Appbox’s Sales Terms and Conditions, and the Policies, shall apply to all Quotations, Orders, Sales Contracts, Services, Tests, trials and any other contracts and/or legal relationships between Appbox and Customer. Appbox expressly rejects the applicability of Customer’s or third party terms and conditions.
1. DEFINITIONS
In the Appbox Sales Terms and Conditions, the Policies as well in the Order, Quotation, Contract and Contract Overview, the following words and expressions have the following meanings:
Affiliate means, with regard to any entity, any other entity that (directly or indirectly) Controls, is controlled by, or is under common Control with such entity.
API means the application programming interface (or similar technology), through which Customer can access or communicate with Appbox and/or Appbox’s servers.
Bandwidth means the amount of data that is be carried from one point to another in a second, expressed in bits per second (bps).
Basic Power means the limit that has been set for Customer’s use of electricity, on the basis of the Services Specifications, as specified in the Contract Overview, measured in amperes.
Business Day means Mondays to Fridays, with the exception of official public holidays in United Kingdom.
Business Hours means the period between 08.30 hours and 17.30 hours on a Business Day.
Colocated Equipment means Equipment owned by Customer that is from time to time installed by Customer at a Data Center pursuant to the Sales Contract.
Colocation Service means a non-exclusive right to install and retain the Colocated Equipment in the Housing Space, granted by Appbox to Customer with effect from the Delivery Date for the duration of the Sales Contract Term.
Confidential Information means all information not publicly known used in or otherwise relating to the Contract, the business or affairs of a Party or an Affiliate of such Party and disclosed (whether in writing, verbally or by any other means and whether directly or indirectly) by the Disclosing Party to the Receiving Party whether before or after the Contract Start Date.
Contract means the binding agreement that comes into effect by and between Appbox and Customer for the duration of the Contract Term.
Contract Modification Form means the document, in standard Appbox layout, used by Appbox to respond to a Contract Modification request, as referred to in Clause 5.
Contract Overview means an order confirmation notification from Appbox to Customer made via email, through the Customer Portal or otherwise, to notify Customer that Customer’s Order has been formally accepted by Appbox and is thereby formally a Contract. The Contract Overview shall set out the Services and/or Equipment Customer purchased or leased from Appbox and the relevant Contract Terms and Conditions.
Contract Start Date means the date on which the Contract becomes effective and the Initial Contract Term commences, as specified in Appbox’s Contract Overview.
Contract End Date means the agreed last date of the Contract Term.
Contract Term means the period for which the Contract has been entered into as specified in the Order and confirmed in the Contract Overview that shall be automatically renewed unless cancelled at the Contract End Date by means of a Termination Notice (Clause 20), starting on the Contract Start Date and ending on the Contract End Date.
Control means the possession of power, directly or indirectly, to direct or cause the direction of the management and the policies of an entity, whether through ownership of voting rights, by contract or otherwise.
CPI means the Consumer Price Index, which is the official measure of inflation of consumer prices of the United Kingdom.
Customer means any legal entity or natural person acting as a business professional (i.e. not as a consumer) entering into any Contract, Order, Quotation, trial, beta test, with respect to the provision of services by Appbox.
Customer Portal means the online services portal operated by Appbox, available at https://billing.appboxes.co/clientarea.php or at an alternate website identified by Appbox.
Data Center means a data center out of which or within which Appbox provides Services.
Data Traffic means the sum of data that is transmitted to and from Customer’s infrastructure, measured in Bytes.
Dedicated Equipment means Equipment leased from time to time by Customer from Appbox pursuant to the Contract.
Delivery Date means the date on which Appbox enables Customer to use the Services for the first time, or in the case of a Colocation Services, the date as of which Customer is entitled to install the Colocated Equipment at the Data Center, or the date on which Appbox delivers the Equipment that is leased or sold by Appbox to Customer.
Disclosing Party means the Party that discloses Confidential Information to the Receiving Party, as referred to in Clause 24.
Electricity Supply means the supply of electricity, which supplies will be charged by Appbox to Customer, measured in kWh.
Emergency means any situation which poses an immediate risk to: (i) a person or persons; (ii) the Data Center; (iii) the provision of one or more of the Services; (iv) the Equipment; and/or (v) the provision of services by Appbox to other customers.
End User means any client of Customer or other user of Customer’s services, as well as any other person or (legal) entity who obtains access to Services via Customer.
Equipment means any equipment, including but not limited to: computer hardware, telecommunications hardware, Interconnection Points, accessories, attachments, alterations of and spare parts for that equipment.
Estimated Delivery Date means the date specified in the Order and Quotation subject to order confirmation, which may vary from the Contract Start Date and/or Delivery Date.
Facility Agreement means any lease, license and/or other agreement contract executed by and between Appbox and a third party, further to which Appbox is entitled to use a Data Center and to grant Customer a license to use the Housing Space within the Data Center.
Fees means the surcharges, Services fees, costs, prices and expenses payable under the Contract by Customer to Appbox for the provision of Services and the same arising out of Customer’s use of the Services, including recurring and non-recurring Fees, set out in the Services Specifications and the Contract Overview
Force Majeure means any event outside the reasonable control of a Party affecting its ability to perform any of its obligations (other than payment) under the Contract, including: acts of God; acts of terrorists; acts of war; outbreak of hostilities; sabotage; civil disor- der; riots; acts or demands of any (local) government or government agency; strikes or other labour unrest; fires; floods; earthquakes; storms; lightning, any interruption in the supply of electrical energy to the Data Center; restrictions related to an outbreak of disease (such as avian influenza viruses or the H1N1 flu); epidemics; shortage of materials; unavailability or delay in delivery not resulting from the responsible Party’s failure to timely place orders therefore; equipment failures; lack of or delay in transportation; failure of a third party to grant a required right-of-way permit, assessment or other required authorization; acts or omissions of vendors or suppliers; changes in law or government policy; and other unforeseeable circumstances, provided however that Force Majeure shall not include any labour problems or strikes relating to the workforce of Customer or its suppliers or subcontractors.
GDPR means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales by virtue of section 3 of the EU Withdrawal Act 2018.
Housing Space means the racks, footprints, cages, cabinets, suites and/or other areas, designated as such by Appbox within the Data Center or in such other places which Appbox may from time to time designate and specify in the Services Specifications or the Contract Overview.
Intellectual Property Rights means any patent, copyright, trademark, trade name, service mark, moral right, database right, trade secret, knowhow and any and all other intellectual property right whether registered or not or capable of registration and whether subsisting in the country of Appbox’s principal place of business or any other part of the world together with any and all goodwill relating thereto.
Interconnection Point means a port on Appbox’s switch and/or router and/or firewall and/or load balancer located in the Data Center, at which point the responsibility of the data stream transport is transferred from Appbox to Customer.
Appbox in relation to Service(s) and/or Equipment provided to Customer it means Appbox, a private company with limited liability, incorporated under the laws of England and Wales, with its registered office at 10-12 Mulberry Green, Old Harlow, ESSEX, CM17 0ET under business registration nr 07450968, United Kingdom.
Maintenance means maintenance, repairs, modifications or upgrades performed by Appbox from time to time on the Network.
