Terms of Service

THESE TERMS AND CONDITIONS are entered into on the Commencement Date BETWEEN: (a) Vanacy Limited (company number 10048232), whose registered address is Telecom House, Preston Road, Brighton, England, BN1 6AF (“Vanacy”), and (the “Customer”), (each a “Party” and together the “Parties”)

1. Definitions

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

Acceptable Use Policy” means Vanacy’s acceptable use policy located at vanacy.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 Vanacy to the Customer that are delivered by, or in conjunction with, Vanacy’s virtualised public cloud platform;

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

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

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

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

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

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

Consultancy Engagement” means the period during which Vanacy 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 Vanacy to Customer pursuant to a Statement of Work;

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

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

Data Protection Laws” means as defined in Schedule 8;

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

Fees” means the sums payable by the Customer to Vanacy 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 Vanacy 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 Vanacy customer support portal located at https://Vanacy.support/ (or as otherwise notified to the Customer from time to time);

Security Measures” means Vanacy’s security policy document as set out at https://www.Vanacy.com/compliance/security/security-measures, and as may be updated by Vanacy 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 Vanacy to the Customer pursuant to any Order, including the Support and Maintenance Services set out in Schedule 1, and which may (subject to the applicable Order) include Vanacy Managed SysOps and/or AWS Services set out in Schedule 4 and/or the Consultancy Services set out in an executed Statement of Work;

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

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

Support and Maintenance Services” means the services set out in Schedule 1;

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

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

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

2. Term

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

2.2     Each Order shall come into force on the earlier of: (a) the date on which such Order is signed by both Parties, or (if such Order is submitted via the Portal) the date on which Vanacy 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 Vanacy in writing in advance and subject to an increase of 20% (or such other amount as may be specified by Vanacy) 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     Vanacy 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 Apollo). 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 Vanacy 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 Vanacy pursuant to or in connection with this Agreement shall remain the sole and exclusive property of Vanacy. 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 Vanacy may (in its sole discretion) move all or any part of the Customer Data to a different server.

3.5     Where the Services include Consultancy Services:

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

3.5.2 the terms at Schedule 7 (Consultancy Services) shall apply in addition to the Terms and Conditions in respect to the Consultancy Services.

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

4. Service Levels

4.1     Vanacy shall meet the Service Levels set out in:

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

4.1.2 Schedule 3 of this Agreement, in respect of Dedicated Platform Services,

save in respect of paragraph 2.2 of Schedule 2 and 2.2 of Schedule 3, which Vanacy shall meet only where the Customer purchases Vanacy Managed SysOps as part of the Services.

5. Customers Obligations

5.1     The Customer shall:

5.1.1 cooperate with all reasonable requests made by Vanacy;

5.1.2 provide Vanacy with any information reasonably required by Vanacy;

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

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

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

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

5.2     Vanacy 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 Vanacy all additional fees reasonably incurred by Vanacy in connection with such delay or failure.

5.3     The Customer shall not, without the prior written consent of Vanacy, 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 Vanacy or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Vanacy in the provision of the Services.

5.4     Any consent given by Vanacy in accordance with clause 5.3 shall be subject to the Customer paying to Vanacy a sum equivalent to 20% of the then current annual remuneration of Vanacy’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     Vanacy may immediately suspend the Services where Vanacy 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 Vanacy in full during any such period of suspension.

6.3     As soon as reasonably practicable following:

6.3.1 Vanacy’s suspension of the Services pursuant to clause 6.2, Vanacy 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), Vanacy shall resume provision of the Services.

6.4     The Customer shall indemnify Vanacy 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 Vanacy 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 Vanacy 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, Vanacy 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 Vanacy) to mitigate against the effects of the Surge Event or potential Surge Event (for the Customer and other Vanacy customers),

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

8. Warranties

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

8.2     Vanacy 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 Vanacy’s: (a) provision of the Services, and (b) business as a provider of managed hosting and related solutions and services.

8.3     Otherwise than as set out in this clause 8, all warranties, representations, conditions, and other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement. In particular, Vanacy 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 & Credit Checks

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

9.2     Vanacy 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 Vanacy a deposit of up to 6 months’ Fees in respect of the applicable Services (or, where such Fees cannot accurately be ascertained, Vanacy’s reasonable estimate as to such fees) (the “Deposit”), including as: (a) a condition of Vanacy’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 Vanacy within 10 Business Days of receipt of notice from Vanacy requiring the Customer to pay such Deposit. Where: (a) commencement of Services is conditional upon payment of the Deposit, Vanacy shall not be liable to provide such Services (or any Services that rely on such Services) until Vanacy has received the Deposit in full, and (b) continued provision of Services is conditional upon payment of the Deposit, Vanacy 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 Vanacy within the timeframes set out in this clause 9.3 (unless otherwise agreed between the Parties).

