Musician Entrepreneur Plan

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Musician Entrepreneur Plan

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Your personal data will be used to process your order, support your experience throughout this website, and for other purposes described in our privacy policy.

By browsing and using the Website, you accept and agree to be bound and abide by the Terms of Use, our Privacy Policy, Acceptable Use Policy, Cookie policy and Copyright Policy. If you sign up for an account on our Website, or otherwise make use of any of our service offerings, you will also be bound by the terms of our Terms of Service. If you do not want to agree to be bound by any of these agreements, you must not access or use the Website or our services, as applicable.

Terms of Service

Last Modified: April 28th, 2023

Applicability

These Terms of Service (the “Agreement”) apply to users of the www.soundsquares.com website(the “Platform”) who have created an account on the Website and who receive Services defined below, and any other services, from soundsquares.com (“SoundSquares”) through the use of a client portal reached by clicking on the “Sign In” and login button on the Website (the “Platform”).

By signing up, accessing or otherwise using any of the SoundSquares services, including any associated features and functionalities, websites, user interfaces, and/or applications (collectively, the “Platform”), or by accessing or using any content or material that is made available through the Platform, or using a website has that has been provided to you, you are agreeing to these Terms of Use

Acceptance of the Terms of Service

These Terms of Service are entered into by and between you and Soundsquares Ltd (“Company”, “we” or “us ”).

The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Service”), govern your access to and use of the Services, including any content offered on or through the Portal, if part of such Services.

“You” or “you” as used in these Terms of Service means either, and as applicable:

(i) you, personally, if you are an individual artist or musician operating as a sole proprietorship or other unincorporated association, including as a member of a group of artists (“Band”) not formed as a legally separate entity such as a corporation or limited liability company (each an “Entity”), or

(ii) you and each other member of your Band if organized as an Entity. If “you” refers to an Entity, then you represent and warrant that you have the due and full authority to enter into this Agreement on behalf all members of the Band and acknowledge on your behalf and theirs that these Terms of Service are binding and enforceable against each member of the Band.

(iii) you and any business, company, or organisation that you represent and have the authority to act on behalf of whether charity, or not-for-profit, or otherwise; whether incorporated or unincorporated.

Please read these Terms of Service carefully before you start to use the Portal or to receive or make use of any Services.

By creating an account on the Website, or using the Services, you accept and agree to be bound and abide by these Terms of Service.

Each time you access or use the Website, you are also subject to and agreeing to be bound by the Terms of Use (add link) posted thereon. If a conflict arises between the Terms of Use or Privacy Policy posted to the Website and the terms of this Agreement, the terms of this Agreement shall control.

Changes to the Terms of Service

We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them.

Your continued use of the Portal or receipt of Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

Services

After creating an account on the Website, you will be provided with access to the Platform, where you may (when applicable, upon payment of appropriate fee) participate in the use of services which may include but are not limited to use of the: Directory, Community, Marketplace, Forum, Academy, Sync Library, Magazine, or of Website Design or Hosting

In the use of such services you may:

Post submissions – (sometimes called a Soundsquare)for publication on the platform which may be a profile, story, article, collaboration, review, advertisement of products and services or other post.

Create a website – or have one created for you

(a) select what third party analytical tools you wish to use on your website,

(b) make use of certain available marketing, communications and fan outreach tools available to you on the website,

(c) select additional features available on the website, and/or

(d) add products and services you wish to offer for sale on your website

The website capabilities and functionality may include any of the services are described at https://soundsquares.com/features (the “Documentation”).

Have a website hosted -making it accessible to your invitees to your website, and providing the ancillary back-end services and support required to maintain the website in operation pursuant to the terms of this Agreement shall be referred to herein as the “Services”.

You will have the ability to select a password to log onto the Platform, which will give you access to the tools to manage your website. You will use a secure, unique password for your account. You are responsible for any activity that occurs through the use of your login credentials. If you become aware of or suspect that your user credentials have been compromised, lost or stolen, you must inform us immediately so that we may issue you replacement credentials.

The Services, including the features, content and look and feel of your website, may change from time to time in our discretion. Your continued use of the Services, including the website, after such a change constitutes your acceptance to such modifications. If you have already chosen a particular look and feel of your website (a “skin”) when such changes occur, we may allow you to continue using that skin after we discontinue its use by other bands, but we may also terminate your use in our discretion and at our option (in which case you will have to select a new skin to continue making the website available to your invitees).

We will provide the Services to you throughout the Term (as defined below) of this Agreement only.

Your Content

You are responsible for Your Content, including for uploading it to your website. You are also responsible for ensuring that Your Content is legally obtained. “Your Content” means all data and information which You upload to the website, including: (i) contact information of your website invitees and all associated information about such persons; (ii) your files, such as your music, recordings, and videos; (iii) information about you and your products or services; (iv) your calendar information as maintained on the website; (v) your newsletters prepared on and sent through the use of the website; (vi) your e-mails to and from invitees to your website which are sent or received on the website; (vii) information about your products sold using the website e-commerce operations (but please see section “E-commerce on Soundsquares” below for additional information on e-commerce functionality); (viii) your trademarks and service marks, and (ix) information about your activities on social media linked to or visible from the website.

We do not control or actively monitor Your Content. However we reserve the right at all times to remove or refuse to distribute any of Your Content which breaches our policies, and to terminate your rights to use the Services (and reuse your user-name for another Entity or Band). We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to support requests, or (v) protect the rights, property or safety of users and the public.

Additional Features

You may have the ability to engage advertising partners and have those partners serve ads to your invitees to your website, and to have them provide certain search engine optimization and search engine marketing tools. The website also may allow you to select from several website analytics services, should you wish to use them. If you use any of these third party tools or services, you hereby represent that such activities are undertaken at your own risk. These third party tools and services are provided as a convenience only, and it is your responsibility to understand when, where or how their use is appropriate and legal.

You have the ability to post legal terms and conditions, and to post privacy notices or policies, on your website. It would be advisable for you to engage legal counsel to advise you on whether you should post such notices or terms, and what information and disclosures such terms or policies/notices should contain.

You may be able to integrate some features of your website with social media, such as Facebook and Instagram or other social media organisation. When doing so you acknowledge and agree that the terms of use or service of those social media sites apply to such integrations and to any information you send or receive from such sites. Please review those terms carefully before installing any such features or integrating any data between the website and those sites. We are not responsible for your use of these social media integrations or any data that you share with such third party platforms. You acknowledge and agree that your use the social media integration tools at your own risk, and you release us from all liability arising from your use of such sites.

Compliance with Laws

We agree to comply with all applicable UK in our performance of the Services. We also agree to comply with the requirements of the Payment Card Industry Data Security Standard (“PCI Requirements”), as applicable to us, which is designed to protect credit card information from unauthorized disclosure, theft or loss. For the protection of your website invitees making purchases on the website, we will contractually obligate all payment processors we have control over to process credit card transactions on your behalf to also be compliant with PCI Requirements.

You agree that you will comply with all applicable laws in your use of the website, and in your interactions with visitors to your website, including providing all required notices (e.g., posting a privacy policy which informs about what information you collect from your invitees, and how you use such information), and complying with all other privacy and data security laws.

Website Updates and Upgrades

From time to time, we may develop updates or implement enhancements or other changes to your Website. We will also from time to time modify the back-end software that runs your Website. You specifically grant us permission to do this whenever we push an update, upgrade, bug fix or patch to all customers similarly situated to you. Occasionally, this will require the website to be unavailable to you or your visitors for a period of time. We apologize for the inconvenience this may cause, but unfortunately, we must perform these regular maintenance activities to maintain your Website’s performance over time.

Domain Names

Soundsquares will provide one (1) free domain name with the new purchase of a paid plan. The free domain name applies only to the following TLD’s: .com, .net, .org, .biz., if you sign up for a Service that includes this offering.

The domain name is yours to keep, except as otherwise set forth herein. We register the domain in Soundsquares’s name, but will unlock and transfer it to your name upon cancellation of an active paid account, or upon request anytime during the term of your active paid account membership. Please note, however, that we do not have the ability to transfer a domain to you during the initial 90 days after we register it. Notwithstanding the foregoing, if a domain is in Soundsquares’s name at the time that your account becomes inactive for any reason (including but not limited to non-payment or violation of these Terms of Service), any domain name in your account will remain registered to Soundsquares. In this case, Soundsquares has the right to retain the registration of the domain for its own purposes, sell or transfer the domain to a third party, or delete the domain and allow any new registrant to register it.

Except as otherwise stated herein, we will continue to renew your website domain name throughout the Term of this Agreement, provided you continue to timely pay all fees when due hereunder and are not in breach of these Terms of Service.

If Soundsquares sends you the unlock code for a domain, it is your responsibility to transfer the domain to a new registrar, if you so choose. We will not renew domains after the end of the Term of this Agreement, so please keep that in mind when submitting your cancellation request or otherwise terminating this Agreement.

You may purchase additional domains, subject to availability, for $14.95 per year (which fee is subject to change from time to time in our discretion). Additional domains are not renewed automatically.

Under no circumstances will SoundSquares be liable for any damages relating to domains, including but not limited to failure or errors in renewing, transfer, or registration of domains, even if such failure is ours.

E-commerce on SoundSquares

The Services include the option for you to sell goods and services directly to invitees to your website.

SoundSquares provides the platform to offer sales, but all transactions occur at our third party transaction processors, PayPal or Stripe. All transactions are subject to the terms and conditions of Paypal or Stripe, as applicable, and you must have a PayPal or Stripe account independent of your account with us for the website in order to accept such payments.

Further, SoundSquares is not responsible for, and does not have access to, any aspect of transactions that happen on our platform aside from the items that were included in a specified transaction.

By using any e-commerce components of the Services, you agree to not sell products that, in our discretion:

Infringe or potentially infringe on the copyrights of another person;
Constitute illegal or potentially illegal products;
Are offensive, violent, pornographic, or otherwise deemed inappropriate.

We reserve the right to disable or remove any products that are in violation of the terms of this Agreement without warning.

Your Additional Obligations

In addition to any other obligations you have as set forth in this Agreement, you agree that you will:

maintain an active email account on record with us at all times;
maintain at all times your own devices and resources to obtain access to the public Internet;
protect the confidentiality of your login credentials to the Platform and ensure that nobody other than you uses such credentials;
not use any other person’s login credentials;
not sell, resell, rent or lease the Services or the website or use it as a service bureau, or otherwise for the benefit of third parties (except that your invitees to the website may see Your Content and purchase your products and services as you make same available);
not impersonate any other person or group through or on the website;
not use your website to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or intentionally store or transmit material in violation of third party privacy rights;
not use profanity, obscenity, racist terms, or other language that may be offensive to visitors to your website;
not use your website to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (collectively, “Harmful Code”);
not interfere with or disrupt the integrity or performance of our systems or networks or those maintained on our behalf for the purpose of providing services to our customers;
not copy, frame or mirror any part or content of the website;
not attempt to obtain a copy of, or disassemble, reverse engineer or decompile the website or any portion thereof;
not upload, post, email, transmit or otherwise make available on your website any material that interferes with or disrupts the SoundSquares Service, or which probes, scans, or tests the vulnerability of any system or network;
not attempt to breach or circumvent any security or authentication measures;
not attempt to gain unauthorized access to any back-end systems, hardware, software or networks, which we maintain or are maintained on our behalf;
not access or attempt to access restricted portions of the website or our systems;
not download, copy, publish or distribute on the website any copyrighted or other protected materials without the specific written permission of the owner of such materials; and
not engage in denial of service attacks

Fees and Payment

You agree to pay us in advance, based on the schedule of payments you agreed to when you signed up for a Service. All such fees are non-refundable. Our pricing plans are set forth on our Website, at https://soundsquares.com/pricing. Once you select your pricing plan, we will begin to charge you for the Services you selected.

Credit card, PayPal or Stripe chargebacks will incur a fee of $100 to reinstate accounts. Accounts that incur chargebacks may be permanently deleted in our discretion.

Domain registration and setup fees are non-refundable.

From time to time we may offer promotional codes or offers that apply a discount to service plans. Only one promotional offer or code may be used per website at a time; they may not be combined or stacked.

You acknowledge and agree that our fees may change from time to time, and when they change, the new fees will be posted to our Website. You agree to be bound by, and pay the new fees, as they change from time to time, of course, always subject to your termination rights as set in this Agreement. The fees listed on our Website do not include applicable Taxes. “Taxes” means any sales, value added tax, use, and other taxes (other than taxes on either party’s income or assets), export and import fees, customs duties and similar charges imposed by any government or other taxing authority. If we think any Taxes apply to your receipt of our Services, we will charge you for those applicable Taxes when we charge you the corresponding fees. We agree to disburse all such Taxes to the applicable taxing authority on your behalf.

Proprietary Rights

Our Website, the Portal and the website, and their entire contents, features, and functionality, including all trademarks, business names, information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof, but excluding Your Content (collectively, “Our Content”), are owned by the Company, its affiliates, their respective licensors, or other providers of such material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

We hereby grant to you, throughout the Term only, a worldwide (except in countries which are subject to legal restriction or embargo), limited, non-exclusive, non-transferable (except as permitted herein), non-assignable (except as permitted herein) license for (i) you and your invitees to access and view your individual website located thereon, and (ii) for you to make use of the Services as it pertains to your website as contemplated in the Documentation, provided you do so for your own purposes and not for the benefit of any third parties (except as otherwise specifically permitted herein or in the Documentation).

As between you and us, you exclusively own all right, title and interest in and to all Your Content. You hereby grant to us, our affiliates and our service providers a non-exclusive, non-transferrable (except as permitted herein), non-sublicensable (except as needed for our service providers to assist us in performing the Services), limited, revocable license, solely for the Term, to access, store, process, transmit, distribute and publish Your Content solely as required in order to provide Services hereunder.

You agree that we and our affiliates and service providers are permitted to collect, access, process, store, and use in perpetuity (i) any technical, aggregated information, including any information which may be attributable to any particular invitee to your website or to you (but not any information which may be considered personally identifiable information); (ii) information pertaining to how the website is browsed and searched, such as which features are used the most or are popular for some types of users; and (iii) all sales amounts processed through the website (but not to whom such sales were made); provided we do so solely to evaluate features of our Website and your and other websites, and for the purpose of improving our services.

You understand and agree that your website contains third party materials and services. Those materials and services are licensed to you solely for use on the website as contemplated in the Documentation and only for so long as the owners of such materials and services permit us to make them available to you. You acknowledge and agree that if the owner of such materials or services terminates our license or right to make them available to you, they will be removed from the website, and you accept this risk.

The Services are licensed, not sold. Except for the limited rights expressly granted by each of the parties hereunder, no other rights are granted. All rights not specifically granted herein are otherwise reserved.

Each party agrees to refrain from any use or registration of the trademarks of the other party, or of any confusingly similar marks, except with respect to any trademarks included within the website which you upload (in which case you grant to us a limited license to display, publish, and process such trademark as part of Your Content). If you add your name to our client list, you also grant us a right to use your name on such list, and to display, publish, and process your name as you entered it in furtherance of our business.

Term and Termination

The term of this Agreement begins on the day you sign up to receive the Services by creating an account on our Website, selecting a pricing package, and paying your first monthly installmentor annual payment of recurring subscription fees (the “Effective Date” . This Agreement will continue in effect until either party terminates pursuant to the terms of this Agreement (the “Term”).

You can upgrade/downgrade your Service at any time by going to the Portal and changing your plan after signing in. We cannot provide refunds or cash credits for downgrades.

You may terminate this Agreement at any time. To do so, you must click the “Cancel” link in the “Account” section of the Portal (which may be labeled as your “control panel” within the Portal), which you will find after signing into the Portal. Cancellation requests by email or live chat will not be accepted. Cancellation must be submitted at leasttwo (2) business days prior to the rebilling date.

We may terminate your access to the website and use of any Services immediately (i) if you breach any provision of this Agreement, (ii) if you fail to pay recurring fees when due, (iii) if we lose any right or license required for us to make the Services or the website available to you or your invitees, (iv) if we cease providing Services to our general customer base or we make material modifications to the Services; (v) if required to do so by law, or due to a change in applicable law; (vi) if you violate the law or these Terms of Service; or (vii) if unexpected technical, security or legal issues or problems arise.

