1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
| “Account” | means the details of the Client that are required and held by the Host to facilitate the provision of the Service to the Client including, but not limited to, identification and location details, payment details, username and password, and details of the Service provided to the Client; |
| “Business Day” | means a day (that is not a Saturday or Sunday) on which banks are open for business in the UK; |
| “Client Website” | means the website that the Host is hosting for the Client and refers to all parts of that website including, but not limited to, component files and related services such as email, and any processing of personal data as defined under UK GDPR; |
| “Data Breach” | means a security incident where personal data is accessed, disclosed, altered, or destroyed without authorisation. |
| “Data Processing” | means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction. |
| “Data Protection Authority” | means the independent public authority responsible for monitoring and enforcing compliance with data protection laws and regulations, such as the Information Commissioner’s Office (ICO) in the UK. |
| “Data Subject” | means an identified or identifiable natural person to whom personal data relates. |
| “Fee” | means the sum payable by the Client to the Host in order to receive the Host’s Service; |
| “Host” | means Ballyhoo Ltd a company registered in England under number 06914853 whose registered office is at Innovation Centre, 1 Devon Way, Longbridge Technology Park, Birmingham, B31 2TS; |
| “Hosting Hardware” | means all computer and networking equipment used by the Host in the provision of the Service including, but not limited to, servers and network infrastructure; |
| “Hosting Package” | means one of the Service packages described on the Host’s website and generally refers to the package selected by the Client; |
| “Hosting Software” | means all software used by the Host in the provision of the Service; |
| “Order” | means an order placed by the Client with the Host for the provision of the Service which shall contain details of the Client’s chosen Hosting Package; and |
| “Personal Data” | means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person. |
| “Service” | means the collective components of the Host’s website hosting service which includes, but is not limited to, the provision of internet connectivity, bandwidth, website storage, software, email accounts and data back-ups, in combination with the Client’s chosen Hosting Package and can refer either to thosecomponents as a whole or to specific parts as the context may require. |
| “UK GDPR” | means the Data Protection Act 2018, the United Kingdom’s implementation of the General Data Protection Regulation (GDPR). |
1.2 The clause headings used in this Agreement are used for convenience only and are not intended to affect the meaning or interpretation of the terms of this Agreement.
2. Service
2.1 Once the Client’s Order has been placed and processed the Host will use its best endeavours to commence provision of the Service as soon as reasonably possible. In any event the provision of the Service will commence no later than 5 Business Days after completion of the
Order.
2.2 In the event that the provision of the Service is delayed by more than 2 Business Days from completion of the Order the Host will contact the Client, giving the Client the option of waiting for a further 2 Business Days or receiving a full refund of all Fees paid. In the event of further delay, the process in this sub-clause 2.2 shall be repeated.
2.3 The Host is under no obligation to provide any Service that is not set out in the Client’s Order and the relevant Hosting Package unless the Host and Client enter into a new written Agreement for the provision of additional services.
2.4 The Host may, in its sole discretion, alter, improve or otherwise modify the Service provided that any such change will not significantly alter the provision of the Service to the Client or result in the removal of any features or services that form part of the Hosting Package. The
Client will be notified no later than 5 Business Days in advance of any planned changes and will receive full documentation of any action required on their part. No alterations to the Service shall affect the Fees payable by the Client.
2.5 Notwithstanding the provisions of sub-clause 2.4 the Host may take any action necessary to address or repair faults in Hosting Hardware or Host Software without any prior notice to the Client. If such faults or remedial action results in an interruption to the provision of the Service the Client will be notified in accordance with the provisions of clause 3 of this Agreement.
3. Availability of Service
3.1 The Host will use its best and reasonable endeavours to ensure that the Service is provided to the Client on a constant, uninterrupted basis.
3.2 Notwithstanding sub-clause 3.1, the Host shall not be liable for Hosting Hardware downtime or interruptions to the provision of the Service where such downtime or interruptions last for no more than 24 hours.
3.3 Where the Service is unavailable for more than 24 hours the Host will contact the Client and Provide reasons for the interruption or, where this is not possible due to an undiagnosed problem, state that the problem is undiagnosed but is being investigated.