Maintenance Window means the timeframe in which Appbox schedules the performance of Maintenance. Unless specifically agreed otherwise in writing by the Parties, the Maintenance Window is every day, between the hours of 20:00 until 08:00 GMT, whereby Appbox will preferably schedule Maintenance during the weekend between the hours of 01:00 until 06:00 GMT.
Network means the telecommunications network, which is comprised of all infrastructure Equipment (i.e Equipment that supports the flow and processing of information, including storage, servers and networking components) owned or leased by Appbox within each active Appbox POP or Appbox’s Affiliates POP, all Appbox wiring within each active Appbox POP or Appbox’s Affiliate’s POP, power supplies owned or controlled by Appbox in each POP, and all telecommunications circuits owned or leased by Appbox between active Appbox POPs and active POPs of Appbox’s Affiliates. For the avoidance of doubt: the Network does not include Equipment owned, leased, or controlled by Customer, telecommunications circuits or networks (including, without limitation, local access loops) between a Appbox POP and a Customer location or between Customer locations, interconnections between Customer’s network and the Network, or any networks, network equipment, or telecommunications circuits not owned or controlled by Appbox.
Notice means a message of one Party to the other Party in writing by registered postmail, email sent and received by a legally authorized representative of each of the Parties, or by courier or by regular postmail thereby taking into account that the Notice is deemed to have been delivered no earlier than five Business Days.
Order means the Customer request submitted to Appbox for certain Services by means of the Appbox webshop, Customer Portal or by means of the signed Quotation both pending and subject to Appbox acceptance for order confirmation. An Order is not binding.
Parties means Appbox and Customer, each a “Party”.
Policies means the policies and guidelines applied by Appbox in its relationship with Customer.
POP means a ‘point of presence’, i.e. an access point to the Internet.
Quotation means the document, in standard Appbox layout, in which Appbox has listed which Services and/or Equipment will be offered by Appbox to Customer, including the Fees, the estimated Delivery Date, and other Contract Terms and Conditions including Billing Cycle, Contract Term, Payment Term, pre-payment, direct debit for acceptance by the Customer. A Quotation is not binding.
Receiving Party means the Party that receives – or is granted access to Confidential Information by the Disclosing Party, as referred to in Clause 24.
Sales Contract means the Contract, including the Sales Terms and Conditions, the Policies, the Services Specifications, the Support and Service Levels and all other schedules thereto if any more, pursuant to which Appbox shall provide certain Services to Customer, which Services are indicated on the Contract Overview.
Sales Terms and Conditions means these Terms and Conditions, including the preamble preceding clause 1.
Service Credits means a credit, calculated in accordance with Support, applied to Customer’s account, and to be used as credit against future invoices.
Service Disruption an interruption or degradation in the provision of one or more Services by Appbox to Customer; provided that such interruption or degradation is not the result of an Excluded Event.
Services means the services to be provided by Appbox to Customer, as agreed per Contract and specified in the Contract Overview.
Services Specifications means the services offered by Appbox, as well as the manner in which the services should be used, which may be amended from time to time.
Test means a trial or test performed in order to verify and ensure the proper performance thereof.
2. DOCUMENT STRUCTURE
2.1 In general, the Appbox’s Sales Contract will consist of the following Appbox documents, whereby in the event of any inconsistency or conflict between or among provisions of the following documents, the contents of the document first listed shall have precedence and shall prevail over the documents listed later, in descending Contract:
a) The Contract Modification Form (only in relation to the relevant Contract that is modified);
b) The Contract specified by Appbox in the Contract Overview, including any prevailing Special Conditions formally confirmed and agreed with Appbox;
c) The Sales Terms and Conditions;
d) The Policies;
e) The Service Specifications.
2.2 The applicability of purchase terms or other terms and conditions of Customer or third parties is hereby expressly excluded.
2.3 Appbox is entitled to issue new versions and thereby amend any of the applicable Appbox Terms and Conditions, the Services Specifications, and the Policies. Such amendment also applies to existing Contracts for Services, unless Appbox states otherwise formally in writing. The amendments come into effect fourteen (14) days after the announcement or on a later date stated in the announcement. The announcement may be made on Appbox’s website and/or through the Customer Portal. If Customer does not wish to accept an amendment that relates to an existing Contract, the Customer has the right to terminate that Sales Contract with effect from the date on which the amendment comes into force solely by means of a written formal Notification for termination that must have been received by Appbox within fourteen (14) days after Appbox’s announcement of a new version of any of the Services Specification(s), unless (a) the amendment is solely for the benefit of the Customer; (b) the amendments are required by law; or (c) the amendment does not materially and adversely affect Customer’s use of the Services.
3. SCOPE OF SERVICES
3.1 The scope and nature of the Services offered by Appbox are set out in the Services Specifications.
3.2 The Services purchased or leased by Customer from Appbox are listed in the Contract Overview.
3.3 Appbox may discontinue Equipment and Services, sales, support, delivery or offerings of Equipment and Services at any time for any end of life-cycle or alternative business reasons in causing such discontinuation of Services. Appbox will use commercially reasonable efforts to provide advance notice.
3.4 Customer is aware that Appbox will no longer provide security updates or technical support for the discontinued Equipment and Services. Customer is aware that continuing to operate discontinued Equipment or Services do so at their own risk.
3.5 Appbox may contact Customer for alternative or similar Equipment and/or Services offers.
4. QUOTATION, ORDER AND CONTRACT PROCEDURE
4.1 In the event that a Customer wishes to purchase or use Services or Equipment from Appbox, Customer shall place a request with Appbox to that effect.
4.2 Any request shall be submitted (i) in writing by email to request Appbox to provide a Quotation; or (ii) by submitting an Order in the Appbox webshop and completing the online Order process on Appbox’s website (www.appbox.co); (iii) by means of or through the Customer Portal for existing Customers.
4.3 Appbox shall review the request within a reasonable time after receipt thereof. If Appbox is willing to provide the requested Service(s) and/or Equipment, Appbox shall confirm such to Customer in writing, by sending (i) a Quotation to Customer or (ii) (in case of the online Order process on Appbox’s website) by sending an order acknowledgement.
4.4 If Customer approves the Quotation, an authorized representative of Customer shall confirm such to Appbox in writing by sending a signed Quotation for its understanding and acceptance of the Appbox Contract Terms in the Quotation.
4.5 Appbox reserves the right to reject the Order by giving written notice to Customer, taking into account a seven (7) day notice period upon Appbox’s sole discretion at reasonable grounds, including: if a Customer does not pass the Appbox Customer verification requirements or in case of (alleged) breach with the Policies, if a Service and/or Equipment is not available, or the Estimated Delivery Data cannot met, in case of an incorrect offering or Fees or Appbox does not receive the pre- payment or deposit or financial security or exceeds a credit limit, if applicable and at any other reasonable grounds.
4.6 Cloud pay-as-you-go product can be ordered via the Appbox Customer Portal, which shall contain activation options i.e. Services that are charged to Customer based on Customer’s actual usage of the Service, measured per day/minute/hour or other appropriate unitized measure. Customer may deactivate the Service at any time in the Customer Portal, unless the Customer Portal has indicated that the Service has an Initial Contract Term, in which case clause 20 shall apply.
5. CONTRACT MODIFICATION PROCEDURE
During the Term of the Sales Contract, Customer may submit a Contract Modification request. Customer should submit its Contract Modification request by email or the Customer Portal to Appbox. In case of a Contract Modification request relating to a Sales Contract that has a Contract Term of one (1) month, the Contract Term shall be automatically extended with one renewal month.
