Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation our Site Still Up platform and services. You will be asked to agree to these terms and conditions before becoming a customer.
1. Definitions and interpretation
1.1 In the Agreement:
“Affiliate” means an entity that Controls, is controlled by, or is under common Control with the relevant entity;
“Agreement” means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions and any amendments to the Agreement from time to time;
“Business Day” means any week day, other than a bank or public holiday;
“Business Hours” means between 10:00 and 18:00 London time on a Business Day;
“Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer” means the users of the platform;
“Customer Confidential Information” means
(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider during the Term that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential;
(b) the financial terms and conditions of the Agreement;
(c) the Customer Materials;
“Customer Materials” all works and materials:
(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer’s account; and
(b) otherwise provided by the Customer to the Provider in connection with the Agreement;
“Defect” means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents, suppliers or sub-contractors; or
(b) an incompatibility between the Platform and any other system, application, program or software that is not specified;
“Documentation” means the documentation produced by the Provider and made available on the Platform to the Customer specifying how the Platform should be used
“Effective Date” means the date that the Agreement comes into force;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Minimum Term” means the minimum amount of time set in this agreement;
“Permitted Purpose” means the purpose for which the platform may used;
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Platform” means the software platform known as Site Still Up that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under the Agreement;
“Provider” means The Response Control Group, a partnership incorporated in England and Wales having its registered office at Unit 7, Pyramid Court, Rosetta Way, York, YO26 5NB, United Kingdom;
“Services” means all the services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services;
“Support Services” means support and maintenance services provided or to be provided by the Provider to the Customer.
“Term” means the term of the Agreement; and
“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.
1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.
2. Agreement and Term
The Agreement will come into force on the Effective Date and will continue in force for the Minimum Term and indefinitely thereafter.
3. The Platform
3.1 The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account within 1 Business Days following the Effective Date.
3.2 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause  is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
(b) the Customer must not frame or otherwise re-publish or re-distribute the Platform;
(c) the Customer must not alter or adapt or edit the Platform;
3.3 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.
3.4 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
3.5 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer’s account.
3.6 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
3.7 The Customer must not use the Platform:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4. Support Services and Upgrades
4.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform.
4.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.
5. Customer Materials
5.1 The Customer grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.
5.2 Subject to Clause [5.1], all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
5.3 The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of the Agreement, will not:
(a) breach any laws, statutes, regulations or legally-binding codes;
(b) infringe any person’s Intellectual Property Rights or other legal rights; or
(c) give rise to any cause of action against the Provider or the Customer or any third party,
in each case in any jurisdiction and under any applicable law in England and Wales.
5.4 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause , the Provider may:
(a) delete or amend the relevant Customer Materials; and/or
(b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
5.5 Any breach by the Customer of this Clause  will be deemed to be a material breach of the Agreement for the purposes of Clause .
5.6 The Provider shall ensure that the Customer Materials stored and processed by the Platform are stored separately from, and are not co-mingled with, the materials of other customers of the Provider.
6. Trial period
We may from time to time offer a trial period, during which all of the provisions of this Agreement shall apply, save as follows:
(a) either party may terminate the Agreement immediately by giving written notice to the other party at least 30 days before the end of the trial period (in which case no liability to pay any Charges in respect of Platform access or Support Services will arise);
7.1 The Provider will issue invoices for the Charges to the Customer.
7.2 The Customer will pay the Charges to the Provider within 7 day of the date of issue of an invoice issued in accordance with Clause [7.1].
7.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts.
7.4 Charges must be paid by credit or debit card (using such payment details as are notified by the Provider to the Customer from time to time).
7.5 The Provider may vary the Charges on and from any anniversary of the Effective Date by giving to the Customer not less than 90 days’ written notice of the variation, providing that no such variation will result in the relevant element of the Charges increasing during the Term by more than the percentage increase during the same period in the Retail Prices Index (all items) published by the UK Office for National Statistics.
7.6 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue by more than 7 days.
8.1 The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.
8.2 The Provider warrants and represents to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;
(b) that it will perform its obligations under the Agreement with reasonable care and skill;
(c) that the Platform will operate without Defects and will perform substantially in accordance with the Documentation (subject to any Upgrades);
(d) the Platform (excluding for the avoidance of doubt the Customer Materials) will not infringe any person’s Intellectual Property Rights in any jurisdiction and under any applicable law in England and Wales;
(e) the Platform is and will remain free from viruses and other malicious software programs.
8.3 The Customer acknowledges that:
(a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs and 100% uptime;
(b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified within the terms and conditions.
8.4 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.
9.1 The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause [5.3].
9.2 The Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause [8.2(e)].
10. Limitations and exclusions of liability
10.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause  and elsewhere in the Agreement:
(a) are subject to Clause [10.1];
(b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
(c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.
10.3 The Provider will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
10.4 The Provider will not be liable for any loss of business, contracts or commercial opportunities.
10.5 The Provider will not be liable for any loss of or damage to goodwill or reputation.
10.6 The Provider will not be liable in respect of any loss or corruption of any data, database or software.
10.7 The Provider will not be liable in respect of any special, indirect or consequential loss or damage.
10.8 The Provider will not be liable for any losses arising out of a Force Majeure Event.
11. Data protection
11.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
11.2 The Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.
12.1 The Provider will:
(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause ;
(b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
12.2 Customer Confidential Information may be disclosed by the Provider to its officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Customer Confidential Information disclosed.
12.3 The obligations set out in this Clause  shall not apply to:
(a) Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
(b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer;
(c) Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; or
(d) Customer Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the Provider must where permitted by law give to the Customer prompt written notice of the disclosure requirement.
13.1 Either party may terminate the Agreement immediately by giving written notice the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).
13.2 Either party may terminate the Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
13.3 Either party may terminate the Agreement by giving at least 30 days written notice of termination to the other party, expiring at any time after the end of the Minimum Term.
13.4 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate the Agreement by giving at least 30 days written notice of termination to the Customer.
13.5 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.
14. Effects of termination
14.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7.5, 9, 10, 12, 14 and 17].
14.2 Termination of the Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.
14.3 Subject to Clause [14.4], within  days following the termination of the Agreement, the Provider will:
(a) irrevocably delete from the Platform all Customer Confidential Information; and
(b) irrevocably delete from its other computer systems all Customer Confidential Information, and return to the Customer or dispose of as the Customer may instruct all documents and materials containing Customer Confidential Information.
14.4 The Provider may retain any document (including any electronic document) containing the Customer Confidential Information after the termination of the Agreement if:
(a) the Provider is obliged to retain such document by any law or regulation or other rule enforceable against the Provider; or
(b) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the Provider.
15.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by fax or email, for the attention of the relevant person, and to the relevant address or fax number or email address given below (or as notified by one party to the other in accordance with this Clause).
Site Still Up, The Response Control Group, Unit 7, Pyramid Court, Rosetta Way, York, YO26 5NB.
15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by recorded signed-for post, 48 hours after posting; and
(c) where the notice is sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
16. Force Majeure Event
16.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
16.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
17.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
17.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
17.3 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
17.4 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
17.5 Subject to Clause [10.1]:
(a) the Agreement and the acceptable use policy referred to in herein constitute[s] the entire agreement between the parties in relation to the subject matter of the Agreement, and supersede[s] all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
17.6 The Agreement will be governed by and construed in accordance with the laws of England and Wales, and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
18. Verification Process & Approval
(a) Site Still Up reserves the right to reject any Site Still Upaccount or applicationif the contents of a customer’s website contains harmful, malicious or inappropriate material, with immediate effect.