THESE TERMS AND CONDITIONS are entered into on the Commencement Date BETWEEN: (a) Wirehive Limited (company number 05451011), whose registered address is Chester House, Farnborough Aerospace Centre, Farnborough, GU14 6TQ (“Wirehive”), and (the “Customer”), (each a “Party” and together the “Parties”).

1.          DEFINITIONS

1.1        In this Agreement the following words shall have the following meanings:

Acceptable Use Policy” means Wirehive’s acceptable use policy located at https://www.wirehive.com/acceptable-use-policy;

Agreement” means these Terms and Conditions (including all Schedules) together with any applicable Order;

Business Day” means any day which is not a Saturday, Sunday or public holiday in England;

Cloud Platform Services” means all Servers and Services provided by Wirehive to the Customer that are delivered by, or in conjunction with, Wirehive’s virtualised public cloud platform as set out in Schedule 5;

Commencement Date” means the date on which these Terms and Conditions are signed by both Parties;

Confidential Information” means this Agreement and all information disclosed in any form or medium by one Party to the other or otherwise received by the other in the negotiation, entering into or performance of this Agreement and the Services, which relates directly or indirectly to the disclosing Party or any other third party with which it has or proposes to have business dealings and its or their officers, employees, agents, suppliers or contractors, and including any information which is identified as confidential at the time of disclosure or which ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure, but excluding information that:

(a)         was in the other Party’s lawful possession before the disclosure;

(b)         is already in, or subsequently becomes part of, the public domain other than as a result of an unauthorised disclosure;

(c)         is or becomes available to the receiving Party from a third party who is legally entitled to possess and provide the information to the receiving Party; or

(d)         is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body;

Consultancy Engagement” means the period during which Wirehive shall supply the Consultancy Services from the Order Commencement Date and as set out in the Statement of Work;

Consultancy Services” means the professional consultancy services to be supplied by Wirehive to Customer pursuant to a Statement of Work and Schedule 4;

Customer Data” means any data (including “Personal Data” as defined in Data Protection Laws), provided by the Customer to Wirehive under this Agreement;

Data Protection Laws” means as defined in Schedule 1;

Dedicated Platform Services” means all Servers and Services provided by Wirehive to the Customer that are delivered by, or in conjunction with, Wirehive’s dedicated public cloud platform as set out in Schedule 5;

Fees” means the sums payable by the Customer to Wirehive for the Services, as set out in section 4 of the applicable Order;

Good Industry Practice” means in relation to any undertaking and any circumstances, the exercise of such skill, diligence, prudence, foresight and judgment and the making of such expenditure which would reasonably be expected from a skilled person engaged in the same type of undertaking under the same or similar circumstances;

Insolvency Event” means an event in which:

(a)         a Party ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement);

(b)         a Party becomes insolvent or unable to pay its debts within the meaning of the applicable insolvency legislation;

(c)         a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of the other Party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;

(d)         the ability of the other Party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of the other Party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or

(e)         any process is instituted which could lead to the other Party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction);

Intellectual Property Rights” means all rights, including intellectual property rights, where in the world arising, whether registered or unregistered (and including any application), including trade secrets, confidential information, patents, design rights, copyright, trademarks, know-how, business names and domain names, service marks, trade names, petty patents, utility models, semi-conductor topography rights, database rights and any analogous or similar rights in any jurisdiction, and all rights in the nature of unfair competition rights or rights to sue for passing off;

Order” means an order agreed and executed by the Parties pursuant to clause 3.2, or submitted by the Customer via the Portal and accepted by Wirehive or means a Statement of Work in respect to Consultancy Services;

Order Commencement Date” means the date on which an Order shall take effect, as set out in the applicable Order;

Order Initial Term” means the initial term of an Order, as set out in the applicable Order;

Order Term” means the term during which the applicable Order shall remain in full force and effect (including the Order Initial Term and any subsequent Order Renewal Term), subject to the terms of this Agreement;

Portal” means the Wirehive customer support portal located at https://wirehive.support/ (or as otherwise notified to the Customer from time to time);

Public Cloud Service Levels” means the service levels set out in Schedule 5.

Retained Services” means the services as set out in Schedule 3;

Security Measures” means Wirehive’s security policy document as set out at https://www.wirehive.com/compliance/security/security-measures and as may be updated by Wirehive on notice to the Customer from time to time;

Surge Event” means an increase of 30% or greater in traffic to the provided host, including as a result of launches of new websites, launches of rebranded and/or refreshed websites, sales and promotions, and other events (such as webinars);

Servers” means the servers specified in the applicable Order;

Services” means the services to be provided by Wirehive to the Customer pursuant to any Order, including the Support and Maintenance, and which may (subject to the applicable Order) include Retained Services and/or Third Party Cloud Services set out in Schedule 6 and/or the Consultancy Services set out in an executed Statement of Work;

Service Levels” means the service levels set out in Schedule 5 to this Agreement;

Statement of Work” means the Wirehive document setting out the scope and nature of the Consultancy Services and accepted by Wirehive;

Support and Maintenance Services” means the services set out in Schedule 2;

Term” has the meaning given to it in clause 2.1;

Terms and Conditions” means these terms and conditions, as agreed and executed by Wirehive and the Customer;

Third Party Add-Ons” means the third party products and/or services ordered by the Customer as part of an Order which Wirehive then purchases on behalf of the Customer and are provided by the third party and not Wirehive.

Third Party Cloud Services” means the services set out in Schedule 6.

2.          TERM

2.1        These Terms and Conditions shall commence on the Commencement Date and shall continue in full force and effect until the date 36 months from the Commencement Date (the “Initial Term”), at which time these Terms and Conditions automatically renew for consecutive periods of 12 months (each a “Renewal Term”), unless otherwise terminated in accordance with the terms of this Agreement (the “Term”).

2.2        Each Order shall come into force on the earlier of: (a) the date on which such Order is signed by both Parties, or (if such Order is submitted via the Portal) the date on which Wirehive notifies the Customer (including by email, automatic message, and otherwise) that it has accepted such Order, and (b) the Order Commencement Date, and shall continue until the final date of the Order Initial Term, following which the applicable Order shall automatically renew for consecutive periods of:

2.2.1     the lesser of: (a) a duration equal to the Order Initial Term, or (b) 12 months; or

2.2.2     one calendar month, where agreed by Wirehive in writing in advance and subject to an increase of 20% (or such other amount as may be specified by Wirehive) in the Fees applicable to the relevant Order,

(each an “Order Renewal Term”), unless otherwise terminated in accordance with the terms of this Agreement (the “Order Term”).

2.3        Notwithstanding the foregoing, the Consultancy Services shall be provided for the duration of the Consultancy Engagement period only, unless otherwise terminated in accordance with the terms of this Agreement.

3.          SERVICES

3.1        Wirehive shall, during the Order Term, provide the Services set out in the applicable Order to the Customer on and subject to the terms of such Order and these Terms and Conditions.

3.2        The Customer may purchase Services using one or more Orders (including via the Portal). Each duly executed Order shall constitute a separate contract that incorporates and is subject to these Terms and Conditions. For the avoidance of doubt, Orders submitted by the Customer via the Portal shall be deemed executed at such time as Wirehive notifies the Customer (including via email, automatic message, or otherwise) that is has unconditionally accepted such Order.

3.3        As between the Parties, title to all hardware (including servers), software, documents, methodologies and any Intellectual Property Rights provided by or on behalf of Wirehive pursuant to or in connection with this Agreement shall remain the sole and exclusive property of Wirehive. Unless otherwise specified in the applicable Order, title to such hardware (including servers) and/or software and/or documents and/or methodologies and/or Intellectual Property Rights shall not pass to the Customer at any time before, during, or after the Term and/or applicable Order Term.

3.4        Subject always to clause 14, in order to provide the Services Wirehive may (in its sole discretion) move all or any part of the Customer Data to a different server.

3.5        Where the Services include Consultancy Services:

3.5.1     the Parties shall finalise the scope and requirements of the Services in a validly executed Statement of Work which shall form the Order pursuant to clause 3.2; and

3.5.2     the terms at Schedule 4 (Consultancy Services) shall apply in addition to the Terms and Conditions in respect to the Consultancy Services.

3.6        Where the Services include for Wirehive to purchase Third Party Add-Ons for the Customer’s use, then the Customer acknowledges that Add On Services are provided on an ‘as is’ basis only, and Wirehive shall pass on the benefit of any warranty to the Customers subject always to the terms and conditions of the Third Party Add-On.

3.7        Unless otherwise specified in an Order the Services do not include any disaster recovery, back up or business continuity planning or service for the Customer Data and the Customer shall be responsible for considering the scope of any such additional features it requires and requesting the same from Wirehive in an executed Order.

4.          SERVICE LEVELS

4.1        Wirehive shall meet the Service Levels set out in:

4.1.1     Schedule 5 of this Agreement, in respect of Public Cloud Platform Services; and

4.1.2     Schedule 5 of this Agreement, in respect of Dedicated Platform Services.

5.          CUSTOMER’S OBLIGATIONS

5.1        The Customer shall:

5.1.1     cooperate with all reasonable requests made by Wirehive;

5.1.2     provide Wirehive with any information reasonably required by Wirehive;

5.1.3     obtain and maintain at all times during the applicable Order Term all necessary permissions and consents applicable to the Customer’s receipt and use of the Services;

5.1.4     provide Wirehive with the necessary administrative access to monitor, manage and access their Servers as is reasonably expected in order to deliver the Services;

5.1.5     notify Wirehive in advance of any potential Surge Events (or periods in which Surge Events are likely) in accordance with clause 7;

5.1.6     comply with all policies and procedures as may be notified to the Customer by Wirehive from time to time; and

5.1.7     comply with such other requirements as may be set out in the Order or otherwise agreed between the Parties in writing.

5.2        Wirehive is not responsible or liable for any failure or delay (including in providing the Services and/or performing its obligations under this Agreement) resulting from any act or omission by the Customer (including as a result of the Customer’s failure to comply with clause 5.1). In the event of any such failure or delay: (a) the timeframes for delivery of the Services and/or performance of the relevant obligations (as applicable) shall be extended to account for the duration of such failure or delay, and (b) the Customer shall pay to Wirehive all additional fees reasonably incurred by Wirehive in connection with such delay or failure.

5.3        The Customer shall not, without the prior written consent of Wirehive, at any time from the date of the Agreement to the expiry of six months after the termination the Agreement, solicit or entice away from Wirehive or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Wirehive in the provision of the Services.

5.4        Any consent given by Wirehive in accordance with clause 5.3 shall be subject to the Customer paying to Wirehive a sum equivalent to 20% of the then current annual remuneration of Wirehive’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.

6.          APPROPRIATE USE

6.1        The Customer shall not use the Services: (a) to send, receive, process, or store any materials or content that breaches the Acceptable Use Policy (“Infringing Content”), or (b) for any malicious or illegal purposes (including the sending or use of viruses or other malicious code or software), (together, “Malicious Purposes”).

6.2        Wirehive may immediately suspend the Services where Wirehive reasonably believes that the Services are being used, or the Customer is permitting third parties to use the Service, for Malicious Purposes in contravention of clause 6.1. For the avoidance of doubt, all Fees shall continue to be payable to Wirehive in full during any such period of suspension.

6.3        As soon as reasonably practicable following:

6.3.1     Wirehive’s suspension of the Services pursuant to clause 6.2, Wirehive shall notify the Customer of the suspension and reasons for such; and

6.3.2     the Customer removing all Infringing Content in full and/or ceasing to undertake or permit the Malicious Purposes (as applicable), Wirehive shall resume provision of the Services.

6.4        The Customer shall indemnify Wirehive from and against all claims, actions, damages, losses and expenses (including, without limitation, legal fees) arising as a result of any breach by the Customer of clause 6.1.

7.         SURGE

7.1        The Customer shall provide Wirehive not less than 7 calendar days’ prior written notice of any Surge Event or potential Surge Event.

7.2        Following receipt of the notice provided by the Customer pursuant to clause 7.1, and prior to the date of the Surge Event (or potential Surge Event), the Parties shall agree: (a) a course of action to be taken by Wirehive in respect of the Surge Event, and (b) charges applicable to such course of action.

