Managed Hosting Services Agreement

Designed to maintain security, integrity & performance

Dudobi provides a range of technical services, including internet hosting services for web and software Applications (“Hosting Services”); In consideration of the Charges (as defined below), Dudobi agrees to provide the Hosting Services to you on the terms and conditions set out below.

1. SCOPE OF THE AGREEMENT
1.1 This Agreement (including the Schedules and pages containing prices and the services provided) sets out the entire agreement of the parties in relation to the provision of Hosting Services by Dudobi to you.

2. YOUR RESPONSIBILITIES AND WARRANTIES
2.1 You, the client shall provide Client Content to Dudobi for use in connection with the performance of Dudobi’s obligations under this Agreement (“Permitted Purpose”).
2.2 It shall be your responsibility to maintain your own equipment, data and communication lines required to access your website or Client Content. 
2.3 You acknowledge that Dudobi’s ability to perform its obligations under this Agreement is, where relevant, dependent upon your reasonable co-operation with Dudobi as well as the accuracy and completeness of any information and data which you provide to Dudobi.  Therefore, you shall:
2.3.1 where given reasonable notification in advance, provide Dudobi with access to, and use of, all information, data, documentation and computer time reasonably deemed necessary by Dudobi; and
2.3.2 appoint someone who shall provide professional and prompt liaison with Dudobi and have the necessary expertise and authority to act on your behalf.
2.4 You will obtain all necessary releases, licences, permits or other authorisations necessary for the permitted use of the Client Content by Dudobi as provided for in this Agreement. You shall also comply with all relevant legislation in relation to your use of the Services, including but not limited to data protection legislation.
2.5 All internet use is susceptible to breaches of security and you must take reasonable security precautions in light of your business and the services you use. Dudobi will provide security as part of the Hosting Services where agreed, but you are fully responsible for security other than that.
2.6 You must comply with the Acceptable Use Policy and Dudobi reserves the right to suspend services where a breach of such policy occurs. You agree to reimburse Dudobi for its costs and expenses arising from any breach of the Acceptable Use Policy or a breach of a third party’s rights by the Client Content, data or equipment.

3. DUDOBI’S RESPONSIBILITIES AND WARRANTIES
3.1 Dudobi represents and warrants that, in performing its obligations under this Agreement, it shall use good quality materials, and shall provide services in a professional, workmanlike and timely manner, in accordance with generally accepted IT industry standards and with all reasonable care, skill and diligence.
3.2 Dudobi reserves the right at its own expense to change the location or configuration of the Hosting Services; provided, however, that Dudobi shall not arbitrarily or discriminatorily require such changes. Dudobi and you shall work in good faith to minimise any disruption to your services that may be caused by such changes in location or configuration of the Hosting Services.

4. HOSTING SERVICES
4.1 Dudobi shall provide to you the Hosting Services and such other ancillary services (such as development services and consulting services) as may be agreed between Dudobi and the Client from time to time, pursuant to these Terms and Conditions and the Acceptable Use Policy, and in consideration for the additional fees, as may be advised.
4.2 The Hosting Services shall include virus checking and firewall protection, but Dudobi shall not be liable to you for any unauthorised access to you website, content or data, or through use of Dudobi’s Hosting Services, unless the access was caused by Dudobi’s failure to perform its obligations under this Agreement, and such failure caused the unauthorised access.
4.3 Save for routine and emergency maintenance, Dudobi shall provide the Hosting Services on a continual basis and in accordance with the Service Levels.  Any break in the continuity of Hosting Services resulting from routine and emergency maintenance will be notified to you as soon as reasonably possible.
4.4 If you breach any of these Terms and Conditions, Dudobi reserves the right to suspend the Services. If you wish to reconnect any Hosting Service that has been suspended or terminated by Dudobi, you may do so upon payment of the Reconnection fee as set out on the fees page.

