PILOTBEAN LIMITED - HOSTING SERVICES AGREEMENT
DATED: ......................... (“Effective Date”)
(1) PilotBean Ltd (registered number 05182324), a company registered in England and Wales whose registered office is located at Unit 13 (The Brew) Shoreditch Stables, 138 Kingsland Rd, London, E2 8DY (“PilotBean”); and
(2) Customer’s name (registered number [insert company no]), a company registered in England and Wales whose registered office is located at [insert address] (“Customer”)
(Together described as "the parties")
IT IS HEREBY AGREED between the parties as follows:
“Acceptable Use Policy” means the rules of the Hosting Provider attached hereto at Schedule 3;
“Agreement” means this Hosting Services Agreement between the parties, the Service Order Form, the Service Level Agreement and the Acceptable Use Policy;
“Bandwidth” means the bandwidth to be provided by PilotBean as part of the Services, as set out in the Service Order Form;
“Billing Period” means the period to which each payment of the Fees relates, as set out in the Service Order Form;
“Confidential Information” has the meaning given to it in clause 9;
“Fees” means the fees set out in the Service Order Form;
“Firewall Protection” means the firewall protection set out in the Service Order Form;
“Hosting Provider” means Associated Networks (UK) Ltd, the third party supplier of the hosting services which PilotBean provides to the Customer under this Agreement;
“Infrastructure” means the proprietary software and hardware and documentation of PilotBean and the Hosting Provider and any related Intellectual Property Rights and any improvements to any of it;
“Initial Term” means the minimum term for which PilotBean shall provide the Services, as set out in the Service Order Form;
“Intellectual Property Rights” means all intellectual property rights, including patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;
“Rules” means those in this Agreement and the Acceptable Use Policy;
“Server Space” means the server space to be provided by PilotBean as part of the Services, as set out in the Service Order Form;
“Services” means the services to be provided by PilotBean as set out in the Service Order Form;
“Service Commencement Date” means the date on which PilotBean will commence providing the Services, as set out in the Service Order Form;
“Service Levels” means the service levels in accordance with which the Services shall be provided, as set out in the Service Level Agreement;
“Service Level Agreement” means the service level agreement set out at Schedule 2 hereto
“Service Order Form” means the service order form set out at Schedule 1 hereto;
“Web Solution” means the Customer’s website or other materials in respect of which PilotBean are providing the Services, as set out in the Service Order Form; and
“Working Hour” means an hour between 9.00am to 6.00pm, Monday to Friday (excluding bank and public holidays).
2. CONTRACT CREATION AND TERM
This Agreement comes into force with effect from the Service Commencement Date. PilotBean will provide the Services from the Service Commencement Date throughout the Initial Term and continue afterwards until either party terminates the Agreement in accordance with clause 8.
3. PROVISION OF SERVICES
3.1: In consideration of payment of the Fees, the Customer’s compliance with the Rules (together with all other reasonable instructions by PilotBean) and all the terms of this Agreement, PilotBean will use its reasonable endeavours to perform the Services in accordance with the Service Levels throughout both the Initial Term and thereafter until this Agreement is terminated.
3.2: PilotBean reserves the right to make changes to the Rules and/or the Services and to establish procedures for the use of the Services in the provision of 15 days’ notice to the Customer.
3.3: PilotBean or the Hosting Provider may monitor, intercept and/or block any content belonging to the Customer or users of the Customer’s Web Solution, content or data for the purposes of ensuring that the Services are used lawfully. If PilotBean is asked to permit any relevant authority to inspect the content, the Customer agrees that PilotBean or the Hosting Provider can do so.
3.4: PilotBean will use its reasonable endeavours to provide access to the Server Space to the Customer as soon as PilotBean can and within any agreed time frame as set out in the Service Order Form.
3.5: PilotBean does not guarantee that the Services will be free from Faults, and the Customer expressly agrees that minor errors are not a breach of this Agreement. In the event that the Customer tells PilotBean in writing of a Fault, PilotBean shall use reasonable endeavours to rectify the Fault in accordance with the terms set out in the Service Level Agreement.
