General Terms and Conditions for Colocation & Hosting

Qupra Wholesale

Version: June 2022

ARTICLE 1 – DEFINITIONS

The following expressions shall have the meanings assigned to them below:

Commencement Date: The date stated in the Equipment Housing Services Form.

Equipment Cabinet: The 19-inch, ETSI or equivalent cabinet located at the Qupra Wholesale Premises and used by the Customer for the installation and operation of Customer Equipment.

Equipment Cage: A separate, enclosed and secured area used to house the cabinets used by a single Customer at the Premises.

Customer Equipment: All equipment owned or leased by the Customer or its customers and placed, stored and/or installed in the Equipment Room(s) and/or Equipment Cabinet(s).

Shared Room: The physical location or locations at the Qupra Wholesale Premises shared by Qupra Wholesale, the Customer and/or other customers of Qupra Wholesale and used for housing and operating Equipment Cabinets containing Customer Equipment and/or equipment belonging to Qupra Wholesale or any of its other customers.

Structured Cabling: All data cabling supplied and installed by Qupra Wholesale at the Customer’s request at the Qupra Wholesale Premises.

Cabinet Space: The space in the Shared Area in which an Equipment Cabinet is installed.

Cage: A dedicated area that is physically separated, locked and secured. The Cage is located in one of the shared areas at the Qupra Wholesale Premises.

Customer Area: Any Customer Equipment located in an Equipment Room or Equipment Cabinet and any other part of the Premises used by the Customer.

Initial Installation: The installation of a Customer cabinet or rack space and associated cabling.

Initial Term: The initial term commencing on the start date of the Equipment Housing Services.

Premises: The building specified in Article 5 of the Services Form, in which the Equipment Rooms, Shared Rooms and Equipment Cabinets are located.

Private Room: A fully dedicated area and associated facilities at the Qupra Wholesale Premises, equipped with dedicated fire-detection and fire-suppression systems, climate-control systems and a power distribution frame.

Agreement: This document, including the Services Form and the Schedules signed or initialled by the Parties.

Business Hours: From 09:00 until 17:00 Central European Time on all days other than Saturdays, Sundays and public holidays observed in the Netherlands.

Equipment Room: The physical location or locations at the Qupra Wholesale Premises used by the Customer for the installation and operation of Customer Equipment, as illustrated in the Services Form.

Server Enclosure: One or more dedicated shelves within a cabinet maintained by Qupra Wholesale in the Shared Area.

Suite: A fully dedicated area and associated facilities at the Qupra Wholesale Premises, equipped with shared fire-detection, fire-suppression and climate-control systems. The power distribution frame is dedicated.

Qupra Technical Infrastructure: All equipment, hardware, software and/or cabling, including telecommunications cables, installed and operated by Qupra Wholesale inside or outside the Equipment Room(s) and/or Equipment Cabinet(s) and required for the provision of the Equipment Housing Services.

Telecommunications Cables: All cabling used for the transmission of information, including but not limited to copper cabling, fibre-optic cabling and similar infrastructure.

ARTICLE 2 – SCOPE

The Agreement exclusively governs the relationship between Qupra Wholesale and the Customer in respect of the services provided under the Agreement.

Any general terms and conditions of the Customer are expressly excluded and shall not apply, regardless of whether Qupra Wholesale has expressly objected to such terms and conditions.

ARTICLE 3 – SERVICES

3.1

Qupra Wholesale shall provide dedicated space equipped with raised floors, security systems, automatic fire-suppression equipment, AC and/or DC power distribution, an uninterruptible power supply, backup generators and structured cabling for the installation and operation of telecommunications and computer equipment, as specified in the Services Form.

All equipment installed as part of the Qupra Technical Infrastructure is and shall remain the property of Qupra Wholesale.

3.2

Qupra Wholesale shall provide the Customer with the Colocation Services described in the Services Form forming part of the Agreement.

ARTICLE 4 – RIGHTS AND OBLIGATIONS OF THE CUSTOMER

4.1 Access

• The Customer and any third parties designated by the Customer shall, subject to at least one hour’s prior notice, have the right to enter the Premises for the purpose of inspecting the equipment and enabling prospective customers to inspect the facilities.