5. CHARGES
5.1 In consideration of the supply of the Hosting Services, in accordance with the terms of this Agreement and as outlined on the fees page, Dudobi will invoice in advance Charges for all Services except for Charges that are dependant upon usage of Services, which are invoiced in arrears.
5.2 Dudobi reserves the right to charge you additional fees (as set out on the Fees page), for any ancillary services provided to you, pursuant to clause 4.1 above.
5.3 You shall pay the Charges to Dudobi within thirty (30) days from the date of an invoice. Payment shall only be deemed received by Dudobi upon receipt of cleared funds.
5.4 The Charges are stated exclusive of Value Added Tax and you shall pay Value Added Tax on the Charges at the rate and in the manner prescribed by law from time to time.
5.5 The Charges include your monthly use of bandwidth up to but not exceeding the “Monthly data transfer” agreed between Dudobi and you.
5.6 If your average use of bandwidth exceeds this amount in any one month for a period greater than one month then you will be liable to Dudobi for an “Additional hosting bandwidth” charge for this extra bandwidth for that month, as set out on the Fees page.
5.7 For bandwidth use above the amount agreed and where you do not pay the specified additional hosting bandwidth charges as set out on the Fees page, Dudobi reserves the right to filter your bandwidth so that usage is restricted to 32 Kbps (or suspend the Hosting Services).
5.8 If you reasonably dispute any portion of an invoice, you must pay the undisputed portion of the invoice and notify Dudobi in writing of the disputed amount within thirty (30) days after delivery of the relevant invoice. You waive the right to dispute any Charges not disputed within thirty (30) days after delivery of the relevant invoice.
5.9 If you fail to pay any sum when due, Dudobi shall be entitled to interest on the amount due at the rate of 8% per annum above the base rate of the Bank of England ruling from time to time calculated from the date due until collection (in accordance with The Late Payment of Commercial Debts (Interest) Act 1998). Dudobi reserves the right to send overdue accounts to a collection agency.
5.10 The Charges shall be reviewed no more than once annually and shall be notified to you in writing in advance of their implementation.

6. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
6.1 Nothing in this Agreement shall grant to either party any right, title or interest in or to any Intellectual Property Rights of the other party.
6.2 All Intellectual Property Rights created and/or developed by Dudobi pursuant to the terms of this Agreement (other than those Intellectual Property Rights relating solely to the Client Content) is (and shall remain) the sole property of Dudobi (the “Dudobi IPR”).
6.3 You shall fully indemnify Dudobi against all reasonable claims, demands, actions, losses and damages (excluding indirect or consequential damages) costs, charges and expenses (including, but not limited to, reasonable legal costs and disbursements) arising from or incurred by reason of any infringement or alleged infringement by the Client Content (when used for the Permitted Purpose) of any third party Intellectual Property Rights.

7. CLIENT CONTENT
7.1 You shall retain all rights to, and ownership of, the Client Content and any Client IPR.
7.2 For the Term of this Agreement, you hereby grant to Dudobi a non-exclusive, worldwide, royalty-free licence:
7.2.1 to make archive or backup copies of the Client Content and / or the Client IPR only as necessary for the Permitted Purpose.
7.2.2 to digitise, convert, install, upload, modify, select, order, arrange, compile, combine and otherwise use any or all of the Client Content and / or the Client IPR, for the sole purpose of developing any Applications for you;
7.3 Except as permitted in accordance with this Agreement, Dudobi shall not use the Client Content or the Client IPR without your prior written approval.

8. THIRD PARTY PRODUCTS
8.1 If Dudobi and you agree that Dudobi will use Microsoft or other third party software to provide the Hosting Services, then you agree to the licence terms for such software and you further agree that if you resell the services, you will require your customers to also agree to those terms.
8.2 You agree that the use of third party products is in accordance with the product’s standard terms and is at your sole risk and Dudobi are in no way responsible for the product’s performance, features or failures.

