Hyve Hosting Services Agreement
This Hosting Services Agreement (the "Agreement") represents the complete agreement and understanding between Hyve Limited, a UK Limited Company, (hereinafter referred to as "Hyve") and TBC a <Country (UK)> registered Company (hereinafter referred to as "Client"). Each of Hyve and Client may be referred to herein as a "Party" and, together, the "Parties". The parties agree as follows:
Hyve shall provide to Client a hosting solution ( "Hosting Solution" or "Solution") the specifications of which are set forth and hereby incorporated into this Agreement in attached Exhibit "A" ("Hosting Services") and the availability of which is set forth and hereby incorporated into this Agreement in attached Exhibit "B" ( "Service Level Agreement") or ("SLA" ). Any future services or upgrades in addition to the Hosting Services that the parties shall agree to ("Additional Services") shall be set forth in the Myhyve Client Portal and shall at such time be incorporated into, and become part of this Agreement. (The Hosting Services and the Additional Services shall hereinafter collectively be referred to as the "Services").
2. TERM OF SERVICE.
This Agreement shall, unless terminated sooner as provided in this Agreement, be in effect for XX month period ( "Initial Term") commencing on XX/XX/XXXX ( "Commencement Date") and terminating on XX/XX/XXXX (the "Termination Date"). This Agreement shall automatically renew for successive XX month terms ( "Extension Terms") under the same terms as provided for in this Agreement unless and until either party shall give to the other party written notice (in accordance with Section 16) of its intent to cancel this Agreement at least thirty (30) days in advance of the Termination Date or last day of the applicable Extension Term, as the case may be. The Initial Term and any successive Extension Terms shall collectively be referred to as the "Term".
3. PAYMENT TERMS.
3.1. Remittance Address. Hyve Managed Hosting, The Colour Rooms, 12 Richmond Parade, Brighton, East Sussex, BN2 9QD, United Kingdom.
3.2. Fees. Client shall be billed monthly via invoice in advance for all Service fees for the following calendar month, the specifications of which are set forth on Exhibit "A" ( "Monthly Service Fees"). Payment of the first instalment of the Monthly Service Fees shall be made by Client promptly following Agreement execution by both parties in the amount described in Exhibit "A". That day of the month in which the payment of the first instalment of Service Fees is due shall be known as the "Monthly Remittance Date" and all future instalments of Monthly Service Fees after the first instalment shall be due and payable on the Monthly Remittance Date of such instalment month. Any ("Additional Services") shall be billed via invoice with immediate payment terms. In the event that Client shall fail to pay by the Monthly Remittance Date in advance for the Services provided herein or in the event there shall exist any delinquency in the Client's account, Hyve reserves the right, in its sole, absolute and unfettered discretion, to terminate the Agreement and discontinue Service to Client upon seven (7) days e-mail notice, without liability for actual compensatory or consequential damages to Client for any interruption in Service. Hyve may discontinue or suspend Service to Client until payment is made. Any Services disconnection or suspension pursuant to this Section 3.2 will result in the requirement of a reasonable re-connect fee, which fee shall be in an amount not to exceed the Monthly Service Fee.
3.3. Taxes. Client shall pay all taxes, duties and levies of any governmental authority, including, but not limited to any excise or VAT tax, exclusive of taxes on Hyve's net income, for the Monthly Service Fee. If Client claims exemption from any taxes arising from this Agreement, Client shall provide Hyve with documentation required by the taxing authority to support an exemption.
3.4. Pricing Changes. Except in the case of a material change in Services agreed to in writing by both parties or a Regulatory Activity (as hereinafter defined) incurred by Hyve in connection with the provision of the Services, Hyve shall not raise its Monthly Service Fee before the expiration of the Initial Term. For the purposes of this section, "Regulatory Activity" shall mean any regulation and/or ruling that, including modifications thereto by any regulatory agency, legislative body, or court of competent jurisdiction. After the expiration of the Initial Term, Hyve shall have the right, from time to time, to revise on a service-by-service basis, any of the fees set forth in this Agreement with the Client's consent. Revised fees shall take effect on the Monthly Remittance Date of that month next following the date on which the parties agree to the revised fee schedule. In the case of a material change, the parties will execute a written amendment.
3.5. Late Payments. Any unpaid balance over thirty (30) days shall be subject to monthly finance charges of one and one half percent (1.5%).
