8.1 The provision of Services or sale of Equipment by LeaseWeb to
Customer is subject to approval by LeaseWeb of Customer’s
credit. In view hereof, Customer shall prior to the RFS Date or
Delivery Date provide credit information to LeaseWeb for
approval by LeaseWeb.
8.2 LeaseWeb may, at any time, by notice in writing impose a credit
limit on Customer to an amount to be determined by
LeaseWeb. Any Services required by Customer in excess of any
such credit limit will require Customer to deposit an amount
equal to or greater than the amount by which Customer will
exceed the credit limit.
8.3 In addition to Section 8.2, LeaseWeb may require Customer to
provide a deposit or a bank guarantee or a parent guarantee,
equivalent to up to three (3) months' Service Charges (actual or
projected) or other security satisfactory to LeaseWeb.
8.4 Any deposit or bank guarantee or parent guarantee shall be
held by LeaseWeb as security for the payment of Service
Charges and any other amounts due under the Agreement.
8.5 Upon termination or expiration of the Agreement, LeaseWeb
may apply a deposit or bank guarantee or parent guarantee to
any amounts owed by Customer to LeaseWeb. Any remaining
credit balance of a deposit shall be refunded to Customer. Any
deposit paid by Customer pursuant to this Section will not carry
any interest.
9.1 For Equipment purchased by Customer from LeaseWeb,
Customer shall pay to LeaseWeb the purchase price specified in
the Order Form. For the use of the Services, Customer shall pay
to LeaseWeb the Service Charges. Unless specified otherwise,
all Service Charges are in US Dollars.
9.2 LeaseWeb is entitled to increase any of the Service Charges one
(1) time per calendar year, by the higher of either: (a) five
percent (5%); or (b) the percentage increase of the CPI for the
previous year. The increase will apply with effect from the first
(1st) of January, unless stipulated otherwise by LeaseWeb in its
notification to Customer. In the event that the increase of the
Service Charges takes effect within twelve (12) months of the
Effective Date, the increase will be pro‐rated on the basis of the
number of months that have passed since the Effective Date.
9.3 In addition to Section 9.2, LeaseWeb shall be entitled to pass on
changes in any (license) fees or prices or charges for
(software)products: (i) used by LeaseWeb in the provision of
Service to Customer; (ii) or licensed or resold by LeaseWeb to
Customer.
9.4 Unless specified otherwise in the Order Form, LeaseWeb will
invoice:
a) the purchase price of any Equipment sold by LeaseWeb to
Customer, upon the Effective Date of the Order;
b) setup charges, Service activation charges and any other non‐
recurring initial charges, upon the RFS Date or upon the
Effective Date, whichever is earlier; and
c) all recurring Service Charges, e.g. with respect to the usage
of Bandwidth and/or Data Traffic, as of the RFS Date or the
Effective Date (whichever is earlier), and monthly in advance
thereafter, with the exception of use of Services above the
agreed levels of Service and/or additional services which will
be invoiced monthly in arrears.
9.5 In deviation of Section 9.4a), LeaseWeb may require Customer
to make a pre‐payment to LeaseWeb in relation to any
Equipment purchased by Customer from LeaseWeb.
9.6 LeaseWeb will send invoices to Customer by e‐mail, in a
portable document format (PDF). At Customer’s request,
LeaseWeb will – as an extra Service – provide Customer with a
print out of the invoice, via regular mail. For such extra Service,
Customer shall pay a Service Charge to LeaseWeb, in relation to
the additional (administrative) activities performed by
LeaseWeb and the costs of the mail service.
9.7 Unless specified otherwise in the Order Form, all invoices sent
by LeaseWeb to Customer are payable by Customer to
LeaseWeb within fourteen (14) days of the date of the invoice
by Customer.
9.8 The method of payment is specified in the Order Form. In case
of Direct Debit or Credit Card, Customer authorizes LeaseWeb
to charge Customer’s bank account or Credit Card for the
Service Charges.
