THESE TERMS AND CONDITIONS are entered into on the Commencement Date BETWEEN: (a) Wirehive Limited (company number 05451011), whose registered address is Chester House, Farnborough Aerospace Centre, Farnborough, GU14 6TQ (“Wirehive”), and (the “Customer”), (each a “Party” and together the “Parties”).
1.1 In this Agreement the following words shall have the following meanings:
“Acceptable Use Policy” means Wirehive’s acceptable use policy located at https://www.wirehive.com/acceptable-use-policy;
“Agreement” means these Terms and Conditions (including all Schedules) together with any applicable Order;
“Business Day” means any day which is not a Saturday, Sunday or public holiday in England;
“Cloud Platform Services” means all Servers and Services provided by Wirehive to the Customer that are delivered by, or in conjunction with, Wirehive’s virtualised public cloud platform as set out in Schedule 5;
“Commencement Date” means the date on which these Terms and Conditions are signed by both Parties;
“Confidential Information” means this Agreement and all information disclosed in any form or medium by one Party to the other or otherwise received by the other in the negotiation, entering into or performance of this Agreement and the Services, which relates directly or indirectly to the disclosing Party or any other third party with which it has or proposes to have business dealings and its or their officers, employees, agents, suppliers or contractors, and including any information which is identified as confidential at the time of disclosure or which ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure, but excluding information that:
(a) was in the other Party’s lawful possession before the disclosure;
(b) is already in, or subsequently becomes part of, the public domain other than as a result of an unauthorised disclosure;
(c) is or becomes available to the receiving Party from a third party who is legally entitled to possess and provide the information to the receiving Party; or
(d) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body;
“Consultancy Engagement” means the period during which Wirehive shall supply the Consultancy Services from the Order Commencement Date and as set out in the Statement of Work;
“Consultancy Services” means the professional consultancy services to be supplied by Wirehive to Customer pursuant to a Statement of Work and Schedule 4;
“Customer Data” means any data (including “Personal Data” as defined in Data Protection Laws), provided by the Customer to Wirehive under this Agreement;
“Data Protection Laws” means as defined in Schedule 1;
“Dedicated Platform Services” means all Servers and Services provided by Wirehive to the Customer that are delivered by, or in conjunction with, Wirehive’s dedicated public cloud platform as set out in Schedule 5;
“Fees” means the sums payable by the Customer to Wirehive for the Services, as set out in section 4 of the applicable Order;
“Good Industry Practice” means in relation to any undertaking and any circumstances, the exercise of such skill, diligence, prudence, foresight and judgment and the making of such expenditure which would reasonably be expected from a skilled person engaged in the same type of undertaking under the same or similar circumstances;
“Insolvency Event” means an event in which:
(a) a Party ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement);
(b) a Party becomes insolvent or unable to pay its debts within the meaning of the applicable insolvency legislation;
(c) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of the other Party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;
(d) the ability of the other Party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of the other Party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(e) any process is instituted which could lead to the other Party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction);
“Intellectual Property Rights” means all rights, including intellectual property rights, where in the world arising, whether registered or unregistered (and including any application), including trade secrets, confidential information, patents, design rights, copyright, trademarks, know-how, business names and domain names, service marks, trade names, petty patents, utility models, semi-conductor topography rights, database rights and any analogous or similar rights in any jurisdiction, and all rights in the nature of unfair competition rights or rights to sue for passing off;
“Order” means an order agreed and executed by the Parties pursuant to clause 3.2, or submitted by the Customer via the Portal and accepted by Wirehive or means a Statement of Work in respect to Consultancy Services;
“Order Commencement Date” means the date on which an Order shall take effect, as set out in the applicable Order;
“Order Initial Term” means the initial term of an Order, as set out in the applicable Order;
“Order Term” means the term during which the applicable Order shall remain in full force and effect (including the Order Initial Term and any subsequent Order Renewal Term), subject to the terms of this Agreement;
“Portal” means the Wirehive customer support portal located at https://wirehive.support/ (or as otherwise notified to the Customer from time to time);
“Public Cloud Service Levels” means the service levels set out in Schedule 5.
