netbiz hosting limited

terms and conditions

1.              Interpretation
The following definitions and rules of interpretation in this clause apply in these terms and conditions:

1.1            Definitions:
Charges: the charges in respect of the Services set out in the Contract or otherwise agreed in writing between the parties.

Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information is:

(a)         identified as confidential at the time of disclosure; or
(b)         ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Conditions: these terms and conditions.
Contract: the contract between the Client and Netbiz for the provision of the Services by Netbiz to be performed on and subject to these Conditions.

Client: the person or firm who purchases Services from Netbiz.

Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.

GDPR: General Data Protection Regulation ((EU) 2016/679).

Intellectual Property Rights: patents, copyright and related rights, moral rights, trade marks, domain names, , the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Live Mode: the Site has become available on the Client’s chosen domain or files enabling the Client to host the Site have become available to be released to the Client.

Materials: the content provided to Netbiz by the Client from time to time for incorporation in the Site.

Netbiz: Netbiz Hosting Limited a company registered with company number 08248999 and whose registered address is at Scott Street, Newcastle, Staffordshire, ST5 1AR.

Non-Supplier Defects:  has the meaning provided in clause 5.2 of these Conditions.

Order: the Client’s order to Netbiz for the provision of the Services by its acceptance of the Proposal.

Project: the project to be delivered by Netbiz by the provision of the Services.

Project Plan: the timetable within which Netbiz will implement the Project as proposed by Netbiz and approved by the Client.

Proposal: the written proposal in respect of the Services issued to the Client by Netbiz.

Server: the computer server administered by Netbiz for the hosting of the Site as more particularly defined in the Contract.

Services: the website design and development, hosting and any other services to be provided as set out in the Order as the same may be varied by agreement of Netbiz in writing.

SEO Services: means search engine optimisation services.

Site: the website to be designed and developed by Netbiz pursuant to these Conditions.

Site Software: any software for the Site commissioned by the Client as specified in the Contract.

Specification: the specification for the Site included in the Proposal or otherwise agreed in in writing between the parties.

Third Party Products: any third party software products to be used in connection with the Project specified in the Contract.

Visitor: a visitor to the Site.

1.2            Clause and Schedule headings do not affect the interpretation of these Conditions.

1.3            References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of these Conditions.

1.4            In the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail.

1.5            Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.6            A reference to a statute or statutory provision includes a reference to it as it is amended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made under that statute or statutory provision.

1.7            Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.8            References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a visitor to that website.

1.9            Writing or written includes fax and email.

2.              Basis of contract

2.1            Subject to clause 2.4 of these Conditions, the Proposal constitutes an offer by Netbiz to provide Services in accordance with these Conditions.

2.2            The Proposal shall be deemed to be accepted when the Client provides the Order at which point and on which date the Contract shall come into existence.

2.3            These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4            In the event of any inconsistency between any provision set out in these Conditions and any provision in the Proposal, the provision in the Proposal shall prevail in relation to the subject of the inconsistency.

3.              Services

3.1            Netbiz shall provide the Services with reasonable care and skill and in accordance with the Project Plan; and shall where so agreed in writing, host the Site in accordance with and subject to these Conditions.

3.2           Netbiz shall use reasonable endeavours to meet any performance dates for the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services and may not be made of the essence by notice. Any changes or additions to the Services which may be agreed may extend the time required by Netbiz to deliver the Services.

4.              Client responsibilities

4.1            The Client acknowledges that Netbiz’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of any design specifications provided by or on behalf of the Client and any information and data the Client provides to Netbiz.

4.2            The Client shall provide Netbiz with access to, and use of, all information, data and documentation reasonably required by Netbiz for the performance by Netbiz of its obligations under the Contract.

4.3            The Client shall be responsible for the accuracy and completeness of the Materials on the Site in accordance with clause 14 and for all links to other websites from the Site requested by the Client.

4.4            The Client shall be responsible for ensuring that all Site content, files, records and data and information are backed up regularly and securely. Netbiz will where required provide access to the Site on request for such purpose once the Site is in Live Mode.