9. DATA PROTECTION
9.1 Both parties warrant that they will duly observe all their obligations under the Data Protection Act 1998 which arise in connection with this Agreement.  Without prejudice to the generality of the preceding sentence, both parties hereby warrant that they will obtain, and at all times maintain, a registration under the Data Protection Act 1998 to the performance of their obligations under this Agreement.
9.2 Dudobi agrees and undertakes to you in relation to the processing of Personal Data as follows:
9.2.1 not to process any Personal Data which is disclosed to it, except in accordance with your instructions;
9.2.2 in relation to the use of Personal Data, to hold the Personal Data in strict confidence; not to disclose the Personal Data to any third parties; and not to use any Personal Data for any purpose other than as permitted by you. In particular, Dudobi is not to make any commercial use of the Personal Data whether for itself or a third party;
9.2.3 to ensure that appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of or damage to Personal Data;
9.2.4 to provide details, at your request, of any security measures taken in relation to the Personal Data and to procure compliance with such measures at all times;
9.2.5 to return promptly to you, at your request, all tangible and intangible items containing Personal Data together with any copies, destroy any other documents containing Personal Data together with any copies and expunge all Personal Data from any computer, word processor or other device containing it and further confirm compliance with the above in writing to you;
9.3 The terms of this clause 9 shall apply to all Personal Data processed by Dudobi on your behalf from time to time and will remain in effect without limit of time.

10. CONFIDENTIALITY
10.1 Dudobi and/or you may, in the course of working together pursuant to this Agreement have access to or to have communicated to them certain Confidential Information belonging to the other which is proprietary and must be held in confidence.
10.2 Any Confidential Information, whether contained in original or copy documents or in any other form, shall at all times remain the property of the party disclosing the Confidential Information (“the Discloser”) together with all notes, memoranda and drawings that have been made as a result of access to such Confidential Information.
10.3 The party receiving Confidential Information (“the Recipient”), shall hold in confidence all Confidential Information disclosed to it by the Discloser, and no Confidential Information will be used by the Recipient for any purpose other than the Permitted Purpose without the prior written permission of the Discloser, unless such information is trivial or obvious;already in its possession other than as a result of a breach of this clause; or in the public domain other than as a result of a breach of this clause.
10.4 The Recipient shall take all reasonable steps to minimise the risks of unauthorised disclosure of the Confidential Information and will provide proper and secure storage for all information and any papers, drawings or other materials which relate to or are compiled from such information.
10.5 The confidentiality obligations expressed in this Agreement shall continue for the Term of this Agreement and for two years thereafter.
10.6 Nothing in this Clause shall be deemed or construed to prevent either party, from disclosing any Confidential Information obtained from the other party to any employee, other contractor or any other person engaged by you or Dudobi in connection with this Agreement, provided that the Discloser shall have obtained from the employee, contractor or other person a signed confidentiality undertaking on substantially the same terms as are contained in this Clause.

11. PUBLICITY
Dudobi reserves the right to make any press announcements or publicise this Agreement in any way.

12. NOTICES
Any notice, demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be sent by electronic mail to the address, as notified by each party to the other from time to time.

13. FORCE MAJEURE
13.1 For the purposes of this Agreement, the expression “Force Majeure” shall mean any cause affecting the performance by a party of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including fire, flood, civil riot, terrorism or war, delays in transportation, failure of public power supplies, failure of communication facilities, or failure or interruption of services supplied by a third party or any disaster or industrial dispute affecting a third party, for which a substitute third party is not reasonably available. 
13.2 If either of the parties shall become aware of circumstances of Force Majeure which give rise to or which are likely to give rise to any failure or delay on its part, it shall forthwith notify the other party and shall inform the other of the period which it is estimated that such failure or delay shall continue.
13.3 Should a circumstance of Force Majeure persist for a period of greater than 30 (thirty) days, either party may by written notice to the other terminate this Agreement forthwith.
13.4 Neither party shall be liable to the other for failure to perform its obligations under this Agreement, which is due to Force Majeure.

14. WAIVER
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement.

15. TERM AND TERMINATION
15.1 This Agreement shall subsist for one (1) year from the Effective Date and, unless earlier terminated either in whole or in part in accordance with the following provisions of this Clause, shall continue thereafter for successive periods of one (1) year commencing on the anniversary of the date hereof.
15.2 Either party may at any time terminate this Agreement by not less than thirty (30) days of notice in writing to the other party (subject to clause 13 above).
15.3 Dudobi may, upon written notice to you, suspend or terminate the Hosting Services without liability if you fail to pay any past due balance for such Services (other than those disputed under Clause 5.8) within five (5) days after written notice from Dudobi.
15.4 Either party may terminate this Agreement forthwith by notice in writing to the other party if the other party is unable to pay its debts or enters into a compulsory or voluntary liquidation, or confirms with or convenes a meeting of its creditors or has a receiver appointed over any or all of its assets or takes or suffers any similar action in consequence of a debt, or ceases or threatens to cease to carry on business, for any reason.
15.5 Either party may terminate this Agreement forthwith where the other party fails to perform any of its obligations under this Agreement and has not remedied such failure within fifteen (15) days of having been notified of the failure by the other party.
15.6 In the event of any termination of this Agreement,  Dudobi shall forthwith return or destroy (as required by you) all the Client Content and you may be required to give up any IP addresses allocated to it, and if you do not, then Dudobi reserve the right to change or remove such IP addresses.
15.7 Termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party, and any clause intended to continue in force shall do so.