3.6: Although PilotBean does not warrant that the Services or the technology to provide them will be free from viruses, PilotBean and/or the Hosting Provider will regularly check for the presence of viruses.
4.1: On the Service Commencement Date PilotBean will send the Customer an invoice in respect of the Fees payable during the first Billing Period.
4.2: After that, PilotBean will send the Customer an invoice for the Fees payable during each subsequent Billing Period on the first day of such Billing Period.
4.3: All payments shall be made in Pounds Sterling on or before the invoice date. All fees are exclusive of applicable Value Added Tax or other relevant taxes.
4.4: PilotBean reserves the right to vary the Fees after the Initial Term and/or amend its payment terms or billing practices by giving the Customer not less than 30 days prior written notice to take effect on the last day of the month following the month in which such notice is given. After the Initial Term, PilotBean may adjust the Fees no more often than once per twelve (12) month period.
4.5: If the Customer does not pay within 28 days after the invoice date PilotBean reserves the right to charge interest at 5% per year above Lloyds TSB plc base lending rate from the invoice date until the date of actual payment and on at least 3 days’ notice, suspend any or all of the Services until payment of the invoice, any interest above, and any sums due below are received by PilotBean.
5. CUSTOMER OBLIGATIONS
5.1: The Customer shall provide and maintain his/its own equipment, software and communications lines, including any public lines required by the Customer properly to access the Customer’s Web Solution, content or data. Unless otherwise agreed by PilotBean and the Customer under separate development or other contracts, the Customer will be solely responsible for any changes to the Customer’s Web Solution.
5.2: All Internet use is subject to security vulnerabilities and the Customer acknowledges that a security breach could be disastrous for the Customer as well as for PilotBean. The Customer’s use of the Internet is at the Customer’s own risk. PilotBean requires the Customer to use at least reasonable security precautions in the light of its business and the Services the Customer is using. The Acceptable Use Policy describes in detail the security precautions which PilotBean requires the Customer to take.
5.3: Services are provided subject to the Customer’s proper use and therefore, the Customer undertakes that its (and its agent’s and subcontractor’s) use of the Services will not:
5.3.1 Be in breach of the Rules and any other applicable laws, codes or regulations including data protection;
5.3.2 Involve theft, fraud, drug-trafficking, money-laundering and/or terrorism;
5.3.3 Incite violence, sadism, cruelty or racial hatred;
5.3.4 Facilitate prostitution or paedophilia;
5.3.5 Be defamatory, pornographic, obscene, indecent, abusive, offensive or menacing;
5.3.6 Introduce intentionally or knowingly into the Services any virus or other contaminating program or fail to use an up to date virus-scanning program on all material downloaded from the Services;
5.3.7 Be used to send unsolicited e-mails (“spam”);
5.3.8 Disclose your login names, passwords and other confidential information relating to your access to the Services;
5.3.9 “Spoof” other computer networks and users; or
5.3.10 Unreasonably interfere with other customers’ use of the Services.
The Customer agrees to indemnify PilotBean against all liability it incurs as a result of the Customer’s breach of any of paragraphs 5.3.1 to 5.3.10.
5.4: The Customer agrees that PilotBean or the Hosting Provider may suspend Services without telling the Customer and without liability if:
(i) PilotBean or Hosting Provider believe that the Services are being used in violation of Rules;
(ii) the Customer does not cooperate with PilotBean’s investigation of any suspected violation of the Rules;
(iii) there is an attack on the Customer’s servers or other event for which PilotBean or the Hosting Provider reasonably believe that the suspension of Services is necessary to protect their network or other customers, or
(iv) if required by law or regulation.
5.5: The Customer acknowledges that in the course of providing the Services, PilotBean and the Hosting Provider will be required to electronically reproduce the Customer’s content by making transitory electronic copies.
5.6: The Customer agrees that the use of third party products in accordance with their standard contracts is at the Customer’s sole risk and PilotBean is not responsible in any way for their performance, features or failures.
