PLEASE NOTE THESE TERMS AND CONDITIONS ONLY APPLY TO YOU, THE CUSTOMER, IF YOU ARE A BUSINESS. IF YOU ARE A CONSUMER, PLEASE CONTACT HOOBLE FOR THE RELEVANT TERMS AND CONDITIONS.
The definitions and rules of interpretation in this clause apply to these Terms.
Hooble : 1 CLICK SERVICES LIMITED incorporated and registered in England and Wales with company number 06617238 whose registered office is at 8 King Edward Street, Oxford, OX1 4HL.
Data Protection Legislation: means the General Data Protection Regulation ((EU) 2016/679)(“GDPR”), the Data Protection Act 2018, and any other national implementing laws, regulations and secondary legislation relating to data protection or privacy, as amended, updated, consolidated, replaced and/or re-enacted from time to time. Terms defined in GDPR shall have the same meaning in this Data Processing Agreement (“DPA”);
Authorised Users: those employees and independent contractors of the Customer who are entitled to use the Network through the Hosting Services under this agreement, as further described in clause 3.3(a).
Business Day: any day which is not a Saturday, Sunday or public holiday in England and Wales.
Commencement Date: the date specified in clause 3.1.
Contract: any contract formed between Hooble and the Customer for the provision of the Services, incorporating these Terms, together with any other documents to which reference may properly be made in order to ascertain the rights and obligations of the parties.
Customer: the person, firm or company which purchases the Services from Hooble.
Customer Data: all data, including all text, image, sound or video files, provided to Hooble by or on behalf of the Customer through use of the Hosting Services.
Fees: the fees payable to Hooble for the Services, as specified in the Contract.
Hosting Services: the online services that the Customer purchases and Hooble provides to allow the Customer and Authorised Users to access and use the Network.
Maintenance: any error corrections, updates and upgrades that Hooble may provide or perform with respect to the Network and Hosting Services.
Network: the infrastructure servers, system and database software components and internet connectivity supplied by and hosted by Hooble. Depending on the Services purchased by the Customer, the Network may consist of dedicated servers for the Customer’s use only or the right to use certain parts of a shared system, or a combination of dedicated and shared elements.
Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
Services: the Hosting Services and Managed Services, as applicable, given the context in which the term Services is used.
Terms: these Hosting Service Terms and Conditions.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause headings shall not affect the interpretation of these Terms.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular and a reference to one gender shall include a reference to the other genders.
2. Application Of Terms
2.1 Subject to any variation under clause 2.2, the Contract will be on these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 Any variation to these Terms or a Contract and any representations about the Services shall have no effect unless expressly agreed in writing and signed by duly authorised signatories of Hooble and the Customer.
2.3 The Contract shall be formed by the Customer completing Hooble’s web based online order form, making payment and accepting these Terms by clicking the “I agree to the Terms of Service and Complete order” button. Completion of Hooble’s online order form constitutes an offer by the Customer to purchase the Services specified in the online order form in accordance with these Terms.
2.4 No order placed by the Customer shall be deemed to be accepted by Hooble until Hooble has issued the Customer with a written acknowledgement of order by email or (if earlier) Hooble delivers the Services to the Customer.
2.5 When placing its web based order, the Customer must ensure that the terms of its order are complete and accurate.
3. Hosting Services
3.1 Hooble shall provide the Hosting Services. The Hosting Services shall commence with effect from the date of Hooble’s email confirmation sent to the Customer confirming that the Services are live (Commencement Date).
3.2 The Customer shall be entitled to cancel a Contract for the provision of Services by sending written notice to Hooble within 30 days of the Commencement Date. In the event of cancellation pursuant to this clause 3.2, Hooble will refund all payments made by the Customer and the provisions of clause 12.3 will apply.
(a) the Customer shall maintain a written list of current Authorised Users of the Network, and the Customer shall provide such list to Hooble as may be reasonably requested by Hooble from time to time;
(b) the Customer shall ensure that each Authorised User keeps a secure password for his use of the Network, that such password is changed no less frequently than monthly and that each Authorised User keeps his password confidential;
(c) the Customer shall ensure that all Authorised Users comply with Hooble ’s Acceptable Use Policy and shall be responsible for any breach of Hooble ’s Acceptable Use Policy by any of its Authorised Users. Hooble reserves the right to disable access to the Network of any person it believes to be in breach of its Acceptable Use Policy;
(d) Hooble may audit the Network regarding the name and password for each Authorised User. Such audit may be conducted no more than once per quarter, at Hooble ’s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Customer’s normal conduct of business; and
(e) if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to Hooble’s other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such individuals.
