General Terms & Conditions
This Agreement covers the provision of data centre colocation services.
These general terms and conditions and the Appendices form the contract governing the terms of supply.
ServerChoice and the Customer may agree to add additional Appendices for additional services in accordance with clause 12(f).
2. Definitions and Interpretation
In this document, the following words have the following meanings unless stated otherwise:
“Acceptable Usage Policy” or “AUP” means the policy set out in Appendix 3 as updated or amended from time to time.
“Billing Commencement Date” means the start date for the Services as further set out in clause 3(d).
“Confidential Information” means all information disclosed by one party to the other, whether before or after the effective date of the Contract, that any reasonable business person should reasonably understand to be confidential, including but not limited to: i) for the Customer all information transmitted to or from, or stored on, the Customer's system; and ii) for ServerChoice, unpublished prices and other terms of service, audit and security reports, development plans, solution diagrams, data centre designs and observations, and other proprietary information or technology.
“Contract” means these terms and conditions, the Order Form and the Appendices, including the AUP.
“Contract Start Date” means the date listed on the Order Form when the contract between the Customer and ServerChoice becomes binding, and this Contract comes into effect.
“Credits” means a credit provided to the Customer against the applicable Monthly Recurring Service Fees, as described in the applicable Service Level Agreement.
“Customer” means the party referred to as the Customer on the Order Form and any persons, third party, agents, sub-contractors, consultants, employees and those acting on their behalf.
“Data Protection Law” shall mean (a) Data Protection Act 1998; or (b) from 25th May 2018, the General Data Protection Regulation ((EU) 2016/679 (“GDPR”), read in conjunction with and subject to any applicable UK national legislation that provides for specifications or restrictions of the GDPR's rules; or (c) from the date of implementation, any applicable legislation that supersedes or replaces the GDPR in the UK or which applies the operation of the GDPR as if the GDPR were part of UK national law, which may include the Data Protection Act 2017.
“Fees” means the applicable fees payable by the Customer in accordance with the Order Form.
“Initial Term” means the minimum term for which ServerChoice Ltd will provide the Services to the Customer as indicated on the Order Form.
“Monthly Recurring Service Fees” means the monthly recurring fees for the applicable Service payable by the Customer as detailed on the Order Form.
“Normal Business Hours” means between 09:00 hrs and 17:30 hrs on any day except a Saturday, Sunday or public or bank holiday in England and Wales.
“Order Form” means an order form signed by an authorised representative of ServerChoice and completed by the Customer.
“Party” means ServerChoice and/or the Customer.
“Permitted Sub-contractor” means any third party used by ServerChoice in providing the Services.
“ServerChoice” means ServerChoice Ltd whose registered office is Unit H, Gateway 1000, Stevenage, Herts, SG1 2FP.
“Service Level Agreement" or "SLA" means the service level agreement relating to the applicable Services that describes the service levels to be met by ServerChoice together with the remedies available to the Customer for failure to meet such service levels.
“Services” means any services which are provided under this Contract as listed on the Order Form.
“Term” means the Initial Term together with any extension of the Initial Term in accordance with clause 3.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
3. Commencement of Contract
- The Contract shall commence on the Contract Start Date and will continue for the Initial Term and thereafter as provided in clause 3b, unless terminated earlier in accordance with clause 10.
- The term of this Contract shall automatically extend after the end of the Initial Term for further twelve (12) month periods (each an “Extension Term”), unless either Party gives the other Party not less than three (3) months written notice, such notice to expire at the end of the Initial Term or the relevant Extension Term in which notice is given.
On execution of an Order Form by ServerChoice and the Customer, that Order Form is deemed a binding contract subject to this Contract. To the extent there is any inconsistency between these General Terms and Conditions, the Order Form and any Appendices, policies or attachments, such documents must be read in the following order of priority:
- the Order Form;
- the AUP;
- the General Terms and Conditions;
- the relevant Appendix for the Service supplied;
- The Billing Commencement Date for the Services shall be the earlier of:
- Contract Start Date as specified on the Order Form;
- The first date of installation of any equipment into any ServerChoice data centre or commencement of the applicable Services.
4. ServerChoice's Rights and Obligations
ServerChoice will perform the Services:
- in accordance with this Contract;
- with reasonable care and skill;
- so that they meet or exceed the service levels set out in the SLA; and
- in accordance with any specific conditions that appear on the Order Form.
- Notwithstanding the above, ServerChoice cannot however, guarantee that Services will be uninterrupted, error-free or completely secure.
- ServerChoice reserves the right to update or amend the applicable Service Level Agreements at any time provided it gives the Customer not less than 30 days prior written notice and such update or amendment shall apply generally to all ServerChoice customers receiving similar Services.
- ServerChoice disclaims and excludes any and all warranties, terms or conditions not expressly stated in the Contract as permitted by law, including implied warranties, terms or conditions relating to the satisfactory quality and fitness for purpose. The Customer is solely responsible for the suitability of the Services chosen.
- ServerChoice will maintain an up to date business continuity and disaster recovery plan.