3.4 Where Service interruption due to Hosting Hardware failure cannot be remedied within 1 Business Day the Host shall:
- 3.4.1 Transfer the Client Website to alternative Hosting Hardware in order to restore the provision of the Service; or where this is not possible
- 3.4.2 Notwithstanding sub-clause 8.1.1, from the end of the initial 24 hour period of Service interruption, keep a record of the number of whole days of Service interruption. Upon restoration of the Service, any partial days shall be rounded up and the Host will reimburse the Client for the interrupted period. The reimbursement will be calculated on a pro-rata basis and shall be deducted from the Client’s next invoice.
3.5 Where the provision of the Service is interrupted through the fault of any third party, the Host shall bear no responsibility or liability.
4. Fees and Payment
4.1 Fees for the different Hosting Packages offered by the Host are available on request. All charges payable by the Client shall be in accordance with the information provided.
4.2 The Host may at any time change the price of its Hosting Packages. The Client will not be subject to any additional charges or refunds during a 12 month period of Service provision. Any change in fees will be reflected in subsequent renewals of Service provision. The Host reserves the right to continue charging old fees for renewals where the old fee is higher.
4.3 The Client may, at any time, change their Hosting Package. If the Client chooses to do so, the Host will refund the original fee paid by the Client relative to the number of whole months out of the 12 month period of Service provision that remain. The client will be then begin a new 12 month period of Service provision in accordance with the fees for their new chosen Hosting Package.
4.4 The Client is required to pay all fees due within 14 days of invoice in order for provision of the Service to continue without interruption. All fees payable by the Client to the Host shall be paid in full, without set off or deduction. The Host reserves the right to suspend the Service or cancel the Client’s Order if fees are not paid on or before the due date.
5. Software Maintenance and Updates
5.1 The Client acknowledges the importance of keeping all software components associated with their website, including but not limited to plugins, themes, and website platforms such as WordPress, up to date.
5.2 The Client agrees to regularly monitor for updates to all software components used in the development and maintenance of their website, including plugins, themes, and the underlying website platform.
5.3 The Client shall promptly install updates to software components as they become available, including security patches, bug fixes, and feature enhancements, to ensure the ongoing stability, security, and performance of their website.
5.4 The Host may provide recommendations or guidance on software updates as part of the hosting service, but ultimately, the responsibility for ensuring all software components are kept up to date rests with the Client.
5.5 Failure to install updates in a timely manner may expose the Client’s website to security vulnerabilities, performance issues, and compatibility problems, for which the Host shall bear no responsibility.
5.6 The Host reserves the right to suspend or terminate the Service if the Client’s website is found to be using outdated or unsupported software components that pose a risk to the security or stability of the hosting environment.
5.7 The Client agrees to indemnify and hold harmless the Host against any claims, liabilities, losses, or damages arising from the Client’s failure to keep software components up to date, including any breaches of security resulting from outdated software.
5.8 The Client acknowledges that regular software maintenance and updates are essential for maintaining the integrity and security of their website, and agrees to adhere to best practices for software management as recommended by the Host or industry standards.
6. Changes to this Agreement
6.1 The Host reserves the right to change the terms of this Agreement and all other terms and conditions and policies which may affect Clients in order to comply with changes in the law.
6.2 The Client will be informed of any such changes and shall be deemed to be bound by them 1 calendar month after receiving the notice.
6.3 If the Client does not agree to be bound by the changes they may terminate this Agreement in accordance with Clause 12.
7. Client Undertakings and Obligations
7.1 The Client may not use the Service or any other Hosting Hardware and Hosting Software for any unlawful or otherwise inappropriate purposes. This includes, but is not limited to:
- 7.1.1 Distribution of viruses, spyware, malware, or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent;
- 7.1.2 Distribution of pirated material including, but not limited to software, movies, music and written works; and
- 7.1.3 Distribution of obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities.
7.2 The Client may not use their website to link to any other sites or systems hosting any material described in sub-clause 6.1.
7.3 The Client will monitor and supervise any and all third party activity on their website (including communications systems such as forums). Any third party activity that may fall within the provisions of sub-clause 6.1 must be stopped or removed, as appropriate.
7.4 The Client must ensure that any and all activity conducted through the Client’s Website in relation to the collection, processing, and storage of personal data complies with the requirements of UK GDPR.
7.5 The Client must ensure that any and all activity conducted through the Client’s Website in relation to selling complies with the provisions of the Distance Selling Regulations 2000.
7.6 The Client is responsible and accountable for all activity relating to their website and the Service that is carried out by third parties on their behalf.
