Legal Information

Master Services Agreement

Last updated: June 22, 2016

YOU MUST CAREFULLY READ THIS G-CORE MASTER SERVICES AGREEMENT (“AGREEMENT”) BEFORE SIGNING, EXECUTING OR OTHERWISE PLACING YOUR SERVICE ORDER FOR G-CORE SERVICES. BY ORDERING G-CORE SERVICES YOU AGREE TO BE BOUND BY THE LATEST AMENDED VERSION OF THIS AGREEMENT.

This Agreement is entered into between G-Core Labs S.A., incorporated under laws of Luxembourg, established and having its registered office at 2A, Rue Albert Borschette, L-1246, Luxembourg (hereinafter referred to as “G-Core”), and you, the Customer, who placed the Service Order or executed a similar document with reference to this Agreement (hereinafter referred to as “Customer”). G-Core and Customer are hereinafter referred to individually as a “Party”, or collectively as the “Parties”.

1. Definitions

1.1 “Acceptable Use Policy” (AUP) means the policy currently available at http://gcore.lu/legal, as it may be updated by G-Core from time to time.

1.2 “Accepted” or “Acceptance” means a Party’s authorized execution and acceptance of a document.

1.3 “Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future. An entity will “Control” another entity when it owns more than 50% of the equity or other voting interests, or otherwise has management and operational control.

1.4 “Change of Control” means one or more transactions whereby (a) Control of a Party is transferred, directly or indirectly, whether by operation of law or otherwise, (b) all or substantially all of such Party’s assets or equity securities are acquired by a person, firm or entity or (c) such Party is merged or consolidated with or into another entity; provided, that, in any case, such Party’s equity owners of record immediately before such transaction(s) will, immediately after such transaction(s), hold less than 50% of the voting power of the succeeding, acquiring or surviving entity.

1.5 “Customer Content” means content, software, data, video or information of Customer and/or End Users, including third-party content, software, data and equipment, provided or made available to G-Core for storage, delivery or otherwise in connection with Services.

1.6 “Customer Data” includes all data that identifies Customer, or their respective End Users. Customer Data may include Customer name, employee contact information, End User Data, data necessary for account establishment, billing data or content transmission data when such data identifies Customer.

1.7 “Days” means calendar days unless otherwise indicated.

1.8 “Effective Date” means a date when this Agreement enters into legal force.

1.9 “End User” means a subscriber, member, end-user, customer or other visitor of an online site or service owned and/or operated by Customer.

1.10 “End User Data” includes End User name, address, contact information, usage, billing or any other data that personally identifies authorized End Users of the Services.

1.11 “Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and trade names, goodwill and marketing rights related thereto, works of authorship, inventions, discoveries, improvements, enhancements, methods, processes, formulas, designs, techniques, derivative works, know how, all other intellectual property or proprietary rights (registered or not) and equivalents or similar forms of protection existing worldwide, and all applications for and registrations in such rights.

1.12 “Quotation” means a non-binding proposal communicated to Customer, specifying Services to be performed and the associated fees and charges (collectively “Fees”). Upon Customer’s approval of a Quotation, G-Core will send to Customer a Service Order for Acceptance.

1.13 “Service Order” means a service specification, price, quantity and Customer commitment for G-Core services, based on a mutually accepted Quotation, of standard or non-standard Services to be performed by G-Core for the specified time period.

1.14 “Service Start Date” means the Service start date set forth in the applicable Service Order.

1.15 “Service Level Agreement” (SLA) means all service level agreements that we offer with respect to the G-Core Services and post on the G-Core site, which may be updated by G-Core from time to time. The Service Level Agreements we currently offer with respect to the G-Core Services are located at: http://gcore.lu/legal

1.16 “Services” means all of the G-Core services as set forth in any applicable Service Order that G-Core provides to Customer pursuant to this Agreement.

1.17 “Service Terms” means the rights, limitations and restrictions and other service specific details for particular Services located at: http://gcore.lu/legal, which may be updated by              G-Core from time to time, and are incorporated into this Agreement by reference.

1.18 “Taxes” means any applicable foreign or domestic taxes, tax-like charges, tax-related charges and other charges or surcharges assessed in connection with Services, including all excise, use, sales, value-added and other fees, surcharges and levies.

2. Services

2.1 G-Core will provide Services to Customer as specified in a mutually Accepted Service Order, subject to the terms and conditions herein. Within five Days after Customer has submitted to G-Core an Accepted Service Order, G-Core will respond with Acceptance or reason for non-Acceptance. G-Core will not be bound to provide Services until the applicable Service Order has been mutually Accepted. However, if Customer begins using Services before the Service Start Date in an applicable Service Order, the provision and use of such Services nonetheless will be governed by the terms of this Agreement, Service Terms, SLA, AUP and the Service Orders.

2.2 Customer acknowledges that G-Core (a) does not own or control all local circuit links, leased co-location spaces, leased space cross-connects, Internet service providers (“ISP”) providing connectivity to G-Core, other networks outside the connectivity to G-Core or ISPs, or the “Internet” and except as set forth in the SLA, G-Core will not be responsible for performance or non-performance within such networks or within non-G-Core operated interconnection points between the connectivity and other networks, (b) is a mere intermediary (i.e., mere conduit in accordance with article 12 of Directive 2000/31/EC on E-Commerce and the implementing article 60 of Luxembourg E-Commerce Act of 14 August 2000) for transmission of Customer Content and does not exercise editorial or other control over such materials and (c) will not be responsible for, and expressly disclaims any liability arising from, any such materials or other data accessible on the Internet or for any actions taken on the Internet.