5.1 Appbox shall be entitled to set conditions to its acceptance and approval of the Contract Modification request, e.g. adjustment of the Service Fees, payment by Customer of a Fee for administrative activities and/or payment by Customer of any other non-recurring Fees in relation to effecting the modification. Every Contract Modification request is subject to acceptance by Appbox, which may be granted or withheld at Appbox’s sole discretion as described in Clause 4.5 Such conditions, adjustment and Fees will be specified in the Quotation for Modification.
5.2 Any acceptance of a Contract Modification request shall only be valid if confirmed in writing by an authorised representative of Appbox. As a general rule, any such confirmation will be made by means of a Contract Overview.
6. DELIVERY OF EQUIPMENT AND SERVICES
6.1 Appbox shall use commercially reasonable efforts to ensure that:
a) the Services will be ready for Customer’s use on the Estimated Delivery Date; and
b) any Equipment sold by Appbox to Customer will be delivered on the Estimated requested Delivery Date at the Data Center, as specified in the Quotation. In view of the foregoing, Customer acknowledges that the Delivery Date is a target date.
6.2 Appbox will confirm the actual Contract Start Date in the Contract Overview.
6.3 With effect from of the Delivery Date, the Equipment shall be for the risk and benefit of Customer. However, title of ownership to the Equipment will only pass to Customer on the receipt by Appbox of payment – in full – of the Fees for such Equipment, as specified in the Contract Overview. For the avoidance of doubt: In the event that Customer leases Dedicated Equipment, such lease will be an operational lease and payment of Service Fees shall not constitute any transfer of ownership of such Dedicated Equipment to Customer. Appbox may – at its sole discretion – unilaterally delay the Delivery Date and/or Contract Start Date, by giving written notice to Customer, taking into account a notice period of at least five (5) days, provided that Customer shall be entitled to a credit equal to ten percent (10%) of the non-recurring Fees, referred to in Clause 10.4b), with respect to the affected Service if Appbox unilaterally delays the Delivery Date and/or Contract Start Date by more than thirty (30) days after the initial Contract Start Date or Estimated Delivery Date. Appbox’s notice of delay shall state a new Contract Start Date and/or Estimated Delivery Date.
6.4 In case Customer has a complaint with respect to:
a) the Service, Customer shall provide written notice to Appbox, including in reasonable detail the grounds for its complaint, within two (2) days from the Delivery Date in the absence whereof Services shall be deemed to be approved of by Customer;
b) any Equipment sold by Appbox to Customer, Customer shall provide written notice to Appbox, including in reasonable detail the grounds for its complaint, within five (5) days from the Delivery Date in the absence whereof such Equipment shall be deemed to be accepted and approved of by Customer.
6.5 In the event that Customer has provided its written complaint in accordance with Clause 6.4, and such complaint is found to be justified, Appbox shall take such action as necessary, and as expeditiously as reasonably practicable, to correct or cure such defect or failure. Appbox will subsequently notify Customer hereof once the Service or Equipment is functioning properly and the complaint periods specified in Clause 6.4 shall (re)commence on the date of such notice.
7. USE OF SERVICES AND EQUIPMENT
7.1 Customer using the Services, software or Equipment, maintaining due care in respect of keys and access thereto, all within scope of the relevant Sales Contract, applicable laws and the Policies. Customer’s use of any information obtained via the Network is at Customer’s own risk. Appbox specifically denies any responsibility for the accuracy or quality of information obtained through its Services.
7.2 Appbox is not responsible or liable for and makes no representation or warranty, express or implied, with respect to the accuracy, quality or completeness of the (content of) information and communications, in whatever form transmitted over the Network.
7.3 Customer acknowledges that, by offering or providing the Services, Appbox does not publish or otherwise provide Customer’s content to any End Users. Customer agrees that Customer shall, at all times, be solely responsible for all content including but not limited to text, graphics, sound, video, data and any aspect of Customer’s content.
8. PERSONAL DATA / DATA PROTECTION
8.1 In the performance of Appbox’s obligations under the Sales Contract, Appbox and its Affiliates shall Process Personal Data for or on behalf of the Customer. Appbox does not control and never acts as Data Controller of any (personal) data and content of Customer transmitted over the Network. Parties acknowledge and agree that with regard to the Processing of Personal Data on the Customer’s behalf, the Customer is the Data Controller, and Appbox is the Data Sub-Processor. In order to comply with the relevant data protection legislation, in particular the GDPR as it forms part of the law of England and Wales by virtue of section 3 of the EU Withdrawal Act 2018, with respect to the Processing of Personal Data by Appbox, Parties agree upon the conditions as set forth in this Clause 8.
8.2 Appbox and its Affiliates shall Process Personal Data if and to the extent such Processing is required in the performance of the under Sales Contract(s) and any related marketing and sales activities whereby Customer engages with Appbox, all of the above permitted by the legal grounds provided under the GDPR. In addition, such is permitted if Appbox is under a legal obligation to Process the Personal Data. Appbox shall inform the Customer of such legal obligation unless it is prohibited by law or reasons of important public interest from doing so.
8.3 Appbox ensures that the persons authorized by Appbox and/or its Affiliates to Process the Personal Data shall have access to the Personal Data as is required and necessary for the performance of Appbox’s obligations under the Sales Schedules and the Sales Contract.
8.4 Appbox shall arrange for all appropriate technical and organizational measures, to the extent such measures may be reasonably expected of Appbox, to protect the Personal Data from loss, loss of integrity or from any form of unlawful Processing and shall ensure that these measures to the extent such measures may be reasonably expected of Appbox meet all requirements under the applicable data protection legislation. An overview of the technical and organizational measures taken by Appbox is included in the privacy statement.
8.5 In case Appbox engages sub-contractors in the performance of the Sales Contract, Appbox shall request similar data protection obligations as set forth in this Clause 8 on those sub- contractors.
8.6 Appbox shall provide all reasonable assistance to the Customer in order for the Customer to fulfill its obligations to respond to requests by data subjects (such within the meaning of the GDPR) exercising their rights under the applicable data protection legislation.
8.7 Appbox shall provide all reasonable assistance to the Customer in order for the Customer to comply with its obligations, taking into account the nature of the Processing and the information available to Appbox.
8.8 In case Appbox discovers a data breach that may adversely affect the protection of Personal Data Processed by Appbox on behalf of the Customer, Appbox will notify the Customer, to the extent permitted by law, as soon as reasonably possible. Appbox will cooperate with the Customer on the investigation of the personal data breach. The Customer shall be responsible to notify the relevant authority and/or the data subjects concerned, to the extent necessary, in case of a personal data breach.
8.9 Upon a request from the Customer, after expiration or termination of the Sales Contract, Appbox shall review the request and remove to the extent possible all the Personal Data pertaining to the Customer, unless Appbox is required to retain such Personal Data under the applicable law.
8.10 Appbox shall make available to the Customer all information necessary, to the extent this is possible and reasonable, to demonstrate compliance with the conditions laid down in this Clause 8. Appbox shall cooperate, to the extent this is possible and reasonable, with any audits conducted by the Customer or another auditor mandated by the Customer. Unless expressly agreed otherwise in writing, the costs of such audit or inspection will be borne by the Customer.