9.4     Vanacy shall credit or otherwise refund the Deposit to the Customer, less any deductions for unpaid Fees or other outstanding charges payable to Vanacy 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. Fee’s & Payment

10.1   The Customer shall pay the Fees to Vanacy 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 Vanacy of Server(s), Vanacy 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 Vanacy 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 Vanacy within 3 Business Days following the date of the Connection Notice that the server(s) are not functioning correctly, Vanacy shall: (a) use reasonable endeavours to correct such issues, and (b) upon written request from the Customer, credit the Customer’s account with Vanacy 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 Vanacy cannot complete the installation of any server(s) due to any act or omission (including delay) of the Customer, Vanacy 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 Vanacy, the Customer shall pay to Vanacy the sum of £20.

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

10.6.1   Vanacy 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 Vanacy to submit any such invoice against a purchase order, the Customer shall provide such valid purchase order to Vanacy prior to the date on which Vanacy 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 Vanacy 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), Vanacy 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 Vanacy receives the payment in full; and/or

10.8.2   suspend Services; provided that, following Due Date, Vanacy 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 Vanacy a reconnection fee of £20 (or such other amount as may be notified by Vanacy (including via the Portal) from time to time).

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

Exchange Rates

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

10.11 Where the Fees include FX Fees (including in respect of any AWS Services pursuant to Schedule 4), such FX Fees are calculated using an exchange rate set at the end of the previous quarter (being March 31, June 30, September 30, or December 31 (as applicable)). The current and historical exchange rates are available to view at: www.Vanacy.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 Vanacy by comparison to the exchange rate at the date of the relevant invoice, Vanacy may amend the FX Fees to account for such difference.

Disputes

10.13 In the event that the Customer reasonably disputes an invoice provided by Vanacy, 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 Vanacy 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 Vanacy 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;

11.1.3   or

11.1.4   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.

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: (a) loss of business, loss of opportunity, reputational loss, loss or corruption of data, depletion of goodwill, degradation of data or information, or loss of profits or revenue (in each case whether direct or indirect), or (b) for any indirect or consequential loss or damage whatsoever.

  1.     TERMINATION

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

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

12.1.2   undergoes an Insolvency Event; or

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

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

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

12.4   Where:

12.4.1   Vanacy 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 Vanacy 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 Vanacy in anticipation of Vanacy’s (or any third party’s) performance of the Services or any part thereof (“Termination Fees”). The Parties acknowledge and agree that the Termination Fees are a genuine pre-estimate of loss, and do not constitute a penalty.

12.5   Vanacy 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 Vanacy, 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 Vanacy is entitled to terminate this Agreement and/or any Order pursuant to this Agreement, Vanacy 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.

  1.     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 Vanacy’s servers or otherwise provided to Vanacy pursuant to this Agreement (the “Customer Intellectual Property”). The Customer hereby grants Vanacy a limited, revocable, non-exclusive, non-transferable licence to use the Customer Intellectual Property solely to the extent necessary for Vanacy to provide the Services to the Customer.

13.2   Vanacy 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, Vanacy (the “Vanacy Intellectual Property”) and otherwise provided by or on behalf of Vanacy to the Customer pursuant to or in connection with this Agreement. Vanacy hereby grants the Customer a limited, non-exclusive, non-transferable licence to use Vanacy Intellectual Property solely to the extent necessary for the Customer to receive the full benefit of the Services.

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

  1.     DATA PROTECTION & SECURITY

14.1   Schedule 8 (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 Vanacy 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, Vanacy is unable to tailor the Servers to any individual customer’s use case for Data Processing and therefore Vanacy 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   Vanacy 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.

  1.     CONFIDENTIALITY

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

15.2   Each Party shall:

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

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

15.2.3   protect the Confidential Information of the other Party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

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

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

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

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

  1.     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.

  1.     GENERAL

17.1   To the extent of any conflict or inconsistency between clauses 1 to 17 (inclusive) of these Terms and Conditions, the Schedules of these Terms and Conditions, and the terms of any Order, the order in which the terms prevail is as follows: (a) the terms of these Terms and Conditions (highest), (b) the Schedules to these Terms and Conditions, and (c) the terms of any Order (lowest), save that in respect of the Consultancy Services, then the order in which the terms prevail is as follows: (a) Schedule 7 to these Terms and Conditions and (b) the terms of these Terms and Conditions; and (c) any terms in the Statement of Work (lowest).

17.2   Vanacy 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 Vanacy of any obligations under this Agreement.

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

17.4   Vanacy 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. Vanacy 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 Vanacy 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 Vanacy 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.

In This Section

SCHEDULE 1

SUPPORT AND MAINTENANCE

  1.       DEFINITIONS

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

10×5” means Business Hours;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1.       MANAGED SUPPORT PLANS

2.1        Essentials Support Plan

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

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

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

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

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

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

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

2.2        Managed 10×5 Support Plan

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

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

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

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

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

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

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

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

2.3     patching and updates as specified in paragraph 6 of this Schedule 1.Managed 24×7 Support Plan

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

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

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

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

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

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

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

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

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

  1.       GENERAL SUPPORT SERVICES

3.1        Incident Management

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

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

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

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

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

Critical Priority

Impacting Priority

Normal Priority

EXAMPLE

Server inaccessible or website offline due to server issue

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

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

COVERAGE PERIOD / CONTACT MECHANISM

24/7 by telephone

Business Hours by email or portal

24/7 by telephone

Business Hours by email or portal

Business Hours by email, portal or telephone

RESPONSE TIME

Within:

1 hour (where reported in Business Hours)

2 hours (all other times)

Within:

2 hours (where reported in Business Hours)

4 hours (all other times)

Within:

2 Business Days

3.2        Request Fulfilment

3.2.1 The Customer may submit a Request to Vanacy, during the Coverage Period and using the Contact Mechanisms (each as set out in paragraph 3.2.2 of this Schedule 1), following which Vanacy shall:

(a)      open a support ticket in respect of the relevant Request and assign the applicable Priority classification to such Request (as defined by Vanacy, based on scope and impact, pursuant to paragraph 3.2.2 in this Schedule 1); and

(b)      respond to the Customer regarding the applicable Request(s) or, where Vanacy becomes aware of such Request(s) otherwise than pursuant to paragraph 3.2.1(a) of this Schedule 1, notify the Customer of such Request(s); and

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

3.2.2 Request Coverage Periods, Contact Mechanisms and Response Times:

Example

Coverage Period / Contact Hours

Normal

Configuration changes, password resets

Business Hours by telephone and email

Within: 5 Business Days

3.2.3     In order to submit an Incident or Request in accordance with paragraphs 3.1 and 3.2 of this Schedule 1, the Customer must notify Vanacy using the following Contact Mechanisms (as applicable during the respective Coverage Periods):

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

(b)      by email to: [email protected]

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

3.2.4     In the event that the Customer fails to report a Critical or Impacting Incident (each as defined in paragraph 3.1.2 of this Schedule 1) by telephone or email (as applicable), the Response Time for ‘Normal’ Priority Incidents will be deemed to apply unless and until the Customer so reports the Incident using the correct Contact Mechanism. For the avoidance of doubt, the Critical or Impacting Response Time (as applicable) shall commence at such time as the Customer reports the Incident using the correct Contact Mechanism.

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

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

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

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

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

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

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

(b)      where Vanacy elects (in its sole option) to provide support, such support, (i) is not subject to the terms of this Agreement and/or Order (including this Schedule 1) and is provided without any warranties or liability on part of Vanacy, and (ii) may be subject to additional charges or fees.

  1.       MONITORING

4.1        Ping

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

4.2        Service Monitoring

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

4.3        Managed 10×5 Support Plan

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

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

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

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

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

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

4.3.4 The results of Vanacy’s monitoring activities in respect of the Services and Support Plans shall be used to determine any Service Credits payable to the Customer pursuant to Schedules 2 and/or 3 (as applicable).

4.4        Managed 24×7 Support Plan

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

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

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

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

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

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

4.4.4 The results of Vanacy’s monitoring activities in respect of the Services and Support Plans shall be used to determine any Service Credits payable to the Customer pursuant to Schedules 2 and/or 3 (as applicable).

  1.       OPERATING SYSTEMS & SOFTWARE

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

  1.       PATCHING & UPDATES

6.1        Essentials Support Plan

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

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

6.2        Critical or Significant Vulnerabilities

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

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

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

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

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

6.2.3 This paragraph 6.2 will not apply to a patch and/or update where such patch and/or update (as applicable) requires a reboot of the relevant Servers and the Customer does not give Vanacy permission to perform such reboot within a reasonable period of time following Vanacy notifying the Customer of such need to reboot.

6.3        Routine Patches and Updates

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

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

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

Vanacy will;

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

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

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

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

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

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

Vanacy will;

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

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

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

  1.       FIREWALLS

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

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

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

  1.          SCHEDULED AND EMERGENCY MAINTENANCE

8.1        Scheduled Maintenance

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

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

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

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

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

8.2        Emergency Maintenance

8.2.1 Whilst Vanacy will give the Customer advance notice of maintenance requiring the Servers to be taken offline whenever possible (and in any event in accordance with paragraph 8.1.2 of this Schedule 1 in respect of Scheduled Maintenance), in certain circumstances emergency maintenance may be necessary to rectify a fault (“Emergency Maintenance”).

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

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

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

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

  1.       VIRUS PROTECTION

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

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

SCHEDULE 2

CLOUD PLATFORM SERVICE LEVELS

  1.       DEFINITIONS

1.1     In this Schedule 2, the following words shall have the following meanings:

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

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

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

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

Permitted Downtime” means downtime that occurs during or as a result of maintenance, which shall not constitute downtime for the purpose of calculating any Service Levels (including Network Availability, Packet Loss, and/or Server Availability) and/or associated Service Credits owed to the Customer by Vanacy pursuant to this Schedule 2;

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

Service Level” means the minimum level at which the Services shall be provided, as set out in the table at paragraphs 2.1 and 2.2 of this Schedule 2; and

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

  1.       SERVICE LEVELS

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

Measurement

Service Level

Measurement Location

Network Availability

100% uptime

Backbone routers and switches within Vanacy’s data centres

Packet Loss

Less than 0.25% packet loss

Backbone routers and switches within Vanacy’s data centres

Server Availability

99.99% uptime and availability

Network and power of the virtual node

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

Measurement

Service Level

Measurement Location

Website Uptime

99.99% uptime and availability

End user location

2.3        Network Availability & Packet Loss

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

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

2.4        Server Availability and Website Uptime

2.4.1 Servers provided by Vanacy pursuant to an Order shall be measured in each calendar month by Vanacy using the results of the monitoring, as described in paragraph 4 of Schedule 1, and deemed available unless the relevant Server becomes unreachable due to an outage within Vanacy’s infrastructure.