2.3 G-Core may at any time, and without notice, use the services of one or more Affiliates, suppliers or sub-contractors in connection with the performance of its obligations under this Agreement, and Customer’s obligations to G-Core extend to those parties when acting on  G-Core’s behalf.

2.4 To be eligible for a Service Credit under the SLA, which is incorporated herein by reference, Customer must be in good standing with no delinquent invoices, in addition to any other SLA requirements.

2.5 Given the nature of the Services, Customer, and not G-Core, is solely responsible for (i) all bandwidth abuse, theft or other unauthorized usage or activity occurring on Customer ‘s account (e.g., leeching or hotlinking/direct linking to content), (ii) all resulting Fees and costs, (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by G-Core or a third party) related to Customer’s account and (iv) regularly monitoring all usage of bandwidth and Services and other activity on Customer’s account. G-Core makes available to Customer, through the G-Core reporting tools, data regarding Customer’s billable usage of bandwidth or Services; but G-Core is not responsible for notifying Customer of usage or activity patterns occurring on Customer’s account.

2.6 G-Core may modify the configuration of the Services, provided such modifications are necessary due to technical, economic or regulatory developments or to maintain the quality standard of Services and such modification will not affect the essential characteristic features of Services ordered. In such event, G-Core shall use commercially reasonable efforts to notify Customer prior to any such modification becoming effective. Customer’s continued use of Services following the modification will constitute Customer’s acceptance of the modification.

3. Acceptable Use

3.1 As between the Parties, Customer is solely responsible for any Customer Content stored, reproduced, displayed or distributed using Services. All use of Services, unless otherwise indicated in a Service Order, is governed by the AUP, which is made a part of this Agreement.

3.2 If G-Core determines, in its sole reasonable discretion, that Customer Content or Customer’s use of Services violates the AUP or otherwise adversely impacts the Services, G-Core reserves the right to take remedial measures including blocking or disabling access. G-Core will use commercially reasonable efforts to limit the measures to the extent necessary to resolve the adverse impact without undue interruption of Services. The Parties will work together in good faith to resolve the problems or issues causing, in whole or part, the adverse impact.

4. Cooperation and Customer Obligations

4.1 For Services to function as intended, Customers must cooperate in good faith with G-Core to configure and enable Services. When Customer elects to send or receive Customer Content using Services, Customer is solely responsible for modifying its content identifiers, consistent with instructions that G-Core provides, to enable G-Core to deliver the selected content. This may include changing the alias information in Customer’s DNS record so that hostname addresses of page objects resolve to G-Core’s servers.

4.2 Customer acknowledges that the timely and successful performance of Services requires good faith cooperation by the Customer. Therefore, Customer will (a) furnish all information reasonably requested by G-Core, (b) comply with all laws, regulations, orders and statutes which may be applicable to Customer, and (c) timely perform its obligations as necessary to meet any schedule or deadline in the applicable Service Order. In the event that any failure by the Customer to comply with the provisions of this Section 4 results in any delay, deficiency or interruption in the performance of Services, G-Core shall not be deemed in breach of the applicable Service Order for such delay and Customer shall be responsible for any costs reasonably incurred by G-Core in addressing and remedying such delay, deficiency or interruption.

4.3 The Services provided by G-Core pursuant to this Agreement and under any Service Order shall only be used for purposes assumed under this Agreement, and in accordance with applicable local legislation, rules and regulations. G-Core shall be entitled, at its reasonable option, to immediately suspend Services if in its sole opinion Services are being used in a manner that may result in liability or other damage for G-Core.

5. Fees and Payment

5.1 Customer will pay to G-Core all Fees incurred on Customer’s account in full, as set forth in this Agreement and any Service Order, without set-off, withholding or deduction by Customer. G-Core will provide Notice of all changes to the Services, including new features, functions or services. The new Services will be effective on the date set forth in the notice. For Services purchased without a monthly or other rate commitment or where such commitment has terminated or expired, G-Core will provide 30 days’ Notice of rate increases.

5.2 All charges are exclusive of Taxes, Customer is solely responsible for all Taxes payable in connection with Services. If Customer provides G-Core with a valid, duly executed tax exemption certificate, G-Core will exempt Customer from Taxes in accordance with the law, effective on the date G-Core receives the exemption certificate. If Customer is required by law to make any deduction or withholding from any payment due hereunder to G-Core, then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by Customer to G-Core will be increased so that, after any such deduction or withholding for taxes, the net amount received by G-Core will not be less than G-Core would have received had no such deduction or withholding been required.

5.3 Upon mutual Acceptance of a Service Order, G-Core will begin billing Customer for all monthly recurring charges (each, an “MRC”) as of the Service Start Date. G-Core will bill Customer for MRCs at the beginning of a calendar month for the Services provided in the previous month. G-Core will invoice Customer for any overage and other usage charges, if applicable, the following month the usage occurred.

5.4 All Fees will be billed and payable in USD, unless otherwise mutually agreed in writing. Customer will pay all MRCs through the Term, regardless of whether or how much Customer uses the committed Services. If G-Core cannot begin timely delivery of Services for any reason caused by Customer, G-Core nonetheless may, in its sole discretion, begin billing Customer for MRCs as of the Service Start Date. Any Service Credit granted under the SLA for a Delivery Service Outage (as defined in the SLA) will be applied to the next applicable invoice, against any charges for MRCs and/or overages.

5.5 Unless otherwise agreed to in writing by the Parties, Customer shall pay all invoices within fourteen (14) calendar days of the invoice date by transferring the invoiced amounts to the bank account designated on the invoice. All invoices may be provided to Customer electronically. In respect of all due and unpaid invoiced amounts, G-Core reserves the right to charge (i) in addition to the legal interest, an interest of one and three-quarters percent (1.75%) per month of all invoiced amounts from the due date as set out above until full and final payment of such amounts and (ii) reasonable collection costs incurred in respect of such unpaid invoiced amounts, including but not limited to reasonable legal expenses.

