Mello Hosts standard terms and conditions for supply of Hosting Services
During the continuance of the Agreement into which this document is incorporated (the ‘Agreement’), Mello Hosts shall supply and the Purchaser shall purchase subject to these Mello Hosts Supply Terms. Definitions in the Agreement (which Agreement includes any schedule and/or any appendix thereto) shall also apply in these Mello Hosts Supply Terms. In the event of any conflict between these Mello Hosts Supply Terms and the terms of the Agreement, the terms of the Agreement shall take precedence.
1. Mello Hosts Supplies, Specifications and related Prices
The Services, the Specifications, and the related Prices are set out in the Agreement and/or its Schedules (the ‘Schedules’) or Appendices (the ‘Appendices’).
2.Orders
2.1. No terms or conditions endorsed on a Purchaser’s order, specification, or similar document will form part of the contract between the parties. By placing an order, the Purchaser acknowledges the applicability of the Mello Hosts Terms.
2.2. Mello Hosts and the Purchaser shall agree times and places for the performance of Services which shall generally be set out in the relevant Schedule and/or Appendix. Otherwise, Mello Hosts shall use its reasonable endeavours to perform them within a reasonable time in the circumstances.
2.3. Failure to notify of any delay shall not on its own entitle the Purchaser to terminate the contract or withhold payment against Mello Hosts’s invoice. Unless otherwise agreed in writing with Mello Hosts, the Purchaser shall not be entitled to cancel any order for Services once the first performance of the Services has been performed by Mello Hosts.
2.4. Purchasers may be asked to make payment in advance for Services against Mello Host’s pro-forma invoice or provide a suitable credit reference or such other proof of creditworthiness as Mello Hosts may require at its sole discretion before supply.
3.Terms of Payment
Existing customers: Unless subject to separate agreed arrangements, the Purchaser shall pay MELLO HOSTS within 30 days of the date of MELLO HOSTS’s invoice. If the Purchaser fails to make payment on the due date, MELLO HOSTS shall be entitled to charge the Purchaser interest at the annual rate of 3% above the base rate of Barclays Bank plc. Unless otherwise agreed with MELLO HOSTS or required by law, the Purchaser shall not be entitled to make any set off in respect of amounts due to MELLO HOSTS.
New Customers: If the Purchaser is a new customers or has requested a new service over and above their existing services from Mello Hosts, then Mello Hosts will ask for Payment upfront either by Paypal or via Stripe including for such charges relating to but not exclusively for Domain purchase and Hosting Service provision.
4.Confidentiality
Each party acknowledges and agrees that any and all information concerning the other’s business or the terms of the Agreement including these MELLO HOSTS Supply Terms is confidential (hereinafter referred to as ‘Confidential Information’) and each party agrees that it shall not permit the duplication, use or disclosure of any such Confidential Information to any person (other than its own employee, agent or sub-contractor where the same requires such information for the performance of the Agreement) unless such duplication, use or disclosure is specifically authorised in writing by the other party, or is required by the operation of Law. Confidential Information does not include information, which at the time of disclosure is generally known by the public (other than by the unauthorised act of the disclosing party). The parties shall take all reasonable steps to ensure that their employees, agents and sub-contractors keep Confidential Information confidential.
5.Data Protection
5.1. Each party undertakes to comply at all times with the Data Protection Act 1998 (the ‘DPA’) to the extent it processes any personal data or sensitive personal data on behalf of the other. ‘personal data’ and ‘sensitive personal data’ shall have the meanings given in the DPA.
5.1.1. In particular, but without limitation, each party shall:
(a.) only carry out processing of such data in accordance with the other’s instructions
(b.) only disclose it to or allow access to it by those of its employees (or agents or sub-contractors) who are familiar with data protection requirements and whose use of such data relates to their job or function
(c.) assist the other with all subject information requests received from data subjects.
5.1.2. For the avoidance of doubt, neither party (or its agents or sub-contractors) shall acquire any rights in any of the other’s personal data or sensitive personal data and shall only be entitled to process it in accordance with its contractual obligations. On termination of the contract each party (or its agents or sub-contractors) shall immediately cease to use the same and shall arrange for its safe return or destruction as shall be agreed with the other at the relevant time.
5.1.3. Each party agrees to indemnify the other against any actions, costs, liabilities, losses, damages and expenses which the other may suffer or incur as a result of any breach by the former of any of the undertakings given in this Clause 5.
6.Intellectual Property
6.1. Each party confirms that it owns, or has all necessary rights in the use of, all intellectual property in relation to the Services and each acknowledges that such intellectual property shall remain the property of, or the rights in the use of shall remain with, the originating party, unless otherwise agreed in writing between the authorised representatives of MELLO HOSTS and the Purchaser.