9.9 In case Customer has a complaint with respect to an invoice,
Customer shall communicate such complaint in writing to
LeaseWeb within the payment term, in the absence whereof
invoices are deemed to be approved of by Customer. A
complaint with respect to an invoice shall only be taken into
consideration in the event that the complaint specifies the
relevant invoice(s) and provides proper motivation for the
complaint. In such case, the Parties will use commercially
reasonable efforts to resolve the dispute amicably within
twenty (20) days of LeaseWeb’s receipt of Customer’s
complaint, firstly at the level of each Party’s senior
management and – failing satisfactory resolution within fifteen
(15) days – secondly at the Parties’ executive level. In the event
Parties fail to resolve the dispute amicably within twenty (20)
days of LeaseWeb’s receipt of Customer’s complaint, each Party
shall be entitled to commence dispute resolution in accordance
with Section 27.
9.10 Customer shall not be entitled to any set‐off or deduction of
payment of an invoice. Customer’s right to suspend payment of
(part of) an invoice is limited to the amount of the invoice that
is contested in good faith by Customer, in accordance with
Section 9.9. In the event Customer’s complaint is found to be
unjustified, Customer will immediately pay the outstanding
amount, plus interest in accordance with Section 9.11.
9.11 If Customer does not pay an invoice within the payment term,
in the event that such invoice has not been disputed in
accordance with Section 9.9, or Customer does not pay the
undisputed part of the invoice within the payment term,
Customer shall be in default by operation of law and LeaseWeb
will, without a warning or notice of default being required, be
entitled to charge Customer interest on such sum on a daily
basis from the due date until the date of payment with an
interest rate of six percent (6%) per annum, without any
prejudice to LeaseWeb’s other rights and remedies.
9.12 In addition to Section 9.11, in the event that LeaseWeb and
Customer have agreed to payment by Customer to LeaseWeb
by means of Direct Debit, LeaseWeb will be entitled to charge
an administrative fee of five hundred US Dollars (US$ 500.‐‐) to
Customer, if: (i) Customer has cancelled the Direct Debit
authorization; or (ii) payment to LeaseWeb has been reversed
or denied more than once.
10.1 Customer shall be responsible for and shall pay all sales, use,
excise, or similar consumption taxes (including VAT, if
applicable) arising out of its purchase or lease of Services
and/or Equipment from LeaseWeb; provided, however, that
LeaseWeb shall be solely responsible for its own income‐, net
worth‐, and property taxes.
10.2 Notwithstanding the foregoing, LeaseWeb shall not invoice
Customer for any taxes for which Customer has provided a valid
exemption certificate in a form reasonably acceptable to
LeaseWeb.
10.3 The Parties are of the opinion that the use or provision (as
appropriate) of the Colocation Service will not create a
relationship of lessor/landlord and tenant between the Parties.
