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Hosting and Email

  1. Application of the General Conditions
    1. This Website and E-mail Hosting Terms shall be read together with the General Conditions and unless the context otherwise requires, such defined terms used in this Website and E-mail Hosting Terms shall have the same meaning as those in the General Conditions.
    2. In the event if any inconsistencies between the General Conditions and this Website and E-mail Hosting Terms, the provisions in this Website and E-mail Hosting Terms will prevail.
  2. Definitions:
    1. In this Website and E-mail Hosting Terms:
      1. ‘Acceptance Test’ means the acceptance test set out in the Statement of Work.
      2. ‘Conditions’ means these Website and E-mail Hosting Terms, the General Conditions and where relevant, the Domain Name Terms and Design and Website Development Terms.
      3. ‘E-mail Hosting Fees’ means the e-mail hosting fees specified in the Statement of Work in respect of the E-mail Hosting Services.
      4. ‘E-mail Material’ means E-mails, information in the E-mails including text, pictures, messages and/or such other information attached and/or contained in any of the E-mails being hosted by Pink Elephant Media Ltd.
      5. ‘E-mail Hosting Services’ means the E-mail hosting services specified in the Statement of Work.
      6. ‘General Conditions’ means that General Terms and Conditions as set out on Pink Elephant Media Ltd’s website.
      7. ‘Intellectual Property’ means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
      8. ‘Site’ means the Client’s website specified in the Statement of Work which Pink Elephant Media Ltd is hosting for the Client on which material including the E-mail Materials and/or Website Materials (as the case may be) would be hosted.
      9. ‘Statement of Work’ means a written summary of the agreed scope of work which will include, by way of example only; the fees payable by the Client, the estimated delivery dates and/or project milestones, the acceptance testing criteria (where applicable) and such other relevant information which the Parties deem as relevant.
      10. ‘Website Hosting Fees’ means the website hosting fees specified in the Statement of Work in respect of the Website Hosting Services.
      11. ‘Website Material’ means any materials, software, information and content of the website which is to be hosted by Pink Elephant Media Ltd for the Client.
      12. ‘Website Hosting Services’ means the website hosting services specified in the Statement of Work.
  3. Commencement of Hosting Services
    1. The approval of the Statement of Work by the Client shall constitute an offer to Pink Elephant Media Ltd to contract on such terms and conditions. Pink Elephant Media Ltd’s acceptance of such offer will take place when Pink Elephant Media Ltd emails the Client to accept it, at which point a contract will come into existence between the Client and Pink Elephant Media Ltd, which shall be governed by the terms set out in the Statement of Work and the Conditions.
    2. The Client appoints Pink Elephant Media Ltd to carry out the E-mail Hosting Services and/or Website Hosting Services (as the case may be) and Pink Elephant Media Ltd accepts such appointment..
    3. The Parties may mutually agree to renew the E-mail Hosting Services and/or Website Hosting Services (as the case may be) for such additional periods as may be agreed between the Parties. Unless otherwise waived by Pink Elephant Media Ltd, any renewals of the E-mail Hosting Services and/or Website Hosting Services (as the case may be) shall be in writing.
  4. Hosting Services
    1. Pink Elephant Media Ltd shall provide the Website Hosting Services and/or E-mail Hosting Services in accordance with the Statement of Work. In this regard, Pink Elephant Media Ltd will provide the Website Hosting Services and/or E-mail Hosting Services using reasonable skill and care.
    2. Pink Elephant Media Ltd shall provide the Client with the facility to update and/or upload new Website Material onto the server.
    3. Without prejudice to Clause 4.2 of this Website and E-mail Hosting Terms, the Client will be entitled to request Pink Elephant Media Ltd to assist the Client with such updating and/or uploading of new Website Material and the Parties will mutually agree such fees payable by the Client to Pink Elephant Media Ltd for such assistance.
    4. Subject to clause 4.5, Pink Elephant Media Ltd will use its reasonable endeavours to ensure that the E-mail Hosting Services and/or Website Hosting Services (as the case may be) are available all the time.
    5. Notwithstanding Clause 4.4 of this Website and E-mail Hosting Terms, while Pink Elephant Media Ltd will endeavour to ensure that the E-mail Hosting Services and/or Website Hosting Services (as the case may be) is available all the time, Pink Elephant Media Ltd does not guarantee that the E-mail Hosting Services and/or Website Hosting Services (as the case may be) will be uninterrupted, secure or error-free or that any data generated, stored, transmitted or used via or in connection with the E-mail Hosting Services and/or Website Hosting Services (as the case may be) will be complete, accurate, up to date, received or delivered.
