Secure, scalable container hosting - Terms of Service

30 July 2020

  1. Parties

    1. This agreement is between The Dextrous Web Ltd, a company registered in England and Wales under number 6617101, trading as “dxw digital”, and the organisation or person specified on the order summary accompanying this document.
  2. Definitions

    Emergency Support Ticket
    An Emergency Support Ticket is a Support Ticket created when an email is sent to support-emergency@dxw.com. Its creation will result in alerts being sent to members of dxw digital staff at any time of day or night.
    Container hosting platform
    The software and hardware infrastructure,, on which dxw digital will scale and host your website.
    Overprovisioned Capacity
    Overprovisioned Capacity is a quantity of computing time, or any other resource, which is made available to your website but is in excess of the quantity we believe your website will require. It is allocated in order to reduce the risk of failure when websites are launched whose capacity requirements are uncertain.
    A Proposal is a document containing the information listed in clause 3.2.
    Service Level Agreement
    Service Level Agreement sets out our responsiveness targets.
    Acceptable Usage Policy
    Acceptable Usage Policy (AUP) sets out restrictions on the way the service may be used.
    Service Usage
    Service Usage is the accumulated quantity of hours of computing time and gigabytes of data stored or transferred in a given period.
    Support Ticket
    A Support Ticket is a task, created by completing an online form or sending an email to support@dxw.com, which will be assigned to a member of staff at dxw digital for their attention or action.
    Time Allowance
    The Time Allowance is a notional quantity of time allocated for use in providing services under this contract.
  3. Proposal

    1. Before hosting your service, dxw digital will provide a Proposal.
    2. The Proposal will contain:

      1. A description of the steps dxw digital has taken to make an initial assessment of the server capacity your website is likely to require;
      2. A recommendation for the number and size of the containers you will need, the size of your database and your initial file storage;
      3. Details of Overprovisioned Capacity, if any;
      4. A statement of the support dxw digital will provide: Managed or Managed plus;
      5. A description of the steps dxw digital has taken to make an initial assessment of the support your website will require, and thus to determining an initial Time Allowance.
      6. A breakdown of dxw digital’s predicted monthly fees, showing separately the fees for infrastructure, support, and any other services;
      7. A breakdown of any costs to migrate your website onto our container hosting service, if applicable;
      8. Anything else that we have agreed to provide as part of the service.
    3. The proposal dxw digital provides will represent our best understanding of the hosting requirements that you have, at the time it was written. By accepting our proposal, you indicate that you:

      1. Agree that our recommendations are appropriate based on the information available;
      2. Understand that the breakdown of fees in the Proposal is a prediction based on the assumptions made in the proposal;
      3. Understand that the total fees over the life of the contract may vary according to your Service Usage and your instructions.
  4. The service

    1. dxw digital will provide the following as part of this contract:

      1. A hosting service which makes your service available for access over the internet;
      2. Backups and backup restoration;
      3. Storage and deployment of your website’s source code;
      4. Availability monitoring and response;
      5. Operating system and infrastructure upgrades and maintenance;
      6. A support helpdesk (24 hours a day for emergencies with support for non-emergencies during our office hours.
    2. If your proposal specifies that the website we host will be Managed Plus, dxw digital will also provide the following services as part of this contract, in addition to the services specified in clause 4.1 and 4.2:

      1. Monitoring of production logs and metrics for issues of concern, including but not limited to those which may be indicators of compromise;

      2. Quarterly review meetings during which we will discuss aspects of your site’s operation and recommend improvements; for example, on its security, performance, effectiveness, responsiveness, accessibility, maintainability or any other thing which we believe may be relevant;
      3. Faster (“enhanced”) response times to tickets, as described in our Service Level Agreement.
    3. Unless otherwise agreed in writing, dxw digital will not, under this contract, provide any service not specified in clause 4.1, 4.2 or 4.3, including but not limited to:

      1. Support for any third-party services upon which your service relies;
      2. Changes to your website which constitute new functionality.
    4. Our service must only be used in accordance with its Acceptable Usage Policy, which forms part of this agreement.

