TERMS & CONDITIONS
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Freedomtech Solutions Universal Terms of Service
A. Overview
This Universal Terms of Services Agreement (this “Agreement”, “TOS”) is entered into by and between Freedomtech Solutions Ltd whose registered address 85 Great Portland St, London W1W 7LT, UK (“Freedomtech Solutions”) and You, and is made effective as of the starting date of Your use of our services or the date of the electronic acceptance of this Agreement.
This Agreement sets forth the general terms and conditions of Your use of our services and the products and Services purchased or accessed directly (individually and collectively, the “Services”).
Your use of our services and Your electronic acceptance of this Agreement signifies that You have read, understood, acknowledged and agreed to be bound by this Agreement, along with the following policies and the applicable product/services agreements, which are incorporated herein by references below. For the avoidance of doubt, all references to the “Lease”, “Lessee”, “IP Numbers” in this Agreement are definitions described in Freedomtech Solutions Terms of Services.
The terms “We”, “Us” or “Our” shall refer to Freedomtech Solutions. The terms “You”, “Your”, “User” or “Customer” shall refer to any individual or entity who accepts this Agreement, has access to Your account or uses the Services.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
Freedomtech Solutions may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon activation of our services. Freedomtech Solutions will provide advance notice with the updated version of this Agreement, any policy or agreement at least 30 (thirty) days before they are due to take effect (Effective date). Notice of any such amendments may be given via email or Account or by any other means allowed under the Agreement. If You do not agree with the proposed updated version of this Agreement, any policy or agreement, You may notify Freedomtech Solutions at any time during the advance notice period that You wish to terminate the Agreement, policy or any other agreement. In these circumstances the termination will take effect from the Effective date, and We will discontinue providing Services under terminated Agreement, policy, or any other agreement. However, if You do not contact us during the advance notice period to notify us to the contrary, You will be deemed to have accepted the changes and they will take effect from the Effective date.
Your use of our Services after such changes or modifications have been made shall constitute Your acceptance of this Agreement as last revised. If You do not agree to be bound by this Agreement as last revised, do not use our Services. In addition, Freedomtech Solutions may occasionally notify You of the changes or modifications to this Agreement by email or through the Account.
It is therefore Your responsibility to make sure Your account (“Account”) information (mailing address, telephone number and email address) is up to date at all times. Freedomtech Solutions does not take any liability or responsibility for Your failure to receive a notification if such failure results from inaccurate information provided by You.
B. Eligibility; Authority
These Services are available only to Users who can form legally binding contracts under applicable law. By using the Services, You represent and warrant that You are (i) at least eighteen (18) years of age, or (ii) otherwise recognized as being able to form legally binding contracts under applicable law.
If You are entering into this Agreement on behalf of a corporate entity, You represent and warrant that You have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “You”, “Your”, “User” or “Customer” shall refer to such corporate entity. If, after Your electronic acceptance of this Agreement, Freedomtech Solutions finds that You do not have the legal authority to bind such corporate entity, You will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment and penalties obligations.
Freedomtech Solutions shall not be liable for any loss or damage resulting from Freedomtech Solutions’ reliance on any instruction, notice, document, or communication reasonably believed by Freedomtech Solutions to be genuine and originating from an authorized representative of Your corporate entity.
If there is any reasonable doubt about the authenticity of any such instruction, notice, document, or communication, Freedomtech Solutions reserves the right (but undertakes no duty) to require additional authentication from You.
You further agree to be bound by the terms of this Agreement for transactions entered into by You, anyone acting as Your agent and anyone who uses Your Account or the Services, whether or not authorized by You. Users added by You to the organization will be held to have the same rights and eligibility as the creator of the organization.
C. Accounts; Transfer of data abroad
In order to use some of the Services, You will have to provide full business details so we may raise an Account and file mandatory documents.
You represent and warrant to Freedomtech Solutions that:
2.1 all information You submit is accurate, current and complete, and
2.2 You will keep Your Account information accurate, current, complete and updated;
2.3 You are the owner of the primary email address used to set up the Account;
2.4 You will not pass, sell, or transfer the ownership of the Account to another person or entity in any form.
If Freedomtech Solutions has reason to believe that Your Account information is untrue, inaccurate, out-of-date or incomplete, Freedomtech Solutions reserves the right, in its sole and absolute discretion, to suspend or terminate Your Account, and agreement.
You agree that You are solely responsible (to Us and others) for all the activities that occur under Your Account. Acts when multiple Accounts are made to bypass any restrictions or commit illegal activities will result in permanent termination of all Services. We reserve the right to disable Your Account at any time if in Our reasonable opinion You have failed to comply with any of the provisions of these TOS, including the provisions of our Acceptable Use Policy.
You are solely responsible for the activities that occur on Your Account, whether authorized by You or not, and You must keep Your Account information secure, including without limitation any customer number/login, password, Payment Method(s) (as defined below).
You must notify Freedomtech Solutions immediately of any breach of security or unauthorized use of Your Account.
Freedomtech Solutions will not be liable for any loss You incur due to any unauthorized use of Your Account. You, however, may be liable for any loss Freedomtech Solutions or others incur caused by Your Account, whether caused by You, or by an authorized person, or by an unauthorized person.
D. Freedomtech Solutions may occasionally notify You about changes or modifications of this Agreement, any policy or agreement via your Account contact details.
E. Privacy policy
Your use of the Services is subject to Our Privacy Policy.
F. Indemnity
You agree to protect, defend, indemnify and hold harmless Freedomtech Solutions and its officers, directors, employees, agents, and third-party Services providers from and against any and all claims, demands, costs, expenses, losses, liabilities, and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Freedomtech Solutions directly or indirectly arising from:
Your use of Services;
Your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or
Your violation of any third-party rights, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or Your use of the Services.
G. Suspension and termination
Suspension
Freedomtech Solutions reserves the right to suspend and/or terminate the Services for the User who either deliberately and intentionally or unintentionally violates the Agreement.
Freedomtech Solutions reserves the right not to contact the User prior to suspension. However, Freedomtech Solutions may contact the User prior to suspension in an attempt to stop and avoid further adverse actions carried out by the User or third parties through the User’s resources.
The User must act immediately after receiving a notice from Freedomtech Solutions and take necessary actions. A timeframe may be specified by Freedomtech Solutions for the User to restore compliance with this Agreement or any other incorporated Agreement, Policy, Annex.
Termination
Services may be canceled by either party – Freedomtech Solutions or the User according to the provisions specified in Freedomtech Solutions Terms of Service. However, Freedomtech Solutions cannot cancel the Service on the User’s behalf.
In cases where the Service was used deliberately and intentionally to cause damage to any property in any shape or form, or the payment is overdue, Freedomtech Solutions has the right to terminate the Service immediately, with or without prior notification. If the User acts deliberately and intentionally to cause damage to any property in any shape or form, a refund will not be applicable.
The Services are terminated immediately if the User violates AUP or is performing any kind of other illegal activities.
Stopping the announcement of the IP Numbers after the termination of Services is a sole responsibility of Lesse, therefore, if after termination/suspension of Services Lessee keeps announcing IP Numbers, it is considered as violation of AUP and Lessee will be held responsible for these actions, which will be considered as hijacking. In case of such violation Lessee by the decision of Freedomtech Solutions could be: (a) blocked from further IP reassignments; (b) abuse management fee could be applied; (c) User could be obliged to pay a compensation to the IP Holder for the unauthorized usage of IP resources.
I. Notice
All notices to a party shall be in writing and shall be made either via email or conventional mail. We may broadcast notices or messages through the Services to inform You of changes to the TOS, the Services, or other matters of importance; such broadcasts shall constitute notice to You. You may notify us via email at operations@Freedomtech.solutions.
J. Licenses
We grant You a limited license to access and use the Services and not to download (other than page caching) or modify it, or any portion of it, except with Our express written consent. This license does not include any resale or commercial use of the Services, including its contents; any collection and use of any IP listings or prices; any derivative use of the Services, including its contents; any downloading or copying of account information for the benefit of another user; or any use of data mining, robots, or similar data gathering and extraction tools. The Services, including the content therein, may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent.
K. Links to third-party sites
Information related to Services provided may contain links to third-party websites that are not owned or controlled by Freedomtech Solutions.
Freedomtech Solutions takes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, Freedomtech Solutions does not censor or edit the content of any third-party websites.
By using the Services, You expressly release Freedomtech Solutions from any and all liability arising from Your use of any third-party website. Accordingly, Freedomtech Solutions encourages You to review the terms and conditions, privacy policies, and other governing documents of each website that You may visit.
L. User conduct
You are solely responsible for the contents of Your transmissions through the Services, including any content transmitted through Your account, if applicable. Your use of the Services is subject to all applicable local, state, national and international laws and regulations.
You agree: (1) to comply with U.S. and applicable international law regarding the transmission of technical or other data exported from Your country through the Services; (2) not to use the Services for illegal purposes; (3) not to interfere or disrupt networks connected to the Services; and (4) to comply with all laws, regulations, policies and procedures of networks connected to the Services.
The Services makes use of the Internet to send and receive certain messages; therefore, Your conduct is subject to Internet laws, regulations, policies and procedures. You will not use the Services for chain letters, junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process.
You agree not to transmit through the Services any unlawful, harassing, libelous, abusive, threatening, or harmful content or language of any kind or nature. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited.
You shall not interfere with another person’s use of the Services or another entity’s use and enjoyment of similar Services.
We may review user account activity, such as private messages, account details and order pages, upon receipt of complaints from other users. In addition, We may, in Our sole discretion, immediately terminate Your Account, if any, should Your conduct fail to conform with the TOS. Examples of conduct that may result in immediate account termination include: repeat or otherwise substantial infringement of RIR policies or regulations; opening new user accounts after original account has been banned.
M. Disclaimer of warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) WE MAKE NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY SERVICES, OR INFORMATION OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
(d) WE DO NOT PROMOTE OR CONDONE ANY IDEAS OR MESSAGES CONTAINED IN THE USER-GENERATED CONTENT AVAILABLE THROUGH THE SERVICES.
N. Limitation of liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES.
O. Violations
To report violations of the TOS, please email us at operations@freedomtech.solutions. To expedite the processing of Your report, please include as many details as possible about the violation.
P. Fees and payments
You acknowledge and agree that Your Payment Method will be charged and processed by Freedomtech Solutions LTD.
You agree to pay any and all prices and fees due for Services purchased as per Freedomtech Solutions’ request/terms.
The next day after the payment is overdue the Services will be permanently terminated and Freedomtech Solutions will not be responsible for any service disruption resulting from the service termination.
All prices and fees are non-refundable unless otherwise expressly noted in the Freedomtech Solutions Terms of Services, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term.
Freedomtech Solutions expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be communicated and effective immediately without need of further notice to You.
Confirmation of the order will be sent to the email address on file of Your Account.
Freedomtech Solutions also reserves the right to charge IP LESSEE reasonable administrative, processing, abuse management, cancelation or penalty fees for:
20.1. tasks Freedomtech Solutions may perform outside the normal scope of its Services,
20.2. additional time and/or costs Freedomtech Solutions may incur in providing its Services, and/or;
20.3. Your noncompliance with this Agreement or Acceptable Use Policy (as determined by Freedomtech Solutions in its sole and absolute discretion).
Typical administrative or processing fee scenarios include, but are not limited to:
21.1. customer Services issues that require additional personal time or attention;
21.2. recouping any and all costs and fees, including the cost of Services, incurred by Freedomtech Solutions as the results of chargebacks or other payment disputes brought by You, Your bank or Payment Method processor;
21.3. fees arising from management or handling of the complaints related to the alleged violations of the Acceptable Use Policy.
These administrative fees or processing fees will be billed to the Payment Method You have on file with Freedomtech Solutions.
All prices are in US dollars and all charges will be processed in US dollars.
The total amount due for payments submitted with a non-US credit card may depend upon applicable foreign exchange rates, taxes, and fees applied by Your bank. You are solely responsible for all the fees and taxes associated with all the purchases.
In addition, You acknowledge and agree that You may be charged Value Added Tax (“VAT”), Goods and Services Tax (“GST”), or other localized fees and/or taxes, based on Your bank and/or the country indicated in Your billing address section.
Freedomtech Solutions does not tolerate any type of fraud regarding the payment for the Services. If any illegal actions occur, the Services are terminated, and the User is reported to legal authorities without prior notice.
Chargebacks, reversals and retrievals
Chargebacks are not considered as an acceptable form of refunding.
All payment refunds must be requested in accordance to the refund provisions instead of issuing a chargeback or opening a transaction dispute.
Chargebacks and/or disputes will be considered as payment fraud and will be subject to full investigation.
Freedomtech Solutions will use all information including the User’s Account profile, history data and any communication between the Freedomtech Solutions and the User in order to appeal the chargeback or other payment dispute.
If Freedomtech Solutions receives a chargeback or a payment dispute from a bank, via any payment gateway, all Services related to the Account of the User may be suspended without prior notice.
For every instance of chargeback or any other form of transaction retrieval, the User agrees to pay a USD 20 administration fee.
To restore the Services, which were suspended due to a chargeback, a reversal or a retrieval, the User is bound to make sure that all chargebacks, reversals and/or retrievals would be withdrawn. Moreover, any financial mismatch caused by the chargebacks, reversals and/or retrievals must be fully covered by the User before the Services are restored.
Q. Titles and headings; Independent covenants; Severability
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.
Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement.
If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
R. Contact information
If You have any questions about this Agreement, please contact us by email or regular mail at the following address:
Freedomtech Solutions Ltd
85 Great Portland St, London W1W 7LT, UK
Appendix A to universal terms of service agreement
Freedomtech Solutions terms of service
By using Our Services, You agree to be bound by these Terms of Service, Acceptable Use Policy, Privacy Policy, and additional terms and conditions as may be provided to You on Our website before You order a Service. If any provisions of those documents cannot be read in any manner other than the one that produces an irreconcilable conflict between or among them, the following hierarchy of precedence will be in order for purposes of interpreting and applying the provisions of these Terms of Service: (1) first, additional terms and conditions as may be provided to You on our website; (2) second, Privacy Policy; (3) third, Acceptable Use Policy (AUP); (4) fourth, these Terms of Service.
If You are entering into these Terms on behalf of an entity, such as Your employer or the company You work for, You represent that You have the legal authority to bind that entity. If You do not agree with these Terms of Service, Acceptable Use Policy, Privacy Policy, You will not be approved to use the Services.
A. Definitions
Billing cycle: a regular recurrent period in which the IP LESSEE shall pay for the Lease;
Commencement Date: The beginning of the Lease period;
IP HOLDER: a person or an entity who has been granted allocation rights in and to the IP Numbers (as defined below) and has agreed to license the use of the IP Numbers on the terms set out in this policy to the IP LESSEE;
IP LESSEE: You, or a person or an entity who has entered into an agreement to sub-assign (or Lease) the IP Numbers from Freedomtech Solutions Ltd;
IP: Internet Protocol Version 4 address space;
IP Numbers: the series of IP addresses listed in the Order/Listing Form;
Lease: Purchase of the Services outlined in the Order Form for a defined period of time;
Listing: IP Numbers, submitted by the IP HOLDER, verified by Freedomtech Solutions;
Listing Form: the form filled by the IP HOLDER, identifying the specific IP Numbers and conditions.;
Order Form: the form filled by the IP LESSEE, identifying the specific IP Numbers to be delivered;
Policy: the Universal Terms of Service Agreement including Terms of service and all other supplements and appendixes;
Reassignment Initiation: the moment the IP LESSEE requests creation of the validation objects for use of IP Numbers on their infrastructure;
RIRs: any of the regional internet registries which manage the allocation and registration of the Internet number resources within a particular region of the World, including without limitation:
African Network Information Centre (AfriNIC) for Africa;
American Registry for Internet Numbers (ARIN) for the United States, Canada, several parts of the Caribbean region, and Antarctica;
Asia-Pacific Network Information Centre (APNIC) for Asia, Australia, New Zealand, and neighboring countries;
Latin America and Caribbean Network Information Centre (LACNIC) for Latin America and parts of the Caribbean region, and
Réseaux IP Européens Network Coordination Centre (RIPE NCC) for Europe, Russia, the Middle East, and Central Asia;
Spam: the sending of any email message where the recipient has not granted verifiable, explicit, and still-revocable consent or permission for the message to be sent, including without limitation (a) an email message where (i) the personal identity and context of the recipient are irrelevant inasmuch as the email message may be equally applicable to a number of other potential recipients and (ii) the sender of the email does not have verifiable, explicit, and still-revocable consent or permission for the email message to be sent to the recipient; or (b) any email message which would be considered to be spam by Spamhaus; or (c) any email message which would, mutatis mutandis, be treated as being in breach of any of the provisions of the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, on the assumption that that Act is applied to the sender of the email message. Also referred to as Spamming;
Spamhaus: The Spamhaus Project Ltd.;
Unacceptable Use: distributing (i) Spam; or (ii) Bulk Email; or (iii) any other network activity creating a large or abnormal burden on any network, including, without limitation, using, uploading, posting, publishing, transmitting, modifying, reproducing, broadcasting, disseminating or otherwise distributing or making available a Virus or any other feature, programme or code which may be intentionally or unintentionally harmful or destructive or limiting or debilitating in any way; impeding the ability of any third party to send or to retrieve information through generating large levels of traffic; or (iv) disrupting any backbone network nodes or network service, or otherwise restricting, inhibiting, disrupting or impeding the ability to monitor or deliver any goods or services, any transmissions or data; or (v) hacking; or (vi) interfering with computer networking or telecommunications service to or from any Internet IP LESSEE, host, provider or network, including, without limitation, denying service attacks, overloading a service, improperly seizing or abusing operator privileges or attempting to crash a host and other illegal activities, included, but not limited to those described in AUP;
Validation objects: objects created in RIR’s
B. Description of services
Freedomtech Solutions provides IP Addresses for an agreed price on behalf of IP LESSEES. We ensure the process is as simple and expeditious as possible and completely transparent, providing all listed services with every transaction. Freedomtech Solutions may exercise complete discretion as to the price at which IP Addresses may be leased to IP LESSEE
The IP LESSEE agrees and warrants and undertakes to Freedomtech Solutions Ltd that:
3.1. he has the full legal authority to enter into this Lease;
3.2. the Lease does not confer upon the IP LESSEE any proprietary or transferable rights in respect of IP Numbers;
3.3. it shall comply with any rules, policies, practices, procedures and directions of IANA or of any of the RIRs in relation to the IP Numbers;
3.4. it shall take no action which shall or may damage the reputation of Freedomtech Solutions Ltd or the value of the IP Numbers including without limitation Unacceptable Use, Spamming or Bulk Mailing using the IP Numbers;
3.5. IP LESSEE accepts the IP Numbers in their “as-is” condition provided, however, Freedomtech Solutions warrants that the IP Numbers are not subject to any known, active blacklists or blocks at the major top-level domains and are not engaged in any unacceptable use;
3.6. IP LESSEE represents and warrants that he will comply with all laws and regulations of the jurisdiction in which IP LESSEE is located as well as any jurisdictions in which IP LESSEE uses the IP Numbers.
Subject to terms and conditions of Lease, Freedomtech Solutions hereby grants the IP LESSEE a non-exclusive, non-transferable, limited, revocable license to use the IP Numbers during the term Lease and solely for the IP LESSEE’s own business operations.
D. Policy enforcement
When an IP LESSEE’S issue arises, we may consider the IP LESSEE’s performance history and the specific circumstances in applying Our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for IP LESSEES.
Freedomtech Solutions only ensures the creation of the Validation objects for use of IP Numbers, as required and denoted by IP LESSEE at the Reassignment Initiation date.