7.3        In the event that the Customer fails to provide notice of a Surge Event (or potential Surge Event) in accordance with clause 7.1, or the Parties fail to agree a course of action or charges applicable to such course of action pursuant to clause 7.2, Wirehive may (in its sole discretion) in respect of the Surge Event or potential Surge Event:

7.3.1     quench all or part of the traffic to the applicable website(s); and/or

7.3.2     provide additional resources (as deemed reasonably necessary by Wirehive) to mitigate against the effects of the Surge Event or potential Surge Event (for the Customer and other Wirehive customers),

provided that in any event: (a) the Customer shall pay to Wirehive all charges and fees in respect of extra staffing, extra support, out of hours support, any additional monitoring services required by Wirehive, and/or any additional hardware requirements (including additional servers) provided by or on behalf of Wirehive, and (b) Wirehive shall not be liable to the Customer for any failure to meet any Service Levels (including Server Availability) or pay any associated Service Credits in respect of such failure.

8.          WARRANTIES

8.1        Each Party warrants to the other Party that it has full power and authority to enter into and perform this Agreement.

8.2        Wirehive warrants that it:

8.2.1     will perform the Services with reasonable care and skill and in accordance with Good Industry Practice;

8.2.2     has obtained and will maintain all necessary licences, permissions, and authorisations required to provide the Services; and

8.2.3     will comply with all laws and regulations applicable to Wirehive’s: (a) provision of the Services, and (b) business as a provider of managed hosting and related solutions and services.

8.3        Wirehive gives no warranty or representation in relation to any Third-Party Add-On.

8.4        Otherwise than as set out in this clause 8, all warranties, representations, conditions, and 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. In particular, Wirehive makes no warranties or representations that: (a) the Services will be uninterrupted or error free, and shall not be liable (directly or indirectly) for any interruption of the Services, and/or (b) the Services will be compatible with any items or materials (including website) used by the Customer in connection with the Services, and shall not be liable for such items or materials or any failure in the Services resulting from the improper functioning of, or incompatibility of such items or materials in connection with, the Services.

9.          DEPOSIT AND CREDIT CHECKING

9.1        The Customer hereby permits Wirehive to undertake credit check(s) and similar reviews of the Customer’s financial standing, and agrees to provide to Wirehive all reasonably required financial and credit information promptly on request by Wirehive.

9.2        Wirehive may (in its sole discretion), at any time and in respect of all or any part of the Services, require the Customer to pay to Wirehive a deposit of up to 6 months’ Fees in respect of the applicable Services (or, where such Fees cannot accurately be ascertained, Wirehive’s reasonable estimate as to such fees) (the “Deposit”), including as: (a) a condition of Wirehive’s acceptance of any Order or continued provision of any Services, (b) a result of any non-payment of Fees in accordance with this Agreement by the Customer, and/or (c) any change or perceived change in the Customer’s financial standing or credit worthiness.

9.3        The Customer shall pay the Deposit to Wirehive within 10 Business Days of receipt of notice from Wirehive requiring the Customer to pay such Deposit. Where: (a) commencement of Services is conditional upon payment of the Deposit, Wirehive shall not be liable to provide such Services (or any Services that rely on such Services) until Wirehive has received the Deposit in full, and (b) continued provision of Services is conditional upon payment of the Deposit, Wirehive shall be entitled to suspend the Services (and any Services that rely on such Services) and/or terminate the applicable Order(s) and/or this Agreement if such Deposit is not paid in full to Wirehive within the timeframes set out in this clause 9.3 (unless otherwise agreed between the Parties).

9.4        Wirehive shall credit or otherwise refund the Deposit to the Customer, less any deductions for unpaid Fees or other outstanding charges payable to Wirehive in respect of the applicable Services, within a reasonable period of time following expiry or termination of the Order(s) to which the Deposit pertains.

10.        FEES AND PAYMENT

10.1      The Customer shall pay the Fees to Wirehive in accordance with this clause 10, unless otherwise specified in the relevant Order.

Server Billing Commencement

10.2      Where the Services pertain to the provision by Wirehive of Server(s), Wirehive shall:

10.2.1   notify the Customer in writing (including by email) of the date on which the server(s) are live and ready for use (a “ Connection Notice”);

10.2.2   subject to clause 10.3, invoice the Customer in respect of such Server(s) on and from the date of the Connection Notice; and

10.2.3   upon receipt by Wirehive of the first payment due in relation to the Server(s), or of the relevant Direct Debit mandate for such Server(s), (as applicable) provide server access details to the Customer in respect of such Server(s).

10.3      In the event that the Customer notifies Wirehive within 3 Business Days following the date of the Connection Notice that the server(s) are not functioning correctly, Wirehive shall: (a) use reasonable endeavours to correct such issues, and (b) upon written request from the Customer, credit the Customer’s account with Wirehive in the amount of 1/30 (one-thirtieth) of the Fees applicable to the non-functioning server(s) in the relevant calendar month in respect of each calendar day for the Customer was unable to use such server(s).

10.4      In the event that Wirehive cannot complete the installation of any server(s) due to any act or omission (including delay) of the Customer, Wirehive may commence charging of the Fees applicable to such server(s), and the Customer shall pay such Fees, on and from the date of the Connection Notice.

Invoices and Payments

10.5      Unless otherwise agreed between the Parties (including pursuant to an Order), the Customer shall pay all Fees and other sums payable pursuant to this Agreement by direct debit:

10.5.1   in respect of any fixed charges, monthly in advance; and

10.5.2   in respect of any usage-based (variable) charges, monthly in arrears,

provided that, in respect of each direct debit collection that is returned or rejected otherwise than as a result of any act or omission by Wirehive, the Customer shall pay to Wirehive the sum of £20.

10.6      Where the Customer requires Wirehive to raise an invoice in respect of any Fees:

10.6.1   Wirehive shall be entitled to raise such invoice on and from 30 (thirty) days prior to the date on which such Fees are due (pursuant to clause 10.5);

10.6.2   the Customer shall remit payment no later than 30 (thirty) days following that date of such invoice,

provided that, where the Customer requires Wirehive to submit any such invoice against a purchase order, the Customer shall provide such valid purchase order to Wirehive prior to the date on which Wirehive is permitted to submit the relevant invoice. For the avoidance of doubt, failure to provide any purchase order does not constitute a valid reason for non-payment of any invoice.

10.7      All payments:

10.7.1   shall be made by the Customer in British Pound Sterling (£), without deduction or set off of any amount; and

10.7.2   are exclusive of value added tax, sales tax, use, withholding, and other similar taxes or duties, which shall be payable by the Customer in addition to the Fees; and

10.7.3   may be subject to additional administration charges, as notified (including via the Portal) by Wirehive from time to time, where such payments are made otherwise than by direct debit or wire transfer (including CHAPS, SWIFT, and other online transfer mechanisms).

10.8      In the event that any valid direct debit or invoice is not paid by the Customer by the dates specified in clauses 10.5 and/or 10.6.2 (as applicable), Wirehive shall be entitled to:

10.8.1   charge interest on the outstanding sum at a rate of 4% per annum above the base rate of the Bank of England from the date on which payment became due until the date on which Wirehive receives the payment in full; and/or

10.8.2   suspend Services; provided that, following Due Date, Wirehive has first given to the Customer not less than 14 (fourteen) days’ prior written notice requiring the Customer to pay such overdue sum. For the avoidance of doubt, if the Customer remits the applicable payment in full no later than 7 (seven) days following such Suspension Date, the Services will be reconnected subject to Customer paying to Wirehive a reconnection fee of £20 (or such other amount as may be notified by Wirehive (including via the Portal) from time to time).

10.9      Where Wirehive exercises any right to suspend the Services (or part thereof) under this Agreement, including pursuant to clauses 6.2, 10.8.2, and/or 12.9, the Customer shall remain liable to pay all Fees and other charges under this Agreement in respect of the suspended Services (or part thereof) during the period of suspension.

Exchange Rates

10.10    Wirehive may be liable to pay costs or charges in respect of the Services (or parts thereof) to third parties, including third parties outside of the United Kingdom, in currencies other than Pound Sterling (GBP) (“FX Fees”).

10.11    Where the Fees include FX Fees (including in respect of any AWS Services pursuant to Schedule 6), such FX Fees are calculated using an exchange rate set at the end of the previous quarter (being March 31, June 30, September 30, or December 31 (as applicable)). The current and historical exchange rates are available to view at: www.wirehive.com/fxrates.

10.12    Unless the relevant Order states that all FX Fees are fixed and not subject to exchange rate conversions, where the applicable exchange rate at the end of the quarter prior to the quarter in which an invoice is issued is materially detrimental to Wirehive by comparison to the exchange rate at the date of the relevant invoice, Wirehive may amend the FX Fees to account for such difference.

Disputes

10.13    In the event that the Customer reasonably disputes an invoice provided by Wirehive, the Customer shall:

10.13.1 pay any undisputed amount of such invoice in accordance with the timeframes set out in this clause 10; and

10.13.2 provide to Wirehive no later than 10 Business Days from the date of the invoice written notice stating the disputed amount, details of the nature of the dispute, and Services and invoice(s) to which the dispute pertains.

10.14    If the disputed invoice is deemed to be correct, the Customer shall pay to Wirehive all such amounts set out in the invoice, plus interest on such amounts at the rate set out in clause 10.8.1.

11.        LIMITATION OF LIABILITY

11.1      Nothing in this Agreement shall exclude or restrict either Party’s liability for:

11.1.1   death or personal injury resulting from that Party’s negligence;

11.1.2   fraud or fraudulent misrepresentation; or

11.1.3   any other liability which cannot be excluded or limited under applicable law.

11.2      Nothing in this Agreement shall exclude or restrict Customer’s liability for any breach of any Data Protection Laws;

11.3      Subject to clause 11.1 and 11.2, neither Party’s liability to the other Party in respect of each claim or series of related claims arising under or in connection with this Agreement, whether in tort (including negligence), breach of contract, misrepresentation, or otherwise, shall exceed 100% of the Fees paid under the applicable Order, save that, and subject to clause 11.1 and 11.2, Wirehive shall not have any liability to the Customer in relation to the performance or non-performance of a Third Party Add-On.

11.4      Subject to clause 11.1 and 11.2, neither Party shall be liable to the other Party under or in connection with this Agreement, whether in tort (including negligence), breach of contract, misrepresentation, or otherwise, for any:

11.4.1   loss of business,

11.4.2   loss of opportunity,

11.4.3   reputational loss,

11.4.4   loss or corruption of data,

11.4.5   depletion of goodwill,

11.4.6   degradation of data or information,

11.4.7   or loss of profits or revenue (in each case whether direct or indirect), or

11.4.8   indirect or consequential loss or damage whatsoever.

12.        TERMINATION

12.1      Either Party may terminate any individual Order and/or this Agreement at any time immediately by providing written notice to the other Party if such other Party:

12.1.1   commits a material breach of its obligations under this Agreement which (if remediable) is not remedied within 30 days of receipt of written notice specifying the breach and requiring it to be remedied;

12.1.2   undergoes an Insolvency Event; or

12.1.3   has been subject to a Force Majeure Event (or combination of Force Majeure Events) for a continuous period of more than thirty (30) days.

12.2      The Parties acknowledge and agree that the Customer’s: (a) repeated breach of clause 6.1, and (b) use of the Services for Malicious Purposes, shall constitute an irremediable material breach for the purpose of clause 12.1.1.

12.3      Subject to clause 12.4, the Customer may terminate this Agreement and/or any Order at any time immediately by written notice to Wirehive, or via the Portal.

12.4      Where:

12.4.1   Wirehive terminates this Agreement and/or any Order pursuant to clauses 12.1.1 or 12.2; or

12.4.2   the Customer terminates this Agreement and/or any Order pursuant to clause 12.3,

the Customer shall promptly pay to Wirehive all Fees payable for the Initial Term or Renewal Term, or relevant Order Initial Term or Order Renewal Term, (in each case as applicable) pursuant to this Agreement, including all fees and charges incurred by Wirehive in anticipation of Wirehive’s (or any third party’s) performance of the Services or any part thereof including for any Third-Party Add-on (“Termination Fees”). The Parties acknowledge and agree that the Termination Fees are a genuine pre-estimate of loss, and do not constitute a penalty.

12.5      Wirehive may terminate an Order on written notice to Customer where it has actual knowledge that Customer’s use of the Servers is contrary to Data Protection Laws and Customer fails to provide reasonable written evidence, which is satisfactory to Wirehive, that Customer has immediately remedied the same.

12.6      Except as otherwise expressly provided in this Agreement, all remedies provided pursuant to this Agreement will be cumulative and in addition to, not in lieu of, any other remedies available to either Party at law, in equity, or otherwise.

12.7      The accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

12.8      Termination of:

12.8.1   these Terms and Conditions shall cause the termination of any Orders in force and effect as at the effective date of termination of these Terms and Conditions; and

12.8.2   any Order shall not cause the termination of any other Order and/or these Terms and Conditions. These Terms and Conditions and any such other Order shall continue in full force and effect until termination or expiry in accordance with this Agreement.

