Terms & Conditions
These ASK4 Data Centre Terms and Conditions are incorporated in and apply to all Orders for the Services (unless other terms are attached to the Order) placed after 10/03/2021.
The Agreement shall be made up of:
The Order(s)
These ASK4 Data Centre Terms and Conditions
The applicable parts of the ASK4 Data Centre Service Level Agreement
The applicable parts of the ASK4 Data Centre Service Descriptions
If there is a conflict between the document listed above, the order of precedence shall be as listed above (highest to lowest).
No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of the Agreement.
1.0 DEFINITIONS AND INTERPRETATION
1.1. In the Agreement, the following words and expressions shall have the meanings set out below:
"Access Authorisation Application" means a written application in such form as ASK4 shall require from time to time to be completed and signed by the Customer and any person requiring access to the Premises.
"Additional Charges" means the each of Burst Rate Excess Fee, Electricity Excess Fee and any other similar charges or fees related to Additional Usage as specified in an Order.
"Additional Resource" means the provision by ASK4 of additional engineering, installation or other similar services that do not form part of the Connection Services or Basic Services as the parties may agree for ASK4 to provide to the Customer as set out in more detail in an Order.
"Additional Usage" means any usage of the Services in excess of the agreed limits as set out in the Agreement.
"Agreement Year" means any period of twelve (12) months commencing on the Commencement Date or any anniversary of the Commencement Date.
"ASK4" means ASK4 Data Centres Limited whose company number is 07945470.
"ASK4 Business Data Processing Agreement" means the agreement setting out ASK4's processing of Personal Data as may be updated from time to time.
"ASK4 Data Centre Service Descriptions" means the documentation setting out descriptions of the standard Services provided by ASK4 as may be updated from time to time.
"ASK4 Data Centre Service Level Agreement" means the agreement setting out the service levels and support services to be provided by ASK4 as may be updated from time to time.
"ASK4 Equipment" means any equipment owned or rented by ASK4 at the Premises and includes any third-party equipment at the Premises.
"Authorised Personnel" means the Customer's employees, those representatives of the Customer (including the Customer's sub-contractors and agents) and the Customer's customers and their employees, sub-contractors and agents and any third party telecommunications carrier or maintenance representative who have been notified to ASK4 pursuant to Clause 5.1.13 and who have successfully completed an Access Authorisation Application.
"Basic Services" means the standard services to be provided by ASK4 as described in the ASK4 Data Centre Service Descriptions.
"Blended IP Transit Service" means the interconnect services to be provided by ASK4 as set out in the Order (if any) and as described in the ASK4 Data Centre Service Descriptions.
"Burst Rate Excess Fee" means the per unit amount (if applicable), applying from time to time to be paid monthly in arrears in respect of all bandwidth consumed by the Customer in excess of the rates specified in an Order per month.
"Business Days" means any day other than a Saturday or Sunday or a public or bank holiday in England.
"Business Hours" means 9.00am-5.00pm on any Business Day.
"Commencement Date" means the date referred to as such in the Order or, if earlier, the date the Services are first provided by ASK4.
"Connection Services" means the initial connection to power and other set-up services or such other similar services as are set out in the Order.
"Controller", "Personal Data", "Processor" and "Process" each have the meanings given to them in the applicable Privacy and Data Protection Laws.
"Customer" means the customer with whom ASK4 makes the Agreement as set out in the Order.
"Customer Equipment" means the Customer's equipment and the equipment of the Customer's customers installed by the Customer, its agents and sub-contractors (or by the Customer's customers and their agents and subcontractors) in the Rack Space from time to time pursuant to this Agreement and excluding the ASK4 Equipment.
"Customer Personal Data" means Personal Data of the Customer's customers or such other data subjects that ASK4 needs to process on the Customer's behalf as a processor in providing the Services to you under the Agreement.
"Customer Rooms" means the meeting room and build room within the Premises available for use by the Customer as part of the Basic Services.
"Customer's Insurance Policy" means a public liability insurance policy providing indemnity in respect of any legal liability of the Customer to third parties arising out of or in connection with this Agreement, including in respect of any liability to ASK4 (under a contractual liability extension if appropriate).
"Early Termination Charge" means the sum of all Recurring Charges due or to become due during the Initial Service Period or where applicable the current Renewal Period, which have not yet been paid by the Customer to ASK4 provided that a 5% discount shall be applied to the Recurring Charges payable for the Basic Services.
"Electricity Excess Fee" means the per unit amount (if any), applying from time to time to be paid monthly in arrears in respect of all electricity consumed by the Customer in excess of the rates specified in an Order, the ASK4 Data Centre Service Descriptions or the Site User Manual. The Electricity Excess Fee applying at the Commencement Date is specified in an Order as ASK4-PWR-Excess Charge but ASK4 shall be entitled to vary such charge from time to time to reflect any changes imposed on ASK4 by its electricity supplier.
"Equipment" means the ASK4 Equipment and the Customer Equipment.
"Ethernet Private Line Service" or "EPL Service" means the connectivity to be provided by ASK4 as set out in the Order (if any) and as described in the ASK4 Data Centre Service Descriptions.
"Excused Outage" means a loss or interruption of Services that is as a result of factors outside the reasonable control of ASK4 or due to scheduled maintenance.
"Force Majeure Event" means in relation to any party any event or circumstance which is beyond the reasonable control of that party acting in accordance with good industry practice including but not limited to acts of God, lightning, fire, storm, flood, earthquake, act of the public enemy, war declared or undeclared, terrorist act, blockade, revolution, riot, insurrection, civil commotion, public demonstration, sabotage and act of vandalism, epidemic, the acts, defaults or omissions of a telco, or strike, lockout or other forms of industrial action other than of its own staff;
"Group Company" means any subsidiary undertaking or parent undertaking of either ASK4 Limited or the Customer as defined by section 1162 of the Companies Act 2006.
