1.1. These Terms and Conditions should be read in conjunction with a completed Quotation, in which you will find the service, pricing and other arrangements specific to your contract with i-Synergy Hosting. Acceptance of the Quotation by you through a Sales Order received by i-Synergy Hosting on behalf of you creates a legally binding contract made up of that Quotation, Sales Order, these Terms and Conditions and any schedules or appendices referred to in either document. For ease, that contract is referred to in these Terms and Conditions as the "Agreement".
1.2. This Agreement together with the documents referred to in it constitutes the whole and only agreement and understanding between the parties relating to its subject matter and supersedes and extinguishes any drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, between the parties in connection with the subject matter of this Agreement whether existing prior to or at the same time as this Agreement. The Agreement will be on these conditions only, to the exclusion of any other terms and conditions (including any terms and conditions which you purport to apply under any purchase order, confirmation of order, specification or other document). Your terms and conditions shall not apply to this Agreement.
Terminology
To make these Terms and Conditions easier to read, we have given the following expressions a specific meaning, when used in this Agreement: Applicable Law: means as applicable and binding on you, i-Synergy Hosting and/or the Services:
any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the Services are provided to or in respect of;
the common law and laws of equity as applicable to the parties from time to time;
any binding court order, judgment or decree; or
any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business;
AUP means i-Synergy Hosting's standard acceptable use policy, a copy of which is available by request. This document may be updated by i-Synergy Hosting from time to time; Authorised Person means a person who has authority to bind any business on whose behalf they confirm acceptance of the Quotation by way of a Sales Order for the Services; Agreement has the meaning give to that term in Clause 1.1; Charges means the charges that you will pay to i-Synergy Hosting for the Services, as detailed in the Quotation; Content means all text, graphics, logos, photographs, images, moving images (including video), sound, illustrations, software, data, calculations, algorithms, methods, information and other material and related documentation featured, displayed or used in or in relation to the Website (including without limitation any Submissions); Commencement Date: the date on which the parties agree in writing for the Services to be provided by i-Synergy Hosting to you; Customer Content means any Content created or supplied or made available by you to iSynergy Hosting in accordance with this Agreement, including without limitation all text, graphics, logos, photographs, images, moving images (including video), sound, illustrations, software, data, calculations, algorithms, methods, information and other material and related documentation featured, displayed or used in or in relation to the Website; Data Protection Laws: means as applicable and binding on you, i-Synergy Hosting and/or the Services:
in the United Kingdom:
the Data Protection Act 1998 and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive); and/or
the GDPR, and/or any corresponding or equivalent national laws or regulations;
in member states of the European Union: the Data Protection Directive or the GDPR, once applicable, and all relevant member state laws or regulations giving effect to or corresponding with any of them; and
any Applicable Laws replacing, amending, extending, re-enacting or consolidating any of the above Data Protection Laws from time to time;
Data Protection Losses: means all liabilities, including all:
costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or nonmaterial damage); and
to the extent permitted by Applicable Law:
administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;
compensation which is ordered by a Supervisory Authority to be paid to a Data Subject; and
the reasonable costs of compliance with investigations by a Supervisory Authority;
Data Subject: has the meaning given to that term in Data Protection Laws; GDPR: means the General Data Protection Regulation (EU) 2016/679; GDPR Date: means from when the GDPR applies on 25 May 2018; Hardware: means the servers, firewalls, equipment, cabling and systems provided by iSynergy Hosting in connection with the Services; Hosting Services: means the description of the website hosting services with respect to the Website as set out in the Quotation. Initial Term means the initial term of this Agreement, as set out in the Quotation; i-Synergy Hosting is a trading style of i-Synergy Hosting Limited, (Co. No. 10025419), whose registered office is at Suite 4, Ironstone House, Ironstone Way, Brixworth, Northamptonshire, NN6 9UD Intellectual Property Rights means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and