5. The Customer's Obligations
The Customer agrees that any fault with the Services which the Customer detects must be reported to ServerChoice as soon as possible either:
- by using the ServerChoice web portal ticketing system (for any non-critical issues only); or
- by telephone on the number listed on the contact section of the ServerChoice website, or
- to such other telephone number as ServerChoice may notify to the Customer from time to time for this purpose.
The Customer represents and warrants:
- it has the full capacity and authority to enter into and perform this Contract and that this Contract is executed by a duly authorised representative of the Customer;
- it has the appropriate knowledge to use the Services and will be responsible for any problems resulting from any interference by the Customer;
- the performance of its obligations and use of the Services will not violate any applicable laws, rules or regulations or the rights of any third party, or cause a breach of any agreements with any third parties or unreasonably interfere with other ServerChoice the Customers' use of ServerChoice services;
- it is using the Services for its own or group use and will not resell the Services to any third party without the prior authorisation from ServerChoice;
The Customer undertakes that:
- it will comply with the ServerChoice Acceptable Usage Policy (“AUP”);
- it will comply with any rules imposed by any third party whose content or services are accessed via the Services;
- it will inform ServerChoice forthwith if any of the Services are subject to interference or malfunction;
- it will provide ServerChoice with reasonable notice of any circumstances that the Customer has prior knowledge of that may affect the normal operation of the Services provided.
In the event of a breach of any of the Customer warranties or undertakings set out above, ServerChoice reserves the right to suspend the Services in accordance with clause 9 of these General Terms and Conditions.
6. Intellectual Property & Data Protection
Except for the rights expressly granted in these General Terms and Conditions, the delivery of the Services does not and will not transfer to the Customer any right, title or interest in and to:
- any ServerChoice equipment used in providing the Services; or
- any ServerChoice proprietary technology, including services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by or licensed to ServerChoice), including but not limited to any derivative works, improvements, enhancements or extensions of that proprietary technology.
Each Party agrees not to use the other's Confidential Information except solely in connection with the performance or use of Services. Neither Party shall, without the prior written consent of the other Party, use or disclose the Confidential Information of the other Party during the Term or following the expiration or termination hereof. Each Party will take all reasonable precautions to protect the other Party's Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information. Notwithstanding the foregoing, a Party may disclose Confidential Information:
- to any consultants, contractors, advisers and insurers who have a need to know in connection with this Contract and who are under binding obligations of confidence; or
- to the extent required by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction; provided that, the disclosing party shall, unless legally prohibited, provide the non-disclosing party with reasonable prior written notice sufficient to permit it an opportunity to contest such disclosure.
- The Customer agrees for the duration of this Contract and for a period of 12 months thereafter, not to approach any ServerChoice employee in respect of recruitment for their own business, including but not limited to offers of employment, whether on a full-time or part-time basis or any other basis which includes non-paid or paid work.
- If subsequent to the date of this Contract the factual arrangements between the Customer and ServerChoice dictate that ServerChoice is a data processor in the course of the provision of the Services (and ServerChoice consents to such verdict), the parties shall immediately and on ServerChoice's request execute and deliver any necessary documentation (including, if required, a clause that satisfies the requirements of Article 28 of the GDPR) as may be required for the purposes of complying with Data Protection Law.
- ServerChoice will invoice the Customer with effect from the Billing Commencement Date.
The Customer agrees:
- that ServerChoice may bill the Customer quarterly in advance from the Billing Commencement Date for all applicable Fees;
- to sign and maintain in force, a direct debit mandate to permit ServerChoice to collect any Fees due, with payments taken 30 days from invoice date. If payment date falls on a weekend or bank holiday, payment will be taken on the first working day after the original payment date;
- that ServerChoice may charge daily interest at a rate of 8% above the Bank of England base rate on any overdue payments that have passed the 30 day payment term;
- that ServerChoice may, at any time during the contract Term, but no more than once a Year, vary the Fees payable by the Customer by giving at least 30 days prior written notice;
- that ServerChoice may, at any time during the Contract Term, vary the Fees payable by the Customer by giving at least 30 days prior written notice in the event of new taxation laws, or the introduction or increase in any taxes, levies, costs or expenses, including any taxes, levies, costs or expenses arising out of or in connection with the use of energy or power consumption which relate to the Services;
- ServerChoice may issue a suspension notice if the Customer fails to pay any ServerChoice invoices more than 45 days after the invoice date. If payment is not received within 7 days of the date of issue of ServerChoice's suspension notice ServerChoice may suspend the Services in accordance with clause 9. Without prejudice to any other remedies ServerChoice may have, ServerChoice may commence such action as is necessary to recover the debt, including termination for material breach in accordance with clause 10(a).
- Subject to clause 8(b) and clause 8(c), ServerChoice's total liability to the Customer for direct loss or damages whether in contract, tort (including, without limitation, negligence or breach of statutory duty), and howsoever arising including in connection with the performance, non-performance or delayed performance of this Contract shall be limited to and shall not exceed an amount that is twelve (12) times the Monthly Recurring Services Fees under this Contract as of the time of the occurrence of the event(s) giving rise to the claim.