3.4 In relation to the Network:
(a) Hooble hereby grants to the Customer on and subject to the terms and conditions of these Terms a non-exclusive, non-transferable licence to allow Authorised Users to access the Network through the Hosting Services and to use the Network solely for the Customer’s business purposes;
(b) the Customer shall not, and shall procure that Authorised Users shall not, store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities. Hooble reserves the right to remove any content of which it becomes aware that it believes infringes the provisions of this clause or its Acceptable Use Policy;
(c) the rights provided under this clause 3.4 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;
(d) the Customer shall not:
(i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of any software which is part of the Network except to the extent as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any software which is part of the Network, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(iii) access all or any part of any software which is part of the Network or Hosting Services in order to build a product or service which competes with the Services;
(iv) use the Network or Hosting Services to provide services to third parties;
(v) transfer, temporarily or permanently, any of its rights under a Contract, or
(vi) attempt to obtain, or assist third parties in obtaining, access to the Network, other than as provided under this clause 3.4(d);
(e) the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Network and notify Hooble promptly of any such unauthorised access or use; and
(f) the Customer’s use of the Hosting Services is not limited by reference to database usage or number of users but shall be subject to Hooble’s parameters of “normal use”. In the event the Customer’s use of the Services exceeds Hooble’s parameters of normal use, Hooble shall contact the Customer to resolve the matter with the Customer but in any event reserves the right to suspend the Services until the Customer’s use of the Service can be brought within Hooble’s parameters of normal use.
4. Managed Service
4.1 If ordered by the Customer, Hooble shall provide the Customer with support services to manage the Customer’s Network.
4.2 Hooble shall use reasonable endeavours to process support requests, issue support ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer. Hooble technical support call centre shall respond to all support requests within the time periods specified below, according to priority.
|1||The Customer’s use of the Services is severely degraded, or major components of the Service are not operational and work cannot reasonably continue. Priority 1 incidents shall be reported by telephone only.||Within four Normal Business Hours.
|2||Certain non-essential features of the Service are impaired while most major components of the Service remain functional.||Within 12 Normal Business Hours.
|3||Errors that are, non disabling or cosmetic and clearly have little or no impact on the normal operation of the Services.||Within 24 Normal Business Hours.|
4.3 Hooble shall only be responsible for supporting the Customer’s Network and shall not support any software, hardware or firmware not supplied by Hooble. If on investigation, the issue reported to Hooble turns out not to be caused by the Network, Hooble reserves the right to charge the Customer for any time spent on such issue at Hooble’s then prevailing hourly support rate.
5. Customer Data
5.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer indemnifies Hooble against all damages, losses, costs and expenses arising as a result of any action or claim in relation to the use of Customer Data or that the content of the Customer Data infringes the intellectual property rights of a third party. The limitation of liability referred to in clause 11 shall not apply to this indemnity.
5.2 Hooble shall provide Customer Data backups, take server snapshots and retain Customer Data for the retention periods as specified in the Contract. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Hooble to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Hooble in accordance with the archiving procedure specified in the Contract. Hooble shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Hooble to perform services related to Customer Data maintenance and back-up).