• For the installation of equipment and the performance of any necessary maintenance and repairs to the Customer Equipment that Qupra Wholesale is not required to perform under the Agreement, and provided that the Customer complies with its obligations, the Customer and any third parties designated by the Customer shall provide at least 24 hours’ prior notice.

• The Customer’s employees shall comply with Qupra Wholesale’s instructions concerning access to the Premises, including but not limited to the instructions set out in the House Rules in Schedule 1.

• The data centre personnel may refuse the Customer access to the data centre at any time pursuant to the rules of the data centre. Qupra Wholesale shall not be responsible or liable for such refusal of access.

4.2 Customer Information

The Customer shall provide all information and specialist training reasonably required to enable Qupra Wholesale to perform the Services.

The Customer shall also provide Qupra Wholesale with all software codes and user manuals required for the performance of the Services.

4.3 Inventory

The Customer shall inform Qupra Wholesale in writing in advance of all Customer Equipment placed or intended to be placed in the Equipment Room(s) and/or Equipment Cabinet(s).

The Customer shall regularly update the list of all installed Customer Equipment, as included in Schedule 4.

4.4 House Rules

The Customer shall comply with the Qupra Wholesale House Rules set out in Schedule 1.

Qupra Wholesale may amend the House Rules at its reasonable discretion. Any amendments shall be made in writing and shall not take effect until they have been brought to the Customer’s attention.

The Customer shall be liable to Qupra Wholesale for any damage directly resulting from its failure to comply with these obligations.

4.5 Insurance

• The Customer represents to Qupra Wholesale that it maintains adequate liability insurance covering all relevant damage in accordance with, and appropriate to, the nature and scope of its business activities. This includes, but is not limited to, damage to the Qupra Technical Infrastructure, the Premises and any other equipment belonging to Qupra Wholesale or its customers.

• The Customer shall maintain this level of insurance and shall not reduce the cover or the applicable policy conditions during the term of the Agreement.

• The Customer shall adequately insure the Customer Equipment against physical damage, theft and other relevant risks.

• Immediately following execution of the Agreement, the Customer shall provide Qupra Wholesale with a copy of the applicable insurance policy demonstrating the scope of cover and the applicable insurance conditions.

• At any time during the term of the Agreement, Qupra Wholesale may require the Customer to provide evidence that the insurance policy remains current, valid and in force.

4.6 Financial Capacity

The Customer shall maintain a sound financial position and shall be capable of meeting its financial obligations in respect of the agreed Services.

At the request of Qupra Wholesale, the Customer shall provide evidence of its financial capacity, including information concerning its solvency and liquidity.

4.7 Use of the Colocation Services

• The Colocation Services provided may only be used for the purpose agreed in the Agreement.

• The Customer may only permit third parties to use the Colocation Services or subdivide such facilities with the prior written consent of Qupra Wholesale.

• The Customer may not alter, modify, adapt or otherwise interfere with the Qupra Technical Infrastructure in any manner whatsoever.

• The Customer confirms that it shall only generate turnover that does not exclude the right to deduct value added tax. The Customer shall ensure that its customers and any third parties using the facilities also comply with this obligation.

• At the written request of Qupra Wholesale, the Customer shall confirm in writing that it only generates turnover that qualifies for the deduction of value added tax.

4.8 Technical Conditions

• The Customer shall provide all necessary information, including drawings, specifications, contracts and related information, required to enable Qupra Wholesale to provide the Equipment Housing Services and, where applicable, the Initial Installation.

• The Customer warrants that the Customer Equipment:

  • is certified for its intended purposes and complies with all applicable national and international standards;

  • is designed and installed so that any failure and/or damage does not damage other equipment, interfere with the operation of such equipment or endanger any person;

  • complies with all restrictions and with the House Rules set out in Schedule 1, as established by Qupra Wholesale for such equipment and its installation.

• The Customer shall supply the Customer Equipment and arrange for its assembly and installation by its own personnel or third parties, at the Customer’s own risk and expense.