7.7 The Client will use its best and reasonable endeavours to supply all information required to facilitate the provision of the Service to the Host in a timely fashion.
8. Cyber Security and Data Protection
8.1 The Host acknowledges the importance of safeguarding Client data and ensuring the security of the hosting environment against cyber threats, including compliance with the UK GDPR.
8.2 The Host will implement reasonable measures to protect the Client’s data and hosting infrastructure from cyber attacks, including but not limited to viruses, malware, hacking attempts, and distributed denial-of-service (DDoS) attacks.
8.3 Despite the Host’s efforts, the Client acknowledges that no system is completely immune to cyber attacks, and therefore, the Host cannot guarantee absolute protection against all forms of cyber threats.
8.4 In the event of a cyber attack or security breach affecting the Client’s website or hosting environment, the Host will promptly notify the Client and take necessary actions to mitigate the impact of the breach, including compliance with UK GDPR data breach notification requirements.
8.5 The Client agrees to promptly report any data breaches affecting personal data processed within the hosting environment to the Host. The Client further acknowledges and agrees that they are responsible for notifying the Information Commissioner’s Office (ICO) and any other relevant authority as required under the UK GDPR and other applicable data protection laws and regulations. The Host shall provide reasonable assistance to the Client in fulfilling their obligation to report data breaches to the ICO or other authorities.
8.6 The Client agrees to cooperate with the Host in investigating and remedying any security breaches or suspected cyber attacks on their website or hosting environment, including compliance with UK GDPR requirements for cooperation with the Data Protection Authority.
8.7 The Host shall not be liable for any damages or losses incurred by the Client as a result of cyber attacks, security breaches, or unauthorised access to the Client’s data, unless such damages or losses are directly attributable to the Host’s negligence or breach of this Agreement, including UK GDPR requirements.
8.8 The Client is responsible for maintaining the security of their website, including implementing appropriate security measures such as strong passwords, regular software updates, and security patches, as required by UK GDPR.
8.9 The Client agrees not to engage in any activities that may compromise the security of the hosting environment or facilitate cyber attacks, including but not limited to distributing malicious code, conducting vulnerability scans, or attempting unauthorised access to other websites or systems, in accordance with UK GDPR requirements.
8.10 The Host reserves the right to suspend or terminate the Service without notice if the Client’s website is found to be involved in any unauthorised or malicious activities that pose a threat to the security or integrity of the hosting infrastructure, as required by UK GDPR.
8.11 The Client acknowledges that cyber security is an ongoing concern, and therefore, both parties agree to regularly review and update security measures as necessary to adapt to emerging threats and vulnerabilities, in compliance with UK GDPR requirements.
9. Compliance with Data Protection Regulations
9.1 The Host and the Client agree to comply with all applicable data protection laws and regulations, including but not limited to the UK GDPR and the Data Protection Act 2018.
9.2 The Client is solely responsible for ensuring that their website and any data collected through the website comply with relevant data protection regulations, including obtaining any necessary consents from data subjects and implementing appropriate security measures to protect personal data, as required by UK GDPR.
9.3 The Host will process any personal data provided by the Client in accordance with the terms of this Agreement and any instructions provided by the Client, taking appropriate technical and organisational measures to ensure the security and confidentiality of the data, as required by UK GDPR.
9.4 The Client agrees to indemnify and hold harmless the Host against any claims, liabilities, fines, or penalties arising from the Client’s failure to comply with data protection regulations or any misuse or unauthorised disclosure of personal data, in accordance with UK GDPR requirements.
9.5 The Host reserves the right to suspend or terminate the Service immediately if the Client is found to be in breach of data protection regulations or if the Client’s website is involved in any unauthorised or unlawful processing of personal data.
9.6 The Client agrees to promptly notify the Host of any data breaches or security incidents affecting personal data stored or processed within the hosting environment, and to cooperate fully with the Host in investigating and remedying such incidents.
9.7 The provisions of this section shall survive the termination or expiration of this Agreement.
10. Intellectual Property And Proprietary Rights
10.1 The Client will not acquire ownership rights over any of the Host’s Intellectual Property in or in relation to the Service or in relation to any other property owned by the Host.
10.2 The Host will not acquire ownership rights over any of the Client’s Intellectual Property in the Client’s Website or any other material belonging to the Client.