4.5            If the Client fails:
(a)          to provide any instructions or information required by Netbiz for the purpose of performing the Services or to respond to requests for the same from Netbiz for more than 30 days from the date of request; or
(b)         to provide any Materials agreed to be provided by the Client within 8 weeks of the date of the Contract,
Netbiz shall be entitled to charge the Client for all of the Charges payable for the Services and to complete the Services, insofar as it is able to do without the instructions or information or Materials, within 12 months of the receipt of the payment for the Charges.

5.              Website Development Services and acceptance of site

5.1           Once Netbiz has completed the design and development of the Site and any acceptance tests included in the Specification, it shall notify the Client when Live Mode has been achieved. Unless otherwise agreed, Netbiz shall not be required to activate the Site on the Client’s chosen domain or to release files enabling the Client to host the Site until payment for all Charges due for performance of the Services has been received by Netbiz.

5.2            If any failure to pass any agreed acceptance tests results from a defect which is caused by an act or omission of the Client or of one of the Client’s sub-contractors or agents for whom Netbiz has no responsibility (Non-Supplier Defect), the Site shall be deemed to have passed the acceptance tests notwithstanding such Non-Supplier Defect. Netbiz shall provide assistance reasonably requested by the Client in remedying any Non-Supplier Defect by supplying additional services or products, but shall have no responsibility for matters arising from the Non-Supplier Defect. The Client shall pay Netbiz in full for all such additional services and products at Netbiz’s then current fees and prices.

5.3            Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
(a)         the Client uses any part of the Site other than for test purposes; or
(b)         the Client unreasonably delays the start of any relevant acceptance tests or any retests for a period of seven working days or longer from the date on which Netbiz is ready to commence running such tests or retests.

6.              Domain name

6.1            Netbiz does not warrant that any particular domain name specified by the Client will be available for use by the Client.

6.2            If the Client requests the registration of a specific domain name, Netbiz will apply for the registration of the domain name on the Client’s behalf and at the Client’s cost subject to availability of the domain name in question at the time of the application and subject to the terms and conditions of the relevant domain name registry.

6.3            Any domain name registration successfully completed will be in the name of Netbiz whose name and address will be shown as the registered owner of the domain name. Subject to payment of all Charges due and the costs of the application and expenses incurred by Netbiz in respect of the registration, Netbiz agrees to transfer its rights in the domain name to the Client within 30 days of request in writing. Unless otherwise agreed the Client shall be responsible for all annual and other renewals of the domain name registration and all costs in respect of the same.

6.4            The Client shall be responsible for ensuring that the registration of any domain name requested by the Client for the Client does not infringe any trade mark, copyright or other right of any person and agrees to indemnify and keep indemnified Netbiz in relation to all costs, claims, losses and expenses of Netbiz arising in connection with the registration by Netbiz of the domain name.

7.              Hosting services, Training, maintenance and SEO services

7.1            Netbiz will provide hosting services (Hosting Services) for the Site only where expressly agreed by Netbiz in writing. Unless otherwise expressly agreed, the Client shall be responsible for the hosting of the Site.

7.2            Provision by Netbiz of any Hosting Services is subject to payment by the Client of annual hosting fees notified from time to time by Netbiz and payable in advance and such further terms in respect of the hosting of the Site as may be agreed.

7.3            Subject to payment by the Client of the fees and Charges due in respect of Hosting Services, Netbiz warrants on delivery and for a warranty period of thirteen weeks from the date that the Site is in Live Mode that the Site  provides the functionality set out in the Specification and is free of coding errors and cross browser issues. Netbiz agrees, subject to its fair useage policy and for so long as Netbiz remains instructed to host the Site, to provide reasonable support services during such warranty period.

7.4            Netbiz will provide training services (whether by telephone or by agreement at the Client’s premises) only where expressly agreed by Netbiz in writing. Unless otherwise agreed, the training to be provided by Netbiz shall relate to how to update or edit content on the Site and shall have a fair useage limit of up to 6 hours training. Training provided by Netbiz in excess of the fair use limit may be subject to additional charges.

7.5            Unless expressly agreed in these Conditions or otherwise by Netbiz in writing, the Charges do not cover any maintenance or support or training for or in respect of the Site. Costs and additional terms for the provision of maintenance and support or training services are available on request.

7.6            Additional terms and conditions for the provision by Netbiz of SEO Services, marketing retainer services and maintenance services may be included in the Proposal.