• If the Customer or a third party designated by the Customer causes, or if Qupra Wholesale has reasonable evidence indicating that the Customer caused, a false alarm or activation of a fire-suppression system, the Customer shall permit and fully cooperate with Qupra Wholesale in conducting a thorough investigation of the incident.

• If the Customer or a third party designated by the Customer caused a fire alarm or activation of a fire-suppression system, the Customer shall reimburse and indemnify Qupra Wholesale for all reasonable costs incurred in connection with the incident.

4.9 Delivery of Equipment

• The Customer shall notify Qupra Wholesale at least one Business Day before the delivery of Customer Equipment and/or before its assembly and installation.

• The Customer shall bear all costs relating to deliveries made outside Business Hours.

• The Customer shall not bring furniture, equipment or other goods onto the Premises without the consent of Qupra Wholesale, except insofar as reasonably necessary for exercising the Customer’s rights under the Agreement.

• The Customer shall keep the Premises clean and free from waste.

4.10 Cabling

All cabling work at the Qupra Wholesale Premises may only be carried out with the prior written consent of Qupra Wholesale and shall exclusively follow the routes designated by Qupra Wholesale in its instructions.

ARTICLE 5 – ADDITIONAL EQUIPMENT

5.1

Subject to sufficient space being available in the Shared Room, the Customer may request permission to install additional Customer Equipment in the Shared Room.

All provisions relating to Customer Equipment shall apply equally to such additional Customer Equipment.

5.2

If the installation of additional Customer Equipment requires additional floor space in a Shared Room, Qupra Wholesale reserves the right to increase the applicable Fees accordingly.

ARTICLE 6 – RIGHTS AND OBLIGATIONS OF QUPRA WHOLESALE

6.1 Operation of Environmental Controls

Qupra Wholesale shall use reasonable efforts to ensure that the air-conditioning and other environmental controls at the Premises provide an environment suitable for the operation of the Equipment in accordance with the manufacturer’s recommendations.

Qupra Wholesale shall use reasonable efforts to ensure that such environmental controls remain available at all times.

6.2 Access by Telecommunications Carriers

Qupra Wholesale shall assist the telecommunications carriers selected by the Customer in obtaining access to the Qupra Wholesale Premises and to the Customer’s Equipment Room(s), Cage(s), Equipment Cabinets and data-centre facilities.

6.3 Maintenance of the Technical Infrastructure

• Qupra Wholesale shall perform preventive maintenance on the Qupra Technical Infrastructure from time to time without additional charge. Such preventive maintenance shall include changes required as a result of technical developments and shall be announced by email.

• Unless otherwise agreed, Qupra Wholesale shall perform service-affecting maintenance on the Qupra Technical Infrastructure only between 22:00 CET and 08:00 CET, except where, in Qupra Wholesale’s reasonable opinion, an emergency requires essential maintenance to be performed outside those hours. The Customer shall be notified immediately by email of any such emergency.

• In the event of service interruptions caused by preventive maintenance or by maintenance activities scheduled in advance, Qupra Wholesale shall notify the Customer at least one day in advance.

• Qupra Wholesale shall regularly discuss its long-term maintenance schedule with the Customer to minimise disruptions and to allow the Customer to schedule its own preventive maintenance accordingly.

• In the event of an emergency, Qupra Wholesale shall notify the Customer immediately by email.

• During maintenance carried out by Qupra Wholesale as described in Article 6.3, the Colocation Services may not meet the specifications set out in Schedule 2 concerning the Service Levels. To the extent that interruptions are unavoidable, Qupra Wholesale shall work with the Customer to develop a plan enabling the Customer to continue providing its services to third parties.

• Qupra Wholesale shall clean the Premises and carry out ordinary maintenance and cleaning. The Customer shall grant Qupra Wholesale employees access to the Equipment Room for these purposes, unless otherwise agreed in writing between Qupra Wholesale and the Customer.

• Qupra Wholesale is entitled to subcontract its obligations under the Agreement to suitably qualified parties. By signing the Agreement, the Customer agrees in advance to such subcontracting.