5.7: The Customer agrees to reimburse PilotBean for its costs and expenses arising from any breach of the Rules or the breach of a third party’s rights by the Customer or clients of the Customer or user’s content, data or equipment.
6. OWNERSHIP RIGHTS
PilotBean and the Customer agree that this Agreement does not transfer any rights of ownership in the technology or Intellectual Property Rights of the other party or its suppliers or licensors. The Customer agrees not to try to access PilotBean’s and/or its third party suppliers’ source code or other trade secrets.
7.1: PilotBean’s sole liability in respect of any failure to comply with the Service Levels shall be a service credit in the sum of the Fees paid in respect of the time during which the Services are unavailable. Such service credit shall be included in the invoice for the next Billing Period.
7.2: PilotBean will not be liable in any way for any increased costs or expenses, loss of profit, business contracts, revenues or expected savings or any special, indirect or consequential damage whatsoever arising out of any provision or use of the Services or of any error or defect in either or of the performance, non-performance or delayed performance by PilotBean under this Agreement.
7.3: PilotBean’s total aggregate liability for any loss or damage arising out of, or in connection with, the Services or this Agreement will not exceed the amount equal to the Fees received by PilotBean during the previous 3 months of this Agreement.
7.4: Nothing in this Agreement excludes or limits PilotBean’s liability for death or personal injury caused by PilotBean’s negligence or for fraudulent misrepresentation.
7.5: To the maximum extent permitted by applicable law, the Customer agrees that the Services are used at the Customer’s sole risk and are provided ‘as is’ without warranty of any kind, whether express or implied, including, but not limited to, any warranties (if any) arising by statute or otherwise in law, all of which are hereby excluded.
PilotBean does not guarantee, warrant or make any representation that the Services or any related technology will meet the Customer’s requirements, or be uninterrupted or error-free, or that defects will be corrected.
PilotBean does not guarantee, warrant or make any representation regarding the use or the results of the use of the Services or related technology in terms of correctness, accuracy, reliability, currentness or otherwise. No oral or written information or advice given by PilotBean or its authorised representatives shall create a warranty.
7.6: PilotBean will not be deemed to be in breach of this Agreement or be liable for any delay, failure of performance or interruption of the Services to the Customer or loss caused by anything which is outside PilotBean’s reasonable control.
The Customer shall indemnify PilotBean against any liability PilotBean incurs to third parties resulting from the Customer’s use of the Services.
PilotBean agrees to provide the Firewall Protection, but PilotBean is not liable to the Customer if there is any unauthorised access to the Customer’s Web Solution, content or data through use of PilotBean’s Services unless the access was caused by PilotBean’s gross negligence.
8.1: At the end of the Initial Term either party to this Agreement may end this Agreement without reason by giving at least 30 days’ notice in writing.
8.2: PilotBean may end this Agreement by notice in writing with immediate effect if the Customer:
8.2.1 breaches this Agreement and, if capable of being fixed, the Customer has not fixed it within 7 days of PilotBean’s notice telling the Customer to fix it; or
8.2.2 is declared bankrupt or is unable to pay its debts or enter into compulsory or voluntary liquidation or compound with or convene a meeting of your creditors or have a receiver or manager or an administrator appointed or cease for any reason to carry on business or take or suffer any similar action which in PilotBean’s opinion means that the Customer may be unable to pay its debts.
8.3: On termination of this Agreement for whatever reason
(i) the rights and/or obligations which have accrued prior to termination shall not be effected;
(ii) in the event that such termination occurs prior to the end of the Initial Term, the Customer shall pay all Fees and Supplemental Fees due up to the end of the Initial Term;
(iii) all confidential information, passwords and documentation shall be returned to PilotBean; and
(iv) the Customer will give up any Internet protocol numbers addresses or address blocks allocated to the Customer and if the Customer fails to give up any allocated Internet protocol and related products PilotBean may change or remove them; and
(v) PilotBean shall have no further duty to provide Services to the Customer.
