THESE TERMS AND CONDITIONS are entered into on the Commencement Date BETWEEN: (a) Wirehive Limited (company number 05451011), whose registered address is 23-24 Hercules Way, Farnborough, Hampshire, GU14 6UU (“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;

“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;

“Customer” who is the company or individual listed under the Customer Details section on the Specification Document / Front Page of the agreement.

“Customer Data” means any data (including “Personal Data” as defined in the Data Protection Act 1998 or any subsequent legislation), provided by the Customer to Wirehive under this Agreement;

“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;

“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);

“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 Services set out in Schedule 1, and which may (subject to the applicable Order) include Wirehive Managed SysOps and/or AWS Services set out in Schedule 4 and/or the Consultancy Services set out in an executed Statement of Work;

“Service Levels” means the service levels set out in Schedules 2 and/or 3 (as applicable) 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 1;

“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;

“Wirehive Managed SysOps” means the managed SysOps services that may be provided by Wirehive to the Customer pursuant to any Order.

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),) and 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 7 (Consultancy Services) shall apply in addition to the Terms and Conditions in respect to the Consultancy Services.

3.6       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 2 of this Agreement, in respect of Cloud Platform Services; and

4.1.2     Schedule 3 of this Agreement, in respect of Dedicated Platform Services,
save in respect of paragraph 2.2 of Schedule 2 and 2.2 of Schedule 3, which Wirehive shall meet only where the Customer purchases Wirehive Managed SysOps as part of the 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     notify Wirehive in advance of any potential Surge Events (or periods in which Surge Events are likely) in accordance with clause 7;

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

5.1.6     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 and Website Uptime Service Levels) 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 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;

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 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 such invoice 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. 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 12.8, 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 4), 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 Subject to clause 11.1, 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.

11.3 Subject to clause 11.1, 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: (a) loss of business, loss of opportunity, reputational loss, loss or corruption of data, depletion of goodwill, degradation of data or information, or loss of profits or revenue (in each case whether direct or indirect), or (b) for any 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 (“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 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.

12.6 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.

12.7 Termination of:

12.7.1 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

12.7.2 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.

12.8 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).

12.9 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 infringe the Intellectual Property Rights of a third party.

14. DATA PROTECTION

14.1 For the purpose of this clause 14:

14.1.1 “Data Controller”, “Data Processor”, “Personal Data” and “Processing” all have the meanings set out in the Data Protection Act 1998; and

14.1.2 “Data Protection Laws” means the EU Data Protection Directive (Directive 95/46/EC), the Data Protection Act 1998, and Electronic Communications (EC Directive) Regulations 2003 (each as amended and in force from time to time), and such other data protection laws and regulations as may apply from time to time.

14.2 Wirehive and the Customer acknowledge that, for the purpose of the Data Protection Laws, the Customer is the Data Controller and Wirehive is the Data Processor of any Customer Data. Wirehive will, at all times:

14.2.1 carry out all Processing of Customer Data pursuant strictly in accordance with this Agreement and the Customer’s written instructions from time to time

14.2.2 have in place appropriate technical and organisational security measures so that the Customer Data is protected against unauthorised or unlawful processing and against accidental loss, destruction or damage;

14.2.3 promptly carry out any request from the Customer to amend, transfer, delete or return the Customer Data;

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

14.2.5 promptly notify the Customer in the event of a request for disclosure of Customer Data by a law enforcement authority or any communication from any supervisory or government body or any notice or request from an individual in relation to the Customer Data;

14.2.6 it shall not transfer the Customer Data outside of the EEA unless it has the prior written consent of the Customer

14.2.7 it will comply promptly and in full with any request made by the Customer or any data subject.

14.2.8 not do anything, or permit anything to be done, which would lead to a breach by the Customer of any Data Protection Laws.

14.3 The obligations in this clause 14 shall not be affected by the expiry or termination of this Agreement.

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 7 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 Customer on the date first written above.

SCHEDULE 1

SUPPORT AND MAINTENANCE

1. DEFINITIONS

1.1 The following words shall have the following meanings as used in the Agreement:

“10×5” means Business Hours;

“24×7” means 24 hours per day, 7 days per week, 365 days per year;

“Application Level” means a Server’s services that are used to provide the Customer with a specific function.

“Business Hours” means 08:00 to 18:00 (UK time) on Business Days;

“Contact Mechanism” means the method used by the Customer to notify Wirehive of an Incident or Request;

“Core Services” means the Application Level services that are critically required for a Server to function as intended.

“Coverage Period” means the time during which the Customer may contact Wirehive via the Contact Mechanisms in respect of an Incident and Request, based on which Wirehive’s Response Time shall be determined;

“Critical or Significant Vulnerability” shall mean a vulnerability in any element of the Services or software pertaining thereto (including the OS run on the Servers) which, if not addressed or repaired urgently, may have or contribute towards (directly or indirectly) a severe and detrimental impact on the Services, the Customer’s business, or the rest of the Wirehive infrastructure;

“Escalation Process” means an internal procedure undertaken by Wirehive to ensure that tickets are handled effectively;

“Incident” means an unplanned interruption to a Service or reduction in the quality of a Service;

“Out of Hours” means any time that is not Business Hours;

“Permitted Downtime” means downtime that occurs during or as a result of maintenance (including Schedule Maintenance and Emergency Maintenance as set out in paragraph 8 of this Schedule 1), which shall not constitute downtime for the purpose of calculating any Service Levels and/or associated Service Credits owed to the Customer by Wirehive pursuant to Schedules 2 and/or 3 (as applicable);

“Power and Ping” or “Server Availability” means monitoring that ensures a Server is powered on and accessible via network, however this does not extend to Application Level and/or Core Services;

“Priority” means the level assigned to an Incident or Request, depending on business impact and urgency;

“Request” means the seeking of information or advice, or initiation of a change to a new or existing Service, by Customer;

“Response Time” means the time between acknowledgement and investigation of an Incident or Request;

“Service Desk” means the technical support team at Wirehive that handles Incidents and Requests;

“Support Plan” means the level of support and maintenance of the Services that may be provided by Wirehive to the Customer under this Agreement and/or any Order Form; and

“Supported Services Policy” means the policy entitled such located Wirehive Portal.