6. Grant of Rights, Intellectual Property

6.1 G-Core grants to Customer, as applicable, the non-exclusive right to access and use the G-Core Services during the Term solely for the purposes of this Agreement. As between the Parties and subject only to the rights of use expressly granted by G-Core herein, G-Core retains all worldwide rights, title and interest in and to the Services, G-Core equipment, network and methodologies, software or other Intellectual Property Rights embodied therein provided in connection with the Services, G-Core Confidential Information, all revisions thereto, derivatives thereof and all Intellectual Property Rights therein, whenever developed. Customer will not, except insofar as permitted by applicable law, and will require End Users to not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Services or G-Core Confidential Information. Customer will provide reasonable assistance to G-Core, at G-Core’s cost, to secure protection of G-Core’s Intellectual Property Rights, including assistance in preparing and filing applications, registrations, assignments and other instruments to perfect title.

6.2 Customer grants to G-Core, and its agents, suppliers and subcontractors, the non-exclusive right to access and use, ingest, reproduce, format, store, distribute, display, perform and make modifications to Customer Content, including encoding, decoding, translating, compressing, decompressing, encrypting, decrypting, repackaging, encapsulating, de-encapsulating, chunking, segmenting, storing, transmitting, distributing, making derivative works of and otherwise managing instances of such Customer Content and associated metadata, solely for the purposes of this Agreement. The foregoing license includes the creation, storage, duplication, modification and distribution of packages that include Customer Content in connection with the performance by G-Core of the Services requested by Customer pursuant to this Agreement. As between the Parties and subject only to the licenses expressly granted by Customer herein, Customer or End Users, as applicable, retain all rights, title and interest in and to Customer Content, Customer Confidential Information and other Customer Intellectual Property Rights. Except insofar as permitted by applicable law, G-Core will not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content or Customer Confidential Information.

7. Customer Data

7.1 Customer acknowledges that G-Core, its Affiliates and their respective agents will, for the purpose of the provision of Services, come into processing of Customer Data. However, Customer shall remain the data controller for the purposes for the applicable data protection laws with G-Core, its Affiliates and their respective agents having only the functions of data processor acting on behalf of Customer.

7.2 G-Core will use reasonable technical and organizational measures to protect Customer Content and Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against other unlawful forms of processing. Customer will provide G-Core with direction as to processing of the Customer Content and Customer Data in accordance with Customer’s then current privacy policy and other privacy laws, rules and regulations applicable to Customer. Without prejudice to subsection 7.3, all use of Customer Data by G-Core will be at Customer’s direction and solely on behalf of Customer, including as set forth in this Agreement.

7.3 Customer acknowledges and agrees that G-Core, its Affiliates and their respective agents may use, process and/or transfer Customer Data (including transfers to entities in non EEA countries that do not offer an adequate level of protection for the processing of personal data as required under the EU Directive 95/46/EC, as may be amended and replaced in the future): (i) in connection with the provision of Services; and (ii) to incorporate Customer Data into databases controlled by G-Core and its Affiliates for the purpose of administration, provisioning, billing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and Customer analysis and reporting, marketing and Customer use analysis.

7.4 Customer warrants that it has obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of End User Data and other Customer Data as described in this Section. Customer shall comply with all applicable data protection laws, specifically execute all respective Model Contracts for the transfer of personal data to third countries and take other actions required. This shall include inter alia making notifications or obtaining authorisation from authorities of the relevant jurisdictions regarding the transfer of End User Data and other Customer Data by G-Core outside the EU/EEA.

7.5 Customer will not provide to G-Core any Customer Content: (a) that is inappropriate or unlawful; (b) contains viruses, worms, corrupt files, Trojan horses and other forms of corruptive code or any other content, which may compromise the Services or G-Core’s network; (c) that violates the property rights of others, including unauthorized images, programs, trademarks or other Intellectual Property Rights; or (d) that has any links or connections to any of the above.

8. Processing of End User Data

8.1 Customer acknowledges that G-Core, its Affiliates and agents can, by virtue of providing Services, process End User Data with Customer remaining the controller of such data.

8.2 Customer acknowledges that any processing of End User Data occurs exclusively at the direction and discretion of the Customer, such direction and discretion exercised through workflows or other agreed upon means.

When processing such End User Data, G-Core, its Affiliates and agents will furthermore in accordance with article 22 (2) and (3) of the Luxembourg Data Protection Act of 2 August 2002 implement technical and organizational measures to protect the End User Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

8.3 Nothing in this Section is intended to restrict the rights and obligations of G-Core and Customer in respect of Customer Data as defined and as set forth above.

9. Confidentiality

9.1 “Confidential Information” means, with respect to a Party (the “Disclosing Party”), all non-public confidential information pertaining to such Party’s business (including such information of a Party’s subcontractor or a Party’s Affiliate), in particular information containing customer lists, customer information, technical information (including technical layouts and designs, configurations of cables, network etc.), pricing information, trade secrets, financial positions, customer communications or proposals, benchmarking information, satisfaction surveys or information relating to business planning or business operations and the terms of this Agreement including any Service Order. G-Core and Customer will comply with this Section 9 when exchanging Confidential Information under this Agreement, including any Service Order. Confidential Information will be designated and/or marked as confidential when disclosed. However, any information that the Party receiving such information (the “Receiving Party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party even if not designated or marked as such.