10.3 The Client agrees to fully indemnify the Host against all costs, expenses, liabilities, losses, damages, claims and judgments that the Host may incur or be subject to as a result of the infringement of any Intellectual Property owned by third parties arising from:
- 10.3.1 The Client’s failure to obtain the necessary rights and permissions from third parties in order to enable the Host to legally provide the Service;
- 10.3.2 The provision of the Service by the Host based upon information and material provided by the Client.
11. Liability
11.1 Subject to Clause 3 and sub-clauses 8.2 and 8.3 the Host shall not be liable to the Client or to third parties for:
- 11.1.1 Any losses resulting from interruptions or downtime to the Service;
- 11.1.2 Any inability, on the part of the Client, to use the Service;
- 11.1.3 Any damage or loss resulting from the loss of confidentiality, integrity, or availability of personal data caused by the storage or processing of such data within the hosting environment.
11.2 Nothing in this Clause shall exclude the liability of the Host for death or personal injury resulting from the Host’s negligence or that of its employees or agents.
11.3 Nothing in this Clause or in this Agreement shall exclude the liability of the Host for fraudulent misrepresentation.
12. Warranty Disclaimer
Subject to the provisions of this Agreement, the Host gives no warranty, express or implied, in connection with the Service as to fitness for purpose, quality, non-infringement or merchantability.
13. Indemnity
13.1 The Client will fully indemnify the Host against all costs, expenses, liabilities, losses, damages and judgments that the Host may incur or be subject to as a result of any of the following:
- 13.1.1 The Client’s misuse of the Service;
- 13.1.2 The Client’s breach of this Agreement;
- 13.1.3 The Client’s negligence or other act of default;
- 13.1.4 The activities of third parties conducted on the Client’s website using facilities such as blogs, forums, and chat, including any processing of personal data by such third parties.
14. Force Majeure
14.1 Neither the Host nor the Client shall be liable for breaching this Agreement where that breach results from Force Majeure.
14.2 Force Majeure refers to any event that is beyond the reasonable control of the parties an includes, but is not limited to, acts of God; acts of war; national emergencies; governmental action; union action; civil unrest; fire; explosion; flood and theft.
15. Term and Termination
15.1 The initial period of Service provision will commence on the date that the Client’s Order is processed. For new websites, this is considered to be the date that a new website is launched and is publicly accessible on the Client’s chosen domain name. This term shall last for a period of 12 months, subject to the termination provisions below and to the refund provisions of sub-clause 2.2 of this Agreement.
15.2 Subsequent periods of Service Provision shall last for a period of 12 months each and will follow on from a previous period, without interruption, subject to the fulfilment of the Client’s payment obligations under Clause 4 of this Agreement. All subsequent periods are subject to the termination provisions below.
15.3 The Host reserves the right to terminate this Agreement or to suspend the Service in the following circumstances:
- 15.3.1 If the Client fails to pay fees due under Clause 4 of this Agreement;
- 15.3.2 If the Client is in breach of the terms of this Agreement;
- 15.3.3 If the Client becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
- 15.3.4 If the Client is unable to pay its debts within the definition of Section 123 of the
Insolvency Act 1986; or - 15.3.5 If the Client has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
15.4 The Client may request the termination of the Service and this Agreement by written notice,
at least 1 month in advance of the end of the period of Service, supplying their account details. The following shall apply to such situations:
- 15.4.1 The issuing of refunds is at the sole discretion of the Host;
- 15.4.2 If the Client wishes to terminate during the course of a 12 month period of Service provision the Service will end on the last day of the 12 month period of Service and only after the Host receives the Client’s notice at least 1 month in advance.
15.5 On termination of the Service and this Agreement the Client’s Website and all related material will be removed from the Hosting Hardware.
15.6 If the Client sends a termination notice in error or changes their mind, the Host must be informed within 1 month of the notice that the Client wishes their Account to be restored. The Client will be required to pay a reactivation fee of £75.
16. Assignment
16.1 The Host reserves the right to assign or otherwise transfer any rights or obligations under this Agreement.
16.2 The Client may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Host.
17. Severance
In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The waiver by either party of any provision of this Agreement will not operate or be interpreted as a waiver of any other provision or a subsequent breach of any provision.
18. Law and Jurisdiction
This Agreement is governed by the laws of England and Wales. Any dispute relating to this Agreement shall fall within that jurisdiction.
This document was last updated on 13/03/2024.