2. MANAGED SUPPORT PLANS

2.1 Essentials Support Plan

2.1.1 Unless otherwise stated in an Order, the Essentials Support Plan is included as standard on all Services, and applies to:

(a) underlying equipment, including physical and virtual infrastructure, used to provide the Services; and

(b) support of provided Server(s) up to the OS (as defined in paragraph 5.1 of this Schedule 1) level, including power and networking. For the avoidance of doubt, Application Level support is not included in the Essentials Service Level.

2.1.2 For all services covered by Essentials Support Plan, Wirehive shall provide:

(a) 24×7 monitoring and alerting for Server Availability (Power and Ping);

(b) 24×7 emergency telephone support for Critical Incidents (see paragraph 3.1 of this Schedule 1); and

(c) 10×5 request fulfilment for networking and infrastructure requests.

2.2 Managed 10×5 Support Plan

2.2.1 The Managed 10×5 Support Plan is an optional support service to be attached to individual Services provided by Wirehive, limited to:

(a) support for attached Services only (multiple Managed 10×5 Support Plan must be supplied for multiple Servers); and

(b) the supported services set out in the Supported Services Policy;

2.2.2 For all Services covered by Managed 10×5 Support Plan, Wirehive shall provide:

(a) 24×7 monitoring and alerting for Server Availability (Power and Ping);

(b) 24×7 emergency telephone support for Critical Incidents;

(c) 10×5 incident management for OS and Application level;

(d) 10×5 request fulfilment for networking, infrastructure, OS and application changes; and

(e) patching and updates as specified in paragraph 6 of this Schedule 1.

2.3 Managed 24×7 Support Plan

2.3.1 The Managed 24×7 Support Plan is an optional support service to be attached to individual Services provided by Wirehive, limited to:

(a) support for attached Services only (multiple Managed 24×7 Support Plan must be supplied for multiple Servers); and

(b) the supported services set out in the Supported Services Policy.

2.3.2 For all Services covered by Managed 24×7 Support Plan, Wirehive shall provide:

(a) 24×7 monitoring and alerting for Server Availability (Power and Ping), plus any additional service monitoring requested by the Customer;

(b) 24×7 emergency telephone support for Critical Incidents;

(c) 24×7 incident management for OS and Application Level;

(d) 10×5 request fulfilment for networking, infrastructure, OS and application changes; and

(e) 10×5 patching and updates as specified in paragraph 6 of this Schedule 1.

3. GENERAL SUPPORT SERVICES

3.1 Incident Management

3.1.1 The Customer may report any Incidents to Wirehive, during the coverage period and using the contact mechanisms (each as set out in paragraph 3.1.2 of this Schedule 1), following which Wirehive shall:

(a) open a support ticket in respect of the relevant Incident and assign the applicable Priority classification to such Incident (as defined by Wirehive, based on scope and impact (see paragraph 3.1.2 in this Schedule 1); and

(b) respond to the Customer regarding the applicable Incident(s), or where Wirehive becomes aware of such Incident(s) otherwise than pursuant to paragraph 3.1.1(a) of this Schedule 1 shall notify the Customer of such Incident(s), (in each case an “Incident Response”) within the response time set out in the following table (the “Response Time”). Such Incident Response shall, to the extent reasonably possible: (i) include results of triaging undertaken by Wirehive in relation to the relevant Incident, and (ii) identify the Priority level assigned by Wirehive to such Incident; and

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

3.1.2 Incident Priorities, Coverage Periods, Contact Mechanisms and Response Times:

 

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

 

 

3.2 Request Fulfilment

3.2.1 The Customer may submit a Request to Wirehive, during the Coverage Period and using the Contact Mechanisms (each as set out in paragraph 3.2.2 of this Schedule 1), 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 3.2.2 in this Schedule 1); 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 3.2.1(a) of this Schedule 1, notify the Customer of such Request(s); and

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

3.2.2 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

 

3.2.3 In order to submit an Incident or Request in accordance with paragraphs 3.1 and 3.2 of this Schedule 1, 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

3.2.4 In the event that the Customer fails to report a Critical or Impacting Incident (each as defined in paragraph 3.1.2 of this Schedule 1) 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.

3.2.5 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.

3.2.6 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.

3.2.7 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 1) and is provided without any warranties or liability on part of Wirehive, and (ii) may be subject to additional charges or fees.

4. MONITORING

4.1 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).

4.2 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”).

4.3 Managed 10×5 Support Plan

4.3.1 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.

4.3.2 Where Wirehive is notified of any outages that occur within Business Hours, Wirehive will respond according to the Incident Priorities set out in paragraph 3.1.2 of this Schedule 1.

4.3.3 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.

4.3.4 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 Schedules 2 and/or 3 (as applicable).

4.4 Managed 24×7 Support Plan
4.4.1 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.

4.4.2 Where Wirehive is notified of any outages that occur, Wirehive will respond according to the Incident Priorities set out in paragraph 3.1.2 of this Schedule 1.

4.4.3 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.

4.4.4 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 Schedules 2 and/or 3 (as applicable).

5. OPERATING SYSTEMS & SOFTWARE

5.1 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.

6. PATCHING & UPDATES

6.1 Essentials Support Plan

6.1.1 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).

6.1.2 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.

6.2 Critical or Significant Vulnerabilities

6.2.1 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).

6.2.2 Deployment of Patches and/or Updates classed as Critical or Significant Vulnerabilities are subject to Emergency Maintenance, as defined in paragraph 8.2 of this Schedule 1.

6.2.3 This paragraph 6.3 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.

6.3 Routine Patches and Updates

6.3.1 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).

6.3.2 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).

7. FIREWALLS

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

7.2 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).

7.3 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.

8. SCHEDULED AND EMERGENCY MAINTENANCE

8.1 Scheduled Maintenance

8.1.1 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.