5.3 If Hooble processes any personal data on the Customer’s behalf when performing its obligations under a Contract, the parties record their intention that the Customer shall be the data controller and Hooble shall be a data processor and in any such case:
(a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Hooble so that Hooble may lawfully process the personal data in accordance with these Terms on the Customer’s behalf;
(b) Hooble shall process the personal data only in accordance with the terms of these Terms and any lawful instructions reasonably given by the Customer from time to time; and
(c) Where Hooble is required by any applicable law to process the Personal Data it shall inform the Customer of that legal requirement before processing unless the applicable law
prohibits such information on important grounds of public interest. Hooble shall inform the Customer if in its opinion an instruction from the Customer infringes any applicable law;
(d) Hooble shall not make any amendments to the Personal Data unless instructed to do so by the Customer;
(e) each party shall take technical and organizational measures against unauthorised or unlawful processing of the personal data or its accidental
loss, destruction or damage
(f) Hooble shall ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
i Hooble has provided appropriate safeguards in relation to the transfer;
ii the data subject has enforceable rights and effective legal remedies;
iii Hooble complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iii Hooble complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(h) Hooble shall assist the Customer in responding to any request from a data subject to exercise their rights laid down in Chapter III of GDPR and in ensuring compliance with its obligations under Articles 32 to 36 inclusive of GDPR considering the nature of processing and the information available to Hooble
(i) Hooble shall notify the Customer without undue delay on becoming aware of a personal data breach which affects the Personal Data;
6. Hooble’s Obligations
6.1 Hooble undertakes that it will perform all the Services with all reasonable skill and care and shall comply with all applicable laws and regulations with respect to its activities under these Terms.
6.2 Hooble shall provide at least a 99.99% uptime service availability level. This availability refers to an access point on Hooble hosting provider’s backbone network. It does not apply to the portion of the circuit that does not transit the hosting provider’s backbone network, as the Customer is responsible for its own internet access. Availability does not include Maintenance Events as described in clause 6.3 below, Customer-caused or third party-caused outages or disruptions, or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 13.
6.3 Hooble shall maintain and update the Network. During maintenance periods, Hooble may, at its discretion, upgrade versions, install error corrections and apply patches to the Network. Hooble shall use all reasonable endeavours to avoid unscheduled downtime for Network maintenance. Maintenance of the Network or other aspects of the Hosting Services that may require interruption of the Hosting Services (Maintenance Events) shall not be performed during Normal Business Hours. Hooble may interrupt the Services to perform emergency maintenance during the daily window of 10.00 pm to 2.00 am UK time. In addition, Hooble may interrupt the Hosting Services outside Normal Business Hours for unscheduled maintenance, provided that it has given the Customer at least three days’ advance notice. Hooble shall at all times endeavour to keep any service interruptions to a minimum.
6.4 The undertakings in this clause shall not apply to the extent of any non-conformance which is caused by use of the Network contrary to Hooble’s instructions or modification or alteration of the Network by any party other than Hooble or Hooble’s duly authorised contractors or agents. If the Network does not conform with the foregoing undertakings, Hooble will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertakings set out in this clause 6. Notwithstanding the foregoing, Hooble does not warrant that the Customer’s use of the Network and the Services will be uninterrupted or error-free.
7. Customers’s Obligations
The Customer shall:
(a) provide Hooble with:
(i) all necessary co-operation in relation to a Contract; and
(ii) all necessary access to such information as may be required by Hooble;
(b) comply with all applicable laws and regulations with respect to its activities under a Contract; and
(c) procure that all Authorised Users take note of and comply with the User Policies.
8. Charges and Payment
8.1 The Fees and payment schedule for payment of the Fees shall be as specified in the Contract.
8.2 All amounts and fees stated or referred to in a Contract are exclusive of value added tax, which shall be added to Hooble ’s invoice(s) at the appropriate rate. All payments shall be made in pounds sterling.
8.3 Each invoice is due and payable as stated in the Contract. If the Customer fails to pay Hooble any sum due pursuant to the Contract by the due date for payment, and without prejudice to any other rights and remedies of Hooble: (a) Hooble may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Hooble shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of HSBC Bank plc from time to time, commencing on the due date for payment and continuing until fully paid, whether before or after judgment.
8.4 The Customer shall make all payments due under a Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Hooble to the Customer.
9. Proprietary Rights
9.1 The Customer acknowledges and agrees that Hooble and/or its licensors own all intellectual property rights in the Network and the Services. Except as expressly stated herein, these Terms do not grant the Customer any rights to, or in, patents, copyrights, database rights, design rights, Confidential Information or trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Network, Services or any related documentation.
9.2 Hooble represents, warrants and undertakes that it has all the rights in relation to the Network and Services that are necessary to grant all the rights it purports to grant and perform all the obligations it agrees to perform under, and in accordance with, these Terms.