2.4.2 Application Level Incidents (as defined in Schedule 1), such as website unavailability, are not subject to, or otherwise covered by, the Server Availability Service Levels. The Server Availability Service Level measures whether the Server(s) are powered on and accessible over the Vanacy network, including Incidents (as defined in Schedule 1) with the virtual infrastructure (such as the availability of any host and storage used by the relevant Server).

2.4.3 The following shall not constitute downtime for the purpose of calculating the Server Availability and/or Website Uptime Service Level:

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

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

(c)      any services that form part of the Services that are provided (in whole or in part) by Vanacy’s affiliates, subcontractors, partners, and other third parties (including Third Party Services, as defined in paragraph 3.1.1 below); and/or

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

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

2.5        Non-Compliance

2.5.1 Where Vanacy fails to meet the Server Availability Service Level in a given calendar month, Vanacy shall provide to the Customer a Service Credit in accordance with paragraph 4 of this Schedule 2.

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

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

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

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

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

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

  1.       SERVICE CREDITS

4.1        Network Availability

4.1.1 Subject to paragraphs 4.1.2 and 4.2.2 of this Schedule 2, for each full hour of Network Availability falling below the Service Level set out in paragraph 2.1 of this Schedule 2 (excluding all Permitted Downtime, as defined in Schedule 1) in each calendar month, upon notification by the Customer Vanacy will provide the Customer with a refund of the amount of 5% of the Fees  (excluding any software licences) paid in respect of the affected Service(s) pursuant to the applicable Order(s) during the calendar month in which the Service Level was not met (the “Network Availability Service Credit”). For the avoidance of doubt, no fees (in whole or in part) payable in respect of software Licenses shall be refunded to the Customer.

4.1.2 To receive the Network Availability Service Credit:

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

(b)      Vanacy shall, following receipt of the notice set out in paragraph 4.1.2(a), compare the measurements and information provided by the Customer to the Network Availability monitoring data recorded by Vanacy during the same period. For the avoidance of doubt, in the event of discrepancy or conflict between the information or measurements provided by the Customer and recorded by Vanacy, the information and measurements recorded by Vanacy shall take precedence and be used to calculate the applicable Service Credits (if any).

4.1.3 Following the completion of the actions at paragraph 4.1.2, Vanacy shall notify the Customer of either: (a) the issuance of the applicable Service Credit, or (b) the reasons for not providing the Service Credit (including, for example, as a result of the information or measurements recorded by Vanacy not entitling the Customer to a Service Credit).

4.1.4 Vanacy shall only be entitled to issue a Service Credit where the Server unavailability information recorded by Vanacy would entitle the Customer to such Service Credit. Service Credits shall be awarded in accordance with the Service Credit Procedure set out in paragraph 4.4 of this Schedule 2.

4.2        Server Availability

4.2.1 Subject to paragraph 4.4 of this Schedule 2, where the Server Availability Service Level set out in paragraph 2.1 of this Schedule 2 is not met (excluding all Permitted Downtime, as defined in Schedule 1) in any given calendar month, Vanacy shall provide to the Customer a percentage-based refund of the monthly Fees paid by the Customer in respect of the affected Service(s) pursuant to the applicable Order in the calendar month in which the Service Level was not met, in accordance with the following table:

(HH:MM:SS)

(%)

00:00:01 – 00:45:00

No Service Credit

00:45:01 – 02:00:00

2.5%

02:00:01 – 05:00:00

5%

05:00:01 – 08:00:00

10%

08:00:01 – 12:00:00

20%

12:00:01 – 18:00:00

30%

18:00:01 – 24:00:00

40%

24:00:01 or greater

50%

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

4.3        Website Uptime

4.3.1 Subject to paragraphs 4.3.2 and 4.4 of this Schedule 2, for each full hour of Website Uptime falling below the Service Level set out in paragraph 2.2 of this Schedule 2 (excluding all Permitted Downtime, as defined in Schedule 1) in each calendar month, upon notification by the Customer Vanacy will provide the Customer with a refund of the amount of 5% of the Fees  (excluding any software licences) paid in respect of Vanacy Managed SysOps (excluding all Vanacy and/or AWS infrastructure costs, as applicable) pursuant to the applicable Order(s) during the calendar month in which the Service Level was not met (the “Website Uptime Service Credit”). For the avoidance of doubt, no fees (in whole or in part) payable in respect of software licenses shall be refunded to the Customer.