Upon termination of this Agreement for any reason, (i) you will lose the right to access the Portal and the website, (ii) we will promptly delete your website and all of Your Content, except as required by law, and (iii) you must pay any outstanding amounts you owe us for use of Services throughout the Term. Please plan your cancellation of this Agreement accordingly.

Provisions of this Agreement dealing with confidentiality, representations or warranties, indemnities, limits on liability and any provisions set forth in the “Miscellaneous”
Section below shall survive termination of this Agreement.

Confidential information

Each party (the “disclosing party”) may disclose to the other party (the “receiving party”), Confidential Information during the course of performance under this Agreement. “Confidential Information” means any data, files, content, copy, materials and information which is not public and which is disclosed by the disclosing party or on such person’s behalf, to the receiving party or an affiliate or service provider of such party, either directly or indirectly, in writing (including electronically) or orally, and which a reasonable person should understand, based on the content or means of disclosure, to be confidential or proprietary. Your Content shall be considered your Confidential Information. Our Website content, Website look and feel, the website skins and their look and feel, and all graphic and other elements of our Website and the websites (excluding any which you uploaded to the website), our business methods, pricing models and methodologies, and business processes, shall be considered our Confidential Information.

The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence and use reasonable care to protect the same; (ii) restrict disclosure of the other party’s Confidential Information to those of its affiliates, employees, service providers or agents with a need to know such information and who are under a duty of confidentiality respecting the protection of such Confidential Information; and (iii) use the other party’s Confidential Information only for the purposes for which it was disclosed, or as otherwise permitted herein or pursuant to instructions from the disclosing party.

The above restrictions will not apply to Confidential Information to the extent it (i) is, or through no fault of the recipient has become, generally available to the public; (ii) was lawfully received by the receiving party from a third party without such restrictions and if such third party was not subject to a duty of confidentiality when it received the information; (iii) was known to the receiving party prior to receipt from the disclosing party, if it received such information not subject to a duty of confidentiality; or (iv) was independently developed by the receiving party without breach of this Agreement or access to, reference or use of the Confidential Information of the other party.

The receiving party may disclose Confidential Information to the extent the disclosure is required by law, regulation, or judicial order, provided that the receiving party will provide to the disclosing party prompt notice, where permitted by law, of such order and will assist the disclosing party in its efforts to contest or limit any required disclosure.

Data Security

It is your responsivity to comply with your obligations under applicable data protection laws when collecting, handling, uploading and processing personal data of your website visitors and invitees. In addition, as part of the Services hereunder, we will ensure that we and our service providers: (i) use commercially reasonable data security procedures and controls designed to protect Your Content from unauthorized use, loss, disclosure, theft or compromise.

If there is any theft, loss, loss of control over, access or discovery by or disclosure to a third party, or other event that results in an unauthorized third party obtaining access to, viewing, copying, transferring, transmitting, displaying, preventing authorized access to, or coming to control of any of Your Content (each such event, a “Breach”), and if such Breach occurs as a result of any action or inaction of ours or our service providers or from our systems, devices or networks, then we will, at our own expense (a) give you notice of such Breach as quickly as is commercially feasible for us to do so after becoming aware of such a Breach; (b) give you reasonably available information pertaining to such Breach, and where and how it occurred; (c) give you available information pertaining to Your Content that was lost, stolen, accessed, discovered, rendered inaccessible or disclosed; (d) perform forensic investigations and audits as reasonably required to identify the root cause and reasons for the Breach; (e) reasonably mitigate the effects of the Breach as promptly as is commercially feasible; and (f) take all corrective actions necessary to prevent the Breach from re-occurring.

Representations and Warranties

Each party represents and warrants to the other that: (i) it is duly organized and validly existing in the state of its organization or formation and that it has full power and authority to enter into and perform its obligations pursuant to this Agreement in accordance with its terms; (ii) this Agreement represents a binding and enforceable obligation of such party.

You represent and warrant that (i) Your Content does not infringe or misappropriate any rights of third parties; (ii) you have all rights, consents, or other permission necessary to upload Your Content to the website, and to collect, process, store, and use Your Content, including when using any communications or marketing tools made available through the website (e.g., when sending newsletters, when communicating with your invitees to the website in blogs or other areas of the website, when sending them emails, when using analytics tools made available to you on the website, when selling merchandise, when selling concert tickets, when disclosing information about concerts and events to users of the website, etc.); (iii) you have obtained all consents, rights and permissions necessary to allow the Company and its service providers to access, use, host, collect, store, process and manipulate Your Content as required to provide the Services and pursuant to your instructions; and (iv) you are of legal age to execute contracts, and you have the right to bind all members of your musical/artistic group, to the extent you are not a solo artist.

YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS OTHERWISE STATED HEREIN, WE DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE DO NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.

EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE SERVICES (INCLUDING YOUR website), OUR CONTENT AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

Indemnification

Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any action, claim, proceeding, law suit, demand, loss or expenses (including reasonable attorney’s fees and legal costs and expenses) arising or resulting from such party’s breach of its specific warranties herein.

We will defend, indemnify and hold you harmless from and against any action, claim, proceeding, law suit, demand, loss or expense (including reasonable attorney’s fees and legal costs and expenses) brought by a third party to the extent that the action is based upon a claim that our Services, Our Content or the Documentation (collectively, “Offerings”), or any portion thereof, infringes or misappropriates any U.S. or Canadian intellectual property rights of such third party. In addition, if the Offerings, or any part thereof, becomes, or in our reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, we may, at our sole option and expense, either (i) procure for you the right to continue using the affected item, or (ii) modify the affected item so that it becomes non-infringing/not misappropriating. If none of the above options are reasonably available, we may terminate this Agreement or remove the feature or portion of the Offerings which is subject to the claim or possible claim.

Notwithstanding the foregoing, we shall have no liability for infringement or misappropriation under this section, if the alleged infringement or misappropriation arises directly from (i) the integration of the Offerings with other equipment or software that were not provided by us or reasonably foreseeable to be used in combination with or to be integrated with the Offerings, and if the infringement would not have occurred absent such integration; (ii) modifications made to the Offerings without our prior written consent; or (iii) use of the Offerings other than as contemplated hereunder, if such action would have been avoided but for such use, modification or combination.

You agree to defend, indemnify and hold harmless us, our affiliates and service providers, and all officers, directors, members or employees of any of the foregoing, from and against any action, claim, proceeding, law suit, demand, loss or expenses (including reasonable attorney’s fees and legal costs and expenses) arising or resulting from (i) your use of ads and other additional features available on your website; (ii) your activities in marketing or promotion of your goods or services to invitees on your website, including with respect to all communications you initiate and receive through the use of your website; and/or (iii) any challenge or claim relating to one of your domain names.

The party seeking indemnity pursuant to this section will promptly notify the party indemnifying in writing of the claim, and will grant the indemnifying party sole control of the selection of counsel, defense, and settlement of the claim. The indemnifying party will pursue defense or prosecution of all claims in a diligent manner. The indemnified party hereunder agrees to provide the indemnifying party with reasonable assistance, information required for the defense and settlement of the claim; provided, however, that the indemnifying party may not settle a claim in a manner that is adverse to the indemnified party or if such settlement requires acknowledging liability or wrongdoing by the indemnified party without such indemnified party’s prior written consent.

Limitation on Liability

UNDER NO CIRCUMSTANCES WILL WE OR OUR AFFILIATES OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THE SERVICES, (II) PROPERTY DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES, (III) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES, OR (IV) ANY LOSS OR CORRUPTION OF DATA. THESE LIMITATIONS SHALL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY DOLLARS ($50) OR (B) AMOUNTS PAID BY YOU TO US IN THE PRIOR 12 MONTHS (IF ANY). THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY APPLICABLE LAW.

Miscellaneous

Assignment. You may not assign this Agreement or any of your rights or obligations hereunder, in whole or in part, without our prior written consent.

Subcontracting. We may subcontract any portion of the Services hereunder. You specifically consent to this arrangement. To the extent our subcontractors or service providers are subject to European data protection laws, we will bind them to contracts pursuant to which they will be required to comply with European laws applicable to the services they perform for us.

Notices

We may send you notices through the website or via email. You must send us notices by contacting us via email at support@SoundSquares.com, or by sending us notices at the following address: SoundSquares Ltd, 167-169 Great Portland Street, 5th Floor, London, England, W1W 5PF

Severability

If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions.

Waiver. The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver.

Injunctive Relief. Notwithstanding anything else to the contrary herein, either party may seek injunctive in a court of competent jurisdiction without the posting of a bond.

Force Majeure. Neither party will be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.

Construction. Paragraph headings are for convenience and shall have no effect on interpretation.

Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the State of New York, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods and the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. Any dispute, controversy or claim arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be exclusively resolved by binding arbitration in the City of New York. The arbitration shall be binding with no right of appeal. The arbitration shall be conducted pursuant to the rules of the American Arbitration Association. There shall be one arbitrator selected by agreement of the parties, or if the parties fail to agree, by the American Arbitration Association. The costs of arbitration, including the arbitrator’s fees, shall be borne equally by the parties to the arbitration, unless otherwise ordered by the arbitrator or agreed upon by the parties. The parties to this agreement further agree to abide by any award rendered by the arbitrator. Judgment on the award rendered by the arbitrator may otherwise be entered in any court having jurisdiction thereof.

Third Party Rights.

Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a signatory to it, and no person not a signatory to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.

Independent Contractors. The parties are independent contractors, and this Agreement creates no relationship of principal and agent, partner, joint venture, employer-employee or other similar arrangement. Neither party is an agent of the other, and each party agrees that it will not represent itself to be an agent of the other party or attempt to create any obligation or make any representation on behalf of or in the name of the other party.

User Contributions

The Website may contain one or more blogs, posts, message boards, chat rooms, forums, bulletin boards and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display,or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website.

All User Contributions must comply with the Content Standards set out in these Terms of Use.

Any User Contribution you post to the Website will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
All of your User Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.

Monitoring and Enforcement; Termination

We have the right to:

Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates these Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for the Company.
Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSORS, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot and do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or non performance of the activities described in this section.

Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable UK, European, US federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use or our Privacy Policy.
Be likely to deceive any person.
Promote any illegal activity, or advocate, promote, or assist any unlawful act.
Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter, or advertising.
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Copyright Infringement

If you believe that any User Contributions violate your copyright, please see our Copyright Policy (add link) for instructions on sending us a notice of copyright infringement.

Website Hosting Terms and Conditions

About these Terms:

These terms and conditions (“these Terms”) govern your access to and use of any Service provided by Soundsquares Ltd as provided from time to time (“the Service”). In order to access and use the Service, you, the Customer must signify your agreement to these Terms by resgistering or signing up to the website, or placing an order through SoundSquares. By doing so, you also confirm that you are authorised to contract with Soundsquares subject to these Terms. If you do not accept these Terms, or are not authorised to enter into an agreement with Soundsquares based on these Terms, you must exit the ordering or sign up process process. You will not then be entitled to access or use the Service.

INTERPRETATION

1.1. In this Agreement the following words and phrases have the following meanings

“Acceptable Use Policy” or “AUP” means SoundSquares’s acceptable use policy governing the Customer’s use of any Services, as notified to the Customer and as amended by Sustainable Web Hosting from time to time; as defined here: Acceptable Use Policy

“Agreement” means a contract between Sustainable Web Hosting and the Customer comprising an Order and these Terms;

“Charges” means the charges and fees specified in the Order payable by the Customer to Sustainable Web Hosting in respect of the Services;

“Confidential Information” means in respect of either party any and all information relating to the trade secrets, operations, processes, plans, intentions, products, product information, prices, know-how, designs, customer lists, market opportunities, transactions, affairs and/or business of that party and/or to its customers, suppliers, clients or affiliated companies in or on any medium or format;

“Contact Point” means in respect of either party the person so designated in the Order and/or their replacements from time to time;

“Customer” means the person specified as such in the Order;

“Data Protection Laws” means those laws further defined in the Data Protection Policy;

“Data Protection Policy” means Sustainable Web Hosting’’s data protection policy governing the storage, processing and transfer of the personal data (if any) stored on Sustainable Web Hosting’s servers by the Customer, located in the Sustainable Web Hosting Customer portal and as amended by Sustainable Web Hosting’s upon written notice to the Customer from time to time;

“Due Date” means the date shown as the Due Date of the relevant invoice;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, 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;

“Measureable Resource” means the resources, materials or services, specified in the Order, to be provided to the Customer as part of the Service, including:

(a) CPU time, memory, storage, backups, and bandwidth;

(b) any licensed software; and

(c) IP addresses, management, support, backups, and templates.

“Order” means an order placed by the Customer by means of the online order process set out on the Sustainable Web Hosting website or Sustainable Web Hosting customer portal website, which, when completed and submitted by the Customer in accordance with that process, and confirmed by Sustainable Web Hosting in accordance with clause, creates a binding agreement between the Customer and Sustainable Web Hosting, incorporating these terms and conditions;

“Services” means the Sustainable Web Hosting services detailed in the Order;

“Service Commencement Date” means the date specified as such in the Order;

“Service Level Obligations” means any obligations set out in this Agreement in respect of service levels for the Services;

“Sourcing Issue” means an inability of Sustainable Web Hosting to source particular materials/resources (including personnel) on terms similar or identical to those available at the Service Commencement Date (including exchange rate fluctuations/increases in taxes/duties);

“Working Day” means any day from Monday to Friday inclusive which is not Christmas Day, Boxing Day, New Year’s Day, Good Friday or other public holiday in England.

1.2. Unless the context otherwise requires, references to Sustainable Web Hosting and/or the Customer include their permitted successors and assigns.

1.3. The headings contained in this Agreement are for convenience of reference only and shall not affect its interpretation or construction.

1.4. Unless the context otherwise requires words denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to persons shall include natural persons, bodies corporate, unincorporated associations, governments, states, trusts and partnerships, in each case whether or not having a separate legal personality.

1.5. The words and phrases “including” and “in particular” shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible.

1.6. Any reference to “writing” or “written” includes faxes and emails but does not include texts or other forms of instant messaging.

1.7. References to any statute, enactment, order, regulation or other similar instrument shall be construed as references to the same as amended by or as contained in any subsequent re-enactment, modification or statutory extension thereof.

1.8. In the event of conflict or ambiguity between the Terms and the Data Protection Policy, the Data Protection Policy shall prevail.

THE SERVICES

2.1. Notwithstanding the submission of an Order and payment of the Charges by the Customer, SoundSquares reserves the right at its absolute discretion to decline to provide the Services to the Customer, in which event any Charges paid will be refunded to the Customer. No binding agreement shall subsist between SoundSquares and the Customer unless and until a formal subscription confirmation is issued to the Customer by SoundSquares.

2.2. Subject to clause 2.1, SoundSquares will in consideration of the Customer’s payment of the Charges provide the Services with effect from the Service Commencement Date, until the Services are terminated in accordance with these Terms.

2.3. SoundSquares will use all reasonable endeavours to make available the Measureable Resource required by the Customer from time to time, but SoundSquares reserves at all times the right to manage available resource and capacity across its customer base at large, and to decline to provide all or any part of any Measureable Resource requested by the Customer.

2.4. The Customer agrees and acknowledges that:

2.4.1. All hardware (including any dedicated server provided as part of the Services (“Hardware”) will remain the sole property of SoundSquares;

2.4.2. all licensed software provided or used as part of the Services (“Software”) will remain the sole property of SoundSquares or its licensor, and is not transferable; and

2.4.3. Neither the Customer nor its servants, agents or contractors will be permitted physical access to the hosting facility or to any SoundSquares equipment or infrastructure.

2.4.4. Any Software will be provided in default configuration only, unless otherwise stated in the Order. Where the Customer requires SoundSquares to configure any Software “from default”, the provision of such services may be subject to additional Charges.

2.5. The Customer acknowledges that in order to take appropriate action in respect of any fault or other problem affecting any of the Services, SoundSquares will require administrator/root access. The Customer will ensure that SoundSquares is provided with the necessary credentials to effect such access.

2.6. The Customer acknowledges that in some circumstances the diagnosis of Service problems may involve activity which causes further interruption to the provision of Services to the Customer, and hereby authorises SoundSquares to perform such diagnosis as and when necessary as part of the Services.