(e) wherever existing. Network means your connection to the internet as provided by i-Synergy Hosting or an iSynergy Hosting third party supplier; Notified Maintenance means essential maintenance to be carried out by i-Synergy or a third party in relation to the Services, Hardware and/or Software, which has been notified to you; Personal Data: has the meaning given to that term in Data Protection Laws; Protected Data: means Personal Data received from or on behalf of you in connection with the performance of i-Synergy Hosting’s obligations under this Agreement; Quotation: a quotation provided to you by i-Synergy Hosting for the Services; Renewal Term means the 12 months starting with the date immediately following the end of the Initial Term in accordance with clause 7.1. Sales Order means a verbal or email acceptance of the Quotation for the Services received by i-Synergy from an Authorised Person; Services means the Hosting Services and Support Services, together with any management or other service that i-Synergy Hosting provides to you under this Agreement; SLA means the service level agreement attached as Schedule 1 to these Terms and Conditions, detailing the service levels that i-Synergy Hosting will aim to meet for the Services and any payments that i-Synergy Hosting will make to you if that standard of the Services is not met; Software means any software and related documentation and any updates, upgrades, new versions or releases of the same that i-Synergy Hosting agrees to supply under this Agreement; Submissions means any of your customers generated Content emailed or otherwise externally submitted to the Website; Supervisory Authority: means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws; Support Services means those services detailed in the Quotation; Terms and Conditions means these Master Services Agreement Terms and Conditions; Third Party Services means services provided to you by any supplier other than i-Synergy Hosting or an i-Synergy Hosting agent; Visitor Information means the data collected by i- Synergy Hosting about users of and visitors to the Website, including Customer Content and visitors’ behaviour when accessing the Website or otherwise in connection to the Website or as a result of this Agreement; Website means the domain name or domain names agreed in writing between you and iSynergy to be provided the Services; you and your means i-Synergy Hosting's customer, being the person or entity that is identified in the Quotation; Your Representative means an individual or person nominated to act as your point of contact.
3. The Services that i-Synergy Hosting will provide 3.1. From the Commencement Date, i-Synergy Hosting will provide the Services to you:
3.1.1. to a standard that meets or exceeds the SLA;and
3.1.2. using reasonable care and skill.
3.2. Some of the Services are provided to i-Synergy by a third party provider and you data will be provided to the third party provider as part of the Services. The third party owns the server equipment and i-Synergy leases such equipment from them in order to provide the Services to you.
4. Our Commitments to one another 4.1. Both parties confirm that they have the authority to enter into and meet its respective obligations under this Agreement. 4.2. i-Synergy Hosting confirms that it owns or is licensed to use the systems, products, and materials necessary to provide the Services to you. 4.3. You confirm that whenever you are using the Services, you will do so in accordance with the AUP. 4.4. You will not resell the Services to any third party without i-Synergy Hosting's prior written consent (which i-Synergy Hosting will not unreasonably withhold). 4.5. In addition to your obligations as otherwise specified in this Agreement, you shall be solely responsible for the following:
4.5.1. the accuracy and content of any information provided by you to i-Synergy Hosting; and
4.5.2. any information, programs and other information that you receive as a result of the use of the Services, including without limitation, the entire responsibility of any losses of data, programs, breaches of security, viruses and disabling or harmful devices that you may download or otherwise experience as a result of you use of the Services.
4.6. You agree to use the Services in a manner consistent with any and all applicable laws and regulations.
5. Charges and their payment 5.1. The Charges for the Services shall be set out in the Quotation which shall be payable within 30 days of receipt of i-Synergy Hosting’s invoice properly due; 5.2. If i-Synergy Hosting provides any other Services to you, the Charges payable will be agreed in advance between i-Synergy Hosting and you, in writing. 5.3. All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by you at the rate and in the manner for the time being prescribed by law. 5.4. If you have agreed with i-Synergy Hosting for the payment of the Charges for the Services:
5.4.1. on a monthly basis i-Synergy Supplier shall invoice you for all sums due under this Agreement monthly in advance of the supply of the relevant Services or items to which the invoice relates.
5.4.2. on an annual basis i-Synergy Supplier shall invoice you for all sums due under this Agreement annually in advance of the supply of the relevant Services or items to which the invoice relates
5.5. You shall pay such sums in full without set-off or counterclaim within 30 days from the date of receipt of invoice. 5.6. Where sums due hereunder are not paid in full by the due date, Supplier may, without limiting its other rights, charge interest on such sums at 2.5% a year above the base rate of Barclays Bank from time to time in force. 5.7. Interest will apply from the due date for payment until actual payment in full, whether before or after judgment. 5.8. The parties agree that the Charges are fixed the Initial Term from the Commencement Date. 5.9. Thereafter any increase in the Charges shall be discussed and agreed between the parties. If agreement is not reached within [14] Business Days of i-Synergy Hosting notifying you of the proposed increase, i-Synergy Hosting shall be entitled to increase the Charges in line with the increase (if any) in prices as identified by the [Consumer Prices Index] from the date such Charges were last increased, provided that i-Synergy Hosting shall not be entitled to increase the Charges under this clause more than once every [12] months.