12.9      In the event that Wirehive is entitled to terminate this Agreement and/or any Order pursuant to this Agreement, Wirehive may (in its sole discretion and without prejudice to its right to terminate the Agreement and/or Order) suspend the Services (in whole or in part).

12.10    The following terms of this Agreement shall survive expiry or earlier termination: clauses 3.3, 11, 12, 13, 14, 15, and 17.

13.        INTELLECTUAL PROPERTY RIGHTS

13.1      The Customer and/or its licensors (as applicable) shall be the sole and exclusive owners of all Intellectual Property Rights in the Customer Data and any other information, data, and/or other materials uploaded to Wirehive’s servers or otherwise provided to Wirehive pursuant to this Agreement (the “Customer Intellectual Property”). The Customer hereby grants Wirehive a limited, revocable, non-exclusive, non-transferable licence to use the Customer Intellectual Property solely to the extent necessary for Wirehive to provide the Services to the Customer.

13.2      Wirehive and/or its licensors (as applicable) shall be the sole and exclusive owners of all Intellectual Property Rights relating to the software owned by, or licensed to, Wirehive (the “Wirehive Intellectual Property”) and otherwise provided by or on behalf of Wirehive to the Customer pursuant to or in connection with this Agreement. Wirehive hereby grants the Customer a limited, non-exclusive, non-transferable licence to use Wirehive Intellectual Property solely to the extent necessary for the Customer to receive the full benefit of the Services.

13.3      Wirehive shall indemnify the Customer from and against all claims, actions, damages, losses and expenses (including, without limitation, legal fees) arising as a result of any action or claim that any Services (excluding the Third-Party Add-on) infringe the Intellectual Property Rights of a third party.

14.        DATA PROTECTION & SECURITY

14.1      Schedule 1 (Data Protection & Security) shall apply to the Services.

14.2      During the provision of the Services, the Customer shall have the ability to choose what Customer Data is processed on the Servers made available by Wirehive pursuant to this Agreement. The Customer shall process Personal Data on the Servers in accordance with applicable Data Protection Laws.

14.3      The Customer shall choose in which countries and how it wishes to protect this data including by way of separate backups of the Customer Data.

14.4      Outside of the Security Measures, Wirehive is unable to tailor the Servers to any individual customer’s use case for Data Processing and therefore Wirehive shall provide the same level of security irrespective of whether or not Customer Data is actually processed by a Customer on the Servers.

14.5      Wirehive shall provide the Services to the Customer in a manner in which the Customer can process Customer Data within their control, including the ability to choose to use Servers to store and process its Personal Data entirely within the European Economic Area.

14.6      Customer is solely responsible for its selection and use of the Services, including:

14.6.1   making appropriate use of the Services and the Security Measures to ensure a level of security appropriate to the risk in respect of the Customer Data;

14.6.2   securing the account authentication credentials, systems and devices Customer uses to access the Services; and

14.6.3   backing up its Customer Data separately from the Servers.

15.        CONFIDENTIALITY

15.1      Each of the Parties acknowledge and agree that in course of, or contemplation of, performance of the Services each of them may obtain, be exposed to or otherwise have access to Confidential Information and/or materials that are proprietary to the other party and which shall constitute trade secrets of a party, and whether designated Confidential Information or whether in a tangible or digital form.

15.2      Each Party shall:

15.2.1   use the Confidential Information of the other Party solely in connection with the provision or receipt of the Services (as applicable), and not use the Confidential Information for any other purpose;

15.2.2   save as set out in clause 15.3, not disclose any Confidential Information of the other Party to any third party; and

15.2.3   protect the Confidential Information of the other Party 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.

15.3      Confidential Information may be disclosed by the receiving Party to its employees, contractors, consultants, affiliates, and professional advisers on a need-to-know basis solely for the purpose set out in clause 15.2.1, provided that:

15.3.1   such employees, contractors, consultants, affiliates, and professional advisers (as applicable) are, in advance of any such disclosure: (a) notified of the confidential nature of the Confidential Information, and (b) bound in writing to maintain the confidentiality of the Confidential Information received; and

15.3.2   the receiving Party shall remain liable for all acts and omissions of such employees, contractors, consultants, affiliates, and professional advisers (as applicable) as though they were acts or omissions of the receiving Party.

15.4      Wirehive shall have the right to mention that Customer is a customer of Wirehive and the right to use the Customer’s name and logo in it sales and marketing materials.

16.        FORCE MAJEURE

16.1      Subject to clause 16.2, neither Party (the “Affected Party”) shall be liable for any delay or failure to perform any of its obligations pursuant to this Agreement (whether in whole or in part) if such delay or failure results from events or circumstances beyond the Affected Party’s reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire,  compliance with any law or governmental order, failure of a utility service or transport or telecommunications network, or delay or failure in manufacture, production, or supply by third parties of equipment or services (a “Force Majeure Event”).

16.2      Following a Force Majeure Event, the Affected Party shall: (a) promptly notify the other Party (the “Unaffected Party”) in writing of the circumstances constituting such Force Majeure Event, and (b) takes all reasonable steps to minimise the adverse effects of the Force Majeure Event on the performance of its obligations pursuant to this Agreement.

17.        GENERAL

17.1      To the extent of any conflict or inconsistency between clauses 1 to 17 (inclusive) of these Terms and Conditions, the Schedules of these Terms and Conditions, and the terms of any Order, the order in which the terms prevail is as follows: (a) the terms of these Terms and Conditions (highest), (b) the Schedules to these Terms and Conditions, and (c) the terms of any Order (lowest), save that in respect of the Consultancy Services, then the order in which the terms prevail is as follows: (a) Schedule 4 to these Terms and Conditions and (b) the terms of these Terms and Conditions; and (c) any terms in the Statement of Work (lowest).

17.2      Wirehive may, in addition to its own employees, engage subcontractors to provide all or part of the services being provided to the Customer, provided such engagement shall not relieve Wirehive of any obligations under this Agreement.

17.3      These Terms and Conditions have been produced by Wirehive in conjunction with legal counsel to protect the interests of both Parties. Unless otherwise notified by Wirehive, where the Customer has  amended, varied, negotiated, required Wirehive to waive any term, or requested or made any other modification to these Terms and Conditions (or part thereof) prior to execution by the Parties, by signing these Terms and Conditions the Customer agrees to pay to Wirehive, promptly upon demand, the amount of: (a) £500 (ex. VAT), or such other sum as Wirehive may specify in advance of execution, and (b) any and all costs and expenses (including all reasonable fees, costs, expenses, and disbursements of Wirehive’s legal counsel, experts, and/or agents) that Wirehive incurs in connection with such amendment, variation, negotiation, waiver, or other modification.

17.4      Wirehive and the Customer are contractors independent of each other, and neither has the authority or power to bind the other to any third party or act in any way as the representative of the other (whether principal, agent, or otherwise), unless otherwise expressly agreed to in writing by both Parties.

17.5      In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. Wirehive will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the Parties as reflected in the original provision.

17.6      No waiver of any of the terms of this Agreement will be valid unless in writing and signed by or on behalf of an authorised signatory of each of Wirehive and the Customer. The failure by either Party to enforce at any time or for any period any one or more of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce or exercise such right at any subsequent time or times.

17.7      Neither Party shall, without the prior written consent of the other Party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

17.8      Any notice to be given by either Party to the other may be served by email, personal service, or by post to the address of the other Party set out in these Terms and Conditions (or as otherwise notified by the relevant Party in writing). If: (a) sent by email, such notice shall (unless the contrary is proved) be deemed to be received on the day it was sent, (b) given by personal service, shall be deemed to have been served at the time at which the letter was delivered personally, or (c) if sent by post, shall be deemed to have been delivered in the ordinary course of post.

17.9      This Agreement contains the entire agreement between the Parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied (including by way of any addition, amendment, or modification) only by a document in writing and signed by a duly authorised signatory of both Parties (respectively). For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of Wirehive shall form part of this Agreement, save as otherwise expressly set out in this Agreement.

17.10    Except as expressly provided in this Agreement, a person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

17.11    This Agreement may be executed electronically using electronic signature or advanced electronic signature or a duly authorised officer of each Party. If this Agreement is executed electronically, each Party hereby irrevocably consents to this Agreement being communicated, presented, and retained wholly or partly in electronic form.

17.12    This Agreement may be executed in any number of counterparts, including electronic counterparts, each of which (including electronic counterparts) will be an original but all of which together will constitute one and the same instrument. No counterpart (including electronic counterparts) shall be effective until each Party has executed at least one counterpart.

17.13    This Agreement and any disputes or claims 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. The Parties hereby irrevocably agree that the courts of England have the exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

THESE TERMS AND CONDITIONS have been signed by the duly authorised representatives of the Parties on the date first written above.

SCHEDULE 1

DATA PROTECTION AND SECURITY

1.             DEFINITIONS:

1.1        “Alternative Transfer Solution” means a solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).

1.2        “Data Controller”, “Data Processor”, “Personal Data” and “Processing” all have the meanings set out in the Data Protection Laws; and

1.3        “Data Protection Laws” means the General Data Protection Regulation ((EU) 2016/679) (“GDPR”), and the Electronic Communications (EC Directive) Regulations 2003, and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time.

1.4        “Optional Security Controls” means encryption, logging and monitoring, identity and access management, security scanning, and firewalls, and other security tools made available by Wirehive from time to time.

1.5        “Sub-Processors” means third parties authorised under these Terms to have logical access to and process Customer Data in order to provide parts of the Services.

2.          CUSTOMER OBLIGATIONS

2.1        The Customer will:

2.1.1     review and approve the Wirehive’s Security Measures as an appropriate level of security for the processing of the Customer Data;

2.1.2     keep adequate backups of the Customer Data separately from the Servers or otherwise request Wirehive to create backups as part of an Order;

2.1.3     choose any of the Optional Security Controls that it deems necessary and prudent and which is appropriate to the risk of the Customer Data;

2.1.4     be responsible for ensuring that it shall implement its own technical and organisational measures to ensure a level of security appropriate to the risks of the data processing;

2.2        The Customer controls how Personal Data is stored, classified, exchanged or otherwise Processed when using the Services. The Customer may select the territory in which it stores or processes the Personal Data and may purchase Optional Security Controls from Wirehive as it deems appropriate for the nature and volume of Personal Data that it processes on the Servers.

2.3        The Customer will ensure that it has all necessary and appropriate consents and notices in place to enable the lawful processing of the Personal Data, and for the purpose of Wirehive performing the Services, and the Customer shall indemnify Wirehive against any losses, damages, claims and expenses incurred by or suffered by Wirehive from a breach by Customer of this paragraph 2.3.

2.4        The Customer shall use the Servers made available by Wirehive to process their Personal Data in accordance with applicable Data Protection Laws.

3.          RECORDS AND WRITTEN INSTUCTIONS

3.1        Customer acknowledges that Wirehive is required under Data Protection Laws to:

3.1.1     collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Wirehive is acting, and where applicable, of such processor’s or controller’s local representative and data protection officer; and

3.1.2     make such information available to the supervisory authorities. Accordingly, if where applicable under Data Protection Laws, Customer will, where requested, provide such information to Wirehive via the Portal or other means provided by Wirehive, and will use the Portal or such other means to ensure that all information provided is kept accurate and up-to-date.

3.2        The Customer shall keep a record of the scope, nature and purpose of the processing to be carried out on Wirehive’s infrastructure and the duration of its own processing and types of data. Customer shall supply a copy of the record to Wirehive on reasonable notice.

3.3        The Server features and functionalities and Portal made available to Customer as part of the Services shall from part of the Customer’s written instructions to Wirehive in relation to the processing of Personal Data, as well as this Agreement and the terms of any Order.

3.4        Customer’s instructions for the processing of Personal Data will comply with Data Protection Laws, and the Customer will have sole responsibility for the accuracy, quality and legality of Personal Data and the means by which the Customer obtained the Personal Data.

3.5        On expiry of the Order Term, Customer instructs Wirehive to delete all Customer Data (including existing copies) from Wirehive’s systems in accordance with applicable law. Wirehive will comply with this instruction as soon as is reasonably practicable and within a maximum period of 180 days unless applicable Data Protection Laws requires storage. Customer acknowledges and agrees that Customer will be responsible for exporting, before the Order Term expires, any Customer Data it wishes to retain afterwards.