    6. The Client acknowledges that Pink Elephant Media Ltd may from time to time carry out repairs, maintenance and/or improvements to E-mail Hosting Services and/or Website Hosting Services (as the case may be). In this regard, Pink Elephant Media Ltd will use reasonable endeavours to inform the Client of such non availability of the E-mail Hosting Services and/or Website Hosting Services (as the case may be) and ensure that such maintenance and/or improvements are carried out outside normal business hours wherever possible.
    7. For the avoidance of doubt, the Client acknowledges that the E-mail Hosting Services and/or Website Hosting Services (as the case may be) is dependant on the Client having an internet connection. The Client acknowledges that Pink Elephant Media Ltd does not provide internet connection services to the Client nor does Pink Elephant Media Ltd acts as the Client’s Internet Service Provider (‘ISP’). The Client is responsible for its own internet connection.
    8. Pink Elephant Media Ltd shall as soon as it is practicable on request by the authorised personnel of Client, suspend availability of the Website Materials and/or the E-mail Materials and shall likewise, on request by the authorised personnel of the Client, as soon as it is practicable, procure that the provision of access to such materials is resumed following such suspensions.
    9. Where the Client requires changes to the Website Hosting Services and/or E-mail Hosting Services, any such changes shall be agreed pursuant to the variation procedures set out in Clause 8 of the General Conditions i.e. the Variation Clause.
    10. You may not run server processes (eg. talkers/IRC Bots) or any performance monitoring for other web sites from your web space as our shared servers are setup specifically to make these perform badly. If we discover them, we will delete them without warning and will suspend your account immediately and invoice you £20 for the cleanup.
    11. We shall not be held liable for any loss or damages caused by the use or misuse, unavailability or removal of services, especially after your account has either elapsed or been cancelled, all files (including web pages, etc.) will be deleted after 28 days.
    12. “Safe lists” and “double optin” lists that you purchase on the internet will NOT be tolerated and will be treated as spamming. Any user who attempts to send out spam will have their account terminated without notice. (Our shared servers all have strict outgoing mail controls blocking the sending of bulk emails)
    13. Pink Elephant Media Ltd reserves the right to charge the holder of the account used to send any unsolicited e-mail a clean up fee. This cost of the clean up fee is left entirely to the discretion of Pink Elephant Media Ltd.
    14. This agreement sets out the full extent of the Pink Elephant Media Ltd’s obligations and liabilities in respect of the supply of the E-mail Hosting Services and Website Hosting Services. All conditions, warranties or other terms concerning the E-mail Hosting Services and Website Hosting Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
    15. If you decide to host the website yourselves – PINK ELEPHANT MEDIA LTD cannot be wholly responsible for the security, speed or performance of your website. Installing our websites on external servers can cause technical issues and some poor quality hosting may not be suitable. Configuration of hosting environments to facilitate our deployment process is be chargeable. Updating of WordPress and any plugins will be the responsibility of the client. The client will be responsible for reviewing any security alerts or logs generated and deciding if any action is required.
    16. Updating of plugins and installing of any new plugins can cause errors resulting in the site not performing as expected or in some cases being un-accessible. If PINK ELEPHANT MEDIA LTD are asked to fix any issues related to updates this will be chargeable.
  5. Client’s Responsibilities
    1. The Client shall be responsible for the accuracy and completeness of the Website Material.
    2. The Client shall provide Pink Elephant Media Ltd or shall procure that the Client’s current hosting service provider provides Pink Elephant Media Ltd with the Website Material and/or E-mail Material (as the case may be) so as to enable Pink Elephant Media Ltd to provide the E-mail Hosting Services and/or Website Hosting Services (as the case may be) to the Client.
    3. The Client acknowledges that where Pink Elephant Media Ltd is unable to implement the E-mail Hosting Services and/or Website Hosting Services (as the case may be) due to the fault of the Client, Pink Elephant Media Ltd shall not be liable for any losses and/or damages suffered by the Client. In addition, Pink Elephant Media Ltd reserves the right to invoice the Client for any additional expenses reasonably incurred by Pink Elephant Media Ltd as a result of such delays by the Client.
    4. Your website will have standard privacy policy, cookie policy and terms & conditions, however it is the client’s responsibility to ensure these are accurate and apply to your business. You can amend accordingly.