In case if Reassignment Initiation date differs from the Commencement Date the refunds (if applicable) are calculated from the Reassignment Initiation Date.
Freedomtech Solutions reserves the right to make the final decision on any refund request issued.
G. Ordering conditions
When ordering IP Numbers from Freedomtech Solutions, You agree that:
You are responsible for evaluating all the relevant information, including but not limited to, IP Numbers’ nettype (status) in RIRs before committing to Lease;
You agree to keep necessary IP Validation Objects existing throughout the whole Lease period, unless approved differently by Freedomtech Solutions;
You are responsible for providing Freedomtech Solutions accurate and truthful contact information that identifies You as the IP LESSEE and agree to keep that information up to date and accurate at all times during the term of the Lease;
You enter into a legally binding contract to lease IP Numbers when You commit to Lease the IP Numbers or Your offer for IP Numbers is accepted;
We do not transfer legal IP ownership of IP Numbers to the IP LESSEE;
IP LESSEE agrees, that IP Numbers information (inetnum, domain, route and other objects that are possible to create and/or manage in RIRs) are managed by Freedomtech Solutions on its discretion;
In case IP Numbers are used after the end of Lease by IP LESSEE, he agrees to pay penalty fee, calculated based on IP Number’s price per day and multiplied by days used after end of Lease period.
Applicable as of 8 July 2023
Any claim or dispute regarding the IP Numbers ordered must be raised within a period of 7 days following the Commencement Date. Any claim or dispute raised after this 7-day period shall have no legal effect, and Freedomtech Solutions shall not be obligated to address or resolve such claim or dispute. IP Lessee agrees that the 7-day period for raising claims or disputes regarding the IP Numbers leased shall be the sole and exclusive remedy available for any dissatisfaction or disagreement with the quality or fit of the IP Numbers leased. IP Lessee will not be entitled to any further remedies, including but not limited to refunds, for any claim or dispute raised after the expiration of this 7-day period.
H. Amendments and termination
The Lease shall commence on the Commencement Date indicated in the Order Form.
Freedomtech Solutions shall be entitled to edit, amend, replace or cancel the IP Numbers or any information given at registration any time before the beginning of the Lease period.
Freedomtech Solutions shall be entitled to terminate the Lease with a notice period of 90 (ninety) days.
The IP LESSEE agrees that with a notice period of 14 calendar days, Freedomtech Solutions has a right to change the leased IP Numbers allocation to another, analogous allocation. Notice shall be in writing and sent by Freedomtech Solutions via email.
The IP LESSEE shall be entitled to terminate the Lease; however, the charges remain based on the remaining billing cycle period.
Without prejudice to any rights that have accrued under this Lease or any of its rights or remedies, either party may terminate this Lease with immediate effect by giving written notice to the other party if:
8.1. the other party commits a material breach of any term of this Lease;
8.2. IANA or any RIR requires that this Lease would be terminated;
8.3. Freedomtech Solutions has the right to cancel the services if the IP LESSEE violates any policy. Freedomtech Solutions reserves the right to cancel the service without prior notice.
I. Definitions; Conflicts
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Support services policy and the provisions of the Universal Terms of Service Agreement, the provisions of this agreement shall control.
Appendix B to universal terms of service agreement
Acceptable use policy (AUP)
Policy:
NOTWITHSTANDING the lease term, the IP USER must uphold the following standards in order to continue to access the Freedomtech Solutions network and use its Services. IP USERS agree to be bound by this AUP.
IP USER may not use the Freedomtech Solutions network service in any jurisdiction for unlawful, obscene, offensive, or fraudulent content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved and terminated if not resolved promptly.
Prohibited Uses
You may use our Services only for lawful purposes. You may not use our Services:
(a) in any way that breaches any applicable local, national or international law or regulation;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(c) for the purpose of harming or attempting to harm anyone, including minors, or in any manner which will, or is likely to, infringe the personal rights of others;
(d) in any manner that will, or is likely to, infringe the copyright, trademark, trade secret or other intellectual property rights of others;
(e) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam);
(f) to transmit, or procure the sending of, any mass mailing without pre-approval from Freedomtech Solutions;
(g) in connection with any defamatory, indecent, obscene, offensive, threatening or abusive conduct or activity;
(h) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
(j) to hijack: any announcement without consent of Freedomtech Solutions will be treated as illegal (unauthorized); or
(i) in any way that is inconsistent with the terms of Your agreement with Freedomtech Solutions.
Without prejudice to the generality of the overview principles set out above, unacceptable use includes, but is not limited to, the following:
(a) Posting, transmission, re-transmission, or storing material on or through Freedomtech Solutions, if Freedomtech Solutions reasonably believes that such posting, transmission, re-transmission or storage is:
– in violation of any local, national or international law or regulation (including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations);
– threatening or abusive;
– obscene;
– indecent; or
– defamatory.
(b) Installation or distribution of pirated or other software products that are not appropriately licensed for use.
(c) Resale any of Freedomtech Solutions’ Products and Services without the express prior written consent of Freedomtech Solutions.
(d) Deceptive marketing practices.
(e) Actions that restrict or inhibit anyone – whether a customer of Freedomtech Solutions’ services or otherwise – in his or her use or enjoyment of Freedomtech Solutions’ Services, or that generate excessive network traffic through the use of automated or manual routines that are not related to ordinary personal or business use of internet services.
(f) Introduction of malicious programs or other services of Freedomtech Solutions (e.g., viruses, Trojan horses and worms).
(g) Causing or attempting to cause security breaches or disruptions of Internet communications. Examples of security breaches include but are not limited to accessing data of which the customer is not an intended recipient, or logging into a server or account that the customer is not expressly authorized to access (e.g., port scans, flood pings, packet spoofing and forged routing information).
(h) Executing any form of network monitoring that will intercept data not intended for You.
(i) Circumventing user authentication or security of any host, network or account.
(j) Interfering with or denying service to any user other than the customer’s host (e.g., denial of service attack).
(k) Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable a user’s terminal session.
(l) Failing to comply with Freedomtech Solutions’ procedures relating to the activities of customers on its services.
(m) Furnishing false or incorrect data on the Order Form contract (electronic or paper) including fraudulent use of credit card numbers or attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization or other methods to document use of services.
(n) Sending unsolicited mail messages, including the sending of junk mail or other advertising material to individuals who did not specifically request such material, who were not previous customers of the customer or with whom the customer does not have an existing business relationship (e.g., e-mail spam).
(o) Sending any mass mail messages that would be considered as Spam;
(p) Harassment (e.g., through language, frequency, or size of e-mail messages).
(q) Unauthorised use or forging of mail header information.
(r) Solicitations of mail or any other e-mail address other than that of the poster’s account or service, with the intent to harass or to collect replies.
(s) Creating or forwarding chain letters or other pyramid schemes of any kind. If no mailing activity is expected, port 25 should remain restricted.
(t) Use of unsolicited e-mail originating from within Freedomtech Solutions network or networks of other Internet Service Providers on behalf of or to advertise any service hosted by Freedomtech Solutions or connected via Freedomtech Solutions network.
(u) Exporting, re-exporting, or permitting downloads of any content in violation of the export or import laws of the United Kingdom or without all required approvals, licenses and exemptions.
(v) Use of IRC servers or bots connected to public IRC networks or servers.
Freedomtech Solutions will determine, in its discretion, whether there has been a breach of this Acceptable Use Policy by You. When a breach of this policy has occurred, we may take such action as we deem appropriate.
The users of Freedomtech Solutions services acknowledge that Freedomtech Solutions does not purport to monitor the content of hosted materials or the use of the Services.
Where Freedomtech Solutions reasonably suspects that there has been a breach of the provisions of this AUP, Freedomtech Solutions may take all or any of the following actions:
(a) Immediate, temporary or permanent withdrawal of Your right to use the services.
(b) Immediate, temporary or permanent removal of any posting or material uploaded by You.
(c) Issue of a warning to You.
(d) Legal proceedings against You for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
(e) Further legal action against You.
(f) Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
We exclude liability for actions taken in response to breaches of this Acceptable Use Policy. The responses described in this policy are not limited, and we may take any other action we reasonably deem appropriate.
Any breach by users Freedomtech Solutions Ltd AUP will be deemed to be a material breach of the Agreement. Contract Notes:
All billing is Monthly or quarterly in advance Billing and payment received in USD (United States Dollar)
Contract term: Monthly (30 days notice period) or longer.
SIGNATURES
By signing below, Customer affirms and acknowledges that it has read the entire Terms & Conditions and agrees to be bound by the provisions thereof.
For Customer For Freedomtech Solutions Ltd
Signature ____________________ Signature ___________________
Printed Name ________________ Printed Name _______________ Title _________________________ Title ________________________
Date ________________________ Date _______________________
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1. Master Services Agreement
This “Master Services Agreement” (the “MSA”) sets out the rights, responsibilities and legal obligations of the parties to it. The individual or entity placing an order for Services is referred to in this MSA as “Customer,” “you” or “your” and is the individual, or entity, designated as the “owner” in our records. The entity providing the services is referred to as “we,” “us” or “our.” The individual or entity using the Services, if different than the Customer, is referred to as the “End User.” The “Services” are the products, technologies and other items purchased by the Customer.
2. This MSA includes agreements incorporated by reference.
This MSA includes the following documents, which you agree you have reviewed, and accept:
During the course of the parties’ relationship with each other, you may purchase additional Services from us using new Order Forms. Each of these is incorporated into this MSA. If you are purchasing Services on behalf of a third party, you represent and warrant to us that you have the authority to purchase those Services.
Our Acceptable Use Policy (“AUP”) is available upon request
Our Service Level Agreement (“SLA”) is available upon request
If you use the Services in a manner that violates our AUP, you are responsible for that violation. Other than in the case of an emergency, or threat to the Service or our network infrastructure, we will give you notice and opportunity to correct a violation of either the AUP.
This MSA, AUP and SLA are referred to collectively herein as the MSA. If there is a need to refer to them individually, they will be referred to using the names set out above. Our SLA may not apply to all Services chosen by you.
This MSA, and each of the documents set out above, may change from time-to-time. We will provide you with written notice of any change, other than one to correct typographical errors. Notification will be provided by email to the contact email you have provided us. Changes, other than changes necessary to respond to an unforeseeable situation, or those required by law or a third party who provides services to us, will be effective thirty (30) calendar days from the date by email. If you have agreed to a “Term Commitment” as that term is defined below, and a change materially affects your ability to use a particular Service, you may terminate the affected Service as set out in the termination section below.
3. The Services.
The Services will be provided as set out on the Order Form as of the Effective Date. The Services will be provided pursuant to our brand offering for those Services as shown on the Order Form at the time of your order. Services may not be available immediately. We agree to provide those Services during the term as set out on the Order Form (“Term”). However, we may make changes to the Services during the Term if required by law, a third party vendor who provides aspects of the Services to us, or if your use of the Services violates our AUP. New customers may be offered Services that are different than the Services you have purchased. We have no obligation to make those Services available to you. Should there be a conflict between this MSA and the Order Form, the Order Form will prevail.
The Services are provided as set out on the Order Form on the Effective Date. In order to use the Services, you may need to procure additional services, technology, equipment and/or materials. You may not terminate this MSA because you are required to procure these items. It may be necessary for you to assist us in our implementation of the Services. You agree to provide reasonable cooperation and assistance, and to cause any of your third party providers to do so as well.
Third parties may provide certain aspects of the Services to us. We will use commercially reasonable efforts to continue to have access to those components of the Services. However, should a third party change the services, make them economically prohibitive for us to provide to you, or discontinue them, our only obligation will be to attempt to find replacement components at a reasonable cost to us. If we are unable to do so, you may terminate those Services directly affected.
The Services are not static, and they may require that you install new versions of software, firmware or other items to ensure their continued function (“Updates”). You agree to install these Updates within thirty (30) calendar days of our request. If you do not install the Updates, and doing so endangers the Service, or our network, you agree that we may install them without liability to you.
The security of your passwords and other access devices is your responsibility. We shall be entitled to rely on the instructions, or operations, of any entity accessing the Service using your passwords and/or access devices. You agree to notify us immediately should any of these items become lost, stolen or compromised.
Our goal is to maintain the Services as set out in this MSA. To do so, we may need to interrupt them from time-to-time for maintenance. We agree to give you five (5) business days’ notice of our intent to suspend the Services for this reason. We will provide this notice to you by email to the address we have in our records. Our notice will, at a minimum, set out the reasons for the maintenance, the features to be affected, and the period of time the maintenance will take place. On infrequent occasions, we may be required to undertake emergency maintenance, and we will be unable to provide you with the notice set out in this paragraph. We will use reasonable efforts to ensure that maintenance does not interfere with your operations; however, in order to ensure the continued stability of our operational platforms, our maintenance activities may take precedence.
You agree and understand that Services and/or related support may not be available at certain times as a result of technical difficulties, equipment malfunctions, during scheduled maintenance, or as a result of circumstances beyond our reasonable control. You also understand and agree that we make no representation that Services and/or related support will be available on a continuous or uninterrupted basis.
We do not set limits on the amount of disk space you can use for your services as long as the contents do not violate our AUP. If your use exceeds the capacity of a particular service as defined in the product specifications or AUP then we reserve the right to modify the Services we provide to you or request you move to a different Service.
You must provide certain current, complete and accurate account information for your Services. You must maintain and update this information as needed to keep it current, complete and accurate.
We reserve the right to relocate the equipment used to provide the Service at any time. You will have no physical access to this equipment.
4. Fees.
Payments for the Services, the due date, and all other information related to the assessment and collection of amounts owed are set out on the Order Form (“Fees”). If the Order Form does not contain a payment date, Fees are due monthly. Upon the renewal of a Service Term, the Fees will be set to our then standard fee for the particular Service. Discounts provided to new Customers may not be extended to Services you have already agreed to purchase. If we do not collect Fees immediately, your service may be suspended.
During the Term, we will only increase the Fees in the following circumstances:
you purchase additional Services and those Services have additional Fees;
a regulated entity, such as a utility, increases their charges to us; or
a vendor adds surcharges or additional fees based on your use of the Services. We agree to provide you with thirty (30) calendar days written notice prior to any change in the Fees. Notice will be provided to the email address in our records
Fees are not refundable, unless you choose Services covered by a “30 day money back guarantee.”
Taxes may not be included in the prices set out on your Order Form. If we are required to collect taxes, they will be added to the Fees, and you agree to furnish us information necessary to calculate them and you agree to pay them once calculated. We will not charge you taxes based on our income.
Charges assessed by third parties will be added to the Fees within thirty (30) calendar days from the date we receive them. You agree to pay these charges regardless of the length of time that may have passed.
If you do not pay the Fees when due, we may suspend and or delete any and all Services. Following suspension of Services for non-payment, we are not required to reinstate Services until:
you have paid in full all Fees then due, including late fees, interest charges of one and a half (1.5) percent per month (or the highest rate permitted by the laws governing this MSA), collection costs (including fees charged by our collection agency and reasonable actual attorneys’ fees), and any cost of reinstating Services; and
you provide us satisfactory assurance as requested by us (such as a deposit) of your ability to pay for the Services for the remainder of the applicable Service Term. If you fail to timely cure the non-payment within the timeframe specified by us, you will be deemed to have terminated the affected Services as of the effective date of Service suspension. Your failure to pay Fees when due shall be treated as termination for convenience by you subject to Early Termination Fees, if any, described in this MSA. You will not receive credits (including SLA credits) or other benefits during the period you have failed to pay any Fees, and you may not withhold payment of Fees during any dispute.
We understand that from time to time the parties may have disagreements about the Fees. To help resolve these disputes, each of the parties agrees to try to resolve these disagreements as set out in this paragraph. If you dispute any Fee, you must notify us in writing of this dispute before the Fee is due. In your notice, you agree to include sufficient information to allow us to investigate the dispute. We agree to complete this investigation within thirty (30) calendar days from the date your Fee is due, and provide to you a written discussion of our investigation, with sufficient facts for you to review. If we agree with your dispute, we will credit your account on your next billing cycle, or within sixty (60) calendar days if your billing cycle is not monthly. If we reject your dispute, you have thirty (30) calendar days to present us with a written rebuttal, again with sufficient information for us to understand your arguments. We will review this material within thirty (30) calendar days from our receipt. If the parties continue to disagree, they may pursue their remedies at law, consistent with this MSA. Fee disputes are Service specific, and you are required to pay Fees for other Services during the period of a dispute. You may not terminate this MSA, or any Service, based on a Fee dispute. We will not charge you interest on affected Fees during a dispute, provided that the dispute is bona fide.
5. Term.
This MSA shall begin on the Effective Date and continue until terminated by a party (“MSA Term”). Individual Services shall begin on their Effective Date and continue until terminated by a party (“Service Term”). The MSA Term and the Service(s) Term are collectively referred to as the “Term.” The initial Service(s) Term is set out on the Order Form. If the Order Form does not have a Service(s) Term, the Service(s) Term will be one (1) year. On the expiration of an initial Service(s) Term, the individual Services shall renew for the length of the initial Service(s) Term unless you notify us in writing no later than fifteen (15) calendar days prior to expiration of your intent to terminate them. Our required termination procedure is set out below. The MSA Term shall extend until the MSA is properly terminated.
6. Termination.
We hate to see you go, but here is how this MSA may be terminated.
You may cancel a Service by completing one of the following actions. 1) You may email your cancellation request to operations@freedomtech.solutions notifying us of your intent to terminate. Please note that a Service Termination is not permanent until Billing has confirmed your request. A Service Termination must be confirmed no later than fifteen (15) calendar days before the Service Term will renew. Services must be cancelled individually and unless the Service(s) you cancel are the last Services we provide you, your cancellation does not terminate this MSA. By agreeing to this MSA, you acknowledge and agree to advanced notice of your intent to terminate a Service Term because of the long-term equipment and facilities commitments we are required to undertake in order to provide the Services to you.
We may terminate an individual Service, or this MSA immediately, if:
you violate our AUP and have not corrected the violation in the time we have provided you, if any;
if you fail to pay Fees when due;
if a third party ceases to make aspects of the Services available to us, and we are unable to procure replacement services as described in this MSA;
if you become the subject of any bankruptcy proceeding or other insolvency proceeding; or
if we are legally required to do so. Upon such a termination, you will remain liable to us for any accrued amounts owed prior to the effective date of our termination, including, but not limited to, Early Termination Fees, if any, as described in this MSA. If we provide a cure period, you waive all legal notices to vacate our network and/or remove equipment, after expiration of that cure period.
Either party may terminate a particular element of the Service if there is a force majeure event, as defined in this MSA, that continues for more than thirty (30) calendar days, or the other party becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization, liquidation or dissolution proceeding in bankruptcy or under any other insolvency law, makes an assignment for the benefit of creditors, or admits in writing its inability to pay debts when due.
Upon termination of this MSA, it is your responsibility to ensure that you configure technical aspects of your business, such as mail, WHOIS, and items outside of our control, to ensure that those items are directed away from us. We have no responsibility to maintain backups following termination (including as regards Hosted Personal Data), nor to forward email to another provider or to point DNS for your domain names away from us.
7. The Parties Own Their Intellectual Property.
Each party retains the intellectual property owned by, or licensed to, them. To perform, and use, the Services the parties each grant to the other a limited license to use and distribute that intellectual property only as strictly necessary to provide or use the Service. Other than as set out in the prior sentence, or in this MSA, neither party grants to the other, and neither shall have, any right, title, claim or interest in, or to, the other party’s intellectual property, or that which is licensed to any party, nor will a party decompile, dissemble, or reverse engineer the other party’s intellectual property, or that which is licensed to a party. Suggestions provided to us used by us to improve the Service are our intellectual property.