4.3.2 To receive the Website Uptime Service Credit:

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

(b)      Vanacy shall, following receipt of the notice set out in paragraph 4.3.2(a), compare the measurements and information provided by the Customer to the Website Uptime monitoring data recorded by Vanacy during the same period. For the avoidance of doubt, in the event of discrepancy or conflict between the information or measurements provided by the Customer and recorded by Vanacy, the information and measurements recorded by Vanacy shall take precedence and be used to calculate the applicable Service Credits (if any).

4.3.3 Following the completion of the actions at paragraph 4.3.2, Vanacy shall notify the Customer of either: (a) the issuance of the applicable Service Credit, or (b) the reasons for not providing the Service Credit (including, for example, as a result of the information or measurements recorded by Vanacy not entitling the Customer to a Service Credit).

4.3.4 Vanacy shall only be entitled to issue a Service Credit where the website unavailability information recorded by Vanacy would entitle the Customer to such Service Credit. Service Credits shall be awarded in accordance with the Service Credit Procedure set out in paragraph 4.4 of this Schedule 2.

4.4        Service Credit Procedure

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

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

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

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

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

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

4.4.5 The Service Credits set out in this paragraph 4 of Schedule 2 shall be the Customer’s sole and exclusive remedy in respect of any failure by Vanacy to meet any Service Levels set out in this Schedule 2.

SCHEDULE 3

DEDICATED PLATFORM SERVICE LEVELS

  1.       DEFINITIONS

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

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

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

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

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

Permitted Downtime” means downtime that occurs during or as a result of maintenance, which shall not constitute downtime for the purpose of calculating any Service Levels (including Network Availability, Packet Loss, and/or Server Availability) and/or associated Service Credits owed to the Customer by Vanacy pursuant to this Schedule 3;

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

Service Level” means the minimum level at which the Services shall be provided, as set out in the table at paragraphs 2.1 and 2.2 of this Schedule 3; and

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

  1.       SERVICE LEVELS

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

Measurement

Service Level

Measurement Location

Measurement Period

Network Availability

100% uptime

Backbone routers and switches within Vanacy’s data centres

Calendar month

Packet Loss

Less than 0.25% packet loss

Backbone routers and switches within Vanacy’s data centres

Calendar month

Connectivity

100% connectivity to upstream carriers

Backbone routers and switches within Vanacy’s data centres

Calendar month

Server Availability

99.99% uptime and availability

Power and network on the physical server

Calendar month

Power Availability

100% availability

Power delivered to the Power Supply of the provided server

Calendar month

Environment Availability

26C +/- 4C

20C +/- 2C

(depending on site)

Environmental monitoring by Vanacy’s Datacentre Partners

Each 24 hours beginning at midnight

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

Measurement

Service Level

Measurement Location

Website Uptime

99.99% uptime and availability

End user location

2.3        Network Availability & Packet Loss

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

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

2.4        Connectivity

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

2.5        Server Availability and Website Uptime

2.5.1 Servers shall be measured by Vanacy using the results of the monitoring during each Measurement Period, as described in paragraph 4 of Schedule 1, and deemed available unless the relevant Server becomes unreachable due to a power and/or network outage within Vanacy’s infrastructure.

2.5.2 Application Level Incidents (as defined in Schedule 1), such as website unavailability, are not subject to, or otherwise covered by, the Server Availability Service Level. The Server Availability Service Level measures the availability of power and network to the Servers stated in the relevant Order. Server Availability ensures the provided Server is powered on and accessible over the network.

2.5.3 In the event that a Server Availability outage leads to further issues, such other issues shall not constitute an outage under the Server Availability or any other Service Level.

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

2.6        Power Availability

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

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

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

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

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

(c)      any services that form part of the Services that are provided (in whole or in part) by Vanacy’s affiliates, subcontractors, partners, and other third parties (including Third Party Services, as defined in paragraph 3.1.1 below); and/or

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

2.7        Non-Compliance

2.7.1 Where Vanacy fails to meet the Server Availability Service Level in a given calendar month, Vanacy shall provide to the Customer a Service Credit in accordance with paragraph 5 of this Schedule 3.

  1.       HARDWARE FAILURE REQUIRING REPLACEMENT EQUIPMENT

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

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

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

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

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

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

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

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

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

  1.       SERVICE CREDITS

5.1        Network Availability, Packet Loss, Connectivity, Power Availability, and Environment Availability

5.1.1 Subject to paragraphs 5.1.2 and 5.4 of this Schedule 3, for each full hour of Network Availability, Packet Loss, Connectivity, Power Availability, and Environment Availability falling below the Service Levels set out in paragraph 2.1  of this Schedule 3 (excluding all Permitted Downtime, as defined in Schedule 1) in each respective Measurement Period (as applicable), upon notification by the Customer Vanacy will provide the Customer with a Service Credit of the amount of 5% of the Fees  (excluding any software licences) paid in respect of the affected Service(s) pursuant to the applicable Order(s) during the calendar month in which the Service Level was not met (the “Availability, Connectivity, and Packet Loss Service Credits”). For the avoidance of doubt, no fees (in whole or in part) payable in respect of software Licenses shall be refunded to the Customer.

