Terms and Conditions for the provision of Dedicated Servers XtremeDedi operates collocation data centers from which it provides customers with dedicated servers. These Terms and Conditions set out the terms under which XtremeDedi will provide dedicated servers and other related Services to the Customer.
1. Interpretation
1.1.1 “Confidential Information” means all personal data and any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how and contractors of a party whether such information is designated as being confidential or which ought to be considered confidential;
1.1.2 “Account Number” means the unique reference number specified in an Order assigned to each Customer;
1.1.3 “Agreement” means an Order (incorporating the Terms and Conditions) duly executed by both parties pursuant to clause 3.2.5;
1.1.4 “Acceptable Use Policy” means the terms which the Services are permitted for use;
1.1.5 “Commencement Date” means the date which the order is accepted by XtremeDedi;
1.1.6 “Equipment” means any XtremeDedi equipment including all components, hardware and software required by XtremeDedi in order to provide the Services;
1.1.7 “Connectivity” means connection at specified data transfer rates measured in Kbps, Mbps, Gbps between the Equipment and the Internet that allows for the transmission of Data;
1.1.8 “Contract Number” means the unique reference number in an Order that identifies each Customer Agreement;
1.1.9 “Data Centre” means a data center operated by XtremeDedi;
1.1.10 “Data” means all data existing now or in the future that can be stored on, transmitted to, through, or from the Equipment;
1.1.11 “Customer Equipment” means any Customer equipment including all components, hardware and software, including third party software provided by the Customer to XtremeDedi for XtremeDedi to use in provision of the Services which the Customer shall be fully responsible for maintaining and replacing;
1.1.12 “Account” means the facilities offered to the Customer accessed by Means of their Account Number;
1.1.13 “Fair Usage Policy” means published terms which the Services are limited for use;
1.1.14 “Fee” means the fees payable by the Customer to XtremeDedi as set out in the Order;
1.1.15 “Force Majeure Event” means in relation to either party, any circumstances arising from any acts, omissions or happenings beyond the reasonable control of that party (including without limitation, fire, flood, or any natural disaster, war, strike, lock out or other form of industrial or political action);
1.1.16 “Gbps” means Gigabits per second which is a measure of the Connectivity speed specific to the Customer and specified in the Order;
1.1.17 “Initial Fee” means the Fee paid by the customer prior to the Commencement Date;
1.1.18 “Initial Period” means the duration from the Commencement Date for the duration specified for the initial Fee;
1.1.19 “Intellectual Property Rights” means intellectual property rights anywhere in the world arising whether registered or unregistered, including copyright, know-how, confidential information, trade secrets, business name and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights and database rights;
1.1.20 “Kbps” means kilobits per second which is a measure of the Connectivity speed specific to the Customer and specified in the Order;
1.1.21 “Mbps” means megabits per second which is a measure of the Connectivity speed specific to the Customer and specified in the Order;
1.1.22 “Order” means an order provided by XtremeDedi to the Customer setting out the Fee and Services to be provided by XtremeDedi subject to the Terms and Conditions;
1.1.23 “Term” means the period commencing on the Commencement Date and terminating in accordance with Clause 9;
1.1.24 “Power Cycle” means to remove and then replace the power lead to the Equipment to enable the Equipment to restart;
1.1.25 “Services” means the provision of the hosting described in the Order;
1.1.26 “Planned Outage” means a temporary Connectivity interruption where the date, time and duration has been notified to the Customer;
1.1.27 “Terms and Conditions” means these terms and conditions and Schedule 1 but excluding the Order;
1.1.28 “Unscheduled or Emergency Maintenance” means all repairs, upgrades, maintenance or tests involving the Data Center or the Equipment which are not scheduled or about which the Customer has not received prior notification;
1.1.29 “UPS” means Uninterpretable Power Supply system that provides continuous and clean power to the Equipment;
1.1.30 “Working Day” means a day (other than Saturday, Sunday or holiday scheduled by law) on which banks are generally open for business in the City of London;
1.1.31 “Working Hours” means between 09:00 and 23:59 on any Working Day(GMT +5.30 hrs);
2. Services
2.1 In consideration of the Customer agreeing to pay the Fee XtremeDedi will provide the Services from the Commencement Date during the Term. 2.2 XtremeDedi will provide the Services with reasonable skill and care; and in accordance with all relevant laws including Our Data Center Law.
