Website Hosting & Support Services Terms & Conditions
These Terms and Conditions apply to Website Hosting and Support Services. Separate documents “Terms and Conditions (1)” apply to Web Design Projects and other related services and “Terms and Conditions (3)” apply to Marketing services.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 17.6.
Contract: the contract between M5 Solutions Ltd and the Customer for the supply of Services in accordance with these Conditions.
Commencement Fee: the first payment for the Services.
Customer: the person or firm who purchases Services from M5 Solutions Ltd.
Defect: any defect in systems having a material effect on the Customer’s use of the services.
Early Termination Charge: The charge incurred by the Customer in the event the Customer terminates the Contract with more than 30 days of the Term left to run.
Force Majeure Event: any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 rights.
M5 Solutions Ltd: M5 Solutions Ltd T/A Media Orb is a Company registered in England and Wales with company number 11043553.
Month: a calendar month and monthly shall be construed accordingly.
Monthly Fee: the monthly fees for the Services.
Order: the Customer’s Order for the supply of services as set out in the Customer’s purchase order form or the Customer’s written acceptance of M5 Solution’s quotation as the case may be.
Server: the computer server equipment operated by M5 Solutions Ltd in connection with the provision of the Services.
Services: the hosting services to be provided by M5 Solutions Ltd to the Customer in accordance with the Services Specification.
Services Specification: the description or specification for the Services agreed on in writing between the Customer and M5 Solutions Ltd in the Contract.
Site: the website(s) of the Customer that M5 Solutions Ltd is to carry out the Services in respect of.
Support Account: The account set up by M5 Solutions Ltd for the Customer for support purposes.
Support Services: the support services (if any) to be provided by M5 Solutions Ltd to the Customer in accordance with the Services Specification.
Support Times: Monday to Friday (excluding Bank Holidays) from 9am to 5.30pm. Out of hours support time may also be available on 07871 628404. Please call for further details.
Term: The term for which M5 Solutions Ltd shall supply the Services to the Customer which will be for 12 months or 24 months unless otherwise stated in the Contract.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes letters and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.2 The Order shall only be deemed to be accepted when M5 Solutions Ltd issues a written acceptance of the Order, at which point the Contract shall come into existence. For the purposes of this clause 2.2 M5 Solutions Ltd’s written acceptance of an Order can take the form of a digital signature.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of M5 Solutions Ltd which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter or advertising issued by M5 Solutions Ltd and any illustrations or descriptions of the Services contained in M5 Solutions Ltd catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by M5 Solutions Ltd shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 Subject to these Conditions M5 Solutions Ltd will use all reasonable endeavours to make available to the Customer the Server and Services but M5 Solutions Ltd shall not in any event be liable for interruptions to the provision of the Services or down-time of the Server.
3.2 M5 Solutions Ltd warrants to the Customer that the Services will be performed with reasonable care and skill.
3.3 M5 Solutions Ltd shall not commence the Services until it has received the Commencement Fee.
3.4 M5 Solutions Ltd shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and M5 Solutions Ltd shall notify the Customer in any such event.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer acknowledges that M5 Solutions Ltd ‘s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to M5 Solutions Ltd. Accordingly, the Customer shall provide M5 Solutions Ltd with access to, and use of, all information, data and documentation reasonably required by M5 Solutions Ltd for the performance by M5 Solutions Ltd of its obligations.
4.2 If M5 Solutions Ltd performance of the Services under the Contract is delayed or prevented by any act or omission of the Customer including failure to make any payment(s) due under the Contract (Customer Default) without limiting its other remedies M5 Solutions Ltd shall have the right to perform suspend performance of the Services until the Customer remedies the Customer Default. The Customer shall continue to be liable for the Monthly Charge during any period in which M5 Solutions Ltd suspends performance of the Services due to Customer Default.
4.3 M5 Solutions Ltd shall not be liable for any loss sustained or incurred by the Customer arising directly or indirectly from M5 Solutions Ltd failure to or delay to perform the Services due to Customer Default.
4.4 The Customer shall ensure that all material posted, linked to or transmitted to the Site does not infringe any applicable laws, regulations or third party rights (including 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).
4.5 The Customer shall indemnify M5 Solutions Ltd against all damages, losses and expenses arising as a result of any action or claim that materials on the Site constitute Inappropriate Content.
4.6 The Customer shall maintain adequate insurance cover in respect of any loss or damage to data stores on the Server.
4.7 The Customer shall keep secure any identification, password and other confidential information relating to the Site (and subsequent e mail accounts) and shall notify M5 Solutions Ltd immediately of any known or suspected unauthorised breach of the security of the Site and/or any other security information.
4.8 The Customer shall make no use of the Server which is detrimental to other Customers.
4.9 The User shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and a secure manner.
4.10 Customers will not post, link to or transmit any material to the Site containing a virus or other hostile computer programme.