5.1.2 To receive the Availability, Connectivity, and Packet Loss Service Credits:

(a)      the Customer must notify Vanacy in writing (by email to [email protected] specifying the Customer’s name and identity) of all dates and times of Server unavailability no later than the last day of the month immediately following the month in respect of which the Availability, Connectivity, and Packet Loss Service Credits is being claimed; and.

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

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

5.1.4 Vanacy shall only be entitled to issue a Service Credit where the Server unavailability information recorded by Vanacy would entitle the Customer to such Service Credit. Service Credits shall be awarded in accordance with the Service Credit Procedure set out in paragraph 5.2.2 of this Schedule 3.

5.2        Server Availability

5.2.1 Subject to paragraph 5.4 of this Schedule 3, where the Server Availability Service Level set out in paragraph 2.1 of this Schedule 3 is not met (excluding all Permitted Downtime, as defined in Schedule 1) in each respective Measurement Period (as applicable), Vanacy shall provide to the Customer a percentage-based refund of the monthly Fees paid by the Customer in respect of the affected Service(s) pursuant to the applicable Order in the applicable Measurement Period in which the Service Level was not met, in accordance with the following table:

(HH:MM:SS)

(%)

00:00:01 – 00:45:00

No Service Credit

00:45:01 – 02:00:00

2.5%

02:00:01 – 05:00:00

5%

05:00:01 – 08:00:00

10%

08:00:01 – 12:00:00

20%

12:00:01 – 18:00:00

30%

18:00:01 – 24:00:00

40%

24:00:01 or greater

50%

5.2.2 Service Credits shall be awarded in accordance with the Service Credit Procedure set out in paragraph 5.4 of this Schedule 3.

5.3        Website Uptime

5.3.1 Subject to paragraphs 5.3.2 and 5.4 of this Schedule 3, for each full hour of Website Uptime falling below the Service Level set out in paragraph 2.2 of this Schedule 3 (excluding all Permitted Downtime, as defined in Schedule 1) in each calendar month, upon notification by the Customer Vanacy will provide the Customer with a refund of the amount of 5% of the Fees  (excluding any software licences) paid in respect of Vanacy Managed SysOps (excluding all Vanacy and/or AWS infrastructure costs, as applicable) pursuant to the applicable Order(s) during the calendar month in which the Service Level was not met (the “Website Uptime Service Credit”). For the avoidance of doubt, no fees (in whole or in part) payable in respect of software Licenses shall be refunded to the Customer.

5.3.2 To receive the Network Availability Service Credit:

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

(b)      Vanacy shall, following receipt of the notice set out in paragraph 5.3.2(a), compare the measurements and information provided by the Customer to the Website Uptime monitoring data recorded by Vanacy during the same period. For the avoidance of doubt, in the event of discrepancy or conflict between the information or measurements provided by the Customer and recorded by Vanacy, the information and measurements recorded by Vanacy shall take precedence and be used to calculate the applicable Service Credits (if any).

5.3.3 Following the completion of the actions at paragraph 5.3.2, Vanacy shall notify the Customer of either: (a) the issuance of the applicable Service Credit, or (b) the reasons for not providing the Service Credit (including, for example, as a result of the information or measurements recorded by Vanacy not entitling the Customer to a Service Credit).

5.3.4 Vanacy shall only be entitled to issue a Service Credit where the website unavailability information recorded by Vanacy would entitle the Customer to such Service Credit. Service Credits shall be awarded in accordance with the Service Credit Procedure set out in paragraph 5.4 of this Schedule 3.

5.4        Service Credit Procedure

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

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

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

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

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

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

5.4.5 The Service Credits set out in this paragraph 5 of Schedule 3 shall be the Customer’s sole and exclusive remedy in respect of any failure by Vanacy to meet any Service Levels set out in this Schedule 3.

SCHEDULE 4

AWS SERVICES AND SERVICE LEVELS

  1.       DEFINITIONS

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

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

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

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

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

AWS Services” means the Amazon Web Services infrastructure to be provided to the Customer, which may include EC2, S3, RDS, and/or other products or services offered by AWS from time to time, as more specifically set out in the applicable Order:

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

AWS Service Levels” means the service levels to be provided by Amazon in respect of the AWS Services, as further set out in paragraph 3 of this Schedule 4;

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

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

Minimum Committed Spend” means:

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

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

(c)      where the Customer has purchased Vanacy Managed SysOps, the sum of the AWS Services Fees plus the greater of: (a) £1,000 (ex. VAT) in respect of Vanacy Support Fees, or (b) the percentage of the AWS Services Fees set out in the applicable Order,

to be incurred by the Customer in each calendar month;

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

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

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

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

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

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

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

Vanacy Support Fees” means the monthly Fee charged to the Customer by Vanacy in respect of the applicable Vanacy AWS Support, as set out in the applicable Order.

  1.       OVERVIEW

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

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

2.3     Customer warrants, represents and undertakes that it has read and approved AWS’s security policy as set out at: https://aws.amazon.com/security/.

  1.       AWS SERVICE LEVELS

3.1     Subject to paragraphs 3.2, 7.2.2, and 8.2 of this Schedule 4, the AWS Services are third party services that are not subject to, and do not benefit from, any Vanacy Service Levels (including those set out in Schedule 2 and/or 3).