8.1.2 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.

8.1.3 Scheduled Maintenance in any 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).

8.2 Emergency Maintenance

8.2.1 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 8.1.2 of this Schedule 1 in respect of Scheduled Maintenance), in certain circumstances emergency maintenance may be necessary to rectify a fault (“Emergency Maintenance”).

8.2.2 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.

8.2.3 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 Schedules 2 and/or 3 (as applicable).

9. VIRUS PROTECTION

9.1 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.

9.2 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 2

CLOUD PLATFORM SERVICE LEVELS

1. DEFINITIONS

1.1 In this Schedule 2, 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);

“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 2;

“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 2; and

“Website Uptime” means the Customer’s website is accessible by external users with a normal end user experience in terms of features and functionality (including a reasonable level of degradation of speed or content delivery).

2. SERVICE LEVELS

2.1 In respect of any Cloud Platform 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 data centres

   

Packet loss

Less than 0.25% packet loss

Backbone routers and switches within Wirehive data centres

   

Server Availability

99.99% uptime and availability

Network and power of the virtual node

   

2.2 Where the Customer purchases Wirehive Managed SysOps as part of the Services, Wirehive shall in each calendar month meet the following Service Level, as measured by Wirehive from the Measurement Location:

Measurement

Service Level

Measurement Location

   

Website Uptime

99.99% uptime and availability

End user location

   

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 Server Availability and Website Uptime

2.4.1 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 4 of Schedule 1, and deemed available unless the relevant Server becomes unreachable due to an outage within Wirehive’s infrastructure.

2.4.2 Application Level Incidents (as defined in Schedule 1), 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 1) with the virtual infrastructure (such as the availability of any host and storage used by the relevant Server).

2.4.3 The following shall not constitute downtime for the purpose of calculating the Server Availability and/or Website Uptime 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 3.1.1 below); and/or

(d) Permitted Downtime, which includes outages during maintenance windows for scheduled maintenance pursuant to paragraph 8.1 of Schedule 1 or emergency maintenance pursuant to paragraph 8.2 of Schedule 1.

2.4.4 Wirehive shall not be liable to the Customer for any failure to meet the Website Uptime 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.

2.5 Non-Compliance

2.5.1 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 4 of this Schedule 2.

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

3.1.1 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:

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

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

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

3.1.5 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.

4. SERVICE CREDITS

4.1 Network Availability

4.1.1 Subject to paragraphs 4.1.2 and 4.2.2 of this Schedule 2, for each full hour of Network Availability falling below the Service Level set out in paragraph 2.1 of this Schedule 2 (excluding all Permitted Downtime, as defined in Schedule 1) 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.

4.1.2 To receive the Network Availability Service Credit:

(a) the Customer must notify Wirehive in writing (by email to support@wirehive.net 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 4.1.2(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).

4.1.3 Following the completion of the actions at paragraph 4.1.2, 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).

4.1.4 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 4.4 of this Schedule 2.

4.2 Server Availability

4.2.1 Subject to paragraph 4.4 of this Schedule 2, where the Server Availability Service Level set out in paragraph 2.1 of this Schedule 2 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:

Outage Duration

(HH:MM:SS)

Service Credit

(%)

     

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%

     

00:08:01 – 12:00:00

20%

     

12:00:01 – 18:00:00

30%

     

18:00:01 – 24:00:00

40%

     

24:00:01 or greater

50%

     

4.2.2 Service Credits shall be awarded in accordance with the Service Credit Procedure set out in paragraph 4.4 of this Schedule 2.

4.3 Website Uptime

4.3.1 Subject to paragraphs 4.3.2 and 4.4 of this Schedule 2, for each full hour of Website Uptime falling below the Service Level set out in paragraph 2.2 of this Schedule 2 (excluding all Permitted Downtime, as defined in Schedule 1) 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 Wirehive Managed SysOps (excluding all Wirehive and/or AWS infrastructure costs, as applicable) pursuant to the applicable Order(s) during the calendar month in which the Service Level was not met (the “Website Uptime 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.

4.3.2 To receive the Website Uptime Service Credit:

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

(b) Wirehive shall, following receipt of the notice set out in paragraph 4.3.2(a), compare the measurements and information provided by the Customer to the Website Uptime 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).

4.3.3 Following the completion of the actions at paragraph 4.3.2, 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).

4.3.4 Wirehive shall only be entitled to issue a Service Credit where the website 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 4.4 of this Schedule 2.

4.4 Service Credit Procedure

4.4.1 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.

4.4.2 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.

4.4.3 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.

4.4.4 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.

4.4.5 The Service Credits set out in this paragraph 4 of Schedule 2 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 2.

SCHEDULE 3

DEDICATED PLATFORM SERVICE LEVELS

1. DEFINITIONS

1.1 In this Schedule 3, 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);

“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 3;

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

“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 3; and

“Website Uptime” means the Customer’s website is accessible by external users with a normal end user experience in terms of features and functionality (including a reasonable level of degradation of speed or content delivery).

2. SERVICE LEVELS

2.1 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

26C +/- 4C

20C +/- 2C

(depending on site)

Environmental monitoring by Wirehive’s Datacentre Partners

Environmental monitoring by Wirehive’s Datacentre Partners

 

2.2 Where the Customer purchases Wirehive Managed SysOps as part of the Services, Wirehive shall in each calendar month meet the following Service Level, as measured by Wirehive from the Measurement Location:

Measurement

Service Level

Measurement Location

   

Website Uptime

99.99% uptime and availability

End user location

 

Outage Duration

(HH:MM:SS)

Service Credit

(%)

     

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%

     

00:08:01 – 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 5.4 of this Schedule 3.

5.3 Website Uptime

5.3.1 Subject to paragraphs 5.3.2 and 5.4 of this Schedule 3, for each full hour of Website Uptime falling below the Service Level set out in paragraph 2.2 of this Schedule 3 (excluding all Permitted Downtime, as defined in Schedule 1) 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 Wirehive Managed SysOps (excluding all Wirehive and/or AWS infrastructure costs, as applicable) pursuant to the applicable Order(s) during the calendar month in which the Service Level was not met (the “Website Uptime 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.