ServerChoice shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any:
- loss of profits;
- loss of revenues, loss of goodwill;
- loss of contracts, loss of business opportunity;
- loss of data;
- loss of business;
- depletion of goodwill or similar losses;
- pure economic loss; or
- for any indirect or consequential loss, costs, damages, charges or expenses however arising.
Nothing in this Contract limits or excludes either Party's liability for any loss or damages resulting from:
- death or personal injury caused by its negligence; and
- any fraud or fraudulent misrepresentation.
- Except where the Customer has an express right to terminate in accordance with clause 11 (a), the Credits stated in the Service Level Agreement are the Customer's exclusive remedy for ServerChoice's failure to meet the guarantees detailed in the applicable Service Level Agreement, for which Credits apply.
- As the Fees for the Services properly reflect the delineation of risk between the Party's, each Party agrees to ensure that it will be responsible for making its own arrangements for the insurance of any loss in excess of its accepted legal liability as necessary.
9. Suspension of Services
- ServerChoice may suspend the Services for non-payment of Fees as provided in clause 7 (b) (vi). If the Customer does not make payment in full of all overdue sums within 14 days of ServerChoice's suspension of Services, the same shall constitute a non-remediable material breach of the Contract and may terminate the Contract on written notice of the Customer with immediate effect.
- In addition to any other remedies available under this Contract, at law or otherwise however, ServerChoice may, in its reasonable discretion, suspend the Services with immediate effect:
- in the event of any breach by the Customer of this Contract (other than non-payment); or
- where ServerChoice has the right to terminate this Agreement;
- where ServerChoice has an express right in any Appendix to suspend all or part of the Services.
- ServerChoice may at its discretion provide notice and a reasonable opportunity for the Customer to rectify the breach if practicable to do so.
- Once the Customer has rectified the breach, and provided ServerChoice has not first terminated the suspended Services, ServerChoice will promptly restore the suspended Service(s).
- ServerChoice reserves the right to recharge the Customer for any expenses incurred in reinstatement of Services once payment is received.
- All applicable service levels shall be suspended for the period of any suspension.
Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate this Contract without liability to the other immediately on giving notice to the other if:
- the other Party commits a material breach of any of the terms of this Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach; or
- the other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
- the other Party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors: or
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that Party; or
- an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other Party; or
- a floating charge holder over the assets of that other Party has become entitled to appoint, or has appointed, an administrative receiver; or
- a person becomes entitled to appoint a receiver over the assets of the other Party, or a receiver is appointed over the assets of the other Party; or
- a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
- the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10 (a) (i) to clause 10 (a) (x)(inclusive) of these General Terms and Conditions
- ServerChoice reserves the right to terminate all or part of the Services with immediate effect on written notice to the Customer, if the Customer is in breach of the AUP.
- Without prejudice to ServerChoice's other rights and remedies, if the Customer terminates the Contract before expiry of the Initial Term, ServerChoice, may at its discretion, allow the Customer to terminate the Contract subject to paying a minimum of eighty percent (80%) of the remaining Fees to the end of the Initial Term and any expenses already and unavoidably incurred by ServerChoice.
- On termination or expiry of this Contract for any reason, the service levels set out in the applicable SLA will cease to have effect, and will not apply to the provision by ServerChoice of any exit assistance it may agree to provide.
If ServerChoice, its affiliates, or any ServerChoice employees, agents, Permitted Sub-contractors or suppliers (the “Indemnitees”) receives a claim or action by a third party arising from:
- the Customer's actual or alleged negligence or breach of law,
- the Customer's failure to comply with any security or access policies provided by ServerChoice under this Contract;
- breach of the Customer's agreement with its own customers or end users,
- the Customer's breach of the AUP;
- any damage or destruction to ServerChoice Premises, any ServerChoice equipment used in providing the Services or the ServerChoice network arising from the acts or omissions of the Customer; or
- any damage or destruction to ServerChoice the Customer equipment or the Customer data arising from the acts or omissions of the Customer.
Any notice required to be given under this Contract, shall be in writing and shall be delivered personally, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each party required to receive the notice at its address as set out on the Order Form. Any notice shall be deemed to have been duly received:
- if delivered personally, when left at the address and for the contact referred to in this clause; or
- if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
- if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
- No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- This Agreement constitutes the whole Agreement between the parties and supersedes all previous Agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Contract. Nothing in this sub-clause shall limit or exclude any liability for fraud.
- The Customer may not assign transfer or otherwise hold on trust any of its rights and obligations under this Contract without first obtaining the written consent of ServerChoice. ServerChoice may subcontract the Services or any part of them to Permitted Sub-contractors provided that at all times it remains liable for the acts and omissions of its Permitted Subcontractors with regard to the Services as if the same were its own acts and defaults.
