1. Overview

  1. This agreement covers any and all Services provided by ESP Projects to the Customer as set out in the Order. The Order shall be contractually binding on the terms of this agreement.
  2. This agreement supersedes all prior agreements, understandings and arrangements, whether oral or written, as made between ESP Projects and the Customer, and, together with the Order, shall contain the entire understanding between ESP Projects and the Customer.
  3. In the event of any conflict or inconsistency between this agreement and the terms of any Order, the terms of such Order shall prevail, but this agreement shall prevail over the content of its Schedules and any other document incorporated into it. This agreement shall always prevail over any contractual terms and conditions or terms of business of the Customer.
  4. The capitalised terms used in this clause and in the remainder of this agreement shall be as defined in clause 2.

2. Definitions

Acceptable Use Policy:

The Acceptable Use Policy describes the activities that are not allowed on the ESP Projects network and defines terms of responsibility. Details of the policy are in defined in our Acceptable Use Policy and forms part of this agreement.

Confidential Information:

Information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11, or which would reasonably be considered confidential in the ordinary course. ESP considers all Customer Hosted Data to be confidential from ESP’s perspective, regardless of a Customer’s specific internal classification policy.

Customer (or you):

The legal person that has requested the Services in accordance with the Order.

Customer Data:

Data, including data classified as Personally Identifiable Information under the General Data Protection Regulation (GDPR) as it applies in the UK under the Data Protection Act 2018, provided to ESP Projects by the Customer for the purpose of service provisioning and customer relationship management, where ESP Projects is considered the Data Controller as defined by the Act.

Customer Hosted Data:

The data, materials and content hosted by ESP on behalf of the customer which may include, but shall not be limited to: Customer or third-party owned transactional e-commerce websites and other websites, data generated through the processing of ESP Projects-hosted Customer Hosted Data, CRM management data and core business applications where the Customer is deemed the Data Controller under the General Data Protection Regulation (GDPR) as it applies in the UK under the Data Protection Act 2018.

Customer Hosted Solution:

The entirety of ESP Projects services that are purchased by or otherwise allocated to the Customer, including, but not limited to, virtual and physical network, computer and storage resources.

DoS/DDoS:

Denial of Service / Distributed Denial of Service – A specific attack aimed at degrading or disrupting performance or availability of a Server or network’s proper functioning.

Emergency Maintenance:

Exceptional maintenance that is time critical and related to high priority operational or security matters, such as an urgent networking issue impacting on the performance of multiple customers or critical new security vulnerability. Emergency Maintenance may or may not include downtime or degradation of Services to Customers. Reasonable endeavours will be made to alert customers to Emergency Maintenance via email including an identification of the time period in which the maintenance will occur (‘maintenance window’) prior to the maintenance occurring.

Effective Date:

The date of this agreement.

Fees:

The fees and charges payable by the Customer to ESP Projects in consideration of the Services as provided.

Initial Term:

The initial term of this agreement as set out in the Order.

ESP Projects (or we or us):

ESP Projects Ltd (company number 04472697), of Unit 7, Edmund Road Business Centre, 135 Edmund Road, Sheffield S2 4ED (registered office).

ESP Projects Control Panel:

The web-facing applications made available by ESP for use by the Customer for the purposes of configuration and management of the Customer Hosted Solution.

Primary System Administrator:

The user of the Customer Hosted Solution that holds the ultimate technical power over the account to over-ride, alter or otherwise degrade configurations and controls implemented by ESP Projects on the Customer Hosted Solution, and may via the ESP Projects Control Panel, request or implement changes on the Customer Hosted Solution. Conventionally, this is the ‘administrative contact’ on the Customer account.

Order:

The request to purchase ESP Projects Services subject to the terms of this agreement.

Scheduled Maintenance:

The patching, upgrading, bug fixing or enhancing of software or the replacement, renewal of Network/Data Center Infrastructure that has been communicated to Customers via email, providing a future time period in which maintenance will occur (‘Maintenance window’). Scheduled Maintenance may be scoped to Customer-specific, shared or ESP Projects core infrastructure and may or may not include downtime or degradation of Services to Customers, depending on the nature of the maintenance required.

Security Incident:

A materially impacting cyber or physical security event for which ESP Projects is responsible that materially impacts on more than one customer.