“Retained Services” means the services as set out in Schedule 3;
“Security Measures” means Wirehive’s security policy document as set out at https://www.wirehive.com/compliance/security/security-measures and as may be updated by Wirehive on notice to the Customer from time to time;
“Surge Event” means an increase of 30% or greater in traffic to the provided host, including as a result of launches of new websites, launches of rebranded and/or refreshed websites, sales and promotions, and other events (such as webinars);
“Servers” means the servers specified in the applicable Order;
“Services” means the services to be provided by Wirehive to the Customer pursuant to any Order, including the Support and Maintenance, and which may (subject to the applicable Order) include Retained Services and/or Third Party Cloud Services set out in Schedule 6 and/or the Consultancy Services set out in an executed Statement of Work;
“Service Levels” means the service levels set out in Schedule 5 to this Agreement;
“Statement of Work” means the Wirehive document setting out the scope and nature of the Consultancy Services and accepted by Wirehive;
“Support and Maintenance Services” means the services set out in Schedule 2;
“Term” has the meaning given to it in clause 2.1;
“Terms and Conditions” means these terms and conditions, as agreed and executed by Wirehive and the Customer;
“Third Party Add-Ons” means the third party products and/or services ordered by the Customer as part of an Order which Wirehive then purchases on behalf of the Customer and are provided by the third party and not Wirehive.
“Third Party Cloud Services” means the services set out in Schedule 6.
2.1 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.
3.1 Wirehive shall, during the Order Term, provide the Services set out in the applicable Order to the Customer on and subject to the terms of such Order and these Terms and Conditions.
3.2 The Customer may purchase Services using one or more Orders (including via the Portal). Each duly executed Order shall constitute a separate contract that incorporates and is subject to these Terms and Conditions. For the avoidance of doubt, Orders submitted by the Customer via the Portal shall be deemed executed at such time as Wirehive notifies the Customer (including via email, automatic message, or otherwise) that is has unconditionally accepted such Order.
3.3 As between the Parties, title to all hardware (including servers), software, documents, methodologies and any Intellectual Property Rights provided by or on behalf of Wirehive pursuant to or in connection with this Agreement shall remain the sole and exclusive property of Wirehive. Unless otherwise specified in the applicable Order, title to such hardware (including servers) and/or software and/or documents and/or methodologies and/or Intellectual Property Rights shall not pass to the Customer at any time before, during, or after the Term and/or applicable Order Term.
3.4 Subject always to clause 14, in order to provide the Services Wirehive may (in its sole discretion) move all or any part of the Customer Data to a different server.
3.5 Where the Services include Consultancy Services:
3.5.1 the Parties shall finalise the scope and requirements of the Services in a validly executed Statement of Work which shall form the Order pursuant to clause 3.2; and
3.5.2 the terms at Schedule 4 (Consultancy Services) shall apply in addition to the Terms and Conditions in respect to the Consultancy Services.
3.6 Where the Services include for Wirehive to purchase Third Party Add-Ons for the Customer’s use, then the Customer acknowledges that Add On Services are provided on an ‘as is’ basis only, and Wirehive shall pass on the benefit of any warranty to the Customers subject always to the terms and conditions of the Third Party Add-On.
3.7 Unless otherwise specified in an Order the Services do not include any disaster recovery, back up or business continuity planning or service for the Customer Data and the Customer shall be responsible for considering the scope of any such additional features it requires and requesting the same from Wirehive in an executed Order.
4. SERVICE LEVELS
4.1 Wirehive shall meet the Service Levels set out in:
4.1.1 Schedule 5 of this Agreement, in respect of Public Cloud Platform Services; and
4.1.2 Schedule 5 of this Agreement, in respect of Dedicated Platform Services.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
5.1.1 cooperate with all reasonable requests made by Wirehive;
5.1.2 provide Wirehive with any information reasonably required by Wirehive;
5.1.3 obtain and maintain at all times during the applicable Order Term all necessary permissions and consents applicable to the Customer’s receipt and use of the Services;
5.1.4 provide Wirehive with the necessary administrative access to monitor, manage and access their Servers as is reasonably expected in order to deliver the Services;
5.1.5 notify Wirehive in advance of any potential Surge Events (or periods in which Surge Events are likely) in accordance with clause 7;
5.1.6 comply with all policies and procedures as may be notified to the Customer by Wirehive from time to time; and
5.1.7 comply with such other requirements as may be set out in the Order or otherwise agreed between the Parties in writing.