8. We Stand Up for Each Other.
We agree to indemnify, defend and hold you, your employees, directors and officers (“Your Indemnified Parties”) from any and all third party actions, liability, damages, costs and expenses (including, but not limited to, those attorneys’ fees and expenses charged to us) arising from, or relating to, personal injury or property damage resulting solely from our gross negligence or wilful misconduct. You waive and release all claims against Our Indemnified Parties (as defined in section b), and agree that Our Indemnified Parties shall not be liable for injury to person or damage to property sustained by Your Indemnified Parties caused by the Services, or otherwise relating to this MSA, except if such injury or damage results solely from our gross negligence or wilful misconduct.
You agree to indemnify, defend and hold us, third parties who provide aspects of the service to us, contractors, subcontractors, affiliates, employees, directors and officers (“Our Indemnified Parties”) from any and all third party actions, liability, damages, costs and expenses (including, but not limited to, those attorneys’ fees and expenses charged to us) arising from, or relating to:
personal injury or property damage resulting from your acts, or inaction, or those of any individual or entity identified as Your Indemnified Parties below, as well as End Users;
any claim by you, Your Indemnified Parties, or End Users, other than a claim based solely on our gross negligence or wilful misconduct;
any claim by your customers, including End Users, relating to, or arising out of, your, or any End Users’ services or the Services provided under this MSA;
any claim that you have failed to fulfil a contractual obligation with a third party;
any claim resulting from your failure to obtain consents or licenses necessary for you, or your End Users, to use the Services; and
any claim by a party claiming by, through, or under you, or an End User, to the extent that such a claim, if sustained would result in any greater obligation or liability to us than what we have undertaken to you in this MSA.
9. Each of Us Stands Behind this MSA.
Each party warrants to the other that it has the power, authority and legal right to enter into this MSA and to perform its obligations set out in it, and pursuant to any provisions or agreements incorporated into it.
You warrant that you either own, or have licensed the right to use, the technology necessary to use the Services, the data transmitted using the Services, and any technology you place on our network. You agree to provide us with evidence of these licenses or rights on our reasonable request, and to procure similar warranties from your End Users. In particular, you represent and warrant that the material placed on, or transmitted through, the Services does not infringe any third party patent, copyright, trademark or trade secret right, and that you have used commercially reasonable efforts to ensure that the material is free from viruses and is not being placed on our Services to enable access to them by parties other than you.
NOTWITHSTANDING ANY ORAL OR WRITTEN COMMUNICATIONS BETWEEN US AND YOU ABOUT OR IN CONNECTION WITH THE SERVICES, EXCEPT AS EXPRESSLY STATED IN THIS MSA OR IN ANY DESCRIPTION OF OUR PRODUCTS, AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, SUB-CONTRACTORS OR LICENSORS MAKE ANY WARRANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NON-INTERRUPTION, NON-INTERFERENCE, NON-INFRINGEMENT, OR THAT THE SERVICES ARE COMPLETELY SECURE OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS MSA, THE SERVICES AND EQUIPMENT PROVIDED UNDER OR ASSOCIATED WITH THIS MSA ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.
10. Our Liability is Limited.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY MAKING A CLAIM BASED ON OUR PROVIDING THE SERVICES TO YOU FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES; (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE). THIS LIMITATION APPLIES EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES. OUR MAXIMUM LIABILITY SHALL BE ONE (1) MONTH’S FEES (OR THE EQUIVALENT THEREOF) ACTUALLY RECEIVED BY US DURING THE MONTH PRIOR TO YOUR CLAIM. IF THIS DISCLAIMER IS PROHIBITED BY THE LAW GOVERNING THIS MSA, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT ALLOWED BY LAW. AS FURTHER LIMITATION, OUR MAXIMUM LIABILITY RELATING TO ANY SERVICE THAT HAS A NON-RECURRING CHARGE WILL EQUAL THE AMOUNT OF THE NON-RECURRING CHARGE FOR SUCH SERVICE ON THE OCCASION GIVING RISE TO THE CLAIM. OUR OBLIGATION TO INDEMNIFY YOU, WHICH IS SET OUT IN PARAGRAPH 10, IS NOT LIMITED BY THIS PARAGRAPH. TO THE EXTENT THE SERVICES CONTAIN SOFTWARE PROVIDED BY MICROSOFT, NEITHER MICROSOFT, NOR ITS SUPPLIERS SHALL BE SUBJECT TO ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE MICROSOFT PRODUCTS OR SOFTWARE.
11. We Each Agree to Keep Certain Information Confidential.
The term “Confidential Information” includes, but is not limited to, a party’s inventions, trade secrets, Customer information, business plans, designs, programs, product or marketing data, Customer lists and histories, sources of supply, production plans, financial statements, pricing data, test results, business strategies, manuals, materials, systems, financial information, non-public methods, processes and techniques, this MSA (other than the Privacy Policy and AUP), any information marked “Confidential,” and all other non-public business and technical information, whether related to past, present or future products and services.
Each of the parties agree that if one party (“Disclosing Party”) provides Confidential Information to the other party (“Receiving Party”), that Confidential Information shall be held in confidence, and the Receiving Party shall give the Confidential Information the same care and protection as it gives generally to its own confidential and proprietary information, but no less than reasonable care, in order to avoid disclosure to, or unauthorized use by, any third party. All Confidential Information, unless otherwise specified in writing, shall remain the property of the Disclosing Party, and shall be used by the Receiving Party only for its intended purpose. All Confidential Information, including all copies of it, shall be either returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired, or upon the request of the Disclosing Party, each at the option of the Disclosing Party. The provisions of this paragraph shall not apply to any Confidential Information which:
becomes publicly available, other than through disclosure by the Receiving Party;
is required to be disclosed by any governmental authority, applicable law, or by court order;
is independently developed by the Receiving Party;
becomes available to the Receiving Party without restriction from a third party; or
becomes relevant to the settlement of any dispute or enforcement of either party’s rights under this MSA.
If any Confidential Information is required to be disclosed based on this paragraph, the party required to make such a disclosure shall, where legally permitted, immediately inform the other party of the requirements of such a disclosure to enable the Disclosing Party to take protective measures to preserve the confidentiality of such Confidential Information as fully as possible in the context of such a permitted disclosure. It is not a violation of this paragraph for a party to disclose Confidential Information to its employees or agents, its legal, financial and accounting advisors, and to its lenders which need to know that Confidential Information, provided that the Disclosing Party notifies any recipient of its confidential and proprietary nature.
12. Data Protection
“Data Protection Legislation” means all applicable laws relating to data protection and privacy including (without limitation) the EU General Data Protection Regulation (2016/679) and any implementing national laws, the EU Privacy and Electronic Communications Directive 2002/58/EC as implemented in each jurisdiction, and any amending or replacement legislation from time to time.
You are the data controller and we are the data processor in respect of any personal data submitted via and processed by the Services under this MSA (“Hosted Personal Data”)
You warrant, undertake and agree to comply with your obligations under Data Protection Legislation in respect of the Hosted Personal Data, and ensure that your instructions to us in respect of the Hosted Personal Data are lawful.
We will:
only process the Hosted Personal Data in accordance with the instructions set out under this MSA or otherwise given from time to time by you in writing and agreed by us (subject to the provisions of section 7). Where permitted by law, we will notify you we are required to process the Hosted Personal Data other than in accordance with your instructions;
ensure our personnel with access to Hosted Personal Data are bound by obligations of confidentiality;
upon written request and at your expense, taking into account the nature of the processing and the information available to us, reasonably assist you in ensuring compliance with your obligations under Data Protection Legislation; and
upon written request we will make available to you such information as is reasonably necessary to demonstrate compliance by us with our obligations to you in respect of the situations where we are your data processor under this section 13 (Data Protection). On a case by case basis, we will consider any reasonable requests to access our premises for the purposes of auditing our compliance with our obligations as a data processor in this section 13 (Data Protection), taking into account our need to preserve the security of our infrastructure and other customers’ data. We reserve the right to charge an appropriate fee for complying with any such requests.
You agree that we may subcontract the processing of the Hosted Personal Data to any of our associated companies and/or any sub-contractor (a “Sub-processor”). We will ensure Sub-processors are subject to contractual obligations which provide the same standard of protection for Hosted Personal Data as those imposed on us under these Terms. We will inform you of any intended changes concerning the addition or replacement of any Sub-processor within a reasonable time prior to implementation of such change. In the event you object to such change, you shall be entitled to terminate this MSA on 30 days’ notice as your sole and exclusive remedy. We will be responsible for the performance of our Sub-processors.
You agree that Hosted Personal Data may be processed by us and our Sub-processors outside the European Economic Area in order to carry out the Services and our other obligations under this MSA, in accordance with our Privacy Shield certification (see section 4 for further information on our Privacy Shield certification).
The Hosted Personal Data processing activities carried out by us under this MSA may be described as follows:
Subject matter: The provision of the Services, as described in the Order Form
Duration: The duration of the Services.
Nature and purpose: To enable us to provide the Services.
Data categories: Information relating to individuals provided to us via the Services, by (or at the direction of) you or End Users.
Data subjects: Individuals about whom the information is provided to us via the Services by (or at the direction of) you or End Users.
13. We Take Security Seriously.
We implement and maintain technical and organisational security measures to safeguard the Hosted Personal Data from unauthorised or unlawful processing or accidental loss, damage or destruction. However, many of the resources associated with the Services are co-managed with you. You are solely responsible for the security of those aspects of the Services that are co-managed, and you agree to manage them in a way that does not impact the security of our network as a whole. The Services are configured for standard deployment. This configuration may not meet your security needs. It is your responsibility to configure the Services to meet your Security needs. We are not responsible for the manner in which you customize the configuration to suit your needs or its results. Should we determine that there has been unauthorized access to the Services (“Breach”), we may consult with a professional security agency to determine our best course of action and if advised, we agree to notify you in writing as soon as we have determined our course of action with regard to a breach (“Breach Notification”). We may take action, including suspending all, or part of the Services, to isolate and mitigate the cause of a Breach. We have no liability to you for the effects of that suspension. The Breach Notification may contain preliminary and unconfirmed information; however, it is provided to you to assist in your efforts to mitigate the effects of a Breach. To the extent you rely on a Breach Notification, you do so at your own risk. We each agree to reasonably cooperate with each other to investigate the facts and circumstances involved in a Breach. To the extent our cooperation requires us to devote time and resources above and beyond those extended by us in conjunction with a typical Breach investigation, or should we be asked to cooperate with a governmental investigation, you will be billed at our standard consulting Fees. Any information we provide to you in conjunction with a Breach, including the Breach Notification, shall be our Confidential Information.
14. Compliance with Laws.
Each party agrees that it will obtain and maintain all permits, licenses or certificates that are required by any regulatory body for the provision or use of the Services. Each party will comply with all applicable laws in performing its obligations, and exercising its rights under this MSA. Unless specifically set out in your Order Form, we do not warrant, nor have we represented to you that the Services meet any particular industry standard.
15. We lease the IP addresses used by the Services.
Upon termination, they must be relinquished by you. The Services will have either a shared or dedicated IP address. We cannot guarantee this IP address will never change. We make a reasonable effort to avoid IP address changes but due to many factors, including network configuration changes, you will be given advance e-mail notification of such a change.
16. General Provisions.
We will use your name and email address to send newsletters on occasion to you. These newsletters may include information on promotions, services, and the company. Out of respect for your privacy, we provide you a way to unsubscribe in each promotional email. You may opt-out of these communications by clicking the unsubscribe link provided. We will send you strictly service-related announcements on occasion when it is necessary to do so; for example, if there is network maintenance you will receive an email.
Neither you, nor any End Users, may remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Services or products used to provide the Services. We, or an entity acting on our behalf, will provide the support, if any, expressly set out in this MSA for products and software licensed by Microsoft. Any license provided to you is provided with “Restricted Rights” applicable to private and public licensees, including restrictions on use, duplication or disclosure by the U.S. Government as set forth in this MSA and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
This MSA may only be amended in writing upon agreement of the parties. However, the AUP may be amended as provided in this MSA.
The fact that one party fails to exercise, partially exercises, or delays exercising a right, remedy or power available to it in this MSA is not a waiver or preclusion of a right to do so in the future. The waiver by a party of time for performance, or extension of the time to do so, shall not constitute a waiver of the act or condition itself.
Either party may assign this MSA to an affiliate if the original signatory to the MSA remains fully responsible for the rights and obligations of the affiliate. Otherwise, you may only assign this MSA with our written consent. However, the Services may be performed by our corporate subsidiaries, its agents or subcontractors, without your consent. Any other attempt to assign, without written consent, shall be null and void. This MSA shall be binding upon and inure to either party’s benefit and their respective successors and permitted assigns.
Should a particular provision be held to be illegal or unenforceable in any jurisdiction, that provision shall be effective to the extent of such illegality or unenforceability, without invalidating the remaining provisions, and the provision at issue shall be restated to reflect the original intentions of the parties, to the greatest extent possible, and in accordance with the law. Section, paragraph and other titles are for ease of reference only, and they are not considered to be part of this MSA.
This MSA, together with all documents incorporated by reference, states the entire agreement between the parties. Except for pre-existing obligations of confidentiality, non-disclosure and non-competition, with respect to the subject of this MSA, it supersedes all previous proposals, negotiations and other written or oral communications between the parties.
This MSA is the result of negotiations between equally situated parties. Each party has had the ability to protect their legal and other interests, and have had, and do have, a full and complete opportunity to review, analyze, evaluate, negotiate, edit and draft the terms of this MSA. Accordingly, this MSA shall not be strictly construed or enforced against any party, and any ambiguity in any term or condition contained in this MSA shall not be interpreted in favor of one party and against another party, based upon any rule of construction whose premise is draftsmanship of this MSA or up on the relative bargaining position of the parties.
If there is a conflict between the terms of this MSA, Order Form and AUP, they shall have the following precedence: AUP, Order Form and MSA.
The parties are independent contractors. Unless in the Order Form the Customer specifically grants us the right to enter into contracts on its behalf, neither party shall have the right to enter into contracts on the other’s behalf. Under no circumstances will either party have the authority to make any representations, claims or warranties of any kind on behalf of the other party, its affiliates, agents, subcontractors, licensors or third-party suppliers.
If the Customer is based in the state of California, it is advised that, if applicable under California Civil Code Section 1789.3, it may initiate a complaint about the Service through our trouble ticket system, or as set out in the applicable SLA. If the Customer is not satisfied with the resolution provided by us, the Customer may contact us, in writing, at the address set out in paragraph 17(o), and the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1020 N. Street #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254. The charges for the Services are set out in the applicable Order Form. This paragraph shall not change, alter or indicate a waiver of the party’s choice of jurisdiction and venue set out in paragraph 17(c).
The rights and obligations of the parties set out in this MSA that would by their nature or context be intended to survive the expiration or termination of this MSA, shall survive. In particular, but without limiting the preceding sentence, the parties’ rights and obligations under the following sections of this MSA shall survive: 3, 5, 8, 9, 11(c), 12, 13, 14, 17 (c), (f), (g), (h), (i), (j), (m), (o), and 19 (g).
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation, acts of God, telecommunications interruptions, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by the Force Majeure shall notify the other party as soon as possible, but in no event less than ten (10) days from the beginning of the Force Majeure event.
Notices regarding our SLA and AUP shall be provided to the addresses set out in those documents. All other notices that are required, permitted or necessary under this MSA must be in writing, and they are deemed to have been received on the earlier of:
actual receipt;
the date of receipt set out on any indication of delivery (other than facsimile or email confirmation); or
on the fourth (4th) business day after being deposited in a governmentally operated postal service, and addressed as below.
Parties may provide notice by facsimile and/or email, as long as such notice is followed by a written notice as set out above. All notices, requests, consents and other communications shall be delivered to:
17. If to us: Freedomtech Solutions, 85 Great Portland Street, London W1W 7LT
18. These Paragraphs Apply Only to Dedicated Server Customers and are subject always to the terms of the MSA.
If your Order Form states that the Services included “Dedicated Servers,” the following paragraphs apply to those Services described as Dedicated Servers, and only to those Services. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
For Dedicated Servers, the Service includes the equipment, facilities, programming, data files, software, services and resources that we use to enable you to outsource your data and Internet requirements with access through our network. Dedicated Services are provisioned by the date set out on your Order.
You agree to provide to us any material that is necessary for us to configure, and if set out in the Order Form, customize the Service (“Dedicated Material”). The Dedicated Material must be provided to us in a server ready manner, capable of being placed on the Services without more than administrative effort on our part.
Where applicable, you shall provide to us administrative access to the operating system on the managed service.
We will promptly replace any defective hardware used on the Service as set out in our MSA.
We reserve the right to relocate the equipment used to provide the Service at any time. You will have no physical access to this equipment.
Your incoming and outgoing bandwidth will be monitored and combined, and where applicable, you will be charged Overage Fees set out in the Order Form.
19. These Paragraphs Apply Only to Managed Services Customers and are subject always to the terms of the MSA.
If your Order Form states that the Services included “Managed Services,” the following paragraphs apply to those Services described as Managed Servers, and only to those Services. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
For Managed Services, the Service refers to the operation and maintenance of the infrastructure used to provide the Services, including equipment, programming, data files, software, services and resources, as set out in the Order Form.
We agree to monitor the network, physical infrastructure, servers and applications on a 24x7x365 basis. You acknowledge and agree that:
the performance of the Managed Services is subject to industry best practices, the technical limitations of the devices being managed and the equipment and infrastructure of the Customer; and
certain Managed Services may expose vulnerabilities and could result in the disruption of Services in some circumstances.
The support you are eligible to receive is determined by the plan you select on the Order Form. The support included in each plan is set out on the Order Form. The amount and type of support may be changed at any time without notice. While we strive to provide the highest level of support for the Services, you are ultimately responsible for the final result and condition of the Services.
Your acceptance of this MSA authorizes us to log in and access your server as necessary for installing and configuring the Managed Services, for general server maintenance, and for other purposes reasonably required by us to provide the Managed Services to you.
Software Patches: We will monitor and install any third-party software that is in a stable branch of a repository base package system (“Patch”). These Patch installations shall be completed within thirty (30) calendar days of the software release, or as requested by you if you decline scheduled patches.
Firewall Settings: We will select all your initial firewall settings for Managed Services. You may request changes to your initial firewall settings by submitting a ticket or email. If approved, your initial firewall settings will be changed within one (1) business day after our receipt of your ticket.
You agree to provide us any material that is necessary for us to configure, and if set out in the Order Form, customize the Service (“Managed Services Material”). The Managed Services Material must be provided to us in a server ready manner, capable of being placed on the Services without more than an administrative effort on our part.
Our unlimited shared hosting is designed to meet the needs of most small businesses and personal websites; it is not designed to meet the needs of large businesses or client services that fall outside the average usage pattern for shared hosting and may be better suited for hosting plans that provide expanded features. Accounts with a large number of files (inode counts in excess of 200,000), databases exceeding 5GB in size or a cumulative size of all databases in excess of 10GB can have a significant impact on server performance. We reserve the right to request that the number of inodes (files and directories) and/or database sizes be reduced to help ensure server performance. Failure to comply with these requests may result in termination of your account. If your use of the Services exceeds either:
the description set out on the Order Form; or
that of similarly situated Customers, we reserve the right to modify the Services so that they meet this criteria, or place you in a new service plan.
If you exceed the data transfer limit of your account you will be notified by us to resolve the situation and be given options for upgrading your account. E-mail warning notices will be sent upon approaching your limit. Once the limit is reached, data transfer will be stopped.