9.2 The Receiving Party shall preserve the confidentiality of the Disclosing Party’s Confidential Information and treat such Confidential Information with at least the same degree of care that Receiving Party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The Receiving Party will use the Confidential Information of the Disclosing Party only to exercise rights and perform obligations under this Agreement. Confidential Information of the Disclosing Party will be disclosed only to those employees of the Receiving Party with a need to know such information. G-Core may, for the purpose of exercising rights and performing obligations under this Agreement, disclose Confidential Information of Customer also to G-Core’s Affiliates and G-Core’s subcontractors.

9.3 The Receiving Party shall not be liable to the Disclosing Party for the release of Confidential Information if such information: (a) was known to the Receiving Party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the Receiving Party; (c) was independently developed solely by the employees of the Receiving Party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceedings or otherwise required by law.

9.4 The Receiving Party’s obligation under this Section 9 shall expire five (5) years after termination of this Agreement.

10. Warranties

10.1 G-Core warrants that it shall provide Services in compliance with applicable laws and regulations and in a professional and workmanlike manner. G-Core shall use all commercially reasonable efforts to provide Services without interruptions (including the Service Levels) as set forth in the applicable SLA. The Parties acknowledge, however, that it may be technically impracticable to provide Services free of any defects or interruptions. Therefore, G-Core cannot and does not guarantee that Services will be uninterrupted or error free.

10.2 In the event of defects or interruptions of Services, Customer shall only be entitled to the remedies, if any, as specified in the relevant Service Order or the SLA.

10.3 Except as otherwise set forth in Section 10, G-Core does not make and disclaims (i) all warranties that the Services will be uninterrupted, defect-free or completely secure, and (ii) the implied warranties of merchantability and fitness for a particular purpose. All Services are provided on an “as is” basis and Customer’s use of the Services is solely at its own risk.

10.4 Customer represents and warrants that it owns, controls or possesses all necessary rights to the Customer Content and any materials it supplies to G-Core, including the programs and any advertising therein, free and clear of any and all claims, rights and obligations whatsoever and is empowered to grant the rights, licenses and privileges granted in this Agreement.

11. Indemnification

11.1 Customer will, at its cost, defend, indemnify and hold harmless G-Core and its officers, directors, employees, agents and permitted successors and assigns (each a “G-Core Indemnitee”) through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (“Claim”) brought against a G-Core Indemnitee arising out of or based upon (a) bodily injury, death or loss of or damage to real or tangible personal property to the extent that such Claims were alleged to have been proximately caused by any negligent act, omission or wilful misconduct of Customer or their respective agents or employees; (b) operation or use of Customer’s products, websites or services; (c) Customer Content, including any allegation that Customer Content or any other data or information provided by Customer infringes any third party Intellectual Property Rights or otherwise violates applicable law; (d) Customer’s failure to comply in any material respect with the AUP or applicable law; (e) the unauthorized use of or access to Services by any person using Customer’s systems or network; (f) G-Core’s compliance with Customer specifications; (g) a combination or modification of the Services by or on behalf of Customer by anyone other than G-Core or its authorized agents; (h) distribution (including by sale or importation), decoding, decrypting, duplication, storage, display/playback, modification or any other use of Customer information by any entity other than G-Core; or (i) information, data, or other Customer Content provided by or on behalf of Customer to G-Core.

11.2 G-Core will, at its cost, defend, indemnify and hold harmless Customer and its officers, directors, employees, agents and permitted successors and assigns (each a “Customer Indemnitee”) from and against any third-party Claim brought against Customer Indemnitee based upon allegations that Services directly infringe any patent issued as of the Effective Date of this Agreement under the laws of the country in which the Services are being provided to Customer or any third party copyright. Notwithstanding the foregoing, G-Core will have no liability for any infringement of patents, copyrights or other intellectual property rights based upon or resulting from Customer Content, use of Services in a manner not specified in applicable G-Core documentation, or services or products not supplied by G-Core. If Services, or any material portion thereof are determined to infringe and the use enjoined,           G-Core will have the option, at its sole cost, to (i) obtain the right for Customer to continue using Services, (ii) modify Services so that they are non-infringing, (iii) substitute functionally similar, non-infringing services or (iv) if none of the foregoing is available to G-Core on commercially reasonable terms, terminate the Agreement and return to Customer any unused Customer prepaid Fees for which Services have not been provided as of the date of termination.

11.3 The G-Core Indemnitee or Customer Indemnitee as applicable (each an “Indemnified Party”) will (a) promptly provide Notice to the indemnifying Party (“Indemnifying Party”) of any Claim for which indemnity is claimed (provided, that, any delay in providing Notice will not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such delay), (b) permit Indemnifying Party to control the defense of any such Claim and (c) provide reasonable assistance at Indemnifying Party’s reasonable cost. Subject to the foregoing, in any Claim for which indemnification is sought, Indemnifying Party may select legal counsel to represent Indemnified Party (such counsel to be reasonably satisfactory to Indemnified Party) and to otherwise control the defense. If Indemnifying Party elects to control the defense, Indemnified Party may fully participate in the defense at its own cost. If Indemnifying Party, within a reasonable time after receipt of notice of Claim, fails to defend Indemnified Party, Indemnified Party may defend and compromise or settle the Claim at Indemnifying Party’s cost. Notwithstanding the foregoing, Indemnifying Party may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on Indemnified Party or diminishes Indemnified Party’s rights, without obtaining Indemnified Party’s express prior consent, such consent not to be unreasonably withheld or delayed, other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by the Indemnifying Party under this Agreement.