6.4 Ownership of Customer Equipment

• Under no circumstances shall the Agreement grant Qupra Wholesale any ownership rights in respect of Customer Equipment.

• Qupra Wholesale shall not be entitled to use Customer Equipment for its own purposes.

• Qupra Wholesale shall not remove, alter or conceal any ownership notices affixed to the Customer Equipment.

• The Parties intend that the Customer Equipment shall not be installed in a manner that causes it to become permanently attached to the Premises, so that the Customer Equipment can be removed easily.

• Qupra Wholesale shall immediately inform any third party entering the Premises pursuant to a court order, attachment order or in its capacity as trustee or administrator in insolvency proceedings that the Customer Equipment is the exclusive property of the Customer.

• Qupra Wholesale is entitled to refuse access to the Customer Equipment if invoices have remained outstanding for more than 60 days. The original conditions further state that removal of equipment in the event of late payment is not permitted after 45 days or more.

• The Customer may not change its business or visiting address without Qupra Wholesale’s knowledge and must inform Qupra Wholesale in advance of any such change.

• Companies established outside the Netherlands must pay a deposit equal to at least one month’s charges. An authorised signatory must also provide a residential or business address on page 5B.

• Any legal proceedings relating to this Agreement may be submitted exclusively to the competent court in Amsterdam and shall be governed by Dutch law.

ARTICLE 7 – FEES, COSTS AND PAYMENT TERMS

7.1

The Customer shall pay Qupra Wholesale the Fees for the Colocation Services specified in the Services Form, each seperate order is applied with the minimum duration of the initial contract. 

Amounts due to Qupra Wholesale shall be invoiced in advance at the beginning of each applicable period. The invoicing period shall be specified in the Services Form.

7.2

If the market price of electricity relating to consumption in kWh decreases or increases by 5% or more, the charges relating to electricity consumption shall be adjusted accordingly.

This also applies to Services for which electricity consumption is included, but only in respect of the electricity component.

7.3

The Customer shall pay Qupra Wholesale the fees for the Initial Installation specified in the Services Form.

Costs incurred for materials, necessary spare parts, additional items and services supplied by third parties at the Customer’s request shall be paid separately by the Customer. Such amounts shall be invoiced in arrears.

7.4

All alterations to the Equipment Room and its facilities requested by the Customer, including but not limited to alterations to the lighting system, power distribution system, internal walls, doors, floors and pathways, shall be charged to the Customer.

7.5

To the extent that Qupra Wholesale takes emergency action to avert operational disruptions or threats to Qupra Wholesale, the Customer or third parties arising from Colocation Services used by the Customer or originating from Customer Equipment, the Customer shall bear all associated costs.

If the cause of such a threat cannot be attributed to a particular party, the Customer shall bear a proportion of such costs corresponding to its use of the Colocation Services.

7.6

• All amounts payable by the Customer to Qupra Wholesale arising from or in connection with the Agreement shall be increased by the applicable statutory value added tax, as amended from time to time.

• All amounts payable by the Customer under or in connection with the Agreement shall be paid in full, without any deduction on account of taxes, levies or other withholdings, unless the Customer is legally required to make such a deduction or withholding.

• If a deduction or withholding is legally required, the amount payable shall be increased to the extent necessary to ensure that Qupra Wholesale receives, after the required deduction or withholding, a net amount equal to the amount Qupra Wholesale would have received if no deduction or withholding had been required.

7.7

The Parties agree that Qupra Wholesale shall charge VAT on the Fees payable for the use of the designated space.

With reference to the decision of the State Secretary for Finance dated 24 March 1999, reference number VB 99/571, the Parties agree as follows:

• the Customer’s financial year runs from January to December;

• the Customer declares that it shall use the designated space for activities carrying a right to deduct VAT for at least the applicable statutory percentage of 90% or 70%, pursuant to Article 15 of the Dutch Turnover Tax Act; and

• Qupra Wholesale shall retain the Agreement signed by the Parties in its records.

7.8

The Customer shall continue to use the Premises, to the percentage prescribed by law or any minimum percentage established at a later date, for activities carrying a right to deduct VAT, thereby enabling the Parties to opt for VAT-taxed rent.