"Initial Service Period" means the minimum term of that each element of this Services are provided for starting from the Service Commencement Date and running for the relevant period set out in the Order.
"Intellectual Property Rights" means all intellectual and industrial property rights including patents, know-how, registered trademarks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trademarks, copyright, database rights, domain names and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions.
"Location" means the area in the Premises where the Rack Space is located.
"One-off Fee" means the amount specified in the Order for the Connection Services or any other one of payment of an element of the Services as specified in the Order.
"Order" means the quotation and order acceptance for the Services signed by the Customer and "Ordered" shall be construed accordingly.
"Persistent Breach" means a material or non-material breach of this Agreement (including a breach of the Site User Manual) by the Customer which: (i) following ASK4's notice identifying the breach and stating that it may result in termination if it continues for more than one week from the date of this notice does so continue; or (ii) occurs following ASK4's notice identifying that the same or similar breach has occurred (notwithstanding these breach were remedied) more than two (2) times in the prior six (6) month period and that if the breach recurs that such a recurrence may result in termination;
"Premises" means ASK4 DC1 Brompton Road Sheffield and includes the curtilage of such premises.
"Privacy and Data Protection Laws" means applicable legislation protecting the personal data and privacy of natural persons, including in particular the UK GDPR, the Data Protection Act 2018, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) together with any applicable binding guidance and codes of practice issued from time to time by relevant supervisory authorities.
"Private Suite" means an area of floor space within the Premises enclosed by mesh fence or steel partition walls containing cabinets and dedicated to a single customer.
"Rack Space" means the racks or parts of racks at the Premises specified in the Order as may be changed under this Agreement.
"Recurring Charges" means the unit price per month (unless otherwise stated in the Order) stated in the Order to be paid in advance for the provision of the Basic Services, the Rack Space, any Blended IP Transit Service and any other service with recurring charge as set out in the Order other than the Electricity Excess Fee and the Burst Rate Excess Fee.
"Renewal Period" means the period specified in the Order (or where no period is specified in the Order, a twelve (12) month period) that shall automatically apply that each of the Services shall continue to be provided for following the expiry of the Initial Service Period subject to neither party having given the requisite notice of termination in accordance with Clause 3.1.
"Service Commencement Date" means the date specified in the Order or if this is earlier or if no date is specified: (i) the date any of the Services are available for use by You; or (ii) the date You first use any of the Services.
"Service Credits" means the amounts specified to be credited against the Recurring Charges in accordance with the provisions set out in ASK4 Data Centre Service Level Agreement.
"Service Levels" means the standards the Services should meet as set out in ASK4 Data Centre Service Level Agreement.
"Services" means the Basic Service, the Support Services and the Rack Space, Connection Services, Blended IP Transit Services, EPL Services, Additional Resource and/or any other services as specified in the Order that are Ordered.
"Site User Manual" means the manual produced from time to time by ASK4 setting out information and procedures relating to access to the Premises and the use of the facilities within the Premises.
"Support Services" means the support services as set out in the ASK4 Data Centre Service Description.
Tangible Property" means any Equipment (excluding all or any data or program installed or stored on such Equipment at any time), furniture, fixtures, tools, signs, machinery or supplies installed, stored or used by the Customer at the Location.
"Term" means the period starting on the Commencement Date and ending on the date on which this Agreement is terminated.
"UK GDPR" has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.2. In the Agreement, except if the context requires otherwise:
1.2.1. any reference to a Clause is to the relevant Clause of this Agreement and any reference to a sub-Clause or paragraph is to the relevant sub-Clause or paragraph of the Clause or schedule in which it appears;
1.2.2. the Clause headings are included for convenience only and shall not affect the interpretation of this Agreement;
1.2.3. use of the singular includes the plural and vice versa; use of any gender includes the other genders;
1.2.4. any reference to "persons" includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality); and
1.2.5. any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.0 ORDERS
2.1. Each Order by the Customer to ASK4 shall be an offer to purchase Services subject to this Agreement.
2.2. ASK4 may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
2.2.1. ASK4's written acceptance of the Order; or
2.2.2. ASK4 performing the Services or notifying the Customer that they are ready to be performed (as the case may be).
2.3. Rejection by ASK4 of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.4. ASK4 may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
2.5. Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Agreement.
3.0 TERM
3.1. This Agreement will commence on the Commencement Date and (subject to earlier termination under Clauses 7.4 and 18.0) shall continue in respect of each Service for the Initial Service Period and rolling Renewal Periods for that Service unless terminated by either party giving to the other not less than the required notice specified in the Order (or three (3) months' notice where no such notice period is specified in the Order), such notice not to expire before the end of the Initial Service Period or, if applicable, before the end of the current Renewal Period.
3.2. This Agreement shall terminate when written notice in accordance with this clause 3.0 is given to terminate all the Services provided by ASK4.
4.0 OBLIGATIONS OF ASK4
4.1. ASK4 shall:
4.1.1. provide the Services as set out in the Order;
4.1.2. subject to the terms of this Agreement, permit the Customer to install the Customer Equipment in the Rack Space; and
4.1.3. diligently and expeditiously process any Access Authorisation Application.