5.2 Wirehive is not responsible or liable for any failure or delay (including in providing the Services and/or performing its obligations under this Agreement) resulting from any act or omission by the Customer (including as a result of the Customer’s failure to comply with clause 5.1). In the event of any such failure or delay: (a) the timeframes for delivery of the Services and/or performance of the relevant obligations (as applicable) shall be extended to account for the duration of such failure or delay, and (b) the Customer shall pay to Wirehive all additional fees reasonably incurred by Wirehive in connection with such delay or failure.
5.3 The Customer shall not, without the prior written consent of Wirehive, at any time from the date of the Agreement to the expiry of six months after the termination the Agreement, solicit or entice away from Wirehive or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Wirehive in the provision of the Services.
5.4 Any consent given by Wirehive in accordance with clause 5.3 shall be subject to the Customer paying to Wirehive a sum equivalent to 20% of the then current annual remuneration of Wirehive’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
6. APPROPRIATE USE
6.1 The Customer shall not use the Services: (a) to send, receive, process, or store any materials or content that breaches the Acceptable Use Policy (“Infringing Content”), or (b) for any malicious or illegal purposes (including the sending or use of viruses or other malicious code or software), (together, “Malicious Purposes”).
6.2 Wirehive may immediately suspend the Services where Wirehive reasonably believes that the Services are being used, or the Customer is permitting third parties to use the Service, for Malicious Purposes in contravention of clause 6.1. For the avoidance of doubt, all Fees shall continue to be payable to Wirehive in full during any such period of suspension.
6.3 As soon as reasonably practicable following:
6.3.1 Wirehive’s suspension of the Services pursuant to clause 6.2, Wirehive shall notify the Customer of the suspension and reasons for such; and
6.3.2 the Customer removing all Infringing Content in full and/or ceasing to undertake or permit the Malicious Purposes (as applicable), Wirehive shall resume provision of the Services.
6.4 The Customer shall indemnify Wirehive from and against all claims, actions, damages, losses and expenses (including, without limitation, legal fees) arising as a result of any breach by the Customer of clause 6.1.
7.1 The Customer shall provide Wirehive not less than 7 calendar days’ prior written notice of any Surge Event or potential Surge Event.
7.2 Following receipt of the notice provided by the Customer pursuant to clause 7.1, and prior to the date of the Surge Event (or potential Surge Event), the Parties shall agree: (a) a course of action to be taken by Wirehive in respect of the Surge Event, and (b) charges applicable to such course of action.
7.3 In the event that the Customer fails to provide notice of a Surge Event (or potential Surge Event) in accordance with clause 7.1, or the Parties fail to agree a course of action or charges applicable to such course of action pursuant to clause 7.2, Wirehive may (in its sole discretion) in respect of the Surge Event or potential Surge Event:
7.3.1 quench all or part of the traffic to the applicable website(s); and/or
7.3.2 provide additional resources (as deemed reasonably necessary by Wirehive) to mitigate against the effects of the Surge Event or potential Surge Event (for the Customer and other Wirehive customers),
provided that in any event: (a) the Customer shall pay to Wirehive all charges and fees in respect of extra staffing, extra support, out of hours support, any additional monitoring services required by Wirehive, and/or any additional hardware requirements (including additional servers) provided by or on behalf of Wirehive, and (b) Wirehive shall not be liable to the Customer for any failure to meet any Service Levels (including Server Availability) or pay any associated Service Credits in respect of such failure.
8.1 Each Party warrants to the other Party that it has full power and authority to enter into and perform this Agreement.
8.2 Wirehive warrants that it:
8.2.1 will perform the Services with reasonable care and skill and in accordance with Good Industry Practice;
8.2.2 has obtained and will maintain all necessary licences, permissions, and authorisations required to provide the Services; and
8.2.3 will comply with all laws and regulations applicable to Wirehive’s: (a) provision of the Services, and (b) business as a provider of managed hosting and related solutions and services.
8.3 Wirehive gives no warranty or representation in relation to any Third-Party Add-On.
8.4 Otherwise than as set out in this clause 8, all warranties, representations, conditions, and other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement. In particular, Wirehive makes no warranties or representations that: (a) the Services will be uninterrupted or error free, and shall not be liable (directly or indirectly) for any interruption of the Services, and/or (b) the Services will be compatible with any items or materials (including website) used by the Customer in connection with the Services, and shall not be liable for such items or materials or any failure in the Services resulting from the improper functioning of, or incompatibility of such items or materials in connection with, the Services.