Services:

Any subscription services provided by ESP Projects to the Customer under this agreement, including but not limited to the provision of hosting services, network, computer and storage resources, consulting and technical administration.

Service Level Agreement:

The terms of our service level agreement are set out in our Service Level Agreement and forms part of this agreement.

Ticket:

Mass or Customer-specific communication made via the ESP ticketing system.

Term:

The term of this agreement as defined in clause 14.

Malware:

Malicious code – Any code or software that was developed with the intention to damage, disrupt, steal, or in general inflict some other “bad” or illegitimate action on data, hosts, or networks. Includes Viruses, Worms, Trojans, Bots, Back Doors, Spyware, and Adware.

3. Services

  1. ESP Projects shall, during the Term, provide the Services to the Customer as specified in the Order on and subject to the terms of this agreement, but subject to the either Party’s right to terminate this agreement in accordance with clause 14.
  2. ESP Projects may expand or contract the scope of the Services by issuing an amended Order to the Customer in advance of any such change.
  3. The Services shall be provided in accordance with the response times and guarantees set out in the Service Level Agreement.
  4. ESP Projects shall use its commercially reasonable endeavours to provide the availability of the Services in accordance with the Service Level Agreement, subject always to any planned or unscheduled maintenance notified to the Customer provided that ESP Projects has given reasonable notice to the Customer in advance.
  5. The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer or any other related party.

4. Shared Spheres of Responsibility

  1. The Customer’s top-level ESP Projects Control Panel account user (‘Admin User’) is considered to be the Primary System Administrator of their Services. The responsibilities of the Primary System Administrator include, but are not limited to, the definition and maintenance of appropriate passwords and Customer user account configuration, Server Hardening, firewall Access Control Lists(ACL) and other industry standard or good practice controls.
  2. ESP Projects does not make representations as to the security of the Customer Hosted Solution as deployed by ESP Projects beyond those required by ESP’s own standards and compliance. The security of the Customer Hosted Solution requires continual maintenance and administration by the Customer. ESP Projects may be able to assist with this maintenance or execute instructions contained in Customer support tickets relative to the Support Level selected by the Customer. As the Primary System Administrator of their services, the Customer retains primary responsibility for the security and secure configuration of the Services that they purchase from ESP.
  3. The Customer is solely responsible for the security of their ESP Projects Control Panel user accounts including credentials, usernames and API tokens, and for the security of non-ESP Projects administration user accounts created on their hosted solution.
  4. Where ESP Projects maintains sole access to infrastructure or systems (as in the examples of Public Cloud hypervisors, host Servers underlying shared virtual infrastructure, back-end storage and backup systems, ESP Projects websites and shared customer Control Panels, core network) then ESP Projects will retain sole responsibility for the security and resilience of these infrastructures or systems.

5. Customer Hosted Data

The Customer shall own all rights, title and interest in and to all of the Customer Hosted Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Hosted Data. The Customer is the Data Controller for all Customer Hosted Data.

6. Third Party Providers

  1. ESP Projects may use third party service provider to perform all or any part of the service, but ESP shall remain responsible to the Customer under this agreement for Service perform by its third party service providers to the same extent as if ESP performed the Services itself.
  2. ESP will undertake appropriate due diligence of any third party service provider used to provide services to the customer.
  3. This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

7. ESP’s Obligations

  1. ESP Projects undertakes that the Services will be performed in accordance with the provisions of the Service Level Agreement
  2. ESP is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, outside of ESP’s sole control and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  3. ESP Projects will comply with its responsibilities as Data Controller for all Customer Data in its possession as per the requirements of the General Data Protection Regulation (GDPR) as it applies in the UK under the Data Protection Act 2018.
  4. ESP Projects shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Hosted Data and the Customer acknowledges that such document may be amended by ESP Projects at its sole discretion.
  5. ESP will comply with its responsibilities as Data Processor for all Customer Hosted Data in its possession as per the requirements of the General Data Protection Regulation (GDPR) as it applies in the UK under the Data Protection Act 2018. In addition:
    1. ESP Projects will only transfer such Customer Hosted Data outside of the EU on written permission from the Customer
    2. ESP Projects shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer
  6. ESP Projects warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement where such aspects fall under ESP’s responsibility. For clarity regarding licensing, the Customer should refer to the ESP Acceptable Use Policy.