6. Limitations of Services 6.1. i-Synergy does not warrant that the Services will be completely uninterrupted, error-free or secure. 6.2. All other warranties and representations, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law. 6.3. The Customer Content shall only be used by i-Synergy Hosting to enable i-Synergy Hosting to host the Website and provide the Services in relation to the Website but not otherwise. 6.4. You grant i-Synergy Hosting a royalty-free, non-exclusive, non-transferable licence to use the Customer's Content in order to provide the Services. 6.5. You shall ensure that all Customer Content provided is not information that:
6.5.1. infringes any Intellectual Property Rights;
6.5.2. breaches any law, statute or regulation;
6.5.3. is defamatory, libellous, obscene, or otherwise unlawful;
6.5.4. contains viruses or other computer programs intended to damage, interfere with or unlawfully process personal or other data.
6.6. All Visitor Information and Customer Content obtained by i-Synergy Hosting in the course of providing the Services shall belong to you. 6.7. i-Synergy Hosting shall not be responsible for and you shall accept sole responsibility for the following matters:
6.7.1. the taking of back-ups of the Customer Content; and
6.7.2. the safety and integrity of all back-ups of the Customer Content.
7. Limits of Liability 7.1. Liability not excluded Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
7.1.1. death or personal injury caused by negligence;
7.1.2. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
7.1.3. fraud or fraudulent misrepresentation;
7.1.4. any other losses which cannot be excluded or limited by applicable law;
7.2. Limitation on Liability
7.2.1. Unless you terminate this Agreement on the basis that i-Synergy Hosting has committed a material breach of contract, you agree that the service credit regime set out in the SLA will be the sole mechanism by which you will be compensated for any failure by i-Synergy Hosting to meet the service levels set out in the SLA. The service credits stated in the SLA are your exclusive remedy for i-Synergy Hosting’s failure to meet those guarantees for which service credits apply.
7.2.2. In all other cases and subject to clause 7.1 and clause 9, the entire liability of either party to the other under this Agreement in respect of all other losses arising under or in connection with this Agreement, whether in tort (including negligence), contract, breach of statutory duty, or otherwise, shall in no circumstances exceed:
(a) £500 in respect of any one claim or series of related claims; and
(b) provided that this shall be subject to an overall limit of the total amounts payable under this Agreement for the Initial Period or the current Renewal Term in respect of any and all claims, losses and damages arising under or in connection with this Agreement.
7.3. Exclusion of Liability
7.3.1. Subject to clause 7.1 and clause 9, i-Synergy Hosting shall not in any circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for and of the following (whether direct or indirect):
(a) any loss of profits or business or revenue or goodwill or savings, discount or rebate (whether actual or anticipated);
(b) loss or corruption of data insofar as it is inherently incapable of being reconstituted and returned to a fully operational state;
(c) any harm to reputation or loss of opportunity or use
7.3.2. Subject to clause 7.1 and clause 9, neither party shall in any circumstances whatsoever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for consequential, indirect or special losses.
8. Insurance 8.1. You shall ensure that you have adequate insurance cover in relation to any loss or damage which may be caused to i-Synergy Hosting and/or any of its other clients through your negligence or default, your employees, agents, or equipment. You shall, as and when requested, provide i-Synergy Hosting with such evidence as i-Synergy Hosting may require in relation to your insurance. 8.2. i-Synergy Hosting will take out and maintain professional indemnity, public liability and building insurance and will provide you with the relevant certificates of insurance if you so request.
9. Intellectual Property Rights Indemnity 9.1. Each party (the ‘Indemnifying Party’) shall indemnify and keep indemnified and hold harmless the other (the ‘Indemnified Party’) from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Indemnified Party as a result of or in connection with any action, demand or claim that use or operation of any Content or Software provided by the Indemnifying Party infringes the Intellectual Property Rights of any third party ('IPR Claim'), provided that the Indemnifying Party shall not have any such liability if the Indemnified Party:
9.1.1. does not notify the Indemnifying Party in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
9.1.2. makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of Indemnifying Party (which shall not be unreasonably withheld or delayed);
9.1.3. does not let the Indemnifying Party at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim; or
9.1.4. does not, at the Indemnifying Party’s request and own expense, give the Indemnifying Party all reasonable assistance in the circumstances described above.