8.              Third party products

8.1            Where, at the request or with the approval of the Client, any third party products or services are required to be supplied in connection with the Services, such products or services shall, unless otherwise agreed, be supplied in accordance with the relevant third party’s terms and conditions and the Client shall pay the charges specified in the order or agreed by the Client for such products. Netbiz shall not be responsible for matters arising from the provision of products or services by third parties requested or approved by the Client.

8.2             Where images used on the Site have been purchased by Netbiz on behalf of the Client for such purpose, the Client acknowledges and agrees that such images are to be used by the Client only on the Site and the Client shall be responsible for ensuring that there is no unauthorised use, copying, distribution, or adapting of such images. The Client indemnifies and agrees to keep indemnified Netbiz against all cost, claims, losses, expenses and damages arising as a result of any breach by the Client of the provisions of this clause.

9.              Project management

9.1            Each party shall comply with any provisions for the management of the Project agreed in the Contract including, without limitation and where applicable, any arrangements for the appointment of a project manager for the party. Any project manager so appointed shall:
(a)         provide professional and prompt liaison with the other party; and
(b)         have the necessary expertise and authority to commit the appointing party.

9.2            The project managers shall meet at the intervals specified in the Contract or as the parties may otherwise agree.

10.            Charges and payment

10.1         The client shall pay any deposit specified by Netbiz in the Contract.  Netbiz shall not be required to commence work on the Services until it has received the deposit and shall have no liability for any delay in delivering the Services arising as a result of awaiting payment of the deposit. Save where the Contract otherwise expressly provides or where the Client has the right to terminate the Contract as a result of breach by Netbiz, or with the approval of Netbiz in its absolute discretion, any deposit paid shall be non-refundable.

10.2         Where the Contract allocates up to a set number of hours work to be provided by Netbiz in respect of bespoke design services, Netbiz shall make any number of revisions to the designs produced as may be required by the Client until the set number of hours has been worked. Where further revisions to the design are required by the Client after the set number of hours has been worked, the additional revisions may be subject to further charges at the applicable Netbiz hourly rate for the work in question. Netbiz shall notify the Client when the set number of hours has been worked.

10.3         Netbiz may issue a VAT invoice in respect of the Charges at any stage or interval specified in the Contract or otherwise monthly or on completion of delivery of the Services. The Charges set out in such invoice are due for payment by the Client on the terms set out in the Order or, if not otherwise set out in the Order, within 7 days of the date of the invoice.

10.4         Unless otherwise expressly provided, all Charges are exclusive of VAT.

10.5         Payments by the Client shall be made full and in cleared funds to a bank account nominated in writing by Netbiz or by any other method approved by Netbiz. Payments made by credit card are subject to a 2% surcharge. Time for payment shall be of the essence of the Contract.

10.6         All amounts due under the Contract 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).

10.7         If the Client fails to make any payment due to Netbiz under these Conditions by the due date for payment, then, without limiting Netbiz’s remedies under clause 16, the Client shall pay interest on the overdue amount at the rate which is 2% a year above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount and Netbiz shall also be entitled to claim any compensation to which it is entitled pursuant to the law.

10.8         If the Client fails to pay any sum due to Netbiz in respect of the Contract, then, without limiting any other remedy of Netbiz under these Conditions or the law, Netbiz shall be entitled to suspend or cancel performance of any further Services without notice.

11.            Warranties

11.1         Each of the parties warrants to the other that it has full power and authority to enter into and perform the Contract.

11.2         Netbiz shall perform the Services with reasonable care and skill.

11.3         Subject to clause 11.4, Netbiz warrants that the Site will perform substantially in accordance with the Site Specification for a period of twelve months from being made available to the Client. If the Site does not so perform, Netbiz shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification or in its discretion refund the Charges paid for the Services and, in either case,  this shall be the Client’s sole remedy in respect of the breach of warranty.