5.3.2 To receive the Network Availability Service Credit:

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

(b) Wirehive shall, following receipt of the notice set out in paragraph 5.3.2(a), compare the measurements and information provided by the Customer to the Website Uptime 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).

5.3.3 Following the completion of the actions at paragraph 5.3.2, 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).

5.3.4 Wirehive shall only be entitled to issue a Service Credit where the website 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 5.4 of this Schedule 3.

5.4 Service Credit Procedure

5.4.1 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 Working 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.

5.4.2 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.

5.4.3 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.

5.4.4 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, Packet Loss Service Level, and the Server Availability Service Level, the Customer shall be entitled to claim either: (a) Availability, Connectivity, and Packet Loss Service Credits in respect of either the Network Availability Service Level failure or Packet Loss Service Level failure, or (b) Server Availability Service Credits.

5.4.5 The Service Credits set out in this paragraph 5 of Schedule 3 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 3.

SCHEDULE 4

AWS SERVICES AND SERVICE LEVELS

1. DEFINITIONS

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

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

“AWS Account” means an AWS account and console for the Customer’s management of AWS Services;

“AWS Manager” means the AWS Services and applicable Wirehive AWS Support (together), as further described in paragraph 5 of this Schedule 4;

“AWS Mentor” means the AWS Services and applicable Wirehive AWS Support (together), as further described in paragraph 4 of this Schedule 4;

“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, as more specifically set out in the applicable Order:

“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 4;
“Bandwidth” means any data transferred in, out of, or between an AWS availability zone, from elastic load balancers, or between any other systems in respect of which AWS may raise a charge;

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

“Minimum Committed Spend” means:

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

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

(c) where the Customer has purchased Wirehive Managed SysOps, the sum of the AWS Services Fees plus the greater of: (a) £1,000 (ex. VAT) in respect of Wirehive Support Fees, or (b) the percentage of the AWS Services Fees set out in the applicable Order, to be incurred by the Customer in each calendar month;

“Website Uptime” means the Customer’s website is accessible by external users with a normal end user experience in terms of features and functionality (include a reasonable level of degradation of speed or content delivery);

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

“Wirehive AWS Essentials” means the essentials services, as further set out in paragraph 6 of this Schedule 4;

“Wirehive AWS Priority” means the priority services, as further set out in paragraph 7 (for AWS Mentor) and/or paragraph 8 (for AWS Manager) of this Schedule 4;

“Wirehive AWS Support” means: (a) in respect of AWS Mentor, either Wirehive AWS Essentials, Wirehive AWS Priority, or Wirehive Managed SysOps, and (b) in respect of AWS Manager, either Wirehive AWS Priority or Wirehive Managed SysOps;

“Wirehive Managed SysOps” means the managed sysops services, as further set out in paragraph 8 of this Schedule 4;

“Wirehive Setup Fees” means the fixed fee charged to the Customer by Wirehive to set up the AWS Services (if and to the extent applicable) and Wirehive AWS 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 AWS Support, as set out in the applicable Order.

2. OVERVIEW

2.1 This Schedule 4 sets out the Services and Service Levels that shall be provided by Wirehive where the Customer purchases, through a duly executed Order, either AWS Mentor or AWS Manager.

3. AWS SERVICE LEVELS

3.1 Subject to paragraphs 3.2, 7.2.2, and 8.2 of this Schedule 4, the AWS 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 2 and/or 3).

3.2 Wirehive shall pass-through to the Customer the benefit of any AWS Service Levels in respect of the AWS 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/ ; and

3.2.3 in respect of the AWS RDS service: https://aws.amazon.com/rds/sla/,
each as may be updated or amended from time to time (with or without notice).

4. AWS MENTOR

4.1 AWS Mentor is designed for Customers that wish to maintain control of their AWS Services, but would like advice, guidance, and tools from Wirehive.

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

4.2.1 establish an AWS Account in the Customer’s name, and link such AWS Account to the Customer’s Wirehive Account;

4.2.2 grant the Customer full administrative control over the AWS Services, including access to such via the Customer’s AWS Account; and

4.2.3 where the Customer purchases Wirehive AWS Priority or Wirehive Managed SysOps, order and purchase the applicable AWS Services on behalf of the Customer via the Customer’s AWS Account. For the avoidance of doubt, where the Customer purchases Wirehive AWS Essentials, the Customer shall be required to order all AWS Services themselves.

4.3 The Customer may: (a) require Wirehive to open a Customer AWS Account for and on behalf of the Customer, or (b) transfer to Wirehive an existing Customer AWS 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:

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

4.4.2 monthly in arrears for:

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

4.4.4 any additional charges incurred by the Customer in respect of additional products and services (including CDNs and otherwise), overages, and/or additional support costs (including in respect of services provided by Wirehive under higher-tiered Wirehive AWS Support packages, outside of the purchased Wirehive AWS 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 AWS maintenance windows, as may be notified to the Customer from time to time; and

4.5.2 obtain Wirehive’s prior written consent (not to be unreasonably withheld) before altering the AWS consolidated 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 AWS Services (or any part thereof)).

4.6 AWS Services purchased by the Customer may be subject to additional terms and conditions between the Customer and AWS 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 AWS Priority or Wirehive Managed SysOps as part of AWS Mentor, the Service Levels set out in paragraphs 7.2.2 and 8.2 shall not apply; and

4.7.2 there is no form of Wirehive ‘snapshot’ backup available in respect of AWS Mentor.

5. AWS MANAGER

5.1 The AWS Manager package is designed for Customers that would like Wirehive to manage and operate their AWS Services for and/or with them.