- If a provision of this Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Contract, and the validity and enforceability of the other provisions of this Contract shall not be affected. If a provision of this Contract (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
- No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The Parties may add additional services to this Contract by adding additional Appendices describing the additional services and any applicable service level agreement in respect of those services.
- Other than ServerChoice Indemnities a person who is not a party to this Contract shall not have any rights under or in connection with it. ServerChoice and the Customer may amend or vary the terms of this Agreement without requiring the consent of any other person.
13. Force Majeure
ServerChoice shall not be liable for any and all losses (including loss of or corruption to data) damages, costs, claims and other liabilities which arise as a result of any delay or interruption in, or any non-delivery, or missed delivery or failure of any equipment and/or Services due to circumstances beyond ServerChoice’s or any of its suppliers' reasonable control (including, but not limited to, fire, lightning, explosion, war, disorder, flood, industrial dispute, sabotage, terrorism, cyber-attack or unauthorised penetration of systems (except to the extent that the Customer has specifically purchased services from ServerChoice to mitigate such risks and such risks should reasonably have been so mitigated by that service) adverse weather conditions or acts of local or central Government or other competent authorities or agencies, whether authorised or not by such Government or authority).
14. Governing Law
This Contract and any disputes arising therefrom (including non-contractual disputes) are governed by and construed in accordance with English law notwithstanding the jurisdiction where the Customer is based. the Customer irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute which may arise out of, under, or in connection with this Contract and for those purposes irrevocably submit all disputes to the jurisdiction of the English courts. The place of performance shall be England.
Colocation Terms & Conditions
In addition to the General Terms and Conditions, the Customer's use of Colocation Services is subject to the following additional terms and conditions:
1. Additional Defined Terms
In this document, the following words have the following meanings unless stated otherwise:
“Access Request” means an access request raised by the Customer and received by ServerChoice via the online portal.
“Colocation Services” means the colocation services referred to in the relevant Order Form and any goods or equipment supplied in connection with those services.
“Customer Area” means that portion of the Premises made available to the Customer for the placement of the Customer Equipment and use of the Colocation Services as agreed on the Order Form.
“Customer Equipment” means the Customer's computer hardware (excluding stored data) and other goods or equipment of the Customer in the Customer Area.
“IP Transit” means an amount bandwidth used to provide access to the Internet.
“Premises” means the business premises of ServerChoice Ltd and any other premises on which the Customer Equipment is located and where the Colocation Services are provided;
“Representatives” means the Customer's employees, agents or contractors as notified to ServerChoice in accordance with section 4.
“Standard Equipment” means any equipment that ServerChoice provides the Customer (whether exclusively or otherwise) as part of the Colocation Services including but not limited to server cabinets, PDUs, blanking panels and cabling.
2. ServerChoice Service Disruption
ServerChoice will provide the following as part of the Colocation Services:
- SPACE: An allocated amount of space within one or more server cabinets as specified on the Order Form, including any Standard Equipment as reasonably required to provide the Colocation Services.
- POWER: An allocated amount of power as specified on the Order Form. ServerChoice will supply 100% uninterruptible power supply (UPS) to the Customer Equipment with automatic failover to a diesel backup generator in the event of a mains failure.
- ACCESS: ServerChoice will provide the Customer with access to the Customer Equipment 24 hours a day, 7 days a week, 365 days a year - within twenty minutes of receiving an Access Request, subject to the Customer's compliance with all applicable ServerChoice policies, including the Access Policy.
- SECURITY: ServerChoice will provide a secure environment for the colocation of the Customer Equipment; and will restrict access to security cleared personnel only, as well as operating and recording CCTV cameras 24 hours a day 7 days a week.
- FIRE PROTECTION: ServerChoice will operate an early warning smoke detection system and also a fire suppression system.
- CONNECTIVITY: If applicable ServerChoice will provide an agreed amount of IP Transit and/or other connectivity services as specified on the Order Form.
- GENERAL: ServerChoice will provide use of a: (a) Monitor; (b) Keyboard; (c) Mouse; and (d) Desk as needed, but this shall not be exclusive to the Customer.
3. ServerChoice's Obligations
- ServerChoice will provide the Colocation Services in accordance with the service description listed in section 2 (a) and the colocation SLA in Appendix 2
- ServerChoice will provide the Customer and its nominated Representatives with access to the Customer Area on reasonable notice and at reasonable intervals subject to their compliance with any access and security policies and procedures. ServerChoice may impose such access conditions as it considers reasonably necessary to protect the security of the Premises.
- ServerChoice will endeavour to deliver the Services prior to the contract Start Date, but this is not guaranteed. ServerChoice will inform the Customer on a regular basis about progress and the expected date of completion. Whereby there has been a delay in the provisioning process which has not been caused by the Customer and has meant the Services are not ready prior to the Contract Start Date, the Customer will not be charged for until the Services are fully functional and handed over to the Customer.