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

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

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

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

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

  1.       AWS MENTOR

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

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

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

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

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

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

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

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

4.4.2 monthly in arrears for:

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

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

4.5     The Customer shall:

4.5.1 adhere at all times to the AWS maintenance windows, as may be notified to the Customer from time to time; and

4.5.2 obtain Vanacy’s prior written consent (not to be unreasonably withheld) before altering the AWS consolidated billing agreement (including where the Customer, in accordance with the terms of this Agreement: (a) terminates the applicable Order and/or this Agreement, and/or (b) terminates the AWS Services (or any part thereof)).

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

4.7     For the avoidance of doubt:

4.7.1 where the Customer purchases Vanacy AWS Priority or Vanacy Managed SysOps as part of AWS Mentor, the Service Levels set out in paragraphs 7.2.2 and 8.2 shall not apply; and

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

  1.       AWS MANAGER

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

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

5.2.1 set up a hosting environment for the Customer using AWS, where Vanacy purchases such AWS Services for and on behalf of the Customer; and

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

5.2.3 establish an AWS Account in the Customer’s name, and link such AWS Account to the Customer’s Vanacy account.

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

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

5.3.2 the Manager Services Fees, monthly in advance; and

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

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

  1.       Vanacy AWS ESSENTIALS (AWS MENTOR ONLY)

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

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

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

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

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

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

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

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

  1.          Vanacy AWS PRIORITY

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

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

7.1.2 24 x 7 server & applications monitoring and alerting;

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

7.1.4 server OS updates and security fixes.

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

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

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

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

  1.          Vanacy MANAGED SYSOPS

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

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

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

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

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

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

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

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

(f)       log aggregation.

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

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

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

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

8.3     For the avoidance of doubt:

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

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

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

SCHEDULE 5

AZURE SERVICES AND SERVICE LEVELS

  1.       DEFINITIONS

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

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

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

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

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

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

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

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

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

Minimum Committed Spend” means:

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

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

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

to be incurred by the Customer in each calendar month;

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

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

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

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

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

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

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

Vanacy Support Fees” means the monthly Fee charged to the Customer by Vanacy in respect of the applicable Vanacy Azure Support, as set out in the applicable Order.

  1.       OVERVIEW

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

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

2.3     Customer warrants, represents and undertakes that it has read and approved Microsoft Azure’s security policy as set out at: https://www.microsoft.com/en-us/TrustCenter/Security.

  1.       AZURE SERVICE LEVELS

3.1     Subject to paragraphs 3.2, 7.2.2, and 8.2 of this Schedule 5, the Azure Services are third party services that are not subject to, and do not benefit from, any Vanacy Service Levels (including those set out in Schedule 2 and/or 3).

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

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

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

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

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

  1.       AZURE MENTOR

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

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

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

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

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

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

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

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

4.4.2 monthly in arrears for:

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

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

4.5     The Customer shall:

4.5.1 adhere at all times to the Azure maintenance windows, as may be notified to the Customer from time to time; and

4.5.2 obtain Vanacy’s prior written consent (not to be unreasonably withheld) before altering the Azure consolidated billing agreement (including where the Customer, in accordance with the terms of this Agreement: (a) terminates the applicable Order and/or this Agreement, and/or (b) terminates the Azure Services (or any part thereof)).

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

4.7     For the avoidance of doubt:

4.7.1 where the Customer purchases Vanacy Azure Priority or Vanacy Managed SysOps as part of Azure Mentor, the Service Levels set out in paragraphs 7.2.2 and 8.2 shall not apply; and

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

  1.       AZURE MANAGER

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

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

5.2.1 set up a hosting environment for the Customer using Azure, where Vanacy purchases such Azure Services for and on behalf of the Customer; and

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

5.2.3 establish an Azure Account in the Customer’s name, and link such Azure Account to the Customer’s Vanacy account.

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

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

5.3.2 the Manager Services Fees, monthly in advance; and

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

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

  1.       Vanacy AZURE ESSENTIALS (AZURE MENTOR ONLY)

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

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

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

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

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

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

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

  1.          Vanacy AZURE PRIORITY

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

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

7.1.2 24 x 7 server & applications monitoring and alerting;

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

7.1.4 server OS updates and security fixes.

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

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

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

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

  1.          Vanacy MANAGED SYSOPS

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

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

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

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

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

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

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

(e)      change management; and

(f)       log aggregation.

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

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

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

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

8.3     For the avoidance of doubt:

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

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

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

SCHEDULE 6

GCP SERVICES AND SERVICE LEVELS

  1.       DEFINITIONS        

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

GCP” means Google Cloud Platform.

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

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

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

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

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

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

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

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

Minimum Committed Spend” means:

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

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

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

to be incurred by the Customer in each calendar month;

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

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

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

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

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

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

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

Vanacy Support Fees” means the monthly Fee charged to the Customer by Vanacy in respect of the applicable Vanacy GCP Support, as set out in the applicable Order.