7.9

If the Customer does not or no longer uses the Premises for activities carrying a right to deduct VAT as referred to in Article 7.7, the Customer shall no longer owe Qupra Wholesale VAT on the rent.

However, in addition to the rent excluding VAT and with effect from the date on which the rent becomes exempt from VAT, the Customer shall make a separate payment to Qupra Wholesale in an amount sufficient to compensate Qupra Wholesale fully for:

• VAT that is no longer deductible as a result of the loss of the right to deduct VAT on the operating costs of and/or investments in the Premises;

• VAT that Qupra Wholesale is required to pay to the Dutch Tax and Customs Administration and/or can no longer recover from the Dutch Tax and Customs Administration as a result of the loss of the right to deduct VAT, due to the recalculation of taxed rent as referred to in Article 15(4) of the Dutch Turnover Tax Act 1968 or a revision as referred to in Articles 11, 12 and 13 of the Dutch Turnover Tax Implementing Decree 1968; and

• any other loss suffered by Qupra Wholesale as a result of the loss of the right to deduct VAT.

7.10

If a situation as referred to in Article 7.8 occurs, Qupra Wholesale shall inform the Customer of the amounts payable by Qupra Wholesale to the Dutch Tax and Customs Administration and shall provide details of the other losses referred to in Article 7.8.

Qupra Wholesale shall cooperate if the Customer wishes to have Qupra Wholesale’s calculation reviewed by an independent chartered accountant. The costs of such review shall be borne by the Customer.

At Qupra Wholesale’s request, the Customer shall compensate Qupra Wholesale for the financial loss suffered as a result of the cancellation of VAT-taxed rent.

7.11

Payment shall be made in euros into the Qupra Wholesale bank account specified on the invoice, within 30 days of the invoice date (the “Due Date”).

For the purpose of determining whether payment was made on time, receipt of the payment, rather than the date on which it was sent, shall be decisive.

7.12

If the Customer fails to pay any amount due under or in connection with the Agreement by the Due Date, it shall be in default after Qupra Wholesale has sent the Customer a reminder by email or post.

If the Customer is in default in respect of any payment, all amounts owed by the Customer shall become immediately due and payable.

Qupra Wholesale shall be entitled to interest on the total amount outstanding at a rate of 5% above the then-applicable base rate of De Nederlandsche Bank, as well as compensation for any further loss caused by the default.

7.13

The Customer may only set off undisputed claims or claims established by a final court judgment.

The Customer shall only have a right of retention to the extent that its counterclaim arises from the Agreement and is undisputed or has been confirmed by a final court judgment.

7.14

The Customer shall pay the security deposit specified in the Services Form.

The security deposit shall be paid into a designated bank account in the name of Qupra Wholesale.

The security deposit shall be returned no later than two months after termination of the Agreement.

If the Fees are reviewed and adjusted, the amount of the security deposit shall be increased accordingly.

No interest shall accrue on the security deposit for the benefit of the Customer.

ARTICLE 8 – TERM AND TERMINATION

8.1

The Agreement shall commence on the “Commencement Date” and shall remain in force for the “Initial Term” following the Commencement Date.

Thereafter, the Agreement shall automatically renew for successive periods of one year unless either Party terminates the Agreement by giving written notice to the other Party at least six months before the end of the then-current term.

This six-month notice period applies both where the Initial Term is one year and where the Initial Term exceeds one year.

The Customer may exercise any option right specified in the Services Form.

8.2

Either Party may terminate the Agreement by written notice with immediate effect if:

• the other Party becomes insolvent, voluntary or involuntary insolvency proceedings are commenced by or against that other Party, or the Customer fails to provide evidence of financial soundness; or

• the lease agreement between Qupra Wholesale and the landlord or head lessor is terminated.

The provision concerning termination of the lease only applies if the landlord lawfully terminates the lease.

If the landlord terminates the lease, Qupra Wholesale shall notify the Customer in writing as soon as reasonably possible.