2.7. Without exception, only SoundSquares will be entitled to undertake diagnosis of faults in or failures of elements of the Services or infrastructure under Soundsquare’s control. Depending on the circumstances, the restoration of SoundSquares’s discretion be on a permanent or temporary basis. The Customer must notify Sustainable Web Hosting of any activity (such as planned maintenance) which may affect Sustainable Web Hosting’s provision of any Services. Where any remedial or other action by Sustainable Web Hosting becomes necessary due to any failure by the Customer to provide any such notification, Sustainable Web Hosting shall be entitled to charge the Customer for any such action taken.

2.8. Where SoundSquares notifies the Customer of any action by the Customer necessary in order to maintain the provision of any Service, SoundSquares will not be liable for any degradation of or interruption to that Service until such time as that action has been taken.

2.9. SoundSquares

2.9.1. will provide technical support for the infrastructure utilised by it in the provision of the Services, but will not provide support for application specific issues or for the purposes of software development;

2.9.2. will not be under any obligation to correct any fault caused by any act or omission of the Customer or its employees subcontractors or agents;

2.9.3. will have no responsibility or liability for any degradation of performance or security attributable to the alteration by the Customer of any default setting applied to any aspect of the Services.

2.10. Where the Services include the provision of a data backup service, SoundSquares will use reasonable endeavours to perform backups of data stored upon each relevant Server and to make those backups available to the Customer in accordance with the applicable backup service specification, but SoundSquares cannot and does not warrant that data will be backed up correctly or restored successfully, or that this will be performed to any particular timescale. SoundSquares also does not warrant that all customer data will be backed up, and may exclude certain categories of customer data from the backup process without notice at its discretion.

2.11. Where the Services include the allocation of any IP Address, any such allocation will be effected in accordance with RIPE guidelines. The Customer will provide reasonable justification for the usage of any IP address which the Customer seeks to have allocated to it. All IP addresses remain under the control and ownership of Sustainable Web Hosting which may change or remove IP addresses from time to time at its discretion.

2.12. SoundSquares may as part of the Services provide the Customer with access to software owned / licensed by third parties, such as (but not limited to) cPanel, R1Soft CDP or Microsoft products (“Third Party Software”). The Customer acknowledges that 2.12.1. Third Party Software is supported by the relevant third party owner/ licensor,and unless expressly agreed with the Customer in writing Sustainable Web Hosting can offer no guarantee as to the availability, operability or performance of Third Party Software, nor can Sustainable Web Hosting accept any responsibility for any problems resulting from the operation of such Third Party Software; and

2.12.2. the Customer’s use of such software will be subject to the terms and conditions of the relevant licence(s), with which the Customer will comply.

2.13. SoundSquares, its suppliers or service providers may from time to time need to carry out repairs or maintenance which can affect the provision of Services to the Customer. The Customer acknowledges that repairs or maintenance may have to be carried out as an emergency in order to protect Services or to avert more severe or prolonged interruption of those or other Services, in which case Sustainable Web Hosting will provide the Customer with as much notice as is reasonably practicable in the circumstances. Repair or Maintenance works, whether scheduled or due to emergency, shall be disregarded when measuring SoundSquares’s compliance with any applicable performance measurements or targets.

2.14. The Customer acknowledges that, having regard to the nature of computer technology and the electronic components common to computer equipment, certain actions performed as part of repair or maintenance may bring to light failure conditions which otherwise may not have been evident until a later time, and that Sustainable Web Hosting will have no liability for any such operating failures connected to but not directly caused by, repair maintenance or service outages.

2.15. Each party shall designate a Contact Point to act as that party’s prime point of contact with the other party in connection with this Agreement.

2.16. Sustainable Web Hosting will endeavour to implement software updates relevant to the Services within a reasonable period of their becoming available, provided Sustainable Web Hosting has been afforded access necessary to do so. The Customer acknowledges that:

2.16.1. certain updates may be performed automatically and without prior notification to the Customer; and

2.16.2. some interruption to the Customer’s Services may be unavoidable given the scope or complexity of any given update.

2.17. Where Sustainable Web Hosting performs migration of Services from another provider to Sustainable Web Hosting:

2.17.1. Migration shall be performed on a best-effort basis.

2.17.2. Third-party software, tools or services may be used to migrate customer data. This may involve data traversing or being stored on third-party networks and systems which are not under the control of Sustainable Web Hosting.. Security and integrity of data is not assured by Sustainable Web Hosting.

2.17.3. Sustainable Web Hosting is not responsible for verification of integrity of data transferred during service migration, or any data loss which may occur as a result of migration.

2.17.4. It remains always the responsibility of the Customer to verify migrated data and configurations are correct.

2.18. Sustainable Web Hosting shall have the right to make any changes to the Services:

2.18.1. immediately on notice to the Customer, where such changes:

2.18.1.1. are necessary to comply with any applicable law or safety requirement;

2.18.1.2. result from a Sourcing Issue; or that

2.18.1.3. do not materially negatively affect the nature or quality of the Services; and

2.18.2. on thirty (30) days’ notice to the Customer in any other circumstances (“Variation Notice Period”).

DOMAIN NAMES & SSL CERTIFICATES

3.1. Sustainable Web Hosting does not warrant or represent that any domain name the Customer wishes to register is capable of being registered by or for the Customer or that it will be registered in the Customer’s name. The Customer acknowledges that:

3.1.1. it should not assume registration of any domain name, nor the renewal of any registration, until formally notified of the same; and

3.1.2. any action taken by the Customer before receipt of such notification is entirely at the Customer’s own risk.

3.1.3. All domains are ultimately the responsibility of the customer. New Domain Registrations and Domain Name renewals should not be considered completed unless confirmed via eMail. All renewal and expiry dates are publicly available in the whois database, customers should ensure their familiarity with this and arrange any renewals accordingly. Sustainable Web Hosting will under no circumstances have any responsibility or liability for or arising from the expiry of a domain and/or for any resulting effect on the Customer’s business

3.2. The Customer’s registration and use of any domain name is subject to the terms and conditions of use applied by the relevant naming authority, and the Customer shall ensure that it is aware of those terms and conditions and that it complies with them. Sustainable Web Hosting will have no liability to the Customer for any refusal to register a domain name. Any administration charge paid by the Customer to Sustainable Web Hosting shall be non-refundable, notwithstanding any refusal by the naming authority to register the Customer’s desired name.

3.3. Sustainable Web Hosting will have no liability in respect of the Customer’s use of any domain name. Any dispute between the Customer and a third party will be resolved between the Customer and that third party. If any such dispute arises, Sustainable Web Hosting shall be entitled, at its discretion and without giving any reason, to withhold, suspend or cancel the domain name. Sustainable Web Hosting will also be entitled to make representations to the relevant naming authority, but will be under no obligation to intervene in or take any part in any such dispute.

3.4. Sustainable Web Hosting will have no obligation to release any domain name to another provider unless it has received payment in full for that domain name, including where a domain name is provided as part of a free or reduced price offer.

3.5. The Customer will be responsible for:

3.5.1. domain name renewals, and for ensuring that renewal applications are made in good time before the relevant expiry date;

3.5.2. domain name transfers, and for ensuring the timely submission and completion of transfer requests and any necessary liaison with registrars or other relevant third parties.

Sustainable Web Hosting will under no circumstances have any responsibility or liability to the Customer for or arising from the expiry of a domain and/or for any resulting effect on the Customer’s business.

3.6. In accordance with the terms and conditions of domain name purchases, Sustainable Web Hosting is obliged to publish the owner’s full contact details in the public whois database. Sustainable Web Hosting will under no circumstances have any liability to the Customer for or arising from such publication, or for any resulting effect on the Customer’s business. The Customer understands and agrees that the disclosure of their contact details is necessary in order for Sustainable Web Hosting to register the domain, and that such disclosure does not thereby constitute a violation of the Data Protection Policy.

3.7. All SSL Certificates are ultimately the responsibility of the Customer. All renewal and expiry dates are publicly available and the Customers acknowledges that it should arrange any renewals accordingly. Sustainable Web Hosting will under no circumstances have any responsibility or liability to the Customer for or arising from the expiry of a SSL Certificate or for any resulting effect on the Customer’s business.

SERVICE PROVISION AND MEASUREMENT

4.1. If the Order specifies that a Service will be managed by Sustainable Web Hosting, Sustainable Web Hosting will: 4.1.1. monitor the following services (“Customer’s Services“) for faults at approximately 5 minute intervals:

(a) HTTP;

(b) FTP;

(c) POP3;

(d) IMAP;

(e) ICMP PING;

(f) SMTP;

(g) MYSQL (Port open connection only); and

(h) SSH,

provided that where any of the Customer’s Services are operational, the Customer will allow access to them by Sustainable Web Hosting’s monitoring platform;

4.1.2. where a fault enters a ‘hard’ problem state, take remedial action to correct the problem;

4.1.3. where ordered, provide cPanel software in a default but optimally configured state, or such other state as may be specified in the Order;

4.1.4. in the event of complete system failure, restore backups from Sustainable Web Hosting snapshot backups or (where specified to be part of the Services) Sustainable Web Hosting’s CDP product only;

4.1.5. install software designed to monitor and block malicious connections, but the Customer acknowledges that such software cannot not provide complete and total security and that responsibility for the security of the Customer’s data, applications and platform remains solely with the Customer;

4.1.6. run software on the Customer’s service to perform automated housekeeping tasks, and the Customer agrees not to interfere with such software or its configuration;

4.1.7. where specified to be part of the Services, schedule CDP backups at a time chosen by Sustainable Web Hosting;

4.1.8. provide initial and ongoing configuration of cPanel software (including cPanel-based Apache/LiteSpeed and PHP reconfiguration) when requested by the Customer.

4.2. For the purpose of measuring Sustainable Web Hosting’s provision of any Services:

4.2.1. network availability will be measured by means of monitoring on the internet undertaken by Sustainable Web Hosting from remote locations using industry standard tools; and

4.2.2. all other Services availability will be measured by monitoring of the relevant Services undertaken by Sustainable Web Hosting using its management platform.

4.3. If the Order specifies that a Service will not be managed by Sustainable Web Hosting, that Service will not include the provision of support, and Sustainable Web Hosting will be entitled to charge for any support it agrees to provide in respect of any such Service at Sustainable Web Hosting’s then-current standard hourly rate.

4.4. Sustainable Web Hosting will use all reasonable endeavours to make the Services available to the Customer in accordance with the following service levels, availability being measured on a 24 hours a day, 7 days a week basis for each calendar month:

4.4.1. HTTP/HTTPS service:

(a) Sustainable Web Hosting Shared Hosting – 99% availability;

4.4.2. All other services:

(a) including but not limited to Sustainable Web Hosting Shared Hosting Email Addon – 99.0% availability.

4.5. In the event that Sustainable Web Hosting fails to meet any Service Level Obligations, Sustainable Web Hosting will (subject to clauses 4.6 and 4.7) consider claims for compensation for such failure not exceeding the Charges accrued for the Service to which that failure relates in the calendar month in which the failure occurred (the “Relevant Month”), provided that: 4.5.1. only one claim may be made for any one incident;

4.5.2. claims for multiple incidents in the same month shall not collectively exceed the Charges for the Services in that the Relevant Month; and

4.5.3. any compensation paid in respect of a claim (or claims for multiple incidents) shall be in full and final settlement of all rights of the Customer

in respect of such claim and/or claims;

4.5.4. the customer service is not over-subscribed, subject to or participating in any form of malicious activity or denial of service event, or operating otherwise than in accordance with the Sustainable Web Hosting Acceptable Use Policy.

4.6. All claims under clause 4.5 must be received in writing within seven (7) calendar days of the failure to which the claim relates.

4.7. All claims under clause 3.5 will be subject to the following:

4.7.1. refund of 1 day’s Service Charges for every 30 minutes or part thereof from the time when Sustainable Web Hosting fails to meet any Service Level Obligation until the time that failure is resolved based upon the resource utilisation of the relevant virtual machine at the time of the failure, not exceeding the aggregate Charges of the Service to which that failure relates in the month the event occurs (subject to the limit on compensation set out in clause 3.5);

4.7.2. in the event of multiple failures relating to the same incident, only one claim may be submitted to cover the incident;

4.7.3. multiple simultaneous failures or failures related to or arising from the same incident will constitute only one failure; and

4.7.4. without prejudice to the generality of clause 3.6.3:

(a) in the event that both network and other services are simultaneously unavailable, this will constitute only a single failure of the relevant Service(s); and/or

(b) in the event of a connected failure of a dependant service component, this will constitute only a single failure of the relevant Service(s).

4.8. All Service Level Obligations are subject to the terms of this Agreement.

CUSTOMER RESPONSIBILITIES

5.1. Irrespective of any agreement with Sustainable Web Hosting for the provision of data backup Services, the Customer will at all times have sole responsibility for the safekeeping of its data and will at all times keep sufficient and current backups of that data. Sustainable Web Hosting will have no liability for any loss of or damage to any data stored on the Services or which is the subject of any backup Services.

5.2. The Customer is solely responsible for the licensing and operation of any software which is utilised as part of any Services, but not licensed by Sustainable Web Hosting. The Customer will at all material times ensure that it has all licences or other authority necessary to operate such software. The Customer shall on request produce any evidence reasonably required by Sustainable Web Hosting to verify that the Customer is entitled to use any particular software as part of any Services.

5.3. The Customer agrees that it shall at all times:

5.3.1. be responsible for the adoption and maintenance of such measures as may reasonably be required in order to prevent unauthorised access to the Services by any means under the control of the Customer; and

5.3.2. comply with the licensing terms of any licence applicable to any software provided by Sustainable Web Hosting as part of the Services.

5.4. The Customer will not access or use or attempt to access or use the Services:

5.4.1. in any way which interferes with, damages or disrupts, or might reasonably be expected to interfere with, damage or disrupt the Services, or any equipment, software, website or network owned or operated by Sustainable Web Hosting;

5.4.2. in any way which is unlawful, illegal or fraudulent, or has any unlawful, illegal or fraudulent purpose or effect;

5.4.3. to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation;

5.4.4. knowingly to store, transmit or upload any data or material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.

5.4.5. knowingly to store, transmit or upload any data or material which: (a) advocates, promotes or assists violence, any other illegal or unlawful activity;

(b) is obscene, offensive, hateful, defamatory or inflammatory;

(c) is threatening, abusive or which invades another’s privacy, or causes needless anxiety or annoyance;

(d) advocates or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

(e) infringes any copyright, database right, trade mark or other proprietary right of any other person;

(f) is fraudulent or misleading;

(g) is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.

CHARGES AND PAYMENT

6.1. The Charges will be calculated by reference to the Customer’s usage of Services, as specified in the Order, and any applicable software licence fees, and will be invoiced monthly in advance.

6.2. Sustainable Web Hosting will invoice the Customer for the Charges in advance of the calendar month during which the relevant Services are provided. Charges will be charged directly to a registered credit/debit card. Sustainable Web Hosting’s invoices shall be payable by the Customer no later than the Due Date. The Customer acknowledges that Sustainable Web Hosting and/or its payment partners may seek payment of any Charges due in accordance with the Order without further or prior notification.

6.3. All payments of Charges made are non-refundable.

6.4. If any Charges remain unpaid seven (7) days after the Due Date, Sustainable Web Hosting shall without prejudice to its rights under clause 9 be entitled to charge interest on any unpaid amount on a daily basis (before as well as after any judgment) from the Due Date to the date of payment at the rate of four (4) per cent above the base rate of Barclays Bank plc from time to time in force. Such interest shall accrue on a daily basis and be compounded quarterly. Sustainable Web Hosting reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

6.5. The Customer shall at all times comply with the Acceptable Use Policy.

6.6. In the event of any dispute in relation to the Charges, the Customer shall notify Sustainable Web Hosting in writing within seven (7) days of receipt of the invoice, and shall provide details of the amount in dispute and the basis on which payment is disputed. The Customer shall pay any undisputed sum by the Due Date, and the parties shall as soon as reasonably practicable refer the dispute for resolution in accordance with the procedure set out in clause 17. Any disputed Charges which are subsequently determined to be due and payable by the Customer to Sustainable Web Hosting shall attract interest in accordance with clause 6.4 as from their original Due Date.