3. Order
3.1 These Terms and Conditions shall apply to any Services provided by XtremeDedi to the Customer following execution of an Order.
3.2 The Order process is as follows:
3.2.1 XtremeDedi will provide the Customer with an electronic Order;
3.2.2 “Planned Outage” means a temporary Connectivity interruption where the date, time and duration has been notified to the Customer;
3.2.3 Payment of the Initial Fee shall be deemed to be an offer issued by the Customer to XtremeDedi to provide the Services specified in the Order;
3.2.4 The Customer will arrange for an authorized signatory to accept the Order and pay the Initial Fee;
3.2.5 An Order shall not be deemed to have been accepted by XtremeDedi until XtremeDedi has provisioned the Order and the customer has been sent confirmation electronically or otherwise the Order has been provisioned; .
4. Customer Obligations
4.1 The Customer shall ensure that the services specified in the Order meet the requirements of the Customer and XtremeDedi shall not be liable to the Customer for any failure to meet the requirements of the Customer other than as expressly set out in the Terms and conditions .
4.2 The Customer shall indemnify and hold XtremeDedi harmless against all loss and damage to the Equipment, including the Data Center, caused by any act or omission of the Customer or any of its directors, officers, employees, representatives or sub-contractors and all loss and damage arising out of XtremeDedi’s use of any Customer Equipment and all loss and damage arising out of the Customer’s breach of Clause
4.3 The Customer shall notify XtremeDedi in the event that it requires any Customer Equipment to be operated by XtremeDedi in provision of the Services. XtremeDedi may refuse to accept any Customer Equipment without reason.
4.4 The Customer shall justify its use of any IP allocation within the terms permitted by RIPE and the policy of XtremeDedi.
4.5 The Customer shall promptly on expiry or termination of the Agreement collect all Customer Equipment from the Data Center. Where the Customer fails to collect Customer Equipment within 30 days XtremeDedi may remove and dispose of the Customer Equipment without liability to the Customer.
4.6 The Customer represents and warrants:
4.6.1 that it has the full power and authority to enter into an Order;
4.6.2 that the Customer will use the Services or transmit Data in accordance with XtremeDedi’s Acceptable Use Policy and XtremeDedi’s Fair Usage Policy.
4.6.3 that the Customer will not use the Services or transmit Data for any unlawful purpose, including without limitation fraud, invasion of privacy, obscenity, defamation or interrupt or interfere with other network users;
5. Payment Terms:
5.1 The customer will pay the Fee to XtremeDedi within 24 hours of receipt of an invoice;
5.2 An invoice shall deemed to have been received when available to the Customer via their Account;
5.3 Invoices will be submitted to the Customer in advance at the period specified in the Order or notified to the Customer by XtremeDedi;
5.4 The Customer will pay the Fee without deduction by way of set-off, counterclaim, discount whatsoever;
5.5 All Fees are exclusive of VAT unless expressly stated to include VAT in the Order;
5.6 XtremeDedi may take payment of an Invoice by using bank details stored by the customer under their Account;
5.7 Invoices will be submitted to the Customer unless otherwise notified to the Customer by XtremeDedi no more than seventeen days prior to the date after the period specified on the previous invoice.
6. Changes to the Order
6.1 Any request to change the scope of Services will be processed in accordance with the following procedure:
6.1.1 If XtremeDedi accepts the request, XtremeDedi will provide a copy of the updated Order by means of the Account.
6.1.2 Where the Customer requests a change in the existing Services or additional services it will submit a request to XtremeDedi setting out the change or additional services required.