  6. Installation and Acceptance Testing
    1. Pink Elephant Media Ltd shall upload and/or install the Website Material and/or E-mail Material (as the case may be) onto Pink Elephant Media Ltding server.
    2. Pink Elephant Media Ltd will thereafter inform the Client that the uploading and installation of the Website Material and/or E-mail Material (as the case may be) has been completed and that the E-mail Hosting Services and/or Website Hosting Services (as the case may be) is ready for acceptance testing which shall be carried out in accordance with the Acceptance Test.
    3. Pink Elephant Media Ltd and the Client will jointly carry out the Acceptance Test.
    4. Where the E-mail Hosting Services and/or Website Hosting Services (as the case may be) pass the Acceptance Test, the Client shall be deemed to have accepted the E-mail Hosting Services and/or Website Hosting Services.
    5. Where the E-mail Hosting Services and/or Website Hosting Services (as the case may be) fail the Acceptance Test, Pink Elephant Media Ltd will rectify any errors, issues and/or problems to ensure that the E-mail Hosting Services and/or Website Hosting Services (as the case may be) meets the requirements set out in the Acceptance Test and notify the Client of the errors, issues and/or problem and that the same has been fixed. Pink Elephant Media Ltd will have no less than 30 days to rectify such errors, issues and/or problems. Thereafter the Parties will commence acceptance testing in accordance with the Acceptance Test.
    6. If any failure to pass the Acceptance Test results from a defect which is caused by an act or omission by the Client, or one of the Client’s sub-contractors or agents for whom Pink Elephant Media Ltd has no control, the E-mail Hosting Services and/or Website Hosting Services will be deemed to have passed the Acceptance Test and Clause 6.4 shall apply.
    7. Where the E-mail Hosting Services and/or Website Hosting Services (as the case may be) pass the Acceptance Test on the second attempt, Clause 6.4 of this Website and E-mail Hosting Terms will apply. If the E-mail Hosting Services and/or Website Hosting Services (as the case may be) fail the Acceptance Test on the second attempt, Clause 6.5 of this Website and E-mail Hosting Terms will apply.
    8. Where the E-mail Hosting Services and/or Website Hosting Services (as the case may be) pass the Acceptance Test on the third attempt, Clause 6.4 of this Website and E-mail Hosting Terms will apply. If the E-mail Hosting Services and/or Website Hosting Services (as the case may be) fail the Acceptance Test on the third attempt, the Client will be entitled to terminate the relevant Contract.
    9. Notwithstanding Clauses 6.4 to 6.8 of this Website and E-mail Hosting Terms, the Client shall be deemed to have accepted the E-mail Hosting Services and/or Website Hosting Services (as the case may be) if:
      1. the Client uses the E-mail Hosting Services and/or Website Hosting Services (as the case may be) for its business purposes, any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
      2. the Client unreasonably delays the start of the relevant Acceptance Test or any retests for a period of more than seven working days from the date on which Pink Elephant Media Ltd is ready to commence running such Acceptance Tests or retests (as the case may be).
  7. Charges and Payment
    1. Unless otherwise specified in the Statement of Work, Pink Elephant Media Ltd shall be entitled to invoice the Client in respect of the E-mail Hosting Fees and/or Website Hosting Fees (as the case may be) for the first month of such services upon the Parties agreeing the Statement of Work and the Client shall pay to Pink Elephant Media Ltd the E-mail Hosting Fees and/or the Website Hosting Fees (as the case may be) within 30 days of the date of Pink Elephant Media Ltd’s invoice. Thereafter, Pink Elephant Media Ltd shall be entitled to issue the Client with a yearly invoice in respect of the E-mail Hosting Fees and/or Website Hosting Fees (as the case may be) and such invoice shall be payable within 7 days of the date of Pink Elephant Media Ltd’s invoice.
  8. E-mail Material and Website Material
    1. The Client shall ensure that the Website Materials and/or E-mail Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”);
    2. The Client undertakes to comply and shall contractually procure that its users comply with generally accepted principles of internet usage (whether governed by the laws of any jurisdiction or not) including refraining from:
      1. sending unsolicited mass communications (“Spam”);
      2. sending mail bombs; Trojan horses; viruses or other disruptive programs or devices;
      3. pirating or otherwise illegally copying software or other proprietary material; and
      4. violating the security of any website or engaging in unauthorised decryption of protected material.
      5. The Client acknowledges that Pink Elephant Media Ltd has no control over any content placed on the Site by visitors and does not purport to monitor the content of the Site.