8.11 Any requests, questions regarding data protection legislation, in particular the GDPR, should be sent to [email protected].
9. KNOW YOUR CUSTOMER, CREDIT APPROVAL AND FINANCIAL SECURITY
9.1 The provision of Services or use of Equipment by Appbox to Customer is subject to Customer verification requirements and any credit limit requirements during the Contract Term set by Appbox in its sole discretion as condition for the acceptance process set forth in Clause 4.5.
9.2 Appbox may, at any time, by notice in writing impose a credit limit on Customer to an amount to be determined by Appbox applicable to the Order value. Any Orders or Quotations for Services required by Customer in excess of any such credit limit will require Customer to prior deposit an amount equal to or greater than the amount by which Customer will exceed the credit limit.
9.3 In addition to Clause 9.1, Appbox may require Customer to provide a deposit or a financial security by means of A bank guarantee or a parent guarantee, to be solely determined by Appbox or other security satisfactory to Appbox as condition for the acceptance process set forth in Clause 4.5.
9.4 Any deposit or bank guarantee or parent guarantee shall be held by Appbox as security for the payment of Service Fees and any other amounts due under the Sales Contract. Upon termination or expiration of the Sales Contract, Appbox may apply a deposit or bank guarantee or parent guarantee to any amounts owed by Customer to Appbox. Any remaining credit balance of a deposit shall be refunded to Customer. Any deposit paid by Customer pursuant to this Clause will not carry any interest.
10. TERMS OF PAYMENT
10.1 For Equipment purchased by Customer from Appbox, Customer shall pay to Appbox the purchase price specified in the Contract Overview. For the use of the Services, Customer shall pay to Appbox the Service Fees. Unless specified otherwise, all Service Fees are in GBP and inclusive of VAT.
10.2 Appbox is entitled to increase any of the Service Fees one (1) time per calendar year, with: (a) five percent (5%); or – if higher – (b) the CPI for the previous year. The increase will apply with effect from the first (1st) of January, unless stipulated otherwise by Appbox in its notification to Customer. In the event that the increase of the Service Fees takes effect within twelve (12) months of the Contract Start Date, the increase will be pro-rated on the basis of the number of months that have passed since the Contract Start Date.
10.3 In addition to Clause 10.2, Appbox shall be entitled to pass on changes in any (license) fees or Fees for (software) products procured or leased by Appbox from third parties: (i) used by Appbox in the provision of Services to Customer; (ii) or licensed or resold by Appbox to Customer.
10.4 Unless specified otherwise in the Contract Overview, Appbox will invoice:
a) the Fees of any Equipment sold by Appbox to Customer, prior the Delivery Date;
b) setup Fees, Service activation Fees and any other non- recurring initial Fees, upon the Delivery Date or upon the Contract Start Date, whichever is earlier; and
c) all recurring Service Fees, as the Contract Start Date, monthly in advance,
d) use of Services above the agreed levels of Service and/or additional services e.g. with respect to the usage of Bandwidth and/or Data Traffic which will be invoiced monthly in arrears.
10.5 In deviation of Clause 10.4a), Appbox may require Customer to make a pre-payment to Appbox in relation to any Service or Equipment purchased by Customer from Appbox.
10.6 Appbox will send invoices to Customer by e-mail, in a portable document format (PDF). At Customer’s request, Appbox 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 Fee to Appbox, in relation to the additional (administrative) activities performed by Appbox and the costs of the mail service.
10.7 Unless specified otherwise in the Contract Overview, all invoices sent by Appbox to Customer are payable by Customer to Appbox within seven (7) days from the invoice date (applicable and binding Payment Term).
10.8 The method of payment is confirmed in the Contract Overview. In case of Direct Debit or Credit Card, Customer authorizes Appbox to charge Customer’s bank account or Credit Card for the Service Fees. Appbox is entitled to require Customer to make payment by means of Direct Debit as standard default method of payment for any Order and Quotation, automatically applicable and authorized by submitting the Order. The billing cycle is determined by Appbox in any Order and included in the Contract Terms of any Quotation. Appbox will be entitled to charge an administrative Fee of three hundred and fifty GBP (£350.00–) to Customer, if: (i) Customer has cancelled the Direct Debit authorization during the Contract Term; or (ii) payment to Appbox has been reversed or denied.
10.9 In case Customer has a complaint with respect to an invoice, Customer shall dispute such complaint in writing to Appbox within the payment term, in the absence whereof invoices are deemed to be approved by Customer. A complaint with respect to an invoice shall only be taken into consideration in the event that the complaint specifies the dispute of 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 Appbox’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 Managing Director level. In the event Parties fail to resolve the dispute amicably within twenty (20) days of Appbox’s receipt of Customer’s complaint, each Party shall be entitled to commence dispute resolution in accordance with Clause 28.2.
10.10 Customer shall not be entitled to any set-off, waiver 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 disputed in good faith by Customer, in accordance with Clause 10.9. In the event Customer’s complaint is found to be unjustified, Customer will immediately pay the outstanding amount, plus interest in accordance with Clause 10.11.
10.11 If Customer does not pay an invoice within the payment term, in the event that such invoice has not been disputed in accordance with Clause 10.9, 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 Appbox will, without a warning or notice of default being required, be entitled to (i) charge Customer interest on such sum on a daily basis from the due date until the date of payment on the basis of the statutory commercial interest rate plus two percent (2%), without prejudice to Appbox’s other rights and remedies.
10.12 If Customer does not pay an invoice within the Payment Term, in the event that such invoice has not been disputed in accordance with Clause 10.9, Appbox may hand it over to an external collection agency. Any collection costs and expenses incurred by Appbox shall be borne by Customer.
11. TAXES
11.1 Customer shall be responsible for and shall pay all sales, use, excise, or similar consumption taxes (including VAT, when applicable) arising out of the Sales Contracts. The Parties are of the view that the use or provision (as appropriate) of the Colocation Service will not create a relationship of lessor/landlord and tenant between the Parties.
11.2 The parties agree that the amount charged by Appbox for its services does not qualify as a royalty, interest or dividend as mentioned in the OECD model convention and its commentary. Taxes that must be withheld at source in the country where the client resides are for the account of the Customer. This means that the amount payable on the invoice is to be considered an amount ‘after source taxes.
12. SUSPENSION OF SERVICES
12.1 Appbox shall be entitled to immediately suspend the provision of any of the Services and/or to suspend Customer’s right to access or use the Customer Portal and/or to suspend Customer’s right to access to the Equipment, on giving written notice to Customer, in the event that:
a) Appbox 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 or can reasonably expected to be in breach of the Acceptable Use Policy (part of the Policies), and fails to take (timely) remedial action in accordance with the Abuse Policy (part of the Policies) after receipt of a notice from Appbox, provided always that Appbox may immediately suspend Services without providing a remedy period if the continued provision of Services may subject Appbox to liability vis-à- vis third parties, and/or may cause an Emergency;
c) Customer’s consumption of electricity exceeds Basic Power (specified in the Contract overview) 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;
d) Customer’s consumption of Data Traffic or Bandwidth exceeds the Committed Data Traffic or the Committed Bandwidth (specified in the Contract Overview), 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;
e) 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;
f) Customer does not effectively cooperate with any investigation of Customer’s alleged improper or unlawful use of the Services, the Network or other networks accessed through Appbox;
g) Customer does not pay an invoice within the Payment Term and fails to pay such invoice, plus the interest referred to in clause 10.11, within a period of seven (7) days after having received the Final Reminder Before Suspension Notice thereon;
h) the Services, software, or Equipment are exported or used in a country, or used by a Customer or an End User, in violation of the restrictions referenced in clause 16.8; and/or
i) Customer is in breach of any of the other provisions of the Sales Contract and Customer fails to remedy such breach within fourteen (14) days after having received written notice thereon, provided always that Appbox may immediately suspend Services without providing a remedy period if the continued provision of Services may subject Appbox to liability vis-à-vis third parties, and/or may cause an Emergency;
j) Appbox has good reasons to fear that Customer will materially breach its obligations under the Sales Contract, and Customer does not, upon written request, confirm to Appbox in writing that it will fully perform in conformity with its obligations under the Sales Contract.