9. DEPOSIT AND CREDIT CHECKING
9.1 The Customer hereby permits Wirehive to undertake credit check(s) and similar reviews of the Customer’s financial standing, and agrees to provide to Wirehive all reasonably required financial and credit information promptly on request by Wirehive.
9.2 Wirehive may (in its sole discretion), at any time and in respect of all or any part of the Services, require the Customer to pay to Wirehive a deposit of up to 6 months’ Fees in respect of the applicable Services (or, where such Fees cannot accurately be ascertained, Wirehive’s reasonable estimate as to such fees) (the “Deposit”), including as: (a) a condition of Wirehive’s acceptance of any Order or continued provision of any Services, (b) a result of any non-payment of Fees in accordance with this Agreement by the Customer, and/or (c) any change or perceived change in the Customer’s financial standing or credit worthiness.
9.3 The Customer shall pay the Deposit to Wirehive within 10 Business Days of receipt of notice from Wirehive requiring the Customer to pay such Deposit. Where: (a) commencement of Services is conditional upon payment of the Deposit, Wirehive shall not be liable to provide such Services (or any Services that rely on such Services) until Wirehive has received the Deposit in full, and (b) continued provision of Services is conditional upon payment of the Deposit, Wirehive shall be entitled to suspend the Services (and any Services that rely on such Services) and/or terminate the applicable Order(s) and/or this Agreement if such Deposit is not paid in full to Wirehive within the timeframes set out in this clause 9.3 (unless otherwise agreed between the Parties).
9.4 Wirehive shall credit or otherwise refund the Deposit to the Customer, less any deductions for unpaid Fees or other outstanding charges payable to Wirehive in respect of the applicable Services, within a reasonable period of time following expiry or termination of the Order(s) to which the Deposit pertains.
10. FEES AND PAYMENT
10.1 The Customer shall pay the Fees to Wirehive in accordance with this clause 10, unless otherwise specified in the relevant Order.
Server Billing Commencement
10.2 Where the Services pertain to the provision by Wirehive of Server(s), Wirehive shall:
10.2.1 notify the Customer in writing (including by email) of the date on which the server(s) are live and ready for use (a “Connection Notice”);
10.2.2 subject to clause 10.3, invoice the Customer in respect of such Server(s) on and from the date of the Connection Notice; and
10.2.3 upon receipt by Wirehive of the first payment due in relation to the Server(s), or of the relevant Direct Debit mandate for such Server(s), (as applicable) provide server access details to the Customer in respect of such Server(s).
10.3 In the event that the Customer notifies Wirehive within 3 Business Days following the date of the Connection Notice that the server(s) are not functioning correctly, Wirehive shall: (a) use reasonable endeavours to correct such issues, and (b) upon written request from the Customer, credit the Customer’s account with Wirehive in the amount of 1/30 (one-thirtieth) of the Fees applicable to the non-functioning server(s) in the relevant calendar month in respect of each calendar day for the Customer was unable to use such server(s).
10.4 In the event that Wirehive cannot complete the installation of any server(s) due to any act or omission (including delay) of the Customer, Wirehive may commence charging of the Fees applicable to such server(s), and the Customer shall pay such Fees, on and from the date of the Connection Notice.
Invoices and Payments
10.5 Unless otherwise agreed between the Parties (including pursuant to an Order), the Customer shall pay all Fees and other sums payable pursuant to this Agreement by direct debit:
10.5.1 in respect of any fixed charges, monthly in advance; and
10.5.2 in respect of any usage-based (variable) charges, monthly in arrears,
provided that, in respect of each direct debit collection that is returned or rejected otherwise than as a result of any act or omission by Wirehive, the Customer shall pay to Wirehive the sum of £20.
10.6 Where the Customer requires Wirehive to raise an invoice in respect of any Fees:
10.6.1 Wirehive shall be entitled to raise such invoice on and from 30 (thirty) days prior to the date on which such Fees are due (pursuant to clause 10.5);
10.6.2 the Customer shall remit payment no later than 30 (thirty) days following that date of such invoice,
provided that, where the Customer requires Wirehive to submit any such invoice against a purchase order, the Customer shall provide such valid purchase order to Wirehive prior to the date on which Wirehive is permitted to submit the relevant invoice. For the avoidance of doubt, failure to provide any purchase order does not constitute a valid reason for non-payment of any invoice.