8.3

Either Party may terminate the Agreement in whole or in part with immediate effect by giving prior written notice to the other Party (the “Defaulting Party”) if the Defaulting Party, notwithstanding written notice, breaches or fails to comply with an essential provision of the Agreement and such breach or failure:

• cannot be remedied; or

• if capable of remedy, is not remedied within 30 days after receipt of a written notice from the other Party requiring the breach or failure to be remedied.

8.4

Upon termination of the Agreement, each Party shall promptly and at no charge to the other Party:

• at the option of the Party to whom the Confidential Information belongs, return to that Party or destroy all Confidential Information referred to in Article 11, including all copies then in its possession or use; and

• delete all Confidential Information referred to in Article 11 stored on equipment, computer systems, networks, files or software controlled or used by or on behalf of that Party.

8.5

Upon termination of the Agreement, the Customer shall remove all Customer Equipment at its own risk and expense.

The Customer shall bear the cost of restoring the Equipment Cabinet, Equipment Room and any other part of the Premises used by the Customer to the condition in which they existed on the Commencement Date.

ARTICLE 9 – LEGAL REQUIREMENTS

The Customer shall, at its own expense, apply for, obtain and maintain all authorisations, licences, registrations and/or permits necessary to conduct its activities and use the Colocation Services.

The Customer shall comply with the conditions of any such authorisation, licence or permit and with Dutch law.

The Customer shall indemnify Qupra Wholesale against any third-party claim relating to damage, loss or costs arising from the Customer’s failure to comply with the above obligations.

ARTICLE 10 – WARRANTIES AND LIMITATION OF LIABILITY

10.1

Qupra Wholesale warrants that it shall use reasonable skill and care in performing its obligations in accordance with the terms of the Agreement.

If the Customer believes that Qupra Wholesale has failed to comply with its obligations, the Customer shall immediately notify Qupra Wholesale and provide Qupra Wholesale with an opportunity to remedy the relevant failure.

10.2

The Customer shall only be liable for damage to the extent that such damage was caused intentionally or by gross negligence.

This limitation of liability applies to all claims for damages, irrespective of their legal basis, including but not limited to contractual liability, pre-contractual liability and liability in tort.

10.3

In the event of a breach of an essential contractual obligation, the Parties shall also be liable for negligence.

Such liability shall, however, be limited to the damage that was reasonably foreseeable under the Agreement.

10.4

In the event of negligence and/or gross negligence, the liability of Qupra Wholesale shall be limited to direct damage and to an amount not exceeding one monthly Fee payable under the Agreement.

10.5

Any liability arising under product-liability legislation or telecommunications consumer-protection legislation shall remain unaffected to the extent applicable.

10.6

The Customer shall remain responsible at all times for the implementation and installation of Customer Equipment.

The fact that Qupra Wholesale has assisted with such implementation and/or installation shall not make Qupra Wholesale responsible or liable for the results of that implementation or installation.

ARTICLE 11 – CONFIDENTIALITY

11.1

The Parties agree that all technical and business information received by one Party (the “Recipient”) from the other Party (the “Disclosing Party”) as a result of or in connection with the performance of the Agreement shall be treated as confidential and shall not be disclosed or otherwise communicated to any third party.

This confidentiality obligation shall apply throughout the term of the Agreement and for a period of five years after termination or expiry of the Agreement.

11.2

The technical and business information referred to in Article 11.1 includes, but is not limited to, business information, technical data, financial information, intellectual property rights, know-how, computer software, database technologies, designs, marketing information, networks, websites and the Agreement.

11.3

The obligation set out in this Article 11 shall not apply to technical or business information that:

• enters the public domain without a breach of the Agreement;

• was known to and recorded by the Recipient before disclosure by the Disclosing Party;

• was developed by the Recipient entirely independently of the disclosure by the Disclosing Party;

• can be established from a commercially available product; or

• must be disclosed pursuant to an administrative or judicial process, provided that the Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including by asserting any applicable privilege, and shall immediately upon becoming aware of or receiving notice of such process inform the Disclosing Party and allow the Disclosing Party an opportunity to seek other remedies to preserve the confidentiality of the Confidential Information.