11.1 LeaseWeb shall be entitled to immediately suspend the
provision of any of the Services and/or to suspend Customer’s
access to the Customer Portal and/or to suspend Customer’s
right to access to the Equipment, by giving written notice to
Customer, in the event that:
a) LeaseWeb receives an order or ruling or decision to that
effect from a court, any law enforcement authority or any
(other) governmental authority;
b) Customer is in breach of the Anti‐Spam Policy, or is involved
in activities such as IP high jacking, and Customer fails to
respond to LeaseWeb within thirty (30) minutes after having
received written notice with respect to the breach and/or
Customer fails to remedy such breach within two (2) hours
after having received written notice thereon;
c) Customer is in breach of the Acceptable Use Policy and
Customer fails to respond to LeaseWeb within thirty (30)
minutes after having received written notice with respect to
the breach and/or Customer fails to remedy such breach
within eight (8) hours after having received written notice
thereon;
d) Customer is in breach of any of the other LeaseWeb Policies
and Customer fails to respond to LeaseWeb within thirty (30)
minutes after having received written notice with respect to
the breach and/or Customer fails to remedy such breach
within twenty four (24) hours after having received written
notice thereon;
e) Customer’s consumption of electricity exceeds Basic Power
(specified in the Order) and Customer fails to reduce its
electricity consumption to a level on or below Basic Power
within three (3) days after having received notice thereon;
f) Customer’s consumption of Data Traffic or Bandwidth
exceeds the Committed Data Traffic or the Committed
Bandwidth (specified in the Order), as the case may be, and
Customer fails to reduce such consumption to a level on or
below the Committed Data Traffic or the Committed
Bandwidth, as the case may be, within three (3) days after
having received notice thereon;
g) Customer has failed to maintain the licenses, permits, and
authorizations required to use the Services and/or the
Equipment and fails to remedy such failure within seven (7)
days after having received written notice thereon;
h) Customer does not cooperate with any investigation of
Customer’s alleged improper or unlawful use of the Services,
the Network or other networks accessed through LeaseWeb,
and fails to remedy such breach within seven (7) days after
having received written notice thereon;
i) Customer does not pay an invoice within the payment term
and fails to pay such invoice, plus the interest referred to in
Section 9.11, within a period of seven (7) days after having
received notice thereon;
j) the Services, software, Equipment are exported or used in a
country, or used by a Customer or an End‐User, in violation
of the restrictions referenced in Section 15.9; or
k) Customer is in breach of any of the other provisions of the
Agreement and Customer fails to remedy such breach within
a reasonable period after having received written notice
thereon, whereby, unless such notice period has been
extended in writing by LeaseWeb, a period of fourteen (14)
days shall be considered a reasonable period.
11.2 In addition to Section 11.1, in the event that Customer is in
default of its payment obligations according to Section 9.11,
LeaseWeb shall ‐upon three (3) days prior written notice‐ be
entitled to:
a) limit Customer’s consumption of Data Traffic or Bandwidth;
and/or
b) suspend Customer’s right to access or use the Customer
Portal; and/or
c) suspend the provision of support Services.
11.3 LeaseWeb shall be entitled to continue the suspension or
limitation described in Section 11.1 and Section 11.2 until:
a) Customer has remedied the breach and has paid the
deactivation charge specified in Section 11.4; or
b) the Agreement has been terminated in accordance with
Section 20.
11.4 Following suspension of the provision of the Services and/or
access to the Equipment, in accordance with Section 11,
LeaseWeb may claim, and Customer shall pay upon demand, a
deactivation charge in the amount of one hundred fifty US
Dollars (US$ 150.‐‐), in relation to the (administrative) activities
performed in order to suspend and, if applicable, to
recommence the provision of the Services and/or Customer’s
(right to) access to the Equipment.
12.1 Immediately on becoming aware of a Service Disruption,
Customer shall notify LeaseWeb by e‐mail and by telephone of
the Service Disruption and shall provide LeaseWeb with the
appropriate information regarding in accordance with Chapter
A of the Support and Service Level Schedule:
12.2 Following notification by Customer in accordance with Section
12.1, LeaseWeb shall:
a) notify Customer of the estimated timescale for restoration
of the affected Services, on LeaseWeb’s website and via e‐
mail;
b) use its best endeavors to end the Service Disruption and to
restore the affected Services; and – as necessary ‐
c) provide Customer with information updates on its progress
to end the Service Disruption.
12.3 Instead of restoring a Service, LeaseWeb may elect to substitute
such affected Service by a reasonably equivalent Service.
12.4 In the event of a Service Disruption, Customer may be entitled
to compensation in the form of a Service Credit as specified in
the Support and Service Level Schedule.
13.1 LeaseWeb reserves the right to suspend the Services and may
suspend Customer’s right to access to the Equipment in order
to perform Maintenance.
13.2 Customer acknowledges that LeaseWeb will from time to time
have to perform Maintenance in order to ensure a proper
performance of the Network, LeaseWeb Datacenter and the
Services and that such Maintenance may affect the provision of
the Services to Customer.