3.6. Solicitor's Fees. Should it become necessary to take any action to collect any amount invoiced to the Client under this Section or otherwise enforce the terms of this Agreement, Client agrees to pay Hyve's actual and reasonable solicitor's fees and all reasonable costs of collection including, but not limited to any solicitor's fees associated with obtaining, enforcing or collecting upon any final, non-appealable judgment against Client issued by a court of competent jurisdiction. Should it become necessary for Hyve to defend against or respond to any third party claims under the intellectual property laws of the United Kingdom, the United States, or a foreign country, or any treaties to which the United Kingdom or the United States is a party, and specifically 17 U.S.C. § 512(c) (a safe harbour provision of, the Digital Millennium Copyright Act), or any subsequent or similar acts achieving a similar purpose, Client shall pay Hyve's actual and reasonable solicitor's fees and costs associated with such response or defence, as the case may be, but only to the extent that such third-party claims arise out of any actions undertaken by Client.
4. CLIENT RESPONSIBILITY.
4.1. Password Security. Client shall be responsible for undertaking measures to ensure the confidentiality of Client passwords. If a Client password is lost, stolen or otherwise compromised, Client shall promptly notify Hyve, whereupon Hyve shall issue a replacement password to Client's authorised representative and take such other action as may be appropriate given the circumstances, at no cost to Client.
4.2. Data Retention. Client acknowledges that unless specifically contracted as an element of Services between Client and Hyve, that Hyve does not create or maintain an archive or backup of any data, site content or other information maintained or otherwise stored on the Hyve Equipment ("Site Content"), and Hyve shall have no liability to Client or any other person for loss, damage or destruction of any Site Content.
4.3. Acceptable Use Policy. The Client may only use Hyve's Services for lawful purposes. In the event that at any given time, Hyve reasonably believes that the Service is being used by Client in contravention of any of the terms and provisions contained in this Agreement or Hyve's Acceptable Use Policy as may be posted from time to time on https://www.hyve.com/resources/terms-and-conditions/ . Hyve has the right to immediately suspend such Service to Client without liability within two (2) business days after giving written notice and a request to cure to Client pursuant to Section 17, which notice shall specify Hyve's good faith and reasonable belief as to why the Service is being used in contravention of this Agreement or Hyve's Acceptable Use Policy. Hyve reserves the right to determine what constitutes net abuse in its reasonable discretion.
The following are restrictive uses and shall be cause for the immediate termination of Services and this Agreement, effective upon e-mail notice to Client:
4.3.1. Unauthorised distribution or copying of copyrighted software, violation of UK and US export restrictions, embezzlement, fraud, trafficking in obscene material, drug dealing, and other illegal activities.
4.3.2. Using a non-existing e-mail return address on a commercial solicitation, spamming (sending unsolicited advertising to numerous e-mail addresses or newsgroups), trolling (posting outrageous messages to generate numerous responses), mail bombing (sending multiple messages without significant new content to the same user), subscribing someone else to a mailing list without that person's permission, cross-posting articles to an excessive number of newsgroups, or attempting without authorisation to enter into a secured computer system.
4.3.3. Tortuous conduct such as posting of defamatory, libellous, scandalous, or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyright, or other intellectual property rights.
4.3.4. The Client expressly understands and agrees that illegal Adult oriented websites featuring nudity and acts of a sexual nature are expressly prohibited. Hyve reserves the right to immediately remove any such unauthorised Websites without notice and discontinue service to Client without notice or liability for actual, compensatory or consequential damages to Client for the interruption in service.
4.3.5. Any action on the part of or Site Content maintained by Client or its customers that results in Hyve receiving a summons or similar document demand from any legal or governmental authority due to unlawful practice or Site Content shall be cause for the immediate termination of the Service and this Agreement.
4.4. Rights of Hyve. Hyve has no obligation to monitor the Site Content, but reserves the right in its sole discretion to do so.
5.1. Hyve Equipment. Client has contracted to use certain equipment as more particularly described in attached Exhibit "A" in connection with the Services (the "Hyve Equipment"). Hyve will order the necessary Hyve Equipment and develop a scheduling plan for its installation.
5.2. Restrictions on Use of Hyve Equipment. Client will not take, nor attempt to take, any right, title or interest in the Hyve Equipment or permit any third party to take any right, title or interest in the Hyve Equipment. Client will not transfer, sell, assign, sublicense, pledge or otherwise dispose of, encumber or attach a lien or encumbrance upon or against any Hyve Equipment or any interest in such equipment.