5.0 OBLIGATIONS OF THE CUSTOMER
5.1. The Customer shall:
5.1.1. provide to ASK4 details of the Customer Equipment and its replacement value (and any changes to the Customer Equipment) in accordance with the procedures set out in the Site User Manual and ensure all the Customer Equipment is clearly labelled as belonging to the Customer or a customer of the Customer (as applicable);
5.1.2. maintain the Customer Equipment to a standard which ensures that at all times it is safe and complies with all applicable health and safety standards and all other legal requirements;
5.1.3. comply with ASK4's health and safety instructions issued from time to time;
5.1.4. not replace or move the Customer Equipment or make any modification, alteration or addition to the same which results in material changes to the floor loading, heat output, power consumption or environmental conditions of any Equipment or the Rack Space;
5.1.5. except as expressly hereinafter provided, not make nor permit any person other than ASK4 (or persons approved by ASK4) to make any connection or disconnection of any Equipment or any part to the power supply within the Premises other than to connect the Customer Equipment to the BS4343 sockets within the Rack Space;
5.1.6. not seek to install Customer Equipment which occupies more than the space available in the Rack Space;
5.1.7. unless otherwise agreed in the Order, install the Customer Equipment in the Rack Space at its own expense in accordance with an installation plan and timetable agreed with ASK4;
5.1.8. not cause any injury or damage to any person or property including (without limitation) any ASK4 employees, agents or contractors, the Premises, any ASK4 Equipment or any third parties which may from time to time be located in the Premises;
5.1.9. comply with the procedures set out in the Site User Manual and in particular (but not limited to) those relating to:
a. Emergency Power Off (EPO);
b. the Fire Suppression System; or
c. the Rack Power Distribution Unit;
5.1.10. take steps to prevent any interference occurring between the Customer Equipment and any ASK4 Equipment or third party equipment and if any such interference is caused by the Customer Equipment (ASK4's reasonable determination being final), the Customer shall be responsible for:
a. the cost of ASK4's investigation;
b. the cost of preventing the interference;
c. the cost of repairing and/or replacing any Equipment or third party equipment,
and the Customer shall pay such sums on demand to ASK4 or such third party as ASK4 may specify;
5.1.11. inform ASK4 forthwith if any of its Customer Equipment is subject to interference or is malfunctioning;
5.1.12. use the Customer Rooms in accordance with the procedures set out from time to time in the Site User Manual;
5.1.13. provide ASK4 from time to time with a list of its employees, sub-contractors, agents and representatives and the employees, sub-contractors, agents and representatives of its customers who are authorised to have access to the Customer Equipment in the Premises for the purposes of inspecting and maintaining the Customer Equipment and shall ensure that all such persons complete and sign an Access Authorisation Application and provide to ASK4 such information as ASK4 may reasonably require to establish the identity of such persons and shall further ensure that all such persons are familiar with and comply with the Site User Manual;
5.1.14. provide all necessary access to the Rack Space, Customer Equipment, any Private Suite, information, facilities and authorisations necessary to enable ASK4 to fulfil its obligations under this Agreement and provide such co-operation as ASK4 may reasonably require in connection with the provision of the Services or generally as is required for ASK4 to manage the Premises or other legitimate business purposes;
5.1.15. where, as part of the use or operation of the Customer Equipment, the Customer makes use of or processes any data, documents, programs, equipment or other information and materials owned or supplied by a third party, at its own expense, have and maintain at all times all necessary approvals and permissions including any consents and approvals necessary for ASK4 to provide the Services;
5.1.16. not use the Equipment for any illegal or unlawful purpose under any applicable law or in a manner or for a purpose which constitutes a violation or infringement of the rights of or is harmful or detrimental to the reputation of ASK4 or any other party;
5.1.17. notify ASK4 immediately when it becomes aware of any loss of or interruption to the Services; and
5.1.18. comply with any obligations imposed upon it in the Site User Manual and/or the ASK4 Data Centre Service Descriptions.
6.0 RESALE RESTRICTION
6.1. Notwithstanding anything to the contrary in the Agreement, the Customer is prohibited from reselling any Service as a stand-alone wholesale service to a third party without the express written consent of ASK4, provided, however that the Customer may bundle the Services with any other service sold by ASK4 or the services of the Customer and resell such bundled service to Customer's subscribers and its customers.
7.0 FEES
7.1. The Customer shall make payments as follows:
7.1.1. monthly Recurring Charges shall be invoiced monthly in advance on or about the 1st of each month and shall be due for payment within fifteen (15) days of the date of the invoice (provided ASK4 shall be entitled invoice the pro-rata Recurring Charges due from the Service Commencement Date until end of the month following the Service Commencement Date on or about the Service Commencement Date and this invoice shall be due for payment within fifteen (15) days of the date of the invoice);
7.1.2. annual Recurring Charges shall be invoiced annually in advance on or about the Service Commencement Date and on each anniversary of this date and these invoices shall be due for payment within fifteen (15) days of the date of the invoice;
7.1.3. the One-off Fees shall be invoiced on the Commencement Date and shall be due for payment within thirty (30) days of the date of the invoice; and
7.1.4. where applicable, the Additional Charges will be invoiced monthly or annually (as specified in the Order) in arrears and shall be paid within thirty (30) days of the date of invoice.
7.2. All sums payable by the Customer under this Agreement will be exclusive of any VAT which may be chargeable, which will be payable in addition to the sum in question. ASK4 shall provide to the Customer a valid VAT invoice in respect of all payments due under this Agreement.
7.3. All payments made by the Customer under this Agreement shall be made in full without any set-off, restriction or condition and without any deductions for or on account of any counterclaim.