4. The Customers's Obligations
the Customer acknowledges and agrees:
- it has been granted only a licence to occupy the Customer Area and use the Standard Equipment in accordance with these Terms;
- it has not been granted any real property interest or exclusive rights of access in or to the Customer Area or the Premises;
- it has no rights as a tenant or otherwise under any real property or landlord/tenant laws, or regulations.
- The Customer will not exceed the agreed power and IP Transit/bandwidth allocations set out in the Order Form unless ServerChoice expressly agrees otherwise. If ServerChoice becomes aware that the Customer's IP Transit/bandwidth or power usage is such that the Customer is likely to exceed the Customer's specified allocation, ServerChoice will use reasonable endeavours to notify the Customer. If the Customer does exceed its specified allocation the Customer will be charged for such excess usage in line with ServerChoice's standard charges and ServerChoice may require the Customer to take immediate steps to reduce use or consumption down to the agreed levels.
The Customer warrants and undertakes that:
- it has the legal right and authority, and will continue to own or maintain the legal right and authority, during the Term, to place and use the Customer Equipment as contemplated under this Appendix Terms;
- it will maintain the Customer Equipment to a standard which ensures that at all times the Customer Equipment is safe and complies with all applicable health and safety standards and all statutory or other legal requirements or obligations relating thereto. ServerChoice, with the permission of the Customer may access the Customer Area for the purposes of ensuring the successful operation of the Customer Equipment and to provide the Services. This is deemed to have been given if the Customer has provided written, verbal or email confirmation of their permission.
It will comply with ServerChoice's health & safety and other instructions issued from time to time including, in particular, those relating to:
- the condition of the Customer Area, including those instructions relating to the disposal of rubbish and hazardous material. The Customer will ensure that the Customer Area is kept tidy and safe at all times. If this is deemed to be lacking, ServerChoice will serve the Customer notice to remedy the conditions immediately;
- any event that ServerChoice considers the condition of the Customer Area or Premises to be unsafe for ServerChoice's employees (or other customers or their agents or sub-contractors) it may suspend provision of the Services until its instructions have been fully complied with by the Customer;
- any event that the Customer has not complied with notice given by ServerChoice in section 4 (d) (i), ServerChoice may, without prejudice to its other rights and remedies, remedy the condition of the Customer Area itself including, but not limited to, removal or disposal of any unsafe materials or rubbish at the Customer's expense;
- any installation and/or cabling works. To the extent that the Customer, and the Customers agents, employees or subcontractors are found to be engaging in works which are conducted in an unsafe manner or creating an unsafe environment, ServerChoice may immediately require the Customer to stop such works until such works or environment are made safe.
- it will refer to and conform to (and will procure compliance by any of its representatives with) any access and security policies that ServerChoice considers reasonably necessary to protect the security of the Premises;
- it will not install the Customer Equipment which occupies more than the space available in the Customer Area;
- it will not cause injury or damage to, and in the case of equipment, interference with, any person or property including (without limitation) the Premises and any equipment owned by ServerChoice or third parties which may from time to time be located in the Premises;
- that if any interference or disruption occurs between the Customer Equipment and the equipment of a third party, the same shall be resolved by ServerChoice in such manner as ServerChoice directs and in accordance with which the Customer shall comply. Should, following an investigation carried out by ServerChoice, it be established that the interference is caused by the Customer Equipment, the Customer shall be responsible for the cost of ServerChoice's investigation and the cost of repairing or replacing any damaged equipment belonging either to the Customer himself or any third party and shall pay such sums on demand to ServerChoice or such third party as ServerChoice may specify.
- It will not by any of its acts or omissions disrupt or interfere with ServerChoice's business or the business of any of ServerChoice's customers business.
If any claims or demands are brought against ServerChoice or any ServerChoice employee, officer, director or sub-contractor (“Indemnitees") arising out of the Customer's breach of any access or security policies, the Customer will indemnify ServerChoice and its Indemnitees against those claims or demands. This will not apply to the extent that the damage, destruction or injury is caused by the negligence or breach of this Contract by ServerChoice or its Indemnitees.
5. Installation and Connection of Equipment
The Customer must, at its expense:
- unless under separate arrangement with ServerChoice the Customer agrees to deliver and set up the Customer Equipment in the Customer Area at the Customer's own cost during Normal Business Hours;
- test the Customer Equipment from time to time to ensure that the Customer Equipment is used in compliance with all applicable manufacturer's specification;
- ensure that it has adequate back-up for all data, information and software stored on or served by the Customer Equipment;
- maintain the Customer Equipment in good working condition for the Term;
- not connect or attempt to connect the Customer Equipment to any ServerChoice network, equipment or facilities except as directed by ServerChoice;
- provide ServerChoice with assistance as reasonably required by ServerChoice to install and connect the Customer Equipment and perform the Colocation Services; and
- obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and deliverables including without limitation ensuring that the Customer holds correct and sufficient licenses for any third party software installed on the Customer's Equipment.
The Customer is designated as the responsible party for the installation unless the Order Form specifically mentions otherwise. the Customer must install, connect and configure the Customer Equipment as required for the delivery of the Colocation Services.