5.3. No Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property.
6. DATA PROTECTION
6.1. For the purposes of this Agreement:
6.1.1. the terms "Data Controller", "Data Processor", "Data Subject", "Personal Data" and "Processing" shall have the same meaning as in the Data Protection Act 2018, and "Process" and "Processed" shall be construed accordingly;
6.1.2. "Data Protection Laws" means the Data Protection Act 2018 and any ICO guidance relating thereto;
6.1.3. "Client Data" means the Personal Data of the Client, its staff and its customers;
6.1.4. "ICO" means the Information Commissioner’s Office;
6.2. Where applicable, the parties agree that the End User Client (Client of ONAPP) is the Data Controller and Hyve is the Data Processor/Sub Processor; unless otherwise specified in the call off contract.
6.3. Hyve agrees to only process Personal Data for and on behalf of the Client for the purposes of performing the services under this Agreement and in accordance with any other reasonable and lawful instructions issued by the Client in writing from time to time.
6.4. Where the Client requires assistance from Hyve in order to respond to requests, queries and/or investigations in respect of the Client Data or requires that Hyve shall help the Client in safeguarding the Client Data, Hyve shall provide such assistance, so far as is reasonable but at the Client’s cost;
6.5. Hyve shall not be in breach of this Clause if it acts on the instructions of the Client.
6.6. The Client retains all rights, title and interest in and to the Client Data.
6.7. Hyve will, at the Client’s written request deliver to the Client all documents and material which may be in Hyve’s possession which contain the Client Data. Digital Data will be made available for a period of seven (7) days, for download by Client via FTP or SFTP. If preferable, for an hourly fee of GBP150 (including time taken for trips to and from the datacenter), Hyve will copy the data to a Network Attached Storage device (NAS) which will be supplied by Client at the Client’s expense
6.8. Hyve will not use a sub-processor without the prior written authorization of the controller (ARTICLE 28,2 GDPR 2016/679)
6.9. Hyve will co-operate with supervisory authorities (such as ICO) in accordance with Article 31, GDPR 2016/679)
6.10. Hyve will ensure the security of its processing in accordance with Article 32 (GDPR 2016/679)
6.11. Hyve will keep records of its processing activities in accordance with Article 30.2 (GDPR 2016/679)
6.12. Hyve will notify any personal data breaches to the client in accordance with Article 33 (GDPR 2016/679)
6.13. Hyve will employ a data protection officer if required in accordance with Article 37; and appoint (in writing) a representative within the European Union if required in accordance with Article 27. (GDPR 2016/679)
6.14. Hyve will ensure that people processing the data are subject to a duty of confidence;
6.15. Hyve will take appropriate measures to ensure the security of processing;
6.16. Hyve will assist the client in providing subject access and allowing data subjects to exercise their rights under GDPR;
6.17. Hyve will assist the client in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;
6.18. Hyve will delete or return all personal data to the client as requested at the end of the contract; and Hyve will submit to audits and inspections, provide the client with whatever information it needs to ensure that they are both meeting their Article 28 obligations, and tell the client immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.
6.19. As Data Controller, the Client shall:
6.19.1. comply at all times with the Data Protection Laws;
6.19.2. ensure it is not subject to any prohibition or restriction which would:
(a) prevent or restrict it from disclosing or transferring the Personal Data to Hyve, as required under this Agreement;
(b) prevent or restrict it from granting Hyve access to the Personal Data, as required under this Agreement; or
(c) prevent or restrict Hyve from Processing the Client Data as envisaged under this Agreement;
6.18.3. Hyve shall use appropriate technical and organisational methods to ensure the security of the Client Data.
7. SOFTWARE AND SITE OWNERSHIP
7.1.1. Software Provided by Hyve. Hyve hereby grants to Client a nonexclusive, non-transferable (except as provided for in Section 13), royalty-free worldwide license, without the right to grant sublicenses, to use object code versions of the software provided by Hyve in connection with the Services and as more particularly described in attached Exhibit "A" (the "Hyve Software"). Hyve shall properly install and maintain the Hyve Software on the Hyve Equipment such that the Hyve Software operates in accordance with applicable specifications.
7.1.2. Software Provided by Client. Client hereby grants to Hyve a nonexclusive, non-transferable, royalty-free worldwide license, without the right to grant sublicenses, to use object code versions of any software provided to Hyve by Client in connection with the Services (the "Client Software").
7.2.1. Client's use of the Hyve Software is subject to the following: Client will not, and will not permit others to, (a) modify, copy, or otherwise reproduce the Hyve Software in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or structure of the Hyve Software; (c) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer the Hyve Software or Client's right to use the Hyve Software; or (d) remove any proprietary notices or labels on the Hyve Software. All rights not expressly granted to Client are reserved by Hyve or Hyve's licensors.