7.4. In the event that any undisputed sums payable under this Agreement are in arrears of more than thirty (30) days, ASK4 shall be entitled:
7.4.1. to terminate this Agreement in whole or in part immediately on written notice to the Customer; and/or
7.4.2. to charge interest on any outstanding sums at the rate of four per cent (4%) above National Westminster Bank plc's base rate from time to time from the date that such sum became due for payment until payment is made in full, both before and after any judgment; and/or
7.4.3. on seven (7) days' prior written notice, to suspend the provision of the Services.
7.5. ASK4 shall be entitled to carry out credit checks on the Customer and if these checks provide evidence (ASK4 accepts no liability for the accuracy or otherwise of information provided to it from credit reference agencies) that the Customer fails to meet the standard of creditworthiness deemed acceptable by ASK4 (acting reasonably), ASK4 shall be entitled:
7.5.1. to terminate the Agreement in whole or in part immediately on written notice to the Customer;
7.5.2. to require the Customer to make such regular instalment payments or make payment of a Security Deposit under Clause 8.0 in advance or on account of any future charges as ASK4 shall deem appropriate; and/or
7.5.3. to impose such other measures on the Customer's right to use any of the Services as ASK4 shall deem (acting reasonably) appropriate.
7.6. ASK4 may upon giving the Customer at least thirty (30) days' prior written notice, vary the Recurring Charges and Additional Charges by a percentage no greater than:
7.6.1. the percentage increase in the Retail Prices Index between:
a. the Retail Prices Index figure last published by the Office for National Statistics before the later of either: (i) the date when the immediately preceding increase came into effect pursuant to this Clause 7.6; or (ii) the Commencement Date; and
b. the Retail Prices Index last published by the Office for National Statistics before the issue of a notice of variation under this clause,
7.6.2. plus a further two percent (2%),
7.7. ASK4 shall not increase the Recurring Charges under clause 7.6 in the first Agreement Year of the Term or more than once in any 12 month period.
7.8 In the event the power utility increases its charges to ASK4 for power provided to any Rack Space from the charges applicable at the Commencement Date, ASK4 may pass through to the Customer such increase in the charges upon written notice to the Customer with the increase being applied to the subsequent Recurring Charge for any Rack Space and the Electricity Excess Fee shall also be increased accordingly from the date specified in ASK4’s written notice.
8.0 SECURITY DEPOSIT
8.1. The Customer shall provide either on the signature of the Order or as required under clause 7.5, a security deposit in the amount (if any) specified in that Order or as is otherwise specified under clause 7.5 (the "Security Deposit"). The Security Deposit shall serve as security for the performance of all the Customer's obligations towards ASK4 under this Agreement and ASK4 shall not be required to provide the Service until in receipt of the Security Deposit.
8.2. ASK4 shall not be required to make payment of any interest to the Customer in respect of the sums held towards the Security Deposit.
8.3. ASK4 shall return the Security Deposit to the Customer within three (3) months of termination of this Agreement provided that the Customer has paid all outstanding amounts due to ASK4 and provided that if there are outstanding amounts owing from the Customer to ASK4 at the end of the three (3) month period, ASK4 shall be entitled to set off such amounts against the Security Deposit and the Customer shall be paid the balance of the Security Deposit remaining following such set-off.
9.0 ASK4 WARRANTIES
9.1. ASK4 warrants and represents to the Customer:
9.1.1. that it will provide the Services to the Service Levels;
9.1.2. the provision and use of the Services in accordance with this Agreement does not infringe any Intellectual Property Rights of any third party;
9.1.3. that it has all requisite consents, licences and authorities (whether statutory or otherwise) that are applicable or required in connection with this Agreement and shall fully comply with its obligations under the same and under all relevant laws; and
9.1.4. the execution and performance of this Agreement are within ASK4's power and authority.
9.2. The Customer acknowledges that ASK4 cannot (and does not) guarantee, represent or warrant that the Services will be uninterrupted.
10.0 CUSTOMER WARRANTY AND INDEMNITY
10.1. The Customer warrants and represents to ASK4:
10.1.1. that it will act and procure that its agents and sub-contractors act in accordance with industry standards and with reasonable care and skill and in accordance with the Site User Manual when on the Premises or working on the Customer Equipment or any ASK4 Equipment;
10.1.2. that it has all requisite consents, licences and authorities (whether statutory or otherwise) that are applicable or required in connection with the performance of its obligations under this Agreement and shall fully comply with its obligations under the same and under all relevant laws;
10.1.3. the use and possession of the Customer Equipment on the Premises and the provision of any Services in the proper discharge of ASK4's obligations under this Agreement will not infringe any Intellectual Property Rights of any third party in any country; and
10.1.4. the information provided to ASK4 in respect of the Customer Equipment (including its floor loading, heat output and power consumption) is complete and accurate.
10.2. The Customer shall indemnify ASK4 against any and all costs, expenses, liabilities, losses, damages, claims, demands and judgments which ASK4 incurs or suffers as a result of:
10.2.1. any claim that the presence of the Equipment in the Premises or the provision of the Services in respect of the Equipment infringes the Intellectual Property Rights of any third party in any country;
10.2.2. any claim arising from or in respect of the content or data stored on or transmitted through the Equipment;
10.2.3. any claim arising out of the accidental, intentional or negligent acts or omissions of the Customer and customers of the Customer, and their employees, agents and contractors or any person on the Premises with the authority of the Customer; or
10.2.4. any defects in the Customer Equipment.
11.0 ASK4 RIGHTS
11.1. ASK4 reserves the right to access any Rack Space for any reasonable legitimate business purpose at any time.
11.2. ASK4 shall be entitled on giving reasonable written prior notice to the Customer (except in the case of emergency where no notice shall be required),
11.2.1. move the Equipment to a different rack space within the Premises; and
11.2.2. disconnect the power supply to the Customer Equipment for the purpose of investigating and rectifying any reported problems or carrying out maintenance relating to the Customer Equipment, ASK4 Equipment, the Rack Space, the Premises or other equipment in the Premises or moving the Equipment to a different location pursuant to Clause 11.2.1.