6. Relocation of the Equipment
ServerChoice may, on reasonable notice to the Customer, request that the Customer relocates the Customer Equipment to another area of the Premises or to an alternative premises to meet the reasonable business requirements of ServerChoice (including the needs of other customers, space restrictions or otherwise).
7. Standard Equipment
The Customer has the right to use ServerChoice Equipment, the Customer will, at its own expense, keep the Standard Equipment in good repair, appearance and condition, other than normal wear and tear.
- the Customer acknowledges that it has not and will not acquire any right, title or interest in or to the Standard Equipment except for the right to use the Standard Equipment as set out in this Appendix and the applicable Order Form and the Customer will hold the ServerChoice Equipment subject and subordinate to the rights of ServerChoice;
- the Customer must not remove any Standard Equipment from the Premises without the prior written consent of ServerChoice;
- the Customer will, at its own expense, keep the Standard Equipment free and clear from any liens, claims or encumbrances of any kind (except any caused by ServerChoice);
- the Customer will permit ServerChoice access to the Customer Area to perform maintenance and co-operate with ServerChoice for the removal of Standard Equipment on termination or expiry of the Colocation Terms.
8. Access to Equipment and the Customer Area
- The Customer shall have access to the ServerChoice Premises for the purposes of inspecting and maintaining the Customer Equipment in the Customer Area.
- Where the Customer has access to ServerChoice Premises, it will only provide access to the Services to authorised persons and ensure any access passes or keys together with any administrator information is kept secure at all times.
- The Customer will comply and will procure compliance with all health and safety, security and access policies and any rules or policies made generally available to the Customers from time to time of ServerChoice that receive colocation or similar Services, together with all other instructions ServerChoice gives to the Customer from time to time.
- ServerChoice may at its sole expense, access, upgrade, replace or remove the Standard Equipment from the Customer Area for routine maintenance, system upgrades or repairs or otherwise to meet the reasonable business requirements of ServerChoice (including the needs of other customers). ServerChoice will use reasonable endeavours to minimise any interruption to the Services whilst any work is carried out.
- ServerChoice may access the Customer Area for the purposes of providing the Colocation Services.
The Customer will allow ServerChoice, on reasonable notice and at reasonable intervals, to inspect the Customer Area, Standard Equipment, the Customer Equipment and any supporting documentation in relation to the Services as reasonably required to verify the Customer's compliance with the terms of this Contract and any applicable laws or regulations (e.g. health & safety).
The Customer shall keep in force with a reputable insurance company, appropriate insurances to cover potential losses or liability under this Contract, including but not limited to cover for all the Customer Equipment. The Customer must also have Employers' Liability Insurance and Public Liability Insurance of at least £2,000,000.
The Customer will ensure and be solely responsible for ensuring that its Representatives with access to the Customer Area maintain insurance coverage at levels no less than those required by applicable law and customary in the Customer's and its agents' industries.
11. Consequences of Termination
On termination of the Colocation Services the Customer must, as soon as practicable and in any event no later than 10 days after the cessation of the Colocation Services, subject to this Appendix:
- remove all the Customer Equipment (excluding any Customer Equipment on which ServerChoice has reserved a lien) from the Customer Area and the Premises; and
- return the Customer Area and Standard Equipment to ServerChoice in the same condition as it was on the commencement of the Colocation Services, normal wear and tear excepted.
If the Customer fails to comply with this section 11, ServerChoice may move any and all such Customer Equipment to secure storage and charge the Customer for the cost of such removal and storage or liquidate the Customer Equipment in any reasonable manner at the Customer's expense.
ServerChoice is not responsible and will not be liable for any interruption to the Services or any failure to meet the Service levels under the applicable SLA, resulting from or related to improper use or maintenance of the Customer Equipment or the Customer Area by the Customer.
13. Lien on the Customer Equipment
The Customer grants, and ServerChoice reserves, a lien on all the Customer Equipment as security for the Customer's obligations under this Appendix. In the event that the Customer fails to pay all undisputed amounts due and payable to ServerChoice under this Appendix, the Customer agrees that, upon delivery of written notice to the Customer, ServerChoice may:
- restrict the Customer's physical access to the Customer Area and Equipment; and/or
- take possession of any the Customer Equipment and store it, at the Customer's expense, until taken in full or partial satisfaction of any lien or judgment, all without being liable to prosecution or for damages; until payment of any overdue charge or expense in relation to any Colocation Services is received by ServerChoice.
ServerChoice will accept deliveries of goods on behalf of the Customer and will use reasonable efforts to store the same for a reasonable period. However it is the Customer's responsibility to insure the goods form delivery, and ServerChoice expressly disclaims liability for the safekeeping and insurance of the Goods.
Colocation Service Level Agreement
This SLA is provided in accordance with General Terms and Conditions and the Colocation Terms and Conditions.
1. ServerChoice Commitment
ServerChoice will provide the relevant Services in accordance with this SLA.
If ServerChoice fails to meet the levels of service set out in paragraph 3 of this SLA, we will issue the credits in accordance with this SLA.