7.2.2. Hyve's use of the Client Software is subject to the following: Hyve will not, and will not permit others to, (a) modify, copy, or otherwise reproduce the Client Software in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or structure of the Client Software; (c) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer the Client Software or Hyve's right to use the Client Software; or (d) remove any proprietary notices or labels on the Client Software. All rights not expressly granted to Hyve are reserved by Client or Client's licensors.
7.3.1. "Confidential Information" means any non-public information (written, oral or electronic) disclosed by one party to the other party and shall be deemed to include the following information of the respective parties, without limitation: (a) e-mail addresses, customer lists, the names of customer contacts, business plans, technical data, product ideas, personnel, contracts and financial information; (b) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (c) information about costs, profits, markets and sales; (d) plans for future development and new product concepts; (e) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments;(f) information obtained pursuant to Section 4.4; and (g) any data or information stored on Hyve Equipment.
7.3.2. Non-Disclosure. Each party agrees not to use, disclose, sell, license, publish, reproduce or otherwise make available the Confidential Information of the other party except and only to the extent necessary to perform their respective obligations under this Agreement. Each party agrees to secure and protect the other party's Confidential Information in a manner consistent with the maintenance of such party's own confidential and proprietary rights in the information and to take appropriate action by instruction or agreement with its employees, consultants or other agents who are permitted access to the other party's Confidential Information to satisfy its obligations under this Section.
7.3.3. Nondisclosure Obligation Excused in Certain Situations. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving party; (b) shall have been in the receiving party's possession independent of its relationship with the disclosing party; (c) shall have been developed by or become known to the receiving party without access to any of the disclosing party's Confidential Information and outside the scope of any agreement with disclosing party; or (d) shall be obtained rightfully from third parties not bound by an obligation of confidentiality.
7.3.4. Injunctive Relief. Each party hereby acknowledges that unauthorised disclosure or use of Confidential Information of the other party could cause irreparable harm and significant injury to such party. Accordingly, each party consents to the entry of immediate temporary and permanent injunctive relief to remedy any breaches of the confidentiality provisions contained herein.
7.3.5. Marketing. Client consents to Hyve's inclusion of Client's name on a general list of Hyve's customers used for marketing and promotional purposes.
7.4. Client Ownership. Client shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Site Content and all legally protectable elements, derivative works, modifications and enhancements thereof, whether or not developed in conjunction with Hyve, and whether or not developed by Hyve, Client or any contractor, subcontractor or agent for Hyve or Client. To the extent that ownership of the Site Content does not automatically vest in Client by virtue of this Agreement or otherwise, Hyve agrees to transfer and assign to Client all right, title and interest in the Site Content and protectable elements or derivative works thereof. Hyve shall not sell or otherwise transfer, reproduce or use the Site Content for any purpose except to provide the Services hereunder. Upon any termination or expiration of this Agreement, Hyve shall remove all Site Content from any Hyve Equipment.
8.1. Termination for Cause. In the event that Client or Hyve breaches any material provision of this Agreement and fails to cure such breach within fifteen (15) days after written notice thereof, the non-breaching party may terminate this Agreement immediately by written notice to the other party. In the event that Client or Hyve (a) becomes insolvent; (b) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (c) has a receiver appointed with respect to all or substantially all of its assets; (d) makes an assignment for the benefit of creditors or (e) ceases to do business in the ordinary course, the other party may terminate this Agreement immediately by notice in writing. All notices required by this Section shall be in accordance with the notice requirements of Section 16.
8.2. Rights Upon Termination for Cause. In the event this Agreement is terminated by Hyve for cause, Client shall pay Hyve for all Services through the remaining balance of the Initial Term or Extension Term, as the case may be. Upon any termination of this Agreement, Hyve shall remove all Site Content from any Hyve Equipment and Client shall return all Hyve Software to Hyve and erase and remove all copies of all Hyve Software from any computer equipment and media in Client's possession, custody or control. Client acknowledges that in the event of a termination for cause, Hyve does not retain and shall not be responsible for any damage to or loss of Client Site Content or other data.
8.3. Rights Upon Termination of the Initial Term or Extension Term. In the event this Agreement is terminated upon 30 days' notice as set forth in Section 2, Client shall pay Hyve for all Services provided to Client up to and including the date of termination. Upon any termination or expiration of this Agreement, Hyve shall remove all Site Content from any Hyve Equipment and Client shall return all Hyve Software to Hyve and erase and remove all copies of all Hyve Software from any computer equipment and media in Client's possession, custody or control.