11.4         The warranty set out in clause 11.3 shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by any Materials. The warranty set out in clause 11.3 covers work carried out by and for which Netbiz is responsible but does not cover (and Netbiz shall not be liable for) and defects arising from:
(a)         changes, bugs, configuration issues and/or updates to any services provided by third parties including but not limited to payment gateways, plug-ins and modules;
(b)         updated web browser incompatibilities or core system updates;
(c)         issues relating to third party hosting systems or DNS errors;
(d)         any damage or defects caused by the user of the Site;
(e)         any failure, interruption or suspension of the internet or the worldwide web service (other than to the extent arising from the fault of Netbiz); or
(f)          any other matter outside of the reasonable control of Netbiz.

11.5         These Conditions set out the full extent of Netbiz’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into these Conditions are hereby expressly excluded.

12.            Limitation of remedies and liability

12.1         Nothing in these Conditions shall operate to exclude or limit Netbiz’s liability for:
(a)         death or personal injury caused by its negligence; or
(b)         any other liability which cannot be excluded or limited under applicable law.

12.2         Netbiz shall not be liable to the Client for:
(a)         any damage to software;
(b)         damage to or loss of data;
(c)         loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity; or
(d)         for any indirect or consequential loss or damage.

12.3         Subject to clause 12.1, Netbiz’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with these Conditions or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 200% of the total Charges payable by the Client to Netbiz under the Contract in that calendar year or £25,000 whichever is the less.

13.            Intellectual property rights

13.1         Save as provided in this clause or otherwise expressly agreed by Netbiz in writing, all Intellectual Property Rights in the Site (including in the content of the Site and the Site Software and in the design of and code for the Site), but excluding in the Materials, arising in connection with these Conditions are and shall remain the property of Netbiz. Subject to prior payment in full of all Charges and sums payable to Netbiz under the Contract, Netbiz grants the Client a non-exclusive, non-transferable licence of such Intellectual Property Rights for the purpose of operating the Site.

13.2         The Client shall not copy or permit the copying of any code or database provided by Netbiz for the Site for use in connection to any domain name or website different to the Site without the prior written approval of Nebiz.

14.            Site content

14.1         Unless otherwise expressly agreed in the Contract, the Client shall be responsible for providing content for the Site. Netbiz shall not be liable for any delay arising in connection with any delay or failure by the Client to provide such content.

14.2         Where provided in the Contract, Netbiz may update the Site with Materials provided from time to time by the Client. The Client shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights and shall not include content 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).

14.3         Where required, Netbiz shall grant the Client access to the Server in order to update information held on the Site.

14.4         Unless otherwise agreed, Netbiz shall include only Materials on the Site. The Client acknowledges that Netbiz has no control over any content placed on the Site by any visitor and does not purport to monitor the content of the Site. Where it hosts the Site, Netbiz reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Netbiz shall notify the Client promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.

14.5         The Client shall indemnify and keep indemnified Netbiz against all damages, losses, cost and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content or infringe the Intellectual Property Rights of any third party.

14.6         Netbiz may include the statement “Web design by Netbiz” or a statement to similar effect in a form to be agreed by the parties acting reasonably on the home page of the Site.

14.7         Where Netbiz agrees to write any content for the Site, any such content will require and be based upon information provided by the Client. Netbiz shall endeavour to write the content in the style and tone and of the length agreed with the Client. Any changes or additions to the content written by Netbiz may be subject to additional charges.

15.            Data protection

15.1         Each party shall comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data

Protection Legislation.

15.2         The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and Netbiz is the Data Processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

15.3         Without prejudice to the generality of clause 15.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to Netbiz for the duration and purposes of the Contract and the Client hereby warrants that any processing by Netbiz of Personal Data will not infringe the rights of any person.

15.4         Without prejudice to the generality of clause 15.1, Netbiz shall, in relation to any Personal Data processed in connection with the performance by Netbiz of its obligations under the Contract:
(a)         process that Personal Data only on the written instructions of the Client unless Netbiz is required by applicable laws (Applicable Laws) to process Personal Data and where Netbiz is relying on the requirements of Applicable Laws as the basis for processing the Personal Data, Netbiz shall promptly notify the Client of this before performing the processing required by Applicable Laws unless those Applicable Laws prohibit Netbiz from so notifying the Client;
(b)         ensure that it has in place appropriate technical and organisational measure to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c)         ensure that all personnel who have access to and/or process the Personal Data are obliged to keep the Personal Data confidential;
(d)         not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i)          the Client or Netbiz has provided appropriate safeguards in relation to the transfer;
(ii)        the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii)       Netbiz complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv)       Netbiz complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(e)         provide reasonable assistance to the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f)          notify the Client without undue delay on becoming aware of a Personal Data breach;
(g)         at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Contract unless required by Applicable Laws to store the Personal Data; and
(h)         maintain complete and accurate records and information to demonstrate its compliance with this clause 15.