6.2 XtremeDedi may change the scope of Services offered at anytime and provide an updated Order by means of the Account.
7. Intellectual Property Rights
7.1 All Intellectual Property Rights in the Equipment will remain vested in XtremeDedi or its licensor.
7.2 All Intellectual Property Rights in the Customer Equipment will remain vested in the Customer.
7.3 The Customer grants to XtremeDedi a non-exclusive, non-transferable royalty free license to use the Customer Equipment to the extent necessary to provide the Services. This licence granted above will automatically terminate on termination or expiry of the Agreement.
8. Risk and Title in the Equipment
8.1 Risk and title in the Equipment shall remain vested in XtremeDedi.
8.2 Risk and title in the Customer Equipment shall remain vested in the Customer.
8.3 The Customer acknowledges and agrees that XtremeDedi will, prior to completion of an Order, purchase the Equipment necessary for provision of the Services to the Customer.
9. Term and Termination
9.1 The Services will commence on the Commencement Date and will continue unless either party serves notice to terminate by giving notice to the other party.
9.2 XtremeDedi may provide notice to the Customer by means of any registered contact method .
9.3. The Customer may provide notice to XtremeDedi by means of the Account and specifying a date for termination.
9.4 Notice will be deemed to have been given by XtremeDedi if the Customer fails to meet their obligations.
9.5 On expiry of termination pursuant to this Clause 9 the Customer will pay the Fee accrued up to and including the date of expiry or termination.
9.6 The Customer acknowledges and agrees that XtremeDedi will, prior to completion of an Order, purchase the Equipment necessary for provision of the Services to the Customer.
9.7 The Customer acknowledges and agrees that no refund shall be given for fees already paid and invoices received under Clause 5.7.
9.8 The right to cancel under The Consumer Protection Regulations 2000 may be affected if performance of the Service begins prior to the seven working day period as defined by The Consumer Protection Regulations 2012.
10. Confidentiality
10.1 During the term of the Agreement and after termination of the Agreement the parties:-
10.1.1 will not use Confidential Information for any purpose other than the performance of its obligations under the Agreement;
10.1.2 will not disclose Confidential Information to any person except with the prior written consent of the other party or in accordance with Clause 10.2 below; and
10.1.3 will make every effort to prevent the use and disclosure of Confidential Information.
10.2 During the term of the Agreement the parties may disclose Confidential Information to any of its directors, officers, employees, representatives or sub-contractors (a “Recipient”) to the extent that disclosure is reasonably necessary for the purposes of the Agreement.
10.3 The disclosing party will ensure that a Recipient is made aware of and complies with that party’s obligations of confidentiality under the Agreement as if the Recipient was a party to the Agreement.
10.4 Clauses 10.1, 10.2 and 10.3 do not apply to Confidential Information which:-
10.4.1 is at the date of the Agreement, or at the time of its use or disclosure is, publicly known other than as a consequence of a parties breach of the Agreement;
10.4.2 can be shown by a party to the other party to have been known by the other party before disclosure; or
10.4.3 to the extent the disclosure is required by law or in response to any order of a court or other judicial tribunal.
11. Limitation of Liability
11.1 Except as expressly stated in the Terms and Conditions, all conditions, warranties and representations, expressed or implied by statute, common law or otherwise, in relation to the supply, non supply or delay in supplying the Services are excluded to the extent permitted by law.
11.2 Subject to the provisions in Clause 11.4 below, XtremeDedi will not be liable to the Customer in contract, tort (including negligence or breach of statutory duty) or otherwise for any of the following losses or damages, whether direct or indirect, arising out of, or in connection with, the supply, non supply or delay in supplying the Services or in connection with the Agreement:
11.2.1 loss or damage incurred by the Customer as a result of third party claims;
11.2.2 loss of actual or anticipated profits;
11.2.3 loss of business opportunity;
11.2.4 loss of anticipated savings;
11.2.5 loss of goodwill;
11.2.6 injury to reputation; or
11.2.7 any indirect, special or consequential loss or damage howsoever caused even if XtremeDedi was advised of the possibility of them in advance.