13.3 If LeaseWeb expects scheduled Maintenance, referred to in
Section 13.2, to affect the provision of the Services and/or
access to the Equipment, LeaseWeb shall:
a) ‐ to the extent reasonably possible ‐ provide at least three
(3) days prior notice to Customer of the intended
Maintenance;
b) ‐ to the extent reasonably practicable ‐ schedule such
Maintenance and any related suspension of the Services
and/or access to the Equipment within the Maintenance
Window, so as to minimize any adverse effect of the
Maintenance on Customer’s use of the Services and/or
access to the Equipment; and
c) endeavor to keep the duration of any interruption or
suspension or degradation in the provision of the Services
and/or Customer’s access to the Equipment as short as
possible.
13.4 If LeaseWeb does not expect scheduled Maintenance, referred
to in Section 13.2, to affect the provision of the Services and/or
access to the Equipment, LeaseWeb shall be entitled to perform
such Maintenance at any time, without taking into account a
notice period.
13.5 Customer acknowledges that LeaseWeb may from time to time
have to perform non‐scheduled Maintenance, in order to
resolve or prevent an Emergency. LeaseWeb shall be entitled to
perform such Maintenance at any time, without taking into
account a notice period. LeaseWeb shall in such case notify
Customer of such Emergency and the need to perform
Maintenance without undue delay.
13.6 Customer acknowledges that LeaseWeb will from time to time
perform Tests and that Tests may be performed at any time,
without taking into account a notice period.
14.1 Customer acknowledges that LeaseWeb’s ability to grant
Customer a license to use the Housing Space, as well as
LeaseWeb’s ability to provide (other) Services, are subject to
the provisions of – and continuance of – (a) Facility
Agreement(s).
14.2 LeaseWeb reserves the right to relocate the Housing Space, as
well as the right to suspend the Services in connection with
such relocation.
14.3 LeaseWeb shall give prior written notice to Customer of the
intended relocation, taking into account a notice period of at
least thirty (30) days, unless such notice cannot reasonably be
expected from LeaseWeb.
14.4 In the event that LeaseWeb elects to relocate the Housing
Space, Customer shall be required to relocate the Colocated
Equipment to the new/alternative Housing Space designated by
LeaseWeb.
14.5 In case the relocation of the Colocated Equipment is performed
by Customer, as referred to in Section 14.4, LeaseWeb shall
provide compensation to Customer for any reasonable costs, to
be determined by LeaseWeb, incurred by Customer as a result
of the relocation, excluding the costs of any new
interconnections that Customer may require or the
procurement, delivery, and/or installation of any duplicate
Colocated Equipment required to accomplish the relocation.
14.6 Without prejudice to Section 14.4, LeaseWeb may – at its sole
discretion – decide to relocate the Colocated Equipment for and
on behalf of Customer, provided that LeaseWeb shall in such
case:
a) notify Customer thereof simultaneously with its notification
of the intended relocation of the Housing Space; and
b) to the extent practicable, coordinate the relocation of the
Colocated Equipment with Customer.
15.1 Each Party warrants, represents and undertakes that it:
a) has obtained and that it will, at least for the duration of the
Agreement, maintain all of the necessary licenses, permits,
and authorizations to use or provide (as appropriate) the
Services and the Equipment;
b) shall comply with all relevant laws in providing or using (as
appropriate) the Services;
c) shall use or provide (as appropriate) the Services with all due
skill, care and diligence, at least in accordance with good
industry practice.
15.2 Without limiting the generality of Section 15.1a), Customer
warrants, represents and undertakes that it shall pay all due
local access‐ or telecommunications charges applicable to
transmitting data beyond the Network and/or through other
public and private networks, as necessary and related to
Customer’s use of the Services.