    3. Pink Elephant Media Ltd reserves the right at any time and without notice and without liability, to suspend availability and/or remove any content and/or material from the Site (including the Website Material and/or E-mail Material) where it reasonably suspects such content and/or Material is Inappropriate Content. Pink Elephant Media Ltd shall as soon as it is practicable, notify the Client if it becomes aware of any allegation that content and/or material on the Site may be Inappropriate Content.
    4. The Client acknowledges and agrees that Pink Elephant Media Ltd may be required by a law enforcement agency to monitor Site content and traffic and if necessary give evidence of the same to support or defend any dispute or actionable cause or matter which arises in relation to the same.
    5. The Client shall indemnify Pink Elephant Media Ltd, its successors and assigns against all damages, losses and expenses arising as a result of any action or claim that the materials and/or content on the Site including the E-mail Materials and/or Website Materials constitute Inappropriate Content.
    6. The Client warrants that any personal data on the system hosted by Pink Elephant Media Ltd complies fully with the The EU General Data Protection Regulation (GDPR) and associated legislation and hereby indemnifies Pink Elephant Media Ltd against any infringement of such legislation (except insofar as Pink Elephant Media Ltd is responsible for the security of the system and the materials) and in particular acknowledges that Pink Elephant Media Ltd does not operate or exercise any control over, and accepts no responsibility for where or in what jurisdiction the materials may be received.
    7. The Client undertakes and shall contractually procure that each of its users and/or visitors undertake not to upload any materials and/or contents onto the Site which are Inappropriate Content. The Client shall be solely responsible for the accuracy, legality, and compliance with the relevant rules and regulations in respect of the materials and/or content uploaded onto the Site.
    8. The Client warrants that it has and shall contractually procure that its users have obtained all necessary consents, approvals and licences for the use of third party Intellectual Property and the use of such third party Intellectual Property will not violate any intellectual property rights belonging to any third party.
    9. The Client shall indemnify and hold harmless Pink Elephant Media Ltd against any claims, proceedings, losses, liabilities, damages (including reasonable costs), charges and expenses of whatever nature arising out of or in connection with any claim or action made against Pink Elephant Media Ltd relating to a breach of any sub-clauses of Clause 8 of this Website and E-mail Hosting Terms by the Client and/or its users provided that Pink Elephant Media Ltd will not make any admissions without the Client’s prior written consent and not take any step (or omit to take any step) which would prejudice the Client’s defence of the claim, and shall allow the Client to conduct and/or settle all negotiations and litigation resulting from such claim. Pink Elephant Media Ltd shall, at the request of the Client, afford all reasonable assistance with such negotiations or litigation and shall be reimbursed by Client for any reasonable out of pocket expenses incurred in so doing.
    10. Pink Elephant Media Ltd may include the statement “Web Design PINK ELEPHANT MEDIA LTD” on the Site in a form to be agreed
  9. Data Protection
    1. In this Clause 9, Personal Data has the meaning given in the The EU General Data Protection Regulation (GDPR).
    2. The Client acknowledges that to the extent Pink Elephant Media Ltd processes any Personal Data on behalf of the Client:
    3. it shall act only on instructions from the Client; and
    4. it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
  10. Limitation of remedies and liabilityThe client’s attention is drawn to this clause
    1. Nothing in this agreement shall operate to exclude or limit Pink Elephant Media Ltd’s liability for:
      1. death or personal injury caused by its negligence; or
      2. any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
      3. fraud; or
      4. any other liability which cannot be excluded or limited under applicable law.
    2. Pink Elephant Media Ltd shall not be liable under or in connection with this agreement or any collateral contract for any:
      1. loss of revenue;
      2. loss of actual or anticipated profits;
      3. loss of contracts;
      4. loss of the use of money;
      5. loss of anticipated savings;
      6. loss of business;
      7. loss of opportunity;
      8. loss of goodwill;
      9. loss of reputation;
      10. loss of, damage to or corruption of data; or
      11. any indirect or consequential loss,

in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise.

    1. Subject to clause 1, Pink Elephant Media Ltd’s aggregate liability to the Client in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed £1,000.00.
    2. The Client shall defend, indemnify, save and hold Pink Elephant Media Ltd harmless from any and all demands, liabilities, losses, costs and claims, including reasonable solicitors fees asserted against Pink Elephant Media Ltd, its agents, its Clients, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns.