12.2 Appbox shall be entitled to continue the suspension or limitation described in Clause 12.1 until: (i) Customer has remedied the breach; or (ii) the Sales Contract has been terminated by Appbox in accordance with Clause 21.
13. SERVICE DISRUPTION
13.1 Immediately on becoming aware of a Service Disruption, Customer shall notify Appbox by using the Customer Portal of the Service Disruption and shall provide Appbox with the appropriate information.
13.2 Following notification by Customer in accordance with Clause 13.1, Appbox shall:
a) notify Customer of the estimated timescale for restoration of the affected Services, on Appbox’s website and via e-mail;
b) use its best endeavours 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.
13.3 Instead of restoring a Service, Appbox may elect to substitute such affected Service by a reasonably equivalent Service.
13.4 In the event of a Service Disruption, Customer may be entitled to compensation in the form of a Service Credit at the amount set by and discretion of Appbox.
14. MAINTENANCE AND TESTING
14.1 Appbox reserves the right to suspend the Services and may suspend Customer’s right to access to the Equipment in order to perform Maintenance.
14.2 Customer acknowledges that Appbox will from time to time have to perform Maintenance in order to ensure a proper performance of the Network, Data Center and the Services and that such Maintenance may affect the provision of the Services to Customer.
14.3 If Appbox expects scheduled Maintenance, referred to in Clause 14.2, to affect the provision of the Services and/or access to the Equipment, Appbox 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) endeavour 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.
14.4 If Appbox does not expect scheduled Maintenance, referred to in Clause 14.2, to affect the provision of the Services and/or access to the Equipment, Appbox shall be entitled to perform such Maintenance at any time, without taking into account a notice period.
14.5 Customer acknowledges that Appbox may from time to time have to perform non-scheduled Maintenance, in order to resolve or prevent an Emergency. Appbox shall be entitled to perform such Maintenance at any time, without taking into account a notice period. Appbox shall in such case notify Customer of such Emergency and the need to perform Maintenance without undue delay.
14.6 Customer acknowledges that Appbox will from time to time perform Tests and that Tests may be performed at any time, without taking into account a notice period.
15. HOUSING SPACE / RELOCATION
15.1 Customer acknowledges that Appbox’s ability to grant Customer a license to use the Housing Space, as well as Appbox’s ability to provide (other) Services, are subject to the provisions of – and continuance of – (a) Facility Agreement.
15.2 Appbox reserves the right to relocate the Housing Space, as well as the right to suspend the Services in connection with such relocation.
15.3 Appbox 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 Appbox.
15.4 In the event that Appbox elects to relocate the Housing Space, Customer shall be required to relocate the Colocated Equipment to the new/alternative Housing Space designated by Appbox.
15.5 In case the relocation of the Colocated Equipment is performed by Customer, as referred to in Clause 15.4, Appbox shall provide compensation to Customer for any reasonable costs, to be determined by Appbox, 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.
15.6 Without prejudice to Clause 15.4, Appbox may – at its sole discretion – decide to relocate the Colocated Equipment for and on behalf of Customer, provided that Appbox shall in such case: (i) notify Customer thereof simultaneously with its notification of the intended relocation of the Housing Space; and (ii) to the extent practicable, coordinate the relocation of the Colocated Equipment with Customer.
16. WARRANTIES
16.1 Each Party warrants, represents and undertakes that it:
a) has obtained and that it will – at least for the duration of the Sales Contract – 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.
16.2 Without limiting the generality of Clause 16.1, Customer warrants, represents and undertakes that (i) it shall pay all due local access- or telecommunications Fees 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; and (ii) it owns or has the right to use and offer the content stored on the Appbox infrastructure and/or transmitted by Customer over the Network.
16.3 With respect to software licensed or resold or otherwise given into use under a Sales Contract by Appbox to Customer, Customer warrants, represents and undertakes that it shall comply with the all provisions and compliance requirements including but not limited to audits of any end-user license automatically applicable related to such software.
16.4 With respect to the Equipment sold by Appbox to Customer, Appbox will provide a hardware warranty to Customer that is equivalent or equal to the warranty granted to Appbox by the manufacturer / supplier of such Equipment. To the extent possible:
a) Appbox will transfer to Customer and Customer will accept the warranty that Appbox has received from the manufacturer / supplier of the Equipment; or
b) Appbox will arrange that the manufacturer / supplier of the Equipment grants such warranty directly to Customer. In the events referred to under a) and b) of this clause, Customer will not have any recourse against Appbox with respect to such Equipment sold by Appbox to Customer, but instead may seek recourse directly from the manufacturer / supplier of such Equipment.
16.5 With respect to software licensed or sublicensed or otherwise given in to use or provided to Customer by Appbox, Appbox will provide a (software) warranty that is equivalent or equal to the warranty granted to Appbox by the manufacturer / supplier / licensor of such software. To the extent possible:
a) Appbox will transfer to Customer and Customer will accept the warranty that Appbox has received from the manufacturer / supplier of the software; or
b) Appbox will arrange that the manufacturer / supplier of the software grants such warranty directly to Customer. In the events referred to under sub a) and b) of this clause, Customer will not have any recourse against Appbox with respect to such software, but instead should seek recourse directly from the manufacturer / supplier of such software.
16.6 Without limiting Clause 16.5, the Customer Portal (including the use thereof, and the related services) is provided ‘as is’; and otherwise Appbox hereby disclaims any and all warranties of any kind, whether express or implied, relating to the Customer Portal and the API, 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.
16.7 Notwithstanding Clause 16.5 and Clause 16.6, Appbox 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.
16.8 The Services, software and Equipment may be subject to international (including EU and US) rules that govern the export of Products and Services, software and Equipment. Customer warrants that it shall comply with all end-user, end-use, or destination restrictions issued by national governments, EU, US or similar bodies, and restrictions on embargoed nationals and nations and export control.
16.9 The warranties expressly set forth in the Sales Contract constitute the only warranties of Appbox 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, availability, uptime, non-infringement or fitness for a particular purpose. Without limiting the generality of the foregoing, Appbox does not warrant that the Services, or the Customer’s use thereof, are or will be error free or will operate without interruption.
17. INDEMNIFICATION
17.1 Without limiting any other legal remedy available to Appbox, Customer shall indemnify and hold harmless Appbox against all actions, losses, costs, damages, awards, expenses, fines, fees (including legal fees – including attorney and collection agency fees – incurred and/or awarded against Appbox), proceedings, claims or demands brought or threatened against Appbox by a third party: (i) related to content stored or transmitted through the Services; (ii) arising out of the use by Customer of the Services, (iii) related to any wilful or negligent act or omission of Customer.