3.6        If Customer uses the Services to delete any Customer Data during the Order Term and that Customer Data cannot be recovered by Customer, this use will constitute an instruction to Wirehive to delete the relevant Customer Data from Wirehive’s systems in accordance with applicable law.

4.          SECURITY MEASURES

4.1        Wirehive will provide the security procedures as set out in the Security Measures, and where set out in an Order the Optional Security Controls, for the duration of the Order Term.

4.2        As part of providing the Security Measures, Wirehive will maintain appropriate technical and organisational measures at its data centre facilities that are within its control and are used to provide the Services, and which are designed to help the Customer secure its Customer Data against unauthorised processing and accidental or unlawful loss, access or disclosure.

4.3        Wirehive may update its Security Measures from time to time but will provide at least the same level of security as is described in the Security Measures as of the effective date of this Agreement. Notwithstanding the foregoing, the Customer acknowledges that Customer is responsible for the security of guest operating systems, applications hosted on the service, data in transit and at rest, Customer’s service log-in credentials and permissions policies for Customer personnel using the Services and Servers.

5.          NATURE AND PURPOSE OF DATA PROCESSING

5.1        Both parties will comply with all applicable requirements of the Data Protection Laws as it applies to them in the provision and receipt of the Services. The parties acknowledge that for the purposes of the Data Protection Legislation, and for the performance of the Services under the Agreement:

5.1.1     the Customer is the Data Controller and Wirehive is the Data Processor, where the Customer determines the purpose for which and how the Personal Data will be processed, including choosing Wirehive’s Services;

5.1.2     the Customer will be a Data Processor in relation to the Personal Data where the Customer is merely processing the Personal Data on the Servers on behalf of and according to the wishes of a third party or its own customers;

5.1.3     and in respect to the Customer’s account information (usernames, email address, billing information), Wirehive is Data Controller.

5.2        To the extent that Wirehive process any Personal Data, then it shall do so:

5.2.1     solely as necessary to perform its Services under the Order and to provide the Services requested by the Customer pursuant to an Order in accordance with the Agreement;

5.2.2     to carry out Processing initiated by the Customer in using the Servers and Services; and

5.2.3     as further instructed by the Customer in writing as part of its use of the Services and which is consistent with the terms of the Agreement.

5.3        Where Wirehive Processes Personal Data, it shall Process the Personal Data for the duration of the Order Term (unless otherwise agreed in writing or permitted by law), and which processing includes computing, storage and content delivery on the Servers.

6.          CATEGORIES OF DATA SUBJECTS AND TYPES OF PERSONAL DATA

6.1        The Customer may submit Personal Data to the Servers and the extent of the Personal Data submitted is determined and controlled solely by the Customer. The categories of Data Subjects shall include any living individual whose Personal Data is uploaded to the Servers.

6.2        The Customer may submit Personal Data to the Servers and the extent of the Personal Data submitted is determined and controlled solely by the Customer. The categories of Personal Data shall include all the Personal Data submitted by the Customer to the Servers.

7.           WIREHIVE OBLIGATIONS

7.1        Wirehive will, at all times in connection with the performance by it of its Processing obligations under this Agreement:

7.1.1     not access or use any Customer Data except as necessary to provide the Services to the Customer under this Agreement or with the Customer’s written instructions;

7.1.2     carry out all Processing of Customer Data strictly in accordance with this Agreement, the Security Measures, any Optional Security Controls, and the Customer’s reasonable written instructions from time to time unless Wirehive is required by the laws of any member of the European Union or by the laws of the United Kingdom to process Customer Data (and in such a circumstance it shall notify the Customer of this before performing the processing required unless it is prohibited from so notifying the Customer);

7.1.3     ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Customer Data and against accidental loss or destruction of, or damage to, Customer Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures, save that it shall be the Customer’s responsibility to request Wirehive to provide backups of the Customer Data as set out in an Order;

7.1.4     notify the Customer without undue delay on becoming aware of a Customer Data breach (promptly take reasonable steps to minimise harm and secure Customer Data);

7.1.5     provide the Customer with an opportunity to download the Customer Data following which Wirehive may delete Customer Data and copies thereof on termination of the Order Term unless required by Applicable Law to store the Customer Data;

7.1.6     promptly carry out any request from the Customer to amend, transfer, delete or return (and then delete) the Customer Data;

7.1.7     not disclose the Customer Data to a third party other than at the Customer’s request or as otherwise set out in this Agreement;

7.1.8     it shall not transfer the Customer Data outside of the EEA unless it has the prior written consent of the Customer and subject to the parties entering into the EU Standard Contractual Clauses or Alternative Transfer Solution; and

7.1.9     maintain complete and accurate records and information to demonstrate its compliance with this paragraph 7;

7.2        The Customer consents to Wirehive appointing the applicable third-party processors set out in Schedules 5 and 6 as necessary to provide those Services.

8.          WIREHIVE PERSONNEL

8.1        Wirehive shall ensure that its personnel engaged in the Services are informed of the confidential nature of the Customer Data and shall receive ongoing and appropriate training on their responsibilities.

8.2        Wirehive personnel shall enter into written confidentiality agreements prior to carrying out any of the Services to the Customer.

8.3        Wirehive shall ensure that access to the Customer Data is limited to its personnel who need access solely to provide the Services to the Customer.

9.          DATA SUBJECT REQUESTS

9.1        Wirehive will, to the extent legally permitted, promptly notify the Customer if it receives a request from a Data Subject where the Data Subject is exercising its right of access, rectification, restriction of processing, erasure (i.e. the right to be forgotten), data portability, objection to processing, or its right not to be subject to automated individual decision making (“a Data Subject Request”).

9.2        Wirehive will assist the Customer, at the Customer’s cost, in responding to any Data Subject Request (save that beyond providing the Customer the ability to rectify, erase, restrict or retrieve Customer Data, Wirehive shall not be required to provide any further assistance).

10.        ASSISTANCE

10.1      Wirehive will provide reasonable cooperation and assistance to the Customer, at the Customer’s cost, to enable the Customer to fulfil its obligation under Data Protection Laws to carry out a data protection impact assessment relating to the use of the Services, and to the extent that the information is not already included in the Security Measures document or generally made available by Wirehive on its website.

10.2      Wirehive will provide reasonable cooperation and assistance to the Customer, at the Customer’s cost, in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.

11.        AUDIT

11.1      Wirehive will achieve and maintain the ISO/IEC 27001 Certification to evaluate and help ensure the continued effectiveness of the Security Measures and will make available to Customer the certificate highlighting its compliance.

11.2      Pursuant to Data Protection Laws, Wirehive will allow an independent auditor appointed by Customer (and approved by Wirehive) to conduct audits (including inspections) to verify Wirehive’s compliance with its obligations under this Schedule.

11.3      Customer may also conduct an audit to verify Wirehive’s compliance with its obligations under the Security Measures by reviewing the Security Measures documentation (which reflects the outcome of audits conducted by Wirehive’s own third-party auditor).

11.4      Customer must send any requests for audits under this paragraph 11 to Wirehive’s data protection team.

11.5      Following receipt by Wirehive of a request under this paragraph 11 Wirehive and Customer will discuss and agree in advance on the reasonable start date, scope and duration of and security and confidentiality controls applicable to any audit.

11.6      Wirehive may charge a fee (based on Wirehive’s reasonable costs) for any review and/or audit under this paragraph 11. Wirehive will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such review or audit. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.

11.7      Wirehive may object in writing to an auditor appointed by Customer to conduct any audit under paragraph 11 if the auditor is, in Wirehive’s reasonable opinion, not suitably qualified or independent, a competitor of Wirehive, or otherwise manifestly unsuitable. Any such objection by Wirehive will require Customer to appoint another auditor or conduct the audit itself.

12.        SUB PROCESSOR

12.1      Information about the locations of Wirehive’s data centres is available at [link] (as may be updated by Wirehive from time to time).

12.2      Customer specifically authorises the engagement of Wirehive’s Sub-Processors to provide the Services. In addition, Customer generally authorises the engagement of any other third-parties as Sub-Processors (“Third-Party Sub-Processors”) as part of the provision of the Services. Information about such Sub-Processors, including their functions and locations, is available at [link] (as may be updated by Wirehive from time to time in accordance with these Terms).

12.3      When engaging any Sub-Processor, Wirehive will:

12.3.1   ensure via a written contract that:

(a)         the Sub-Processor only accesses and uses Customer Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement (and this Schedule) and any Alternative Transfer Solution adopted by Wirehive; and

(b)         if Data Protection Laws applies to the processing of Customer Personal Data, the data protection obligations set out in Article 28(3) of the GDPR are imposed on the Sub-Processor; and

12.3.2   remain fully liable for all obligations subcontracted to, and all acts of omissions of, the Sub-Processor.

12.4      In the event that Wirehive wishes to appoint a new sub-processor who will be involved in providing the Services on behalf of Wirehive, then Wirehive shall provide reasonable written notice to the Customer (and such notice shall include the details of the sub-processor) and should the Customer not approve of the appointment, then its sole remedy shall be to terminate the Order to which the appointment relates.

12.5      Where Wirehive wishes to appoint a new Sub-Processor, then the Customer may object to that appointment in writing to Wirehive within twenty (20) business days of Wirehive’s notice of its intended appointment. If the Customer objects to the appointment, and the parties cannot resolve how to manage the provision of the Services to the satisfaction of the Customer, then the Customer’s sole remedy shall be to terminate the Order to which the sub-processor applies.

13.        TRANSFERS OF DATA OUT OF THE EEA

13.1      If the storage and/or processing of Customer Personal Data involves transfers of Customer Personal Data out of the EEA, and Data Protection Laws applies to the transfers of such data (the “Transferred Personal Data”), Wirehive will offer an Alternative Transfer Solution, ensure that the transfers are made in accordance with such Alternative Transfer Solution, and make information available to Customer about such Alternative Transfer Solution.

13.2      In respect of Transferred Personal Data, Customer agrees that if under the Data Protection Laws Wirehive reasonably requires Customer to use an Alternative Transfer Solution offered by Wirehive, and reasonably requests that Customer take any action (which may include execution of documents) strictly required to give full effect to such solution, Customer will do so.

14.        DISCLOSURE OF CUSTOMER DATA

14.1      Wirehive will not disclose Customer Data to a third country law enforcement agency unless it is necessary for Wirehive to comply with a valid and legally binding court judgement, order or request. Wirehive will not disclose more Customer Data than is necessary to comply with the relevant court judgement, order or request.

14.2      If Wirehive receives a valid and legally binding court judgement, order or request from any law enforcement or governmental authority to disclose Customer Data, then, unless prohibited by law, Wirehive will inform the Customer before disclosure to provide the Customer with the opportunity to seek protection from disclosure.

 

Critical Priority

Impacting Priority

Normal Priority

 

Example

Server inaccessible or website offline due to server issue

Website accessible but slow due to Server performance; or the Customer cannot gain access to server via SSH or RDP but it is otherwise unaffected

Individual user (or small subset) experiencing an outage or degraded service

 

Coverage period / contact mechanism

24/7 by telephone

Business Hours by email or portal

24/7 by telephone

Business Hours by email or portal

Business Hours by email or portal

 

Response Time

Within:

1 hour (where reported in Business Hours)

2 hours (all other times)

Within:

2 hours (where reported in Business Hours)

4 hours (all other times)

Within:

2 Business Days

 

4.2        Request Fulfilment

4.2.1     The Customer may submit a Request to Wirehive, during the Coverage Period and using the Contact Mechanisms (each as set out in paragraph 4.2.2 of this Schedule 2), following which Wirehive shall:

(a)         open a support ticket in respect of the relevant Request and assign the applicable Priority classification to such Request (as defined by Wirehive, based on scope and impact, pursuant to paragraph 4.2.2 in this Schedule 2); and

(b)         respond to the Customer regarding the applicable Request(s) or, where Wirehive becomes aware of such Request(s) otherwise than pursuant to paragraph 4.2.1(a) of this Schedule 2, notify the Customer of such Request(s); and

(c)         use reasonable endeavours to resolve the relevant Request as soon as reasonably possible.

4.2.2     Request Coverage Periods, Contact Mechanisms and Response Times:

Example

Coverage Period / Contact Hours

Normal

   

Configuration changes, password resets

Business Hours by telephone and email

Within: 5 Business Days

   

4.2.3     In order to submit an Incident or Request in accordance with paragraphs 4.1 and 4.2 of this Schedule 2, the Customer must notify Wirehive using the following Contact Mechanisms (as applicable during the respective Coverage Periods):

(a)         by telephone to:         +44(0)1252 560565

(b)         by email to: support@wirehive.com

(c)         using the Wirehive portal at https://wirehive.support

4.2.4     In the event that the Customer fails to report a Critical or Impacting Incident (each as defined in paragraph 4.1.2 of this Schedule 2) by telephone or email (as applicable), the Response Time for ‘Normal’ Priority Incidents will be deemed to apply unless and until the Customer so reports the Incident using the correct Contact Mechanism. For the avoidance of doubt, the Critical or Impacting Response Time (as applicable) shall commence at such time as the Customer reports the Incident using the correct Contact Mechanism.