  5. Availability

    1. You agree that occasional unavailability of your website is not something that can reasonably be avoided.

    2. Nonetheless, dxw digital will make every reasonable effort to ensure that your website is accessible over the internet 100% of the time, excluding periods of planned maintenance.

    3. If despite dxw digital’s reasonable efforts your website is unavailable outside of a planned maintenance period, dxw digital will on request refund or waive the infrastructure fees for any period of unavailability longer than one hour.

    4. Clause 5.3 shall not apply if the unavailability is a result of events that are beyond dxw digital’s control.

    5. From time to time, we may need to make your website unavailable in order to carry out essential maintenance. dxw digital will make every reasonable effort to give you as much notice as possible when planned unavailability will occur, and will complete such work outside the hours of 10:00-18:00 Monday-Friday whenever it is reasonably possible.

  6. Enhancement of the service

    1. dxw digital may at any time make changes to without giving notice. We will inform you as soon as is practical of any change which may have an impact upon your use of our service.

    2. dxw digital will not make any changes that remove or materially impair the supply of the services described in clauses 4.1, 4.2 and 4.3 of this contract.

    3. Changes made by dxw digital under this clause will normally have no detectable effect on the operation of your website. If you make a reasonable request to us to fix a problem with the operation of your website that has arisen out of any change we have made to the container hosting platform, we will make reasonable efforts to fix the reported problem.

  7. Support

    1. At any time, you may create a Support Ticket.

    2. dxw digital will make reasonable efforts to respond to Support Tickets within the period of time specified in our Service Level Agreement.

    3. All contact regarding the services dxw digital provides as part of this contract must be made via Support Tickets.

    4. You understand that any contact you make with us that is not via a Support Ticket may be overlooked or disregarded and that any consequent failure on our part to respond to you or to take or not take some action will not be a breach of this contract.

    5. At any time, you may create an Emergency Support Ticket if you are experiencing a problem that meets the criteria for an emergency as described in the Service Level Agreement.

    6. If you create Emergency Support Tickets in situations which do not meet the criteria for an emergency, dxw digital may withdraw your ability to submit Emergency Support Tickets.

    7. You understand that if you are experiencing an emergency but do not create an Emergency Support Ticket, our response time may be considerably increased and your service may be disrupted for a longer period as a result.

  8. Time allowance

    1. dxw digital’s initial fee for support is calculated from the Time Allowance, which is based on our assessment of your website’s likely support requirements, as stated in the proposal.

    2. dxw digital will track time spent providing the services specified in this contract in sufficient detail to be able to provide an approximation of the time required to service your website in any given month.

    3. In any given month, dxw digital will carry out all of the services provided under this contract with no additional fee, provided that the Time Allowance has not been exceeded.

    4. In any given month, if dxw digital chooses to complete work in excess of the Time Allowance, no additional fee will be payable. Any such work is completed at dxw digital’s absolute discretion and the fact that dxw digital does so on one occasion will not imply that dxw digital will do so on subsequent occasions.

    5. In any given month, if dxw digital chooses not to complete work in excess of the Time Allowance, we may notify you, and, subject to our availability, will complete that work if dxw digital’s fees for the additional work are paid. dxw digital will not charge a fee for any such work without your authorisation.

    6. The Time Allowance may be varied by agreement, and with a corresponding change to dxw digital’s fees.

    7. dxw digital will not ordinarily agree to a reduction in the Time Allowance if to do so would impede our ability to provide services under this agreement to a professional standard.

    8. If your Time Allowance is regularly exceeded, or almost exceeded, dxw digital may notify you that this is the case, and request that the Time Allowance be increased.

    9. If you do not agree to increase the Time Allowance, dxw digital may require you to reduce the workload that your website generates; for example, by submitting fewer Support Tickets or carrying out remedial development work at your own cost.