11.4 This Section 11 provides the sole and exclusive remedy of Customer and the exclusive obligations of G-Core in connection with any third party claim, action, suit or other demand asserted against Customer as described in subsection 11.2 above (in respect of G-Core’s obligations to indemnify Customer only) and G-Core disclaims all other warranties and obligations with respect thereto. G-Core’s obligations under this Section 11 are subject to the limitations in Section 12 below.

12. Liability

12.1 With the sole exception of wilful misconduct or fraud and without prejudice to any limitation of liability contained elsewhere in this Agreement or in any other contractual documents being part of this Agreement, especially in any relevant Service Order concluded hereunder, G-Core’s total liability to Customer in the aggregate for the entire Term as defined in Section 13 below (regardless of whether the claims are brought during or after the term) with respect to all claims arising from or relating to the subject matter of this Agreement (including any relevant Service Order hereunder) will at no time exceed fifty per-cent (50%) of the amount of Fees actually paid by Customer to G-Core under this Agreement and any Service Orders concluded hereunder. As a further limitation, G-Core’s maximum liability for any claims relating to Services offered or provided by G-Core (i) for non-recurring Fees shall not exceed the amount of the Fees for the Services provided on the occasion giving rise to the claim; (ii) for recurring Fees shall not exceed the amount of Fees due for one month for the Services provided on the occasion giving rise to the claim.

12.2 Subject only to the exception of wilful misconduct or fraud, G-Core shall under no circumstances be held liable for any (a) economic loss, loss arising from or in connection with loss of revenues, profits, contracts, goodwill, customers or business or from failure to realize anticipated savings; (b) loss or corruption of any software; (c) loss or corruption of any data; (d) loss of use of hardware or other equipment, of software or data; (e) wasted administrative time or management time; (f) cost of procuring or migrating to substitute services; and (g) any indirect, consequential or special loss.

12.3 Customer’s liability claims shall expire after one (1) year following the damaging incident.

12.4 The limitations of liability set forth in this Section 12 apply to all claims and causes of action by Customer with respect to all claims arising from or relating to the subject matter of this Agreement (including any relevant Service Orders thereunder), regardless of whether for breach of contract, tort (including negligence) or for any other reason.

13. Term and Termination

13.1 This Agreement will commence on the Effective Date and will remain in effect for the initial period of 12 months, unless another initial period is agreed in the Service Order (“Initial Period”).  The Services will renew automatically for successive three month periods (each, a “Renewal Term”) unless, at least 30 Days before expiration of the Initial Period or, subsequently, the Renewal Term, either Party provides Notice of non-renewal. The Initial Term and all Renewal Terms are collectively, the “Term”. If the Parties enter into a Service Order that expires after the Term, the Term will be deemed to expire on the same date as such Service Order.

13.2 Customer may terminate this Agreement for cause, upon Notice to G-Core, if (i) a receiver or administrator is appointed for G-Core or its property; (ii) G-Core makes a general assignment for the benefit of its creditors; (iii) G-Core commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 Days; (iv) G-Core is liquidated or dissolved; (v) G-Core ceases to do business or otherwise terminates its business operations; or (vi) G-Core materially breaches this Agreement and such breach continues unremedied for 20 Days after receipt of Notice from Customer. For clarity, a Delivery Service Outage (as defined in the SLA) is not grounds to terminate this Agreement for cause; Customer’s sole remedy for a Delivery Service Outage is set forth in the SLA.

13.3 G-Core may terminate this Agreement for cause and/or suspend Services upon Notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 Days; (iv) Customer is liquidated or dissolved; (v) Customer ceases to do business or otherwise terminates its business operations; (vi) Customer fails to pay all invoiced Fees within 30 Days from the invoice date; (vii) any use of Services, including Customer Content, actually or allegedly infringes or misappropriates any Intellectual Property Rights or otherwise violates the AUP or any applicable law, regulation or order; or (viii) Customer otherwise materially breaches this Agreement and such breach continues unremedied for 20 Days after receipt of Notice from G-Core. G-Core may terminate, interrupt or suspend Service without prior Notice if necessary to (1) prevent or protect against fraud, (2) protect G-Core’s personnel, facilities, equipment, network or services, (3) prevent violation of Section 10 or infringement upon the rights of others or (4) prevent potential material liability.

13.4 Upon expiration or termination of the Agreement for any reason, (i) all rights to access or use Services and any other G-Core Intellectual Property Rights will terminate and G-Core will cease providing same, (ii) Customer will pay to G-Core all Fees accrued but unpaid as of the date of expiration or termination, (iii) all liabilities accrued before the date of expiration or termination will survive and (iv) Customer will return or destroy, and certify in writing to G-Core such destruction of, all copies of G-Core Confidential Information.

13.5 If Customer terminates the Agreement, a Service Order without cause or if G-Core terminates the Agreement for cause pursuant to Section 13.3, Customer will be billed and pay to G-Core an amount equal to Customer’s MRCs multiplied by the number of months remaining in the Term (“Early Termination Fee”). The Parties agree that G-Core’s damages in the event of the foregoing will be difficult or impossible to ascertain; therefore, the foregoing is intended to establish liquidated damages in such event and is not a penalty. If Customer terminates the Agreement for cause pursuant to Section 13.2, Customer will not be obligated to pay Early Termination Fee.

13.6 In preparing a final invoice to Customer, which Customer will pay pursuant to the terms of this Agreement, G-Core will (i) calculate the balance due, (ii) deduct from such balance the unused portion, if any, of any prepaid Fees or Customer deposit and (c) bill Customer for the remaining balance due. If there remains an unused portion of any prepaid Fees or Customer deposit after satisfaction of the balance due, G-Core will refund to Customer such unused portion.