4.2.5     Wirehive shall undertake work in respect of Normal Incidents during Business Hours. However, the Parties may (acting reasonably) agree in advance for any work pertaining to Normal Incidents to take place at any time (including Out of Hours), subject to any additional charges or fees agreed between the Parties.

4.2.6     Wirehive reserves the right to restrict support access to the Customer where Wirehive deems (in its reasonable opinion) the level of support being requested by the Customer (“Customer Support Requests”) to be in excess of the average support requests received by Wirehive for similar customer contracts, subject to the following minimum threshold (below which Wirehive shall not be entitled to restrict support):

(a)         in respect of any Essentials Support Plan, ten (10) Customer Support Requests per calendar month per Server; and

(b)         in respect of any Managed 10×5 Support Plan and any Managed 24×7 Support Plan, fifteen (15) Customer Support Requests per calendar month per Server,

or, in each case, as otherwise agreed between the Parties from time to time.

4.2.7     In the event that the Customer submits an Incident or Request that falls outside the scope and responsibilities of Wirehive pursuant to this Agreement and any applicable Order, Wirehive:

(a)         shall not be obliged to provide any support in respect of such Incident or Request; and

(b)         where Wirehive elects (in its sole option) to provide support, such support, (i) is not subject to the terms of this Agreement and/or Order (including this Schedule 2) and is provided without any warranties or liability on part of Wirehive, and (ii) may be subject to additional charges or fees.

5.          MONITORING

5.1        Ping

Wirehive shall monitor all hosted Servers by querying whether there is a connection to each respective Server using an ICMP echo-reply (ping). In the event that a Server fails to echo the packet produced by Wirehive on multiple occasions, an alert email shall be generated so Wirehive can promptly investigate such failure(s).

5.2        Service Monitoring

It is possible to monitor Servers through the use of service monitoring tests and checks (generally TCP port test or HTTP content checks) (“Service Monitoring Tools”).

5.3        Managed 10×5 Support Plan

5.3.1     For Servers covered by a Managed 10×5 Support Plan, upon request by the Customer, Wirehive shall:

(a)         create a bespoke configuration of the Service Monitoring Tools for use by Wirehive;

(b)         configure the contacts as specified by the Customer to be alerted when there is an issue; and

(c)         produce and provide to the Customer reports created by Wirehive in respect the Service Monitoring Tools which, for the avoidance of doubt, shall utilise data obtained from the Service Monitoring Tools in during a period of up to 30 days prior to the date on which the Customer requests such report(s) to be produced by Wirehive.

5.3.2     Where Wirehive is notified of any outages that occur within Business Hours, Wirehive will respond according to the Incident Priorities set out in paragraph 4.1.2 of this Schedule 2.

5.3.3     The Customer shall remain responsible at all times for ensuring that the monitoring configuration is correct and the contacts specified are kept up to date. Any changes to the monitoring configuration and/or contacts must be notified to Wirehive by the Customer via a Request.

5.3.4     The results of Wirehive’s monitoring activities in respect of the Services and Support Plans shall be used to determine any Service Credits payable to the Customer pursuant to Schedule 5 (as applicable).

5.4        Managed 24×7 Support Plan

5.4.1     For Servers covered by a Managed 24×7 Support Plan, upon request by the Customer, Wirehive shall:

(a)         create a bespoke configuration of the Service Monitoring Tools for use by Wirehive;

(b)         configure the specified contacts to be alerted when there is an issue; and

(c)         produce and provide to the Customer reports created by Wirehive in respect the Service Monitoring Tools which, for the avoidance of doubt, shall utilise data obtained from the Service Monitoring Tools in during a period of up to 30 days prior to the date on which the Customer requests such report(s) to be produced by Wirehive.

5.4.2     Where Wirehive is notified of any outages that occur, Wirehive will respond according to the Incident Priorities set out in paragraph 4.1.2 of this Schedule 2.

5.4.3     The Customer shall remain responsible at all times for ensuring that the monitoring configuration is correct and the contacts specified are kept up to date. Any changes to the monitoring configuration and/or contacts must be notified to Wirehive by the Customer via a Request.

5.4.4     The results of Wirehive’s monitoring activities in respect of the Services and Support Plans shall be used to determine any Service Credits payable to the Customer pursuant to Schedule 5 (as applicable).

6.          OPERATING SYSTEMS & SOFTWARE

6.1        Wirehive shall install, maintain, and license to the Customer the operating system (“OS”) as installed and run on the respective Servers so that the Customer may benefit from vendor provided updates and security patches.

7.          PATCHING & UPDATES

7.1        Essentials Support Plan

7.1.1     For any Servers covered by the Essentials Support Plan, it remains solely the Customer’s responsibility to apply all patches and updates (critical or otherwise).

7.1.2     If a Customer Server is outdated and becomes a risk, due to a Critical or Significant Vulnerability or otherwise, Wirehive reserves the right to suspend the Services.

7.2        Critical or Significant Vulnerabilities

7.2.1     For Servers covered by the Managed 10×5 Support Plan or Managed 24×7 Support Plans, where:

(a)         Wirehive is made aware by the Customer of, or otherwise becomes aware of, a Critical or Significant Vulnerability; and

(b)         Red Hat, Canonical (Ubuntu), and/or Microsoft supply (whether to Wirehive or market generally, and whether directly or indirectly) a patch or other update for such Critical or Significant Vulnerability,

Wirehive will roll-out the patch and/or update to all affected Servers automatically within five (5) Business Days of the patch and/or update being made available to Wirehive and/or general public (as applicable).

7.2.2     Deployment of Patches and/or Updates classed as Critical or Significant Vulnerabilities are subject to Emergency Maintenance, as defined in paragraph 9.2 of this Schedule 2.

7.2.3     This paragraph 7.2 will not apply to a patch and/or update where such patch and/or update (as applicable) requires a reboot of the relevant Servers and the Customer does not give Wirehive permission to perform such reboot within a reasonable period of time following Wirehive notifying the Customer of such need to reboot.

7.3        Routine Patches and Updates

7.3.1     For Servers covered by the Managed 10×5 Support Plan, where:

(a)         Redhat, Canonical (Ubuntu), and/or Microsoft have published routine patches or other updates; and

(b)         the Server has available patches and/or updates to install,

Wirehive will;

(i)          perform a routine check for such available updates;

(ii)         schedule a batch deployment of all routine patches and updates available, within Business Hours, or at another time deemed convenient by Wirehive; and

(iii)        when a downtime greater than sixty (60) seconds is expected, contact the Customer to arrange restarting the Services or rebooting the applicable Server(s).

7.3.2     For Servers covered by the Managed 24×7 Support Plan, where:

(a)         Redhat, Canonical (Ubuntu), and/or Microsoft have published routine patches or other updates; and

(b)         the Server has available patches and/or updates to install,

Wirehive will;

(i)          perform a routine check for such available updates;

(ii)         schedule a batch deployment of all routine patches and updates available, to take place Out of Hours, unless prior agreement between both Parties exists to carry out within Business Hours; and

(iii)        when a downtime greater than sixty (60) seconds is expected, contact the Customer to arrange restarting the Services or rebooting the applicable Server(s).

8.          FIREWALLS

8.1        Wirehive shall configure all firewalls in accordance with the original Request, which shall be completed by the Parties upon ordering the Service.

8.2        By default, Wirehive shall configure all firewall rules with a deny policy, save in respect of such of Wirehive’s monitoring and other critical systems which need access to the applicable Server (as shall be notified to the Customer in advance of such exceptions being configured).

8.3        For the avoidance of doubt, all configuration changes required by the Customer in respect of the firewall(s) will be implemented by Wirehive in accordance with the Request Response Time, unless otherwise agreed between the Parties.

9.          SCHEDULED AND EMERGENCY MAINTENANCE

9.1        Scheduled Maintenance

9.1.1     Wirehive may have to perform routine maintenance on the Servers and network devices provided to the Customer and/or underlying the provision of the Services (including the Servers) (“Scheduled Maintenance”) from time to time. Such maintenance may require taking Wirehive DNS, web, and/or email servers off-line.

9.1.2     Wirehive shall, in respect of Scheduled Maintenance which will or is likely (in Wirehive’s reasonable opinion) to negatively impact on the Services (“Impacting Scheduled Maintenance”):

(a)         notify the Customer via the Wirehive ‘status page’ (online) of any Impacting Scheduled Maintenance reasonably in advance of the planned date of such Impacting Schedule Maintenance; and

(b)         use reasonable endeavours to undertake all Impacting Scheduled Maintenance during Out of Hours.

9.1.3     Scheduled Maintenance in any event shall constitute Permitted Downtime and shall not be utilised for the purpose of calculating any Support Plans and/or Service Credits owed to the Customer pursuant to Schedules 2 and/or 3 (as applicable).

9.2        Emergency Maintenance

9.2.1     Whilst Wirehive will give the Customer advance notice of maintenance requiring the Servers to be taken offline whenever possible (and in any event in accordance with paragraph 9.1.2 of this Schedule 2 in respect of Scheduled Maintenance), in certain circumstances emergency maintenance may be necessary to rectify a fault (“Emergency Maintenance”).

9.2.2     Wirehive shall be entitled to undertake Emergency Maintenance at any time and on any day with or without notice to the Customer. Wirehive shall:

(a)         notify the Customer via the Wirehive ‘status page’ (online) of such Emergency Maintenance as soon as reasonably practicable following the decision by Wirehive to undertake such Emergency Maintenance. For the avoidance of doubt, the earliest reasonable time in which to notify the Customer may on occasion be following the commencement of the applicable Emergency Maintenance; and

(b)         use reasonable endeavours to minimise disruption to the Customer during such Emergency Maintenance.

9.2.3     Emergency Maintenance shall constitute Permitted Downtime and shall not be utilised for the purpose of calculating any Support Plans and/or Service Credits owed to the Customer pursuant to Schedule 5 (as applicable).

10.        VIRUS PROTECTION

10.1      It is solely the Customer’s responsibility to ensure that anti-virus software is installed, configured and maintained, in order to protect against the introduction of any computer worm, trojan horse, or other computer software routine that materially disrupts the proper operation of any OS and/or Server. The Customer should configure the anti-virus software to update automatically.

10.2      Where servers are covered by the Managed 10×5 Support Plan or Managed 24×7 Support Plan, the Customer may request support from Wirehive for anti-virus software, subject to Wirehive’s Supported Services Policy.

 

SCHEDULE 3

WIREHIVE RETAINED SERVICES

1.             DEFINITIONS 

1.1        In this Schedule 3, the following words shall have the following meanings:

DevOps Services” means the monthly bundle of development operations, systems operations, project management and professional services to be provided by Wirehive to the Customer.

SysOps Services” means the monthly bundle of systems operation services, project management and professional services to be provided by Wirehive to the Customer;

Strategy Services” means the monthly bundle of principal consultant services, project management and professional services to be provided by Wirehive to the Customer;

Retained Services” means DevOps Services and/or SysOps Services and/or Strategy Services purchased by the Customer, and as further set out in a duly executed Order, and which are subject to the additional terms set out in this Schedule 3.

Retainer Fee” means the monthly fee payable by the Customer for the agreed number of hours set aside by Wirehive to Customer to provide Retained Services.

2.          OVERVIEW

2.1        This Schedule 3 sets out the Retained Services that shall be provided by Wirehive where the Customer purchases, through a duly executed Order, either DevOps Services and/or SysOps Services and/or Strategy Services.

2.2        The Retained Services shall be provided for the term set out in the Order and on a monthly Retainer Fee basis, meaning that the Customer shall purchase an agreed number of hours of services from Wirehive each month, but if the Customer fails to utilise the number of hours under the retainer then, and subject to the other terms of this Schedule, Wirehive may invoice for and retain the full monthly Retainer Fee without deduction.

3.          DURATION

3.1        Unless set out otherwise in an Order, and subject always to the termination rights under the Wirehive Terms and Conditions, the duration of the Retained Services shall be for an initial fixed period of 12 months from the date set out in the Order, following which it shall automatically continue ‘at will’ unless and until either party gives 90 days’ notice in writing to terminate. Either party may give 90 days’ notice in writing to the other to terminate the Retained Services, where such notice expires at the end of the initial fixed period.