15.5         The Client does not consent to Netbiz appointing any third party processor of Personal Data under the Contract.

15.6         The Client shall indemnify and keep indemnified Netbiz against all liabilities, damages, losses, costs and expenses suffered and/or incurred by Netbiz arising out of or in connection with any breach by the Client of its obligations set out in this clause 15.

15.7         As part of the Services, Netbiz may, at its discretion, provide guidance to the Client on what processes the Client may need to implement as a Data Controller in order to ensure compliance with GDPR. The Client hereby acknowledges that such guidance is Netbiz’s interpretation and understanding of the GDPR only and the Client should not rely on, and shall have no remedies in respect of any reliance on, any guidance given by Netbiz.

16.            Term and termination

16.1         Subject to payment of all Charges due and in respect of work or Services provided or costs reasonably incurred by Netbiz up to the effective time of termination, the Client may in the case of any Contract which is a retainer terminate the Contract on not less than 30 days’ notice. Other than as provided in clause 10.1 of these Conditions, on termination of the Contract by the Client no deposit paid by the Client in respect of the Services shall be refundable and Netbiz shall not be required to perform any further Services. Netbiz may in the case of a Contract which is a retainer terminate the Contract on giving not less than 30 days’ notice to the Client, where, following the effective date of termination, Netbiz shall not be required to perform any further Services.

16.2         Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a)         the other party fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b)         the other party commits a material breach of any term of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c)         the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d)         the other party commences negotiations with all or any class of any 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;
(e)         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 that other party;
(f)          an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(g)         the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h)         a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i)          a creditor or encumbrancer of the other party 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 the other party’s assets and such attachment or process is not discharged within 14 days;
(j)          any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.2(c) to clause 16.2(h) (inclusive); or
(k)         the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

16.3         On termination of the Contact by Netbiz under clause 16.2, all licences granted by Netbiz under these Conditions shall terminate immediately.

16.4         On expiry or termination of the Contract otherwise than on termination by Netbiz under clause 16.2, Netbiz shall promptly return all Materials to the Client, and subject to the payment of Netbiz’s Charges and expenses reasonably incurred and to be incurred shall provide to the Client an electronic copy of the Site (including all content on the Site).

16.5         On expiry or termination of the Contract, all provisions of these Conditions shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

16.6        Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.

17.            Change control
Any request to change or extend the scope of the Services or to provide any additional services shall require the consent in writing of Netbiz not to be unreasonably withheld provided that the Client agrees to pay any reasonable increases in Charges notified by Netbiz arising in connection with the requested change.

18.            Force majeure
Neither party shall be in breach of the Contact nor liable for delay in performing, or failure to perform, any of its obligations under the Contact if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Contact by giving 30 days’ written notice to the affected party.

19.            Confidentiality

19.1         Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

19.2         Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

19.3         The obligations set out in this clause 19 shall not apply to Confidential Information which the receiving party can demonstrate:
(a)         is or has become publicly known other than through breach of this clause 19; or
(b)         was in possession of the receiving party prior to disclosure by the other party; or
(c)         was received by the receiving party from an independent third party who has full right of disclosure; or
(d)         was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

19.4         The obligations of confidentiality in this clause 19 shall not be affected by the expiry or termination of the Contract and shall remain in force for the duration of the Contract and for two years following termination of the Contract.

20.            Assignment
Neither party may assign or transfer any of its rights or obligations under the Contract without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

21.            Entire agreement

21.1         The Contract including these Conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

21.2         Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contact.

22.            Third party rights

No one other than a party to the Contact, their successors and permitted assignees, shall have any right to enforce any of its terms.

23.            Variation

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

24.            Waiver

No failure or delay by a party to exercise any right or remedy provided under the Contact 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.

25.            Severance

25.1         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.

26.            Governing law
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

27.            Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contact or its subject matter or formation.

 

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