10. Suspension of the Services 10.1. i-Synergy reserves the right at its sole discretion to suspend the Services (temporarily or permanently) on the occurrence of any unscheduled maintenance or any of the following (each of the following shall be a "Suspension Events"): (i) Notified Maintenance; (ii) issue by any competent authority of an order which is binding on i-Synergy and which affects the Services and which can only be dealt with properly by suspension of the Services; (iii) if you fail to pay any amounts due under this Agreement when they are due; (iv) if any events occur which would entitle i-Synergy to terminate this Agreement; (v) the Bandwidth used by you in relation to the Services exceeds the agreed level and i-Synergy determines in its sole discretion that such suspension is necessary to protect all and any of the Services provided by i-Synergy from time to time.
11. Terminating the Agreement 11.1. This Agreement starts on the Commencement Date and remains in effect for the Initial Term. Unless terminated by either party in accordance with clause 11.2 below, this Agreement will automatically renew for consecutive periods of 12 months, each starting on the anniversary of the Commencement Date (each period being a "Renewal Term"). From the first day of each Renewal Term, the Charges will automatically increase by a percentage amount equal to the increase in the retail prices index (as published by the Office for National Statistics) for the previous calendar year, provided that any such increase will not exceed 5% in any one year. If the change in the relevant index is zero or negative, the Charges will increase by 1%. Charges payable during each Renewal Term will be confirmed to you in writing at least 30 days in advance of the start of that Renewal Term. You have the right to bring the Agreement to an end in line with clause 11.2 if you cannot agree to the Charges being increased in accordance with this paragraph. 11.2. Either you or i-Synergy Hosting can end the Agreement, on the last day of the Initial Term or any annual anniversary of that date by giving the other party at least 30 days' written notice in advance of the end of the Initial Term or any annual anniversary of that date. Alternatively, you can end the Agreement on 30 days' written notice to i-Synergy Hosting if you cannot agree to an:
11.2.1. i-Synergy Hosting proposed change to the AUP
11.2.2. increase in the Charges imposed under paragraph 5.9, 5.10 or 11.1, although you must serve that notice no later than 30 days after the amended AUP or increase in Charges is notified to you. After expiry of that 30 day period, the change or increase that was notified to you will be deemed to have been agreed.
11.3. Either party may end this Agreement by notice in writing if the other materially breaches its obligations under this agreement and either such breach is incapable of remedy or is not remedied within 30 days as from the date of service of such notice of its intention to terminate. 11.4. i-Synergy Hosting may end this Agreement within 14 days after giving you written notice (or immediately on giving you written notice where i-Synergy Hosting is required by law), where:
11.4.1. you have breached i-Synergy Hosting's AUP; or
11.4.2. if you are a company, you present a petition or have a petition presented by a creditor for your winding up, or convene a meeting to pass a resolution for voluntary winding-up, or the making of an administration order, or enter into any liquidations (other than for the purpose of a bona fide reconstruction or amalgamation); call a meeting of your creditors or have a receiver, administrator, administrative receiver, liquidator or any other similar officer or insolvency practitioner appointed in respect of all or any of your undertakings or assets, or are deemed by applicable law to be unable to pay your debts; or
11.4.3. if you are an individual, you die, or, if you are a firm or partnership, are dissolved or in any case, commit any act of bankruptcy or have a receiving order made against you or make or negotiate for any compensation or arrangement with or assignment for the benefit of your creditor.
11.5. However this Agreement ends, each of us will still be responsible for claims or liability (including payments due) relating to the time before the Agreement ended. 11.6. When this Agreement ends:
11.6.1. i-Synergy Hosting will immediately stop providing the Services;
11.6.2. payments due by you under this Agreement will be payable immediately, including any unpaid Charges due for the remainder of the Initial Term or any Renewal Term (except where the Agreement has ended for i-Synergy Hosting's material breach under clause 11.3);
11.6.3. within 30 days after this Agreement ends, each party will return all Confidential Information of the other in its possession at the time this Agreement ends and will not make or keep any copies of that Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
11.7. A breach of the payment provisions, clause 6.4 and clause 9 within this Agreement shall constitute a material breach.