10.7 All payments:
10.7.1 shall be made by the Customer in British Pound Sterling (£), without deduction or set off of any amount; and
10.7.2 are exclusive of value added tax, sales tax, use, withholding, and other similar taxes or duties, which shall be payable by the Customer in addition to the Fees; and
10.7.3 may be subject to additional administration charges, as notified (including via the Portal) by Wirehive from time to time, where such payments are made otherwise than by direct debit or wire transfer (including CHAPS, SWIFT, and other online transfer mechanisms).
10.8 In the event that any valid direct debit or invoice is not paid by the Customer by the dates specified in clauses 10.5 and/or 10.6.2 (as applicable), Wirehive shall be entitled to:
10.8.1 charge interest on the outstanding sum at a rate of 4% per annum above the base rate of the Bank of England from the date on which payment became due until the date on which Wirehive receives the payment in full; and/or
10.8.2 suspend Services; provided that, following Due Date, Wirehive has first given to the Customer not less than 14 (fourteen) days’ prior written notice requiring the Customer to pay such overdue sum. For the avoidance of doubt, if the Customer remits the applicable payment in full no later than 7 (seven) days following such Suspension Date, the Services will be reconnected subject to Customer paying to Wirehive a reconnection fee of £20 (or such other amount as may be notified by Wirehive (including via the Portal) from time to time).
10.9 Where Wirehive exercises any right to suspend the Services (or part thereof) under this Agreement, including pursuant to clauses 6.2, 10.8.2, and/or 12.9, the Customer shall remain liable to pay all Fees and other charges under this Agreement in respect of the suspended Services (or part thereof) during the period of suspension.
10.10 Wirehive may be liable to pay costs or charges in respect of the Services (or parts thereof) to third parties, including third parties outside of the United Kingdom, in currencies other than Pound Sterling (GBP) (“FX Fees”).
10.11 Where the Fees include FX Fees (including in respect of any AWS Services pursuant to Schedule 6), such FX Fees are calculated using an exchange rate set at the end of the previous quarter (being March 31, June 30, September 30, or December 31 (as applicable)). The current and historical exchange rates are available to view at: www.wirehive.com/fxrates.
10.12 Unless the relevant Order states that all FX Fees are fixed and not subject to exchange rate conversions, where the applicable exchange rate at the end of the quarter prior to the quarter in which an invoice is issued is materially detrimental to Wirehive by comparison to the exchange rate at the date of the relevant invoice, Wirehive may amend the FX Fees to account for such difference.
10.13 In the event that the Customer reasonably disputes an invoice provided by Wirehive, the Customer shall:
10.13.1 pay any undisputed amount of such invoice in accordance with the timeframes set out in this clause 10; and
10.13.2 provide to Wirehive no later than 10 Business Days from the date of the invoice written notice stating the disputed amount, details of the nature of the dispute, and Services and invoice(s) to which the dispute pertains.
10.14 If the disputed invoice is deemed to be correct, the Customer shall pay to Wirehive all such amounts set out in the invoice, plus interest on such amounts at the rate set out in clause 10.8.1.
11. LIMITATION OF LIABILITY
11.1 Nothing in this Agreement shall exclude or restrict either Party’s liability for:
11.1.1 death or personal injury resulting from that Party’s negligence;
11.1.2 fraud or fraudulent misrepresentation; or
11.1.3 any other liability which cannot be excluded or limited under applicable law.
11.2 Nothing in this Agreement shall exclude or restrict Customer’s liability for any breach of any Data Protection Laws;
11.3 Subject to clause 11.1 and 11.2, neither Party’s liability to the other Party in respect of each claim or series of related claims arising under or in connection with this Agreement, whether in tort (including negligence), breach of contract, misrepresentation, or otherwise, shall exceed 100% of the Fees paid under the applicable Order, save that, and subject to clause 11.1 and 11.2, Wirehive shall not have any liability to the Customer in relation to the performance or non-performance of a Third Party Add-On.