6.7. Where payment of any Charges has not been made by the Customer by any relevant Due Date, Sustainable Web Hosting reserves without prejudice to its rights under clause 6.4 or clause 9 the right to require advance payment of future Charges and/or the provision of acceptable personal guarantees before any further provision of Services.

6.8. Where any purported payment of Charges by the Customer is rejected or reversed Sustainable Web Hosting will in respect of every such failure be entitled to charge the Customer a fee in the sum of fifty (50) pounds in respect of its administrative costs.

6.9. Sustainable Web Hosting will be entitled to recover from the Customer its reasonable legal and administrative costs and expenses actually incurred in enforcing payment of unpaid Charges which remain unpaid as at their relevant Due Date.

6.10. The Charges are exclusive of VAT and any other similar taxes, duties or levies or other deductions or withholdings in countries outside the United Kingdom, which shall be payable at the rate and in the manner prescribed by applicable law.

6.11. Where ‘money back’ guarantees are offered, Sustainable Web Hosting retains the absolute right to determine validity of any claims.

6.12. All claims must be received by Sustainable Web Hosting within 14 days of the original payment date.

WARRANTIES

7.1. Each party warrants that it has full capacity and authority, all necessary licences, permits and consents, has taken all necessary actions to enable it lawfully to enter into this Agreement, and that those signing this Agreement are duly authorised to bind the party for whom they sign.

7.2. Sustainable Web Hosting warrants that the Services shall be carried out using reasonable care and skill in accordance with good industry practice.

7.3. All other representations or warranties (whether written or oral, express or implied by statute, common law or otherwise howsoever) than those expressly set out in this Agreement are hereby excluded. In particular, but without prejudice to the generality of the foregoing, Sustainable Web Hosting makes no representation or gives any warranty (whether express or implied, statutory or otherwise), and will have no liability, regarding the fitness of the Services for any purpose, whether or not such purpose is disclosed to Sustainable Web Hosting.

INTELLECTUAL PROPERTY RIGHTS

8.1. The Customer acknowledges and agrees that Sustainable Web Hosting and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights or any other rights or licences to, in or in respect of the Services or any related documentation or software. All rights not expressly granted to the Customer under these Terms are reserved by Sustainable Web Hosting or its licensors.

8.2. Sustainable Web Hosting acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in any data, software or other materials provided by the Customer to Sustainable Web Hosting in connection with the provision of the Services (“Customer Materials”). Except as expressly stated herein, this Agreement does not grant Sustainable Web Hosting

any Intellectual Property Rights or any other rights or licences to, in or in respect of any Customer materials.

8.3. Nothing in this Agreement shall be construed so as to prevent Sustainable Web Hosting from using in the furtherance of its own business general know-how or expertise gained in its performance of this Agreement, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of clause 9 or infringement of any Intellectual Property Right.

TERMINATION & SUSPENSION

9.1. Either party may terminate this Agreement at any time on written notice to the other if that other:

9.1.1. is in material breach of any of the terms of this Agreement or commits a series of persistent minor breaches which, when taken together, amount to a material breach, and either that breach is incapable of remedy, or the other party fails to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach; or

9.1.2. upon the other party passing a resolution for winding-up or having a petition to wind up presented against it or going into liquidation, whether voluntary or compulsory (save for the purposes of amalgamation or reconstruction where the amalgamated or reconstructed company agrees to adhere to this Agreement) or suffering a winding-up order being made against it or going into administration; or

9.1.3. if the other party proposes a voluntary arrangement within the meaning of Section 1 or Section 253 of the Insolvency Act 1986, or an interim order is made in relation to the Supplier under Section 252 of the Insolvency Act 1986, or any other steps are taken or negotiations commenced by that party or any of its creditors with a view to proposing any kind of composition, compromise or arrangement involving the other party and any of its creditors;

9.1.4. if a receiver or administrative receiver or administrator is appointed or an encumbrancer takes possession of the undertaking or assets (or any part thereof) of the other party; or

9.1.5. if the other party is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986 or any statutory re-enactment or modification thereof) or ceases to or threatens to cease to carry on its business or enters into a composition with its creditors; or

9.1.6. if the other party suffers an event in a country or jurisdiction other than the United Kingdom which has a similar effect to the events described in clauses 9.1.2, 9.1.3, 9.1.4 or 9.1.5 in the United Kingdom.

9.2. Sustainable Web Hosting shall be entitled to terminate this Agreement and the provision of the Services if any undisputed Charges remain unpaid fourteen (14) days after the Due Date. 9.3. Termination by either party in accordance with the rights contained in this clause 9 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.

9.4. The Customer may terminate this Agreement on no less than ten (10) days’ written notice to Sustainable Web Hosting during any Variation Notice Period, as defined in clause 2.18.2 above or clause 16 below, as appropriate.

9.5. On termination for any reason:

9.5.1. all rights granted to the Customer under this Agreement shall cease; 9.5.2. the Customer shall cease all activities authorised by this Agreement; 9.5.3. all data will be removed from the relevant server(s); and

9.5.4. the Customer shall immediately pay any sums due to Sustainable Web Hosting under this Agreement.

9.6. Without prejudice to any right to terminate which Sustainable Web Hosting might have, Sustainable Web Hosting will be entitled to suspend any Services without notice if:

9.6.1. any undisputed Charges remain unpaid seven (7) days after the Due Date or the Customer is otherwise in material or persistent breach of

this Agreement; or

9.6.2. the Customer does or allows to be done anything which jeopardises the Services or any network to which the Customer is connected from time

to time.

9.7. Suspension shall not affect the liability of the Customer to pay Charges or any other sums or payments payable to Sustainable Web Hosting in respect of any suspended Services, which shall remain chargeable throughout the period of any suspension. Sustainable Web Hosting shall not be liable for any losses or inconvenience caused to the Customer or any third party by the suspension or cancellation of any Services.

9.8. Sustainable Web Hosting shall during the period of any suspension be entitled to refuse to release any IP Address of the Customer allocated by Sustainable Web Hosting.

9.9. On suspension of any Services by Sustainable Web Hosting in accordance with clause 9.6, Sustainable Web Hosting reserves the right to charge the Customer a fee for the reinstatement of those Services, in a sum appropriate to the nature and scope of the Services concerned.

CONFIDENTIALITY

10.1. The provisions of this clause 10 shall remain in full force and effect notwithstanding termination of this Agreement for any reason.

10.2. Each party shall treat in confidence the other’s Confidential Information, and shall not disclose any of the other’s Confidential Information to any other person other than its own employees under conditions of confidentiality and then only to the extent required for proper performance of its obligations under this Agreement.

10.3. Nothing in this Agreement shall be construed to impose a confidentiality obligation on a party in respect of:

10.3.1. any matter appearing in public literature or otherwise within the public domain, unless the information is in the public domain as a result of a breach of a contract by that party; or

10.3.2. any information or knowledge possessed by that party prior to disclosure to it by the other or rightfully acquired from sources other than the other party; or

10.3.3. any information or knowledge acquired in a bona fide arm’s length transaction by the party making the disclosure; or

10.3.4. information which is required by law or a court of competent jurisdiction to be publicly released.

10.4. In protecting Confidential Information received from the other party, each party shall employ a reasonable standard of care, which shall be no less than the standard of care employed in protecting its own Confidential Information. Both parties will establish and maintain such security measures and procedures as are reasonably practicable to provide for the safe custody of the other party’s Confidential Information in its possession and to prevent unauthorised access thereto or use thereof.

10.5. Upon any termination of this Agreement, each party shall cause all Confidential Information belonging to the other party in whatever medium the same is recorded or held to be returned, deleted or destroyed according to the written instructions of the other party.

LIMITATION OF LIABILITY

11.1. This clause 11 prevails over all other clauses in this Agreement.

11.2. Sustainable Web Hosting shall not be liable to the Customer or be deemed to be in breach of its obligations under any provision in this Agreement:

11.2.1. to the extent that any delay in performing or failure to perform Sustainable Web Hosting’s obligations is due to a failure by the Customer to perform its obligations under this Agreement or if delay results from a failure by the Customer to comply with reasonable requests by Sustainable Web Hosting for instructions, information or action required by it to perform its obligations within a reasonable time limit; or

11.2.2. for the consequences of any acts or omissions of the Customer, its employees or agents or other third party suppliers or manufacturers engaged by or on behalf of the Customer (other than third party sub contractors or suppliers selected by Sustainable Web Hosting); or

11.2.3. if the Customer is in default of any of its payment obligations under this Agreement.

11.3. Sustainable Web Hosting does not exclude or limit its liability to the Customer for:

11.3.1. death or personal injury caused by its negligence;

11.3.2. fraudulent misrepresentation;

11.3.3. breach of third party intellectual property rights;

11.3.4. breach of any obligation of confidentiality.

11.4. Sustainable Web Hosting’s liability in respect of loss or damage to tangible property of the Customer caused by its negligence shall not exceed £100.

11.5. Subject to clauses 11.2, 11.3 and 11.4, Sustainable Web Hosting’s liability in respect of loss or damage flowing from any one event or series of connected events shall not exceed:

11.5.1. a sum equal to the total Charges payable by the Customer under this Agreement during the period of 12 months immediately prior to the

event giving rise to the claim.

however that liability arises including (without limitation) breach of contract, tort, misrepresentation or breach of statutory duty, provided that Sustainable Web Hosting shall not be liable to for any loss not flowing directly and naturally in the ordinary course of events from its own act or omission.

11.6. In no event will Sustainable Web Hosting be liable to the Customer (whether in contract, tort, negligence or otherwise) for:

11.6.1. any direct:

(a) loss of profit; or

(b) loss of revenue; or

(c) loss of use; or

(d) loss of anticipated savings; or

(e) loss of goodwill; or

(f) loss of reputation or opportunity; or

(g) financial or economic loss; or

(h) loss of data;

11.6.2. any indirect or consequential loss or damage, costs or expenses whatsoever, and howsoever arising out of or in connection with this agreement; whether such damages were reasonably foreseeable or actually foreseen.

11.7. Sustainable Web Hosting has no obligation, duty or liability to the Customer in contract, tort, for breach of statutory duty or otherwise beyond that of a duty to exercise reasonable skill and care, and shall have no such liability (other than as provided in the warranties set out in this Agreement) regarding the fitness for purpose, quality or merchantability of any Services, whether express or implied, statutory or otherwise.

DATA PROTECTION

12.1. If Sustainable Web Hosting obtains personal data (as defined by Data Protection Law) from the Customer solely in order to provide the Services e.g. the name and contact details of a representative of the Customer, Sustainable Web Hosting shall be a data controller with respect to such personal data.

12.2. If in the course of providing the Services Sustainable Web Hosting processes personal data of the Customer as defined by Data Protection Law:

12.2.1. the Customer will be the controller and Sustainable Web Hosting will be the processor in respect of such personal data;

12.2.2. the parties shall comply with the obligations set out in the Data Protection Policy, which shall be incorporated into this Agreement.

FORCE MAJEURE

13.1. Subject to the provisions of this clause 13, neither party will be liable for delay in performing obligations or for failure to perform obligations if the delay or failure resulted from circumstances beyond its reasonable control including but not limited to, act of God or governmental act, war, flood, fire, explosion, accident, civil commotion, or transportation or communications problems, or impossibility of obtaining materials (“Force Majeure”). For the avoidance of doubt, nothing in this clause 13 shall excuse the Customer from any payment obligations under this Agreement.

13.2. If the Force Majeure prevails for a continuous period in excess of twenty (20) Working Days, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing on such alternative arrangements as may be fair and reasonable.

13.3. If either party is prevented from performance of its obligations for a continuous period in excess of forty (40) Working Days, the other party may on written notice on the party so prevented terminate this Agreement with immediate effect, in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.

13.4. The party claiming to be prevented or delayed in the performance of any of its obligations under this Agreement by reason of Force Majeure shall use reasonable endeavours to bring the Force Majeure event to a close or to find a solution by which the contract may be performed despite the continuance of the Force Majeure event.

WAIVER

14.1. No failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right or remedy to which it is entitled under it, shall constitute a waiver thereof or cause a diminution of the obligations established by this Agreement.

14.2. A waiver of any default shall not constitute a waiver of any other default. 14.3. No waiver of any of the provisions of this Agreement shall be effective unless it is expressed to be a waiver communicated by notice, in accordance with the provisions of clause 18 (Notices).

SEVERABILITY

15.1. If any provision of this licence agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

15.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

AMENDMENTS

Sustainable Web Hosting may vary this Agreement providing no less than thirty (30) days’ written notice to the Customer (“Variation Notice Period”).

THIRD PARTY RIGHTS

Unless otherwise expressed to the contrary in this Agreement, nothing in this Agreement confers or purports to confer on any person who is not a party to it any right to enforce any of its terms.

NOTICES

18.1. Any notice required to be given under or pursuant to this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post (except in the event of a current industrial dispute affecting the postal service, when the relevant party shall serve by another means permitted in this clause 18) or by fax or by email to the other party marked for the attention of the recipient’s Contact Point at the address or fax number notified to the other party for that purpose from time to time.

18.2. A notice delivered by hand will be deemed to have been served when delivered. A correctly addressed notice sent by post will be deemed to have been delivered 48 hours after the time of despatch. A notice sent by fax or email will be deemed to have been delivered on the date of transmission. In proving the service of the notice, it shall be sufficient to prove:

18.2.1. in the case of a letter sent by post, that such letter was properly delivered or stamped, addressed and placed in the post (as the case

may be); and

18.2.2. in the case of a fax or email, that the notice was duly despatched to the current fax number or email address of the addressee and no indication of non-delivery was received by the sender.

DISPUTE RESOLUTION

19.1. Except as otherwise provided, in the event of any dispute arising out of or in relation to this Agreement, the parties must first use their respective best endeavours to consult and negotiate with each other in good faith and, recognising their mutual interests, attempt to reach a settlement of the dispute satisfactory to both parties. To such end the parties must within ten (10) Working Days of a dispute arising convene a meeting between their authorised representatives and any other relevant members of management having regard to the matter under discussion (together, “Appointed Persons”) to attempt to resolve the dispute.

19.2. If the Appointed Persons agree upon a settlement of the dispute, they will sign a statement setting out its terms and the parties will ensure that it is fully and promptly carried out. If the Appointed Persons do not reach such a settlement within twenty (20) Working Days of the meeting convened in accordance with clause 19.1, the parties will refer the dispute to mediation before having recourse to litigation. The mediation shall be conducted in accordance with an Alternative Dispute Resolution procedure recommended by the Centre for Effective Dispute Resolution, London (the “ADR Procedure”).

19.3. If the matter has not been resolved by the ADR Procedure within thirty (30) days of the initiation of that procedure, or if either party will not participate in the ADR Procedure, the dispute shall be decided by the English Courts in accordance with clause 22.

ASSIGNMENT AND SUBCONTRACTING

20.1. The Customer shall not sub-licence assign or transfer the benefit or burden of this Agreement in whole or in part without the prior written consent of Sustainable Web Hosting.

20.2. Sustainable Web Hosting may assign, charge or otherwise transfer any of its rights or obligations under this Agreement, provided it gives written notice to the Customer of any sub-licence, assignment, charge or other transfer.

20.3. Sustainable Web Hosting may sub-contract the performance of any of its duties under this Agreement, but shall remain responsible for the acts, defaults or neglect of any sub-contractor as if they were its own.

GENERAL

21.1. This Agreement and any document referred to in it constitute the whole and only agreement and understanding between the parties relating to its subject matter and supersedes and extinguishes any drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, between the parties in connection with the subject matter of this Agreement whether existing prior to or at the same time as this Agreement. The express terms of this Agreement are instead of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.

21.2. Any purchase order issued by the Customer will be accepted by Sustainable Web Hosting solely for the purposes of order confirmation and referencing invoices, and no terms or conditions included in, referred to in or attached to any such purchase order will have any effect.

21.3. The parties acknowledge and agree that the limitations and exclusions of liability contained in this Agreement are reasonable in all the circumstances.

21.4. Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between the parties; or to constitute either of the parties as the agent of the other party.