12. Protection of Confidential Information 12.1. Each of us acknowledges that we will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement, proprietary software and customer information (“Confidential Information”). 12.2. Each of us agrees that except as expressly permitted under this Agreement, we will not use in any way, for our own account or the account of any third party, nor disclose to any third party, except as required by law or as reasonably necessary to that party’s professional advisors (or in i-Synergy Hosting's case, to the other operators of i-Synergy Hosting's global network), any of the other party’s Confidential Information and that we will each take reasonable precautions to protect the confidentiality of that information. 12.3. Information will not be deemed Confidential Information if that information: (i) was already known or becomes known to the receiving party from a source other than the disclosing party; (ii) becomes publicly known or becomes no longer secret or confidential, except through a breach of this Agreement by the receiving party; (iii) is independently developed by the receiving party; or (iv) is required to be released by law or regulation, provided that the receiving party promptly informs the disclosing party in writing of the impending release, and the releasing party cooperates fully with the disclosing party to minimise the extent of the release.
13. Software 13.1. Where any Software is licensed to you under this Agreement, you shall not do any of the following with respect to any Software i-Synergy Hosting provides to as part of the Services:
13.1.1. make copies of any Software, unless expressly permitted under this Agreement and you shall keep accurate and up-to-date records of such copying containing such information as i-Synergy Hosting reasonably requests;
13.1.2. translate, adapt, disassemble, reverse engineer or decompile the Software or any part of it, nor arrange or create derivative works based on the Software;
13.1.3. make any modifications, additions or enhancements to the Software;
13.1.4. assign, distribute, license, sell or otherwise deal in or encumber the Software;
13.1.5. remove or alter any copyright or other proprietary notice on the Software, except in each case to the extent such activities are necessary to operate the Website or expressly permitted by applicable English law or are expressly agreed by the parties in this Agreement.
14. Protection of Personal Data 14.1. The Customer shall provide the Personal Data to i-Synergy Hosting together with such other information as i-Synergy Hosting may reasonably require in order for i-Synergy Hosting to provide the Services. 14.2. The Customer shall comply with:
14.2.1. all Data Protection Laws in connection with the processing of Protected Data, the Services and the exercise and performance of its respective rights and obligations under this Agreement, including maintaining all relevant regulatory registrations and notifications as required under Data Protection Laws; and
14.2.2. the terms of this Agreement.
14.3. The Customer warrants, represents and undertakes, that:
14.3.1. all data sourced by the Customer for use in connection with the Services shall comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from, Data Subjects), with Data Protection Laws;
14.3.2. all instructions given by it to i-Synergy Hosting in respect of Personal Data shall at all times be in accordance with Data Protection Laws;
14.3.3. it is satisfied that:
14.3.3.1. i-Synergy Hosting's processing operations are suitable for the purposes for which the Customer proposes to use the Services and engage iSynergy Hosting to process the Protected Data; and
14.3.3.2. i-Synergy Hosting has sufficient expertise, reliability and resources to implement technical and organisational measures that meet the requirements of Data Protection Laws.
14.4. The Customer shall not withhold, delay or condition its agreement to any Change requested by i-Synergy Hosting in order to ensure the Services and i-Synergy Hosting can comply with Data Protection Laws. 14.5. I-Synergy Hosting undertakes that:
14.5.1. it shall process Protected Data strictly in accordance with the obligations of Data Processors under Data Protection Laws in respect of the performance of its obligations under this Agreement and, unless required to do otherwise by Data Protection Laws, in accordance with any specific instructions issued by the Customer governing the processing of the Personal Data (Processing Instructions);
14.5.2. if any laws or legislation requires it to process Protected Data other than in accordance with the Processing Instructions, shall notify the Customer of any such requirement before processing the Protected Data (unless any laws prohibit such information on important grounds of public interest); and
14.5.3. it shall inform the Customer if i-Synergy Hosting becomes aware of a Processing Instruction that, in i-Synergy Hosting’s opinion, infringes Data Protection Laws, provided that:
14.5.3.1. this shall be without prejudice to clauses 14.3 and 14.4;
14.5.3.2. to the maximum extent permitted by law, i-Synergy Hosting shall have no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities (including any Data Protection Losses) arising from or in connection with any processing in accordance with the Customer's Processing Instructions following the Customer's receipt of that information; and
14.5.3.3. this clause 14.5.3 shall only apply from the GDPR Date.