3.2        At the end of the Retained Services, Wirehive shall be entitled to receive the full monthly Retainer Fee irrespective of whether the capped number of hours service has been provided.

4.          DEVOPS SERVICES

4.1        Where the Customer purchases DevOps Services as part of an Order, Wirehive shall provide the following to the Customer so as to change and improve the infrastructure environment:

4.1.1     a level of services up to the agreed monthly cap of hours set out in an Order;

4.1.2     set monthly and weekly tasks as agreed by the parties in writing;

4.1.3     a prioritised backlog; and

4.1.4     co-identified projects.

4.2        Where the agreed cap of monthly hours is not met, then the unused amount of hours up to the cap may be utilised by the Customer within a period of 90 days following the end of the month they were unused, subject always to:

4.2.1     the Customer first providing Wirehive with reasonable written notice of its requirement to schedule the unused element of the services during the 90 day period (and it shall be at Wirehive’s sole discretion to determine whether or not the Customer’s notice is reasonable or not); and

4.2.2     Wirehive’s existing scheduling capacity during that 90 day period;

such that if Wirehive is unable to meet the Customer’s scheduling requirement during the 90 day period (and Wirehive is unable or unwilling in its sole discretion to provide the unused amount up to the cap outside of the 90 day period), then the unused amount shall lapse without refund to the Customer of any part of the Fee.

4.3        Wirehive shall provide the Customer with a dedicated technical account manager as part of the DevOps Services

5.          SYSOPS SERVICES

5.1        Where the Customer purchases SysOps Services as part of an Order, Wirehive shall provide the following to the Customer so as to change and improve the infrastructure environment:

5.1.1     a level of services up to the agreed monthly cap of hours as set out in an Order;

5.1.2     set monthly and weekly tasks as agreed by the parties in writing;

5.1.3     a prioritised backlog; and

5.1.4     co-identified projects.

5.2        Where the agreed cap of monthly hours is not met, then the unused amount of hours up to the cap may be utilised by the Customer within a period of 60 days following the end of the month they were unused, subject always to:

5.2.1     the Customer first providing Wirehive with reasonable written notice of its requirement to schedule the unused element of the services during the 60 day period (and it shall be at Wirehive’s sole discretion to determine whether or not the Customer’s notice is reasonable or not); and

5.2.2     Wirehive’s existing scheduling capacity during that 60 day period;

such that if Wirehive is unable to meet the Customer’s scheduling requirement during the 60 day period (and Wirehive is unable or unwilling in its sole discretion to provide the unused amount up to the cap outside of the 60 day period), then the unused amount shall lapse without refund to the Customer of any part of the Fee.

5.3        Wirehive shall provide the Customer with a dedicated technical account manager as part of the SysOps Services

6.          STRATEGY SERVICES

6.1        Where the Customer purchases Strategy Services as part of an Order, Wirehive shall provide the following to the Customer so as to change and improve the infrastructure environment:

6.1.1     a level of services up to the agreed monthly cap of hours as set out in an Order;

6.1.2     set monthly and weekly tasks as agreed by the parties in writing;

6.1.3     co-identified projects.

6.2        Where the agreed cap of monthly hours is not met, then the unused amount of hours up to the cap may be utilised by the Customer within a period of 60 days following the end of the month they were unused, subject always to:

6.2.1     the Customer first providing Wirehive with reasonable written notice of its requirement to schedule the unused element of the services during the 60 day period (and it shall be at Wirehive’s sole discretion to determine whether or not the Customer’s notice is reasonable or not); and

6.2.2     Wirehive’s existing scheduling capacity during that 60 day period;

such that if Wirehive is unable to meet the Customer’s scheduling requirement during the 60 day period (and Wirehive is unable or unwilling in its sole discretion to provide the unused amount up to the cap outside of the 60 day period), then the unused amount shall lapse without refund to the Customer of any part of the Fee.

7.          GENERAL

7.1        The fees for the Retained Services shall be calculated on the basis of the monthly Retainer Fee and Wirehive’s hourly rate for services outside of the Retainer Fee. If the number of hours under the Retainer Fee are not used by the Customer, then Wirehive shall still be entitled to invoice for and retain the full monthly Retainer Fee.

7.2        The Retainer Fees set out in an Order do not include any product costs, Wirehive’s expenses or tax, which shall be paid for separately by the Customer.

7.3        Wirehive shall be entitled to apply its time spent providing all elements of the Retained Services against the Retainer Fee, including time spent on monthly/weekly reviews, planning calls and all preparation time.

7.4        Where the Customer requests Wirehive to provide Retained Services in excess of the capped hours under the Retainer Fee in any particular month, then it may elect to utilise (by bringing forward) ten (10) per cent of the next month’s capped hours during that current month. Any other Retained Services provided by Wirehive in excess of the ten (10) per cent additional monthly hours which have been brought forward may be charged by Wirehive in accordance with its hourly rate set out in the Order and shall be automatically invoiced to the Customer on a monthly basis.

7.5        Wirehive shall provide the Retained Services on a remote delivery basis during Wirehive’s Office Hours. Where Wirehive provides the Retained Services on an Out of Hours basis or at the Customer’s premises, then Wirehive’s time shall be charged at a multiple of 2 times it’s then current hourly rate.

7.6        It shall be the Customer’s responsibility for ensuring that it requests Retained Services to be planned and used, with the assistance of the Wirehive technical assistance manager who shall liaise with the Customer on a not less than monthly basis.

 

SCHEDULE 4

WIREHIVE CONSULTING

1.             DEFINITIONS 

1.1        In this Schedule 4, the following words shall have the following meanings:

Consultancy Day” means a booked date or appointment where Wirehive has arranged to provide part of the Consultancy Services to Customer during the Consultancy Engagement.

Deliverable” means the specified output of the Consultancy Services as set out in a Statement of Work as a deliverable.

2.             OVERVIEW

2.1        This Schedule 4 sets out additional terms and conditions that shall apply to the Consultancy Services provided by Wirehive under the Terms and Conditions and where the Customer purchases, through a duly executed Order, the Consultancy Services.

2.2        The terms of this Schedule 4 shall apply in addition to the Terms and Conditions, and together with the Order shall govern the Statement of Work and form the contract for the Consultancy Services.

2.3        In the event of any inconsistency between the terms and conditions of this Schedule 4 and the main Terms and Conditions, then this Schedule 4 shall override and apply.

3.          WIREHIVE CONSULTANCY SERVICES

3.1        Wirehive shall use all its reasonable endeavours to provide the Consultancy Services in a timely manner, subject to any assumptions and dependencies set out in a Statement of Work.

3.2        Any dates for Wirehive’s performance in a Statement of Work shall be estimates only and time shall not be of the essence. Dates are dependent upon the customer fulfilling their obligations as per the ‘Customer Requirements’ section of the Statement of Work.

3.3        Wirehive warrants that:

3.3.1     the Consultancy Services shall be supplied and rendered by appropriately experienced, qualified and trained personnel and in a professional manner, and in an efficient and timely manner;

3.3.2     its personnel shall observe all health and safety and security requirements that apply at any of the Customer’s premises and that have been communicated to it; and

3.3.3     it shall provide its professional opinions and advice to Customer in accordance with its own best professional judgement only.

3.4        Unless agreed otherwise in a Statement of Work, the Consultancy Services are provided for the benefit of the named Customer only and are personal to the Customer, and Wirehive does not assume any liability to any other party relying on the advice given or results of the Consultancy Service. The Customer shall not disclose, transfer or licence to any other party the Consultancy Services, its Deliverables or outputs.

3.5        Save as otherwise set out in both this clause 3 of Schedule 4 and in the main Terms and Conditions, Wirehive gives no other warranty, representation or guarantee with respect to the Consultancy Services.

4.          CUSTOMER RESPONSIBILITIES

In addition to any other obligations of the Customer set out in a Statement of Work:

4.1        The Customer shall provide, and at no cost to Wirehive:

4.1.1     seating, basic office facilities (including desk space and internet connectivity), and access to meeting spaces as needed to the Wirehive Consultant(s) when on the Customer’s premises;

4.1.2     a single point of contact for all engagement queries and who has the authority to bind and/or provide approvals and instructions on behalf of the Customer;

4.1.3     or facilitate prompt access to any systems, offices, facilities, information, documentation, personnel, that Wirehive notifies the Customer it requires to provide the Consultancy Services;

4.1.4     all relevant staff and necessary stakeholders to attend workshop and training elements of the Wirehive Consultancy Services; and

4.1.5     suitable personnel to review each completed Deliverable upon notification of completion by Wirehive.

4.2        The Customer warrants, represents and undertakes that it shall, and shall ensure that its employees, contractors and agents shall, and throughout the Consultancy Engagement:

4.2.1     cooperate with any reasonable request of Wirehive during the performance and delivery of the Wirehive Consultancy Services;

4.2.2     provide all necessary instructions, materials and approvals requested by Wirehive;

4.2.3     ensure that all information and material provided to Wirehive is accurate in all material effect without any requirement of third party or Wirehive verification to confirm the accuracy;

4.2.4     keep Wirehive informed throughout the Consultancy Engagement of any developments in relation to Customer’s business that will or will likely impact on the Consultancy Services and the results of the Consultancy Services being considered by Wirehive;

4.2.5     attend and review progress of the Consultancy Services at schedule progress meetings and as and when requested by Wirehive;

4.2.6     provide Wirehive with access to all of the Customer’s information, documentation and technology necessary for Wirehive to perform the Consultancy Services, including an up to date list of all Customer and third-party contacts necessary for Wirehive to provide the Consultancy Services; and

4.2.7     not make any copies of any documents (other than back-up copies) without the permission of Wirehive or the relevant document owner.

4.3        Where the Consultancy Services are provided on the Customer’s premises, then the Customer shall ensure that, and at no cost to Wirehive:

4.3.1     its premises comply with applicable occupational health and safety and security laws, regulations and industry standards;

4.3.2     it shall inform Wirehive of all health and safety and security requirements that apply at any of the Customer’s premises;

4.3.3     it maintains and keeps in place during the Consultancy Engagement suitable levels of public liability insurance to cover Wirehive’s staff when on site at the Customer’s premises;

4.3.4     it has prepared and shall maintain its premises to a high standard for the supply of the Consultancy Services at the Customer’s premises; and

4.3.5     it shall provide all Wirehive staff with any necessary personal protective equipment or training as may be applicable for the performance of the Services at Customer’s premises.

4.4        The Customer shall treat all Wirehive methodologies, documents, formats and infrastructure implementation methodology as Wirehive’s Confidential Information and the trade secrets of Wirehive.

4.5        The Customer’s adherence to this paragraph 4 shall be of the essence during the Consultancy Engagement.

5.          FEES AND EXPENSES

5.1        The Customer shall pay the Fees set out in the Statement of Work.

5.2        Any pricing set out in a Statement of Work is valid only for thirty days prior to the signature of both the parties.

6.          CANCELLATION AND POSTPONEMENT

6.1        The Customer may, and in writing and in advance, cancel any pre-arranged or pre-booked Consultancy Day. Where it is necessary for the Customer to do so, then the Customer acknowledges that this may cause Wirehive to incur non-refundable travel expenses and other pre-incurred costs, and which Wirehive may pass on to the Customer.

6.2        Where Customer requires a pre-arranged or pre-booked Consultancy Day to be cancelled then:

6.2.1     if the Customer cancels or misses an appointment or scheduled activity less than 10 business days, but more than 3 business days prior to the booked appointment or activity, then the Customer shall pay Wirehive the fees equivalent to 10% of the total cost of the day’s rate (for all consultants booked), plus any non-refundable travel expenses; and

6.2.2     if the Customer cancels or misses an appointment or scheduled activity less than 2 business days prior to the start date of the booked appointment or activity, the Customer shall pay Wirehive the fees equivalent to 100% of the total cost of the day’s rate (for all consultants booked) plus any non-refundable travel expenses.

6.3        If the Customer wishes to cancel the Consultancy Services in full or part, then the entire fee for the cancelled service shall be payable by Customer to Wirehive.

6.4        The parties acknowledge and agree that the sums set out in paragraph 6.2 and 6.3 are a genuine pre-estimate of Wirehive’s losses for the cancelled or missed appointment, and are not a penalty.

7.          TERMINATION

7.1        On termination of the Consultancy Services, the Customer shall return to Wirehive (or if in electronic form, erase) any documents or similar deliverables provided to Customer during the Consultancy Services.