14. Suspension of Services

14.1 G-Core may, upon giving Notice to Customer, without prejudice to any of G-Core’s rights to terminate this Agreement or any Service Order hereunder, suspend provision of all or any of Services in the event that

  • (a) suspension of Services is required in order to comply with the directive of an authority and/or court;
  • (b) G-Core has grounds for suspecting that Customer is committing any illegal or unlawful act in connection with the use of Services;
  • (c) if Customer is in default with its payment obligations under any Service Order for more than 30 Days, and/or
  • (d) any other provision within this Agreement or Service Order allows G-Core to suspend provision of all or any of Services.

14.2 If any Services are suspended as a consequence of Customer’s act or omission, (i) Customer shall remain liable to pay the respective Fees as if Services had been properly provided by G-Core, and (ii) Customer shall reimburse G-Core for any additional charges and expenses incurred due to the suspension and/or recommencement of Services.

15. Miscellaneous

15.1 During the Term, G-Core may publicize the existence of the relationship between the Parties for the purpose of its marketing activities. Subject to the foregoing, neither Party shall make any press announcements concerning the Agreement or publicize the Agreement in any way without the prior written consent of the other Party.

15.2 All notices, requests, approvals, consents and other communications required or permitted herein (each, a “Notice”) will be in writing and in English. Either Party may change its contact information upon Notice to the other Party. For clarity, if a Notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such Notice nonetheless will be deemed to have been conclusively made seven Days after delivery was reasonably initiated.

15.3 If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding will not render the Agreement unenforceable or contrary to law as a whole, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.

15.4 Neither Party may assign this Agreement, in whole or in part, without the other Party’s express prior consent except that G-Core may freely assign any and all of its rights and obligations under this Agreement (a) to a parent or Affiliate or (b) in connection with a Change of Control. This Agreement will be binding upon and inure to the benefit of all permitted successors and assigns.

15.5 Each Party acknowledges that the Services, Confidential Information, hardware, software, technology, devices or other materials or information obtained from or provided to the other Party under this Agreement may be protected under, and subject to, the United States (US) Government import and export control laws, as well as those of a foreign equivalent; accordingly, their use, import, export and reexport, may be restricted, prohibited or necessitate securing licenses which either Customer or G-Core, as applicable, will obtain or provide information for the securing of such licenses, depending on who is designated as the importer and exporter in the transaction. Each Party agrees not to directly or indirectly export, re-export or cause to be exported or re-exported, any such Confidential Information, Services, hardware, software, technology, device or other such materials or information to any destination or entity prohibited or restricted under US law, unless it will have first obtained express prior consent of the disclosing party, US Customs and Border Protection and the US Department of Commerce (or other applicable agency of the US Government, either in writing as required hereunder or as provided by applicable regulation, as the same may be amended from time to time).

15.6 This Agreement, Service Terms, SLA, AUP and all Service Orders between the Parties are incorporated herein by reference, constitute the entire agreement between the Parties with respect to its subject matter and supersede all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter.

15.7 From time to time this Agreement, the Service Terms, SLA and AUP (together “G-Core Legal Documents”) can be modified by G-Core. Such modifications will not apply retroactively. The Customer will be notified by G-Core by e-mail or a written Notice in the Customer’s account in the G-Core system.

15.8 If there is an irreconcilable conflict between the terms and conditions of the Agreement and any other documents referenced herein, the conflict will be resolved in the following order of precedence: (a) Agreement, (b) Service Terms, (c) SLA and (d) AUP. If a provision of this Service Order conflicts with the G-Core Legal Documents, the G-Core Legal Documents will take precedence, unless the conflicting provision in the Service Order explicitly amends the G-Core Legal Documents.

15.9 This Agreement and any Service Order hereunder shall be governed by the laws of the Grand Duchy of Luxembourg, without regard to International Private Law. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of arbitration of the Arbitration Center of the Luxembourg Chamber of Commerce by three  arbitrators appointed in accordance with said rules. Each Party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement and any Service Order hereunder.

 

 

 

Services Level Agreement (SLA)

Last updated: June 22, 2016

G-Core Labs S.A. (“G-Core”) and the Customer of G-Core (“Customer”) will comply with the following Service Levels, which together form the Service Level Agreement (“G-Core SLA” or “SLA”) with respect to Customer’s use of the Service(s) provided by G-Core pursuant to the G-Core Master Services Agreement (“Agreement”) and any Service Order thereunder concluded between G-Core and Customer.

The G-Core SLA consists of:

  • Colocation Service Levels
  • Connectivity Service Levels
  • CDN Service Levels.

I. Colocation Service Levels

1. Reporting of Defects

Customer shall report to G-Core any Defect as soon as possible. When reporting a Defect to G-Core, Customer will send a Defect report (“Defect Report”) to G-Core that includes (a) Customer name and on-site technical contact information (telephone number, e-mail address and hours of operation of the responsible Customer contact), (b) any available serial numbers of the defective components of the Colocation Service, (c) a reasonably detailed description of the Defect, together with any supporting information that Customer’s engineers believe will assist G-Core in its diagnostic process (including e.g. time of first occurrence of Defect, affected systems, error messages etc.), and (d) the date and time that the Defect Report is submitted to G-Core.

Customer may contact G-Core for submission of Defect Reports during the following service times (“Service Times”):

24/7/365

Customer shall contact G-Core for submission of Defect Reports during the Service Times in any case via e-mail in order to provide G-Core with a text version of the Defect Report. After reporting the Defect via e-mail to G-Core, Customer may also contact G-Core via phone for any follow-up queries or updates regarding the reported Defect. G-Core’s contact details are as follows:

e-mail: support@gcore.lu

All communication between Customer and G-Core regarding Defect Reports shall be in English.