16. LIMITATION OF LIABILITY
16.1 Except in the case of death or personal injury caused by the negligence of Dudobi, Dudobi shall not be liable to you by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or the express terms of this Agreement, for any interruption of service or for any loss of profit or indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Dudobi, its agents or contractors or otherwise) and Dudobi’s maximum liability under or in connection with this Agreement, whether in contract, tort (including negligence) or other, will in no circumstances exceed the charges paid by you under this Agreement during the previous 6 months.

17. SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provision hereof shall continue in full force and effect as if this Agreement had been valid. 

18. ASSIGNMENT AND SUB-LETTING
Neither party shall assign any of its obligations under this Agreement without the prior written consent of the other party.

19. AMENDMENTS
Any amendments to these Terms and Conditions will be posted on this site.

20. RIGHTS OF THIRD PARTIES
A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the Act.

21. DISPUTE RESOLUTION
21.1 Dudobi and you agree to resolve in good faith, all disputes or differences which may arise in respect of the construction or effect of this Agreement or the rights, duties and liabilities of the parties or any matter or event connected with or arising out of this Agreement. If a resolution cannot be reached within 30 days, then the matter shall be referred to CEDR (Centre for Effective Dispute Resolution).
21.2 If the dispute has not been resolved by the CEDR process within 2 months, then the matter shall be referred to the courts.

22. APPLICABLE LAW
Unless otherwise agreed in writing between the parties, this Agreement shall be subject to and construed or interpreted in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts to which both parties hereby submit.

SCHEDULE 1 - DEFINITION OF TERMS
“Application(s)” or “Client Application(s)” means each software or web program, both privately and publicly accessible, or located on the Internet, comprised of computer software programs and information, and any associated or linked applications, databases and/or software.
“Charges” means Dudobi’s charges as set out under “Charges” above at clause 5.  All charges exclude VAT.
“Client Content” means information, text, graphics, data, databases, photographs, sounds or any other copyright work publicly available on any Application, or provided for publication on any Application either by you or any other third party commissioned by you, together with all User Generated Content and information regarding Users (such as, for example, the number of page impressions, Users’ email addresses or any other information posted by Users or detected by the System about Users).
“Client IPR” means your intellectual property rights.
Confidential Information” means all information designated as such by either party in writing together with all other information which relates to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party or information which may reasonably be regarded as the confidential information of the disclosing party (whether or not so designated) and including any materials, trade secrets, know how, formulas, processes, algorithms, ideas, strategies, inventions, data, network configurations, systems architecture, designs, flow charts, drawings, proprietary information, business and marketing plans, financial and operational information, and all other non-public information relating to the current and/or future operations of a party.
“Hosting Services” means those Internet and related services to be provided by Dudobi.
“Intellectual Property Rights” or “IPR” means patents, trade marks, service marks, database rights, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, know-how, trade or business names, domain names and other similar rights or obligations whether registrable or not in any territory or jurisdiction (including but not limited to the United Kingdom).
“Internet” means the public international system of computer and telecommunication networks known as the “internet”.
“Service Levels” means those service levels for the provision of the Development Services or the Hosting Services.
“Term” means the term of this Agreement as set out under “Term and Termination” above.
“Terms and Conditions” means these terms and conditions together with the schedules hereto.
“User(s)” means any member of the public accessing your Hosting Services and / or Applications via the Internet or by any other means.
“User Generated Content” Means all such material posted by Users on any Application, including but not limited to text, graphics, photographs, logos, designs, drawings, designs, artistic and graphical works, and other information.