SCHEDULE 5

WIREHIVE CLOUD SERVICE LEVELS

1.          DEFINITIONS

1.1        In this Schedule 5, the following words shall have the following meanings:

Application Level” means the services of a Server that are used to provide the end user with a specific function (such as a Website);

Dedicated Platform Services” means dedicated hardware purchased through Wirehive and hosted and managed by Wirehive as part of Wirehive Cloud Services

Measurement Location” means the location at which the measurement of Service Levels (including Network Availability, Packet Loss, and/or Server Availability) is undertaken in order to determine whether the Service Level has or has not been satisfied;

Network Availability” means Wirehive’s network infrastructure within its data centres;

Packet Loss” means one or more packets of data, transmitted via a network, fails to arrive at their destination;

Permitted Downtime” means downtime that occurs during or as a result of maintenance, which shall not constitute downtime for the purpose of calculating any Service Levels (including Network Availability, Packet Loss, and/or Server Availability) and/or associated Service Credits owed to the Customer by Wirehive pursuant to this Schedule 5;

Server Availability” means the Server is powered on and accessible via the applicable network;

Service Level” means the minimum level at which the Services shall be provided, as set out in the table at paragraphs 2.1 and 2.2 of this Schedule 5; and

Wirehive Public Cloud Services” means virtual server(s) on Wirehive-owned hardware, hosted and managed by Wirehive as part of Wirehive Cloud Services.

2.          SERVICE LEVELS

2.1        In respect of any Wirehive Public Cloud Services provided by Wirehive to the Customer, Wirehive shall in each calendar month meet the following Service Levels, as measured by Wirehive from the Measurement Location:

Measurement

Service Level

Measurement Location

   

Network Availability

100% uptime

Backbone routers and switches within Wirehive’s data centres

   

Packet Loss

Less than 0.25% packet loss

Backbone routers and switches within Wirehive’s data centres

   

Server Availability

99.99% uptime and availability

Network and power of the virtual node

   

2.2        In respect of any Dedicated Platform Services provided by Wirehive to the Customer, Wirehive shall in the Measurement Period meet the following Service Levels, as measured by Wirehive from the Measurement Location:

Measurement

Service Level

Measurement Location

Measurement Period

 

Network Availability

100% uptime

Backbone routers and switches within Wirehive’s data centres

Calendar month

 

Packet Loss

Less than 0.25% packet loss

Backbone routers and switches within Wirehive’s data centres

Calendar month

 

Connectivity

100% connectivity to upstream carriers

Backbone routers and switches within Wirehive’s data centres

Calendar month

 

Server Availability

99.99% uptime and availability

Power and network on the physical server

Calendar month

 

Power Availability

100% availability

Power delivered to the Power Supply of the provided server

Calendar month

 

Environment Availability

26’C ± 4’C

20’C ± 2’C

(depending on site)

Environmental monitoring by Wirehive’s Datacentre Partners

Each 24 hours beginning at midnight

 

2.3        Network Availability & Packet Loss

2.3.1     For the purpose of calculating the Network Availability Service Level, Wirehive’s network infrastructure will be deemed as available unless a Server provided by Wirehive pursuant to an Order becomes unreachable due to an outage within Wirehive’s network infrastructure.

2.3.2     Wirehive does not guarantee, and the Network Availability and/or Packet Loss Service Levels do not apply to, routing, latency, or packet loss once data traffic has left Wirehive’s network (within Wirehive’s data centres). Notwithstanding this, Wirehive shall use reasonable endeavours to configure the routers and switches in such a way that outbound data traffic is routed via the available carriers with the most efficient and rapid routes to the destination addresses.

2.4        Connectivity

The Connectivity Service Level is only provided where, and to the extent that, bandwidth is provided by Wirehive as part of the Services.

2.5        Server Availability

2.5.1     Servers provided by Wirehive pursuant to an Order shall be measured in each calendar month by Wirehive using the results of the monitoring, as described in paragraph 5 of Schedule 2, and deemed available unless the relevant Server becomes unreachable due to an outage within Wirehive’s infrastructure.

2.5.2     Application Level Incidents (as defined in Schedule 2), such as website unavailability, are not subject to, or otherwise covered by, the Server Availability Service Levels. The Server Availability Service Level measures whether the Server(s) are powered on and accessible over the Wirehive network, including Incidents (as defined in Schedule 2) with the virtual infrastructure (such as the availability of any host and storage used by the relevant Server).

2.5.3     The following shall not constitute downtime for the purpose of calculating the Server Availability:

(a)         an outage deemed by Wirehive to have been caused by the Customer, either directly or indirectly, including changes made at the request of the Customer;

(b)         where the downtime results from any suspension instigated by Wirehive in accordance with the terms of this Agreement (including any Order), including as a result of any breach by the Customer of the Acceptable Use Policy;

(c)         any services that form part of the Services that are provided (in whole or in part) by Wirehive’s affiliates, subcontractors, partners, and other third parties (including Third Party Services, as defined in paragraph 4.1.1 below); and/or

(d)         Permitted Downtime, which includes outages during maintenance windows for scheduled maintenance pursuant to paragraph 9.1 of Schedule 2 or emergency maintenance pursuant to paragraph 9.2 of Schedule 2.

2.5.4     Wirehive shall not be liable to the Customer for any failure to meet any Service Level (and shall not provide to the Customer any associated Service Credits) where such failure occurs as a result of: (a) any act or omission of (or by a third party on behalf of) the Customer, and/or (b) any failure by the Customer to notify Wirehive of a Surge Event or likely Surge Event in accordance with clause 7.1 of the Terms and Conditions.

2.6        Power Availability

2.6.1     Wirehive’s Dedicated Platform hardware (including Servers) is configured with dual power, supplied by fully redundant power sources.

2.6.2     At the Customer’s request, Wirehive may supply as part of the Services hardware (including Servers) that does not support a dual power configuration. The Power Availability Service Level shall not apply to such Services, and such Services shall be provided at the Customer’s own risk.

2.6.3     The following shall not constitute downtime for the purpose of calculating the Server Availability Service Level:

(a)         an outage deemed by Wirehive to have been caused by the Customer, either directly or indirectly, including changes made at the request of the Customer;

(b)         where the downtime results from any suspension instigated by Wirehive in accordance with the terms of this Agreement (including any Order), including as a result of any breach by the Customer of the Acceptable Use Policy;

(c)         any services that form part of the Services that are provided (in whole or in part) by Wirehive’s affiliates, subcontractors, partners, and other third parties (including Third Party Services, as defined in paragraph 4 below); and/or

(d)         Permitted Downtime, which includes outages during maintenance windows for scheduled maintenance pursuant to paragraph 9.1 of Schedule 2 or emergency maintenance pursuant to paragraph 9.2 of Schedule 2.

2.7        Non-Compliance

2.7.1     Where Wirehive fails to meet the Server Availability Service Level in a given calendar month, Wirehive shall provide to the Customer a Service Credit in accordance with paragraph 5 of this Schedule 5.

3.          HARDWARE FAILURE REQUIRING REPLACEMENT EQUIPMENT

3.1.1     In the event of a hardware failure in respect of Dedicated Platform Services (“Failing Hardware”), Wirehive may restore the applicable Services using replacement hardware that is different from the Failing Hardware, which shall perform the same roles as the Failing Hardware (“Replacement Hardware”).

3.1.2     Wirehive reserves the right to use Replacement Hardware which differs from the Failing Hardware specified in the applicable Order.

3.1.3     Once the Dedicated Platform Service is available, Wirehive will schedule any maintenance required to repair or replace any Failing Hardware, and migrate the Customer’s content back to the original equipment (where required) at a time that Wirehive deems as convenient.

4.          AFFILIATES, SUBCONTRACTORS, PARTNERS, AND OTHER THIRD PARTIES

4.1.1     Some or all of the Services provided by Wirehive may include or consist of (in whole or in part) third party services (“Third Party Services”). Unless otherwise agreed between the Parties the:

4.1.2     Third Party Services shall not be subject to, or otherwise covered by, any Service Levels under this Agreement; and

4.1.3     Third Party Service providers shall be solely responsible for providing support and service levels in respect of such Third-Party Services.

4.1.4     Should an outage occur in respect of a Third-Party Service, Wirehive offers no guarantees and shall not be responsible for resolving such outage.

4.1.5     Third Party Service providers are selected by Wirehive on the basis (amongst others) of their reputation and reliability. Should such reputation and reliability change, Wirehive may suggest to the Customer an alternative Third-Party Service provider to provide such services as constitute the whole or part of the Services (as applicable). In any such event, all responsibility for the provision of the applicable Third-Party Service shall remain with the applicable third parties at all times, and Wirehive shall not be liable or otherwise responsible for such Third Party Services.

5.          SERVICE CREDITS

5.1        Network Availability

5.1.1     Subject to paragraphs 5.1.2 and 5.2.2 of this Schedule 5, for each full hour of Network Availability falling below the Service Level set out in paragraph 2.1 of this Schedule 5 (excluding all Permitted Downtime, as defined in Schedule 2) in each calendar month, upon notification by the Customer Wirehive will provide the Customer with a refund of the amount of 5% of the Fees  (excluding any software licences) paid in respect of the affected Service(s) pursuant to the applicable Order(s) during the calendar month in which the Service Level was not met (the “Network Availability Service Credit”). For the avoidance of doubt, no fees (in whole or in part) payable in respect of software Licenses shall be refunded to the Customer.

5.1.2     To receive the Network Availability Service Credit:

(a)         the Customer must notify Wirehive in writing (by email to support@wirehive.com specifying the Customer’s name and identity) of all dates and times of Server unavailability no later than the last day of the month immediately following the month in respect of which the Network Availability Service Credit is being claimed; and

(b)         Wirehive shall, following receipt of the notice set out in paragraph 5.1.2(a), compare the measurements and information provided by the Customer to the Network Availability monitoring data recorded by Wirehive during the same period. For the avoidance of doubt, in the event of discrepancy or conflict between the information or measurements provided by the Customer and recorded by Wirehive, the information and measurements recorded by Wirehive shall take precedence and be used to calculate the applicable Service Credits (if any).

5.1.3     Following the completion of the actions at paragraph 5.1.2, Wirehive shall notify the Customer of either: (a) the issuance of the applicable Service Credit, or (b) the reasons for not providing the Service Credit (including, for example, as a result of the information or measurements recorded by Wirehive not entitling the Customer to a Service Credit).

5.1.4     Wirehive shall only be entitled to issue a Service Credit where the Server unavailability information recorded by Wirehive would entitle the Customer to such Service Credit. Service Credits shall be awarded in accordance with the Service Credit Procedure set out in paragraph 5.3 of this Schedule 5.

5.2        Server Availability

5.2.1     Subject to paragraph 3 of this Schedule 5, where the Server Availability Service Level set out in paragraph 2.1 of this Schedule 5 is not met (excluding all Permitted Downtime, as defined in Schedule 1) in any given calendar month, Wirehive shall provide to the Customer a percentage-based refund of the monthly Fees paid by the Customer in respect of the affected Service(s) pursuant to the applicable Order in the calendar month in which the Service Level was not met, in accordance with the following table:

(HH:MM:SS)

(%)

     

00:00:01– 00:45:00

No Service Credit

     

00:45:01 – 02:00:00

2.5%

     

02:00:01 – 05:00:00

5%

     

05:00:01 – 08:00:00

10%

     

08:00:01 – 12:00:00

20%

     

12:00:01 – 18:00:00

30%

     

18:00:01 – 24:00:00

40%

     

24:00:01 or greater

50%

     

5.2.2     Service Credits shall be awarded in accordance with the Service Credit Procedure set out in paragraph 5.3 of this Schedule 5.

15.3        Service Credit Procedure

5.3.1     The Parties acknowledge and agree that any Service Credits (or similar refunds or rebates connected with the provision of the Services) shall be provided to the Customer:

(a)         as non-monetary consideration, which shall be provided to the Customer in a form and according to timeframes to be agreed in good faith between the Parties (“Non-Monetary Service Credits”) within 10 Business Days of the end of the month in respect of which the Service Credits are payable; and

(b)         where the Parties fail to agree Non-Monetary Service Credits, as a credit onto account for the applicable Consideration (or monetary equivalent to the applicable non-monetary Consideration) for the calendar month in respect of which the Service Credits are payable (“Monetary Service Credits”), such credit to be deducted from the next invoice issued to the Customer.

5.3.2     Wirehive may (in its sole discretion) set-off any Service Credits against charges arising under any other service agreement (including any other Order) between Wirehive and the Customer.