11.3. The costs and expenses incurred by ASK4 in moving and installing the Customer Equipment pursuant to Clause 11.2.1 shall be borne by ASK4.
11.4. The Customer accepts that its use of the Customer Equipment may be interrupted when ASK4 moves or disconnects it pursuant to Clause 11.2 but ASK4 shall (except in the case of emergency) take all reasonable steps to minimise the period of any such interruption and shall use reasonable endeavours to carry out the disconnection or moving of the Customer Equipment outside Business Hours.
11.5. ASK4 shall be entitled to amend the Site User Manual from time to time and such changes shall be effective from the date that ASK4 specifies when notifying the Customer of such changes.
12.0 ACCESS
12.1. Subject to Clause 12.2, ASK4 shall permit Authorised Personnel access to the Premises and the Rack Space for the purposes of assessing, inspecting, installing, moving, repairing and/or maintaining the Customer Equipment. The Customer acknowledges and accepts that immediate access to the Customer Equipment may not be granted.
12.2. ASK4 reserves the right, on reasonable grounds, to:
12.2.1. refuse any person entry to the Premises; or
12.2.2. request any person to leave the Premises at any time.
12.3. ASK4 will not be responsible for the consequences of its refusal or delay to permit entry or of any request by ASK4 for a person to leave the Premises where such a decision has been made on reasonable grounds.
13.0 DATA PROTECTION
13.1. The parties each acknowledge and agree that they may need to Process Personal Data relating to each party's representatives in their respective capacities as Controllers in common in order to (as appropriate): (a) administer and provide the Services; (b) request and receive the Services; (c) compile, dispatch and manage the payment of invoices relating to the Services; (d) manage the Agreement and resolve any disputes relating to it; (e) respond and/or raise general queries and incidents relating to the Services; (f) comply with their respective regulatory obligations; and (g) where permitted under Privacy and Data Protection Laws, carry out marketing and market research.
13.2. Each party shall process Personal Data relating to each party's representatives for the purposes set out in clause 13.1 in accordance with their respective privacy policies. The parties acknowledge that they may be required to share Personal Data with their affiliates, Group Companies and other relevant parties in order to carry out the activities listed in clause 13.1 and in doing so each party will ensure that the sharing and use of this Personal Data complies with applicable Privacy and Data Protection Laws.
13.3. If the Customer notifies ASK4 that it shall be processing Customer Personal Data by providing the Services, ASK4 shall operate as a Processor on behalf of the Customer in respect of this Processing and shall only process the Customer Personal Data in accordance with this Agreement and the ASK4 Business Data Processing Agreement.
14.0 SECURITY
14.1. ASK4 will provide and maintain in working condition appropriate access control measures as determined by ASK4 for access to the Location and/or the Premises.
14.2. The Customer shall at all time comply with such appropriate access control measures and generally sensible security practice and shall under no circumstances "prop open" any door to, or otherwise, bypass the ASK4 security measures for the Location.
14.3. ASK4 will provide a locking device for the Rack Space, and Customer shall be solely responsible for locking and/or activating such device. In the event that unauthorized parties gain access to the Premises through access fobs, keys or other access devices provided to the Customer, the Customer shall be responsible for any damage caused by such parties and shall fully indemnify ASK4 against all losses.
14.4. The Customer shall be responsible for the cost of replacing any security devices lost or stolen after delivery thereof to the Customer.
14.5. In the event that the Customer has reason to believe that an unauthorized party has gained access to the Rack Space, ASK4 will, at the Customer's request in accordance with applicable law, make video surveillance records of the Location reasonably available to the Customer for viewing by the Customer in the presence of an ASK4 employee.
15.0 IP ADDRESSES AND DOMAIN NAMES
15.1. Except as otherwise agreed in the Order, all IP addresses and domain names made available with Service will at all times remain ASK4's property or the property of ASK4's suppliers and are non-transferable
15.2. All IP address shall (upon ASK4's request and to the extent permitted by law) revert to ASK4 after termination of this Agreement for any reason whatsoever, and the Customer shall cease using such address. At any time after such termination, ASK4 may re-assign such address to another user.
15.3. If ASK4 provides the Customer with a domain name, the Customer shall be the sole owner of such domain name. The Customer warrants that it is are the owner of, or is authorised by the owner of, the trademark or name used as a domain name and the Customer shall be solely responsible for:
15.3.1. paying any fees (including renewal fees) relating thereto;
15.3.2. complying with any legal, technical, administrative, billing or other requirements imposed by the relevant domain name registration authority;
15.3.3. modifying the mapping of such domain name to a new provider in the event the Customer changes service providers; and
15.3.4. all third-party claims (including claims for intellectual property infringement) relating to the domain name, and the Customer shall indemnify and hold ASK4 harmless from all such claims and expenses (including legal fees and court costs) related thereto.
16.0 LIABILITY
16.1. Neither party excludes or limits its liability for:
16.1.1. death or personal injury caused by the negligence;
16.1.2. fraudulent misrepresentation;
16.1.3. fraudulent acts or omissions of its employees or agents; or
16.1.4. any other losses insofar as any exclusion or limit of liability are void, prohibited or unenforceable by law.
16.2. Subject to Clause 16.1, and save as otherwise expressly provided in this Agreement, neither party gives any warranty or makes any representations in relation to this Agreement and all conditions, warranties and representations whether express or implied by law or otherwise are hereby excluded.