2. Service Levels

G-Core will ensure that the Colocation Services will be available for Customer in compliance with the Service Levels specified below. This availability of Colocation Services (“Availability”) is calculated per individual Colocation Service, i.e. per cabinet position or rack and per calendar month, and for each of the following Service Levels separately, beginning with the first full calendar month of provision of Colocation Services, as follows:

Colocation Service Availability
Power Supply for redundant power service

(i.e. for cabinets/racks with Customer provided failover capability which are powered by two (2) power circuits from different power busses, and both power circuits experience simultaneous interruption in electrical power such that the cabinet experiences an interruption in technical power)

99.5%
Power Supply for non-redundant power service

(i.e. for cabinets/racks which are powered by one (1) power circuit, and this power circuit experiences interruption in electrical power such that the cabinet experiences an interruption in technical power)

99.0%
Cross Connect

(i.e. any physical or wireless interconnection within G-Core’s or G-Core’s subcontractors data centres which (i) exits Customers cage, or (ii) connects Customer to another G-Core customer; a Cross Connect is considered unavailable when the passive physical media that G-Core uses for the Cross Connects fails and the endpoints of the Cross-Connect are not able to maintain a communication connection due to the failure of the physical media.)

99.0%
Environmental Control / Temperature

(Temperature within the areas available to Customer will not drop below 64.4°F (18°C) and will not exceed 80.6°F (27°C)).

For avoidance of doubt, temperature is measured between three (3) and five (5) feet from the floor and no closer than twelve (12) inches from the cool air intake side of the cabinet.

99.0%
Environmental Control / Humidity

(Humidity within the areas available to Customer will not drop below 25% and will not exceed 65%).

For avoidance of doubt, humidity is measured between three (3) and five (5) feet from the floor and no closer than twelve (12) inches from the cool air intake side of the cabinet.

99.0%

 

 

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Downtime is calculated as the time from G-Core receiving a Defect Report from Customer via e-mail on non-compliance of the Colocation Services with the Service Levels specified above and G-Core’s subsequent confirmation of a Defect until remedying of this respective Defect.

The following time periods do not count as Downtime:

  • Non-compliance of Colocation Services with the Service Levels due to any Excluded Cause according to the Service Terms, available at http://gcore.lu/legal;
  • Time spent by G-Core resolving reports by Customer which do not specify a Defect;
  • Delays caused by the Customer or Customer’s employees, agents or representatives and/or by third parties (excluding G-Core’s affiliates and/or G-Core’s subcontractors);
  • Non-compliance of Colocation Services with the Service Levels due to (i) Scheduled Maintenance as defined in the Service Terms; and/or (ii) the failure of equipment, cabling, services or network not included in the Colocation Service; and
  • The suspension, interruption or termination of Colocation Services in accordance with the Agreement.

II. Connectivity Service Levels

3. Reporting of Defects

Customer shall report to G-CORE any Defect as soon as possible. When reporting a Defect to G-CORE , Customer will send a Defect report (“Defect Report”) to G-CORE that includes (a) Customer name and on-site technical contact information (telephone number, e-mail address and hours of operation of the responsible Customer contact), (b) any available serial numbers of the defective components of the Connectivity Service, (c) a reasonably detailed description of the Defect, together with any supporting information that Customer’s engineers believe will assist G-CORE in its diagnostic process (including e.g. time of first occurrence of Defect, affected systems, error messages etc.), and (d) the date and time that the Defect Report is submitted to G-CORE .

Customer may contact G-CORE for submission of Defect Reports during the following service times (“Service Times”):

24/7/365

Customer shall contact G-CORE for submission of Defect Reports during the Service Times in any case via e-mail in order to provide G-CORE with a text version of the Defect Report. After reporting the Defect via e-mail to G-CORE, Customer may also contact G-CORE via phone for any follow-up queries or updates regarding the reported Defect. G-CORE’s contact details are as follows:

e-mail: support@gcore.lu

All communication between Customer and G-CORE regarding Defect Reports shall be in English.

4. Service Levels

G-CORE will ensure that the Connectivity Services will be available for Customer for no less than ninety-nine percent (99.0%) per calendar month. This availability, as defined below (“Availability”) is calculated monthly (or, in the case of Multicast services, quarterly) beginning with the first full calendar month of provision of Connectivity Services.

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Downtime is calculated as the time from G-CORE receiving a Defect Report from Customer via e-mail on non- availability of the Connectivity Services and G-CORE ’s subsequent confirmation of a Defect until remedying of this respective Defect.

For the avoidance of doubt, (i) the Connectivity Service will be considered non-available, if (a) there is a critical failure of the Customer access port in G-CORE ’s platform over which the Connectivity Services are provided, i.e. G-CORE ’s IP network comprised of the links, or circuits, between international points-of-presence in different countries (“IP Backbone”), or (b) the IP Backbone experiences physical or logical routing problems resulting in total or significant packet delivery failure of Customer traffic in the IP Backbone and (ii) the IP Backbone shall not be considered non-available due to a fault or problem with local access services or equipment located at Customer’s premises provided to the Customer by G-CORE .

The following time periods do not count as Downtime:

  • Unavailability of Connectivity Services due to any Excluded Cause according to the Service Terms;
  • Time spent by G-CORE resolving reports by Customer which do not specify a Defect;
  • Delays caused by the Customer or Customer’s employees, agents or representatives and/or by third parties (excluding G-CORE’s affiliates and/or G-CORE’s subcontractors);
  • Unavailability of Connectivity Services due to (i) Scheduled Maintenance as defined in the Service Terms, (ii), the failure of equipment, cabling, services or network not included in the Connectivity Service; and/or (iii) as applicable, environmental conditions at the Customer site such as power supply, climate or housing; and
  • The suspension, interruption or termination of Connectivity Service in accordance with the Agreement.