11.4 Subject to clause 11.1 and 11.2, neither Party shall be liable to the other Party under or in connection with this Agreement, whether in tort (including negligence), breach of contract, misrepresentation, or otherwise, for any:
11.4.1 loss of business,
11.4.2 loss of opportunity,
11.4.3 reputational loss,
11.4.4 loss or corruption of data,
11.4.5 depletion of goodwill,
11.4.6 degradation of data or information,
11.4.7 or loss of profits or revenue (in each case whether direct or indirect), or
11.4.8 indirect or consequential loss or damage whatsoever.
12.1 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.
12.4.1 Wirehive terminates this Agreement and/or any Order pursuant to clauses 12.1.1 or 12.2; or
12.4.2 the Customer terminates this Agreement and/or any Order pursuant to clause 12.3,
the Customer shall promptly pay to Wirehive all Fees payable for the Initial Term or Renewal Term, or relevant Order Initial Term or Order Renewal Term, (in each case as applicable) pursuant to this Agreement, including all fees and charges incurred by Wirehive in anticipation of Wirehive’s (or any third party’s) performance of the Services or any part thereof including for any Third-Party Add-on (“Termination Fees”). The Parties acknowledge and agree that the Termination Fees are a genuine pre-estimate of loss, and do not constitute a penalty.
12.5 Wirehive may terminate an Order on written notice to Customer where it has actual knowledge that Customer’s use of the Servers is contrary to Data Protection Laws and Customer fails to provide reasonable written evidence, which is satisfactory to Wirehive, that Customer has immediately remedied the same.
12.6 Except as otherwise expressly provided in this Agreement, all remedies provided pursuant to this Agreement will be cumulative and in addition to, not in lieu of, any other remedies available to either Party at law, in equity, or otherwise.
12.7 The accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
12.8 Termination of:
12.8.1 these Terms and Conditions shall cause the termination of any Orders in force and effect as at the effective date of termination of these Terms and Conditions; and
12.8.2 any Order shall not cause the termination of any other Order and/or these Terms and Conditions. These Terms and Conditions and any such other Order shall continue in full force and effect until termination or expiry in accordance with this Agreement.
12.9 In the event that Wirehive is entitled to terminate this Agreement and/or any Order pursuant to this Agreement, Wirehive may (in its sole discretion and without prejudice to its right to terminate the Agreement and/or Order) suspend the Services (in whole or in part).
12.10 The following terms of this Agreement shall survive expiry or earlier termination: clauses 3.3, 11, 12, 13, 14, 15, and 17.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 The Customer and/or its licensors (as applicable) shall be the sole and exclusive owners of all Intellectual Property Rights in the Customer Data and any other information, data, and/or other materials uploaded to Wirehive’s servers or otherwise provided to Wirehive pursuant to this Agreement (the “Customer Intellectual Property”). The Customer hereby grants Wirehive a limited, revocable, non-exclusive, non-transferable licence to use the Customer Intellectual Property solely to the extent necessary for Wirehive to provide the Services to the Customer.
13.2 Wirehive and/or its licensors (as applicable) shall be the sole and exclusive owners of all Intellectual Property Rights relating to the software owned by, or licensed to, Wirehive (the “Wirehive Intellectual Property”) and otherwise provided by or on behalf of Wirehive to the Customer pursuant to or in connection with this Agreement. Wirehive hereby grants the Customer a limited, non-exclusive, non-transferable licence to use Wirehive Intellectual Property solely to the extent necessary for the Customer to receive the full benefit of the Services.
13.3 Wirehive shall indemnify the Customer from and against all claims, actions, damages, losses and expenses (including, without limitation, legal fees) arising as a result of any action or claim that any Services (excluding the Third-Party Add-on) infringe the Intellectual Property Rights of a third party.
14. DATA PROTECTION & SECURITY
14.1 Schedule 1 (Data Protection & Security) shall apply to the Services.
14.2 During the provision of the Services, the Customer shall have the ability to choose what Customer Data is processed on the Servers made available by Wirehive pursuant to this Agreement. The Customer shall process Personal Data on the Servers in accordance with applicable Data Protection Laws.
14.3 The Customer shall choose in which countries and how it wishes to protect this data including by way of separate backups of the Customer Data.
14.4 Outside of the Security Measures, Wirehive is unable to tailor the Servers to any individual customer’s use case for Data Processing and therefore Wirehive shall provide the same level of security irrespective of whether or not Customer Data is actually processed by a Customer on the Servers.