16.3. ASK4 shall not be liable (in contract, tort (including negligence or breach of statutory duty) or otherwise) to the other party for:
16.3.1. any indirect or consequential loss or damage however caused;
16.3.2. any of the following losses, whether incurred directly, indirectly or as a result of consequential loss or damage however caused:
a. loss of production;
b. loss or corruption to data;
c. loss of profits;
d. loss of revenue;
e. loss of time;
f. loss of opportunity;
g. loss of goodwill; or
h. loss of anticipated savings,
even if ASK4 had been advised of, or was aware of, the reasonable possibility or foreseeability of such losses or savings in connection with the Services pursuant to this Agreement.
16.4. ASK4's sole financial remedy to the Customer for breaches of any Service Levels shall be limited to the payment of the appropriate Service Credit and, any Service Credit paid to the Customer shall count towards the total maximum liability of ASK4 as set out in Clause 16.5.
16.5. Subject to Clause 16.1, in the case of any liability not excluded or limited by Clause 16.2 and 16.3, ASK4's liability for all damage (whether in contract, tort (including negligence or breach of statutory duty), restitution, breach of applicable laws or otherwise) to the Tangible Property of the Customer will be limited to the sum equivalent to the paid or payable for one month (or where Recurring Charges are not paid monthly, a sum equal to the Recurring Charges that relate to a month’s service) multiplied by 12 up to a maximum of £1,000,000 per incident or series of connected incidents in each Agreement Year.
16.6. Subject to Clause 16.1 and 16.5, in the case of any liability not excluded or limited by Clause 16.2 and 16.3, ASK4's aggregate liability to the Customer (whether in contract, tort (including negligence or breach of statutory duty), restitution, breach of Applicable Laws or otherwise), shall be limited to the sum equivalent to the Recurring Charges paid or payable for one month (or where Recurring Charges are not paid monthly, a sum equal to the Recurring Charges that relate to a month’s service) multiplied by 12.
16.7. Subject to Clause 16.1, in the case of any liability not excluded or limited by Clause 16.2 and 16.3, the Customer's liability to ASK4 (whether in contract, tort (including negligence or breach of statutory duty), restitution, breach of Applicable Laws or otherwise) shall be limited to £10,000,000 per incident or series of connected incidents each Agreement Year.
16.8. Any claim by the Customer against ASK4 must be made within twelve (12) months of the date of the alleged breach of the Agreement otherwise it shall be precluded from being made.
17.0 INSURANCE
17.1. The Customer shall prior to the Commencement Date, at its own cost, take out and maintain in force, or procure the taking out and maintenance of the Customer's Insurance Policy compliant with the provisions of this Clause 17.0 and any other insurances as may be required by law.
17.2. Neither the Customer nor its employees, agents or contractors shall take, or fail to take, any action, or (insofar as it is reasonably within its power) permit anything to occur which will entitle any insurer to refuse to pay any claim under the Customer's Insurance Policy or which might otherwise prejudice the Customer's Insurance Policy.
17.3. The Customer shall ensure that the Customer's Insurance Policy shall be affected with reputable insurers and contains provisions:
17.3.1. providing for coverage in force with a limit of indemnity of not less than two million pounds (£2,000,000) in any one occurrence/unlimited in the number of occurrences in a policy period; and
17.3.2. that it operates, save for the limit of indemnity as set in Clause 17.3.1 in the same manner as if there was a separate policy with and covering each insured party without right of contribution from any other insurance which is carried by an insured party.
17.4. The Customer shall provide to ASK4:
17.4.1. a letter addressed to ASK4 signed by a reputable UK regulated insurer or insurance broker of the Customer confirming that the Customer has in place insurance cover as required under this Agreement, all due premiums under such insurance have been paid and that such insurance is in full force and effect; and
17.4.2. if requested by ASK4 copies (certified in a manner acceptable to ASK4) of the renewal certificate or such other written evidence of renewal or replacement in relation to the Customer's Insurance Policy as soon as possible, but in any event at least fourteen (14) days after the renewal date.
17.5. The Customer shall not bring any claim or action against ASK4 (or any of its agents, servants, employees or subcontractors) in respect of any loss or damage which the Customer could recover under the Customer's Insurance Policy or any insurance required by law (whether or not such insurance has in fact been effected or, if effected, has been vitiated as a result of any act or omission of the Customer or any of its employees, servants, agents or sub-contractors).
17.6. The Customer shall:
17.6.1. give ASK4 immediate notification of any claim concerning this Agreement which could be brought under the Customer's Insurance Policy accompanied by full details of the incident giving rise to the claim; and
17.6.2. diligently deal with all claims relating to the Customer's Insurance Policy and in accordance with the insurer's requirements.
17.7. Failure to comply with the insurance provisions of this Agreement shall not limit or relieve the Customer of its liabilities and obligations under this Agreement.
18.0 TERMINATION
18.1. This Agreement may be terminated as follows:
18.1.1. by either party by written notice to take effect immediately if the other party:
a. is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
b. becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
c. convenes any meetings of creditors or passes a resolution for winding-up or has a petition for winding-up presented against it;
d. has an administrative receiver or receiver appointed over the whole or part of its assets or suffers the appointment of an administrator;
e. ceases, or threatens to cease, to carry on business;
f. takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in Clauses 18.1.1.a-e including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process; or
g. is subject to any events or circumstances analogous to those in Clauses 18.1.1.a-f in any jurisdiction,
18.1.2. by either party if the other party is in material breach (or a series of connected breaches which taken together constitutes a material breach) of this Agreement (including for the avoidance of doubt the Site User Manual and ASK4 Data Centre Service Description) and, where the breach is capable of remedy has failed to remedy such breach within thirty (30) days after service of a written notice from the party not in breach specifying the breach, and requiring it to be remedied;
18.1.3. subject to Clause 18.2, by the Customer, if ASK4 fails to materially meet a Service Level and if the breach is capable of remedy, fails to remedy such breach within two (2) weeks after the date of written notice from the Customer specifying the breach, requiring it to be remedied and stating the Agreement shall be terminated if the breach is not remedied;
18.1.4. by ASK4 by notice in writing to take immediate effect for Persistent Breach; and
18.1.5. subject to Clause 19.1 by either party for convenience on giving the other not less than three (3) months prior written notice.
