host and Client during the registration process. At the time of execution of this Agreement, to the extent that Client wishes to receive from Host, and Host wishes to provide to Client, services other than the Hosting Services (collectively, the “Additional Services”), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the “Services Addendum”), and the Services Addendum shall be incorporated into, and become a part of this Agreement. The Hosting Services and the Additional Services will hereinafter be referred to collectively as the “Services”.
Client shall post all materials comprising the Website, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the “Client Content”), which shall be in a correct format (as specified by Host in consultation with Client). Client acknowledges that Website construction and management is Client’s responsibility. Host shall not be responsible for Website management or files lost or damaged by Client. Host completes system backups that are intended to recover from system failure and which may be used for restoration of files to individual sites. The basis on which the host will complete system backups is dependent upon the package agreed upon between host and client (Get Started, Grow Online and Branch Out). The host is not obliged to complete backups on more occasions than what is explicitly outlined in the agreed package. The host will not be held liable for any damages of loss of assets in the event that the client attempts their own backup outside of the agreement with the host.
1.3 Availability of Website
The Website shall be accessible to third parties via the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of Hosting Services, Client’s sole and exclusive remedy and Host’s sole and exclusive liability for any loss or interruption of Hosting Services shall be as follows: for loss or interruption of Hosting Services which is due to (i) causes other than scheduled maintenance and required repairs; (ii) causes beyond the control of Host; or (iii) causes which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Hosting Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future Hosting Services equal to a pro rata portion of Hosting Services fees for the period of downtime. Availability of website is ensured and maintained by the host via 24/7 uptime monitoring by the Host Support Team, as well as in security measures detailed in Section 1.6. The Host agrees that in the event of any issues, it will respond within 2 hours during normal working hours and within 6 hours if it is a weekend or out of hours. Client can communicate with Support Team by email or phone.
1.4 Additional Storage and Transfer
Client agrees that it will not exceed the bandwidth or storage space limits applicable to the purchased Hosting Services. In the event that the Website exceeds the limits included in the Hosting Services, or should Client request or require increased limits, Host will automatically bill Client for any such upgrade in the level of Hosting Services, or the additional incremental storage required by Client’s use to be included in the Hosting Services, on a time and materials basis and in accordance with the fee schedule set forth in the plan that includes the appropriate storage amounts.
Updates to the Website shall be the sole responsibility of the Client, depending upon the package agreed between Client and Host. Depending on the package agreed between Client and Host, the Host can be responsible for managed theme updates and managed plugin updates. In any case, Host shall provide the necessary SFTP access to allow Client to make the updates.
Host represents and warrants it has implemented and will maintain reasonable and appropriate administrative, physical, and technical safeguards to protect the confidentiality, integrity, and availability of Client Content via uptime monitoring, completed on a 24/7 basis. Host warrants that it will maintain security safeguards, which include (but are not limited to) anti-virus and anti-malware protection on all servers, portals and individual websites, with encryption level access provided by Host to Client. Security feedback is provided by Host to Client via a monthly developer review and report.
2. License and Proprietary Rights
2.1 Proprietary Rights of Client
As between Client and Host, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. During the term of this Agreement, Host shall have the right to use Client’s name, trade name and/or trademark(s) in connection with the marketing and promotion of its business activities. Except as provided in this Section 2.1, nothing in this Agreement shall be construed to grant Host any ownership right in, or license to, the Client Content provided by Client to Host.
2.2 Proprietary Rights of Host
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Host or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Host or its suppliers to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “Host Materials”) shall remain the sole and exclusive property of Host or its suppliers. To the extent, if any, that ownership of the Host Materials does not automatically vest in Host by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Host all rights, title and interest which Client may have in and to the Host Materials. Client acknowledges and agrees that Host is in the business of hosting Websites, and that Host shall have the right to provide to third parties services which are the same or similar to the Hosting Services, and to use or otherwise exploit any Host Materials in providing such services.
Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party; (ii) was known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.
3. Client Content.
3.1 Client Content
Client assumes sole responsibility for (i) acquiring any authorization(s) necessary for hypertext links to third party websites; (ii) the accuracy of materials on the Website, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and (iii) ensuring that the Client Content does not infringe or violate any right of any third party.
3.2 Acceptable Use Policy
Host does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by Client via the Website. An Acceptable Use Policy (“AUP”) is in effect for the Hosting Services. Any violation of the AUP may result in the immediate cancellation or suspension of any or all Services without warning. Monitoring completed by the Host will, however, systematically identify faults around security, usability and access issues.
Host respects the intellectual property of others and requests that Client does too. Host shall respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported using Host’s DMCA process. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers.