9. REPRESENTATIONS AND WARRANTIES.
Subject to the specifications listed in Exhibits "A" & "B", Hyve will utilise commercially reasonable efforts to maintain acceptable performance of the contracted Services.
9.1. Hyve represents and warrants the following:
9.1.1. Conformance with Specifications. Hyve will provide the Services in conformance with the specifications set forth in this Agreement and the Exhibits.
9.1.2. Standard of Service. Hyve's experienced and qualified personnel will provide the Services in a high quality and professional manner.
9.1.3. Infringement. The Services, Hyve Equipment, Hyve Software, and any other equipment or materials provided by Hyve, will not infringe upon or misappropriate any third party's copyright, patents, trade secrets, trademark, trade name, or other proprietary or intellectual property right.
9.1.4. Rights. Hyve owns or has the authority to use all hardware, software and other materials necessary to provide the Services described herein.
9.2. Exception. Client agrees that Hyve has no control of availability of Services on a continuous or uninterrupted basis. Client agrees that from time to time the Services may be inaccessible or inoperable for causes beyond Hyve's reasonable control, including, without limitation the conditions of Section 12 and for maintenance. Hyve does not guarantee the integrity of data stored or transmitted via Client's system/hardware or via the Internet. Hyve shall not be liable for the inadvertent disclosure of, or corruption or erasure of data transmitted or received or stored on Client's system, unless caused by the gross negligence or wilful misconduct of Hyve employees or anyone under Hyve's reasonable control.
9.3. Audit. Client, upon prior reasonable advance written notice and with Hyve's reasonable assistance, may conduct or cause a third party to conduct an audit of Hyve's records, operations and systems involved in or related to Hyve's performance under this Agreement, including without limitation, verification of pricing, invoicing and payment of items licensed under this agreement and any vendor security risk assessment or privacy assessment that Client may conduct. Such audits shall be conducted no more frequently than annually, unless the parties agree otherwise. Each such auditor shall execute Hyve's standard form of Non-Disclosure Agreement as a pre-condition to and prior to performing any such audit. With respect to any audit performed pursuant to this Section (the "Audit"), to the extent any such Audit requires Hyve to commit more than one (1) Hyve employee to more than one (1) business day of work, Client shall compensate Hyve at a rate equal to GBP750.00 for each day or partial day with respect to each such Hyve employee.
9.4. Non-solicitation. The Parties agree that they will not knowingly and directly solicit or attempt to solicit for employment or as a consultant any persons employed by the other Party during the Term of this HSA and continuing through the first anniversary of the termination of this HSA. Notwithstanding the foregoing, general job advertisements placed on employment web sites will not result in a breach of this provision."
10. NO OTHER WARRANTY EXCEPT FOR THE EXPRESS WARRANTY SET FORTH HEREIN AND IN EXHIBIT "B", HYVE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL RESPONSIBILITY FOR ANY SITUATION WHERE THE SECURITY, THE AVAILABILITY OR THE STABILITY OF THE SERVICES IS COMPROMISED BY (A) THE CLIENT, (B) THE SITE CONTENT OR (C) ANY ACTIONS TAKEN BY HYVE AT THE REQUEST OF CLIENT.
11.1. The parties agree that they shall defend, indemnify, save and hold harmless one another from any and all third-party demands, liabilities, losses, costs, claims, suits, causes of actions and legal proceedings (including without limitation government enforcement actions) including reasonable solicitor's fees and disbursements, judgments and settlements, ("Liabilities") against the other party, its affiliates and their agents, directors, officers, and employees, that may arise or result from any breach by the indemnifying party of the representations and warranties in the Agreement, the Services provided, performed or agreed to be performed under this Agreement, or any product sold by either party, its agents, employees or assigns. Each party agrees to defend, indemnify and hold the other party harmless against Liabilities arising out of any injury to person or property caused by any products sold or distributed over the Hyve Equipment, by virtue of the use of the Service, or under the Agreement. Each party agrees to defend, indemnify and hold the other party harmless against Liabilities arising out of (a) any material supplied by either party infringing or allegedly infringing on the proprietary rights of a third party under the Agreement, or (b) copyright infringement and any defective product which Client sold utilising the Hyve Equipment.
11.2. Hyve shall defend, indemnify and save harmless Client, its subsidiaries and affiliates, and Client and their respective officers, directors, employees, successors and assigns from all Liabilities to Client arising out of or resulting from: (a) any breach by Hyve of the Agreement or the representations or warranties set forth herein; or (b) any claim relating to the copyrights, patents, or other intellectual property supplied and used by Hyve in providing the Services to Client.