21.5. This Agreement may be executed in any number of counterparts each of which when executed by one or more of the parties hereto shall constitute an original but all of which shall constitute one and the same instrument.

21.6. Nothing in this Agreement will preclude either party from seeking injunctive relief to prevent or stop a breach of confidence or an infringement of intellectual property rights.

GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with English law and, subject to clause 19, the parties irrevocably agree that the courts of England shall have exclusive jurisdiction over any claim or matter or to settle any dispute which may arise out of or in connection with this Agreement and that accordingly any proceedings may be brought in such courts.

Terms of Service
Last Modified: April 28th, 2023
Applicability
These Terms of Service (the “Agreement”) apply to users of the www.soundsquares.com (the “Website”) who have created an account on the Website and who receive Services (as defined below) from soundsquares.com (“SoundSquares”) through the use of a client portal reached by clicking on the “Sign In” button on the Website (the “Portal”).
soundsquares.com website provides a directory to help connects service seekers and service providers. By signing up, accessing or otherwise using any of the SoundSquares services, including any associated features and functionalities, websites, user interfaces, and/or applications (collectively, the “Platform”), or by accessing or using any content or material that is made available through the Platform, you are agreeing to these Terms of Use

Acceptance of the Terms of Service
These Terms of Service are entered into by and between you and Soundsquares Ltd (“Company”, “we” or “us ”).
The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Service”), govern your access to and use of the Services, including any content offered on or through the Portal, if part of such Services.
“You” or “you” as used in these Terms of Service means either, and as applicable:
(i) you, personally, if you are an individual artist or musician operating as a sole proprietorship or other unincorporated association, including as a member of a group of artists (“Band”) not formed as a legally separate entity such as a corporation or limited liability company (each an “Entity”), or
(ii) you and each other member of your Band if organized as an Entity. If “you” refers to an Entity, then you represent and warrant that you have the due and full authority to enter into this Agreement on behalf all members of the Band and acknowledge on your behalf and theirs that these Terms of Service are binding and enforceable against each member of the Band.
(iii) you and any business, company, organisation, you represent and have the authority to act on behalf of whether charity, or not-for-profit, or otherwise; whether incorporated or unincorporated.
Please read these Terms of Service carefully before you start to use the Portal or to receive or make use of any Services.
By creating an account on the Website, or using the Services, you accept and agree to be bound and abide by these Terms of Service.
Each time you access or use the Website, you are also subject to and agreeing to be bound by the Terms of Use (add link) posted thereon. If a conflict arises between the Terms of Use or Privacy Policy posted to the Website and the terms of this Agreement, the terms of this Agreement shall control.
Changes to the Terms of Service
We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them.
Your continued use of the Portal or receipt of Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
Services
After creating an account on the Website, you will be provided with access to the Portal, where you may
(i) create a personalized website for yourself (the “website”), or have one created for you
(ii) select what third party analytical tools you wish to use on your website,
(iii) make use of certain available marketing, communications and fan outreach tools available to you on the website,
(iv) select additional features available on the website, and/or
(v) add products and services you wish to offer for sale on your website.
The website capabilities and functionality are described at https://soundsquares.com/features (the “Documentation”).
The offering to you of the Portal, the hosting of the website (or causing the website to be hosted) to make it accessible to your invitees to your website, and providing the ancillary back-end services and support required to maintain the website in operation pursuant to the terms of this Agreement shall be referred to herein as the “Services”.
You will have the ability to select a password to log onto the Portal, which will give you access to the tools to manage your website. You will use a secure, unique password for your account. You are responsible for any activity that occurs through the use of your login credentials. If you become aware of or suspect that your user credentials have been compromised, lost or stolen, you must inform us immediately so that we may issue you replacement credentials.
The Services, including the features, content and look and feel of your website, may change from time to time in our discretion. Your continued use of the Services, including the website, after such a change constitutes your acceptance to such modifications. If you have already chosen a particular look and feel of your website (a “skin”) when such changes occur, we may allow you to continue using that skin after we discontinue its use by other bands, but we may also terminate your use in our discretion and at our option (in which case you will have to select a new skin to continue making the website available to your invitees).
We will provide the Services to you throughout the Term (as defined below) of this Agreement only.
Your Content
You are responsible for Your Content, including for uploading it to your website. You are also responsible for ensuring that Your Content is legally obtained. “Your Content” means all data and information which You upload to the website, including: (i) contact information of your website invitees and all associated information about such persons; (ii) your files, such as your music, recordings, and videos; (iii) information about you and your products or services; (iv) your calendar information as maintained on the website; (v) your newsletters prepared on and sent through the use of the website; (vi) your e-mails to and from invitees to your website which are sent or received on the website; (vii) information about your products sold using the website e-commerce operations (but please see section “E-commerce on Soundsquares” below for additional information on e-commerce functionality); (viii) your trademarks and service marks, and (ix) information about your activities on social media linked to or visible from the website.
We do not control or actively monitor Your Content. However we reserve the right at all times to remove or refuse to distribute any of Your Content which breaches our policies, and to terminate your rights to use the Services (and reuse your user-name for another Entity or Band). We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to support requests, or (v) protect the rights, property or safety of users and the public.
Additional Features
You may have the ability to engage advertising partners and have those partners serve ads to your invitees to your website, and to have them provide certain search engine optimization and search engine marketing tools. The website also may allow you to select from several website analytics services, should you wish to use them. If you use any of these third party tools or services, you hereby represent that such activities are undertaken at your own risk. These third party tools and services are provided as a convenience only, and it is your responsibility to understand when, where or how their use is appropriate and legal.
You have the ability to post legal terms and conditions, and to post privacy notices or policies, on your website. It would be advisable for you to engage legal counsel to advise you on whether you should post such notices or terms, and what information and disclosures such terms or policies/notices should contain.
You may be able to integrate some features of your website with social media, such as Facebook and Instagram or other social media organisation. When doing so you acknowledge and agree that the terms of use or service of those social media sites apply to such integrations and to any information you send or receive from such sites. Please review those terms carefully before installing any such features or integrating any data between the website and those sites. We are not responsible for your use of these social media integrations or any data that you share with such third party platforms. You acknowledge and agree that your use the social media integration tools at your own risk, and you release us from all liability arising from your use of such sites.
Compliance with Laws
We agree to comply with all applicable UK in our performance of the Services. We also agree to comply with the requirements of the Payment Card Industry Data Security Standard (“PCI Requirements”), as applicable to us, which is designed to protect credit card information from unauthorized disclosure, theft or loss. For the protection of your website invitees making purchases on the website, we will contractually obligate all payment processors we have control over to process credit card transactions on your behalf to also be compliant with PCI Requirements.
You agree that you will comply with all applicable laws in your use of the website, and in your interactions with visitors to your website, including providing all required notices (e.g., posting a privacy policy which informs about what information you collect from your invitees, and how you use such information), and complying with all other privacy and data security laws.
Website Updates and Upgrades
From time to time, we may develop updates or implement enhancements or other changes to your Website. We will also from time to time modify the back-end software that runs your Website. You specifically grant us permission to do this whenever we push an update, upgrade, bug fix or patch to all customers similarly situated to you. Occasionally, this will require the website to be unavailable to you or your visitors for a period of time. We apologize for the inconvenience this may cause, but unfortunately, we must perform these regular maintenance activities to maintain your Website’s performance over time.
Domain Names
Soundsquares will provide one (1) free domain name with the new purchase of a paid plan. The free domain name applies only to the following TLD’s: .com, .net, .org, .biz., if you sign up for a Service that includes this offering.
The domain name is yours to keep, except as otherwise set forth herein. We register the domain in Soundsquares’s name, but will unlock and transfer it to your name upon cancellation of an active paid account, or upon request anytime during the term of your active paid account membership. Please note, however, that we do not have the ability to transfer a domain to you during the initial 90 days after we register it. Notwithstanding the foregoing, if a domain is in Soundsquares’s name at the time that your account becomes inactive for any reason (including but not limited to non-payment or violation of these Terms of Service), any domain name in your account will remain registered to Soundsquares. In this case, Soundsquares has the right to retain the registration of the domain for its own purposes, sell or transfer the domain to a third party, or delete the domain and allow any new registrant to register it.
Except as otherwise stated herein, we will continue to renew your website domain name throughout the Term of this Agreement, provided you continue to timely pay all fees when due hereunder and are not in breach of these Terms of Service.
If Soundsquares sends you the unlock code for a domain, it is your responsibility to transfer the domain to a new registrar, if you so choose. We will not renew domains after the end of the Term of this Agreement, so please keep that in mind when submitting your cancellation request or otherwise terminating this Agreement.
You may purchase additional domains, subject to availability, for $14.95 per year (which fee is subject to change from time to time in our discretion). Additional domains are not renewed automatically.
Under no circumstances will SoundSquares be liable for any damages relating to domains, including but not limited to failure or errors in renewing, transfer, or registration of domains, even if such failure is ours.
E-commerce on SoundSquares
The Services include the option for you to sell goods and services directly to invitees to your website.
SoundSquares provides the platform to offer sales, but all transactions occur at our third party transaction processors, PayPal or Stripe. All transactions are subject to the terms and conditions of Paypal or Stripe, as applicable, and you must have a PayPal or Stripe account independent of your account with us for the website in order to accept such payments.
Further, SoundSquares is not responsible for, and does not have access to, any aspect of transactions that happen on our platform aside from the items that were included in a specified transaction.
By using any e-commerce components of the Services, you agree to not sell products that, in our discretion:
Infringe or potentially infringe on the copyrights of another person;
Constitute illegal or potentially illegal products;
Are offensive, violent, pornographic, or otherwise deemed inappropriate.
We reserve the right to disable or remove any products that are in violation of the terms of this Agreement without warning.
Your Additional Obligations
In addition to any other obligations you have as set forth in this Agreement, you agree that you will:
maintain an active email account on record with us at all times;
maintain at all times your own devices and resources to obtain access to the public Internet;
protect the confidentiality of your login credentials to the Portal and ensure that nobody other than you uses such credentials;
not use any other person’s login credentials;
not sell, resell, rent or lease the Services or the website or use it as a service bureau, or otherwise for the benefit of third parties (except that your invitees to the website may see Your Content and purchase your products and services as you make same available);
not impersonate any other person or group through or on the website;
not use your website to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or intentionally store or transmit material in violation of third party privacy rights;
not use profanity, obscenity, racist terms, or other language that may be offensive to visitors to your website;
not use your website to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (collectively, “Harmful Code”);
not interfere with or disrupt the integrity or performance of our systems or networks or those maintained on our behalf for the purpose of providing services to our customers;
not copy, frame or mirror any part or content of the website;
not attempt to obtain a copy of, or disassemble, reverse engineer or decompile the website or any portion thereof;
not upload, post, email, transmit or otherwise make available on your website any material that interferes with or disrupts the SoundSquares Service, or which probes, scans, or tests the vulnerability of any system or network;
not attempt to breach or circumvent any security or authentication measures;
not attempt to gain unauthorized access to any back-end systems, hardware, software or networks, which we maintain or are maintained on our behalf;
not access or attempt to access restricted portions of the website or our systems;
not download, copy, publish or distribute on the website any copyrighted or other protected materials without the specific written permission of the owner of such materials; and
not engage in denial of service attacks.