11.3 Subject to Clause 11.4, the entire liability of XtremeDedi to the Customer arising out of or in connection with the Services or otherwise in connection with the Agreement whether in contract, tort (including negligence or breach of statutory duty) or otherwise, is limited to the Fee in the aggregate per annum.
11.4 Nothing in the Agreement will operate to exclude or restrict XtremeDedi’s liability for:
11.4.1 death or personal injury resulting from negligence as defined in the law; or
11.4.2 fraud or other matter if and to the extent that, under Indian law, liability for it cannot be excluded, restricted or limited as against the Customer in the context of the Agreement.
11.5 If suspension of the Services arises out of, or in connection with, an act or omission of the Customer, then the Customer will pay to XtremeDedi all reasonable costs incurred by XtremeDedi in reconnecting the Services.
12. Insurance
12.1 If suspension of the Services arises out of, or in connection with, an act or omission of the Customer, then the Customer will pay to XtremeDedi all reasonable costs incurred by XtremeDedi in reconnecting the Services.
12.2 XtremeDedi shall keep in force with a reputable insurance company appropriate insurances to cover for potential losses relating to the Data Centre and the Equipment.
13. Force Majeure
13.1 Neither party will be in breach of any obligation under the Agreement if it is unable to perform that obligation in whole or in part by reason of a Force Majeure Event.
13.2 If either party seeks to rely on this Clause 13, it will immediately give notice to the other with full particulars of the act or matter claimed as a Force Majeure Event. The parties so affected will take all reasonable steps to mitigate the failure to perform and to keep the other party informed of the steps being taken to mitigate the effects of the Force Majeure Event.
14. Assignment
14.1 The Customer undertakes throughout the term not to assign, charge or otherwise deal with the Agreement in any way without the consent of XtremeDedi. In the case of an intended assignment by the Customer such consent will not be unreasonably withheld. The proposed assignee will agree directly with XtremeDedi to be bound by the terms of the Agreement.
14.2 XtremeDedi may assign, charge, transfer or otherwise deal in any or all of its rights and obligations under the Agreement and the Customer consents to all such dealings.
15. Notices
15.1 Notices or other communications under the Agreement will only be effective if they are in writing.
15.2 The Customer is permitted to sent notices by Facsimiles but unless expressly stated in the Agreement or otherwise agreed in writing all notices and other communications from the Customer will not be effective if sent by electronic mail.
15.3 Notices or other communications to either party under the Agreement will, if given by post, be effective 3 days after posting and, if given by facsimile be effective when received in completely legible form.
15.4 Notices and other communications under the Agreement will be sent to the intended recipient as set in the Account.
15.5 Either party may change its address details by giving notice to the other party of the change.
15.6 Any notice or other communication which the parties receive outside Working Hours will be deemed to be received at the beginning of the next period of Working Hours.
15.7 All notices and other communications under the Agreement will be in the English language.
16. Miscellaneous
16.1 The Agreement is not made for the benefit of, nor will any of its provisions be enforceable by, any person other than the parties to the Agreement and their respective successors and permitted assignees.
16.2 The Terms and Conditions may be varied by XtremeDedi at any time. The current version of the Terms and Conditions will be made available to the Customer at any time.
16.3 No variation to the Order shall be valid and binding unless it is in writing and signed by both parties.
16.4 Nothing in the Agreement will be deemed to constitute a partnership between the parties.
16.5 If any term or provision in the Agreement will in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that term or provision or part will to that extent be deemed not to form part of the Agreement and the enforceability of the remainder of the Agreement will not be affected.
16.6 No delay or failure by either party to exercise any of its powers, rights or remedies under the Agreement will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver, to be effective, must be in writing and signed by an authorised person of each party.
16.7 The Agreement contains the whole agreement between the parties in respect of the Services and supersedes any prior written or oral agreement between the parties relating to the Services and the parties confirm that they have not entered into the Agreement on the basis of any representations that are not expressly incorporated and written in the Agreement.
17. Governing Law and Jurisdiction
17.1 The Agreement will be governed by and interpreted in accordance with the laws of India and the parties hereby submit to the exclusive jurisdiction of the Indian courts.