11.3. LIMITATION OF LIABILITY AND DAMAGE LIMIT. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST GOODWILL, OR LOST BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY FOR ANY ACTION UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT DURING THE TERM OF THIS AGREEMENT.
12. FORCE MAJEURE.
Neither party will be in default of its obligations to the extent its performance is delayed or prevented by causes beyond its control, including but not limited to acts of God, earthquake, flood, embargo, riots, sabotage, utility or transmission failures, fire, labour disturbances, acts of war, acts of terror, radiological, nuclear, chemical, or biological attack, or spread of infectious disease, a new and unforeseeable law or court order that prohibits a party's performance or imposes a substantial and commercially unreasonable burden on a party's performance, the unavailability of third-party telecommunications or services (after taking all commercially reasonable steps to provide substitutes therefore), the inability to obtain raw materials, supplies, or power needed herein (after taking all commercially reasonable steps to provide substitutes therefore).
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party. Notwithstanding the previous sentence, Hyve may transfer or assign its rights and obligations under this Agreement to a subsidiary or entity controlling, controlled by or under common control with Hyve or to an entity that acquires Hyve by merger or purchase of all or substantially all of Hyve's assets.
14. TERMS OF THIS AGREEMENT.
The terms of this Agreement shall be governed by and construed in accordance with English law without regard to choice of law principles. The headings in this Agreement are used for convenience of reference and shall not be deemed to modify or affect the interpretation of this Agreement. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. Either party's failure to insist upon or enforce strict performance of any provision of this Agreement, or delay in doing so, shall not be construed as a waiver of any provision or right. All remedies in this Agreement are cumulative and neither the availability nor exercise of any such remedy shall prevent a party from exercising any other remedy that it would otherwise have under this Agreement or by law. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement. Neither party nor its representatives will be liable for loss or damage or deemed to be in breach of this Agreement if its failure to perform its obligations results from compliance with any law, ruling, order, regulation, requirement of any federal, state or municipal government or department or agency thereof or court of competent jurisdiction. Any delay resulting therefrom will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable. The terms and conditions of this Agreement, including all amendments executed pursuant hereto, shall prevail notwithstanding any different or additional terms and conditions of any purchase order or other form for purchase, payment or otherwise submitted by Client to Hyve, all of which are hereby rejected. All terms and provisions of this Agreement, which should by their nature survive the termination or expiration of this Agreement shall so survive. This Agreement, including all exhibits hereto, constitutes the entire agreement between the parties concerning its subject matter and shall supersede any and all other prior written or oral agreements or understandings between the parties on this subject matter. Any actions commenced under this Agreement shall be venued in London, United Kingdom. This Agreement creates an independent contractor relationship between Client and Hyve; it does not create, and shall not be construed as creating, a partnership, joint venture or agency relationship. No person or entity is intended to be a third-party beneficiary of any of the obligations of the parties hereunder. Neither party shall hold itself out as an agent of the other party.
This Agreement, including all exhibits attached hereto, shall not be amended, nor shall any of its provisions be waived, except by written amendment or waiver signed by authorised representatives of Client and Hyve.
Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (a) if by hand delivery, upon receipt thereof, (b) if mailed, three (3) days after deposit in the United Kingdom mails, postage prepaid, certified mail, return receipt requested, or (c) if by facsimile transmission, upon electronic confirmation thereof, (d) if by next day delivery service, upon such delivery, or (e) if by e-mail, upon delivery. All notices shall be addressed as follows (or such other address as either party may in the future specify in writing to the other):
In the case of Client:
In the case of Hyve:
The Colour Rooms
17. COUNTERPARTS, FACSIMILE.
This Agreement may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one instrument. Copies of executed counterparts transmitted by facsimile or electronic means shall be considered original executed counterparts for purposes of this Agreement.
Exhibit A - Hosting Solution
Monthly Service Fee: £xx.xx
Setup Fee: £xx.xx
Service Specifications ("Hosting Solution"):
Hosting solution will be listed here.
Exhibit B - Service Level Agreement
Hyve is committed to providing a high level of service to ensure that information technology is an effective enabling tool for Client. This document briefly describes the services and standards of service provided by Hyve to Client.
This agreement is intended to guarantee that individual and network users receive an acceptable level of response to their information technology needs and to ensure common expectations of quality and timeframes for services provided by Hyve. Hyve's service goals are:
- Timely and effective technical support of computer and telecommunications hardware and software
- Technical tools that effectively support business needs
- Support and implementation expectations that are appropriately met
- Secure and reliable electronic environments
- New technology solutions that are rapidly acquired and implemented
This level of support will be provided for all standard hardware and software configurations and other nonstandard configurations where support for such configurations has been agreed upon between Client and Hyve.