4.11 Customers shall not participate in any form of unsolicited bulk emailing or spam. M5 Solutions Ltd shall have the right to suspend performance of or terminate the Services with immediate effect in this event.
5.1 The price for the Services shall be as stated in the Contract.
5.2 The Commencement Fee shall be paid by the Customer prior to M5 Solutions Ltd commencing provision of the Services.
5.3 The Customer shall pay the Monthly Fee by standing order, PayPal or direct debit in accordance with the payment terms set out in the Contract in full and cleared funds to a bank account nominated in writing by M5 Solutions Ltd; and
time for payment shall be the essence of the contract.
5.4 In the event the Customer’s bandwidth usage exceeds the stipulated level provided for in the Contract (Inclusive Allowance) the Customer shall be charged an additional amount as part of the Monthly Fee. Charges for bandwidth usage outside of the Customer’s Inclusive Allowance will be charged at the current rates set out in the price list on the Contract.
5.5 M5 Solutions Ltd reserves the right to change the amount of the Monthly Fee at any time. M5 Solutions Ltd will give the Customer one month’s notice in writing of any changes to pricing.
5.6 If the Customer fails to make any payment due to M5 Solutions Ltd under the Contract by the due date for payment M5 Solutions Ltd may at its sole discretion suspend the Services. M5 Solutions Ltd reserves the right to take down the Site until confirmation of payment has been received.
5.7 If the Customer fails to make any payment due to M5 Solutions Ltd under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Royal Bank of Scotland’s base rate from time to time. Such interest shall accrue daily from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. M5 Solutions Ltd may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by M5 Solutions Ltd to the Customer.
6.1 If for any period during the Term M5 Solutions Ltd fails to provide the Services in accordance with the Service Specification (Default Period) it shall refund the Customer pro rata for the Default Period.
7. LIMITATION OF LIABILITY
7.1 Nothing in these Conditions shall limit or exclude the M5 Solutions Ltd’s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
7.2 M5 Solutions Ltd shall not be liable to the Customer for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
7.3 Subject to clause 7.1 M5 Solutions Ltd’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total payable by the Customer to M5 Solutions Ltd under the Contract.
8.1 The Customer shall indemnify M5 Solutions Ltd against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by M5 Solutions Ltd arising out of or in connection with
(a) The customer’s breach or negligent performance or non-performance of the Contract and/or these Conditions;
(b) the enforcement of the Contract and/or these Conditions;
(c) any claim made against M5 Solutions Ltd by a third party arising out of or in connection with the provision of the Services to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract and/or these Conditions by the Customer its employees, agents or subcontractors.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer shall permit M5 Solutions Ltd to use any Intellectual Property Rights of the Customer contained on the Site for the purpose of providing the Services.
9.2 The Customer shall indemnify M5 Solutions Ltd against all damages, losses and expenses arising as a result of any action or claim by a third party that material posted, linked to or transmitted to the Site infringes the Intellectual Property Rights of a third party.
10.1 M5 Solutions Ltd reserves the right to terminate or suspend provision of the Services if this becomes detrimental to other customers. For the benefit of doubt this includes (inter alia) the use of excessive resources by the Customer which affects the performance of the Server and/ or security risks and breaches.
10.2 M5 Solutions Ltd makes no representation and gives no warranty as to the accuracy or quality of the information received by any person via the Server and shall have no liability for any loss or damage to any data stores on the Server.
10.3 M5 Solutions Ltd will use all reasonable endeavours to ensure the integrity and security of the Server. M5 Solutions Ltd does not guarantee that the Server will be free from unauthorised users or hackers.
10.4 M5 Solutions Ltd shall have no liability for non-receipt or misrouting of e-mail or any other failure of e-mail and is under no obligation to ensure the Services are compatible with remote devices.
11.1 The Customer shall independently monitor its bandwidth in relation to the use of Services and report to M5 Solutions Ltd on any use of bandwidth which exceeds the stipulated level provided for in the Contract (Inclusive Allowance).
11.2 In the event the Customer’s bandwidth usage exceeds the Customer’s Inclusive Allowance and/or reaches the point where it has an adverse affect on other customers M5 Solutions Ltd reserves the right to disable the Site until the Customer reduces its bandwidth usage.
11.3 M5 Solutions Ltd reserves the right to change the Customer’s Inclusive Allowance at any time. M5 Solutions Ltd will give the Customer notice in writing of any changes to the level of bandwidth provided to the Customer.
12. DATA BACKUP
12.1 M5 Solutions Ltd makes no representation and gives no warranty that data stored on the Server will be backed up.
12.2 The Customer shall be responsible for undertaking regular and full back ups of all material and data hosted by M5 Solutions Ltd on the Site. It is recommended independent backups are undertaken by the Customer on a daily basis (or on a more frequent basis if required by best computing practice). For the avoidance of any doubt M5 Solutions Ltd will not attempt to restore any lost material or data of the Customers except where such loss occurred as a direct result of a Server crash.