15. General Provisions 15.1. Unenforceable Provisions. If any part of this Agreement is found by a court or other competent authority to be illegal or unenforceable then the rest of this Agreement will remain valid. 15.2. Circumstances outside either party's control. Except for the obligation to pay money, neither you nor i-Synergy Hosting will be liable for any failure or delay in meeting our respective obligations under this Agreement, or for credits due under the SLA, due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, terrorist activity, sabotage, labour shortage or dispute, governmental act or failure of the Internet, provided that whichever of us is affected:
15.2.1. gives the other prompt notice of the situation; and
15.2.2. uses reasonable commercial efforts to correct promptly the failure or delay in performance. If such circumstances continue for a continuous period of more than 6 months, the non-affected party may terminate this Agreement by written notice to the other party.
15.3. Property rights. This Agreement is a services agreement and is not intended to and does not grant a lease or licence over any real or personal property, even although some or part of Your Equipment may be the subject of a separate agreement between us. In particular, you acknowledge and agree that you have not been granted any real property interest in the Colocation Space or iSynergy Hosting's other premises, and you have no rights as a tenant or otherwise under any real property or landlord/tenant/tenant laws, or regulations. 15.4. Compliance with law. Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties hereunder, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other party or its employees, agents and representatives. 15.5. Transfer of rights. You may not assign or transfer your rights or subcontract your obligations under this Agreement either in whole or in part without i-Synergy Hosting's prior written consent. We will not unreasonably refuse that consent. 15.6. Notices. Any notice given under this Agreement must be in writing and may be delivered personally, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the relevant address indicated above, or such other address as either of us may nominate in writing. That notice will be deemed to have been given on the date delivered, or 5 days after mailed or sent, whichever is earlier. 15.7. Status of the parties. i-Synergy Hosting and you are independent contractors and this Agreement does not create any partnership, joint venture or agency or employee relationship. Neither of us has authority to enter into any contract on behalf of the other. 15.8. Changes to this Agreement. This Agreement may only be amended if both of us agree in writing. 15.9. Dispute resolution. If a dispute arises between you and i-Synergy Hosting relating to this Agreement you and i-Synergy Hosting will use reasonable commercial efforts to resolve the dispute at senior management level within 28 days of the dispute arising, failing which:
15.9.1. you and i-Synergy Hosting agree that, within 14 days of the failure to resolve the dispute, either of us may pass the dispute to an Alternative Dispute Resolution (“ADR”) procedure officer of the Centre for Dispute Resolution (CEDR) as adopted by a suitable qualified mediator in London, England appointed by the senior executive officer of CEDR. Each of us will meet our own costs in those proceedings unless we agree otherwise as part of any settlement. If the dispute has not been resolved within a further 28 days or if either of us refuses or ceases to participate in an ADR procedure, or you and i-Synergy Hosting cannot agree on an ADR procedure within 14 days of the failure to resolve the dispute, either of us may refer the dispute to the English Courts; and
15.9.2. nothing in this paragraph prevents either of us from going to court to seek a preliminary injunction or other order at any time if either of us thinks that such an action is necessary.
15.10. Delay in exercising rights. If either of us does not exercise a right which we have under this Agreement or at law, or if either of us delays in exercising that right, we will not be prevented from exercising that right at a later date. 15.11. Documents making up this Agreement. A Quotation, a Sales Order and these Terms and Conditions, together with any schedules or appendices referred to in either document , make up the complete agreement and understanding between us in relation to the Services and replace any other agreement or understanding between us, written or oral. If a conflict is identified between the Quotation and these Terms and Conditions, the Quotation will take precedence. 15.12. Status of headings. Headings have been included for convenience only and will not be used in constructing any provisions of this Agreement. 15.13. Interpretation. Any references in this Agreement to the words in the singular include the plural and vice versa. Where the words "includes" or "including" are used, the words that follow are examples only. 15.14. Governing law. This Agreement and any claims arising out of it or in connection with it (including non-contractual claims) will be governed by English law and both of us agree that the English Courts will have non-exclusive jurisdiction.