20. These Paragraphs Apply Only to Cloud Services and are subject always to the terms of the MSA.
If your Order Form states that the Services included “Cloud Services,” the following paragraphs apply to those Services described as Cloud Services, and only to those Services. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
Your incoming and outgoing bandwidth will be monitored and combined, and you will be charged the Fees set out in the Order Form.
Cloud Services may have limitations on both the bandwidth and/or throughput you may use. These limitations are generally set out on your Order Form. However, you may not use the Services in a way that jeopardizes our ability to provide services to other Customers or the stability of our network. Should we determine that you have used the Services in this manner, we reserve the right to limit your use of the Services to minimize these effects. Following our limitation of this use, we will notify you in writing of steps you may take to mitigate these effects. If you do not accept these steps, we reserve the right to impose permanent limitations on your use of the Services.
We reserve the right to relocate the equipment used to provide the Service at any time. You will have no physical access to this equipment.
21. These Paragraphs Apply Only to Domain Name Services and are subject always to the terms of the MSA.
If your Order Form states that the Services included “Domain Name Services” or “Domain Name Registration,” the following paragraphs apply to those Services described as Domain Services, and only to those Services. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
The Domain Services will be provided to you through our third-party vendors, [ENOM] (“Domain Name Vendor”). By purchasing domain name services through us, you are bound by the Domain Name Vendor terms and conditions, which can be found at http://www.enom.com/terms/ and are hereby incorporated into this MSA. We strongly encourage you to review the Domain Name Vendor terms and conditions prior to your purchase of the Domain Services.
You understand and agree that your domain name is not actually registered until you receive a registration confirmation from us. We have no liability for the failure of a domain name to register during the registration process.
It is your responsibility to maintain, secure, update and keep strictly confidential all domain name, login IDs and passwords.
You must provide certain current, complete and accurate account and WHOIS information for your domain name(s). You must maintain and update this information as needed to keep it current, complete and accurate. You understand that WHOIS information is not subject to our Privacy Policy. It is important to know that you may receive verification emails from domain name registrars to which you are required to respond. It is your obligation to include in your domain name registration information contact details that are regularly monitored.
Only you, and not us or Domain Name Vendor, are responsible for determining whether the domain name(s) you select, or the use you or others make of the domain name(s), infringes the legal rights of others. It is your responsibility to know whether or not the domain name(s) you select or use or allow others to use infringe the legal rights of others.
The Domain Name Vendor may reject your domain name application, or discontinue providing Domain Services to you, for any reason within thirty (30) calendar days of a Domain Service initiation or renewal. Outside of this period, Domain Name Vendor may terminate or suspend the domain name at any time for cause, which without limitation, includes:
registration of prohibited domain name(s);
abuse of the domain name;
payment irregularities;
allegations of illegal conduct;
failure to keep your account or WHOIS information accurate and up-to-date;
failure to respond to inquiries from Domain Name Vendor for over ten (10) calendar days; or
if your use of the Domain Services involves us in a violation of any third party's rights or acceptable use policies, including, but not limited to, the transmission of unsolicited email or the violation of any copyright. No refund will be made when there is a suspension or termination of Domain Services for cause.
Either the Domain Name Vendor or we will notify you when renewal fees are due. It is your responsibility to keep current payment details on file with us. We have no liability should your domain name registration lapse because either we, or our partners, are unable to process your payment information.
The Domain Name Vendor owns all database, compilation, collective and similar rights, title and interests worldwide in its domain name database, and all information and derivative works generated from the domain name database.
YOU REPRESENT AND WARRANT THAT NEITHER THE REGISTRATION OF A DOMAIN NAME, NOR THE MANNER IN WHICH IT IS DIRECTLY OR INDIRECTLY USED, NOR THE USE OF OTHER OF THE DOMAIN SERVICES, INFRINGES THE LEGAL RIGHTS OF A THIRD PARTY OR WILL OTHERWISE SUBJECT DOMAIN NAME VENDOR OR US TO A LEGAL CLAIM. THE DOMAIN SERVICES ARE INTENDED FOR USE BY PERSONS WHO ARE AT LEAST 18 YEARS OLD, AND BY USING THE DOMAIN SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ALL INFORMATION PROVIDED BY YOU IN CONNECTION WITH YOUR PROCUREMENT OF THE DOMAIN SERVICES IS ACCURATE. ALL DOMAIN SERVICES ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS.
You agree to be bound by the domain name transfer agreement located here: https://archive.icann.org/en/transfers/policy-12jul04.htm
Only the owner may transfer a domain name or respond to a transfer request. You must unlock your domain prior to requesting a transfer. You must secure an EPP Authorization Code in order to transfer domains to an EPP registry.
22. These Paragraphs Apply Only to Back-up Protection and are subject always to the terms of the MSA.
If your Order Form states that the Services include “Backup Protection,” the following paragraphs shall apply, unless contrary to the prior paragraphs in this MSA.
“Backup Protection” refers to the availability, installation and or management of a back-up software, and the provision of storage space for data to be backed up on a backup server. The scope of such Backup Protection will be dependent on the specific extent of Backup Protection ordered by you as set out in the Order Form.
Once you purchase Backup Protection, we will install the back-up software onto the relevant server as specified by you, provided the root server access credentials we have for the server is unamended.
If the root server access credentials we have for the relevant server have been amended, then you may either:
provide us with the access credentials by entering them into your console account when requested to enable us access to the server to install the back-up software; or
install the back-up software onto the relevant server yourself.
We will create a default back-up schedule whereby a backup will take place once daily at a time to be determined by us at our sole discretion. The retention period for such default back-ups will be 7 days. You may amend the back-up schedule to fit your business needs.
Your use of the Backup Protection is limited to the same location that the relevant server being backed up is situated in. Your backup data will always be stored on backup servers in the same location.
Your recovery of any data restored from a backup job is limited to the same location that the relevant server is situated in.
You are responsible for purchasing a sufficient volume of backup storage quota, and maintaining this on an ongoing basis, so that the Backup Protection will operate effectively. The volume of storage quota required will be dependent upon the volume of source data on the relevant server to be backed up, the frequency with which you wish to run back-up jobs, and the length of time for which you wish to retain backup-data (otherwise known as data retention period). We shall not be responsible for the failure of back-up jobs in the event that you have insufficient back-up storage quota available.
For the avoidance of doubt, we will not manage the Backup Protection unless you have specifically purchased our Managed Services.
If you are receiving Backup Protection as an integral part of the Managed Services, we will provide the following additional services:
provide assistance with the initial set-up of Backup Protection, including manual installation of the back-up software if required, and the creation of a back-up schedule and policy specific to your business;
proactively notify you if a back-up job fails and work with you to assist in restoring effective back-ups;
undertake back-up jobs on your behalf subject to your prior written consent;
provide assistance in managing the restoration of data recovered as a result of back-up jobs, subject to your prior written consent and specific instructions regarding data to be restored.
It is your responsibility to configure the back-up software to serve your unique needs. If the Backup Protection we provide to you are integral to Managed Services, we will rely on your instructions to configure those Backup Protection. You agree to release us from liability should these instructions be incomplete or if you fail to provide us with sufficient information to configure custom Backup Protection that may have captured particular data.
We recommend that you independently take appropriate steps to maintain data in accordance with your business needs and requirements. You specifically agree that you understand that Backup Protection are not fool-proof, that they may not back-up all data, and that you should consider use of a second source of back-up.
If you purchase Backup Protection from us, they are provided on an as-is and as-available basis, as a supplement to, and not in lieu of, your own back-up efforts. While we will use commercially reasonable efforts to ensure the effective operation of the Backup Protection, you expressly agree that no back-up program or service is error-free or fail-safe. In the event of an interruption or failure of the Backup Protection, our only obligation is to restore your server to operating condition. It is your responsibility to restore the functionality of your website. You may wish to maintain an operating copy of your website for this purpose.
Should you, or a third party, request that data held by us using the Backup Protection be used for a purpose other than restoring your server to an operational condition, for example in litigation, we have no obligation to provide the data to you. Should we determine, in our sole and exclusive judgment, to provide the data to you, or should your data be subpoenaed, or disclosure of it otherwise compelled, it will be provided at our convenience and you will be charged our prevailing hourly rate. You will also be responsible for any attorneys’ fees we incur in reviewing, responding to or producing your data, and required to pay us a retainer to secure your obligations.
We have no responsibility to maintain backups following termination of services (including as regards Hosted Personal Data), nor to forward any information to another provider.
23. These Paragraphs Apply Only to Managed Security Clean-up Services and are subject always to the terms of the MSA.
If your Order Form states that the Services include “Managed Security Clean-up Services,” the following paragraphs shall apply, unless contrary to the prior paragraphs in this MSA.
“Managed Security Clean-up Services” refers to the management of the various aspects of an account from a security perspective.
Once you purchase the Managed Security Clean-up Services, we will:
back-up your account using a cPanel tool;
where possible, investigate the security of your account to determine how it was compromised;
back-up the uncompromised version of the application software relevant to your website (“Application”);
re-install and upgrade the Application to the most recent version, provided the relevant plug-in, themes and configurations in use on your current Application version are compatible with the most recent Application version. (Application upgrades by us, are limited to customers that currently have a version of the Application that is no more than one major version older than the current version. Customers with versions of the Application that are two or more versions older than the current version shall be responsible for upgrading the Application themselves);
provide you with a list of accounts that require passwords to be changed in order to prevent security compromises in future;
adjust your PHP security settings;
check any automated tasks scheduled to run on your Application to determine they are legitimate;
conduct a scan of your account using Pyscan and or Maldet. We will remove any malware codes identified as a result of the scan;
check your database for rogue users, or other content used to provide back door access to the Application;
set up the correct access rights ownership and or user permissions and remove any unnecessary user permissions;
harden the Application, applying recommendations used in accordance with good practice; and
provide you with instructions to effectively clean all computers and mobile devices used to publish updates to the Application.
The Managed Security Clean-up Services will not cover the following:
Rectification of issues that were present in your Application prior to the commencement of the Managed Security Clean-up Services that are unrelated to the security compromise;
Cleaning up custom applications that have not been created by us;
Cleaning up applications that breach our Terms of Service, specifically in relation to the size and content of the application.
Before you purchase the Managed Security Clean-up Services, you must:
confirm in writing that you accept the terms of this MSA; and
provide us with details of any customisations (for example, application plug-ins) that apply to your account.
Once you have purchased the Managed Security Clean-up Services, you must:
upgrade your Application to a version that is no more than one major version older than the current version if you wish to benefit from the reinstallation and upgrade of the Application by us;
test your Application to verify that it is fully functionality; and
follow the instructions that we provide to you, to effectively clean all computers and mobile devices used to publish updates to the Application.
After the Managed Security Clean-up Service is complete, we recommend that you independently take appropriate steps to maintain the security of your account. You specifically confirm that you understand that we are not responsible for the continued security of your Application following completion of the Managed Security Clean-up Service.
If you purchase Managed Security Clean-up Services from us, they are provided on an as-is and as-available basis, as a supplement to, and not in lieu of, your own efforts to ensure the security of your account. Whilst we will use commercially reasonable efforts to ensure the effective operation of the Managed Security Clean-up Services, you expressly agree that no application software program or service is error-free or fail-safe. In the event of an interruption or failure of the Managed Security Clean-up Services, our only obligation is to restore your account to operating condition.
IN NO EVENT WILL WE BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING A CLAIM BASED ON OUR PROVIDING THE SERVICES TO YOU) FOR LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA.
24. These Paragraphs Apply Only to Load Testing Services and are subject always to the terms of the MSA.
If your Order Form states that the Services include “Load Testing Services,” the following paragraphs shall apply, unless contrary to the prior paragraphs in this Service Agreement.
Subject to and upon the terms and conditions of this Agreement, and contingent on Customer's satisfaction of Freedomtech credit approval requirements,
Where the results of the Services produced by Freedomtech in various formats (“Results”) are required they shall be produced by Freedomtech and sent to the Customer as soon as reasonably practicable.
Time for performance of the Services and delivery of the Results shall not be of the essence.
Freedomtech shall, where any of its employees are present on the Customer’s premises, use reasonable endeavours to ensure that such employees comply with such reasonable site rules and procedures as are notified to Fredomtech Cloud Services by the Customer in writing.
The Customer:
shall be responsible for all activities which occur through use of its designated passwords or accounts and shall maintain, and be responsible for, the confidentiality and security of those passwords;
shall promptly respond to all and any of Freedomtech’s queries and/or requests for information;
shall co-operate with Freedomtech and provide it promptly with all information and access to the websites in respect of which the Services will be provided as is reasonably required by Freedomtech Cloud Services;
agrees to provide Freedomtech with at least three (3) days advance written notice of its desired testing dates and times where it has purchased testing for an unspecified future date or where it wishes to change any testing dates and/or times which were specified at the time of purchase. Freedomtech reserves the right to decline specific testing date and/or time requests if it is unable to provide the Services on such date and/or time, in which case Freedomtech will work with the Customer to find the next most suitable date and/or time;
acknowledges and agrees that the Services may cause tested websites to fail and may cause other load associated problems. The Customer agrees that, subject only to Section 8.a, all Services are carried out entirely at the Customer’s risk;
confirms that it has procured the consent of the ultimate owner of the website(s) to provision by Freedomtech of the Services and, subject only to Section 8.a, Freedomtech shall have no liability for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly because of or in connection with a failure by the Customer to obtain the necessary consent;
agrees to maintain (and warrants to Freedomtech that it will maintain throughout the Term of this Agreement) a current copy of all content hosted on the websites in respect of which the Services will be provided;
shall properly and fully back-up all data and copies of all computer programs and data which are held immediately prior to commencement of the Services, and which may be affected by the provision of the Services and, where appropriate, regularly perform backups during the performance of the Services, to enable straightforward recovery and/or reinstatement of any and all data and/or computer programs lost or damaged (whether in whole or part) through provision of the Services;
is liable for the effects of the Services on itself and any third party and subject only to Section 8.a, Freedomtech shall have no liability for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly because of or in connection with the effects of the Services in the Customer or any third party;
shall ensure that during the period the Services are carried out the Customer’s representative (“Representative”) is available (and present) at all times;
warrants that the Representative: (aa) is a technologically competent person; (bb) has substantial experience and knowledge of the Customer’s IT system (to include but without limitation all network and information systems; all computer hardware; databases; all software and firmware) and (cc) is duly authorised to instruct Freedomtech Cloud Services (verbally or otherwise) to abort the Services at any time;
acknowledges and agrees that the Services must be carried out within the period stated on the Order. The Customer will remain liable for payment of the fees for any aborted Services or the Services ordered but still unused within the stated period;
acknowledges and agrees that all intellectual property rights of any kind whatsoever in the materials used by Freedomtech to carry out the Services or in any registered or unregistered trade mark, service mark, logo, design, database content or format, copyrighted material, software or data owned by Freedomtech or any relevant third party owners remain vested in Freedomtech or the relevant third party owners and shall not be used by the Customer except with Freedomtech prior written permission;
acknowledges and agrees that any proprietary interest in any Results shall remain with Freedomtech, but the Customer is hereby granted a non-exclusive, nontransferable licence to copy and use the Results for its own internal purposes only. The Customer shall not modify the Results, transfer them to a third party nor incorporate them into its own materials, reports, portals or presentations (except to the extent such materials, reports, portals or presentations are exclusively used internally by the Customer);
acknowledges and agrees that all intellectual property rights of any kind whatsoever which come into existence as a result of the performance by Freedomtech of the Services will be the property of Freedomtech Services;
acknowledges and agrees that, subject only to Sections 11, Freedomtech shall not be liable. whether in contract, tort (including negligence), misrepresentation, under statue or otherwise to the Customer for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly by the Customer as a result of disruptions to the Services, downtime, outages or inaccurate information received by the Customer or as a result of Freedomtech performing maintenance of any hardware or software;
acknowledges and agrees that, subject only to Sections 11, Freedomtech shall not be liable for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly because of or in connection with any materials and/or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible or defective in any other way; and/or failure or delay by a third party to provide infrastructure, internet connectivity or other goods and/or services necessary for Freedomtech to comply with its obligations in the Agreement; and/or occurrence of an event described in Section 17.n (Force Majeure).
Freedomtech Hosting Terms and Conditions v1.3
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1. DEFINITION
1.1 “Customer” means the party identified as the Customer in this Agreement to whom FREEDOMTECH SOLUTIONS Ltd may agree to supply Products in accordance with these terms and conditions.
1.2 “Supplier” means FREEDOMTECH SOLUTIONS Ltd of 85 Great Portland Street, England W1W 7LT, United Kingdom or any subsidiary or associated company.
1.3 “Products” means goods or services including but not limited to computer hardware and software items to be provided by FREEDOMTECH SOLUTIONS Ltd to the Customer in accordance with these terms and conditions.
1.4 “Third Party Software” means all software owned by or licensed to the Customer from a third party owner (whether or not supplied by FREEDOMTECH SOLUTIONS Ltd and which comprises part of the Products).
2. ORDER ACCEPTANCE
2.1 All orders placed with FREEDOMTECH SOLUTIONS Ltd by the Customer for Products shall constitute an offer to FREEDOMTECH SOLUTIONS Ltd, under these terms and conditions, subject to availability of the products and to acceptance of the order by FREEDOMTECH SOLUTIONS Ltd authorised representative.
2.2 All orders are accepted and Products supplied subject to these express terms and conditions only. No amendment to these terms and conditions will be valid unless confirmed in writing on or after the date hereof by FREEDOMTECH SOLUTIONS Ltd authorised representative.
2.3 It is agreed that these terms and conditions prevail over the Customer’s terms and conditions of purchase unless these latter terms and conditions are amended by FREEDOMTECH SOLUTIONS Ltd in writing and signed by FREEDOMTECH SOLUTIONS Ltd.
3. INDEPENDENT CONTRACTOR
3.1 The relationship between the Supplier and Customer is that of Independent Contractor. Neither party is the agent of each other, and neither party has any authority to make any contractor make any obligation expressly in the name of the other party, without that party’s prior written consent for express purposes connected with the performance of this agreement.
4. DESPATCH
4.1 Any time quoted for despatch is to be treated as an estimate only, but despatch may be postponed because of conditions beyond FREEDOMTECH SOLUTIONS Ltd reasonable control, and in no event shall FREEDOMTECH SOLUTIONS Ltd be liable for any damages or penalty for delay in despatch or delivery.
4.2 Risk shall pass to the Customer at the time the Products are signed for by the customer.
4.3 If Products have not been received, the Customer must notify FREEDOMTECH SOLUTIONS Ltd within 7 days of the date of the invoice. If proof of delivery is required, this must be requested within 14 days of the date of the invoice.
5. CANCELLATION AND RESCHEDULING
5.1 Subject to clause 8.2, any request by the Customer for cancellation of any order or for the rescheduling of any deliveries will only be considered FREEDOMTECH SOLUTIONS Ltd if made at least 12 hours before despatch of the Products, and shall be subject to acceptance by FREEDOMTECH SOLUTIONS Ltd sole discretion, and subject to a reasonable administration charge therefore FREEDOMTECH SOLUTIONS Ltd. The Customer hereby agrees to indemnify FREEDOMTECH SOLUTIONS Ltd against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
6. PRICING
6.1 Catalogues, price lists and other advertising literature or material as used FREEDOMTECH SOLUTIONS Ltd are intended only as an indication as to the price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on FREEDOMTECH SOLUTIONS Ltd.
6.2 All prices are given by FREEDOMTECH SOLUTIONS Ltd at the time of the order on an ex-works basis and the Customer is liable to pay for transport, packing and insurance.
6.3 All quoted or listed prices are based on the cost to FREEDOMTECH SOLUTIONS Ltd of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be subject to amendment without notice at FREEDOMTECH SOLUTIONS Ltd discretion.