If the Customer has subscribed to the Backup Services M5 Solutions Ltd will use reasonable endeavours to back up the Site. However, it shall be the Customer’s responsibility to ensure that the Backup Services are sufficient for the Site and to arrange to receive full backup services from a third party in the event that the Backup Services are not sufficient.
13. SUPPORT SERVICES
13.1 M5 Solutions Ltd shall not be responsible for Support Services unless otherwise stated in the Contract.
13.2 A Customer who subscribes to the Support Services shall be entitled to a fixed number of hours of support per month as provided for in the Contract. If the Customer exceeds its fixed hours in any given month and requires additional support (Additional Support) the Customer shall be charged an additional amount as part of the Monthly Fee. In this event M5 Solutions Ltd shall provide the Customer with a costs estimate for the Additional Support and shall obtain the Customer’s approval to proceed before providing the Additional Support.
13.3 M5 Solutions Ltd shall only be obligated to provide the Support Services during the Support Times. Assistance through the Support Service may be requested by email via the Support Account or by telephone during the Support Times.
13.4 If the Customer requests the Support Services outside of the Support Times (Out of Hours Support) and M5 Solutions Ltd agrees to carry out the Out of Hours Support the Customer shall be charged an additional amount as part of the Monthly Fee. In this event M5 Solutions Ltd shall provide the Customer with a cost estimate for the Out of Hours Support and shall obtain the Customer’s approval to proceed before providing the Out of Hours Support.
13.5 If a Defect occurs the following procedure shall be followed:
(a) The Customer will notify M5 Solutions Ltd of the Defect and provide any such assistance M5 Solutions Ltd requires in connection with the Defect;
(b) M5 Solutions Ltd will examine the Defect and use all reasonable endeavours to rectify the Defect or propose a solution within 12 business days of being notified in accordance with clause 13.3(a).
13.6 The obligation of M5 Solutions Ltd to provide the Support Services shall not extend to:
(a) rectification of lost or corrupted data (other than where such loss is the direct result of a Server crash) or;
(b) faults arising from the Customer’s failure to comply with these Conditions or M5 Solutions Ltd’s instructions with regard to the use of the Services.
13.7 The Customer shall keep secure any identification, password and other confidential information relating to the Support Account and shall notify M5 Solutions Ltd immediately of any known or suspected unauthorised use of the Support Account or unauthorised disclosure of the Support Account password or other security information.
14.1 The Services shall be provided by M5 Solutions Ltd for the Term and on expiry of the Term shall continue to be supplied unless the Contract is otherwise terminated by one of the parties. The Customer can terminate the Contract by giving M5 Solutions Ltd not less than 30 day’s notice.
14.2 If the Customer gives notice of termination to M5 Solutions Ltd with more than 30 days of the Term left to run the Customer shall incur the Early Termination Charge. This charge will never be more than the Customer’s Monthly Fee multiplied by the number of months remaining in the Term. The amount of the Early Termination Charge will be notified to the Customer before termination of the Contract takes effect.
14.3 M5 Solutions Ltd reserves the right to terminate the Contract with immediate effect at any time and for any reason by giving written notice to the Customer including if the Customer fails to pay any amount due under the Contract on the due date for payment.
14.4 For the avoidance of doubt and without limiting its other rights or remedies, M5 Solutions Ltd may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer 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, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer 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 its creditors;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being a company) 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 Customer;
(e) (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.4(a) to clause 14.4(f) (inclusive);
(j) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Customer’s financial position deteriorates to such an extent that in M5 Solutions Ltd ‘s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
14.5 Without limiting its other rights or remedies, M5 Solutions Ltd may suspend provision of the Services under the Contract or any other contract between M5 Solutions Ltd and the Customer if the Customer becomes subject to any of the events listed in clause 14.4(a) to clause 14.4(l), or M5 Solutions Ltd reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
14.6 On expiry or termination of this agreement otherwise than on termination by M5 Solutions Ltd pursuant to clause 14.4, M5 Solutions Ltd shall provide such assistance as is reasonably requested by the Customer in transferring the hosting of the Site to the Customer or another service provider, subject to the payment of M5 Solutions Ltd’s expenses reasonably incurred.
14.7 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to M5 Solutions Ltd all of M5 Solutions Ltd ‘s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has yet been submitted, M5 Solutions Ltd shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 15 shall survive termination of the Contract.
16. FORCE MAJEURE
16.1 M5 Solutions Ltd shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents M5 Solutions Ltd from providing any of the Services and/or Goods for more than four weeks, M5 Solutions Ltd shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
17.1 Assignment and other dealings.
(a) M5 Solutions Ltd may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of M5 Solutions Ltd.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 17.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
17.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by M5 Solutions Ltd.
17.7 Governing law & Jurisdiction This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) 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 arising out of or in connection with this Contract or its subject matter or formation.