17.2 In respect of the indemnification under clause 17.1, Customer shall at its sole expense (a) provide Appbox with full authority, information and assistance as is reasonably necessary for the defence, compromise or settlement of the third party claims; and (b) at the request of Appbox, take those steps that are reasonably required to put Appbox in the financial position it would have been in if said third party claim did not occur.
18. LIMITATION OF LIABILITY
18.1 Neither Party shall be liable to the other Party in respect of any breach of an obligation, warranty or guarantee under the Sales Contract for loss of profits, goodwill or any type of special, indirect, consequential loss (including loss or damage as a result of an action brought by a third party) and such liability is excluded whether it is foreseeable, known, foreseen or otherwise.
18.2 Appbox shall not be liable for:
a) any harm or personal injury to Customer or Customer’s employees, clients, representatives or agents, except when such harm or personal injury is the direct result of gross negligence or wilful misconduct on the part of Appbox;
b) any transaction, which Customer may enter into with a third party using the Services;
c) the contents of any information and/or communications transmitted via the Equipment and/or Services or for any information or content on the Internet;
d) the contents of any information and communication, in whatever form, transmitted by Customer over the Network;
e) the accuracy or quality of information obtained through the Services;
f) damage to or loss of any of Customer’s data (bases) or loss of technology, except when such damage or loss is the direct result of gross negligence or wilful misconduct on the part of Appbox;
g) damage to or loss or destruction of Colocated Equipment, except when such damage or loss is the direct result of gross negligence or wilful misconduct on the part of Appbox;
h) damage that is the direct or indirect result of the actions of Customer contrary to (one of) its obligations under the Sales Contract;
i) damage that is the direct or indirect result of an inaccuracy of the information provided by or on behalf of Customer;
j) damage that is the direct or indirect result of the suspension of Services by Appbox, as referred to in Clause 12 and Clause 14;
k) damage that is the direct or indirect result of the Customer Portal being (temporarily) offline or otherwise unavailable;
l) damage that is the direct or indirect result of the Customer’s use of the Customer Portal;
m) damage that is the direct or indirect result of a Denial-of-Service (DDoS) attack, or other attack that results in a peak in data traffic, or any damage resulting from successful or unsuccessful hack attempts, regardless whether protected by an SSL certificate or (hardware) firewall provided by or through Appbox;
n) damage in case Appbox has not been notified of such damage in writing within eight (8) days after Customer has come to know of the damaging event, or should reasonably have known of it; or
o) any damage in case and insofar as such damage is covered by any insurance effected by or for the benefit of Customer.
18.3 Notwithstanding any other provision of the Sales Contract, Appbox shall not be liable to Customer, if changes in any of its facilities, procedures, or Service: (i) render obsolete Colocated Equipment in conjunction with its use of the Service; (ii) require modification, alteration or relocation of such Colocated Equipment; or (iii) otherwise affect the performance of such Colocated Equipment.
18.4 The legal remedies outlined in Clauses 6.3 and 21.4a) constitute all legal remedies available to Customer in relation to a delay of the Delivery Date or Contract Start Date by Appbox. Appbox shall have no other liability to Customer if the Service is not ready for Customer’s use on or before the initial or delayed Delivery Date; or – if the installation is to be performed by Appbox – the installation is not completed by the initial or delayed Delivery Date.
18.5 The legal remedies outlined in Clause 13.4 and Clause 21.4b) constitute all legal remedies available to Customer in relation to a Service Disruption and any failure by Appbox to meet the agreed Service Levels.
18.6 Should Appbox be liable in spite of the provisions set out above in this Sales Contract or the Services Specifications, this liability is limited to the amount that is in the relevant case paid out by the general liability insurance of Appbox and shall in no case exceed the amount of Service Fees paid by Customer to Appbox with respect to the twelve (12) month period prior to the event or events giving rise to such liability.
18.7 All Customer’s claims for compensation end in any case twelve (12) months after the damaging event has taken place, unless: (i) Customer and Appbox have come to a written arrangement; or (ii) Customer has commenced legal action in accordance with clause 28.2.
18.8 Nothing in the Sales Contract shall exclude or limit the liability of Customer to: (i) pay the Service Fees; or (ii) repair (or if repair is not practicable, replace) any tangible physical property intentionally or negligently damaged by Customer or its representatives or employees.
18.9 Nothing in this Sales Contract shall operate to exclude or limit a Party’s liability resulting from (i) death (ii) wilful or fraudulent misrepresentation; or (iii) wilful misconduct; or (iv) gross negligence; or (v) a breach of the terms implied by section 2 of the Supply of Goods and Services Act (title and quiet possession) or any other statutory liability not capable of limitation.
19. INSURANCE
19.1 Customer shall obtain and – at least for the duration of the Sales Contract – maintain the following insurances with a reputable insurance company, which (at minimum) covers:
a) third party liability;
b) Customer’s liability towards Appbox;
19.2 Without prejudice to Clause 18.2g), the Colocated Equipment shall at all times be at Customer’s risk. Therefore, during the continuance of the Sales Contract, it shall be Customer’s responsibility to insure at its own expense, and keep insured the Colocated Equipment, with a reputable insurance company against loss, theft, damage or destruction howsoever arising at an amount not less than the full replacement value of the Colocated Equipment in a valid and applicable Property Damage insurance policy. Under no circumstances shall Appbox be obligated to provide insurance coverage for any of the Colocated Equipment or other Customer property installed within the POP and/or the Data Center.
19.3 Customer shall provide Appbox with documentation evidencing Customer’s compliance with the provisions set out above in this Clause 19, within ten (10) days of Appbox’s request to that effect. In general, Appbox considers a written statement by Customer’s insurance company, confirming Customer’s compliance, to be sufficient evidence.
20. SALES CONTRACT TERM /CANCELLATION
20.1 The Sales Contract Term commences on the Contract Start Date and has full effect during the Contract Term.
20.2 At the Contract End Date Term, the Sales Contract shall be renewed automatically for successive Contract Terms without any cancellation.
20.3 In case Appbox does not agree to such renewal of the Contract Term and wishes to cancel the Service at the Contract End Date Appbox has the right to cancel and notify the Customer from the Customer Portal or otherwise, taking into account a Termination Notice period of at least:
a) one (1) hour, in the event of a Contract Term of one (1) month;
b) two (2) months, in the event of a Contract Term of three (3) months or longer
20.4 In case the Customer does not agree to such renewal of the Contract Term and wishes to cancel the Service at the Contract End Date the Customer has the right to cancel and is required to make use of the cancellation option in the Customer Portal taking into account a Termination Notice period of at least:
a) one (1) hour, in the event of a Contract Term of one (1) month, provided that such notice is submitted by means of the Customer Portal;
b) two (2) months, in the event of a Contract Term of three (3) months or longer.