1. Availability - 100% Network Availability Guarantee.
1.1. Network Availability Guarantee Scope. Hyve guarantees that it will maintain a 100% up time, excluding scheduled maintenance, for facilities and the Hyve Network as follows: in the event that one or more of Client's servers are unable to transmit or receive information via the Internet through the Front-end Network as a result of disruptions to either the Data centre or the Front-end Network (a "Covered Outage"), Hyve will, upon Client's request, as Hyve's sole obligation and Client's sole and exclusive remedy for failure to meet the foregoing guarantee, credit the Client's account for every five (5) consecutive minutes of such Covered Outage with the prorated Monthly Service Fees for one (1) day of services for the affected servers, up to a maximum credit during any calendar month equal to the total prorated fees due to Hyve from Client during such calendar month for the affected servers ("Standard Service Credit"). In no event will Hyve's scheduled maintenance of the Data centre, the Front-end Network or the Hyve Equipment be deemed a Covered Outage entitling Client to the Standard Service Credit.
1.2. Scheduled Maintenance Scope. Scheduled Maintenance shall mean any maintenance at the Hyve data centre at which Client's server is located of which Client is notified 48 hours in advance. Notice of Scheduled Maintenance will be provided to Client's designated point of contact via email. The standard window for service-affecting maintenance is between the hours of 12:01 a.m. and 5:00 a.m. local time Saturday or Sunday. Hyve will use reasonable commercial efforts to coordinate with Client when planning any maintenance to minimise impact to Client and its customers. "Emergency Maintenance" shall mean any maintenance by Hyve, its subcontractors or service providers that does not meet the definition of Scheduled Maintenance. No notice shall be required or provided for Emergency Maintenance.
1.3. Network Availability Guarantee Process. Hyve will calculate Client's "Network Unavailability" in a calendar month. "Network Unavailability" consists of the number of minutes that the Hyve Network was not available to Client, and includes unavailability associated with any maintenance at the Hyve data centre where Client's server is located other than Scheduled Maintenance. Outages will be counted as Network Unavailability only if Client opens a trouble ticket with Hyve Client support within five days of the outage. Network unavailability will not include (a) Scheduled Maintenance, or any unavailability resulting from (b) acts or omissions of Client, or any use or user of the service authorised by Client (c) deliberate act of a User or an End User or (d) reasons of Force Majeure (as defined in the contract).
1.4. General Availability of the Hyve Network. The Hyve network will be deemed to be available if it provides end-user response time of no greater than three (3) seconds from the time the router receives a request to the time that the router transmits a response to the request.
2. Hyve Cloud Server Availability - 99.999% Hyve Cloud Server Availability Guarantee.
2.1. Cloud Server Availability Guarantee Scope. Hyve guarantees that it will maintain a 99.999% up time, excluding scheduled maintenance, for Hyve Cloud Servers as follows: in the event that one or more of Client's Cloud servers are unavailable as a result of disruptions to the Hyve Blade Enclosure, Blades, Switching or SAN infrastructure (a "Cloud Server Outage"), Hyve will, upon Client's request, as Hyve's sole obligation and Client's sole and exclusive remedy for failure to meet the foregoing guarantee, credit the Client's account for every one (1) hour of such Cloud Server Outage with the prorated Monthly Service Fees for one (1) day of services for the affected servers, up to a maximum credit during any calendar month equal to the total prorated fees due to Hyve from Client during such calendar month for the affected servers ("Standard Service Credit"). In no event will Hyve's scheduled maintenance of the Data centre, the Front-end Network or the Hyve Equipment be deemed a Cloud Server Outage entitling Client to the Standard Service Credit.
2.2. Scheduled Maintenance Scope. Scheduled Maintenance shall mean any maintenance at the Hyve data centre at which Client's server is located of which Client is notified 48 hours in advance. Notice of Scheduled Maintenance will be provided to Client's designated point of contact via email and/or myhyve customer ticket. The standard window for service-affecting maintenance is between the hours of 12:01 a.m. and 5:00 a.m. local time Saturday or Sunday. Hyve will use reasonable commercial efforts to coordinate with Client when planning any maintenance to minimise impact to Client and its customers. "Emergency Maintenance" shall mean any maintenance by Hyve, its subcontractors or service providers that does not meet the definition of Scheduled Maintenance. No notice shall be required or provided for Emergency Maintenance.