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

5.2.1 set up a hosting environment for the Customer using AWS, where Wirehive purchases such AWS 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 an AWS Account in the Customer’s name, and link such AWS 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 AWS Services and/or Wirehive AWS 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 products and services (including CDNs and otherwise), overages, and/or additional support costs (including in respect of services provided by Wirehive under higher-tiered Wirehive AWS Support packages, outside of the purchased Wirehive AWS Support package, or otherwise) at such rates as Wirehive may specify from time to time, monthly in arrears.

5.4 The Customer shall adhere at all times to the AWS maintenance windows, as may be notified to the Customer from time to time.

6. WIREHIVE AWS ESSENTIALS (AWS MENTOR ONLY)

6.1 Where the Customer purchases Wirehive AWS Essentials (as part of AWS Mentor), Wirehive shall provide to the Customer:

6.1.1 24×7 emergency telephone access to AWS certified engineers;

6.1.2 advisory support calls in respect of the AWS Services of less than 10 minutes’ duration at no charge to the Customer (provided that such time limit shall be cumulative in respect of all related calls);

6.1.3 support calls of greater than 10 minutes’ duration in respect of the AWS Services at a charge of £150 per hour (provided that such time limit shall be cumulative in respect of all related calls);

6.1.4 15 minute incident response time for critical issues pertaining to AWS Services (as defined in, and in accordance with, Schedule 1) and;

6.1.5 24 hour Incident Response time to tickets raised pertaining to Incidents in relation to AWS Services via the Wirehive support line (in accordance with Schedule 1); and

6.1.6 24 x 7 server monitoring and alerting, with alerts being sent to the Customer.

6.2 Where deemed necessary by Wirehive, Wirehive may call AWS on the Customer’s behalf.

7. WIREHIVE AWS PRIORITY

7.1 Where the Customer purchases Wirehive AWS Priority as part of either AWS Mentor or AWS Manager, Wirehive shall provide to the Customer:

7.1.1 all services and benefits provided under Wirehive AWS Essentials (as set out in paragraph 6 of this Schedule 4);

7.1.2 24 x 7 server & applications monitoring and alerting;

7.1.3 24 x 7 reactive break and fix support for OS and application; and

7.1.4 server OS updates and security fixes.

7.2 Where the Customer purchases Wirehive AWS Priority as part of the AWS Manager package, Wirehive shall provide to the Customer, in addition to the services and benefits set out in paragraph 7.1 of this Schedule 4:

7.2.1 access to Wirehive’s online billing and support Portal; and

7.2.2 the Server Availability Service Level (and associated Service Credits) as set out in paragraphs 2.1 and 4.2 of Schedule 2, subject to the limitations set out in paragraph 4.2.2 of Schedule 2.

7.3 For the avoidance of doubt, the Service Levels set out in paragraph 7.2.2 of Schedule 4 shall not apply where the Customer purchases Wirehive AWS Priority as part of AWS Mentor.

8. WIREHIVE MANAGED SYSOPS

8.1 Where the Customer purchases Wirehive Managed SysOps as part of either AWS Mentor or AWS Manager, Wirehive shall provide to the Customer:

8.1.1 all services and benefits provided under: (a) Wirehive AWS Essentials (as set out in paragraph 6 of this Schedule 4), and (b) Wirehive AWS Priority (as set out in paragraph 7 of this Schedule 4); and

8.1.2 day-to-day proactive solution management, including:

(a) 5 hours per week allocated time of Wirehive dedicated customer solution manager on the Customer’s AWS Account to proactively manage and optimise the Customer’s solution(s);

(b) establishment by Wirehive of bespoke monitoring and alerting, fully managed by the Wirehive customer support manager;

(c) implementation and management of tailored back up and disaster recovery strategy;

(d) capacity planning and reactive scaling to enhance performance;

(e) change management via custom ‘Ansible’ playbooks; and

(f) log aggregation.

8.2 Where the Customer purchases Wirehive Managed SysOps as part of the AWS Manager package, Wirehive shall meet:

8.2.1 the Server Availability Service Level (and provide the associated Service Credits) as set out in paragraphs 2.1 and 4.2 of Schedule 2; and

8.2.2 the Website Uptime Service Level (and provide the associated Service Credits) as set out in paragraph 4.3 of Schedule 2, in each case the Service Credits being subject to the limitations (including caps) set out in paragraph 4.4 of Schedule 2.

8.3 For the avoidance of doubt:

8.3.1 the Service Levels set out in paragraph 8.2 of Schedule 4 shall not apply where the Customer purchases Wirehive Managed SysOps as part of AWS Mentor;

8.3.2 Wirehive shall not be liable to the Customer for any failure to meet the Website Uptime 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; and

8.3.3 all AWS Services and Wirehive AWS Support set out in this Schedule 4 are subject to the limitations and restrictions set out in Wirehive’s Acceptable Use Policy (as may be provided and updated from time to time).

SCHEDULE 5

AZURE SERVICES AND SERVICE LEVELS

1. DEFINITIONS

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

Azure” means Microsoft Azure. “Azure Account” means an Azure account and access for the Customer’s management of Azure Services;

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

Azure Mentor” means the Azure Services and applicable Wirehive Azure Support (together), as further described in paragraph 4 of this Schedule 5;

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

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

Azure Service Levels” means the service levels to be provided by Microsoft in respect of the Azure Services, as further set out in paragraph 3 of this Schedule 5;

Bandwidth” means any data transferred in, out of, or between an Azure Regions, from load balancers, or between any other systems in respect of which Azure may raise a charge;

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

Minimum Committed Spend” means:

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

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

(c)         where the Customer has purchased Wirehive Managed SysOps, the sum of the Azure Services Fees plus the greater of: (a) £1,500 (ex. VAT) in respect of Wirehive Support Fees, or (b) the percentage of the Azure Services Fees set out in the applicable Order,

to be incurred by the Customer in each calendar month;

Website Uptime” means the Customer’s website is accessible by external users with a normal end user experience in terms of features and functionality (include a reasonable level of degradation of speed or content delivery);

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

Wirehive Azure Essentials” means the essentials services, as further set out in paragraph 6 of this Schedule 5;

Wirehive Azure Priority” means the priority services, as further set out in paragraph 7 (for Azure Mentor) and/or paragraph 8 (for Azure Manager) of this Schedule 5;

Wirehive Azure Support” means: (a) in respect of Azure Mentor, either Wirehive Azure Essentials, Wirehive Azure Priority, or Wirehive Managed SysOps, and (b) in respect of Azure Manager, either Wirehive Azure Priority or Wirehive Managed SysOps;

Wirehive Managed SysOps” means the managed sysops services, as further set out in paragraph 8 of this Schedule 5;

Wirehive Setup Fees” means the fixed fee charged to the Customer by Wirehive to set up the Azure Services (if and to the extent applicable) and Wirehive Azure 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 Azure Support, as set out in the applicable Order.