9.1: Each party agrees to use and to procure that its employees, agents and sub-contractors use all reasonable endeavours to ensure that all data and information relating to the other's business provided to or acquired by it, its employees, agents or sub-contractors ("Receiving Party") under this Agreement, including but not limited to the Infrastructure, data, drawings, specifications, and documentation, are treated as secret and confidential and will not be disclosed to any third party without the prior written consent of the other party unless:
9.1.1 The information was already lawfully known or became lawfully known to the Receiving Party independently of its involvement in this Agreement, or
9.1.2 The information is or becomes within the public domain other than due to the wrongful disclosure by the Receiving Party, or
9.1.3 Disclosure or use is necessary for the proper and effective performance of the Receiving Party's rights under this Agreement, or
9.1.4 Disclosure is required by a person or body having a legal right, duty or obligation to have access to the information and then only in pursuance of such a legal right, duty or obligation, or disclosure is to those employees, agents or sub-contractors who need to know the information in order to perform obligations under this Agreement.
9.2: The provisions of this clause 9 shall survive the termination of this Agreement.
10. LAW AND DISPUTES
10.1: This Agreement shall be governed by English law.
10.2: Each party agrees to attempt in good faith to resolve any dispute first by discussing it. If the dispute cannot be resolved within a period of 30 days then each party agrees to the exclusive jurisdiction of the English Courts.
11.1: This Agreement together with the Service Order Form and the Rules supersedes all prior agreements, arrangements and understandings and is the entire agreement between PilotBean and the Customer in relation to the subject matter of this Agreement. Any changes must be agreed in writing and signed by authorised representatives of both parties.
11.2: If any part of this Agreement is unenforceable the remainder will continue to apply.
11.3: PilotBean and the Customer shall not be considered to be partners nor shall either party be responsible for any act or failure to act of the other or have the right or authority to bind the other in any way.
11.4: A third party shall not have any rights under this Agreement.
11.5: The Customer may not transfer its rights or duties under this Agreement without the prior written consent of PilotBean. PilotBean may transfer its rights or duties and may also delegate some of its rights or duties to third parties.
11.6: Any notice to PilotBean shall be given at the address given at the beginning of this Agreement by letter or by email to email@example.com. Any notice to the Customer shall be given at the address given in the Service Order Form on the last page of this Agreement by letter or by email. A letter shall be delivered by recorded delivery post and will be deemed to have been given 3 working days after the day on which it was sent. Emails will be deemed to have been received by 5pm on the date sent.
11.7: If a party does not enforce a right available to it under this Agreement in any particular instance, then that will not prevent it from enforcing that right in future or in any other instance.
SERVICE LEVEL AGREEMENT
Subject to clauses 1.2 and 1.3 of this Service Level Agreement, the Services shall be available for a minimum 99.5% of each month.
The Services may be unavailable for a maximum of five (5) hours per month for planned and emergency maintenance of the Infrastructure. PilotBean shall provide reasonable notice to the Customer of any planned outage and will use its reasonable endeavours to procure that such planned outage takes place between the hours of 6am and 11am on Saturdays or Sundays.
PilotBean reserves the right to undertake unplanned emergency outages at any time and without notice, to prevent harm, damage or loss and to resolve urgent service Faults. PilotBean will use reasonable endeavours to notify the Customer as soon as reasonably practical of any unplanned outage and to keep unplanned outage to a minimum.
The availability of the Services, as set out in clause 1.1 of this Service Level Agreement, shall be subject to the following:
Any interruption to the Service lasting less than five (5) minutes continuous duration;
Any interruption reasonably demonstrated to be caused by a fault in the public Internet that is beyond the reasonable control of PilotBean (excluding any faults in the Infrastructure);
Any interruption reasonably demonstrated to be caused by a fault in the Customer’s software or equipment.
2. TECHNICAL SUPPORT
2.1: PilotBean will use its reasonable endeavours to correct all failures of the Services to perform in accordance with the Documentation and all interruptions to and degradations of the usual functionality of the Services (“Faults”).