6.4 All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by the Customer and will be supplied in accordance with UK legislation in force at the taxpoint date.
7. PAYMENT TERMS
7.1 Invoices will be raised and dated by FREEDOMTECH SOLUTIONS Ltd on the date of despatch of the Products. Unless otherwise specifically requested and agreed, invoices will be payable by the Customer 30 days from the date of invoice. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 4% per annum above the base rate for the time being of the Barclays Bank plc. Such interest shall accrue on a daily basis and be payable on demand after as well as before judgment.
7.2 When all prices, taxes and charges due in respect of the Products and any Products supplied previously to the Customer have been paid in full, title to hardware Products only shall pass to the Customer.
7.3 Notwithstanding despatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these conditions, other property of the hardware Products shall not pass to the Customer until FREEDOMTECH SOLUTIONS Ltd has received cash or cleared funds payment of the price of the Products and all of the Products agreed to be sold FREEDOMTECH SOLUTIONS Ltd to the Customer for which payment is then due.
7.4 Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as FREEDOMTECH SOLUTIONS Ltd’s fiduciary agent and Bailee, shall keep the Products properly stored, protected and insured and identified as FREEDOMTECH SOLUTIONS Ltd property. Until that time the Customer shall be entitled to resell or use the products in the ordinary course of its business, but shall account FREEDOMTECH SOLUTIONS Ltd for the proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or properties of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.5 Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and not been resold) FREEDOMTECH SOLUTIONS Ltd shall be entitled at any time to require the Products be delivered to FREEDOMTECH SOLUTIONS Ltd and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.
7.6 The Customer’s power of sale or right to use such Products shall immediately cease if an Administrative receiver is appointed over all or any part of its assets or if it adjudicated bankrupt or enters liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986.
7.7 On termination of the Company’s power of sale or right to use the Products the Customer will immediately hold the Products to the order of FREEDOMTECH SOLUTIONS Ltd.
7.8 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of FREEDOMTECH SOLUTIONS Ltd, but if the Customer does so, all monies owing by the Customer to FREEDOMTECH SOLUTIONS Ltd shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.
7.9 FREEDOMTECH SOLUTIONS Ltd reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, FREEDOMTECH SOLUTIONS Ltd reserves the right to withdraw any credit facility such that the whole of the Customer’s account becomes due for payment forthwith.
8. SPECIFICATION OF PRODUCTS
8.1 FREEDOMTECH SOLUTIONS Ltd will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. FREEDOMTECH SOLUTIONS Ltd will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any such notice thereof from the manufacturer.
8.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified. FREEDOMTECH SOLUTIONS Ltd reserves the right to increase its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of such orders.
9. PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
9.1 The Customer hereby acknowledges that any proprietary rights in any Third Party Software supplied hereunder including, but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in the Third Party Software owner.
9.2 The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Third Party Software supplied and delivered FREEDOMTECH SOLUTIONS Ltd (including if so required the execution and return of a Third Party Software licence).The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software licence or having the same revoked by the proprietary owner. The Customer further agrees to indemnify FREEDOMTECH SOLUTIONS Ltd in respect of any costs, charges or expenses incurred by FREEDOMTECH SOLUTIONS Ltd arising out of the breach or negligent performance by the Customer of any of its obligations.
9.3 NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR ANY THIRD PARTY SOFTWARE LICENCED TO THE CUSTOMER UNDER THIS AGREEMENT IS TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.
10. RETURNS
10.1 FREEDOMTECH SOLUTIONS Ltd reserves the right to levy an administration charge in respect of the rotation of Products and returns.
10.2 Returns must be made subject to the following: (a) Prior authority having been obtained from FREEDOMTECH SOLUTIONS Ltd which will be given at FREEDOMTECH SOLUTIONS Ltd sole discretion; (b) Within 14 days of the date of the delivery; (c) subject to stock rotation policy; (d) The Products must be properly packed; (e) The Products must be in a saleable condition; (f) The Products must be accompanied by a list; (g) The Product is still covered by warranty (see section 11).
10.3 FREEDOMTECH SOLUTIONS Ltd reserves the right to reject any Products which do not comply with the conditions set out in clause 10.2.
10.4 FREEDOMTECH SOLUTIONS Ltd nevertheless agrees to accept any Products returned which are not in a saleable condition, FREEDOMTECH SOLUTIONS Ltd reserves the right to charge the cost to the Customer of bringing the Products into a saleable condition.
10.5 Incorrectly Ordered Goods. Incorrectly ordered Goods are the responsibility of the Customer. The Customer acknowledges that FREEDOMTECH SOLUTIONS Ltd is under no obligation to accept the return of incorrectly ordered Goods.
11. WARRANTY
11.1 FREEDOMTECH SOLUTIONS Ltd warrants that it has good title to or licence to supply all Products to the Customer.
11.2 If any part of the hardware Products should prove defective in materials or workmanship under normal operation or service, such Products will be repaired or replaced only in accordance with any warranty cover or terms as provided by the manufacturer of the Products PROVIDED THAT no unauthorised modifications to the Product or to the system of which the Product forms part have taken place FREEDOMTECH SOLUTIONS Ltd is not responsible for the cost of labour or other expenses incurred in repairing defective or nonconforming parts.
11.3 All software Products supplied hereunder are supplied “as is” and the sole obligation of FREEDOMTECH SOLUTIONS Ltd in connection with the supply of software Products is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that such software Product should fail to conform to product description PROVIDED ALWAYS THAT the Customer notifies FREEDOMTECH SOLUTIONS Ltd of any such nonconformity within 90 days of the date of delivery of the applicable software Product.
11.4 If the Products are rejected by the Customer as not being in accordance with the Customer’s order pursuant to clause 11.2 or 11.3, FREEDOMTECH SOLUTIONS Ltd will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. FREEDOMTECH SOLUTIONS Ltd will not consider any claim for compensation, indemnity or refund under liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the Customer until FREEDOMTECH SOLUTIONS Ltd has passed a corresponding credit note.
11.5 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11, FREEDOMTECH SOLUTIONS LTD DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.
12. LIABILITY
12.1 All exclusions and limitations in these Terms and Conditions or any Contract shall only apply so far as permitted by law and in particular nothing shall exclude or restrict liability:
12.1.1 for death or personal injury resulting from the negligence of a party or its employees acting in the course of their employment, or its agents, acting in the furtherance of their duties; 12.1.2 for fraudulent misrepresentation or other fraud;
12.1.3 for any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or 12.1.4 to the extent prohibited by the Consumer Protection Act 1987.
12.2 The exclusions and limitations of liability contained in these terms and each Contract shall apply regardless of whether the loss or damage was foreseeable or whether the Customer notifies the Supplier of the possibility of any greater loss.
12.3 Neither party shall in any circumstances be liable to the other for (a) loss of profits; (b) loss of sales or turnover; (c) loss or damage to reputation; (d) indirect loss or damage; (e) consequential loss or damage; or (f) special loss or damage, howsoever arising, and loss includes a partial loss or a reduction in value as well as a complete or total loss.
12.4 Subject to Clause 11.1 the total aggregate liability of the Supplier to the Customer for any claims arising out of or in connection with these terms, the Contract, the Goods and/or the Services, however arising will not exceed (a) up to a limit of £100,000 in respect of damage to tangible property of the Customer and (b) up to the total value of the Contract concerned in respect of other loss or damage.
12.5 The term “however arising” when used or referred to in these Terms and Conditions shall cover all causes and actions giving rise to liability of the Supplier arising out of or in connection with these Terms and Conditions, each Contract, the Goods and/or Services (i) whether arising by reason of any misrepresentation (whether made prior to and/or in these Terms and Conditions or a Contract) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; (iii) whether caused by any total or partial failure or delay in supply of the Goods and/or Services or by any defect in hardware, software or materials; and (iv) whether deliberate (but not with malicious intent) or otherwise, however fundamental the result.
12.6 In view of the exclusions and limitations of the Supplier’s liability in these terms, the Supplier recommends that the Customer considers taking out its own insurance in respect of those risks for which the Supplier excludes or limits liability. Additionally, the Customer acknowledges that the price of the Goods and/or Services provided for under the Contract reflects the exclusions and limitations on the Supplier’s liability as set out in this Clause 11, and that the Customer had the opportunity to negotiate variations to the exclusions and limitations, upon the agreement of a higher price. Accordingly, the parties agree that such exclusions and limitations are reasonable in all the circumstances.
12.7 Other than in respect of Clause 11.1, neither party shall have any liability to the other in any respect unless it shall have served notice of the same on the other party within 12 months of the date on which it became aware of the circumstances giving rise to any such claim or the date when it ought reasonably to have become so aware.
12.8. Each provision of this Clause 11, limiting or excluding liability, operates separately and shall survive independently of the other provisions.
13. TERMINATION FOR CLAUSE
1. This agreement may be terminated forthwith by notice in writing:
13.1 By FREEDOMTECH SOLUTIONS Ltd if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment as in clause 7.1.
13.2 If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.
3.3 If either party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or a reconstruction, or makes an arrangement with creditors or petitions for an administration order or has a Receiver or Manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.
13.4 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.
14. EXPORT AND/OR RE-EXPORT LIMITATION
14.1 Having regard to the current statutory or other United Kingdom government regulations in force from time to time and, in the case of Products manufactured in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Customer to FREEDOMTECH SOLUTIONS Ltd of an ultimate destination for any Products, the customer will not export or re-export any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
15. CONTRACT
15.1 The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.
15.2 No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
15.3 The Customer agrees not to assign any of its rights herein without the prior written consent of FREEDOMTECH SOLUTIONS Ltd.
15.4 In the event of any of these terms and conditions or any part of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.
15.5 Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable control.
15.6 Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.
15.7 On expiry of the full contract term of the MSA, the contract shall be deemed to continue for a further (12) twelve months, commencing on the day after the expiry of the full contract term, provided that either party may elect for this Agreement to terminate on the expiry of the contract terms by giving notice to the other not less than (3) three months before the expiry of the contract date.
16. International Shipments/Delivery (Incoterms – DAP)
2. DAP terms from (Place of collection) to (Delivery at place)
We confirm as the seller to the following obligations.
General. We the seller must deliver the goods, commercial invoice, and any evidence of conformity.
Delivery. Deliver the goods to named location at the disposal of the buyer, unloaded. On the agreed date or period.
Risks. All risk of loss/damage until goods have been delivered.
Carriage. Contract carriage of goods until the place of destination.
Insurance. The buyer is not obliged to make a contract of insurance but must provide information for this purpose at the seller’s request.
Delivery/transport document. Provide documents that allow the buyer to take over the goods.
Export/Import clearance. All export clearance expenses (license, security, inspection, etc). Assist with import clearance
Checking. The seller must check, count, weight, mark, and package goods.
Allocation of cost. Pay all the cost until delivery. Transport and loading. Unloading charges that are under the contract of carriage only. Transit costs. Cost of delivery/transport document. Duties and taxes for export.
Notices. Give the notice to receive the goods.
As the buyer you confirm to the follow obligations.
General. The buyer must pay the price of goods as agreed.
Taking Delivery. The buyer takes the goods at the named destination point.
Risks. All risk of loss/damage from the time or end of the period agreed for delivery. If the buyer fails to clear import customs or notify time/period, the risk is under the buyer.
Carriage. No obligation to contract a carrier.
Insurance. No obligation to insure the goods.
Delivery/transport document. Accepts the proof of delivery
Export/Import clearance. Assist with export clearance. Pay for import clearance and formalities (licenses, security, official documentation).
Checking. No obligation to check, count, weight, mark, and package goods.
Allocation of cost. Pay from the time goods delivered. Unloading. All costs for assistance. Pay duties and taxes for imports. Any additional cost if does not notify the shipment date or period. 10. Notices. Time or period for receiving the goods and name the point of receiving the goods.
17. LAW AND JURISDICTION
17.1 These Terms and Conditions, any Contract, and any non-contractual disputes or claims arising out of it shall be governed by and construed in all respects in accordance with English law
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1. SERVICES AND TERM.
1.1. Pursuant to the MSA, FreedomTECH will provide the Services to Customer for the Service charges. Customer’s signature on the Order Form or use of the Service or FREEDOMTECH Network constitutes its acknowledgement and agreement to be bound by the MSA. Capitalized terms are defined at the end of these Terms.
1.2. Each Service’s Initial Term is indicated on the applicable Order Form and begins as of the Service Date. The Initial Term will begin on the Service Date. 1.3. Customer may order additional Services or locations through additional Order Forms, which will be governed by this MSA. Customer’s account must be current in order to make changes to Services or order additional Services.
2. SERVICE CHARGES AND BILLING.
2.1. Service charges are on the Order Form and do not include applicable Taxes unless so indicated. New services or upgrades/relocations will result in additional fees/charges. If a Service is relocated, FREEDOMTECH shall maintain the Service at the prior location and Customer shall be responsible for Service charges for such location until such time as the Customer has terminated the Service at such prior location.
2.2. Usage independent charges are invoiced Quarterly in advance, usage dependent charges are invoiced monthly in arrears. All FREEDOMTECH invoices are payable within 30 days of the date of the invoice. Customer agrees to pay all charges and applicable Taxes (such as Value Added Tax) for the Service upon receipt of the invoice without counterclaim, setoff or deduction. A late charge shall be added to Customer’s past due balance of the lesser of 1.5% per month or the maximum legal rate. Customer agrees that its obligation to pay service charges and Taxes under this MSA for Services rendered prior to the termination of the MSA shall survive the termination of the MSA.
2.3. Customers claiming tax exemption must provide FREEDOMTECH with a properly executed exemption form or other satisfactory evidence of exemption from taxes.
3. SERVICE USE AND INTERRUPTION.
3.1. Customer’s use of FREEDOMTECH’s Services or Network may only be for lawful purposes and must comply with FREEDOMTECH’s AUP. Transmission of any material in violation of any law, regulation or the AUP is strictly prohibited. Access to other networks connected to FREEDOMTECH’s Network must comply with such other networks’ rules. Resale of FREEDOMTECH’s Services is not allowed for corporate customers (designated as such in the order form).
3.2. FREEDOMTECH’s obligations and Customer’s exclusive remedies for failure of FREEDOMTECH’s Network or any Service are stated in the FREEDOMTECH SLA.
4. TERMINATION, RESTRICTION OR SUSPENSION.
4.1. Prior to the Service Date, FREEDOMTECH may terminate the MSA if not approved by FREEDOMTECH corporate management (including credit check). FREEDOMTECH also may restrict, suspend or terminate the MSA, Customer’s use of or access to any Service, or both, at any time if (a) Customer is in material breach of the MSA (including but not limited to the AUP) and, in
FREEDOMTECH’s sole judgment, an immediate restriction or suspension is necessary to protect the FREEDOMTECH Network or FREEDOMTECH’s ability to provide services to other customers; or (b) Customer fails to pay any invoice within thirty (30) days of its due date; or (c) FREEDOMTECH’s facilities at Customer’s location are unavailable, due to a reason within Customer’s sphere of responsibility or force majeure (i.e. no connectivity within Customer’s location or no building access).
4.2. Either Party may terminate the MSA: (a) at the end of an Initial Term by providing the other Party with at least thirty (30) days written notice (if an Initial Term is equal to one (1) month, then notices provided during the Initial Term will not be effective until the end of the month after the month in which the notice was given (i.e., notice received April 20th is effective at the end of May 31st)); or (b) except as otherwise stated herein, during an Initial Term if the other Party breaches any material term or condition of this MSA and fails to cure such breach within thirty (30) days after receipt of written notice of the same.
4.3. If a Service is terminated prior to the Service Date, Customer shall pay FREEDOMTECH for all Initial Costs for such Service. If the Service is terminated after the Service Date, Customer shall pay FREEDOMTECH (a) for the Service up through the date of termination; and (b) except in the case of termination by Customer as provided in Section 4.2 above, or by FREEDOMTECH due to failure to deliver at the agreed location under Section 4.1(c) above, the Initial Costs (unless already paid) and the Termination Charge. Customer acknowledges that because actual damages to FREEDOMTECH caused by early termination of a Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconnections of the Service shall result in additional reconnection charges to Customer at FREEDOMTECH’s then-prevailing rates.
4.4. If Customer defaults in any of its payment obligations under the MSA, Customer agrees to pay FREEDOMTECH’s reasonable expenses, including but not limited to legal and collection agency fees, incurred by FREEDOMTECH in enforcing its rights. All termination notices by Customer must be sent separately for each Service (including terminating one Service location after a Service is switched to a new Service location) and must be sent to termination@freedomtech.solutions
5. DISCLAIMER OF LIMITATION OF LIABILITY.
5.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER FREEDOMTECH NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS MSA OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS LIMITATION. FREEDOMTECH EXPRESSLY DISCLAIMS ALL OTHER CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY THE LAW. FREEDOMTECH DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES.
5.2. WITHOUT PREJUDICE TO OR LIMITING OF FREEDOMTECH’S RIGHT TO RECEIVE PAYMENT FOR SERVICES, FREEDOMTECH’S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS MSA, AND THE PROVISION BY FREEDOMTECH OF FACILITIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN THE PRIOR TWO (2) MONTHS TO THE ACTION GIVING RISE TO THE CLAIM, OR (B) THIRTY THOUSAND POUNDS (£30,000.00) IN TOTAL; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS AND SHALL NOT APPLY FOR DEATH OR PERSONAL INJURY CAUSED BY FREEDOMTECH, OR FOR ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. 5.3. CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO FREEDOMTECH’S CONTROL. CUSTOMER AGREES THAT FREEDOMTECH SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO FREEDOMTECH’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. FREEDOMTECH SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). FREEDOMTECH IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER’S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS MSA FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER AGREES THAT IT WILL NOT HOLD FREEDOMTECH RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES, OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, FREEDOMTECH IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT HOLD FREEDOMTECH RESPONSIBLE FOR (A) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE FREEDOMTECH NETWORK. CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST FREEDOMTECH, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS MSA. 5.4. NEITHER FREEDOMTECH NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE).
6. INDEMNITY.
6.1. Customer will indemnify, defend and hold harmless FREEDOMTECH and its directors, officers, employees, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of non-compliance by Customer with its obligations under the MSA; (b) from any and all claims by any of Customer’s customers or other third party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action; provided, however, that Customer will have no obligation to indemnify and defend FREEDOMTECH against claims for damages for bodily injury or death caused by FREEDOMTECH’s gross negligence or wilful misconduct; or (c) from claims of copyright infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and claims of infringement of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by Customer or by any of Customer’s customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by Customer or by any of Customer’s customers or authorized end users, or (iii) the use of Service(s) by Customer in any manner inconsistent with the terms of this MSA, including without limitation the AUP.
7. ADDITIONAL PROVISIONS.
7.1. Except as to payment obligations of Customer, neither Party shall have any claim or right against the other Party for any failure of performance due to Force Majeure.
7.2. Neither Party is the agent or legal representative of the other Party, and this MSA does not create a partnership, joint venture or fiduciary relationship between FREEDOMTECH and Customer. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This MSA confers no rights, remedies, or claims of any kind upon any third party, including, without limitation, Customer’s subscribers or end-users.
7.3. Notices, if required, must be sent in writing by e-mail, courier or first class mail (postage prepaid) to the appropriate contact point listed on the Order Form, and are considered made when received at that address; provided, that termination notices to FREEDOMTECH must be sent in accordance with Section 4.4 above. In the event of an emergency, FREEDOMTECH may only be able to provide verbal notice first; such verbal notice will be followed by written notice. Customer is responsible for accuracy of its information on the Order Form, including points of contact.