2. OVERVIEW

2.1 This Schedule 5 sets out the Services and Service Levels that shall be provided by Wirehive where the Customer purchases, through a duly executed Order, either Azure Mentor or Azure Manager.

3. AZURE SERVICE LEVELS

3.1        Subject to paragraphs 3.2, 7.2.2, and 8.2 of this Schedule 5, the Azure 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 2 and/or 3).

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

3.2.1     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);

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

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

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

4. AZURE MENTOR

4.1        Azure Mentor is designed for Customers that wish to maintain control of their Azure Services, but would like advice, guidance, and tools from Wirehive.

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

4.2.1     establish an Azure Account in the Customer’s name, and link such Azure Account to the Customer’s Wirehive Account;

4.2.2     grant the Customer full administrative control over the Azure Services, including access to such via the Customer’s Azure Account; and

4.2.3     where the Customer purchases Wirehive Azure Priority or Wirehive Managed SysOps, order and purchase the applicable Azure Services on behalf of the Customer via the Customer’s Azure Account. For the avoidance of doubt, where the Customer purchases Wirehive Azure Essentials, the Customer shall be required to order all Azure Services themselves.

4.3        The Customer may: (a) require Wirehive to open a Customer Azure Account for and on behalf of the Customer, or (b) transfer to Wirehive an existing Customer Azure 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:

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

4.4.2     monthly in arrears for:

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

4.4.4     any additional charges incurred by the Customer in respect of additional products and services (including CDNs and otherwise), overages, and/or additional support costs (including in respect of services provided by Wirehive under higher-tiered Wirehive Azure Support packages, outside of the purchased Wirehive Azure 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 Azure maintenance windows, as may be notified to the Customer from time to time; and

4.5.2     obtain Wirehive’s prior written consent (not to be unreasonably withheld) before altering the Azure consolidated 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 Azure Services (or any part thereof)).

4.6        Azure Services purchased by the Customer may be subject to additional terms and conditions between the Customer and Azure 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 Azure Priority or Wirehive Managed SysOps as part of Azure Mentor, the Service Levels set out in paragraphs 7.2.2 and 8.2 shall not apply; and

4.7.2     there is no form of Wirehive ‘snapshot’ backup available in respect of Azure Mentor.

5. AZURE MANAGER

5.1        The Azure Manager package is designed for Customers that would like Wirehive to manage and operate their Azure Services for and/or with them.

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

5.2.1     set up a hosting environment for the Customer using Azure, where Wirehive purchases such Azure 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 an Azure Account in the Customer’s name, and link such Azure 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 Azure Services and/or Wirehive Azure 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 products and services (including CDNs and otherwise), overages, and/or additional support costs (including in respect of services provided by Wirehive under higher-tiered Wirehive Azure Support packages, outside of the purchased Wirehive Azure Support package, or otherwise) at such rates as Wirehive may specify from time to time, monthly in arrears.

5.4        The Customer shall adhere at all times to the Azure maintenance windows, as may be notified to the Customer from time to time.

6. WIREHIVE AZURE ESSENTIALS (AZURE MENTOR ONLY)

1.1        Where the Customer purchases Wirehive Azure Essentials (as part of Azure Mentor), Wirehive shall provide to the Customer:

1.1.1     24×7 emergency telephone access to Azure certified engineers;

1.1.2     advisory support calls in respect of the Azure Services of less than 10 minutes’ duration at no charge to the Customer (provided that such time limit shall be cumulative in respect of all related calls);

1.1.3     support calls of greater than 10 minutes’ duration in respect of the Azure Services at a charge of £150 per hour (provided that such time limit shall be cumulative in respect of all related calls);

1.1.4     15 minute incident response time for critical issues pertaining to Azure Services (as defined in, and in accordance with, Schedule 1) and;

1.1.5     24 hour Incident Response time to tickets raised pertaining to Incidents in relation to Azure Services via the Wirehive support line (in accordance with Schedule 1); and

1.1.6     24 x 7 server monitoring and alerting, with alerts being sent to the Customer.

7. WIREHIVE AZURE PRIORITY

7.1        Where the Customer purchases Wirehive Azure Priority as part of either Azure Mentor or Azure Manager, Wirehive shall provide to the Customer:

7.1.1     all services and benefits provided under Wirehive Azure Essentials (as set out in paragraph 6 of this Schedule 5);

7.1.2     24 x 7 server & applications monitoring and alerting;

7.1.3     24 x 7 reactive break and fix support for OS and application; and

7.1.4     server OS updates and security fixes.

7.2        Where the Customer purchases Wirehive Azure Priority as part of the Azure Manager package, Wirehive shall provide to the Customer, in addition to the services and benefits set out in paragraph 7.1 of this Schedule 5:

7.2.1     access to Wirehive’s online billing and support Portal; and

7.2.2     the Server Availability Service Level (and associated Service Credits) as set out in paragraphs 2.1 and 4.2 of Schedule 2, subject to the limitations set out in paragraph 4.2.2 of Schedule 2.

1.3        For the avoidance of doubt, the Service Levels set out in paragraph 7.2.2 of Schedule 5 shall not apply where the Customer purchases Wirehive Azure Priority as part of Azure Mentor.