    10. The Time Allowance is calculated per month. Unused time is not carried over and may not be used in any subsequent month.

    11. dxw digital may, for a fee, be able to advise you on alternative approaches to managing your website that could reduce your operational costs.

    12. The Time Allowance will have no bearing on dxw digital’s provision of the services detailed in clauses 4.1.1, 4.1.2 and 4.1.3.

  9. Suspension

    1. dxw digital may suspend the services provided as part of this agreement if:

      1. You fail to pay invoices whose total value is greater than or equal to our total fee for the preceding two months’ usage of the container hosting service;
      2. As a last resort, it is necessary for us to do so in order to protect your data or another user’s security, or to protect other users of the internet.
    2. In the event that the services are suspended, dxw digital will replace your website with a message stating that your website is down for maintenance.

  10. Required Materials

    1. In order to resolve Support Tickets, there will occasionally be Required Materials that you must provide.
    2. You must provide Required Materials as soon as is reasonably practical.
    3. If work on a Support Ticket cannot take place without Required Materials, we will suspend work on that ticket.
  11. Quality

    1. dxw digital will deliver work of a professional standard.
    2. dxw digital is insured against professional negligence to a value of £2,000,000.
  12. Limitation of liability

    1. dxw digital cannot guarantee perfect reliability.
    2. dxw digital will deliver work that is as robust and reliable as is reasonably practical.
    3. You acknowledge that all software of non-trivial size contains bugs, including security vulnerabilities, and that it is not reasonably practical to deliver bug-free software.
    4. dxw digital will not be liable for any loss of profits or reputation that you suffer, directly or indirectly, as a consequence of any failure of the hosting infrastructure.
    5. You agree that it is your responsibility to ensure that you put in place measures that make you able to operate in the event of any such failure. dxw digital can work with you to design or implement such measures at your request for an agreed fee.
    6. Nothing in this agreement should be read as excluding our liability for death or personal injury caused by our negligence.
    7. In any event, dxw digital’s total liability under this agreement is limited to the lesser of:

      1. The total fees for a year of the service;
      2. The insured sum.
  13. Confidentiality

    1. dxw digital believe that it is best to be open.
    2. dxw digital will generally not keep the details of your website confidential, including by not limited to:

      1. The fact that dxw digital has a commercial relationship with you;
      2. The nature and goals of your website;
      3. The cost to host your website.
    3. However, dxw digital do regard the following as confidential:

      1. The specific content of documents or content that will be published on any of your websites that is not yet publicly available, most especially the content of forthcoming strategy or policy announcements;
      2. Personal data dxw digital acquires during the course of hosting your website;
      3. The content or existence of any document you send to us that is protectively marked.
    4. If you have additional confidentiality requirements, you must tell us in writing as soon as is reasonably practical.
  14. Intellectual property of the service

    1. Except as provided for in clause 16, nothing in this agreement is intended to transfer any intellectual property right.

    2. To the extent that it is able (either through ownership or because it is licensed under a licence that permits sublicensing) dxw digital licenses all intellectual property rights in this service to you for the sole purpose of carrying out this agreement, and only to the extent necessary for you to carry out this agreement.

    3. To the extent that it is not able to give the licence in clause 15.2 above, dxw digital has taken reasonable steps to check that all intellectual property rights owned by third parties on our container hosting platform permit dxw digital and you to enter into this agreement and for you to operate your website through our container hosting platform as envisaged under this agreement.

    4. If, under this agreement, we create works, such as computer programs and documentation, dxw digital retains all Intellectual Property rights in the works, and licences their use to you per clause 15.2 above.

  15. Intellectual property in your website

    1. To the extent that you are able, you grant us a sufficient licence over any material you supply to us to allow us to host your website on the service for the duration of this agreement.

    2. To the extent that you are unable to grant the licence under clause 16.1 above, you shall take all reasonable steps to ensure that any material supplied to us that is affected by third party intellectual property rights, may be used as part of the operation of your website under this agreement.