8. Customer’s Obligations

  1. The Customer shall:
    1. Provide ESP Projects with:
      1. all necessary co-operation in relation to this agreement
      2. all necessary access to such information as may be required by ESP Projects
    2. Adhere to the ESP Acceptable Use policy at all times
    3. Comply with all applicable laws and regulations with respect to its activities under this agreement
    4. Not remove, degrade or otherwise interfere with agents installed on the Customer Hosted System for the purposes of license audit
    5. Carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, ESP Projects may adjust any agreed timetable, delivery schedule or price as reasonably necessary
    6. Obtain and maintain all necessary licences, consents, and permissions necessary for ESP Projects, its contractors and agents to perform their obligations under this agreement, including without limitation the Services
    7. Ensure that its network and systems comply with the relevant specifications provided by ESP Projects
    8. Be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to ESP Projects’ Data Centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet
    9. Promptly notify ESP Projects of any actual or suspected breaches of security, or similar concerns, of which the Customer becomes aware
    10. Comply with all responsibilities as Data Controller of the Customer’s Customer Hosted Data under the General Data Protection Regulation (GDPR) as it applies in the UK under the Data Protection Act 2018
  2. The Customer acknowledges that it accepts all risk of any authorised, unauthorised or illegal use of the ESP Projects network by the Customer or by any party having contracted to the Customer which own any data, materials, content or inter-connected network hosted or accessible by means of any Server of ESP Projects.
  3. ESP Projects provides no warranties, makes no representations and accepts no liability for the unauthorised or illegal acts or interference with the Customer’s Server/network unless such access or interference is caused by the intentional unlawful acts of ESP Projects.

9. Fees and Payment

  1. The Customer shall pay the Fees to ESP Projects for the Services it uses in accordance with this clause 9 and the Order and Fees Policy Schedule.
  2. If ESP Projects has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of ESP Projects:
    1. ESP Projects may, without liability to the Customer and without the need to notify the Customer, disable the Customer’s password, account and access to all or part of the Services and ESP Projects shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
    2. 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 Barclays Bank, commencing on the due date and continuing until fully paid, whether before or after judgement.
  3. All amounts and fees stated or referred to in this agreement:
    1. shall be payable in pounds sterling;
    2. are non-refundable;
    3. are exclusive of value added tax, which shall be added to ESP Projects’ invoice(s) at the appropriate rate.
  4. If, at any time whilst using the Services, the Customer exceeds the amount of storage space, network bandwidth or computing power made available by ESP Projects for the Customer’s purposes, ESP Projects shall charge the Customer, and the Customer shall pay, ESP Projects’s then current excess data storage fees network bandwidth or computing power.
  5. ESP Projects shall be entitled to increase the Fees upon 90 days’ prior notice to the Customer.

10. Proprietary Rights

  1. The Customer acknowledges and agrees that ESP Projects and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
  2. ESP Projects confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
  3. The Customer retains ownership of all intellectual property rights pertaining to the Customer Hosted Data.

11. Confidentiality

  1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
    1. is or becomes publicly known other than through any act or omission of the receiving party;
    2. was in the other party’s lawful possession before the disclosure;
    3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
    4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
    5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
  2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
  3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
  4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
  5. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute ESP Projects’ Confidential Information.
  6. ESP Projects acknowledges that the Customer Hosted Data is the Confidential Information of the Customer.
  7. This clause 11 shall survive termination of this agreement, however arising.
  8. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12. Indemnity

  1. The customer shall pay the cost of any defending claim met by ESP, (including reasonable legal fees, applicable damages or fines) arising out of or in connection with alleged or actual negligence, breach of law or regulation, breach of an agreement with their customers or end users, of our Terms and Conditions, or of our Acceptable Use Policy.
  2. In no event shall ESP Projects, its employees, agents or sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
    1. a modification of the Services by anyone other than ESP Projects; or
    2. the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by ESP Projects including those in the ESP Projects Acceptable Use Policy; or
    3. the Customer’s use of the Services after notice of the alleged or actual infringement from ESP Projects or any appropriate authority.