PilotBean shall use reasonable endeavours to respond within 2 Working Hours in respect of all Faults reported in accordance with clause 2.3 of this Service Level Agreement.
The Customer shall report Faults to PilotBean by telephone or email as soon as a Fault is detected and shall include sufficient material and information to enable PilotBean to duplicate the problem, which may include, as applicable, but not necessarily be limited to:
2.3.1 A clear and accurate description of the Fault;
(i) The area of the Services and business to which it relates;
(ii) What function was being performed when the Fault occurred;
(ii) The error message displayed, if any;
(iv) The sequence of events leading up to the occurrence of the Fault; and
(v) Any other information relating to the Services or the Fault which PilotBean requires to perform its obligations hereunder.
The technical support services provided hereunder shall not include the diagnosis and rectification of any Fault resulting from:
The improper use operation or neglect of the Services or the equipment upon which it is run;
The failure by the Customer to implement recommendations in respect of or solutions to Faults previously advised by PilotBean;
(i) Any repair adjustment alteration or modification of the Services or Infrastructure by any person other than PilotBean without PilotBean’s prior consent;
(ii) The use of the Services for a purpose for which they were not designed;
(iii) Rectification of lost or corrupted data arising for any reason other than PilotBean’s own negligence;
(iv) Loss or damage caused directly or indirectly by operator error or omission;
(v) A fault in Customer or third party software or applications or any upgrade or new release in respect thereof;
(vi) A fault in the equipment or in any other software operating in conjunction with or integrating with the Services;
(vii) A fault that cannot be replicated by PilotBean.
ACCEPTABLE USE POLICY
1. INTERNET ABUSE
You may not use our network to engage in illegal, abusive, or irresponsible behaviour, including:
1.1: unauthorised access to or use of data, Services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network;
(i) monitoring data or traffic on any network or system without the authorisation of the owner of the system or network;
(ii) interference with Service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
(iii) use of an Internet account or computer without the owner’s authorisation;
(iv) collecting information by deceit, including, but not limited to Internet scamming (tricking other people into releasing their passwords), password robbery, phishing, security hole scanning, and port scanning;
(v) use of any false, misleading or deceptive TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting;
(vi) use of the Service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
(vii) any activity or conduct that is likely to result in retaliation against our network;
(viii) any activity or conduct that is likely to be in breach of any applicable laws, codes or regulations including data protection;
(ix) introducing intentionally or knowingly into the Service any virus or other contaminating program or fail to use an up to date virus-scanning program on all material downloaded from the Services;
(x) sending unsolicited e-mails (“spam”);
(xi) Misrepresenting yourself as other computer networks and users; or
(xii) any activity or conduct that unreasonably interferes with our other customers’ use of our Services.
2. BULK COMMERCIAL E-MAIL
You may not use PilotBean servers to directly send bulk mail. You may use a PilotSend Email Marketing Service for this purpose subject to the Terms and Conditions for this service.
3. UNSOLICITED E-MAIL
You may not send any unsolicited e-mail, whether commercial or non-commercial in nature, to any person who has indicated that they do not wish to receive it.
4. VULNERABILITY TESTING
You may not attempt to probe, scan, penetrate or test the vulnerability of a PilotBean system or network or to breach our security or authentication measures, whether by passive or intrusive techniques without our prior written consent.
5. NEWSGROUP, CHAT FORUMS, OTHER NETWORKS
5.1: You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.
5.2: You must comply with the rules of any other network you access or participate in when using our Services.