14.5 Wirehive shall provide the Services to the Customer in a manner in which the Customer can process Customer Data within their control, including the ability to choose to use Servers to store and process its Personal Data entirely within the European Economic Area.
14.6 Customer is solely responsible for its selection and use of the Services, including:
14.6.1 making appropriate use of the Services and the Security Measures to ensure a level of security appropriate to the risk in respect of the Customer Data;
14.6.2 securing the account authentication credentials, systems and devices Customer uses to access the Services; and
14.6.3 backing up its Customer Data separately from the Servers.
15.1 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.
17.1 To the extent of any conflict or inconsistency between clauses 1 to 17 (inclusive) of these Terms and Conditions, the Schedules of these Terms and Conditions, and the terms of any Order, the order in which the terms prevail is as follows: (a) the terms of these Terms and Conditions (highest), (b) the Schedules to these Terms and Conditions, and (c) the terms of any Order (lowest), save that in respect of the Consultancy Services, then the order in which the terms prevail is as follows: (a) Schedule 4 to these Terms and Conditions and (b) the terms of these Terms and Conditions; and (c) any terms in the Statement of Work (lowest).
17.2 Wirehive may, in addition to its own employees, engage subcontractors to provide all or part of the services being provided to the Customer, provided such engagement shall not relieve Wirehive of any obligations under this Agreement.
17.3 These Terms and Conditions have been produced by Wirehive in conjunction with legal counsel to protect the interests of both Parties. Unless otherwise notified by Wirehive, where the Customer has amended, varied, negotiated, required Wirehive to waive any term, or requested or made any other modification to these Terms and Conditions (or part thereof) prior to execution by the Parties, by signing these Terms and Conditions the Customer agrees to pay to Wirehive, promptly upon demand, the amount of: (a) £500 (ex. VAT), or such other sum as Wirehive may specify in advance of execution, and (b) any and all costs and expenses (including all reasonable fees, costs, expenses, and disbursements of Wirehive’s legal counsel, experts, and/or agents) that Wirehive incurs in connection with such amendment, variation, negotiation, waiver, or other modification.
17.4 Wirehive and the Customer are contractors independent of each other, and neither has the authority or power to bind the other to any third party or act in any way as the representative of the other (whether principal, agent, or otherwise), unless otherwise expressly agreed to in writing by both Parties.
17.5 In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. Wirehive will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the Parties as reflected in the original provision.
17.6 No waiver of any of the terms of this Agreement will be valid unless in writing and signed by or on behalf of an authorised signatory of each of Wirehive and the Customer. The failure by either Party to enforce at any time or for any period any one or more of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce or exercise such right at any subsequent time or times.
17.7 Neither Party shall, without the prior written consent of the other Party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
17.8 Any notice to be given by either Party to the other may be served by email, personal service, or by post to the address of the other Party set out in these Terms and Conditions (or as otherwise notified by the relevant Party in writing). If: (a) sent by email, such notice shall (unless the contrary is proved) be deemed to be received on the day it was sent, (b) given by personal service, shall be deemed to have been served at the time at which the letter was delivered personally, or (c) if sent by post, shall be deemed to have been delivered in the ordinary course of post.
17.9 This Agreement contains the entire agreement between the Parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied (including by way of any addition, amendment, or modification) only by a document in writing and signed by a duly authorised signatory of both Parties (respectively). For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of Wirehive shall form part of this Agreement, save as otherwise expressly set out in this Agreement.
17.10 Except as expressly provided in this Agreement, a person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
17.11 This Agreement may be executed electronically using electronic signature or advanced electronic signature or a duly authorised officer of each Party. If this Agreement is executed electronically, each Party hereby irrevocably consents to this Agreement being communicated, presented, and retained wholly or partly in electronic form.
17.12 This Agreement may be executed in any number of counterparts, including electronic counterparts, each of which (including electronic counterparts) will be an original but all of which together will constitute one and the same instrument. No counterpart (including electronic counterparts) shall be effective until each Party has executed at least one counterpart.
17.13 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance, with the law of England. The Parties hereby irrevocably agree that the courts of England have the exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
THESE TERMS AND CONDITIONS have been signed by the duly authorised representatives of the Parties on the date first written above.