2. Technical Support & Monitoring
- ServerChoice will monitor all key components used in the delivery of the Services 24 hours a day, 7 days a week, 365 days a year.
- ServerChoice will provide technical staff in its operations department 24x7x365 to assist the Customer with any issues that may arise. A 24 hour telephone number will be available for the Customers to report faults. Email support will also be provided, but should not be used for emergencies.
For the purposes of this Appendix “Service Affecting Issue” means any issue that materially degrades the performance of the Services being provided under this Contract.
ServerChoice will respond to any support requests made via the telephone or a support ticket within the following timeframes:
Severity Level Example Response Time Critical Services have gone offline and you require immediate assistance. 15 minutes Urgent Services are not functioning as normal or are running with degraded performance. 1 hour Standard Services are functioning normally, but you require assistance or have general support query. 4 hours
1 HOUR GUARANTEE
- ServerChoice operates a 1 hour guarantee for responding and resolving Service Affecting Issues.
- In the event of a Service Affecting Issue arising ServerChoice will work to fix the problem as quickly as possible.
- If ServerChoice cannot restore service within 1 hour from the time the issue was reported, a Credit will be provided equal to 5% of the equivalent Monthly Recurring Service Fees for each additional hour the affected service is unavailable, up to a maximum of 100% of the Monthly Recurring Service Fees.
ServerChoice will provide a 100% uninterruptable power supply (UPS) to the Customer Equipment with automatic failover to a diesel backup generator in the event of a mains failure subject to the following exclusions:
- scheduled maintenance;
- any faults or defects in the Customer Equipment or its implementation or installation by or on behalf of the Customer;
- any acts or omissions of the Customer (or its Representatives) in breach of this Contract;
- if the Customer exceeds any allocated power consumption;
- a service level Failure due to any alteration made to the Customer Equipment, the Customer Area or the Premises, by or on behalf of or at the request of the Customer (or any the Customer Representative), without the prior written consent of ServerChoice;
- any of the outages or other Service Affecting Issues described in paragraph 4 below, where ServerChoice's liability is expressly excluded.
- ServerChoice will provide a 100% uninterruptable power supply (UPS) to the Customer Equipment with automatic failover to a diesel backup generator in the event of a mains failure subject to the following exclusions:
ServerChoice will provide continuous environmental monitoring of the Data Centre to ensure the temperature and humidity level is maintained in line with current UK industry guidelines. This service level is subject to the following exclusions:
- scheduled maintenance;
- any acts or omissions of the Customer (or its Representatives) in breach of this Contract;
- ServerChoice will provide continuous environmental monitoring of the Data Centre to ensure the temperature and humidity level is maintained in line with current UK industry guidelines. This service level is subject to the following exclusions:
- The ServerChoice core network has been designed for performance, reliability and security. The network is fully redundant from the distribution level up.
Where an IP Transit service has been taken, ServerChoice guarantee that the network (which is defined as only the outbound IP transit facilities under the control of ServerChoice) will be available 100% of the time, subject to the following exclusions:
- scheduled maintenance;
- interruption or service failure to connectivity services provided by a third party;
- any acts or omissions of the Customer (or its Representatives) in breach of this Contract;
- if the Customer exceeds any allocated network consumption;
4. Specific Exclusions
Under no circumstances will ServerChoice be liable for any Service Affecting Issue or any other disruption or interruption to the Services to the extent caused by any sabotage, terrorism, cyber-attack or unauthorised penetration of systems (except to the extent that the Customer has specifically purchased services from ServerChoice to mitigate such risks and such risks should reasonably have been so mitigated by that service), including without limitation,
- so called “denial of service” (DoS or DDoS) attacks;
- unauthorised access to third party accounts or to the services of other customers of ServerChoice;
- dissemination of computer viruses;
- disruptions to building management, network, SCADA or DCIM systems and other attacks on physical systems caused by unauthorised access of third parties (notwithstanding the taking of reasonable security measures by ServerChoice).
5. Credit Structure
- If ServerChoice does not meet the service levels in this SLA and is unable to restore the service within 1 hour from the time the issue was reported, a credit will be provided equal to 5% of the applicable Monthly Recurring Service Fees for the colocation Services for each additional hour the affected service is unavailable, up to a maximum of 100% of the Monthly Recurring Service Fees.
- Credits shall be credited against the next Monthly Recurring Service Fees for colocation Services, or where there are no such fees because the Contract or relevant Services have been terminated, shall be paid by ServerChoice within 30 days of the Customer's valid demand.
- Credits apply individually for any one independent event (or series of related events) and shall not accrue concurrently, sequentially or in aggregate as a consequence of the same event (or series of related events) across all Service levels and the highest Credit (by amount) will apply.
- Credits will only be issued for Service Affecting Issues. ServerChoice liability in each month is limited to 100% of the Monthly Recurring Service Fees for the directly affected Services in the month which the guarantees were not met. Credits cannot be carried over from month to month and will be subject to any of the exclusions set out above, including any scheduled maintenance or outages caused by client errors or omissions.