7.Force Majeure
Neither party will be liable to the other for any failure or delay or for the consequences of any failure or delay in performance of this Agreement if it is due to any event beyond the reasonable control and contemplation of a party to this Agreement including, without limitation, acts of God, war, industrial disputes, protests, fire, flood, storm, tempest, explosion, an act of terrorism and national emergencies.
8.Warranties
8.1. MELLO HOSTS warrants to provide Services with all the care and skill to be expected of a qualified and competent contractor experienced in undertaking services of the same kind as the Services.
8.2. If the Services performed are in breach of Clause 8.1, MELLO HOSTS will at its option make good the performance, re-perform the Service or refund the Purchaser the relevant Price, subject to availability and the performance being proved to be deficient to the reasonable satisfaction of MELLO HOSTS. These obligations will not apply where:
8.2.1. the part of the Service concerned was based on information supplied by or varied from the normal Service at the specific request of the Purchaser; or
8.2.2. the Purchaser failed to notify MELLO HOSTS of the defect within 14 days of the supply.
9.Liability
9.1. Nothing in this contract excludes or limits or attempts to exclude or limit the liability of either party for death or personal injury caused as a result of its negligence, or for fraudulent misrepresentation; or in respect of the implied warranties contained in the Supply of Goods and Services Act 1982.
9.2. Subject to Clause 9.1 MELLO HOSTS will be under no liability to the Purchaser whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused.
9.3. Subject to Clauses 9.1 and 9.2, MELLO HOSTS’s aggregate liability under this Agreement (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused will be limited to the amount paid for the Services concerned.
10.Freedom of Information
Where the Purchaser is a Public Authority as defined in the Freedom of Information Act 2000 (‘the FOIA’) it agrees to notify MELLO HOSTS immediately if it receives any FOIA request for information regarding MELLO HOSTS or its business, and it agrees to consult with MELLO HOSTS regarding the application of any exemptions under the FOIA in relation to such request. MELLO HOSTS agrees to cooperate with the Purchaser in relation to the FOIA.
11.Disputes
In the event of a dispute concerning the Goods or Services the parties shall use their reasonable endeavours to resolve it as soon as practicable. If they fail to do so within 14 days, the parties shall try to agree on and implement a method of dispute resolution. If they fail to agree such method within 14 days, the parties confirm that the dispute will then become subject to the exclusive jurisdiction of the English courts.
12.Consequences of Termination
The termination of this Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination. The clauses which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
13.Contracts (Right of Third Parties) Act 1999
The parties to the contract incorporating these conditions do not intend that any of its terms will be enforceable by the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
14.Assignment
Neither party shall be entitled to assign or transfer any of its rights or obligations without the prior written agreement of the other (which shall not be unreasonably withheld or delayed).
15.Waiver
No failure or delay by a party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
16.Invalidity/Severability
If any clause or part of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other clause or part of this Agreement and this will not affect any other provisions of this Agreement which will remain in full force and effect.
18.Variation
This Agreement may only be varied or amended in writing and signed by the parties specifically referring to this clause and stating that this Agreement is varied in the manner specified.
19.Entire Agreement
These terms and conditions, and the Agreement into which they are incorporated contain all the terms which the parties have agreed in relation to the subject matter of this Supply. Nothing in this Clause shall be taken to exclude liability for fraudulent misrepresentation.
20.No Partnership
Nothing in this Agreement or any arrangement contemplated by it shall constitute either party a partner of the other nor shall the execution, completion and implementation of this Agreement confer on any party any power to bind or impose any obligations to any third parties on the other party or to pledge the credit of the other party.
21.Compliance with Laws and Regulations
Each party shall observe and abide by and shall require its sub-contractors to observe and abide by all laws, regulations and by laws as may apply in relation to the matters contemplated by this Agreement.
22.Governing Law and Jurisdiction
The formation, existence, construction, performance, validity and all aspects whatsoever of the Agreement or of any term of the Agreement will be governed by the law of England and Wales and subject to Clause 14, the courts of England and Wales shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Agreement.
23.Fair processing
All information that we hold concerning you will be held and processed by Mello Hosts strictly in accordance with the provisions of the Data Protection Act 1998.
Such data will be used by the organisation to administer our relationship with you as a customer on all services. We will not, without your consent, supply your name and addresses to any [other] third parties except where (1) such transfer is a necessary part of the activities that we undertake, or (2) we are required to do so by operation of law.
As an individual, you have a right under the Data Protection Act 1998 to obtain information from us, including a description of the data that we hold on you. Should you have any queries concerning this right, please contact our Data Protection Officer at Defnet Media, 1st Floor, 96 Bold Street, Liverpool L1 4HY.