Fees and Payment
You agree to pay us in advance, based on the schedule of payments you agreed to when you signed up for a Service. All such fees are non-refundable. Our pricing plans are set forth on our Website, at https://soundsquares.com/pricing.Once you select your pricing plan, we will begin to charge you for the Services you selected.
Credit card, PayPal or Stripe chargebacks will incur a fee of $100 to reinstate accounts. Accounts that incur chargebacks may be permanently deleted in our discretion.
Domain registration and setup fees are non-refundable.
From time to time we may offer promotional codes or offers that apply a discount to service plans. Only one promotional offer or code may be used per website at a time; they may not be combined or stacked.
You acknowledge and agree that our fees may change from time to time, and when they change, the new fees will be posted to our Website. You agree to be bound by, and pay the new fees, as they change from time to time, of course, always subject to your termination rights as set in this Agreement. The fees listed on our Website do not include applicable Taxes. “Taxes” means any sales, value added tax, use, and other taxes (other than taxes on either party’s income or assets), export and import fees, customs duties and similar charges imposed by any government or other taxing authority. If we think any Taxes apply to your receipt of our Services, we will charge you for those applicable Taxes when we charge you the corresponding fees. We agree to disburse all such Taxes to the applicable taxing authority on your behalf.
Proprietary Rights
Our Website, the Portal and the website, and their entire contents, features, and functionality, including all trademarks, business names, information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof, but excluding Your Content (collectively, “Our Content”), are owned by the Company, its affiliates, their respective licensors, or other providers of such material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
We hereby grant to you, throughout the Term only, a worldwide (except in countries which are subject to legal restriction or embargo), limited, non-exclusive, non-transferable (except as permitted herein), non-assignable (except as permitted herein) license for (i) you and your invitees to access and view your individual website located thereon, and (ii) for you to make use of the Services as it pertains to your website as contemplated in the Documentation, provided you do so for your own purposes and not for the benefit of any third parties (except as otherwise specifically permitted herein or in the Documentation).
As between you and us, you exclusively own all right, title and interest in and to all Your Content. You hereby grant to us, our affiliates and our service providers a non-exclusive, non-transferrable (except as permitted herein), non-sublicensable (except as needed for our service providers to assist us in performing the Services), limited, revocable license, solely for the Term, to access, store, process, transmit, distribute and publish Your Content solely as required in order to provide Services hereunder.
You agree that we and our affiliates and service providers are permitted to collect, access, process, store, and use in perpetuity (i) any technical, aggregated information, including any information which may be attributable to any particular invitee to your website or to you (but not any information which may be considered personally identifiable information); (ii) information pertaining to how the website is browsed and searched, such as which features are used the most or are popular for some types of users; and (iii) all sales amounts processed through the website (but not to whom such sales were made); provided we do so solely to evaluate features of our Website and your and other websites, and for the purpose of improving our services.
You understand and agree that your website contains third party materials and services. Those materials and services are licensed to you solely for use on the website as contemplated in the Documentation and only for so long as the owners of such materials and services permit us to make them available to you. You acknowledge and agree that if the owner of such materials or services terminates our license or right to make them available to you, they will be removed from the website, and you accept this risk.
The Services are licensed, not sold. Except for the limited rights expressly granted by each of the parties hereunder, no other rights are granted. All rights not specifically granted herein are otherwise reserved.
Each party agrees to refrain from any use or registration of the trademarks of the other party, or of any confusingly similar marks, except with respect to any trademarks included within the website which you upload (in which case you grant to us a limited license to display, publish, and process such trademark as part of Your Content). If you add your name to our client list, you also grant us a right to use your name on such list, and to display, publish, and process your name as you entered it in furtherance of our business.
Term and Termination
The term of this Agreement begins on the day you sign up to receive the Services by creating an account on our Website, selecting a pricing package, and paying your first monthly installmentor annual payment of recurring subscription fees (the “Effective Date” . This Agreement will continue in effect until either party terminates pursuant to the terms of this Agreement (the “Term”).
You can upgrade/downgrade your Service at any time by going to the Portal and changing your plan after signing in. We cannot provide refunds or cash credits for downgrades.
You may terminate this Agreement at any time. To do so, you must click the “Cancel” link in the “Account” section of the Portal (which may be labeled as your “control panel” within the Portal), which you will find after signing into the Portal. Cancellation requests by email or live chat will not be accepted. Cancellation must be submitted at leasttwo (2) business days prior to the rebilling date.
We may terminate your access to the website and use of any Services immediately (i) if you breach any provision of this Agreement, (ii) if you fail to pay recurring fees when due, (iii) if we lose any right or license required for us to make the Services or the website available to you or your invitees, (iv) if we cease providing Services to our general customer base or we make material modifications to the Services; (v) if required to do so by law, or due to a change in applicable law; (vi) if you violate the law or these Terms of Service; or (vii) if unexpected technical, security or legal issues or problems arise.
Upon termination of this Agreement for any reason, (i) you will lose the right to access the Portal and the website, (ii) we will promptly delete your website and all of Your Content, except as required by law, and (iii) you must pay any outstanding amounts you owe us for use of Services throughout the Term. Please plan your cancellation of this Agreement accordingly.
Provisions of this Agreement dealing with confidentiality, representations or warranties, indemnities, limits on liability and any provisions set forth in the “Miscellaneous”
Section below shall survive termination of this Agreement.
Confidential information
Each party (the “disclosing party”) may disclose to the other party (the “receiving party”), Confidential Information during the course of performance under this Agreement. “Confidential Information” means any data, files, content, copy, materials and information which is not public and which is disclosed by the disclosing party or on such person’s behalf, to the receiving party or an affiliate or service provider of such party, either directly or indirectly, in writing (including electronically) or orally, and which a reasonable person should understand, based on the content or means of disclosure, to be confidential or proprietary. Your Content shall be considered your Confidential Information. Our Website content, Website look and feel, the website skins and their look and feel, and all graphic and other elements of our Website and the websites (excluding any which you uploaded to the website), our business methods, pricing models and methodologies, and business processes, shall be considered our Confidential Information.
The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence and use reasonable care to protect the same; (ii) restrict disclosure of the other party’s Confidential Information to those of its affiliates, employees, service providers or agents with a need to know such information and who are under a duty of confidentiality respecting the protection of such Confidential Information; and (iii) use the other party’s Confidential Information only for the purposes for which it was disclosed, or as otherwise permitted herein or pursuant to instructions from the disclosing party.
The above restrictions will not apply to Confidential Information to the extent it (i) is, or through no fault of the recipient has become, generally available to the public; (ii) was lawfully received by the receiving party from a third party without such restrictions and if such third party was not subject to a duty of confidentiality when it received the information; (iii) was known to the receiving party prior to receipt from the disclosing party, if it received such information not subject to a duty of confidentiality; or (iv) was independently developed by the receiving party without breach of this Agreement or access to, reference or use of the Confidential Information of the other party.
The receiving party may disclose Confidential Information to the extent the disclosure is required by law, regulation, or judicial order, provided that the receiving party will provide to the disclosing party prompt notice, where permitted by law, of such order and will assist the disclosing party in its efforts to contest or limit any required disclosure.
Data Security
It is your responsivity to comply with your obligations under applicable data protection laws when collecting, handling, uploading and processing personal data of your website visitors and invitees. In addition, as part of the Services hereunder, we will ensure that we and our service providers: (i) use commercially reasonable data security procedures and controls designed to protect Your Content from unauthorized use, loss, disclosure, theft or compromise.
If there is any theft, loss, loss of control over, access or discovery by or disclosure to a third party, or other event that results in an unauthorized third party obtaining access to, viewing, copying, transferring, transmitting, displaying, preventing authorized access to, or coming to control of any of Your Content (each such event, a “Breach”), and if such Breach occurs as a result of any action or inaction of ours or our service providers or from our systems, devices or networks, then we will, at our own expense (a) give you notice of such Breach as quickly as is commercially feasible for us to do so after becoming aware of such a Breach; (b) give you reasonably available information pertaining to such Breach, and where and how it occurred; (c) give you available information pertaining to Your Content that was lost, stolen, accessed, discovered, rendered inaccessible or disclosed; (d) perform forensic investigations and audits as reasonably required to identify the root cause and reasons for the Breach; (e) reasonably mitigate the effects of the Breach as promptly as is commercially feasible; and (f) take all corrective actions necessary to prevent the Breach from re-occurring.
Representations and Warranties
Each party represents and warrants to the other that: (i) it is duly organized and validly existing in the state of its organization or formation and that it has full power and authority to enter into and perform its obligations pursuant to this Agreement in accordance with its terms; (ii) this Agreement represents a binding and enforceable obligation of such party.
You represent and warrant that (i) Your Content does not infringe or misappropriate any rights of third parties; (ii) you have all rights, consents, or other permission necessary to upload Your Content to the website, and to collect, process, store, and use Your Content, including when using any communications or marketing tools made available through the website (e.g., when sending newsletters, when communicating with your invitees to the website in blogs or other areas of the website, when sending them emails, when using analytics tools made available to you on the website, when selling merchandise, when selling concert tickets, when disclosing information about concerts and events to users of the website, etc.); (iii) you have obtained all consents, rights and permissions necessary to allow the Company and its service providers to access, use, host, collect, store, process and manipulate Your Content as required to provide the Services and pursuant to your instructions; and (iv) you are of legal age to execute contracts, and you have the right to bind all members of your musical/artistic group, to the extent you are not a solo artist.
YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS OTHERWISE STATED HEREIN, WE DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE DO NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.
EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE SERVICES (INCLUDING YOUR website), OUR CONTENT AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
Indemnification
Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any action, claim, proceeding, law suit, demand, loss or expenses (including reasonable attorney’s fees and legal costs and expenses) arising or resulting from such party’s breach of its specific warranties herein.
We will defend, indemnify and hold you harmless from and against any action, claim, proceeding, law suit, demand, loss or expense (including reasonable attorney’s fees and legal costs and expenses) brought by a third party to the extent that the action is based upon a claim that our Services, Our Content or the Documentation (collectively, “Offerings”), or any portion thereof, infringes or misappropriates any U.S. or Canadian intellectual property rights of such third party. In addition, if the Offerings, or any part thereof, becomes, or in our reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, we may, at our sole option and expense, either (i) procure for you the right to continue using the affected item, or (ii) modify the affected item so that it becomes non-infringing/not misappropriating. If none of the above options are reasonably available, we may terminate this Agreement or remove the feature or portion of the Offerings which is subject to the claim or possible claim.
Notwithstanding the foregoing, we shall have no liability for infringement or misappropriation under this section, if the alleged infringement or misappropriation arises directly from (i) the integration of the Offerings with other equipment or software that were not provided by us or reasonably foreseeable to be used in combination with or to be integrated with the Offerings, and if the infringement would not have occurred absent such integration; (ii) modifications made to the Offerings without our prior written consent; or (iii) use of the Offerings other than as contemplated hereunder, if such action would have been avoided but for such use, modification or combination.
You agree to defend, indemnify and hold harmless us, our affiliates and service providers, and all officers, directors, members or employees of any of the foregoing, from and against any action, claim, proceeding, law suit, demand, loss or expenses (including reasonable attorney’s fees and legal costs and expenses) arising or resulting from (i) your use of ads and other additional features available on your website; (ii) your activities in marketing or promotion of your goods or services to invitees on your website, including with respect to all communications you initiate and receive through the use of your website; and/or (iii) any challenge or claim relating to one of your domain names.
The party seeking indemnity pursuant to this section will promptly notify the party indemnifying in writing of the claim, and will grant the indemnifying party sole control of the selection of counsel, defense, and settlement of the claim. The indemnifying party will pursue defense or prosecution of all claims in a diligent manner. The indemnified party hereunder agrees to provide the indemnifying party with reasonable assistance, information required for the defense and settlement of the claim; provided, however, that the indemnifying party may not settle a claim in a manner that is adverse to the indemnified party or if such settlement requires acknowledging liability or wrongdoing by the indemnified party without such indemnified party’s prior written consent.
Limitation on Liability
UNDER NO CIRCUMSTANCES WILL WE OR OUR AFFILIATES OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THE SERVICES, (II) PROPERTY DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES, (III) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES, OR (IV) ANY LOSS OR CORRUPTION OF DATA. THESE LIMITATIONS SHALL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY DOLLARS ($50) OR (B) AMOUNTS PAID BY YOU TO US IN THE PRIOR 12 MONTHS (IF ANY). THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY APPLICABLE LAW.
Miscellaneous
Assignment. You may not assign this Agreement or any of your rights or obligations hereunder, in whole or in part, without our prior written consent.
Subcontracting. We may subcontract any portion of the Services hereunder. You specifically consent to this arrangement. To the extent our subcontractors or service providers are subject to European data protection laws, we will bind them to contracts pursuant to which they will be required to comply with European laws applicable to the services they perform for us.
Notices. We may send you notices through the website or via email. You must send us notices by contacting us via email at support@SoundSquares.com, or by sending us notices at the following address:
SoundSquares.com
2045 W Grand Ave Ste B, PMB #92842
Chicago, IL
USA 60612-1577

