Terms and Conditions

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”).

DEFINITIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Data Protection Laws” means as defined in Schedule 1;

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

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

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

“Insolvency Event” means an event in which:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Servers” means the servers specified in the applicable Order;

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

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

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

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

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

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

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

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

2.          TERM

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

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

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

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

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

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

3.          SERVICES

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

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

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

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

3.5        Where the Services include Consultancy Services:

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

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

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

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

4.          SERVICE LEVELS

4.1        Wirehive shall meet the Service Levels set out in:

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

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

5.          CUSTOMER’S OBLIGATIONS

5.1        The Customer shall:

5.1.1     cooperate with all reasonable requests made by Wirehive;

5.1.2     provide Wirehive with any information reasonably required by Wirehive;

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

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

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

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

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

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

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

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

6.          APPROPRIATE USE

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

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

6.3        As soon as reasonably practicable following:

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

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

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

7.         SURGE

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

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

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

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

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

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

8.          WARRANTIES

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

8.2        Wirehive warrants that it:

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

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

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

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

8.4        Otherwise than as set out in this clause 8, all warranties, representations, conditions, and other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement. In particular, Wirehive makes no warranties or representations that: (a) the Services will be uninterrupted or error free, and shall not be liable (directly or indirectly) for any interruption of the Services, and/or (b) the Services will be compatible with any items or materials (including website) used by the Customer in connection with the Services, and shall not be liable for such items or materials or any failure in the Services resulting from the improper functioning of, or incompatibility of such items or materials in connection with, the Services.