ARTICLE 12 – NOTICES

12.1

Any notice or written communication required or permitted to be served on or given to either Party under the Agreement shall be delivered by hand or sent by registered post to the other Party at the address specified in the Services Form or at any other address previously notified to the sending Party.

Such notice shall be deemed to have been given when actually received or, if sent by registered post and returned marked “moved” or with a notice having a similar meaning, upon the return of that registered letter.

ARTICLE 13 – ASSIGNMENT

13.1

The Agreement is personal to the Customer.

The Customer may not assign or transfer the Agreement or subcontract, transfer or otherwise share any right or obligation under the Agreement with a third party without the prior written consent of Qupra Wholesale.

13.2

Qupra Wholesale is entitled to assign the Agreement, together with all rights and obligations arising from or relating to the Agreement, to an undertaking of its choice.

ARTICLE 14 – FORCE MAJEURE

14.1

Neither Party shall be liable for any failure to perform its obligations under the Agreement to the extent that performance is prevented, hindered or delayed by circumstances beyond the reasonable control of the affected Party.

Such circumstances include, but are not limited to:

• strikes or labour disputes, including where the affected Party itself is involved;

• direct or indirect lightning strikes;

• fire;

• flooding;

• war;

• mobilisation or large-scale military call-up;

• nuclear disasters;

• requisition;

• embargoes;

• currency restrictions;

• directions issued by public authorities;

• acts of government;

• regulatory or other statutory restrictions;

• riots or insurrection;

• restrictions on the use of electricity; and

• circumstances affecting subcontractors or landlords where the failure of the relevant subcontractor or landlord results from any of the circumstances listed above.

Such circumstances shall constitute “Force Majeure”.

14.2

The Party invoking this Article 14 shall immediately notify the other Party of the Force Majeure event.

Such notice shall contain details of the circumstances giving rise to the event.

14.3

If a failure caused by Force Majeure continues for more than two calendar months, the other Party shall be entitled to terminate the Agreement in respect of any Equipment Room and/or Equipment Cabinet affected by the Force Majeure event.

ARTICLE 15 – MISCELLANEOUS

15.1

The Agreement may only be amended by a written instrument duly executed on behalf of both Parties, expressly referring to the Agreement and attached to it.

The same requirement shall apply to any waiver of this formal requirement.

15.2

Qupra Wholesale shall not be responsible for damage to Customer software or hardware during colocation at the data centre.

Qupra Wholesale shall not be responsible for missing parts, electronics or other property belonging to the Customer.

Where necessary, Qupra Wholesale shall be entitled to move or relocate Customer Equipment without the Customer’s consent or prior notice.

Qupra Wholesale shall not be responsible for damage to Customer Equipment in any circumstances, but shall exercise due care when handling such equipment.

15.3

If any provision of the Agreement is held to be invalid or unenforceable, this shall not affect the validity of the remaining provisions of the Agreement.

The invalid or unenforceable provision shall be deemed to have been replaced by a provision that, to the greatest extent legally possible, reflects the economic purpose intended by the Parties in the invalid or unenforceable provision.

The same shall apply if the Parties have inadvertently omitted a matter from the Agreement.

15.4

The Schedules form an integral part of these General Terms and Conditions.

15.5

If the data centre experiences financial difficulties affecting its continued operation, Qupra Wholesale cannot guarantee that the same prices will apply at another data centre.

To continue providing Services to the Customer, Qupra Wholesale shall give the Customer the opportunity to relocate to another data centre if the applicable price changes.

Qupra Wholesale shall not be liable for the costs of transferring or relocating Customer Equipment.

Qupra Wholesale is entitled to send legal notices by email.

The Customer accepts the Dutch general terms and conditions of Qupra Wholesale.

15.6

For all bandwidth, VLAN, transit and IP-transit products supplied by the subcontractor of Qupra Wholesale, the Customer accepts the general bandwidth agreement without separately signing it and confirms that it has read that agreement carefully. 

ACCEPTED AND AGREED

These General Terms and Conditions including the general ones, SLA and MSA, are accepted and agreed to upon signing the Contract.