    3. The Client shall defend, indemnify and hold harmless Pink Elephant Media Ltd against liabilities arising out of Any defective products sold to Clients from a Pink Elephant Media Ltd server, any injury to person or property caused by any products sold or otherwise distributed in connection with Pink Elephant Media Ltd servers and any material supplied by Clients infringing or allegedly infringing on the proprietary rights of a third party, including copyright infringement.
    4. Pink Elephant Media Ltd reserves the right to amend and update these Terms and Conditions at any time with at least 7 days notice but we will provide update on our website in advance to provide users adequate time to question, or raise any concerns regarding any forthcoming changes.
  1. Intellectual property rights
    1. Without prejudice to the other provisions in the Conditions, as between Pink Elephant Media Ltd and the Client, the Client retains all Intellectual Property rights in the E-mail Materials, the Website Materials and such other content and/or materials on the Site, and grants Pink Elephant Media Ltd a licence to use such Intellectual Property rights to the extent required to perform its obligations pursuant to the applicable Contract.
    2. All Intellectual Property Rights in any works arising in connection with the performance of the E-mail Hosting Services and/or Website Hosting Services by Pink Elephant Media Ltd shall be the property of Pink Elephant Media Ltd and/or its licensors, and Pink Elephant Media Ltd hereby grants to the Client a non-exclusive licence during the term of the relevant Contract to such Intellectual Property rights for the purposes of utilising the E-mail Hosting Services and/or Website Hosting Services provided by Pink Elephant Media Ltd.
    3. The Client shall indemnify and hold harmless Pink Elephant Media Ltd against all damages, losses and expenses arising as a result of any action or claim that the E-mail Materials, the Website Materials and such other content and/or materials on the Site infringe the Intellectual Property rights of any third party.
  2. Termination
    1. Without prejudice to any other rights or remedies which the Parties may have, either party may terminate the relevant Contract without liability to the other if:
      1. the other Party fails to pay any amount due under such Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
      2. the other Party commits a material breach of any of the terms of the relevant Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
      3. is unable to pay its debts or enters into compulsory of voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the relevant party under the relevant Contract) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed of its assets or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts.
    2. On termination of a Contract for any reason:
      1. the Client shall immediately pay to Pink Elephant Media Ltd all of Pink Elephant Media Ltd’s outstanding unpaid invoices and any interest due and, in respect of any services supplied but for which no invoice has been submitted, Pink Elephant Media Ltd may submit an invoice, which shall be payable immediately on receipt; and
      2. subject to paying such fees as on Pink Elephant Media Ltd’s then applicable hourly rates, Pink Elephant Media Ltd will assist the Client to transfer all the E-mail Materials, Website Materials and such materials and/or contents on the Site to a new hosting service provider.
    3. The accrued rights and liabilities of the Parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
    4. Pink Elephant Media Ltd reserves the right to cancel the Client’s account at any time if the Client Is found to be in breach of these terms & conditions but Pink Elephant Media Ltd will provide the Client with 1 written warning notice beforehand and only if the Client faisl to comply within 5 working days will Pink Elephant Media Ltd close the Cient’s account without any further notice.
  3. Support and Maintenance
    1. Pink Elephant Media Ltd will provide the Client with support and maintenance services in the event the E-mail Hosting Services and/or Website Hosting Services (as the case may be) are down and/or unavailable.
    2. Where the Client and/or the Client’s users are unable to access the Site, the E-mail Materials and/or Website Materials (as the case may be), the Client shall first ascertain whether the inability to access the Site, the E-mail Materials or Website Materials (as the case may be) is caused by a failure on the part of the E-mail Hosting Services and/or Website Hosting Services or the Client’s internet service provider, the Client’s sub-contractors or agents. Where fault lies with the E-mail Hosting Services and/or Website Hosting Services, the Client’s authorised representative shall contact Pink Elephant Media Ltd immediately and provide full information on the fault using the following details:

Email address: henny@pinkelephantmedia.co.uk Telephone Number: (01453) 705 097

    1. Upon receiving the Client’s report, Pink Elephant Media Ltd shall use reasonable endeavours to resolve and rectify the problem to allow the Client and its users to access the Site, the E-mail Materials or Website Materials. Where it is subsequently established that fault does not lie with the Site, the E-mail Materials or Website Materials but with the Client’s equipment or its internet connection, Pink Elephant Media Ltd reserves the right to charge the Client such reasonable costs as Pink Elephant Media Ltd may have incurred.

 

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