8. WIREHIVE MANAGED SYSOPS

8.1        Where the Customer purchases Wirehive Managed SysOps as part of either Azure Mentor or Azure Manager, Wirehive shall provide to the Customer:

8.1.1     all services and benefits provided under: (a) Wirehive Azure Essentials (as set out in paragraph 6 of this Schedule 5), and (b) Wirehive Azure Priority (as set out in paragraph 7 of this Schedule 5); and

8.1.2     day-to-day proactive solution management, including:

(a)         5 hours per week allocated time of Wirehive support  on the Customer’s Azure Account to proactively manage and optimise the Customer’s solution(s);

(b)         establishment by Wirehive of bespoke monitoring and alerting, fully managed by the Wirehive SysOps Engineer;

(c)         implementation and management of tailored back up and disaster recovery strategy;

(d)         capacity planning and reactive scaling to enhance performance;

(e)         change management; and

(f)          log aggregation.

8.2        Where the Customer purchases Wirehive Managed SysOps as part of the Azure Manager package, Wirehive shall meet:

8.2.1     the Server Availability Service Level (and provide the associated Service Credits) as set out in paragraphs 2.1 and 4.2 of Schedule 2; and

8.2.2     the Website Uptime Service Level (and provide the associated Service Credits) as set out in paragraph 4.3 of Schedule 2,

in each case the Service Credits being subject to the limitations (including caps) set out in paragraph 4.4 of Schedule 2.

8.3        For the avoidance of doubt:

8.3.1     the Service Levels set out in paragraph 8.2 of Schedule 5 shall not apply where the Customer purchases Wirehive Managed SysOps as part of Azure Mentor;

8.3.2     Wirehive shall not be liable to the Customer for any failure to meet the Website Uptime 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; and

8.3.3     all Azure Services and Wirehive Azure Support set out in this Schedule 5 are subject to the limitations and restrictions set out in Wirehive’s Acceptable Use Policy (as may be provided and updated from time to time).

SCHEDULE 6

GCP SERVICES AND SERVICE LEVELS

1.          DEFINITIONS 

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

GCP” means Google Cloud Platform.

GCP Account” means a GCP account and access for the Customer’s management of GCP Services;

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

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

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

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

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

Bandwidth” means any data transferred in, out of, or between GCP Regions, Zones, from load balancers, or between any other systems in respect of which GCP may raise a charge;

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

Minimum Committed Spend” means:

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

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

(c)         where the Customer has purchased Wirehive Managed SysOps, the sum of the GCP Services Fees plus the greater of: (a) £1,500 (ex. VAT) in respect of Wirehive Support Fees, or (b) the percentage of the GCP Services Fees set out in the applicable Order,

to be incurred by the Customer in each calendar month;

Website Uptime” means the Customer’s website is accessible by external users with a normal end user experience in terms of features and functionality (include a reasonable level of degradation of speed or content delivery);

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

Wirehive GCP Essentials” means the essentials services, as further set out in paragraph 6 of this Schedule 6;

Wirehive GCP Priority” means the priority services, as further set out in paragraph 7 (for GCP Mentor) and/or paragraph 8 (for GCP Manager) of this Schedule 6;

Wirehive GCP Support” means: (a) in respect of GCP Mentor, either Wirehive GCP Essentials, Wirehive GCP Priority, or Wirehive Managed SysOps, and (b) in respect of GCP Manager, either Wirehive GCP Priority or Wirehive Managed SysOps;

Wirehive Managed SysOps” means the managed sysops services, as further set out in paragraph 8 of this Schedule 6;

Wirehive Setup Fees” means the fixed fee charged to the Customer by Wirehive to set up the GCP Services (if and to the extent applicable) and Wirehive GCP 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 GCP 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 GCP Mentor or GCP Manager.

3.          GCP SERVICE LEVELS

3.1        Subject to paragraphs 3.2, 7.2.2, and 8.2 of this Schedule 6, the GCP 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 2 and/or 3).

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

3.2.1     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;

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

3.2.3     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.          GCP MENTOR

4.1        GCP Mentor is designed for Customers that wish to maintain control of their GCP Services, but would like advice, guidance, and tools from Wirehive.

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

4.2.1     establish a GCP Account in the Customer’s name, and link such GCP Account to the Customer’s Wirehive Account;

4.2.2     grant the Customer full administrative control over the GCP Services, including access to such via the Customer’s GCP Account; and

4.2.3     where the Customer purchases Wirehive GCP Priority or Wirehive Managed SysOps, order and purchase the applicable GCP Services on behalf of the Customer via the Customer’s GCP Account. For the avoidance of doubt, where the Customer purchases Wirehive GCP Essentials, the Customer shall be required to order all GCP Services themselves.

4.3        The Customer may: (a) require Wirehive to open a Customer GCP Account for and on behalf of the Customer, or (b) transfer to Wirehive an existing Customer GCP Project.

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:

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

4.4.2     monthly in arrears for:

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

4.4.4     any additional charges incurred by the Customer in respect of additional products and services (including CDNs and otherwise), overages, and/or additional support costs (including in respect of services provided by Wirehive under higher-tiered Wirehive GCP Support packages, outside of the purchased Wirehive GCP 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 GCP maintenance windows, as may be notified to the Customer from time to time; and

4.5.2     obtain Wirehive’s prior written consent (not to be unreasonably withheld) before altering the GCP billing (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 GCP Services (or any part thereof)).

4.6        GCP Services purchased by the Customer may be subject to additional terms and conditions between the Customer and GCP 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 GCP Priority or Wirehive Managed SysOps as part of GCP Mentor, the Service Levels set out in paragraphs 7.2.2 and 8.2 shall not apply; and

4.7.2     there is no form of Wirehive ‘snapshot’ backup available in respect of GCP Mentor.

5.          GCP MANAGER

5.1        The GCP Manager package is designed for Customers that would like Wirehive to manage and operate their GCP Services for and/or with them.