2.3. Service Availability Guarantee Process. Hyve will calculate Client's "Cloud Server Unavailability" in a calendar month. " Cloud Server Unavailability " consists of the number of minutes that the Cloud Server was not available to Client, and includes unavailability associated with any maintenance at the Hyve data centre where Client's cloud server is located other than Scheduled Maintenance. Outages will be counted as Cloud Server Unavailability only if Client opens a trouble ticket with Hyve Client support within five days of the outage. Cloud Server unavailability will not include (a) Scheduled Maintenance, or any unavailability resulting from (b) acts or omissions of Client, or any use or user of the service authorised by Client (c) deliberate act of a User or an End User or (d) reasons of Force Majeure (as defined in the contract).
2.4. General Availability of Cloud Servers. A Cloud Server will be deemed to be available if it is available via console access via VMware vCenter Server.
3. Dedicated Server Hardware Replacement Guarantee.
If a Dedicated Server experiences an outage directly attributable to the failure of a hardware component of such server, Hyve will replace the failed component or server, and if necessary, initiate a restore of the server from an available backup, within four (4) hours of Hyve determining that a failed hardware component or server needs to be replaced. The hardware guarantee covers all hardware components to include processors, ram, hard disks, motherboard, NIC card and other hardware as described in this contract.
3.1. Hardware Replacement Guarantee Remedy. If Hyve does not replace the failed component, within four (4) hours of Hyve determining that a failed hardware component needs to be replaced, Hyve, upon Client's request, will credit Client's account ten percent (10%) of the Monthly Recurring Service Charges as set forth on Client's Service Order (as defined in the applicable Hyve contract) ("Charges"), and an additional ten percent (10%) of the Charges for each additional hour over and above the four-hour commitment. This guarantee excludes the time required to rebuild a RAID array. The total of all credits issued to Client in any calendar month shall not exceed one hundred percent (100%) of the Charges. The Hardware Replacement Guarantee shall not apply if failure of the hardware component is a result of acts or omissions of Client or its agents; failure of any non-standard hardware installed by Hyve or Client; or events of Force Majeure (as defined in the applicable Hyve contract). In addition, the Hardware Replacement Guarantee shall not apply if the Client is in breach of its agreement with Hyve, including, but not limited to, violation of the Acceptable Use Policy or payment default.
4. Exceptions to the Credit Process.
Credit will not be issued due to failures that are, as determined by Hyve, in its good faith reasonable judgment, a result of:
- Client initiated work that is independently generated by Client;
- Hyve initiated maintenance completed during scheduled maintenance and emergency maintenance and upgrades;
- Client required operating system software revisions and hardware/software configurations that are not Hyve tested/approved;
- Client-supplied Web site content or software;
- The acts or omissions of Client, its employees, agents, third party contractors or vendors, or anyone gaining access to Hyve's Server and Software at the request of Client;
- Violations of Hyve's Acceptable Use Policy as may be posted from time to time on https://www.hyve.com/resources/terms-and-conditions/
- Circumstances beyond Hyve's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Hyve SLA's; or
- DNS issues outside the direct control of Hyve.
- An attack on the Hyve network such as a virus, SYN Flood or DDoS.
The total credit amount available to Client in a particular month under this SLA shall be limited to the maximum of Client's Monthly Service Fee for such month.
Hyve shall maintain a Help Desk, which will be the primary point of contact for all queries and communications regarding Service Level incidents. The help desk will be contactable by telephone and the Hyve support ticket system and will be available 24 hours a day, 7 days a week, 365 days a year.
5. Client Data and Software
Hyve will, on Client's behalf, use commercially reasonable efforts to: (i) make available and accessible on the Hyve Network and/or World Wide Web, as appropriate, the Site Content; and (ii) to reproduce the Site Content. Hyve recommends that the Client at all times retain complete copies of the Site Content. Client shall be solely responsible for the editorial supervision of the Site Content.
5.1. Software and Documentation Provided by Hyve. In consideration for the payment of any applicable charges, Client is granted the right to use the Hyve Software, if any, strictly in accordance with and subject to any accompanying documentation. Except as may be specifically set forth in the Documentation, Hyve makes no representations and warranties with respect to the Software. Hyve will pass through and assign to Client all rights and warranties provided by third party licensors of the Software to the extent that such licensors permit such pass through and assignment. Any costs of such assignment shall be borne by the Client. Except as specifically set forth herein, Hyve has no obligation to provide maintenance or other support of any kind for the Software, including without limitation any error corrections, updates, enhancements or other modifications.
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