6. OFFENSIVE CONTENT
6.1: You may not publish, display or transmit via our network and equipment any content that we reasonably believe:
6.1.1 Constitutes or encourages child pornography or is otherwise obscene, sexually explicit or morally repugnant;
6.1.2 is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
6.1.3 is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
6.1.4 is defamatory or violates a person’s privacy;
6.1.5 creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement bodies;
6.1.6 improperly exposes trade secrets or other confidential or proprietary information of another person;
6.1.7 is intended to assist others in defeating technical copyright protections;
6.1.8 infringes another person’s trade or service mark, patent, or other property right;
6.1.9 is discriminatory in any way, including by way of sex, race, or age discrimination;
6.1.10 facilitates any activity or conduct that is or may be defamatory, pornographic, obscene, indecent, abusive, offensive or menacing;
6.1.11 involves theft, fraud, drug-trafficking, money laundering or terrorism;
6.1.12 is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to us; and
6.1.13 is otherwise malicious, fraudulent, or may result in retaliation against us by offended viewers.
6.2: Content “published or transmitted” via our network or equipment includes Web content, e-mail, bulletin board postings, chat, and any other type of posting, display or transmission that relies on the Internet.
7. EXPORT CONTROL
The Services may not be used by persons, organisations, companies or any such other legal entity or unincorporated body, including any affiliate or group company, which violates export control laws (including in any manner which would constitute a breach of Section 8 of the General Terms and Conditions) and/or is:
7.1: involved with or suspected of involvement in activities or causes relating to:
7.1.1 illegal gambling;
7.1.3 narcotics trafficking;
7.1.4 arms trafficking or the proliferation of weapons of mass destruction;
including any affiliation with others whatsoever who sponsor or support the above such activities or causes.
8. COPYRIGHTED MATERIAL
8.1: You may not use our network or equipment to download, publish, distribute, or otherwise copy in any manner any text, music, software, art, image or other work protected by copyright law unless:
8.1.1 you have been expressly authorised by the owner of the copyright for the work to copy the work in that manner; and
8.1.2 you are otherwise permitted by copyright law to copy the work in that manner.
8.2 We will terminate the Service of copyright infringers in accordance with the HSA.
9. COOPERATION WITH INVESTIGATIONS AND LEGAL PROCEEDINGS
9.1: We may monitor any content or traffic belonging to you or to users for the purposes of ensuring that the Services are used lawfully. We may intercept or block any content or traffic belonging to you or to users where Services are being used unlawfully or not in accordance with this AUP and you do not stop or provide us with an acceptable reason within 7 days of receipt of a formal written notice from us.
9.2: We may, without notice to you:
9.2.1 Report to the appropriate authorities any conduct by you that we believe violates applicable law, and
9.2.2 Provide any information we have about you, or your users or your traffic and cooperate in response to a formal or informal request from a law enforcement or regulatory agency investigating any such activity, or in response to a formal request in a civil action that on its face meets the requirements for such a request.
9.3: If we are legally required to permit any relevant authority to inspect your content or traffic, you agree we can provided however that where possible without breaching any legal or regulatory requirement we give you reasonable prior notice of such requirement and an opportunity to oppose and/or attempt to limit such inspection in each case to the extent reasonably practicable.
10. SHARED SYSTEMS
You may not use any shared system provided by PilotBean in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.
11.1: You must have valid and current information on file with your domain name registrar for any domain hosted on our network.
11.2: You may only use IP addresses assigned to you by our staff.
11.3: You may not take any action which directly or indirectly results in any of our IP space being listed on any abuse database.
11.4: You agree that if you register a DNS record or zone on PilotBean managed or operated DNS servers or services for a domain of which you are not the registrant or administrative contact according to the registrars WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS system, PilotBean may modify, transfer, or delete such records or zones.
12. CONSEQUENCES OF VIOLATION OF AUP
You are strictly responsible for the use of your PilotBean Service in breach of this AUP, including use by your customers, and including unauthorised use that you could not have prevented. We will charge you our standard hourly rate for work on any breach of the AUP together with the cost of equipment and material needed to:
12.1: investigate or otherwise respond to any suspected violation of this AUP;
12.2: remedy any harm caused to us or any of our customers by the use of your Service in violation of this AUP;
12.3: respond to complaints; and
12.4: have our Internet Protocol numbers removed from any “blacklist”.
We are under no duty, and by this AUP are not deemed to undertake a duty, to monitor or police our customers’ activities and we disclaim any responsibility for any misuse of our network.