4. Fees and Taxes.
Hosting Services shall be paid in Great British Pound Sterling or Euro by valid payment method (acceptable to Host) at the time of purchase at the fee set forth on the Host’s website. Client’s monthly or annual payments for the Hosting Services, depending on the plan selected by Client, shall be automatically charged to the payment method provided by Client at the time of purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable (“Hosting Services Fee”), and you hereby agree that Host is authorized to so charge the payment method on file. Host may, at its sole discretion, suspend or terminate Hosting Services without notice if Client fails to provide payment for the new term.
If Client initiates a chargeback with the provider of a credit card or initiates a similar action to a payment provider allowed by Host for charges billed by Host for Hosting Services, Hosting Services will be immediately suspended without notice. Reestablishment of service following a chargeback or similar action will require sufficient explanation for the action and payment of the disputed charge and/or Host’s bank dispute fee.
4.3 Increase in Fees
Host expressly reserves the right to change the fees charged hereunder for the Hosting Services with advanced notice to the Client. If Client does not agree to any such pricing change, it may cancel the Hosting Services within thirty (30) days from the date of your notice; otherwise all such changes shall be effective with respect to Client’s account and Client agrees that Host is authorized to charge the payment method provided by Client for any new Hosting Services Fee, on the next monthly or annual (as applicable) payment cycle.
4.4 Additional Services Fees
Unless otherwise agreed in writing, Client shall pay to Host all fees for Additional Services on a time and materials basis as invoiced by Host.
4.5 Breach for Failure to Pay
Failure of Client to fully pay any fees within sixty (60) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Host, and will be sufficient cause for immediate termination of this Agreement by Host. Any such suspension does not relieve Client from paying past due fees plus interest and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs and collection agency fees.
Client shall pay or reimburse Host for all sales, use, value-added, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Host under this Agreement; excluding, however, income taxes on profits which may be levied against Host.
5.1 Host Warranties
Host represents and warrants that: (i) Host has the power and authority to enter into and perform its obligations under this Agreement; and (ii) Host’s Services under this Agreement shall be performed in a professional, workmanlike manner, consistent with industry standards.
5.2 Client Warranties
Client represents and warrants that: (i) Client has the power and authority to enter into and perform its obligations under this Agreement; (ii) Client shall use commercially reasonable efforts to prevent unauthorized access to any restricted areas of the Website and any databases or other sensitive material generated from or in connection with the Website; (iii) Client shall not copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, misappropriate or otherwise attempt to extract any or all of the Host Materials; (iv) Client shall use the Hosting Services in accord with the AUP; and (v) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Website. Should Client receive notice of a claim regarding the Website, Client shall promptly provide Host with written notice of such claim.
5.3 Disclaimer of Warranty
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.1 Indemnification by Client
Client agrees to indemnify, defend, and hold harmless Host, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable legal fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Website infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
6.2 Indemnification by Host
Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action arises out of the gross negligence or willful misconduct of Host.
6.3 Indemnification Process
In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing paragraphs. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.
7. Limitation of Liability.
7.1 Limitation of Liability
HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEBSITE OR CLIENTS DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. HOST SHALL HAVE NO LIABILITY WITH RESPECT TO HOST’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HOST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CLIENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
8. Termination and Transition.
The term of service shall be determined by either Client’s selection on the order form during the order process or by Client’s request to Host to change to a different term. The term shall begin upon the processing of Client’s order, or upon completion of requested changes by Host. Upon completion of the term, Client acknowledges and agrees that the term will renew automatically for successive terms of length equal to the prior term unless Client notifies Host of its intent to not renew the Hosting Services.
Either party may terminate this Agreement if a bankruptcy proceeding is instituted against the other party which is acquiesced in and not dismissed within thirty (30) days, or results in an adjudication of bankruptcy, or the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of notice specifying the breach, except that the cure period for failures of payment obligations shall be ten (10) days. Host may terminate this Agreement at any time and for any reason by providing written notice of termination to Client and refunding a pro rata portion of fees paid to Client for Hosting Services not yet rendered on the date of termination.
8.3 Termination and Payment
Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
8.4 Site Transition
Upon expiration or earlier termination of this Agreement, Host shall keep the Website publicly accessible for a period of thirty (30) days following the date of expiration or earlier termination of this Agreement and if requested by Client, Host may provide Client with transition services, at its then current rates, including Hosting Services and assistance in transitioning the Website to an alternate provider.
9.1 Entire Agreement
This Agreement Constitutes the entire agreement between Client and Host with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement.
The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
9.3 Independent Contractors
The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party and this Agreement shall not be interpreted or construed to create an association, agency, joint venture, partnership, franchise or employee relationship between the Parties.
No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced.
9.5 Client Identification
Upon written permission from Client, Host may use the name of and identify Client as a client in advertising, publicity, or similar materials distributed or displayed to prospective clients.
Last updated: 1st January 2020