18.2. The Customer shall not be entitled to terminate this Agreement pursuant to Clause 18.1.3 where the failure to meet the Service Level was due to:
18.2.1. an Excused Outage, Force Majeure Event, planned works communicated by ASK4 to the Customer or emergency maintenance;
18.2.2. a permitted exclusion as set out in the ASK4 Data Centre Service Level Agreement; or
18.2.3. a failure by the Customer to observe any of its obligations under this Agreement which had a direct or indirect impact upon ASK4's ability to perform its obligations under this Agreement.
19.0 CONSEQUENCES OF TERMINATION
19.1. On termination by the Customer then, other than where the Customer has a right to terminate the Agreement either pursuant to Clauses 18.1.2 or 18.1.3, the Customer shall pay to ASK4 the appropriate Early Termination Charge and any other charges which may be applicable in relation to the terminated Services. The parties acknowledge that the Early Termination Charge is a genuine pre-estimate of ASK4's loss and commitments it will have made internally and to third-party suppliers in respect of the provision of the Services.
19.2. On termination of this Agreement, howsoever arising, ASK4 shall cease the provision of the Services to the Customer and shall disconnect the power supply to the Customer Equipment.
19.3. Promptly upon termination of this Agreement (and provided that there are no monies owing from the Customer to ASK4), the Customer shall at its own cost remove the Customer Equipment from the Premises. Such removal shall take place at a time to be agreed with ASK4. Should the Customer fail to remove the Customer Equipment from the Premises within a period of three (3) days from the date of termination or agreed time of removal, or there are monies owing from the Customer to ASK4 on the date of termination, ASK4 shall be entitled to disconnect, remove and sell the Customer Equipment at a reasonable market rate and account to the Customer for the proceeds of sale less any sums owing to ASK4 pursuant to this Agreement.
19.4. If there are monies owing from the Customer to ASK4, the Customer shall not be entitled to access or remove the Customer Equipment from the Premises until ASK4 has received in cleared funds all monies due to it under this Agreement. If payment in full has not been received by ASK4 within seven (7) days of a written demand, ASK4 shall be entitled to disconnect the Customer Equipment.
19.5. The termination of this Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination. The Clauses in this Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
20.0 CONFIDENTIAL INFORMATION
20.1. Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its Group Companies including, any details of its business, affairs, customers, clients, suppliers, plans or strategy ("Confidential Information") confidential and that it shall not use or disclose the other party's Confidential Information to any person, except as permitted by Clause 20.2.
20.2. A party may:
20.2.1. disclose any Confidential Information to any of its employees, officers, representatives or advisers and any of the same in respect of its Group Companies ("Representatives") who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party ensures that each Representative to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this Clause 20.0 as if it were a party;
20.2.2. disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
20.2.3. use Confidential Information only to perform any obligations under this Agreement.
21.0 DISPUTE RESOLUTION
21.1. Subject to Clause 30.0, any dispute arising between the parties out of or in connection with this Agreement shall be dealt with in accordance with the provisions of this Clause 21.0.
21.2. The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
21.3. The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
21.3.1. within fourteen (14) days of service of the notice, the contract or account managers of the parties shall meet to discuss the dispute and attempt to resolve it; and
21.3.2. if the dispute has not been resolved within fourteen (14) days of the first meeting of the contract or account managers, then the matter shall be referred to representatives of each party who have authority to settle the controversy and who are at a higher level of management than the contract or account managers. The escalation contacts shall meet within fourteen (14) days to discuss the dispute and attempt to resolve it.
21.4. If the dispute has not been resolved within fourteen (14) days of the first meeting of the escalation contacts under this Clause 21.0 then the matter may be referred to mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) rules.
21.5. If the dispute is not resolved within sixty (60) days of the commencement of mediation or if any party refuses at any time to participate in the mediation procedure, then either party may commence proceedings.
22.0 FORCE MAJEURE
22.1. Neither party shall be liable to the other for any loss or damage which may be suffered by the other party, or for any delay or failure to perform its obligations under this Agreement, to the extent that such failure is due to a Force Majeure Event.
22.2. A party affected by a Force Majeure Event shall:
22.2.1. promptly notify the other of the occurrence of a Force Majeure Event including the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure Event;
22.2.2. use its reasonable endeavours to remedy, or mitigate the effect of the Force Majeure Event; and
22.2.3. continue to perform its obligations under this Agreement to the extent possible during the period of the Force Majeure Event and the Customer shall be required to pay all applicable charges for the Services to the extent they are still provided notwithstanding the Force Majeure Event.
22.3. If a Force Majeure Event prevents ASK4 from providing the Services for a period of more than ninety (90) days, either party may terminate forthwith such part of this Agreement as is affected by the Force Majeure Event by providing notice to the other party.
23.0 ENTIRE AGREEMENT
23.1. The parties agree that this Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them.
23.2. Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement and the Orders entered into pursuant to it.