10.1 During the term of the Contract and during discussions leading to the Contract, a party (the “Recipient”) may have received or may receive or have access to certain information of the other party (the “Discloser”) that is “Confidential Information,” including, though not limited to, details of the Services, the Customer Data, information or data concerning the Discloser’s products or product plans, business operations, strategies, customers and related business information. The Recipient will protect the confidentiality of Confidential Information with the same degree of care as the Recipient uses for its own similar information, but no less than a reasonable degree of care. Confidential Information may only be used by those employees, sub-contractors and agents of the Recipient who have a need to know such information for the purposes related to the Contract. The Recipient shall keep all Confidential Information confidential for a period of five years from the date of disclosure.
10.2 The above confidentiality obligations will not apply to any information at is (a) already known by the Recipient prior to disclosure, (b) independently developed by the Recipient prior to or independent of the disclosure, (c) publicly available other than through breach of these confidentiality provisions by the Recipient, (d) rightfully received from a third party with no duty of confidentiality, (e) disclosed by the Recipient with the Discloser’s prior written approval, or (f) disclosed under operation of law.
10.3 This clause 10 shall survive termination of a Contract, however arising.
11. Limitation of Liability
THE CUSTOMERS ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 11.
11.1 This clause 11 sets out the entire financial liability of either party (including any liability for the acts or omissions of their employees, agents and sub-contractors) to the other:
(a) arising under or in connection with a Contract;
(b) in respect of any use made by the Customer of the Services, the Network, or any part of them; and
(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with a Contract.
11.2 Except as expressly and specifically provided in a Contract:
(a) the Customer assumes sole responsibility for results obtained from the use of the Network and the Services by the Customer, and for conclusions drawn from such use. Hooble shall have no liability for any damage caused by errors or omissions in any information, instructions, online order form or scripts provided to Hooble by the Customer in connection with the Services, or any actions taken by Hooble at the Customer’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
11.3 Nothing in these Terms excludes or limits the liability of either party:
(a) for death or personal injury caused by negligence; or
(b) for fraud or fraudulent misrepresentation.
11.4 Subject to clause 11.3, neither party shall be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
(a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
(b) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
(c) any loss or liability (whether direct or indirect) under or in relation to any other contract.
11.5 Subject to clause 11.3 (where in each case liability shall be unlimited), each party’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of a Contract shall be limited to the total charges payable for the Services by the Customer to Hooble during the 12 month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the date of the Contract, during that shorter period.
12. Term and Termination
12.1 The initial term of a Contract shall commence on the Commencement Date and shall be for a period of twelve months, unless otherwise terminated as provided in clause 3.2 or this clause 12. A Contract shall automatically renew for yearly periods, unless either party notifies the other, in writing, at least 90 days before the end of the then current term.
12.2 Without affecting any other right or remedy available to it, either party may terminate a Contract with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under a Contract on the due date for payment and remains in default not less than five days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
(c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
(d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3 On termination of a Contract for any reason including cancellation pursuant to clause 3.2:
(a) all licences granted pursuant to a Contract shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
(c) Hooble will retain Customer Data stored on the Network for a period of 90 days after the termination date so that the Customer may extract the Customer Data. After the 90 day retention period ends, the Customer’s account will be disabled and Hooble will delete the Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.
13. Force Majeure
Hooble shall not be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under a Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Hooble or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. If the period of delay or non-performance continues for 30 days, the Customer may terminate a Contract by giving 10 days’ written notice to Hooble.
14.1 A waiver of any right under a Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
14.2 If any provision (or part of a provision) of these Terms are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
14.3 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.
14.4 The Contract and these Terms constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.5 The Customer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under a Contract.
14.6 These Terms do not confer any rights on any person or party (other than the parties to a Contract and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
14.7 Any notice required to be given under these Terms shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or recorded delivery post or sent by email to the other party at its address set out in the Contract, or such other address as may have been notified by that party for such purposes.
14.8 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post and a notice sent by email shall be deemed to have been received one business day after transmission provided that the sending party has not received any message informing it that the email has failed to have been delivered.
14.9 These Terms and the Contract and any disputes or claims arising out of or in connection with it are governed by, and construed in accordance with, the law of England and the Customer irrevocably agrees that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with a Contract.
Last updated 2nd August 2019