13. Limitation of Liability

  1. This clause sets out the entire financial liability of ESP Projects (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
    1. arising under or in connection with this agreement;
    2. in respect of any use made by the Customer of the Services or any part of them; and
    3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
  2. Except as expressly and specifically provided in this agreement:
    1. the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. ESP Projects shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ESP Projects by the Customer in connection with the Services, or any actions taken by ESP Projects at the Customer’s direction;
    2. 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 this agreement; and
    3. the Services are provided to the Customer on an “as is” basis.
  3. Nothing in this agreement excludes the liability of ESP Projects:
    1. for death or personal injury caused by ESP Projects’ negligence; or
    2. for fraud or fraudulent misrepresentation.
    3. The service credits detailed within the ESP Service Level Agreement, which constitute your exclusive remedy should ESP fail to meet those set out in the agreement.
  4. Subject to clause 13.2 and clause 13.3:
    1. ESP Projects, its members, shareholders, directors, officers, employees or representatives shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits or savings, loss of business, loss of data (including but not limited to Customer Hosted Data), loss or depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, punitive or exemplary damages, charges or expenses however arising under this agreement; and
    2. ESP Projects’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid for the Services by the Customer during the month immediately preceding the date on which the claim arose.

14. Term and Termination

  1. This agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the date specified in the Order and shall continue for the Initial Term and, thereafter, this agreement shall be automatically renewed for successive periods of equal length to the Initial Term (each a Renewal Period), unless:
    1. either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
    2. otherwise terminated in accordance with the provisions of this agreement;

and the Initial Term together with any subsequent Renewal Periods shall constitute the entire Term of this agreement.

  1. Without affecting any other right or remedy available to it, ESP Projects may terminate this agreement with immediate effect by giving written notice to the Customer if:
    1. The Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment.
    2. The Customer commits a material breach of any term of this agreement (if such breach is remediable) and fails to remedy that breach within a period of 30 days after being notified in writing to do so.
    3. The Customer repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement.
    4. The Customer breaches the Acceptable Use Policy.
    5. The Customer has, on an ongoing basis, failed to make reasonable endeavours within their sphere of responsibility to mitigate the risk of DoS, DDoS or compromise or where continued service to the Customer carries commercially unreasonable risk of disruption or reputational damage to ESP Projects systems, other ESP Projects Customers or ESP Projects upstream providers.
  2. On termination of this agreement for any reason:
    1. all licences granted under this agreement shall immediately terminate at the end of their licensing period.
    2. 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 the agreement which existed at or before the date of termination, shall not be affected or prejudiced.

15. Force Majeure

ESP Projects shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ESP Projects or any other party), failure of a utility service or transport or telecommunications network, 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, provided that the Customer is notified of such an event and its expected duration.

16. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. Waiver

No failure or delay by ESP Projects to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18. Rights and Remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

19. Severance

If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, that provision or its part in question shall be severed from the remaining provisions and shall not affect their validity or enforceability

20. Assignment

  1. The Customer shall not, without the prior written consent of ESP Projects, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
  2. ESP Projects may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

21. Partnership or Agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22. Governing Law & Jurisdiction

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

Fees Policy Schedule

The Customer agrees to pay ESP Projects, without limitation, for the Services it uses. ESP Projects reserves the right to charge the Customer standard hourly rates (£70+vat), to cover the resolution of excessive or unusual problems or complaints.

  1. Invoices

Invoices are emailed to the current billing email address. Monthly Service Fees are invoiced fourteen (14) days in advance and payment is due within 14 days of receipt.

Clients are fully responsible to ensure payment of all amounts due is paid on time independently of receiving invoice or billing notifications by email from ESP Projects. Overdue accounts may be disconnected at any time after the expiry date. All data will be deleted on the effective termination date unless alternative arrangements are made with ESP Projects.

  1. Cancellation Policy

Unless stated in this schedule point 4 Exceptions or otherwise negotiated in writing, each Service contract renews on expiry of its Initial Term for another equal Term. In order to cancel a Service contract the Customer must notify ESP Projects at least 30 days before expiry of the current Term via the online cancellation form.

If a service is cancelled with less than the Term remaining an invoice will be issued for the additional days. There are no partial refunds or credits for early cancellations. All payments to ESP Projects are final and non-refundable.

  1. Overdue payments

All invoices are due within 14 days of the stated invoice date. At our discretion we may refer overdue payments to our debt collections agency, and in that event an administration charge will be added to the outstanding amount. The value of the administration charge is discretionary, but would be a minimum of 25% of the overdue amount.