15.3 Without limiting the generality of Section 15.1, Customer
warrants, represents and undertakes that it owns or has the
right to use and offer (i) the content on its website; and (ii) the
content transmitted by Customer over the Network.
15.4 With respect to software licensed or resold or otherwise given
into use by LeaseWeb to Customer, Customer warrants,
represents and undertakes that it shall comply with the
provisions of any end user license agreement related to such
software.
15.5 With respect to the Equipment sold by LeaseWeb to Customer,
LeaseWeb will provide a hardware warranty to Customer that is
equivalent or equal to the warranty granted to LeaseWeb by
the manufacturer / supplier of such Equipment. To the extent
possible,:
a) LeaseWeb will transfer to Customer and Customer will
accept the warranty that LeaseWeb has received from the
manufacturer / supplier of the Equipment; or
b) LeaseWeb will arrange that the manufacturer / supplier of
the Equipment grants such warranty directly to Customer.
c) In the events referred to in sub a) and b) of this Section,
Customer will not have any recourse against LeaseWeb with
respect to such Equipment sold by LeaseWeb to Customer,
but instead may seek recourse directly from the
manufacturer / supplier of such Equipment.
15.6 With respect to software licensed or sublicensed or otherwise
given in to use or provided to Customer by LeaseWeb,
LeaseWeb will provide a (software) warranty that is equivalent
or equal to the warranty granted to LeaseWeb by the
manufacturer / supplier of such software. To the extent
possible:
a) LeaseWeb will transfer to Customer and Customer will
accept the warranty that LeaseWeb has received from the
manufacturer / supplier of the software; or
b) LeaseWeb will arrange that the manufacturer / supplier of
the software grants such warranty directly to Customer.
c) In the events referred to in sub a) and b) of this section,
Customer will not have any recourse against LeaseWeb with
respect to such software, but instead may seek recourse
directly from the manufacturer/supplier of such software.
15.7 Without limiting Section 15.6, the Customer Portal (including
the use thereof, and the related services) is provided ‘as is’; and
otherwise LeaseWeb hereby disclaims any and all warranties of
any kind, whether express or implied, relating to the Customer
Portal, the software used therein or as part thereof, and any
data accessed there from, including any implied warranties of
title, satisfactory quality, fitness for a particular purpose and
non‐infringement.
15.8 Notwithstanding Section 15.6 and Section 15.7, LeaseWeb does
not warrant that the Customer Portal, the software used
therein or as part thereof, or the related services, or the
Customer’s use thereof, are or will be error free or will operate
without interruption.
15.9 The Services, software and Equipment may be subject to
international rules that govern the export of Services, software
and Equipment. Customer warrants that it shall comply with all
end‐user, end‐use, destination restrictions issued by national
governments or similar bodies, and restrictions on embargoed
nations.
15.10 The warranties expressly set forth in the Agreement constitute
the only warranties of LeaseWeb regarding the Services and the
Equipment and such warranties are in lieu of all other
warranties, express, implied, written, oral or statutory, by
operation of law or in fact, including but not limited to
warranties of merchantability, non‐infringement or fitness for a
particular purpose.
15.11 The foregoing warranties shall not apply to performance issues
or defects in the Services (i) caused by factors outside of
LeaseWeb’s reasonable control; (ii) that resulted from any
actions or inactions of Customer or any third parties; or (iii) that
resulted from Customer’s equipment or any third party
equipment not within the sole control of LeaseWeb.
15.12 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 15,
LEASEWEB MAKES NO REPRESENTATIONS OR WARRANTIES OF
ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE
EQUIPMENT, THE SOFTWARE OR THE SERVICES PROVIDED
UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE
SERVICES FOR A PARTICULAR PURPOSE, TITLE OR NON‐
INFRINGEMENT OF THIRD PARTY RIGHTS, AND LEASEWEB
HEREBY EXPRESSLY DISCLAIMS THE SAME. LEASEWEB DOES
NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED,
ERROR‐FREE OR COMPLETELY SECURE.