Severability. If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions.
Waiver. The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver.
Injunctive Relief. Notwithstanding anything else to the contrary herein, either party may seek injunctive in a court of competent jurisdiction without the posting of a bond.
Force Majeure. Neither party will be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.
Construction. Paragraph headings are for convenience and shall have no effect on interpretation.
Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the State of New York, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods and the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. Any dispute, controversy or claim arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be exclusively resolved by binding arbitration in the City of New York. The arbitration shall be binding with no right of appeal. The arbitration shall be conducted pursuant to the rules of the American Arbitration Association. There shall be one arbitrator selected by agreement of the parties, or if the parties fail to agree, by the American Arbitration Association. The costs of arbitration, including the arbitrator’s fees, shall be borne equally by the parties to the arbitration, unless otherwise ordered by the arbitrator or agreed upon by the parties. The parties to this agreement further agree to abide by any award rendered by the arbitrator. Judgment on the award rendered by the arbitrator may otherwise be entered in any court having jurisdiction thereof.
Third Party Rights. Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a signatory to it, and no person not a signatory to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.
Independent Contractors. The parties are independent contractors, and this Agreement creates no relationship of principal and agent, partner, joint venture, employer-employee or other similar arrangement. Neither party is an agent of the other, and each party agrees that it will not represent itself to be an agent of the other party or attempt to create any obligation or make any representation on behalf of or in the name of the other party.
Terms and Conditions
About these Terms:
These subscription terms and conditions (“these Terms”) govern your access to and use of any Soundsquares Service as provided from time to time (“the Service”). Soundsquares is a trading name of Soundsquares Ltd. Soundsquares Ltd is a partnership with an office at 10 Orchard View, Glastonbury, Somerset, BA6 8QH.
In order to access and use the Service, you, the Customer must signify your agreement to these Terms by placing an order through SoundSquares. By doing so, you also confirm that you are authorised to contract with Sustainable Web Hosting subject to these Terms.
If you do not accept these Terms, or are not authorised to enter into an agreement with Sustainable Web Hosting based on these Terms, you must exit the ordering process. You will not then be entitled to access or use the Service.
INTERPRETATION
1.1. In this Agreement the following words and phrases have the following meanings
“Acceptable Use Policy” or “AUP” means Sustainable Web Hosting’s acceptable use policy governing the Customer’s use of any Services, as notified to the Customer and as amended by Sustainable Web Hosting from time to time; as defined here: Acceptable Use Policy
“Agreement” means a contract between Sustainable Web Hosting and the Customer comprising an Order and these Terms;
“Charges” means the charges and fees specified in the Order payable by the Customer to Sustainable Web Hosting in respect of the Services;
“Confidential Information” means in respect of either party any and all information relating to the trade secrets, operations, processes, plans, intentions, products, product information, prices, know-how, designs, customer lists, market opportunities, transactions, affairs and/or business of that party and/or to its customers, suppliers, clients or affiliated companies in or on any medium or format;
“Contact Point” means in respect of either party the person so designated in the Order and/or their replacements from time to time;
“Customer” means the person specified as such in the Order;
“Data Protection Laws” means those laws further defined in the Data Protection Policy;
“Data Protection Policy” means Sustainable Web Hosting’’s data protection policy governing the storage, processing and transfer of the personal data (if any) stored on Sustainable Web Hosting’s servers by the Customer, located in the Sustainable Web Hosting Customer portal and as amended by Sustainable Web Hosting’s upon written notice to the Customer from time to time;
“Due Date” means the date shown as the Due Date of the relevant invoice;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, 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;
“Measureable Resource” means the resources, materials or services, specified in the Order, to be provided to the Customer as part of the Service, including:
(a) CPU time, memory, storage, backups, and bandwidth;
(b) any licensed software; and
(c) IP addresses, management, support, backups, and templates.
“Order” means an order placed by the Customer by means of the online order process set out on the Sustainable Web Hosting website or Sustainable Web Hosting customer portal website, which, when completed and submitted by the Customer in accordance with that process, and confirmed by Sustainable Web Hosting in accordance with clause, creates a binding agreement between the Customer and Sustainable Web Hosting, incorporating these terms and conditions;
“Services” means the Sustainable Web Hosting services detailed in the Order;
“Service Commencement Date” means the date specified as such in the Order;
“Service Level Obligations” means any obligations set out in this Agreement in respect of service levels for the Services;
“Sourcing Issue” means an inability of Sustainable Web Hosting to source particular materials/resources (including personnel) on terms similar or identical to those available at the Service Commencement Date (including exchange rate fluctuations/increases in taxes/duties);
“Working Day” means any day from Monday to Friday inclusive which is not Christmas Day, Boxing Day, New Year’s Day, Good Friday or other public holiday in England.
1.2. Unless the context otherwise requires, references to Sustainable Web Hosting and/or the Customer include their permitted successors and assigns.
1.3. The headings contained in this Agreement are for convenience of reference only and shall not affect its interpretation or construction.
1.4. Unless the context otherwise requires words denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to persons shall include natural persons, bodies corporate, unincorporated associations, governments, states, trusts and partnerships, in each case whether or not having a separate legal personality.
1.5. The words and phrases “including” and “in particular” shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible.
1.6. Any reference to “writing” or “written” includes faxes and emails but does not include texts or other forms of instant messaging.
1.7. References to any statute, enactment, order, regulation or other similar instrument shall be construed as references to the same as amended by or as contained in any subsequent re-enactment, modification or statutory extension thereof.
1.8. In the event of conflict or ambiguity between the Terms and the Data Protection Policy, the Data Protection Policy shall prevail.
THE SERVICES
2.1. Notwithstanding the submission of an Order and payment of the Charges by the Customer, Sustainable Web Hosting reserves the right at its absolute discretion to decline to provide the Services to the Customer, in which event any Charges paid will be refunded to the Customer. No binding agreement shall subsist between Sustainable Web Hosting and the Customer unless and until a formal subscription confirmation is issued to the Customer by Sustainable Web Hosting.
2.2. Subject to clause 2.1, Sustainable Web Hosting will in consideration of the Customer’s payment of the Charges provide the Services with effect from the Service Commencement Date, until the Services are terminated in accordance with these Terms.
2.3. Sustainable Web Hosting will use all reasonable endeavours to make available the Measureable Resource required by the Customer from time to time, but Sustainable Web Hosting reserves at all times the right to manage available resource and capacity across its customer base at large, and to decline to provide all or any part of any Measureable Resource requested by the Customer.
2.4. The Customer agrees and acknowledges that:
2.4.1. All hardware (including any dedicated server provided as part of the Services (“Hardware”) will remain the sole property of Sustainable Web Hosting;
2.4.2. all licensed software provided or used as part of the Services (“Software”) will remain the sole property of Sustainable Web Hosting or its licensor, and is not transferable; and
2.4.3. Neither the Customer nor its servants, agents or contractors will be permitted physical access to the hosting facility or to any Sustainable Web Hosting equipment or infrastructure.
2.4.4. Any Software will be provided in default configuration only, unless otherwise stated in the Order. Where the Customer requires Sustainable Web Hosting to configure any Software “from default”, the provision of such services may be subject to additional Charges.
2.5. The Customer acknowledges that in order to take appropriate action in respect of any fault or other problem affecting any of the Services, Sustainable Web Hosting will require administrator/root access. The Customer will ensure that Sustainable Web Hosting is provided with the necessary credentials to effect such access.
2.6. The Customer acknowledges that in some circumstances the diagnosis of Service problems may involve activity which causes further interruption to the provision of Services to the Customer, and hereby authorises Sustainable Web Hosting to perform such diagnosis as and when necessary as part of the Services.
2.7. Without exception, only Sustainable Web Hosting will be entitled to undertake diagnosis of faults in or failures of elements of the Services or infrastructure under Sustainable Web Hosting’s control. Depending on the circumstances, the restoration of Service may at Sustainable Web Hosting’s discretion be on a permanent or temporary basis. The Customer must notify Sustainable Web Hosting of any activity (such as planned maintenance) which may affect Sustainable Web Hosting’s provision of any Services. Where any remedial or other action by Sustainable Web Hosting becomes necessary due to any failure by the Customer to provide any such notification, Sustainable Web Hosting shall be entitled to charge the Customer for any such action taken.
2.8. Where Sustainable Web Hosting notifies the Customer of any action by the Customer necessary in order to maintain the provision of any Service, Sustainable Web Hosting will not be liable for any degradation of or interruption to that Service until such time as that action has been taken.
2.9. Sustainable Web Hosting
2.9.1. will provide technical support for the infrastructure utilised by it in the provision of the Services, but will not provide support for application specific issues or for the purposes of software development;
2.9.2. will not be under any obligation to correct any fault caused by any act or omission of the Customer or its employees subcontractors or agents;
2.9.3. will have no responsibility or liability for any degradation of performance or security attributable to the alteration by the Customer of any default setting applied to any aspect of the Services.
2.10. Where the Services include the provision of a data backup service, Sustainable Web Hosting will use reasonable endeavours to perform backups of data stored upon each relevant Server and to make those backups available to the Customer in accordance with the applicable backup service specification, but Sustainable Web Hosting cannot and does not warrant that data will be backed up correctly or restored successfully, or that this will be performed to any particular timescale. Sustainable Web Hosting also does not warrant that all customer data will be backed up, and may exclude certain categories of customer data from the backup process without notice at its discretion.
2.11. Where the Services include the allocation of any IP Address, any such allocation will be effected in accordance with RIPE guidelines. The Customer will provide reasonable justification for the usage of any IP address which the Customer seeks to have allocated to it. All IP addresses remain under the control and ownership of Sustainable Web Hosting which may change or remove IP addresses from time to time at its discretion.
2.12. Sustainable Web Hosting may as part of the Services provide the Customer with access to software owned / licensed by third parties, such as (but not limited to) cPanel, R1Soft CDP or Microsoft products (“Third Party Software”). The Customer acknowledges that 2.12.1. Third Party Software is supported by the relevant third party owner/ licensor,and unless expressly agreed with the Customer in writing Sustainable Web Hosting can offer no guarantee as to the availability, operability or performance of Third Party Software, nor can Sustainable Web Hosting accept any responsibility for any problems resulting from the operation of such Third Party Software; and
2.12.2. the Customer’s use of such software will be subject to the terms and conditions of the relevant licence(s), with which the Customer will comply.
2.13. Sustainable Web Hosting, its suppliers or service providers may from time to time need to carry out repairs or maintenance which can affect the provision of Services to the Customer. The Customer acknowledges that repairs or maintenance may have to be carried out as an emergency in order to protect Services or to avert more severe or prolonged interruption of those or other Services, in which case Sustainable Web Hosting will provide the Customer with as much notice as is reasonably practicable in the circumstances. Repair or Maintenance works, whether scheduled or due to emergency, shall be disregarded when measuring Sustainable Web Hosting’s compliance with any applicable performance measurements or targets.
2.14. The Customer acknowledges that, having regard to the nature of computer technology and the electronic components common to computer equipment, certain actions performed as part of repair or maintenance may bring to light failure conditions which otherwise may not have been evident until a later time, and that Sustainable Web Hosting will have no liability for any such operating failures connected to but not directly caused by, repair maintenance or service outages.
2.15. Each party shall designate a Contact Point to act as that party’s prime point of contact with the other party in connection with this Agreement.
2.16. Sustainable Web Hosting will endeavour to implement software updates relevant to the Services within a reasonable period of their becoming available, provided Sustainable Web Hosting has been afforded access necessary to do so. The Customer acknowledges that:
2.16.1. certain updates may be performed automatically and without prior notification to the Customer; and
2.16.2. some interruption to the Customer’s Services may be unavoidable given the scope or complexity of any given update.
2.17. Where Sustainable Web Hosting performs migration of Services from another provider to Sustainable Web Hosting:
2.17.1. Migration shall be performed on a best-effort basis.
2.17.2. Third-party software, tools or services may be used to migrate customer data. This may involve data traversing or being stored on third-party networks and systems which are not under the control of Sustainable Web Hosting.. Security and integrity of data is not assured by Sustainable Web Hosting.
2.17.3. Sustainable Web Hosting is not responsible for verification of integrity of data transferred during service migration, or any data loss which may occur as a result of migration.
2.17.4. It remains always the responsibility of the Customer to verify migrated data and configurations are correct.
2.18. Sustainable Web Hosting shall have the right to make any changes to the Services:
2.18.1. immediately on notice to the Customer, where such changes:
2.18.1.1. are necessary to comply with any applicable law or safety requirement;
2.18.1.2. result from a Sourcing Issue; or that
2.18.1.3. do not materially negatively affect the nature or quality of the Services; and
2.18.2. on thirty (30) days’ notice to the Customer in any other circumstances (“Variation Notice Period”).
DOMAIN NAMES & SSL CERTIFICATES
3.1. Sustainable Web Hosting does not warrant or represent that any domain name the Customer wishes to register is capable of being registered by or for the Customer or that it will be registered in the Customer’s name. The Customer acknowledges that:
3.1.1. it should not assume registration of any domain name, nor the renewal of any registration, until formally notified of the same; and
3.1.2. any action taken by the Customer before receipt of such notification is entirely at the Customer’s own risk.
3.1.3. All domains are ultimately the responsibility of the customer. New Domain Registrations and Domain Name renewals should not be considered completed unless confirmed via eMail. All renewal and expiry dates are publicly available in the whois database, customers should ensure their familiarity with this and arrange any renewals accordingly. Sustainable Web Hosting will under no circumstances have any responsibility or liability for or arising from the expiry of a domain and/or for any resulting effect on the Customer’s business
3.2. The Customer’s registration and use of any domain name is subject to the terms and conditions of use applied by the relevant naming authority, and the Customer shall ensure that it is aware of those terms and conditions and that it complies with them. Sustainable Web Hosting will have no liability to the Customer for any refusal to register a domain name. Any administration charge paid by the Customer to Sustainable Web Hosting shall be non-refundable, notwithstanding any refusal by the naming authority to register the Customer’s desired name.
3.3. Sustainable Web Hosting will have no liability in respect of the Customer’s use of any domain name. Any dispute between the Customer and a third party will be resolved between the Customer and that third party. If any such dispute arises, Sustainable Web Hosting shall be entitled, at its discretion and without giving any reason, to withhold, suspend or cancel the domain name. Sustainable Web Hosting will also be entitled to make representations to the relevant naming authority, but will be under no obligation to intervene in or take any part in any such dispute.
3.4. Sustainable Web Hosting will have no obligation to release any domain name to another provider unless it has received payment in full for that domain name, including where a domain name is provided as part of a free or reduced price offer.
3.5. The Customer will be responsible for:
3.5.1. domain name renewals, and for ensuring that renewal applications are made in good time before the relevant expiry date;
3.5.2. domain name transfers, and for ensuring the timely submission and completion of transfer requests and any necessary liaison with registrars or other relevant third parties.
Sustainable Web Hosting will under no circumstances have any responsibility or liability to the Customer for or arising from the expiry of a domain and/or for any resulting effect on the Customer’s business.
3.6. In accordance with the terms and conditions of domain name purchases, Sustainable Web Hosting is obliged to publish the owner’s full contact details in the public whois database. Sustainable Web Hosting will under no circumstances have any liability to the Customer for or arising from such publication, or for any resulting effect on the Customer’s business. The Customer understands and agrees that the disclosure of their contact details is necessary in order for Sustainable Web Hosting to register the domain, and that such disclosure does not thereby constitute a violation of the Data Protection Policy.
3.7. All SSL Certificates are ultimately the responsibility of the Customer. All renewal and expiry dates are publicly available and the Customers acknowledges that it should arrange any renewals accordingly. Sustainable Web Hosting will under no circumstances have any responsibility or liability to the Customer for or arising from the expiry of a SSL Certificate or for any resulting effect on the Customer’s business.
SERVICE PROVISION AND MEASUREMENT
4.1. If the Order specifies that a Service will be managed by Sustainable Web Hosting, Sustainable Web Hosting will: 4.1.1. monitor the following services (“Customer’s Services“) for faults at approximately 5 minute intervals:
(a) HTTP;
(b) FTP;
(c) POP3;
(d) IMAP;
(e) ICMP PING;
(f) SMTP;
(g) MYSQL (Port open connection only); and
(h) SSH,
provided that where any of the Customer’s Services are operational, the Customer will allow access to them by Sustainable Web Hosting’s monitoring platform;
4.1.2. where a fault enters a ‘hard’ problem state, take remedial action to correct the problem;
4.1.3. where ordered, provide cPanel software in a default but optimally configured state, or such other state as may be specified in the Order;
4.1.4. in the event of complete system failure, restore backups from Sustainable Web Hosting snapshot backups or (where specified to be part of the Services) Sustainable Web Hosting’s CDP product only;
4.1.5. install software designed to monitor and block malicious connections, but the Customer acknowledges that such software cannot not provide complete and total security and that responsibility for the security of the Customer’s data, applications and platform remains solely with the Customer;
4.1.6. run software on the Customer’s service to perform automated housekeeping tasks, and the Customer agrees not to interfere with such software or its configuration;
4.1.7. where specified to be part of the Services, schedule CDP backups at a time chosen by Sustainable Web Hosting;
4.1.8. provide initial and ongoing configuration of cPanel software (including cPanel-based Apache/LiteSpeed and PHP reconfiguration) when requested by the Customer.
4.2. For the purpose of measuring Sustainable Web Hosting’s provision of any Services:
4.2.1. network availability will be measured by means of monitoring on the internet undertaken by Sustainable Web Hosting from remote locations using industry standard tools; and
4.2.2. all other Services availability will be measured by monitoring of the relevant Services undertaken by Sustainable Web Hosting using its management platform.
4.3. If the Order specifies that a Service will not be managed by Sustainable Web Hosting, that Service will not include the provision of support, and Sustainable Web Hosting will be entitled to charge for any support it agrees to provide in respect of any such Service at Sustainable Web Hosting’s then-current standard hourly rate.
4.4. Sustainable Web Hosting will use all reasonable endeavours to make the Services available to the Customer in accordance with the following service levels, availability being measured on a 24 hours a day, 7 days a week basis for each calendar month:
4.4.1. HTTP/HTTPS service:
(a) Sustainable Web Hosting Shared Hosting – 99% availability;
4.4.2. All other services:
(a) including but not limited to Sustainable Web Hosting Shared Hosting Email Addon – 99.0% availability.
4.5. In the event that Sustainable Web Hosting fails to meet any Service Level Obligations, Sustainable Web Hosting will (subject to clauses 4.6 and 4.7) consider claims for compensation for such failure not exceeding the Charges accrued for the Service to which that failure relates in the calendar month in which the failure occurred (the “Relevant Month”), provided that: 4.5.1. only one claim may be made for any one incident;
4.5.2. claims for multiple incidents in the same month shall not collectively exceed the Charges for the Services in that the Relevant Month; and
4.5.3. any compensation paid in respect of a claim (or claims for multiple incidents) shall be in full and final settlement of all rights of the Customer
in respect of such claim and/or claims;
4.5.4. the customer service is not over-subscribed, subject to or participating in any form of malicious activity or denial of service event, or operating otherwise than in accordance with the Sustainable Web Hosting Acceptable Use Policy.
4.6. All claims under clause 4.5 must be received in writing within seven (7) calendar days of the failure to which the claim relates.
4.7. All claims under clause 3.5 will be subject to the following:
4.7.1. refund of 1 day’s Service Charges for every 30 minutes or part thereof from the time when Sustainable Web Hosting fails to meet any Service Level Obligation until the time that failure is resolved based upon the resource utilisation of the relevant virtual machine at the time of the failure, not exceeding the aggregate Charges of the Service to which that failure relates in the month the event occurs (subject to the limit on compensation set out in clause 3.5);
4.7.2. in the event of multiple failures relating to the same incident, only one claim may be submitted to cover the incident;
4.7.3. multiple simultaneous failures or failures related to or arising from the same incident will constitute only one failure; and
4.7.4. without prejudice to the generality of clause 3.6.3:
(a) in the event that both network and other services are simultaneously unavailable, this will constitute only a single failure of the relevant Service(s); and/or
(b) in the event of a connected failure of a dependant service component, this will constitute only a single failure of the relevant Service(s).
4.8. All Service Level Obligations are subject to the terms of this Agreement.
CUSTOMER RESPONSIBILITIES
5.1. Irrespective of any agreement with Sustainable Web Hosting for the provision of data backup Services, the Customer will at all times have sole responsibility for the safekeeping of its data and will at all times keep sufficient and current backups of that data. Sustainable Web Hosting will have no liability for any loss of or damage to any data stored on the Services or which is the subject of any backup Services.
5.2. The Customer is solely responsible for the licensing and operation of any software which is utilised as part of any Services, but not licensed by Sustainable Web Hosting. The Customer will at all material times ensure that it has all licences or other authority necessary to operate such software. The Customer shall on request produce any evidence reasonably required by Sustainable Web Hosting to verify that the Customer is entitled to use any particular software as part of any Services.
5.3. The Customer agrees that it shall at all times:
5.3.1. be responsible for the adoption and maintenance of such measures as may reasonably be required in order to prevent unauthorised access to the Services by any means under the control of the Customer; and
5.3.2. comply with the licensing terms of any licence applicable to any software provided by Sustainable Web Hosting as part of the Services.
5.4. The Customer will not access or use or attempt to access or use the Services:
5.4.1. in any way which interferes with, damages or disrupts, or might reasonably be expected to interfere with, damage or disrupt the Services, or any equipment, software, website or network owned or operated by Sustainable Web Hosting;
5.4.2. in any way which is unlawful, illegal or fraudulent, or has any unlawful, illegal or fraudulent purpose or effect;
5.4.3. to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation;
5.4.4. knowingly to store, transmit or upload any data or material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
5.4.5. knowingly to store, transmit or upload any data or material which: (a) advocates, promotes or assists violence, any other illegal or unlawful activity;
(b) is obscene, offensive, hateful, defamatory or inflammatory;
(c) is threatening, abusive or which invades another’s privacy, or causes needless anxiety or annoyance;
(d) advocates or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
(e) infringes any copyright, database right, trade mark or other proprietary right of any other person;
(f) is fraudulent or misleading;
(g) is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
CHARGES AND PAYMENT
6.1. The Charges will be calculated by reference to the Customer’s usage of Services, as specified in the Order, and any applicable software licence fees, and will be invoiced monthly in advance.
6.2. Sustainable Web Hosting will invoice the Customer for the Charges in advance of the calendar month during which the relevant Services are provided. Charges will be charged directly to a registered credit/debit card. Sustainable Web Hosting’s invoices shall be payable by the Customer no later than the Due Date. The Customer acknowledges that Sustainable Web Hosting and/or its payment partners may seek payment of any Charges due in accordance with the Order without further or prior notification.
6.3. All payments of Charges made are non-refundable.
6.4. If any Charges remain unpaid seven (7) days after the Due Date, Sustainable Web Hosting shall without prejudice to its rights under clause 9 be entitled to charge interest on any unpaid amount on a daily basis (before as well as after any judgment) from the Due Date to the date of payment at the rate of four (4) per cent above the base rate of Barclays Bank plc from time to time in force. Such interest shall accrue on a daily basis and be compounded quarterly. Sustainable Web Hosting reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
6.5. The Customer shall at all times comply with the Acceptable Use Policy.
6.6. In the event of any dispute in relation to the Charges, the Customer shall notify Sustainable Web Hosting in writing within seven (7) days of receipt of the invoice, and shall provide details of the amount in dispute and the basis on which payment is disputed. The Customer shall pay any undisputed sum by the Due Date, and the parties shall as soon as reasonably practicable refer the dispute for resolution in accordance with the procedure set out in clause 17. Any disputed Charges which are subsequently determined to be due and payable by the Customer to Sustainable Web Hosting shall attract interest in accordance with clause 6.4 as from their original Due Date.
6.7. Where payment of any Charges has not been made by the Customer by any relevant Due Date, Sustainable Web Hosting reserves without prejudice to its rights under clause 6.4 or clause 9 the right to require advance payment of future Charges and/or the provision of acceptable personal guarantees before any further provision of Services.
6.8. Where any purported payment of Charges by the Customer is rejected or reversed Sustainable Web Hosting will in respect of every such failure be entitled to charge the Customer a fee in the sum of fifty (50) pounds in respect of its administrative costs.
6.9. Sustainable Web Hosting will be entitled to recover from the Customer its reasonable legal and administrative costs and expenses actually incurred in enforcing payment of unpaid Charges which remain unpaid as at their relevant Due Date.
6.10. The Charges are exclusive of VAT and any other similar taxes, duties or levies or other deductions or withholdings in countries outside the United Kingdom, which shall be payable at the rate and in the manner prescribed by applicable law.
6.11. Where ‘money back’ guarantees are offered, Sustainable Web Hosting retains the absolute right to determine validity of any claims.
6.12. All claims must be received by Sustainable Web Hosting within 14 days of the original payment date.
WARRANTIES
7.1. Each party warrants that it has full capacity and authority, all necessary licences, permits and consents, has taken all necessary actions to enable it lawfully to enter into this Agreement, and that those signing this Agreement are duly authorised to bind the party for whom they sign.
7.2. Sustainable Web Hosting warrants that the Services shall be carried out using reasonable care and skill in accordance with good industry practice.
7.3. All other representations or warranties (whether written or oral, express or implied by statute, common law or otherwise howsoever) than those expressly set out in this Agreement are hereby excluded. In particular, but without prejudice to the generality of the foregoing, Sustainable Web Hosting makes no representation or gives any warranty (whether express or implied, statutory or otherwise), and will have no liability, regarding the fitness of the Services for any purpose, whether or not such purpose is disclosed to Sustainable Web Hosting.
INTELLECTUAL PROPERTY RIGHTS
8.1. The Customer acknowledges and agrees that Sustainable Web Hosting and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights or any other rights or licences to, in or in respect of the Services or any related documentation or software. All rights not expressly granted to the Customer under these Terms are reserved by Sustainable Web Hosting or its licensors.
8.2. Sustainable Web Hosting acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in any data, software or other materials provided by the Customer to Sustainable Web Hosting in connection with the provision of the Services (“Customer Materials”). Except as expressly stated herein, this Agreement does not grant Sustainable Web Hosting
any Intellectual Property Rights or any other rights or licences to, in or in respect of any Customer materials.
8.3. Nothing in this Agreement shall be construed so as to prevent Sustainable Web Hosting from using in the furtherance of its own business general know-how or expertise gained in its performance of this Agreement, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of clause 9 or infringement of any Intellectual Property Right.
TERMINATION & SUSPENSION
9.1. Either party may terminate this Agreement at any time on written notice to the other if that other:
9.1.1. is in material breach of any of the terms of this Agreement or commits a series of persistent minor breaches which, when taken together, amount to a material breach, and either that breach is incapable of remedy, or the other party fails to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach; or
9.1.2. upon the other party passing a resolution for winding-up or having a petition to wind up presented against it or going into liquidation, whether voluntary or compulsory (save for the purposes of amalgamation or reconstruction where the amalgamated or reconstructed company agrees to adhere to this Agreement) or suffering a winding-up order being made against it or going into administration; or
9.1.3. if the other party proposes a voluntary arrangement within the meaning of Section 1 or Section 253 of the Insolvency Act 1986, or an interim order is made in relation to the Supplier under Section 252 of the Insolvency Act 1986, or any other steps are taken or negotiations commenced by that party or any of its creditors with a view to proposing any kind of composition, compromise or arrangement involving the other party and any of its creditors;
9.1.4. if a receiver or administrative receiver or administrator is appointed or an encumbrancer takes possession of the undertaking or assets (or any part thereof) of the other party; or
9.1.5. if the other party is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986 or any statutory re-enactment or modification thereof) or ceases to or threatens to cease to carry on its business or enters into a composition with its creditors; or
9.1.6. if the other party suffers an event in a country or jurisdiction other than the United Kingdom which has a similar effect to the events described in clauses 9.1.2, 9.1.3, 9.1.4 or 9.1.5 in the United Kingdom.