  1.       OVERVIEW

2.1     This Schedule 6 sets out the Services and Service Levels that shall be provided by Vanacy where the Customer purchases, through a duly executed Order, either GCP Mentor or GCP Manager.

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

2.3     Customer warrants, represents and undertakes that it has read and approved GCP’s security policy as set out at: https://cloud.google.com/security/.

  1.       GCP SERVICE LEVELS

3.1     Subject to paragraphs 3.2, 7.2.2, and 8.2 of this Schedule 6, the GCP Services are third party services that are not subject to, and do not benefit from, any Vanacy Service Levels (including those set out in Schedule 2 and/or 3).

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

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

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

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

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

  1.       GCP MENTOR

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

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

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

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

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

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

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

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

4.4.2 monthly in arrears for:

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

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

4.5     The Customer shall:

4.5.1 adhere at all times to the GCP maintenance windows, as may be notified to the Customer from time to time; and

4.5.2 obtain Vanacy’s prior written consent (not to be unreasonably withheld) before altering the GCP billing (including where the Customer, in accordance with the terms of this Agreement: (a) terminates the applicable Order and/or this Agreement, and/or (b) terminates the GCP Services (or any part thereof)).

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

4.7     For the avoidance of doubt:

4.7.1 where the Customer purchases Vanacy GCP Priority or Vanacy Managed SysOps as part of GCP Mentor, the Service Levels set out in paragraphs 7.2.2 and 8.2 shall not apply; and

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

  1.       GCP MANAGER

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

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

5.2.1 set up a hosting environment for the Customer using GCP, where Vanacy purchases such GCP Services for and on behalf of the Customer; and

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

5.2.3 establish a GCP Account in the Customer’s name, and link such GCP Account to the Customer’s Vanacy account.

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

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

5.3.2 the Manager Services Fees, monthly in advance; and

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

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

  1.       Vanacy GCP ESSENTIALS (GCP MENTOR ONLY)

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

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

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

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

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

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

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

  1.          Vanacy GCP PRIORITY

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

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

7.1.2 24 x 7 server & applications monitoring and alerting;

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

7.1.4 server OS updates and security fixes.

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

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

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

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

  1.          Vanacy MANAGED SYSOPS

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

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

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

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

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

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

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

(e)      change management; and

(f)       log aggregation.

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

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

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

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

8.3     For the avoidance of doubt:

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

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

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

SCHEDULE 7

Vanacy CONSULTING

  1.          DEFINITIONS  

1.1     In this Schedule 7, the following words shall have the following meanings:

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

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

  1.             OVERVIEW

2.1     This Schedule 7 sets out additional terms and conditions that shall apply to the Consultancy Services provided by Vanacy under the Terms and Conditions and where the Customer purchases, through a duly executed Order, the Consultancy Services.

2.2     The terms of this Schedule 7 shall apply in addition to the Terms and Conditions, and together with the Order shall govern the Statement of Work and form the contract for the Consultancy Services.

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

  1.       Vanacy CONSULTANCY SERVICES

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

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

3.3     Vanacy warrants that:

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

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

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

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

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

  1.       CUSTOMER RESPONSIBILITIES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1.       FEES AND EXPENSES

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

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

  1.       CANCELLATION AND POSTPONEMENT

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

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

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

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

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

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

  1.       TERMINATION

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

Schedule 8

DATA PROTECTION AND SECURITY

  1.          DEFINITIONS:

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

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

1.3     “Data Protection Laws” means the Data Protection Act 1998, and from 25 May 2018, the General Data Protection Regulation ((EU) 2016/679) (“GDPR”), and the Electronic Communications (EC Directive) Regulations 2003, and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time.

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

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

  1.       CUSTOMER OBLIGATIONS

2.1     The Customer will:

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

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

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

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

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

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

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

  1.       RECORDS AND WRITTEN INSTRUCTIONS

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

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

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

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

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

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

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

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

  1.       SECURITY MEASURES

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

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

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

  1.       NATURE AND PURPOSE OF DATA PROCESSING

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

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

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

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

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

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

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

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

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

  1.          CATEGORIES OF DATA SUBJECTS AND TYPES OF PERSONAL DATA

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

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

  1.       Vanacy OBLIGATIONS

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

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

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

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

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

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

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

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

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

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

7.2     The Customer consents to Vanacy appointing the applicable third-party processors set out in Schedules 4, 5 and 6 as necessary to provide those Services.

  1.         Vanacy PERSONNEL

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

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

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

  1.       DATA SUBJECT REQUESTS

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

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

  1.     ASSISTANCE

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

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

  1.     AUDIT

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

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

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

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

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

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

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

  1.     SUB PROCESSOR

12.1   Information about the locations of Vanacy’s data centres is available at https://www.Vanacy.com/compliance/gdpr (as may be updated by Vanacy from time to time).

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

12.3   When engaging any Sub-Processor, Vanacy will:

12.3.1   ensure via a written contract that:

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

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

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

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

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

  1.     TRANSFERS OF DATA OUT OF THE EEA

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

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

  1.     DISCLOSURE OF CUSTOMER DATA

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

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