21. EARLY TERMINATION
21.1 A Party is entitled to terminate the Sales Contract during the Contract Term prior to the Contract End Date by giving written Notice by separate email or post mail to the legally authorized representative other Party, without an obligation to take into account a notice period, if:
a) the other Party has ceased to exist or has been dissolved;
b) the other Party has been declared bankrupt, or it has been granted suspension of payments or entered into voluntary liquidation;
c) the other Party’s business has been discontinued;
d) the other Party is in breach of any of the other terms of the Sales Contract and –if and to the extent such breach can be remedied- fails to remedy such breach within a period of thirty (30) days after having received notice with respect to the breach; and/or
e) the other Party is unable to perform its obligations due to an event of Force Majeure, provided that the event of Force Majeure has lasted more than sixty (60) days and the Parties are unable to reach a temporary solution for the Force Majeure period in spite of having negotiated in good faith with respect to such temporary solution.
21.2 Appbox is entitled to terminate the Sales Contract with immediate effect, by giving written notice to Customer, without an obligation to take into account a notice period, in the event:
a) the provision of the Services and/or access to the Equipment has been suspended in according with Clause 12.1 for seven (7) or more consecutive days; and/or
b) in the event the continued provision of the Services under the Sales Contract cannot reasonably be expected from Appbox, e.g. if (i) Customer or its End User has – according to Appbox’s findings- repeatedly breached the Acceptable Use Policy or there is reasonable doubt of breach of the Policies; and/or (ii) the continued provision of the Services may subject Appbox to a third-party claim; and/or
c) Customer does not pay an invoice within the Payment Term and fails to pay such invoice within a period of fourteen (7) days after having received notice thereof; and/or
d) of a change of ownership or Control of Customer if – in Appbox’s view – (i) the party that acquires ownership or Control of Customer is of lesser socio-economic standing than the party which owned Customer or had Control of Customer as at the Effective Date; and/or (ii) Customer’s credit position is adversely affected by such change of ownership or Control; and/or
e) a court has ruled or decided, or Appbox reasonably expects that a court will rule or decide, that the provision of any Service infringes upon the Intellectual Property Rights of a third party; and/or
f) Appbox has good reasons to fear that Customer will materially breach its obligations under the Sales Contract, and Customer does not, within three (3) Business Days upon written request, confirm to Appbox in writing that it will fully perform in conformity with its obligations under the Sales Contract.
21.3 Appbox is entitled to terminate the Sales Contract by giving written notice to Customer, taking into account a notice period of at least thirty (30) days, in the event that:
a) Appbox has received notification from its lessor or landlord with respect to termination or expiration of the Facility Contract where the Housing Space – that has been licensed to Customer – is located; and
b) Appbox will, for any reason, not be able to arrange for an alternative and suitable location for the Housing Space within a period of thirty (30) days after having received notification from its lessor or landlord, such to be determined at Appbox’s sole discretion.
21.4 Customer shall be entitled to terminate the relevant Sales Contract with immediate effect, by giving written Notice to Appbox, without an obligation to take into account a notice period, if:
a) Appbox unilaterally delays Contract Start Date, and such delay lasts for thirty (30) days after having received a prior Notification of Customer’s intention to terminate; and/or
b) Appbox fails to remedy a Service Disruption that results in the Service provided under the Sales Contract being fully unavailable or unusable, within thirty (30) days after having received a prior Notification of Customer’s intention to terminate.
21.5 A Party may only terminate the Sales Contract in accordance with the termination rights explicitly granted to such Party in the Sales Contract.
22. CONSEQUENCES OF TERMINATION
22.1 Termination or cancellation of the Sales Contract shall be without prejudice to any rights or remedies available to, or obligations or liabilities accrued to the Parties, as at the date of termination or expiration.
22.2 Upon termination or cancellation of the Sales Contract:
a) Appbox shall cease to provide all Services;
b) Appbox shall be entitled to erase and delete any and all data of Customer -and any and all data of Customer’s End Users- from Appbox’s Equipment, including from the Dedicated Equipment;
c) Appbox shall be entitled to make the Dedicated Equipment available for use by other Customers;
d) all sums due to Appbox up to the date of termination shall become due and payable in full immediately;
e) Customer shall, subject to Clause 22.5, remove all of the Colocated Equipment from the Data Center and shall return the Housing Space to Appbox in the same condition it was in prior to Customer’s use thereof; and
f) Customer shall ensure that all (Internet) domains which have been registered through Appbox are transferred to another registrar.
22.3 If Customer does not timely remove the Colocated Equipment in accordance with Clause 22.2e): (i) Appbox may – at Customer’s expense – remove and store the Colocated Equipment or return such Equipment to Customer, or dispose of such Equipment without liability for any related damages; and (ii) Customer shall be liable to pay to Appbox a penalty equal to one month Service Fees for the terminated Colocation Services for each month, or part of a month, that Customer has failed to remove the Colocated Equipment.
22.4 If Customer has not transferred the (Internet) domains to another registrar ultimately within five (5) Business Days of the date of expiration or termination of the Sales Contract, in accordance with Clause 22.2f), Appbox shall be entitled to deregister or cancel the registration of such (Internet) domains, without any obligation to provide Customer prior notice thereof.
22.5 Appbox will have the right to retain any Colocated Equipment until it has received payment in full of all sums due and/or payable by Customer to Appbox. If Appbox has not received such sums within a reasonable time frame after termination or expiration of the Sales Contract, such to be determined by Appbox, Appbox shall be entitled to sell any Colocated Equipment, necessary to recoup all sums due and/or payable, at such price as Appbox is able to obtain in the open market.
22.6 In the event that Appbox terminates the Sales Contract in accordance with Clause 20.3, 21.1, 21.2a), 21.2b), 21.2c), 21.2d), or 21.2f), Customer shall – without prejudice to any other rights or remedies that Appbox may have – within five (5) Business Days after the effective date of termination, pay to Appbox one hundred percent (100%) of the Service Fees, actual or projected, for the period from the effective date of termination up to and including the last day of the Contract Term and any Fees outstanding during the Contract Term.
22.7 In the event that Customer terminates the Sales Contract without cause including in accordance with Clause 20.4, Customer has the obligation to pay – without prejudice to any other rights or remedies that Appbox may have – within five (5) Business Days after the effective date of termination, to Appbox one hundred percent (100%) of the Service Fees, actual or projected, for the period from the effective date of termination up to and including the last day of the then current Term and any Fees outstanding during the Contract Term.
22.8 In the event that Appbox terminates the Sales Contract or an affected Service in accordance with Clause 21.2e), Appbox shall refund to Customer:
a) any non-recurring initial Fees or setup Fees that have been paid by Customer to Appbox in respect of the Service so terminated, in the event that the Sales Contract or affected Service is terminated prior to the Delivery Date; and
b) a pro rata portion of any recurring Service Fees that have been prepaid by Customer to Appbox in respect of the Service so terminated, if and to the extent that such prepayment exceeds the Service Fees that will accrue until the date of termination of the affected Service.
22.9 The following Clauses shall survive termination or cancellation of the Sales Contract and continue in full force and effect, in addition to those Clauses the survival of which is necessary for the interpretation or enforcement of this Sales Contract: Data Protection/ Personal Data (Clause 8), Indemnification (Clause 17), Limitation of Liability (Clause 18), Confidentiality (Clause 24), Notices (Clause 26), Miscellaneous (Clause27), Governing Law and Jurisdiction (Clause 28).