    3. dxw digital may place links or representative screenshots of your service along with your name or logo on a dxw digital website or within other promotional material. To the extent that these materials are owned by you, you agree to grant us a perpetual, irrevocable, non-exclusive, royalty-free licence that authorises this use.

  16. Payments

    1. dxw digital’s fees for infrastructure, as specified in your proposal, will be calculated every calendar month based on your Service Usage and billed in arrears.

    2. dxw digital’s fees for support will be billed each month in arrears.

    3. Invoices are payable within 14 days.

    4. dxw digital may charge interest on overdue invoices at 5% over the Barclay’s Bank base rate.

    5. You shall make payment by BACS transfer or (if agreed in advance with dxw digital) credit or debit card. dxw digital does not accept cheques.

    6. Credit and debit card payments are subject to a 2.5% fee.

    7. dxw digital issues invoices by email. If you require a paper invoice to be issued, dxw digital may charge an additional fee.

    8. VAT (where applicable) is payable on, and in addition to, all sums due under this agreement.

  17. Circumstances beyond our control

    1. dxw digital will not be liable for any failure caused by industrial action or other circumstances beyond our reasonable control.
  18. Termination

    1. Either party may terminate this contract at any time by giving 30 days’ notice in writing.

    2. dxw digital may terminate this contract without notice if you are in material breach.

    3. At the end of this contract, dxw digital will issue a final invoice for your usage of the container hosting platform up to the date of termination, which you shall pay.

    4. In the event that the Proposal includes a service which takes place less frequently than monthly but whose cost is apportioned per month:

      1. If the service has already been carried out, your final invoice will include a charge equal to the amount of the fees for that service not yet accrued;
      2. If the service has not already been carried out, no refund will be due for the fees accrued at the time of termination.
  19. Data processing

    1. Upon agreeing to these terms, dxw digital will become a data processor for your WordPress website. This agreement is a Data Processing Agreement for that service. This means that dxw digital will;

      1. have adequate information security in place;
      2. not use sub Processors without consent of the Controller;
      3. cooperate with the relevant Data Protection Authorities in the event of an enquiry;
      4. report data breaches to the Controller without delay;
      5. keep records of all processing activities undertaken outside your control;
      6. comply with EU trans border data transfer rules ;
      7. help the Controller to comply with data subjects rights;
      8. assist the Data Controller in managing the consequences of data breaches;
      9. delete or return all personal data at the end of the contract at the choice of the Controller;
      10. inform the Controller if the processing instructions infringe GDPR.
    2. We will process data for which you are the controller by storing, amending, retrieving, collecting and displaying data that is used as part of the WordPress service that we host on your behalf.
    3. This information will be stored for up to 6 months after the end of the contract. This can be expedited and extended subject to prior agreement
    4. You will ensure that you have sufficient measures in place to protect any data you hold.
    5. Any data we process on your behalf will be held within the European Union.
  20. Changes to these terms

    1. dxw digital may vary these terms at any time upon giving you prior written notice.

    2. If any proposed change in these terms puts you at a material disadvantage you may send us a written objection, in which case, the change will not be binding on you.

    3. Any such written objection must be sent within 14 days of the the notice dxw digital sends you.

    4. This clause does not apply if it would violate the terms of a framework agreement of which this agreement forms a part.

  21. Proper law

    1. This agreement is governed by English law and the parties agree that any disputes arising from the agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.
  22. Email

    1. Any reference to “in writing” includes email and excludes fax transmissions.
  23. Headings

    1. The section headings contained in this agreement are for reference only and shall not in any way affect the meaning or interpretation of this agreement.
  24. Whole agreement

    1. With the exception of any framework agreement of which this agreement forms a part, this agreement and the order summary that accompanies it constitute the entire agreement between us with respect to the Project, and replaces any prior oral or written agreement which may exist.