7.4. Customer may not assign this MSA without FREEDOMTECH’s prior written consent, which consent shall not unreasonably be withheld. Any such assignment without FREEDOMTECH’s prior written consent shall be void.
7.5. Without limiting any other obligation which expressly survives the expiration or prior termination of the term of the MSA, the expiration or prior termination of the term of the MSA shall relieve both Parties of any further obligations hereunder, except with respect to the Sections 2, 3, 4.3, 4.4 and 5 through 7, which shall survive any expiration or termination of these Terms
7.6. The FREEDOMTECH Network is owned by FREEDOMTECH, or its licensors, and is protected by copyright and other intellectual property laws. Customer agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by FREEDOMTECH. Customer shall be entitled to only such rights with respect to the Services as are specifically granted herein.
7.7. This MSA and such other written agreements, documents and instruments as may be executed in connection herewith are the final, entire and complete agreement between Customer and FREEDOMTECH and supersede all prior and contemporaneous negotiations and oral representations and agreements, all of which are merged and integrated into this MSA. 7.8. This MSA and any Addendum thereto may be executed in one or more counterparts all of which taken together shall constitute one and the same instrument.
8. DATA PROTECTION
8.1. “Applicable Data Protection Laws” means the General Data Protection Regulation 2016/679 (GDPR) once it takes effect and any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument of any European member state where the Parties have a presence which implements the European Directive (95/46/EC), the e-Privacy Directive (2002/58/EC) and the GDPR once it takes effect (in each case as amended, consolidated, re-enacted or replaced from time to time); The terms “data subject”, “personal data” and “process” shall have their meanings given to them in the GDPR.
8.2. For data subjects in the European Economic Area (“EU Data Subjects”), each party shall comply with applicable Data Protection Laws when processing the personal data of EU Data Subjects (“EU Personal Data”) arising out of the MSA.
8.3. Where EU Personal Data is shared by the Customer with FreedomTECH, the Customer shall ensure such disclosure is in compliance with Applicable Data Protection Laws and that there is no prohibition or restriction which could: (a) prevent or restrict it from disclosing or transferring the EU Personal Data to FreedomTECH; (b) prevent or restrict FreedomTECH from disclosing or transferring EU Personal Data to its affiliates, subcontractors, vendors, credit reference agencies and competent authorities in order to provide the Services; and (c) prevent or restrict FreedomTECH and its affiliates, subcontractors, vendors and competent authorities from processing the EU Personal Data for the purposes set out in the MSA
8.4. Where EU Personal Data is shared by FreedomTECH with Customer, FreedomTECH shall ensure such disclosure is in compliance with Applicable Data Protection Laws and that there is no prohibition or restriction which could: (a) prevent or restrict it from disclosing or transferring the EU Personal Data to Customer; (b) prevent or restrict Customer from disclosing or transferring EU Personal Data to its affiliates in order to use the Services; and (c) prevent or restrict Customer and its affiliates from processing the EU Personal Data for the purposes set out in the MSA.
8.5. If Customer shares EU Personal Data with FreedomTECH, the Customer shall ensure that it has provided FreedomTECH’s fair processing notice informing the EU Data Subject of FreedomTECH’s processing of their personal data.
8.5 SLA for Internet Service
8.5.1 One (1) day Service Credit = 1/30th of the customer's monthly recurring charges.
8.5.2 One (1) week Service Credit = 7/30ths of the customer's monthly recurring charges.
8.5.3 One (1) month Service Credit = full amount of the customer's monthly recurring charges.
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These Terms & Conditions (and the Agreement which they form part of) are agreed on the date stated in the Key Terms between the Operator and the Customer whose details are set out in the Key Terms
1.1 Definitions and Interpretation
In this Agreement:
Accounting Date means 1 January in each year or such other date as the Operator notifies in writing to the Customer
Accounting Year means the period from and including one Accounting Date to but excluding the next Accounting Date
Additional Rack Order means a separate agreement substantially in the form set out at Appendix 5 under which the Operator contracts with the Customer with respect to additional Rack Footprints pursuant to condition 20
Aggregate Floor Weight Limit means a figure calculated by multiplying: (a) the number of Rack Footprints specified in the Key Terms; by (b) three hundred (300) kilograms
Agreement means, subject to condition 20 with respect to Additional Rack Orders, the Key Terms, these Terms & Conditions and the Appendices attached
ASHRAE TC 9.9 means the “2011 Thermal Guideline for Data Processing Environments – Expanded Data Center Classes and Usage Guidance” published by the American Society of Heating, Refrigerating and Air- Conditioning Engineers Inc
Availability means the number of minutes in any calendar month less the duration (rounded down to the nearest whole minute) of any Critical Outages in that calendar month
Benchmark means the ICIS Power Index for the United Kingdom or, where the ICIS Power Index ceases to be published, such other equivalent or comparable index as is published in substitution for such index or, where there is no such replacement index, such reasonable alternative index as the Operator may notify the Customer of in writing
Cables means the cables installed by the Operator pursuant to condition 7
Carbon Cost means the sum calculated in accordance with condition 9.1
Commencement Date means the Target Date or such later date as the Operator may reasonably determine in the event there are any delays to the Installation Works from which date the Operator will commence the provision of the Services
Common Areas means all parts of the Data Centre from time to time provided for the common use of more than one of the occupiers of the Data Centre and their visitors including (without limitation) vehicular and pedestrian accesses, passages, stairways, circulation areas, lifts, escalators, loading bays, fire escapes, toilet facilities, storage areas, refuse collection and disposal areas and parking areas
Cooling Outage means the average temperature measured from temperature sensors located in the Data Hall exceeds or falls outside the allowable temperate range for a “class A1 data centre” specified in Table 4 in the ASHRAE TC 9.9 for more than 60 consecutive minutes provided that at no time during the same period shall the power draw by the Equipment exceed the Maximum Power Draw or the Maximum Power Density
Contract Year means a period of one (1) year from and including the Commencement Date and each consecutive period of one (1) year from and including each anniversary of the Commencement Date
Critical Outage means the occurrence of a Cooling Outage or a Power Outage
Critical Services means those of the services specified at paragraphs 1 to 3 (inclusive) of Appendix 1 (Technical Services) insofar as they relate to the Rack Space
Cross Connect Notice has the meaning ascribed to it in condition 7.2 and Cross Connect Notices shall be construed accordingly
Cross Connect One-Off Charge means the applicable one-off charge specified as such in the Pricing Schedule
Cross Connect Recurring Fee means the applicable recurring charge specified as such in the Pricing Schedule
Cross Connect Right has the meaning ascribed to it in condition 7.1
Cross Connect Route means the installation of cables leading from the Rack Space to the equipment of any third party in the Data Centre along such routes which the Operator shall designate Customer has the meaning ascribed to it in the Key Terms
Customer’s Address means either of (i) the Customer’s registered office address stated as such in the Key Terms or (ii) the Customer’s registered office address recorded at Companies House (or the relevant company register in the Customer’s jurisdiction of incorporation) from time to time (for the avoidance of doubt, communications and notices sent to either address shall be deemed to have been delivered to the Customer’s Address and it is not necessary for the Operator to deliver to both addresses (if different))
Customer’s E-mail Address means the Customer’s e-mail address stated as such in the Key Terms
Customer’s Representative means a senior representative appointed by the Customer from time to time empowered to make executive decisions on behalf of the Customer
Customer Visitors means any employees, agents, contractors, sub- contractors and any other person(s) who may attend the Data Centre at the invitation of, or in order to fulfil a request made by or on behalf of, the Customer
Data means all data, information, text, drawings, diagrams, images or sounds that are embodied in any electronic or tangible medium
Data Centre means the data centre facility the address of which is stated in the Key Terms
Data Hall means the hall or suite in which the Rack Space is located
Dispute means any dispute between the parties arising under or in connection with this Agreement
Environmental Levies means all costs of whatever nature properly incurred in complying with any mandatory emissions trading scheme (and references to Environmental Levies incurred by the Operator include those incurred, paid or payable by the Operator or any person from time to time required to participate in any such mandatory emissions trading scheme in combination with the Operator)
Equipment means the racking, telecommunications, information technology and other equipment from time to time installed in the Rack Space by the Customer
Estimated Carbon Charge means the Operator’s reasonable and proper estimate of the Carbon Cost for the Accounting Year notified in writing to the Customer
Force Majeure Event means an event affecting the performance by either party of its obligations under this Agreement which is caused by acts, events, omissions, happenings or non-happenings beyond the reasonable control of the affected party including (without limitation) strikes, lockouts and other industrial disputes (except in relation to that party’s own staff), acts or omissions of any governmental or regulatory body or any other competent authority, any act or omission required for a party to comply with its statutory obligations, any failure by a third party supplier, any communications failure of outage, acts of terrorism, war, riot or civil commotion, but the parties agree that an industrial dispute related to a sub contractor of either party shall not constitute a Force Majeure Event
Group Company means any company which is for the time being a subsidiary holding company or a subsidiary of such holding company within the meaning of section 1159 of the Companies Act 2006 Index means the percentage stated as such in the Key Terms
Initial Term means the term of this Agreement stated as such in the Key Terms calculated from (and including) the Commencement Date
Installation Cost means the cost stated as such in the Key Terms
Installation Works means the works of installations and additions to the Rack Space carried out by or on behalf of the Operator at the entire cost of the Customer strictly in accordance with the Specification Invoicing Address means the address stated as such in the Key Terms
Key Terms means the key terms forming part of this Agreement
Maximum Power Density means the maximum power draw by the Equipment installed in any one Rack Footprint stated as such in the Key Terms subject to variation in respect of part or parts of the Rack Space in accordance with condition 5.2.4
Maximum Power Draw or MPD means the maximum power draw by all of the Equipment installed in the Rack Space stated as such in the Key Terms
Non-technical Services means all services that the Operator provides or arranges to be provided in the management and maintenance of the Data Centre (save to the extent that such management and maintenance is not specifically comprised in the Technical Services) including (without limitation) inspection, testing, repair, servicing and maintenance of the Non-technical Space (including replacement where beyond economic repair)
Non-technical Space means all parts of the Data Centre which are not from time to time Technical Space including (without limitation) the Common Areas, office and other accommodation for staff managing the Data Centre, plant rooms, storage areas and all parts of the structure, walls, foundations and roofs of the Data Centre that are not included in the Rack Space nor would be included in the technical space used by customers under services agreements of all other Technical Space if those services agreements were on the same basis as this Agreement Operator has the meaning ascribed to it in the Key Terms
Operator’s Address means the Operator’s registered office address stated as such in the Key Terms
Operator’s Representative means the Operator’s Chief Executive Officer from time to time appointed by the Operator
Outage means a Critical Outage and/or any temporary cessation in the availability of the Services
Payment Dates means the 1 January, 1 April, 1 July and 1 October in each year of the Term
Portal means the customer portal (or such URL as the Operator may notify to the Customer from time to time)
Post Completion Period has the meaning given to that term in condition 2.4
Power Delivery Point means the power delivery point stated as such in the Key Terms
Power Outage means the FreedomTECHge level of all sockets comprising the Power Delivery Point providing electrical power supply to the Equipment is nil
Pricing Schedule means the document attached to this Agreement at Appendix 3 or any revision of it made by the Operator in accordance with condition 8.5
Rack Footprint means a rack footprint measuring 600 mm (width) by 1,200 mm (depth) or, where different, as specified in Appendix 4 to this Agreement and Rack Footprints shall be construed accordingly
Rack Space means the Rack Footprints set out in the Key Terms and shown for the purpose of identification on the plan attached at Appendix 2 or located in such other place or places within the Data Centre as the Operator shall from time to time designate pursuant to condition 16
Response Time means a maximum period of four (4) hours between becoming aware of the relevant Critical Outage and an engineer attending the location and assessing the nature of the Critical Outage and notifying the Customer of the anticipated action to be taken to remedy such Critical Outage
Rules & Installation Guidelines means such reasonable rules, regulations, policies and procedures relating to the Data Centre or its use as are provided by the Operator to the Customer from time to time (including by way of the Portal, where the Customer has been provided with access by the Operator in accordance with condition 19)
Service Credit means a credit against the Service Fee which is made pursuant to condition 12
Service Fee means the annual fee stated as such in the Key Terms subject to increase in accordance with condition 8.4 (and potentially in accordance with condition 6.3.2)
Service Interruption means the unavailability of a Service with the consequence that the Customer’s business at the Rack Space is materially prejudiced or damaged
Service Media means sewers, drains, pipes, wires, cables, conduits and other conducting media
Services means the Technical Services and the Non-technical Services and Service shall be construed accordingly
Specification means the specification plans and documents (if any) attached at Appendix 4
Specified Rack Weight Limit means three hundred (300) kilograms per Rack Footprint (which may be increased with respect to specific Rack Footprints with the written agreement of the Operator, to be given in the Operator’s sole discretion, up to six hundred (600) kg per Rack Footprint)
Target Date means the date stated as such in the Key Terms
Technical Services means the services set out in Appendix 1
Technical Space means a part of the Data Centre which is the subject of a lease or services agreement or other licence, or constructed or adapted for that purpose, from time to time Term means the Initial Term and any continuation of the Initial Term pursuant to condition 17.2
Unit Charge or UC means the charge per kilowatt hour of electricity paid or payable by the Operator in respect of the supply of electricity to the Data Centre on the date of publication of the Base Benchmark Figure multiplied by the ratio representing the power usage efficiency of the Data Centre assessed by the Operator acting reasonably based on an average of the power usage efficiency of the Data Centre over the preceding twelve (12) calendar months which charge shall include (without limitation) a contribution (to be assessed by the Operator acting reasonably) towards (i) all chiller plant and cooling equipment, the uninterruptible power supply and all other relevant plant and equipment serving the Data Centre; (ii) the availability of the supply of electricity to the Data Centre; (iii) line losses on the national transmission and distribution systems; (iv) the use of the national transmission and distribution systems; and (v) any taxes, charges, levies or imposts imposed on suppliers or the Operator in respect of supplies
VAT means Value Added Tax and any similar tax substituted for it or levied in addition to it
Working Day means any day that is not a Saturday, a Sunday nor an official public or bank holiday in England and Wales
1.2 All sums payable hereunder are exclusive of VAT or any other applicable tax or duty payable upon such sums that shall be added if appropriate at the rate prevailing at the relevant tax point.
1.3 Any obligation to do or not to do something shall include an obligation to procure that it be done or not done.
2 Installation Works and Handover
2.1 The Operator will carry out or procure the carrying out of the Installation Works:
2.1.1 in accordance with the applicable requirements of all relevant statutes and delegated legislation (including permissions and consents issued pursuant to the same) and statutorily binding codes;
2.1.2 in a good and workmanlike manner and exercising all reasonable skill and care;
2.1.3 using only suitable good quality materials and equipment of their several kinds; and
2.1.4 in accordance with the Specification.
2.2 The Operator shall after the date of this Agreement, but subject to the Operator having received a properly executed direct debit mandate from the Customer in accordance with condition 8.3, proceed diligently with the carrying out of the Installation Works (or procure the diligent carrying out of the Installation Works) and shall use reasonable endeavours to procure that completion of the Installation Works occurs on or prior to the Target Date subject to any time extensions permitted under condition 2.3.
2.3 In the event that the progress of the Installation Works is demonstrably delayed by one of the following causes: (i) a Force Majeure Event or any other cause beyond the reasonable control of the Operator; or (ii) any breach of this Agreement by the Customer (which shall include, without limitation, the Customer’s failure to provide a valid direct debit mandate as required by conditions 2.2 and 8.3); then and to the extent that completion of the Installation Works will not occur on or prior to the Target Date, the Target Date shall be extended by such period as may be reasonable having regard to the cause and circumstances of the delay.
2.4 Any dispute or difference under this Agreement as to whether completion of the Installation Works has occurred and/or has been conducted in accordance with the requirements set out at in this condition 2 shall be determined under condition 22 and must be initiated by the Customer within a period of 10 Working Days after the earlier of: (i) the Commencement Date; and (ii) the date on which the Customer commences its use of the Services (the Post-Completion Period). Should the Customer not initiate a dispute during the Post Completion Period, the Customer shall be deemed to have accepted that the Installation Works have, in all respects, been conducted in accordance with this condition 2.
2.5 The Customer agrees to provide ‘as built’ drawings and full specifications of any Equipment to the Operator upon request.
3 Use and Rights
3.1 Subject to the Customer paying the Service Fee and all the other sums due under this Agreement and the Customer complying with its obligations under this Agreement and the Rules & Installation
Guidelines, the Operator hereby grants to the Customer with effect from the Commencement Date for the duration of the Term the right:
3.1.1 to install and retain the Equipment in the Rack Space and use the same in accordance with condition 5.4;
3.1.2 to connect into the Power Delivery Point designated by the Operator to serve the Rack Space for the purposes only of the provision of an electrical power supply to the Equipment;
3.1.3 to use any Cables installed by the Operator in accordance with condition 7; and
3.1.4 to pass and repass at all times over the Common Areas.
3.2 The Operator reserves the right:
3.2.1 to refuse access to the Data Centre or remove from the Data Centre any employees and sub-contractors of the Customer and/or any Customer Visitor whose admission or presence is or would be in the reasonable opinion of the Operator detrimental to the security of the Data Centre or in respect of whom the Customer has failed to request a right of access from the Operator and the Operator will not be responsible for the consequences of any such refusal or failure or delay by the Customer in notifying it of its access requirements; and
3.2.2 at all reasonable times and on reasonable notice (except in case of emergency) to enter the Rack Space in order to: (i) inspect and record the condition of the Rack Space or any other parts of the Data Centre; (ii) remedy any breach of the Customer’s obligations under this Agreement; (iii) repair, maintain, clean, alter, replace, install, add to or connect up to any Service Media; (iv) repair, maintain, alter or rebuild any part of the Data Centre; and (v) comply with any of its obligations under this Agreement.
3.3 The Customer accepts that the Operator shall be entitled to disconnect or physically terminate or detach or remove cables laid by the Customer in breach of this Agreement and in particular in breach of condition 3.1.3 and the cost shall be reimbursed by the Customer on demand as a debt.
3.4 The Customer acknowledges and agrees that any rights conferred on the Customer by this Agreement are the rights of a licensee only. Nothing in this Agreement is intended to create any relationship of landlord and tenant between the Operator and the Customer.
4 Provision of the Services
4.1 Subject to the other provisions of this Agreement and the Customer paying the Service Fee and all the other sums due under this Agreement the Operator agrees with the Customer to provide the Services to the Customer in accordance with this condition 4.
4.2 The Operator warrants and undertakes to the Customer that it shall perform the Services with reasonable care and skill and in accordance with this Agreement but:
4.2.1 the Operator will not be in breach of this condition 4 as a result of any failure or interruption of any of the Services: (i) resulting from a Force Majeure Event, so long as the Operator uses its reasonable endeavours to remedy the same as soon as reasonably practicable after becoming aware of such circumstances; or (ii) to the extent that the Services (or any of them) cannot reasonably be provided as a result of works of inspection, maintenance and repair or other works being carried out at the Data Centre; or (iii) resulting from a breach of the obligations of the Customer set out at condition 5;
4.2.2 the Operator does not warrant or undertake that the Services will cause the Equipment to operate without fault or interruption; and
4.2.3 without prejudice to the Operator’s right to suspend the Services at condition 8.6, the Operator shall be entitled to suspend the provision of the Services in the event that (i) the Customer’s operations at the Rack Space or from the Equipment are unlawful or illegal and/or (ii) the Customer breaches any of its obligations under condition 5.
4.3 The Operator agrees with the Customer to provide to the Customer such other additional services requested by the Customer that the Operator agrees (at an additional cost to the Customer) in writing to provide.
4.4The Operator shall pay all business rates due in respect of the Rack Space.