5.3.3     The total Service Credit payable by Wirehive to the Customer shall be limited to, and shall in no circumstance exceed, 50% of the Fees paid by the Customer to Wirehive pursuant to the Order pertaining to the affected Service in the calendar month in which the Service Level that has given rise to the Service Credit has not been satisfied.

5.3.4     The Customer may not claim Service Credits under multiple Service Levels (even where multiple Service Levels are not met) in respect of a single incident (or series of connected incidents). For example, where an incident (or series of connected incidents) results in a breach of the Network Availability Service Level and the Server Availability Service Level, the Customer shall be entitled to claim either Network Availability Service Credits or Server Availability Service Credits, but not both.

5.3.5     The Service Credits set out in this paragraph 5 of Schedule 5 shall be the Customer’s sole and exclusive remedy in respect of any failure by Wirehive to meet any Service Levels set out in this Schedule 5.

SCHEDULE 6

WIREHIVE THIRD PARTY CLOUD SERVICES

1.          DEFINITIONS      

1.1        In this Schedule 6, the following words shall have the following meanings:

Account” means an either an AWS, Azure or GCP account and console for the Customer’s management of Third-Party Cloud Services;

AWS” means Amazon Web Services, Inc. or any of its affiliates or group companies;

AWS Services” means the Amazon Web Services infrastructure to be provided to the Customer, which may include EC2, S3, RDS, and/or other products or services offered by AWS from time to time

AWS Services Fees” means, in respect of AWS Mentor, the on-demand charges applicable to the Customer’s usage of the AWS Services in the preceding calendar month (as incurred by the Customer in respect of their AWS Account(s)), as converted to GBP pursuant to clauses 10.10, 10.11, and 10.12 (where applicable);

AWS Service Levels” means the service levels to be provided by Amazon in respect of the AWS Services, as further set out in paragraph 3 of this Schedule 6;

Azure” means Microsoft Azure.

Azure Services” means the Microsoft Azure infrastructure to be provided to the Customer, as more specifically set out in the applicable Order

Bandwidth” means any data transferred in, out of, or between a Third-Party Cloud Service availability zone, from elastic load balancers, or between any other systems in respect of which AWS may raise a charge;

GCP” means Google Cloud Platform.

GCP Services” means the Google GCP infrastructure to be provided to the Customer, as more specifically set out in the applicable Order:

Manager Service Fees” means the Fees payable by the Customer in respect of the Third-Party Cloud Services and Wirehive Third Party Cloud Support (together), as set out in the applicable Order;

Minimum Committed Spend” means the greater of the amount of minimum committed spend set out in an Order, or:

(a)         where the Customer has purchased Wirehive Third Party Cloud Essentials, the sum of £500 (ex. VAT) in respect of AWS Services Fees and Wirehive Support Fees (together); or

(b)         where the Customer has purchased Wirehive Third Party Cloud Priority, the sum of £500 (ex. VAT) in respect of Third-Party Cloud Services Fees and Wirehive Support Fees (together)

to be incurred by the Customer in each calendar month;

Priority” means the priority services for Third Party Cloud, as further set out in paragraph 4 (for Third Party Cloud Mentor) and/or paragraph 5 (for Third Party Cloud Manager) of this Schedule 6;

Third Party Cloud Services Manager” means the Third Party Cloud Services and applicable Wirehive Third Party Cloud Services Support (together), as further described in paragraph 5 of this Schedule 6;

Third Party Cloud Services Mentor” means the Third Party Cloud Services and applicable Wirehive Third Party Cloud Services Support (together), as further described in paragraph 4 of this Schedule 6;

Third Party Clouds Services” means (i) AWS Services, and/or (ii) the Azure Services; and/or (iii) GCP Services as more specifically set out in the applicable Order:

Wirehive Account” means an account and console through which the Customer administers and manages any Third-Party Cloud Account, Wirehive Services, and/or other Wirehive tools, content, and materials;

Wirehive Third Party Cloud Support” means: (a) in respect of Mentor versions of Third-Party Cloud offerings, either Essentials or Wirehive AWS Priority for Third Party Cloud and (b) in respect of Manager offerings Priority for Third Party Cloud;

Wirehive Setup Fees” means the fixed fee charged to the Customer by Wirehive to set up the Third-Party Cloud Services (if and to the extent applicable) and Wirehive Third Party Cloud Support, as set out in the applicable Order; and

Wirehive Support Fees” means the monthly Fee charged to the Customer by Wirehive in respect of the applicable Wirehive Third Party Cloud Support, as set out in the applicable Order.

2.          OVERVIEW

2.1        This Schedule 6 sets out the Services and Service Levels that shall be provided by Wirehive where the Customer purchases, through a duly executed Order, either Mentor or Manager offerings from Wirehive for Third Party Cloud Service.

2.2        Customer consents to Wirehive appointing the Third Party Cloud Service Provider as a third party-processor of Customer Data to provide the Third Party Cloud Service Services in accordance with this Schedule, and Wirehive confirms it has entered into (or will enter into) a written agreement incorporating terms which are substantially similar to those set out in clause 14 of the Agreement.

2.4         Customer agrees to provide Wirehive with the necessary administrative access to monitor, manage and access their Servers as is reasonably expected in order to deliver Services

2.4        Customer warrants, represents and undertakes that it has read and approved the applicable Third Party Cloud Service’s security policy as set out at:

2.4.1     for AWS Services: https://aws.amazon.com/security/;

2.4.2     for Azure Services: https://www.microsoft.com/en-us/TrustCenter/Security

2.4.3     for GCP Services: https://cloud.google.com/security/.

3.          THIRD PARTY CLOUD SERVICE LEVELS

3.1        Subject to paragraphs 3.2 of this Schedule 6, the Third Party Cloud Service Services are third party services that are not subject to, and do not benefit from, any Wirehive Service Levels (including those set out in Schedule 5).

3.2        Wirehive shall pass-through to the Customer the benefit of any Third-Party Cloud Service Levels in respect of the Third Party Cloud Services. As at the date of this Agreement, such Service Levels are set out at:

3.2.1     in respect of the AWS EC2 service: https://aws.amazon.com/ec2/sla/ (for the avoidance of doubt, the definition of ‘uptime’ in this AWS Service Level is in reference to the availability of the EC2 API in the Customer’s availability zone);

3.2.2     in respect of the AWS S3 service: https://aws.amazon.com/s3/sla/ ;

3.2.3     in respect of the AWS RDS service: https://aws.amazon.com/rds/sla/;

3.2.4     in respect of the Azure Compute service: https://azure.microsoft.com/en-gb/support/legal/sla/ (for the avoidance of doubt, the definition of ‘uptime’ in this Azure Service Level is in reference to the availability of the Azure Computer Instances in the Customer’s availability zone);

3.2.5     in respect of the Azure Storage service: https://azure.microsoft.com/en-gb/support/legal/sla ; and

3.2.6     in respect of the Azure Databases service: https://azure.microsoft.com/en-gb/support/legal/sla

3.2.7     in respect of the GCP Compute service: https://cloud.google.com/terms/sla/  (for the avoidance of doubt, the definition of ‘uptime’ in this GCP Service Level is in reference to the availability of the Google Compute Engine;

3.2.8     in respect of the GCP Storage service: https://cloud.google.com/storage/sla  and

3.2.9     in respect of the GCP Databases service: https://cloud.google.com/sql/sla

each as may be updated or amended from time to time (with or without notice).

4.          THIRD PARTY CLOUD SERVICE: MENTOR OFFERING

4.1        The Mentor offerings on Third Party Cloud Service are designed for Customers that wish to maintain control of their Third-Party Cloud Services, but would like advice, guidance, and tools from Wirehive.

4.2        Where the Customer purchases Mentor via a duly executed Order, Wirehive shall:

4.2.1     establish a Third-Party Cloud Service Account in the Customer’s name, and link such Third-Party Cloud Service Account to the Customer’s Wirehive Account;

4.2.2     grant the Customer full administrative control over the Third-Party Cloud Service Services, including access to such via the Customer’s Third-Party Cloud Service Account; and

4.2.3     where the Customer purchases Priority Support for Wirehive Third Party Cloud Service, order and purchase the applicable Third-Party Cloud Service Services on behalf of the Customer via the Customer’s Third-Party Cloud Service Account. For the avoidance of doubt, where the Customer purchases Wirehive Essentials, the Customer shall be required to order all Third-Party Cloud Service Services themselves.

4.3        The Customer may: (a) require Wirehive to open a Third-Party Cloud Service Account for and on behalf of the Customer, or (b) transfer to Wirehive an existing Customer Third Party Cloud Service Account.

4.4        Wirehive shall be entitled to invoice the Customer via the Customer’s Wirehive Account, and the Customer shall pay to Wirehive in accordance with clause 10 of the Agreement:

4.4.1     the Wirehive Setup Fees, as a single one-off Fee, prior to the commencement of any Third-Party Cloud Service and/or Wirehive Third Party Cloud Service Support under the applicable Order;

4.4.2     monthly in arrears for:

4.4.3     the greater of: (i) the Third-Party Cloud Service Fees and the Wirehive Support Fees, or (ii) the Minimum Committed Spend (as applicable to the Wirehive Third Party Cloud Service Support purchased by the Customer); and

4.4.4     any additional charges incurred by the Customer in respect of Third Party Add-Ons (including CDNs and otherwise), overages, and/or additional support costs (including in respect of services provided by Wirehive under higher-tiered Wirehive Third Party Cloud Service Support packages, outside of the purchased Wirehive Third Party Cloud Service Support package, or otherwise) at such rates as Wirehive may specify from time to time.

4.5        The Customer shall:

4.5.1     adhere at all times to the Third-Party Cloud Service maintenance windows, as may be notified to the Customer from time to time; and

4.5.2    provide Wirehive with the necessary administrative access to monitor, manage and access their Servers as is reasonably expected in order to deliver Services; and

4.5.3     obtain Wirehive’s prior written consent (not to be unreasonably withheld) before altering the Third-Party Cloud Service billing agreement (including where the Customer, in accordance with the terms of this Agreement: (a) terminates the applicable Order and/or this Agreement, and/or (b) terminates the Third-Party Cloud Services (or any part thereof)).

4.6        Third Party Cloud Services purchased by the Customer may be subject to additional terms and conditions between the Customer and the Third-Party Cloud Service or other third parties (“Third Party Terms”). The Customer shall remain liable for all costs, fees, expenses, and other amounts charged or incurred under any Third-Party Terms, and shall indemnify and hold harmless Wirehive from and against any and all claims, actions, damages, losses and expenses (including, without limitation, legal fees) arising under or in connection with such Third Party Terms. This paragraph 4.6 shall survive expiry or termination of this Agreement.

4.7        For the avoidance of doubt:

4.7.1     where the Customer purchases Wirehive Priority as part of  Mentor offerings, the Service Levels set out in Schedule 5 shall not apply; and

5.          THIRD PARTY CLOUD SERVICE: MANAGER OFFERING

5.1        The Third-Party Cloud Service Manager package is designed for Customers that would like Wirehive to manage and operate their Third-Party Cloud Services for and/or with them.

5.2        Where the Customer purchases Manager via a duly executed Order, Wirehive shall:

5.2.1     set up a hosting environment for the Customer using the Third-Party Cloud Service, where Wirehive purchases such Third-Party Cloud Services for and on behalf of the Customer; and

5.2.2     provide the Customer with access via the Wirehive Account to the servers it has purchased;

5.2.3     establish a Third Party Cloud Service Account in the Customer’s name, and link such Third Party Cloud Service Account to the Customer’s Wirehive account.

5.3        Wirehive shall be entitled to invoice the Customer via the Customer’s Wirehive Account, and the Customer shall pay to Wirehive in accordance with clause 10:

5.3.1     the Wirehive Setup Fees, as a single one-off Fee, prior to the commencement of any Third-Party Cloud Service and/or Wirehive Third Party Cloud Service Support under the applicable Order;

5.3.2     the Manager Services Fees, monthly in advance; and

5.3.3     any additional charges incurred by the Customer in respect of Third Party Add Ons (including CDNs and otherwise), overages, and/or additional support costs (including in respect of services provided by Wirehive under higher-tiered Wirehive Third Party Cloud Service Support packages, outside of the purchased Wirehive Third Party Cloud Service Support package, or otherwise) at such rates as Wirehive may specify from time to time, monthly in arrears.

5.4        The Customer shall:

5.4.1     adhere at all times to the Third-Party Cloud Service maintenance windows, as may be notified to the Customer from time to time.

5.4.2    provide Wirehive with the necessary administrative access to monitor, manage and access their Servers as is reasonably expected in order to deliver Services.

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