- Where two or more SLA's are affected by the same event (or series of related events) only one Credit shall apply The Customer will only be entitled to receive a single Credit for all events (whether under this Appendix or in respect of any other services the Customer may subsequently order under other Appendices) which arise from the same root cause, as ServerChoice shall reasonably determine.
- All requests for credits under this SLA must be submitted to the Customer's account manager or [email protected] within 10 business days of the end of the month in question so the issue can be properly investigated. All e-mails sent to [email protected] will be acknowledged within 3 business days, otherwise please resubmit the request to the Customer's account manager.
- ServerChoice will not issue Credits in any circumstance where the Customer, their staff or any third party working on behalf of the Customer has modified any part of the Services without notifying ServerChoice with the minimum of 48 hours advance written notice, or where the Customer had prior knowledge of any circumstances that may affect the normal operation of the Services and failed to pass on this knowledge to ServerChoice with at least 48 hour advance written notice.
Acceptable Use Policy
This policy contains guidelines on how the Customer shall use ServerChoice Services. These guidelines give the Customer clear expectation as to what constitutes fair and reasonable usage. Customer acknowledges that it is bound by these guidelines as a user of the Services, in order that ServerChoice can operate a reliable service for all of its the customers.
The purposes of the AUP include:
- to guarantee reliable service to its clients;
- to guarantee the security and privacy of both ServerChoice systems and network and third-party systems and networks;
- to satisfy statutory requirements;
- to uphold ServerChoice reputation as a responsible service provider;
- to promote the responsible use of the Internet, and to discourage any activities that reduce the value and usefulness of Internet services;
- to ensure the privacy and security of individual users.
- Conduct that violates law, regulation or the accepted norms of the Internet community, whether or not expressly mentioned in this policy, is prohibited. ServerChoice reserves the right at all times to prohibit such activities including but not limited to instant termination of Services.
Activities that infringe this AUP include but are not limited to the following:
- Unsolicited bulk e-mail (SPAM)
- E-mail or news bombing
- Usenet spamming
- Unauthorised access to third party accounts
- Network disruptions and other hostile activities e.g. DoS and DDoS
- Dissemination of computer viruses
As part of the Services the Customer may not publish, display or transmit any content that we reasonably believe:
- is illegal or unlawful;
- constitutes or encourages child pornography or is otherwise obscene, sexually explicit or morally repugnant;
- is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
- is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- is defamatory or violates a person's privacy;
- creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement bodies;
- improperly exposes trade secrets or other confidential or proprietary information of another person;
- is intended to assist others in defeating technical copyright protections;
- infringes another person's trade or service mark, patent, or other property right;
- is discriminatory in any way, including by way of sex, race, or age discrimination;
- facilitates any activity or conduct that is or may be defamatory, pornographic, obscene, indecent, abusive, offensive or menacing;
- is otherwise illegal or solicits conduct that is illegal under laws applicable to the Customer or to ServerChoice;
- involves any criminal offence including, but not limited to, theft, fraud, piracy, drug-trafficking, money laundering and terrorism; or to facilitate or incite violence, sadism, cruelty, self-harm or abuse, racial hatred, prostitution or paedophilia; or
- is otherwise malicious, fraudulent, or may result in retaliation against ServerChoice by offended viewers.
As part of the Services the Customer may not download, publish, distribute, or otherwise copy in any manner any text, music, software, art, image or other work protected by copyright law unless:
- the Customer have been expressly authorised by the owner of the copyright for the work to copy the work in that manner; and
- the Customer are otherwise permitted by copyright law to copy the work in that manner.
the Customer may not engage in illegal, abusive, or irresponsible behaviour, including but not limited to:
- Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network;
- monitoring data or traffic on any network or system without the authorisation of the owner of the system or network;
- interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
- use of an Internet account or computer without the owner's authorisation, including, but not limited to Internet scanning (tricking other people into releasing their passwords), password robbery, security hole scanning, and port scanning;
- forging of any TCP-IP packet header or any part of the header information in an e-mail; or
- any conduct that is likely to result in retaliation against the ServerChoice network.
- directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, confidential information or other trade secrets from ServerChoice or any of its other customers.
- The Customer shall not do or omit to do anything that may have an adverse impact on any of ServerChoice's other customers or suppliers or cause any adverse impact on the operation or resilience of ServerChoice's data centres or other equipment and facilities.
- The Customer is responsible for providing and maintaining accurate and up-to-date contact information. Providing false data e.g. contact details or fraudulently using details e.g. credit card numbers is grounds for immediate termination.
- IRC robots or IRC sessions may not be run from ServerChoice's server accounts, without specific permission from ServerChoice.
- The Customer must safeguard their account passwords to prevent unauthorised access to their account.
- The Customer should give ServerChoice at least forty-eight (48) hours' notice of any resource intensive activities they wish to perform, so that adequate provisions can be made.
- Any decision made by ServerChoice in relation to its Services and the AUP shall be final.