9.2. Sustainable Web Hosting shall be entitled to terminate this Agreement and the provision of the Services if any undisputed Charges remain unpaid fourteen (14) days after the Due Date. 9.3. Termination by either party in accordance with the rights contained in this clause 9 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.
9.4. The Customer may terminate this Agreement on no less than ten (10) days’ written notice to Sustainable Web Hosting during any Variation Notice Period, as defined in clause 2.18.2 above or clause 16 below, as appropriate.
9.5. On termination for any reason:
9.5.1. all rights granted to the Customer under this Agreement shall cease; 9.5.2. the Customer shall cease all activities authorised by this Agreement; 9.5.3. all data will be removed from the relevant server(s); and
9.5.4. the Customer shall immediately pay any sums due to Sustainable Web Hosting under this Agreement.
9.6. Without prejudice to any right to terminate which Sustainable Web Hosting might have, Sustainable Web Hosting will be entitled to suspend any Services without notice if:
9.6.1. any undisputed Charges remain unpaid seven (7) days after the Due Date or the Customer is otherwise in material or persistent breach of
this Agreement; or
9.6.2. the Customer does or allows to be done anything which jeopardises the Services or any network to which the Customer is connected from time
to time.
9.7. Suspension shall not affect the liability of the Customer to pay Charges or any other sums or payments payable to Sustainable Web Hosting in respect of any suspended Services, which shall remain chargeable throughout the period of any suspension. Sustainable Web Hosting shall not be liable for any losses or inconvenience caused to the Customer or any third party by the suspension or cancellation of any Services.
9.8. Sustainable Web Hosting shall during the period of any suspension be entitled to refuse to release any IP Address of the Customer allocated by Sustainable Web Hosting.
9.9. On suspension of any Services by Sustainable Web Hosting in accordance with clause 9.6, Sustainable Web Hosting reserves the right to charge the Customer a fee for the reinstatement of those Services, in a sum appropriate to the nature and scope of the Services concerned.
CONFIDENTIALITY
10.1. The provisions of this clause 10 shall remain in full force and effect notwithstanding termination of this Agreement for any reason.
10.2. Each party shall treat in confidence the other’s Confidential Information, and shall not disclose any of the other’s Confidential Information to any other person other than its own employees under conditions of confidentiality and then only to the extent required for proper performance of its obligations under this Agreement.
10.3. Nothing in this Agreement shall be construed to impose a confidentiality obligation on a party in respect of:
10.3.1. any matter appearing in public literature or otherwise within the public domain, unless the information is in the public domain as a result of a breach of a contract by that party; or

10.3.2. any information or knowledge possessed by that party prior to disclosure to it by the other or rightfully acquired from sources other than the other party; or
10.3.3. any information or knowledge acquired in a bona fide arm’s length transaction by the party making the disclosure; or
10.3.4. information which is required by law or a court of competent jurisdiction to be publicly released.
10.4. In protecting Confidential Information received from the other party, each party shall employ a reasonable standard of care, which shall be no less than the standard of care employed in protecting its own Confidential Information. Both parties will establish and maintain such security measures and procedures as are reasonably practicable to provide for the safe custody of the other party’s Confidential Information in its possession and to prevent unauthorised access thereto or use thereof.
10.5. Upon any termination of this Agreement, each party shall cause all Confidential Information belonging to the other party in whatever medium the same is recorded or held to be returned, deleted or destroyed according to the written instructions of the other party.
LIMITATION OF LIABILITY
11.1. This clause 11 prevails over all other clauses in this Agreement.
11.2. Sustainable Web Hosting shall not be liable to the Customer or be deemed to be in breach of its obligations under any provision in this Agreement:
11.2.1. to the extent that any delay in performing or failure to perform Sustainable Web Hosting’s obligations is due to a failure by the Customer to perform its obligations under this Agreement or if delay results from a failure by the Customer to comply with reasonable requests by Sustainable Web Hosting for instructions, information or action required by it to perform its obligations within a reasonable time limit; or
11.2.2. for the consequences of any acts or omissions of the Customer, its employees or agents or other third party suppliers or manufacturers engaged by or on behalf of the Customer (other than third party sub contractors or suppliers selected by Sustainable Web Hosting); or
11.2.3. if the Customer is in default of any of its payment obligations under this Agreement.
11.3. Sustainable Web Hosting does not exclude or limit its liability to the Customer for:
11.3.1. death or personal injury caused by its negligence;
11.3.2. fraudulent misrepresentation;
11.3.3. breach of third party intellectual property rights;
11.3.4. breach of any obligation of confidentiality.
11.4. Sustainable Web Hosting’s liability in respect of loss or damage to tangible property of the Customer caused by its negligence shall not exceed £100.
11.5. Subject to clauses 11.2, 11.3 and 11.4, Sustainable Web Hosting’s liability in respect of loss or damage flowing from any one event or series of connected events shall not exceed:
11.5.1. a sum equal to the total Charges payable by the Customer under this Agreement during the period of 12 months immediately prior to the
event giving rise to the claim.
however that liability arises including (without limitation) breach of contract, tort, misrepresentation or breach of statutory duty, provided that Sustainable Web Hosting shall not be liable to for any loss not flowing directly and naturally in the ordinary course of events from its own act or omission.
11.6. In no event will Sustainable Web Hosting be liable to the Customer (whether in contract, tort, negligence or otherwise) for:
11.6.1. any direct:
(a) loss of profit; or
(b) loss of revenue; or
(c) loss of use; or
(d) loss of anticipated savings; or
(e) loss of goodwill; or
(f) loss of reputation or opportunity; or
(g) financial or economic loss; or
(h) loss of data;
11.6.2. any indirect or consequential loss or damage, costs or expenses whatsoever, and howsoever arising out of or in connection with this agreement; whether such damages were reasonably foreseeable or actually foreseen.
11.7. Sustainable Web Hosting has no obligation, duty or liability to the Customer in contract, tort, for breach of statutory duty or otherwise beyond that of a duty to exercise reasonable skill and care, and shall have no such liability (other than as provided in the warranties set out in this Agreement) regarding the fitness for purpose, quality or merchantability of any Services, whether express or implied, statutory or otherwise.
DATA PROTECTION
12.1. If Sustainable Web Hosting obtains personal data (as defined by Data Protection Law) from the Customer solely in order to provide the Services e.g. the name and contact details of a representative of the Customer, Sustainable Web Hosting shall be a data controller with respect to such personal data.
12.2. If in the course of providing the Services Sustainable Web Hosting processes personal data of the Customer as defined by Data Protection Law:
12.2.1. the Customer will be the controller and Sustainable Web Hosting will be the processor in respect of such personal data;
12.2.2. the parties shall comply with the obligations set out in the Data Protection Policy, which shall be incorporated into this Agreement.

FORCE MAJEURE
13.1. Subject to the provisions of this clause 13, neither party will be liable for delay in performing obligations or for failure to perform obligations if the delay or failure resulted from circumstances beyond its reasonable control including but not limited to, act of God or governmental act, war, flood, fire, explosion, accident, civil commotion, or transportation or communications problems, or impossibility of obtaining materials (“Force Majeure”). For the avoidance of doubt, nothing in this clause 13 shall excuse the Customer from any payment obligations under this Agreement.
13.2. If the Force Majeure prevails for a continuous period in excess of twenty (20) Working Days, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing on such alternative arrangements as may be fair and reasonable.
13.3. If either party is prevented from performance of its obligations for a continuous period in excess of forty (40) Working Days, the other party may on written notice on the party so prevented terminate this Agreement with immediate effect, in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.
13.4. The party claiming to be prevented or delayed in the performance of any of its obligations under this Agreement by reason of Force Majeure shall use reasonable endeavours to bring the Force Majeure event to a close or to find a solution by which the contract may be performed despite the continuance of the Force Majeure event.
WAIVER
14.1. No failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right or remedy to which it is entitled under it, shall constitute a waiver thereof or cause a diminution of the obligations established by this Agreement.
14.2. A waiver of any default shall not constitute a waiver of any other default. 14.3. No waiver of any of the provisions of this Agreement shall be effective unless it is expressed to be a waiver communicated by notice, in accordance with the provisions of clause 18 (Notices).
SEVERABILITY
15.1. If any provision of this licence agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
AMENDMENTS
Sustainable Web Hosting may vary this Agreement providing no less than thirty (30) days’ written notice to the Customer (“Variation Notice Period”).
THIRD PARTY RIGHTS
Unless otherwise expressed to the contrary in this Agreement, nothing in this Agreement confers or purports to confer on any person who is not a party to it any right to enforce any of its terms.
NOTICES
18.1. Any notice required to be given under or pursuant to this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post (except in the event of a current industrial dispute affecting the postal service, when the relevant party shall serve by another means permitted in this clause 18) or by fax or by email to the other party marked for the attention of the recipient’s Contact Point at the address or fax number notified to the other party for that purpose from time to time.
18.2. A notice delivered by hand will be deemed to have been served when delivered. A correctly addressed notice sent by post will be deemed to have been delivered 48 hours after the time of despatch. A notice sent by fax or email will be deemed to have been delivered on the date of transmission. In proving the service of the notice, it shall be sufficient to prove:
18.2.1. in the case of a letter sent by post, that such letter was properly delivered or stamped, addressed and placed in the post (as the case
may be); and
18.2.2. in the case of a fax or email, that the notice was duly despatched to the current fax number or email address of the addressee and no indication of non-delivery was received by the sender.
DISPUTE RESOLUTION
19.1. Except as otherwise provided, in the event of any dispute arising out of or in relation to this Agreement, the parties must first use their respective best endeavours to consult and negotiate with each other in good faith and, recognising their mutual interests, attempt to reach a settlement of the dispute satisfactory to both parties. To such end the parties must within ten (10) Working Days of a dispute arising convene a meeting between their authorised representatives and any other relevant members of management having regard to the matter under discussion (together, “Appointed Persons”) to attempt to resolve the dispute.
19.2. If the Appointed Persons agree upon a settlement of the dispute, they will sign a statement setting out its terms and the parties will ensure that it is fully and promptly carried out. If the Appointed Persons do not reach such a settlement within twenty (20) Working Days of the meeting convened in accordance with clause 19.1, the parties will refer the dispute to mediation before having recourse to litigation. The mediation shall be conducted in accordance with an Alternative Dispute Resolution procedure recommended by the Centre for Effective Dispute Resolution, London (the “ADR Procedure”).
19.3. If the matter has not been resolved by the ADR Procedure within thirty (30) days of the initiation of that procedure, or if either party will not participate in the ADR Procedure, the dispute shall be decided by the English Courts in accordance with clause 22.

ASSIGNMENT AND SUBCONTRACTING
20.1. The Customer shall not sub-licence assign or transfer the benefit or burden of this Agreement in whole or in part without the prior written consent of Sustainable Web Hosting.
20.2. Sustainable Web Hosting may assign, charge or otherwise transfer any of its rights or obligations under this Agreement, provided it gives written notice to the Customer of any sub-licence, assignment, charge or other transfer.
20.3. Sustainable Web Hosting may sub-contract the performance of any of its duties under this Agreement, but shall remain responsible for the acts, defaults or neglect of any sub-contractor as if they were its own.
GENERAL
21.1. This Agreement and any document referred to in it constitute the whole and only agreement and understanding between the parties relating to its subject matter and supersedes and extinguishes any drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, between the parties in connection with the subject matter of this Agreement whether existing prior to or at the same time as this Agreement. The express terms of this Agreement are instead of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
21.2. Any purchase order issued by the Customer will be accepted by Sustainable Web Hosting solely for the purposes of order confirmation and referencing invoices, and no terms or conditions included in, referred to in or attached to any such purchase order will have any effect.
21.3. The parties acknowledge and agree that the limitations and exclusions of liability contained in this Agreement are reasonable in all the circumstances.
21.4. Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between the parties; or to constitute either of the parties as the agent of the other party.
21.5. This Agreement may be executed in any number of counterparts each of which when executed by one or more of the parties hereto shall constitute an original but all of which shall constitute one and the same instrument.
21.6. Nothing in this Agreement will preclude either party from seeking injunctive relief to prevent or stop a breach of confidence or an infringement of intellectual property rights.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with English law and, subject to clause 19, the parties irrevocably agree that the courts of England shall have exclusive jurisdiction over any claim or matter or to settle any dispute which may arise out of or in connection with this Agreement and that accordingly any proceedings may be brought in such courts.

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