23. FORCE MAJEURE
23.1 A Party shall not be deemed in breach of any of its obligations, guarantees or warranties under these Sales Terms and Conditions, the Sales Contract or the Policies if, and to the extent that, performance is prevented or delayed by an event of Force Majeure, provided that the Party that is affected by the event of Force Majeure has:
a) promptly notified the other Party thereof in writing, as soon as reasonably possible and no later than five (5) Business Days after the first occurrence of the Force Majeure event which shall be notified by Appbox on its website and/or Customer Portal or otherwise and shall be notified done by Customer by Notification to Appbox; and
b) provided the other Party with all information on the event of Force Majeure and the (expected) cessation or termination of said event.
23.2 The Party that is affected by an event of Force Majeure shall use all reasonable endeavours to avoid or minimize the effects of an event of Force Majeure on its performance of its obligations under the Sales Contract.
23.3 Upon the occurrence of an event of Force Majeure, the time for performance shall be extended for the period of delay or inability to perform due to such occurrence, but if an Event of Force Majeure continues for a continuous period of more than sixty (60) days the other Party shall be entitled to terminate the Sales Contract by means of Notification.
24. CONFIDENTIALITY
24.1 A Receiving Party, meaning either the Customer or Appbox and its Affiliates shall: (i) keep all Confidential Information confidential, (ii) not disclose any Confidential Information to any other party than the Party and its Affiliates without the prior written consent of the Disclosing Party, and (ii) only use and reproduce the Confidential Information for the performance of its obligations under the Sales Contract and related marketing activities.
24.2 The obligations contained in clause 24.1 shall not apply to any Confidential Information which: (i) at the date of the Sales Contract is, or at any time after the date of the Sales Contract becomes, public knowledge other than through breach of the Sales Contract by the Receiving Party; (ii) can be shown by the Receiving Party to the reasonable satisfaction of the Disclosing Party to have been known to the Receiving Party prior to it being disclosed by the Disclosing Party to the Receiving Party; or (iii) is required to be disclosed or used by law.
24.3 The Receiving Party agrees that any and all notes, diagrams, descriptions, memoranda and other writings or electronic information obtained from the Disclosing Party and any copies, notes or excerpts thereof containing Confidential Information shall remain the property of the Disclosing Party and that said documents shall, upon request of the Disclosing Party and at the Disclosing Party’s option, be promptly returned to the Disclosing Party or destroyed upon any termination of consideration of the possible business arrangement.
25. TRANSFER OF RIGHTS AND OBLIGATIONS
25.1 Appbox shall be entitled to assign any of its rights or obligations under the Sales Contract to an Affiliate (or its or their successors, through merger or acquisition of substantially all of their or its assets), upon giving written announcement to Customer which shall be announced on the website, Customer Portal, email or otherwise.
25.2 Appbox shall be entitled to sub-contract any or all of its obligations under the Sales Contract to a third party without given notice or information thereof to the Customer, provided that Appbox shall remain liable to Customer for the performance of those obligations.
25.3 Without prejudice to Clause 25.1 and 25.2, neither Party shall be entitled to assign or transfer, or purport to assign or transfer, any rights or obligations under the Sales Contract to a third party (other than Appbox’s Affiliates) without the prior written consent of the other Party, which consent may not be unreasonably withheld.
25.4 In case Customer wishes to assign or transfer, or purport to assign or transfer, any rights or obligations under the Sales Contract to a third party, Appbox’s consent is subject to agreement per Contract Transfer Request Form whereby Appbox shall consider if the third party is of same or better socio-economic standing than the Customer, of the third party meets the Customer verification requirements and/or credit position is adversely affected by such assignment or transfer to a third party.
25.5 Nothing in the Sales Contract shall exclude or limit Appbox’s rights to grant or create a right of pledge or other security right – for the benefit of a bank or other financial institution or other third party – on or over any or all (cash) receivables that Customer owes or comes to owe to Appbox.
26. NOTICES
26.1 Unless specified otherwise herein or in the Sales Contract, any Notice including a demand, claim or other communication under or in connection with the Sales Contract shall be in writing and shall be delivered personally or sent by registered mail or by prepaid recorded courier delivery or by e-mail, to the authorized representative of the Party due to receive the Notice at its address set out below or such other address as any Party may specify by Notice in writing to the other:
If to Appbox to 10-12 Mulberry Green, Old Harlow, Essex, CM17 0ET, United Kingdom; with a copy directed for the attention of the Legal Department, by e-mail to: [email protected]
If to Customer to the person and at the address as specified in the Customer Portal.
26.2 In the absence of evidence of earlier receipt, any such Notice, including a demand, claim or other communication shall be deemed to have been received:
a) if delivered by hand, at the time of delivery;
b) if posted, on the expiration of five (5) Business Days after the notice has been provided to the courier company; or
c) if sent by e-mail, the moment the e-mail has been received on or by a mail server or mail exchanger used or operated by the legally authorized representative of the receiving Party.
26.3 For the purpose of Clause 26.2c) any failure to deliver -and any impossibility to receive or access- a notice, demand, claim or other communication shall be for the risk and account of the receiving Party, if -and to the extent that- such failure or impossibility is related to -or the result of- an act or omission of the receiving Party, a failure of the mail server or mail exchanger used or operated by the receiving Party, or a failure or interruption in the services of a third party that manages or hosts of the mail server or mail exchanger used or operated by the receiving Party.
27. MISCELLANEOUS
27.1 No waiver of any of the terms of the Sales Contract or of any breach of those terms shall be effective unless such waiver is in writing and signed by the waiving Party. No waiver of any breach shall be deemed to be a waiver of any other or subsequent breach.
27.2 Other than Appbox’s sub-contractors who shall have the benefit of the Sales Contract, nothing in the Sales Contract shall confer upon any third party any right, benefit or remedy of any nature under the Sales Contract.
27.3 Should any or several of the provisions of the Sales Contract be invalid or null and void, this shall not affect the remaining provisions thereof. In such event, the relevant provision shall be replaced by a valid provision that reflects – to the extent possible – the purpose and the intended effect of the original provision.
27.4 Nothing in the Sales Contract shall result in the transfer of a Party’s Intellectual Property Rights (of whatever nature) to the other Party.
27.5 Appbox shall – without Customer’s approval – be entitled to inform third parties that Appbox provides Services to Customer, e.g. as a Customer case during sales activities, third party events, in marketing & sales communication and on Appbox’s website. Other than the above, neither Party shall be authorized to (i) make press or public announcements relating to this Sales Contract, without the prior written approval of the other Party, or to (ii) use the other Party’s Intellectual Property Rights in any advertising, sales, promotions, or other publicity materials.
27.6 Customer is responsible for its employees, contractors and third parties engaging with Appbox as Customer’s authorized representatives. In addition, in case Customer is represented by any person in any or all events, Appbox has the right to rely on and assume the apparent authority of such Customer representatives and Customer shall be held responsible and liable for any acts and omissions by such person.
28. GOVERNING LAW AND JURISDICTION
28.1 These Sales Terms and Conditions, the Sales Contract and all matters arising there from or connected therewith are governed by the laws of England and Wales, to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods.
28.2 Subject to Clause 28.3, the competent courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with the Sales Contract or other Sales Contracts or other legal relationships resulting there from or in connection therewith.
28.3 Notwithstanding the terms of clause 28.1 and 28.2, nothing herein shall prevent Appbox from pursuing action in any other jurisdiction as may be appropriate for the purpose of seeking urgent and/or interim and/or interlocutory injunctive or other relief against Customer.