4.5 The Customer warrants that is has given the Operator all of the information required for it to complete the Installation Works and to provide the Services to the Customer. The Customer further warrants that all information so supplied is accurate and that any information which may be supplied by the Customer to the Operator in the future will be accurate.
4.6 The Customer agrees that it has conducted its own assessment of the Data Centre, the Services and this Agreement (including, without limitation, the Specification) and has independently determined that, in all respects, they are suitable for the purposes for which the Customer intends to use them.
4.7 In the event that the Operator becomes entitled to suspend the provision of the Services under this Agreement for any reason, such right to suspend shall (without limitation) be deemed to include: (i) the right for the Operator to deny access to the Data Centre by the Customer and/or any Customer Visitor; and (ii) the right to disconnect the Equipment from the electricity supply.
5 Customer’s obligations
The Customer agrees with the Operator:
5.1 To maintain the Equipment (and any associated cables installed by it) in good working order and (save to the extent that the same is the responsibility of the Operator in accordance with the Rules & Installation Guidelines) to procure that the Rack Space is kept clean, tidy and safe at all times;
5.2 To comply with the requirements of the Operator’s technical and installation standards in respect of the Data Centre and the Operator’s electrical power management procedures, environmental conditions, and the Operator’s method statements on cable management and cable installation procedures each as set out in the Rules & Installation Guidelines and ensure that (without limitation):
5.2.1 no installation of, or modification, alteration or addition to, the Equipment would result in increases to the floor loading which would cause the Customer to exceed: (1) the relevant Specified Rack Weight Limit with respect to the weight of Equipment situated within any of the Customer’s Rack Footprints; or (2) the Aggregate Floor Weight Limit with respect to the weight of the Equipment in aggregate across all of the Customer’s Rack Footprints;
5.2.2 the Equipment is connected to the pair of commando sockets designated by the Operator to serve each Rack Footprint;
5.2.3 the power draw by the Equipment does not exceed the Maximum Power Draw; and
5.2.4 the power draw by the Equipment does not exceed the Maximum Power Density provided that the Customer shall be permitted to exceed the Maximum Power Density where:
5.2.4.1 the Operator’s technical and installation standards in respect of the Data Centre (including, without limitation, the cooling system for cooling in the Data Hall in which the Rack Space is located and the ventilation installations for the provision of fresh and conditioned air to that Data Hall) are not (in the Operator’s opinion) prejudiced; and
5.2.4.2 the Customer has submitted to the Operator details of the Equipment and its proposed configuration for the approval of the Operator; and
5.2.4.3 the Customer has first obtained the written consent of the Operator to the Maximum Power Density being exceeded (such consent not to be unreasonably withheld);
5.3 To comply with the Rules & Installation Guidelines and the requirements of any statutes, regulations and codes of practice applicable to the Rack Space or its use;
5.4 Not to use the Rack Space except for the hosting of information technology equipment and uses ancillary thereto;
5.5 Not to use the Data Centre, any Equipment or any software or systems located at or hosted in the Data Centre for: (i) any illegal or immoral purpose or for the publication or retrieval of any material of a lewd, obscene or pornographic nature; (ii) in a manner which creates a legal nuisance or damage or annoyance to the Operator or any other customer of the Operator or any occupier of adjoining premises; (iii) for any domestic or residential purposes; or (iv) for the production, storage, use or disposal of hazardous materials or waste for which any licence is needed under statute or any other legislation;
5.6 Not to use the Data Centre, the Services or any Equipment in a manner or for a purpose which: (i) constitutes a violation or infringement of the rights of the Operator or any other person; or (ii) is harmful or detrimental to the reputation of the Operator or any other person;
5.7 Not to cause any obstruction to the Common Areas or any injury, damage or nuisance to, or interference with any person or property including (without limitation) the Data Centre and/or any equipment owned by third parties which may from time to time be located in the Data Centre; 5.8 Not to unreasonably or unlawfully interfere with any business or activities lawfully carried on by the Operator or any other customer or user of the Data Centre;
5.9 Not to make any alteration or addition whatsoever in on or to the Rack Space;
5.10 Not to install any cables in the Data Centre or to connect to the equipment of any other occupier in or user of the Data Centre (whether physically or wirelessly) other than by way of exercise of the Customer’s rights under condition 3;
5.11 To remove all waste material, equipment (not comprising part of the Equipment), packaging or other items that may come to be brought in to the Data Centre by the Customer or a Customer Visitor by the end of each day;
5.12 To make good to the Operator’s reasonable satisfaction: (i) any damage to the Data Centre or any neighbouring premises caused by the Customer or any Customer Visitor; (ii) any disrepair for which the Customer is liable; and (iii) any unauthorised alterations, within fourteen (14) days after the date of notice from the Operator (or sooner if the Operator reasonably requires) and if the Customer fails to comply with any such notice the Operator may carry out the work, and the cost shall be reimbursed by the Customer on demand as a debt;
5.13 To be responsible for the payment directly to the relevant carriers or suppliers of all fees and charges payable in relation to the ordering and/or installation and/or rental and use of communications circuits from public telecommunications carriers or suppliers and in relation to the provision of maintenance and support services;
5.14 Where the Customer fails to remedy a breach of its obligations within fourteen (14) days after the date of notice from the Operator (or sooner if the Operator reasonably requires) to pay to the Operator on demand amounts equal to such liabilities, claims, demands, proceedings, damages, losses and proper costs and expenses as it may incur in connection with the enforcement or remedying of any breach of the covenants in this Agreement on the part of the Customer and any guarantor; and
5.15 To assume responsibility and liability for all acts and omissions of any Customer Visitor and to indemnify and hold harmless the Operator in respect of: (i) any claim arising from the acts or omissions of any Customer Visitor; or (ii) any damage or loss to the Operator’s property arising from the acts or omissions of any Customer Visitor.
6 Excess Power Draw
6.1The Customer acknowledges and agrees that:
6.1.1 the Operator has calculated the fees, expenses and charges payable by the Customer to the Operator under this Agreement on the basis that the power draw by the Equipment shall not exceed the Maximum Power Draw; and
6.1.2 if the power draw by the Equipment exceeds the Maximum Power Draw this will have a materially adverse effect on other occupiers of the Data Centre and the equipment owned by third parties which may from time to time be located in the Data Centre;
6.2 If the power draw by the Equipment exceeds the Maximum Power Draw then the Operator may (but is not obliged to) give notice to the Customer of such breach (the Excess Power Breach) and the Customer shall within a period of twenty-four (24) hours of such notice (or sooner in case of emergency) desist from the Excess Power Breach.
6.3 Without prejudice to the remainder of this condition 6 and any other remedies available to the Operator, if the Operator has served notice pursuant to condition 6.2 with respect to an Excess Power Breach and, during the period of five (5) days commencing on the date such notice is served (the Power Use Benchmark Period), the power draw by the Equipment continues to exceed the Maximum Power Draw (whether continuously or intermittently), the Operator may, in its absolute discretion, serve a notice informing the Customer that this Agreement is to be deemed amended with effect from the date of such notice, as follows:
6.3.1 the Maximum Power Draw under this Agreement shall be increased to a level specified by the Operator in such notice which may be up to (but not exceed) the highest recorded power draw by the Equipment during the Power Use Benchmark Period; and
6.3.2 the Service Fee shall increase by an amount calculated as follows:
where:
SFC is the current Service Fee (being that in force before the increase pursuant to this condition 6.3.2 is applied);
MPC is the current Maximum Power Draw (being that in force before the increase pursuant to condition 6.3.1 is applied); and
MPN is the new Maximum Power Draw (being that to be in force following the increase pursuant to condition 6.3.1).
Where the Service Fee increases pursuant to this condition 6.3, the Operator may invoice the Customer (either upon such increase taking effect or when issuing the next invoice pursuant to condition 8.2.1) with respect to the increase in the Service Fee during the period from (and including) the date on which the increased Service Fee took effect to (but not including) the next Payment Date (and such invoice shall be payable by the Customer within 30 days of receipt), such an increase to be calculated on a pro-rata basis.
6.4 The parties agree damages are likely to be an insufficient remedy for any Excess Power Breach (including, without limitation, circumstances where the heat output of the Equipment exceeds an amount equivalent to the Maximum Power Draw) and that the Operator is entitled to protect against such a breach by injunctive relief or specific performance.
7 Cross Connect Right
7.1 The Operator grants to the Customer the right (the Cross Connect Right) for the duration of the Term to request that the Operator installs Cables along the Cross Connect Route.
7.2 The Cross Connect Right may be exercised by the Customer by giving notice or placing an order on the Portal for a cross connect on the Portal (where access has been provided to the Customer) (in both cases, a Cross Connect Notice) to the Operator and the Cross Connect Notice is to specify the desired Cables and connection points for the Cables (which shall be along the Cross Connect Route) in respect of which the Cross Connect Right is exercised and the Customer may serve any number of Cross Connect Notices.
7.3 Following the receipt by the Operator of a Cross Connect Notice:
7.3.1 the Operator will procure the installation of the Cables between the connection points in each case as specified in the Cross Connect Notice in accordance with this condition 7.3;
7.3.2 the Operator warrants and undertakes to the Customer that it shall procure the installation of such Cables with reasonable care and skill in a proper and efficient manner and using suitable materials and competent staff but the Operator does not warrant or undertake that such installation of the Cables specified in the Cross Connect Notice will cause the Equipment to operate without fault or interruption; and
7.3.3 within thirty (30) days after the receipt by the Customer of an invoice from the Operator for the same the Customer shall pay to the Operator the applicable Cross Connect One-Off Charge for the installation of the Cables specified in the Cross Connect Notice, provided that the Operator shall not be required to install any Cables where to do so would breach the Operator’s method statements on cable management and cable installation procedures.
7.4 The Customer will pay to the Operator the applicable Cross Connect Recurring Fee such fee to be payable:
7.4.1 with effect from the date of the installation of the Cables (the Installation Date) specified in the Cross Connect Notice until the expiry of the Term or (if earlier) the date twenty-eight (28) days after the Customer gives notice to the Operator terminating its requirement for the same (which may be by way of placing a cross connect disconnect request on the Portal where the Customer has been provided with access to the Portal by the Operator) (whereupon the Operator will be entitled but not obliged to remove or disconnect such Cables); and
7.4.2 by equal instalments quarterly in advance on the Payment Dates in every year of the Term (and proportionately for any period less than a year), provided that the first instalment shall comprise an appropriate proportion of the Cross Connect Recurring Fee calculated with effect from the Installation Date until the end of the then current quarter to be payable on the Installation Date.
7.5 Each applicable Cross Connect Recurring Fee payable by the Customer in accordance with condition 7.4 shall upon each anniversary of the Commencement Date increase by the Index.
8 Fees and payment terms
8.1 The Customer acknowledges that the Operator has undertaken or has agreed to undertake certain works in the Rack Space on behalf of the Customer and the Customer undertakes to pay to the Operator the Installation Cost in respect of those works on the date of this Agreement without any deduction, counterclaim or set-off.
8.2 The Customer undertakes to pay to the Operator during the Term without any deduction, counterclaim or set-off:
8.2.1 the Service Fee and any VAT thereon by equal instalments quarterly in advance on the date thirty (30) days after receipt of a valid VAT invoice for the same addressed to the Customer or (if later) the Payment Dates in every year of the Term (and proportionately for any period less than a year), provided that the first instalment shall comprise an appropriate proportion of the Service Fee calculated with effect from the Commencement Date until the end of the then current quarter to be payable on the date of this Agreement;
8.2.2 the Carbon Cost and any VAT thereon; and
8.2.3 interest in accordance with condition 8.7. 8.3 The Service Fee shall be payable by banker's direct debit. The Customer agrees that it shall submit a properly executed direct debit mandate (in the form provided by the Operator to the Customer) as soon as reasonably practicable. In the event that a direct debit mandate should lapse or be cancelled for any reason, the Customer agrees that it shall provide a further properly executed and valid direct debit mandate (again, in such form as the Operator may provide to the Customer) as soon as reasonably practicable. The Customer agrees that it is an essential condition of this Agreement that the Customer return a properly executed direct debit mandate and if for whatever reason the Customer does not do so as required by this condition 8.3,the Operator may (at its discretion) charge the Customer additional three percent (3%) over and above the Service Fee, suspend any Installation Works that is due to undertake and extend the Commencement Date accordingly, and/or terminate this Agreement.
8.4 The Service Fee shall on each anniversary of the Commencement Date increase by the greater of: (1) the Index; and (2) the percentage increase in the Benchmark (if any) during the immediately preceding Contract Year (being the Relevant Contract Year) (such increase shall be calculated with reference to the Benchmark figure most recently published prior to the commencement of the Relevant Contract Year, when compared to the Benchmark figure most recently published prior to the end of the Relevant Contract Year) (the Revised Service Fee). Where the Service Fee increases pursuant to this condition 8.4, the Operator may invoice the Customer (either upon such increase taking effect or when issuing the next invoice pursuant to condition 8.2.1) with respect to the increase in the Service Fee during the period from (and including) the date on which the Revised Service Fee took effect to (but not including) the next Payment Date (and such invoice shall be payable by the Customer within 30 days of receipt), such an increase to be calculated on a pro-rata basis.
8.5 The sums specified in the Pricing Schedule may be subject to revision by the Operator on not less than thirty (30) days’ prior notice to the Customer.
8.6 The Operator reserves the right (without prejudice to the Operator’s other rights and remedies) to suspend provision of the Services if any sum due under this Agreement is not paid within thirty (30) days of the due date and the Operator shall recommence provision of the Services upon receipt in full of all sums that are due and subject to receipt of a reconnection fee of TWO HUNDRED POUNDS (£200).
8.7 If any sum due under this Agreement is not paid on the due date then (without prejudice to the Operator’s other rights and remedies) the Operator reserves the right to charge interest on such sum on a daily basis (after as well as before judgment) from the due date to the date of payment at the rate of 4% above the base rate from time to time of Barclays Bank plc (or of such other bank as the Operator may nominate from time to time).
9 Carbon Cost
9.1 The Carbon Cost in respect of each Accounting Year shall be the aggregate of the following:
9.1.1 a fair and reasonable proportion (to be assessed by the Operator acting reasonably) of the Environmental Levies relating to that Accounting Year; and
9.1.2 an administration fee equal to ten per cent (10%) of the costs referred to in condition 9.1.1.
9.2 In relation to the Carbon Cost:
9.2.1 the Customer shall on or prior to the Commencement Date and no later than sixty (60) days prior to each following Accounting Year give notice in writing to the Operator of the Customer’s reasonable and proper estimate of the electrical power to be used by the Equipment during the first Accounting Year and each successive Accounting Year (as applicable);
9.2.2 if the Customer does not notify the Operator of such estimate in accordance with condition 9.2.1 the Operator shall be entitled (without any liability for the accuracy of the same) to make its own estimate of the electrical power to be used by the Equipment during the relevant Accounting Year;
9.2.3 the Customer shall pay the Estimated Carbon Charge for each Accounting Year to the Operator annually in advance no later than the Accounting Date, provided that the first instalment of the Estimated Carbon Charge shall be payable on the date of this Agreement;
9.2.4 if the Operator does not notify the Customer of the Estimated Carbon Charge for any Accounting Year the Estimated Carbon Charge for the preceding Accounting Year shall apply;
9.2.5 as soon as practicable after the end of each Accounting Year the Operator shall provide to the Customer a statement of the Carbon Cost in respect of that Accounting Year;
9.2.6 the difference between the Carbon Cost and the Estimated Carbon Charge for the corresponding Accounting Year (or part) shall be paid by the Customer to the Operator within thirty (30) days following the date of the statement for the Accounting Year, or allowed against the next Estimated Carbon Charge payment, or after the expiry of the Term refunded to the Customer within thirty (30) days after the date of expiry of the Term; and
9.2.7 the Customer shall be entitled by appointment to inspect the accounts relating to the Carbon Cost and documents at such location as the Operator reasonably directs.
9.3 Without prejudice to condition 9.2 the Customer must co-operate with the Operator and provide such information and assistance as the Operator may reasonably require to enable the Operator to comply with its obligations (if any) under the mandatory emissions trading scheme.
10 Reactive Maintenance
10.1 Immediately on becoming aware of a Service Interruption or a Critical Outage the Customer shall give notice of the same to the Operator.
10.2 On becoming aware of a Service Interruption or following notification in accordance with condition 10.1 the Operator shall (unless condition 4.2.3 applies):
10.2.1 specify to the Customer an estimated time scale for resumption of the Service which is the subject of the Service Interruption;
10.2.2 use its reasonable endeavours to remedy the Service Interruption as soon as reasonably practicable; and
10.2.3 update the Customer as necessary until the provision of the Service which is the subject of the Service Interruption is resumed.
10.3 On becoming aware of a Critical Outage or following notification in accordance with condition 10.1 the Operator shall (unless condition 4.2.3 applies) in addition to its obligations specified in condition 10.2:
10.3.1 attend the location and assess the nature of the same and notify the Customer of the anticipated action to be taken to remedy such Critical Outage no later than the Response Time; and
10.3.2 investigate the underlying causes of the failure and preserve any data indicating the cause of failure.
10.4 The Customer shall allow the Operator free access to the Rack Space at all times for so long as the Service Interruption or Critical Outage persists in order to inspect and/or test the Service and carry out any remedial works.
11 Planned Maintenance
The Operator shall give to the Customer at least twenty eight (28) days’ notice in writing in advance of any work that it intends to carry out in relation to the Critical Services where such works will adversely affect the required service level or resilience of those Critical Services as specified in this Agreement, and such notice shall include details of the nature of the work to be carried out, the disruption to the Critical Services and the dates and estimated times for carrying out such work.
12 Service Credits
12.1 Except where a Critical Outage is due to any act omission or default by the Customer (or occurs within twenty eight (28) days of any such act omission or default), or is due to a Force Majeure Event, if a Critical Outage occurs during any calendar month, the Customer will receive a credit against the Service Fee as set out below:
Availability
Duration of Availability as % of the number
of minutes in the relevant calendar monthService Credit
% reduction in monthly Service Fee≥ 99.95% 5% < 99.95% but > 99.9% 10% < 99.9% but > 99.85% 15% < 99.85% but > 99.8% 20% < 99.8% 30% 12.1.1 where a Cooling Outage occurs as a result of a Power Outage such credits shall be allowed only in respect of the Power Outage and the same shall be deemed to comprise just one (1) Critical Outage;
12.1.2 where a Critical Outage affects part or parts only of the Rack Space such credits shall be apportioned and allowed per Rack Footprint (and pro rata in the case of a part) within the Rack Space so affected;
12.1.3 the Operator shall not be required to allow such credits in respect of more than four (4) Critical Outages in any one period of twelve (12) months during the Term, and any such credits shall be set off against the Service Fee or other amounts due to the Operator for the next following Payment Date (or such longer period if appropriate) or, if no such sums are due, such credit shall be paid by the Operator to the Customer within thirty (30) days of the expiry or earlier determination of the Term.
12.2 The Operator’s entire liability to the Customer and the Customer’s sole and exclusive remedy against the Operator in respect of an Outage and in respect of all loss, damages, costs and expenses caused by or relating thereto, regardless of the form of action, whether in contract, tort (including negligence and breach of statutory duty), or otherwise howsoever caused are as set out in this condition 12.
13 Limitation of liability
13.1 Clause 13 sets out the entire liability of the parties (including without limitation any liability for the acts and omissions of its employees, agents and sub-contractors) to each other under or in connection with this Agreement howsoever arising (including without limitation as a result of negligence or any breach of its obligations under this Agreement), but nothing in this Agreement shall exclude or limit theparties’ liability for death or personal injury caused by negligence or for fraudulent misrepresentation.