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

5.2.1     set up a hosting environment for the Customer using GCP, where Wirehive purchases such GCP 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 GCP Account in the Customer’s name, and link such GCP 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 GCP Services and/or Wirehive GCP 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 products and services (including CDNs and otherwise), overages, and/or additional support costs (including in respect of services provided by Wirehive under higher-tiered Wirehive GCP Support packages, outside of the purchased Wirehive GCP Support package, or otherwise) at such rates as Wirehive may specify from time to time, monthly in arrears.

5.4        The Customer shall adhere at all times to the GCP maintenance windows, as may be notified to the Customer from time to time.

6.          WIREHIVE GCP ESSENTIALS (GCP MENTOR ONLY)

6.1        Where the Customer purchases Wirehive GCP Essentials (as part of GCP Mentor), Wirehive shall provide to the Customer:

6.1.1     24×7 emergency telephone access to GCP certified engineers;

6.1.2     advisory support calls in respect of the GCP Services of less than 10 minutes’ duration at no charge to the Customer (provided that such time limit shall be cumulative in respect of all related calls);

6.1.3     support calls of greater than 10 minutes’ duration in respect of the GCP Services at a charge of £150 per hour (provided that such time limit shall be cumulative in respect of all related calls);

6.1.4     15 minute incident response time for critical issues pertaining to GCP Services (as defined in, and in accordance with, Schedule 1) and;

6.1.5     24 hour Incident Response time to tickets raised pertaining to Incidents in relation to GCP Services via the Wirehive support line (in accordance with Schedule 1); and

6.1.6     24 x 7 server monitoring and alerting, with alerts being sent to the Customer.

7.          WIREHIVE GCP PRIORITY

7.1        Where the Customer purchases Wirehive GCP Priority as part of either GCP Mentor or GCP Manager, Wirehive shall provide to the Customer:

7.1.1     all services and benefits provided under Wirehive GCP Essentials (as set out in paragraph 6 of this Schedule 6);

7.1.2     24 x 7 server & applications monitoring and alerting;

7.1.3     24 x 7 reactive break and fix support for OS and application; and

7.1.4     server OS updates and security fixes.

7.2        Where the Customer purchases Wirehive GCP Priority as part of the GCP Manager package, Wirehive shall provide to the Customer, in addition to the services and benefits set out in paragraph 7.1 of this Schedule 6:

7.2.1     access to Wirehive’s online billing and support Portal; and

7.2.2     the Server Availability Service Level (and associated Service Credits) as set out in paragraphs 2.1 and 4.2 of Schedule 2, subject to the limitations set out in paragraph 4.2.2 of Schedule 2.

7.3        For the avoidance of doubt, the Service Levels set out in paragraph 7.2.2 of Schedule 6 shall not apply where the Customer purchases Wirehive GCP Priority as part of GCP Mentor.

8.          WIREHIVE MANAGED SYSOPS

8.1        Where the Customer purchases Wirehive Managed SysOps as part of either GCP Mentor or GCP Manager, Wirehive shall provide to the Customer:

8.1.1     all services and benefits provided under: (a) Wirehive GCP Essentials (as set out in paragraph 6 of this Schedule 6), and (b) Wirehive GCP Priority (as set out in paragraph 7 of this Schedule 6); and

8.1.2     day-to-day proactive solution management, including:

(a)         5 hours per week allocated time of Wirehive support  on the Customer’s GCP Account to proactively manage and optimise the Customer’s solution(s);

(b)         establishment by Wirehive of bespoke monitoring and alerting, fully managed by the Wirehive SysOps Engineer;

(c)         implementation and management of tailored back up and disaster recovery strategy;

(d)         capacity planning and reactive scaling to enhance performance;

(e)         change management; and

(f)          log aggregation.

8.2        Where the Customer purchases Wirehive Managed SysOps as part of the GCP Manager package, Wirehive shall meet:

8.2.1     the Server Availability Service Level (and provide the associated Service Credits) as set out in paragraphs 2.1 and 4.2 of Schedule 2; and

8.2.2     the Website Uptime Service Level (and provide the associated Service Credits) as set out in paragraph 4.3 of Schedule 2,

in each case the Service Credits being subject to the limitations (including caps) set out in paragraph 4.4 of Schedule 2.

8.3        For the avoidance of doubt:

8.3.1     the Service Levels set out in paragraph 8.2 of Schedule 6 shall not apply where the Customer purchases Wirehive Managed SysOps as part of GCP Mentor;

8.3.2     Wirehive shall not be liable to the Customer for any failure to meet the Website Uptime 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; and

8.3.3     all GCP Services and Wirehive GCP Support set out in this Schedule 6 are subject to the limitations and restrictions set out in Wirehive’s Acceptable Use Policy (as may be provided and updated from time to time).

SCHEDULE 7

WIREHIVE CONSULTING

9. DEFINITIONS

9.1 In this Schedule 7, 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.

10. OVERVIEW

10.1 This Schedule 7 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.

10.2 The terms of this Schedule 7 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.

10.3 In the event of any inconsistency between the terms and conditions of this Schedule 7 and the main Terms and Conditions, then this Schedule 7 shall override and apply.

11. WIREHIVE CONSULTANCY SERVICES

11.1 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.

11.2 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.

11.3 Wirehive warrants that:

11.3.1 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;

11.3.2 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

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

11.4 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.

11.5 Save as otherwise set out in both this clause 3 of Schedule 7 and in the main Terms and Conditions, Wirehive gives no other warranty, representation or guarantee with respect to the Consultancy Services.

12. CUSTOMER RESPONSIBILITIES

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

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

12.1.1 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 Client’s premises;

12.1.2 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;

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

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

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

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

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

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

12.2.3 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;

12.2.4 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;

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

12.2.6 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

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

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

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

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

12.3.3 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;

12.3.4 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

12.3.5 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.

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

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

13. FEES AND EXPENSES

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

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

14. CANCELLATION AND POSTPONEMENT

14.1 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.

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

14.2.1 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

14.2.2 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.

14.3 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.

14.4 The parties acknowledge and agree that the sums set out in clause 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.

15. TERMINATION

15.1 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.

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