23.3. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
23.4. Nothing in this Agreement purports to limit or exclude any liability for fraud.
24.0 NOTICES
24.1. Any notice or other communication given by a party under this Agreement shall:
24.1.1. be in writing and in English;
24.1.2. be signed by, or on behalf of, the party giving it; and
24.1.3. be sent to the relevant party at the address set out in the Order.
24.2. Notices may be given, and are deemed received:
24.2.1. by hand: on receipt of a signature at the time of delivery;
24.2.2. by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
24.2.3. by email: on receipt of read receipt email from the correct address.
24.3. This Clause does not apply to notices given in legal proceedings or arbitration.
25.0 NON-SOLICITATION
Each party agrees that during the term of this Agreement it shall not directly solicit, or offer employment or engagement to, any of the other party's staff who is at the time of such action or was during a period of twelve (12) months immediately preceding such action directly involved in the carrying out of any obligations under this Agreement without the other party's prior written agreement.
26.0 VARIATION
26.1. Without prejudice to any other express rights of variation in this Agreement, ASK4 may, on giving prior written notice to the Customer, change the Agreement at any time. ASK4 will give the Customer thirty (30) days' prior written notice of the changes happening, except where:
26.1.1. the change is for legal or regulatory reasons and it not possible to provide such notice; or
26.1.2. the change that does not cause the Customer any material detriment,
but such prior notice as is practicable shall still be provided by ASK4.
26.2. If any change made by ASK4 pursuant to Clause 26.1.2 can be shown to be materially detrimental to the Customer, then the Customer may object to the change and the Customer shall be entitled (at ASK4's discretion) to either: (i) continue to receive the Services on the terms of the Agreement excluding the change; or (ii) terminate the Agreement on forty-five (45) days' prior written notice to ASK4. If the Customer does not serve a notice to object within the thirty (30) day notice period, the Customer shall be deemed to have accepted the changes and the changes will take effect from the proposed effective date.
26.3. The following changes shall not be seen to cause the Customer any material detriment and as such the Customer has no right to object to such changes pursuant to Clause 26.2 in respect of:
26.3.1. changes to comply with any Applicable Laws;
26.3.2. increasing the Recurring Charges pursuant to Clause 7.6 or the provisions of the ASK4 Data Centre Service Descriptions;
26.3.3. increasing the Electricity Excess Fee or the Recurring Charges where ASK4's suppliers have increased their corresponding charges;
26.3.4. changes to maintain the integrity or security of the Equipment, Service or Premise;
26.3.5. changes to improve clarity, or make corrections to typographical errors;
26.3.6. changes to introduce or provide for the introduction of new or improved Service features;
26.3.7. withdrawing minor or ancillary Service features or components;
26.3.8. introducing new or improved Service Levels;
26.3.9. changing the technical specification of the Service;
26.3.10. updates to the Site User Manual pursuant to Clause 11.5; or
26.3.11. introducing process changes (including but not limited to changes to the Access Authorisation Application).
27.0 FURTHER ASSURANCE
The Customer shall at the request of ASK4, and at the cost of the Customer, do all acts and execute all documents which are necessary to give full effect to this Agreement.
28.0 ASSIGNMENT
The Customer may not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without ASK4's prior written consent. ASK4 may perform any of its obligations and exercise, or assign, any of its rights granted under this Agreement through, or to, any Group Company.
29.0 NO PARTNERSHIP OR AGENCY
The parties are independent businesses and are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party's behalf.
30.0 EQUITABLE RELIEF
Each party recognises that any breach or threatened breach of this Agreement may cause the other party irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the other party, each party acknowledges and agrees that the other party is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages or following the dispute resolution process set out in Clause 21.0.
31.0 SEVERANCE
31.1. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
31.2. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree on the terms of a mutually acceptable alternative provision.
32.0 WAIVER
32.1. No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
32.2. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
32.3. A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
33.0 COSTS AND EXPENSES
Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
34.0 THIRD PARTY RIGHTS
34.1. Except as expressly provided for in Clauses and 28.0 and 34.2, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
34.2. Any ASK4 Group Company shall have the right to enforce the provisions of this Agreement.
35.0 GOVERNING LAW AND JURISDICTION
35.1. This Agreement and any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England.
35.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement, its subject matter or formation (including non-contractual disputes or claims).
Notice of Update
On 24.06.2021, these terms were updated as follows:
Cross referencing error in clause 3.1 and typographical error in the definition of “Rack Space” corrected.
This is a non-material change pursuant to clause 26.3.5. of these terms and applies to Orders entered into on or before the date above from the relevant Order’s Commencement Date.
On 18.08.2021, these terms were updated as follows:
Cross referencing error in clause 3.1 and typographical error in the definition of “Rack Space” corrected.
This is a non-material change pursuant to clause 26.3.5. of these terms and applies to Orders entered into on or before the date above from the relevant Order’s Commencement Date from 1 January 2021 when UK GDPR came into effect.
On 03.02.2022, these terms were updated as follows:
Clause 7.8 was added to increase prominent and clarify the operation of the provision already within the ASK4 Data Centre Service Descriptions to allow for wholesale power cost increases to be flowed through to Customers
This is a non-material change pursuant to clause 26.3.5. of these terms and applies to Orders entered into on or before the date above from the relevant Order’s Commencement Date.
On 12.07.2022, these terms were updated as follows:
Clauses 16.5 and 16.6 were amended to clarify the “Recurring Charges” is the monthly fee as per the definition and how recurring charges are used to calculate the liability cap where they are not paid monthly.
This is a non-material change pursuant to clause 26.3.5. of these terms and applies to Orders entered into on or before the date above from the relevant Order’s Commencement Date.