13.2 Neither party shall be liable to the other (the Non-Defaulting Party) for:
13.2.1loss of contracts or goodwill (in each case whether a direct or indirect loss); or
13.2.2 any type of economic loss (including loss of profit, loss of revenue, loss of anticipated savings or loss of business) and in all cases whether a direct or indirect loss; or
13.2.3 loss of Data (whether a direct or indirect loss); or
13.2.4 indirect, consequential or special loss, damage or liability (including loss or damage suffered by the Non-Defaulting Party as a result of an action brought by a third party) even if such loss or damage was reasonably foreseeable.
13.3 The total liability of a party to the other party hereunder in any period of twelve (12) months during the Term shall not exceed 120% of the aggregate of the Service Fee payable by the Customer under this Agreement during such period of twelve (12) months. For the avoidance of doubt, the Service Fee payable shall not include such amount as has been (or is to be) credited by way of a Service Credit.
13.4 The Customer acknowledges that:
13.4.1 the Operator has calculated the fees, expenses and charges payable by the Customer to the Operator under this Agreement on the basis that the Operator shall exclude or limit its liability to the Customer as set out in this Agreement;
13.4.2 the Customer is responsible for providing and maintaining an adequate back up copy of any Data held on the Equipment;
13.4.3 the Customer is responsible for maintaining and implementing all necessary business continuity and disaster recovery plans;
13.4.4 the Operator is not aware of the processing that the Equipment engages in or the purpose of the Equipment; and
13.4.5 the Customer shall be responsible for insuring against or bearing any loss for which the Operator has excluded or limited its liability under this Agreement.
13.5 The parties acknowledge that given the nature of the Data Centre and the Services and its own obligations under this Agreement, it is reasonable for the parties to exclude or limit their liability as set out in this condition 13.
13.6 The parties acknowledge that each of the sub conditions in this condition 13 are severable and that each of those sub conditions shall be construed as separate limitations.
14 Insurance
14.1 The Operator agrees with the Customer:
14.1.1 to insure the Data Centre (other than the Equipment, fixtures and fittings) unless the insurance is invalidated in whole or in part by any act or default of the Customer with an insurance office or underwriters of repute;
14.1.2 maintain insurance against public liability for not less than the amount of public liability insurance coverage referred to in the Key Terms with that insurer or another reputable insurer for the duration of the Term; and
14.1.3 to supply to the Customer at its request (no more frequently than annually) evidence of the insurances referred to in this condition 14.1 having been effected.
14.2 The Customer agrees with the Operator:
14.2.1 to give the Operator immediate notice on becoming aware of any event or circumstance which might affect or lead to an insurance claim;
14.2.2 not to do anything at the Rack Space which would or might prejudice or invalidate the insurance of the Data Centre or cause any premium for its insurance to be increased;
14.2.3 to pay to the Operator within thirty (30) days of demand any increased premium and any costs and expenses incurred by the Operator as a result of a breach of condition 14.2.2;
14.2.4 to comply with the requirements and reasonable recommendations of the insurers;
14.2.5 not to effect any insurance of the Rack Space (as distinct from the Equipment), but if the Customer effects or has the benefit of any such insurance the Customer shall hold any insurance moneys upon trust for the Operator and pay the same to the Operator as soon as practicable;
14.2.6 to insure the Equipment with an insurance office or underwriters of repute against all usual commercial risks (including without limitation, consequential loss and loss of profits) as may be appropriate, taking into account the provisions of this condition 14;
14.2.7 to maintain insurance against public liability for not less than the amount of public liability insurance coverage referred to in the Key Terms with that insurer or another reputable insurer for the duration of the Term; and
14.2.8 to supply to the Operator at its request (no more frequently than annually) evidence of the insurances referred to in conditions 14.2.6 and 14.2.7 having been effected.
14.3 If the Rack Space is unfit for use because of damage by a risk against which the Operator has effected insurance then (save to the extent that payment of the loss of Service Fee insurance moneys is refused due to the act or default of the Customer) the Service Fee (or a fair proportion according to the nature and extent of the damage) shall be suspended until the date on which the Rack Space is again fit for use.
15 Assignment
15.1 The Customer shall not assign, novate or transfer any of its rights under this Agreement except as permitted by this condition 15.
15.2 The Customer may:
15.2.1 use part of the Rack Space with a Group Company provided that (i) the Group Company is provided with a copy of this Agreement and agrees to use the Rack Space in accordance with the same; and (ii) the use by that Group Company shall cease upon it ceasing to be a Group Company; and
15.2.2 grant rights to use parts of the Rack Space or the Equipment to third parties, provided that such third parties will use the Rack Space or the Equipment in respect of which rights are granted to it in accordance with the terms of this Agreement (except for the payment of the Service Fee and other obligations inapplicable to the part of the Rack Space in respect of which rights are granted to it), but the Customer will remain liable to the Operator for the observance and performance of its obligations under this Agreement and the Customer shall take all reasonable and lawful steps and proceedings to remedy any breach of the obligations of its customers.
16 Relocation of the Rack Space
16.1 The Operator shall have the right exercisable on not less than three (3) months’ notice to the Customer from time to time during the Term to require the Equipment to be moved from the Rack Space and to be installed in some other part of the Data Centre. All costs and expenses incurred in connection with such relocation of the Equipment shall be borne by the Operator.
16.2 Without prejudice to the rights of the Operator pursuant to condition
16.1, the Operator agrees that, in specifying the time-scale for any relocation of the Equipment, the Operator shall use reasonable
endeavours to consult with the Customer and to specify a time-scale that causes minimum disruption to the operation of the Equipment.
17 Duration and termination
17.1 This Agreement shall automatically terminate on the expiry of the Term or (if earlier) by operation of this condition 17.
17.2 On expiry of the Initial Term this Agreement shall be deemed to continue for a further term (Further Term) commencing on the day after the expiry of the Initial Term or (as the case may be) each Further Term for a term of twelve (12) months provided that either party may elect for this Agreement to terminate on the expiry of the Initial Term or (as the case may be) each Further Term by giving notice to the other not less than three months before the expiry of the Initial Term or (as the case may be) the relevant Further Term.
17.3 The Operator may immediately terminate this Agreement without payment of compensation or other damages caused to the Customer solely by such termination by (within three (3) months of the occurrence of the same) giving notice in writing to the Customer if any one or more of the following events happens:
17.3.1 the Customer commits a material breach of any of its obligations under this Agreement which is incapable of remedy;
17.3.2 the Customer fails to remedy, where it is capable of remedy, any breach of its obligations under this Agreement (save as to payment) within a period of thirty (30) days after having been required in writing to remedy or desist from such breach;
17.3.3 if any sum payable under this Agreement is not paid within thirty (30) days of its due date for payment in accordance with this Agreement;
17.3.4 the Customer calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or a resolution is passed by the directors of the Customer to seek a winding up or administration order, or the Customer is the subject of a petition for a winding up order, or the Customer takes (or any other person) takes any steps or actions in connection with the appointment of an administrator in respect of the Customer, or the Customer has an administrative receiver, or receiver appointed over all or any part of its business, undertaking, property or assets, or the Customer proposes, makes or is subject to a company voluntary arrangement, a composition with its creditors generally, an application to a court of competent jurisdiction for protection from its creditors generally, or a scheme of arrangement under Part 26 of the Companies Act 2006; or
17.3.5 the Operator reasonably considers that the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (for which purpose the parties hereby agree that the Operator need not apply to court for a declaration in order to rely upon this condition) or the Customer ceases to trade or appears, in the reasonable opinion of the Operator, to be likely to cease to trade.
17.4 For the purpose of conditions 17.3.1 and 17.3.2, any breach of condition 5 by the Customer shall be deemed to be a material breach of its obligations under this Agreement.
17.5 The Customer may immediately terminate this Agreement without payment of compensation or other damages caused to the Operator solely by such termination by (within three (3) months of the occurrence of the same) giving notice in writing to the Operator if any one or more of the following events happens:
17.5.1 the Operator commits a material breach of any of its obligations under this Agreement that is incapable of remedy;
17.5.2 the Operator fails to remedy, where it is capable of remedy, any breach of its obligations under this Agreement (save as to payment) within a period of twenty eight (28) days after having been required in writing to remedy or desist from such breach; or
17.5.3 the Operator calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or a resolution is passed by the directors of the Operator to seek a winding up or administration order, or the Operator is the subject of a petition for a winding up order, or an application, notice of intention or other step to appoint an administrator, or has an administrative receiver, or receiver appointed over all or any part of its business, undertaking, property or assets.
17.6 Termination of this Agreement shall be without prejudice to the other rights and remedies of either party both under this Agreement and at law.
17.7 On or before the expiry of the Term or the earlier termination of this Agreement the Customer shall (at the Customer’s own cost):
17.7.1 give up the Rack Space repaired and otherwise in accordance with the Customer’s obligations in this Agreement;
17.7.2 if the Operator so requires, remove all alterations made during the Term or any preceding period of use of the Rack Space by the Customer and reinstate the Rack Space as the Operator shall reasonably direct and to its reasonable satisfaction; and
17.7.3 disconnect and remove the Equipment and associated cabling from the Rack Space (but not cabling located outside of the Rack Space) and make good any damage caused thereby to the Operator’s reasonable satisfaction.
17.8 If and for so long as the Customer fails to comply with condition 17.7 the Customer shall pay to the Operator on demand a sum equal to the appropriate proportion of the Service Fee that would have been payable had the Term not expired or been terminated but:
17.8.1 if by the date thirty (30) days after the expiry of the Term or the earlier termination of this Agreement the Customer fails to disconnect or remove the Equipment the Operator may (but is not obliged to) disconnect remove and sell the Equipment and hold the proceeds of sale (after deducting any costs and expenses of disconnection, removal, storage, sale and any arrears of fees, costs or other sums due and outstanding under this Agreement) to the order of the Customer; and
17.8.2 the Customer will indemnify the Operator against any liability to any third party whose goods are sold by the Operator, having been left at the Rack Space at the end of the Term or the earlier termination of this Agreement.
17.9 As soon as practicable following the expiry of the Term or the earlier termination of this Agreement (or earlier with the consent of the Customer) the Operator shall (at the Customer’s cost) remove all cabling located outside the Rack Space and which serves (or served) the Rack Space.
18 Force Majeure
18.1 If either party is affected by a Force Majeure Event the affected party shall:
18.1.1 notify the other party in writing of the matters constituting the Force Majeure Event within a reasonable time period;
18.1.2 keep that party fully informed of their continuance and of any relevant change of circumstances whilst such Force Majeure Event continues; and
18.1.3 take reasonable steps to overcome the effects of the Force Majeure Event (except that this shall not require either party to settle industrial disputes or other claims on unreasonable terms).
18.2 Save as provided in condition 18.4, and subject to condition 18.1, a Force Majeure Event shall not entitle either party to terminate this Agreement and neither party shall be in breach of this Agreement, or otherwise liable to the other, by reason of any delay in performance or non-performance of any of its obligations due to such Force Majeure Event and the date for performance of the obligations affected (except for payment) will be deemed suspended only for a period equal to the delay caused by such Force Majeure Event.
18.3 If the party affected by a Force Majeure Event fails to comply with its obligations under this condition 18 then no relief as set out in this condition shall be available to it and the obligations of each party shall continue in force.
18.4 If the Force Majeure Event continues for longer than three (3) months either party may by notice to the other immediately terminate this Agreement on a date to be specified in that notice.
19 Portal
19.1 The Operator may permit the Customer to access the Portal from time-to- time (but does not guarantee that access may be made available to the Portal at any particular time or at all).
19.2 Where the Operator permits the Customer access to the Portal, it may provide the Customer with login details to access the Portal (the Portal Security Measures). The Customer agrees to keep the Portal Security Measures secret, not to share the Portal Security Measures with any unauthorised party, and to take all reasonable precautions necessary to prevent unauthorised use of the Security Measures.
19.3 The Customer agrees that it will use the Portal in accordance with this Agreement and the additional terms and conditions provided at the Portal as varied by the Operator from time to time (the Portal Terms). The Operator may amend these Portal Terms without prior notice.
19.4 The Operator may, from time to time, permit the Customer to: (1) place orders for additional services; (2) communicate with the Operator in relation to the Services; and/or (3) make requests of the Operator in relation to the Services (each a Portal Transaction). Each Portal Transaction shall be governed by the terms of this Agreement, the Portal Terms and, where applicable, any special terms the Customer is expressly informed of by the Operator at the time of making the Portal Transaction.
19.5 Where this Agreement requires or envisages the Operator providing documentation to the Customer (including, without limitation, the Rules & Installation Guidelines), the Customer agrees that such an obligation may be met by the Operator providing the document by way of the Portal.
20 Additional Racks
20.1 The Customer may request to contract with the Operator for additional Rack Footprints from time to time but the Operator shall not be obliged to provide these Rack Footprints unless it agrees and, having provided an Additional Rack Order to the Customer for signature, both the Customer and the Operator sign that Additional Rack Order.
20.2 The following shall apply to any Additional Rack Order entered into between the Customer and the Operator:
20.2.1 subject to condition 20.2.3, each Additional Rack Order shall constitute a separate agreement and, unless and to the extent varied in the relevant Additional Rack Order, incorporate and comprise these Terms & Conditions, the Appendices (except for Appendix 5) and the Key Terms comprising this Agreement;
20.2.2 any special terms set out in an Additional Rack Order shall apply only to that Additional Rack Order and shall take precedence over the Terms & Conditions, the Appendices and the Key Terms (to the extent incorporated into that Additional Rack Order in accordance with condition 20.2.1) and references to “Agreement” in these Terms & Conditions shall, when being construed in relation to an Additional Rack Order, be construed as a reference to the relevant Additional Rack Order;
20.2.3 without prejudice to condition 20.2.1 and subject to condition 20.2.4, the termination of this Agreement shall not affect the continuation of any Additional Rack Order which shall continue in full force and effect (unless a term of that Additional Rack Order requires otherwise);
20.2.4 where a right to terminate this Agreement (or any Additional Rack Order to which these Terms & Conditions form part of) arises pursuant to condition 17.3 above, the Operator may, on notice to the Customer, immediately terminate this Agreement and/or any or all Additional Rack Orders;
20.2.5 without prejudice to the generality of condition 20.2.1, Critical Outages affecting Rack Footprints which are not the subject of this Agreement or, where this condition 20.2.5 is a term of an Additional Rack Order, this Additional Rack Order shall not be considered for the purpose of calculating Service Credits pursuant to condition 12; and
20.2.6 without prejudice to condition 20.2.1, the liability caps set out at condition 13 shall apply separately to this Agreement and each Additional Rack Order meaning, for the avoidance of doubt, that references to the Service Fee payable is to the Service Fee payable under the relevant Agreement or Additional Rack Order and references to liabilities are to liabilities incurred by either party under the relevant Agreement or Additional Rack Order.
21 Notices
21.1 Without prejudice to condition 21.2:
21.1.1 any notice required or authorised by this Agreement must be in writing (and ‘writing’ shall not include service using the Portal) (Written Notices) or, where expressly permitted at the relevant condition of this Agreement or the Portal Terms, using the Portal (Portal Notices); and
21.1.2 Written Notices served under this Agreement shall be validly addressed and served if they expressly refer to this Agreement and are: (i) in the case of the Operator: sent by registered post to the Operator’s Address or by e-mail to notices@FreedomTECHdatacentres.com; and (ii) in the case of the Customer: sent by registered post to the Customer’s Address or by e-mail to the Customer’s E-mail; or in either case such other address in England and Wales or e-mail address as any party shall notify in writing to the other) provided that any notice served under conditions 12 and 17 must be sent by registered post to the Operator’s Address or the Customer’s Address (as applicable).
21.2 Portal Notices served under this Agreement shall be validly served if submitted on the Portal by the Customer in accordance with the Portal Terms in force at the relevant time.
21.3 Demands for any sums payable pursuant to this Agreement shall be sent by post to the Invoicing Address (or such other address in England and Wales as the Customer shall notify in writing to the Operator).
21.4 If a notice or document is received after 4 pm on a working day, or on a day that is not a working day, it is to be treated as having been received on the next working day.
21.5 Unless the actual time of receipt is proved, a notice or document sent by registered post is to be treated as having been received two (2) working days after the date of posting.
21.6 An automated response to a notice sent by e-mail that the e-mail has not reached the intended recipient, or that the recipient is out of the office or some other error message received by the serving party in response to a notice sent by e-mail is sufficient to show that the e-mail notice has not been received and shall invalidate the service of any e-mail notice.
22 Dispute Resolution
22.1 Either party may refer any Dispute for resolution to the Operator’s Representative and the Customer’s Representative who shall both use their reasonable endeavours to resolve any such Dispute in the first instance as soon as reasonably practicable.
22.2 In the event that the Operator’s Representative and the Customer’s Representative are not able to resolve a Dispute within twenty-eight (28) days after referral in accordance with condition 22.1 either party may request by notice given to the other (Dispute Notice) that the Dispute is referred to mediation for resolution in which event:
22.2.1the parties shall appoint a single mediator to perform the mediation;
22.2.2where the parties are unable to agree on the appointment of a mediator within twenty-eight (28) days of the Dispute Notice, the mediator shall be appointed by the Centre for Effective Dispute Resolution or its successor or replacement body on the application of either party; and
22.2.3the mediation shall be conducted in England pursuant to a procedure established by the mediator in his or her absolute discretion.
22.3 Neither party may commence any court proceedings in relation to any Dispute until (acting in good faith at all times):
22.3.1 it has first attempted to settle the Dispute by mediation in accordance with condition 22.2; and
22.3.2 either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by unreasonable delay in the mediation proceedings.
23 General
23.1 Subject to condition 20.2.2 in relation to Additional Rack Orders, in the event of any conflict arising between the Key Terms, these Terms and Conditions and/or any Appendices attached, such conflict shall be resolved by applying the following order of priority:
23.1.1 First, the Key Terms;
23.1.2 Secondly, the Appendices attached to these Terms and Conditions; and
23.1.3Thirdly, these Terms and Conditions.
23.2 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.3 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
23.4 Nothing in conditions 23.2 or 23.3 will have the effect of excluding or limiting either party’s liability for fraud or fraudulent misrepresentation.
23.5 If at any time any part of this Agreement (including any one or more of the conditions of this Agreement or any part of one or more of these conditions) is held to be unenforceable for any reason under any applicable law, the same shall be deemed omitted from this Agreement and the validity of the remaining provisions of this Agreement shall not in any way be affected or impaired as a result of that omission. This condition 23.5 shall not apply to a term which ceases to have effect under Section 233A of the Insolvency Act 1986.
24 Confidentiality
Neither party shall disclose the contents of this Agreement to any third party without the other party’s prior consent (not to be unreasonably withheld) save for disclosures made: (i) for the purposes of the proper performance of or advice upon this Agreement; (ii) to the other party’s financiers for the purpose of raising finance; (iii) to any other contractor, agent, introducer, intermediary or professional advisor of the Operator for any purpose connected with this Agreement; or (iii) as required by law.
25 Third Party Rights The Contracts (Rights of Third Parties)
Act 1999 shall not apply to this Agreement and no third party shall have the benefit of or the right to enforce any term of this Agreement, save for condition 13 which is also included in this Agreement for the benefit of any third party contractor or service provider of the Operator and may be enforced by the same. The parties shall have the right to vary or rescind this Agreement or any provision of it without the consent of any such third party contractor or service provider.
26 Governing Law and Jurisdiction
This Agreement and any dispute or claim 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 and Wales.
The Customer irrevocably submits to the exclusive jurisdiction of the Courts of England and Wales to settle any disputes arising out of this Agreement.
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