If G-CORE fails to meet the required Availability for Connectivity Services in a particular calendar month, Customer shall be entitled to a credit as set forth below (each an “Availability Credit”). Any Availability Credit issued for a particular calendar month will be calculated as a percentage of the actual monthly bandwidth fees of the affected Connectivity Service for such month and will be determined as follows:

Actual Availability Availability Credit:
≥  98.0% but < 99.0% 3% of monthly bandwidth fees
≥ 95.0% but < 98.0% 5% of monthly bandwidth fees
< 95.0% 25% of monthly bandwidth fees

5. Network Latency

The term “Network Latency” refers to the period of time taken for an IP packet to travel from its source to a destination within the network and back again (also referred to as RTT or Round Trip Time). G-CORE ensures average Network Latency within the IP Backbone across the identified regions not exceeding the following thresholds during a calendar month:

Region Description Average Network Latency (during a calendar month)
Intra-Europe Averaged RTT across all links between European Core Nodes 50 ms
Europe-US Averaged RTT between Europe and the US (the New York PoP) 120 ms
Intra-US Averaged RTT across all links between US Core Nodes 80 ms

When these average Network Latencies Service Levels are not met, Customer shall be entitled to request a credit (“Network Latency Credit”) equal to the pro-rated charges for the affected Connectivity Service for three (3) calendar days during the calendar month in which the average Network Latency was not achieved.

Network Latency shall be determined by G-CORE based on averaging sample measurements taken during a calendar month, excluding samples taken from times where Network Latency was in whole or in part interrupted due to Scheduled Maintenance, a Force Majeure Event and/or an Excluded Cause.

6. Service Level Measurement

Packet Loss and Network Latency are measured by sending approximately 1000 UDP-Datagrams with a length of 96 bytes every 10 minutes to designated servers located at IP Backbone core nodes, which are primary nodes in the network designated by G-CORE or G-CORE’s subcontractors. The Customer’s interface in IP Backbone routers/switches will be measured using Simple Network Management Protocol (“SNMP”). The term “UDP-Datagram” refers to the User Datagram Protocol, a connectionless transport-layer protocol in the TCP/IP protocol suite.

III. CDN Service Levels

This Service Levels provide to Customer certain rights and remedies regarding G-Core’s content delivery network (“CDN”) Services.

7. Definitions

7.1 “Base Fee” consists solely of the committed base monthly fee paid by Customer for the Services and excludes all other fees that might be paid by Customer including, but not limited to, charges for additional services, incremental bandwidth usage and any other type of optional additional services.

7.2 “Customer Content”, for purposes of this SLA, means objects delivered from a Delivery Server.

7.3 “Delivery Server” means G-Core-owned or operated servers for delivering Customer Content located on the CDN at G-Core’s Points of Presence (each, a “POP”).

7.4 “Origin Server” means either G-Core’s or Customer’s Internet web server, where Customer Content is stored for retrieval by Delivery Servers.

7.5 “Services Outage” means an instance in which Services covered by the 100% uptime guarantee is completely unavailable for more than 15 consecutive minutes.

8. Guarantee of Uptime

Subject to the SLA Exceptions set forth in the Agreement, G-Core provides an uptime guarantee to Customer covering (a) uptime of the G-Core CDN and (b) Customer Content delivery uptime and availability. Subject to the terms and conditions of this SLA, G-Core shall issue to Customer a credit for a Services Outage based on the percentage availability in a given monthly billing period as follows (credit amounts expressed as a percentage of the fee for the affected Service).

Availability Percent Monthly Credit Percent
99.99% – 99.9% 5%
99.89% – 99.0% 10%
less than 99.0% 25%

Periodically (i.e., every 15 minutes or more often), G-Core shall measure Customer Content delivery availability by requesting representative Customer Content from Delivery Servers at selected POPs, using software and hardware components capable of measuring traffic and responses at the selected POPs.

9. Credit Request and Payment

To receive Credit under this Services SLA, Customer must submit a request in writing via e-mail to cdn_support@gcore.lu. The request must include Customer’s (a) company name, (b) contact name, (c) e-mail address and (d) phone number, as well as (e) the date of the suspected Services Outage and (f) a reasonably detailed description of the reason for the Credit request. G-Core must receive the Credit request within 30 Days after the suspected Services Outage has occurred. The suspected Services Outage must be capable of confirmation by G-Core’s measurement tools. Any issued Credit shall be applied to Customer’s next applicable invoice after G-Core initially received the Credit request. Credits are exclusive of any Taxes charged to Customer or collected by G-Core.

10. Miscellaneous

Service Credits shall not entitle Customer to any refund, reimbursement or other payment from G-Core. Service credits shall not be applied or transferred to other accounts of the Customer or of third parties. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly period is greater than twenty five dollars (US$ 25).

Notwithstanding anything in this SLA to the contrary, total Credits issued to Customer in connection with any calendar month shall not exceed the Base Fee paid by Customer for such month. All Credit is calculated on the basis of a 30-day month. To be eligible for Credit, Customer must follow G-Core’s published instructions for use of Services; improper use shall result in ineligibility. Credit shall not be issued if Customer is in breach of the Agreement, including an applicable Service Order, including breach for non-payment. Credit will only be issued if Customer has paid in full for Services covering the time period within which the Credit is requested. G-Core reserves the right to periodically change the measurement points and methodologies it uses. This SLA sets forth Customer’s sole and exclusive remedy for a Services Outage.

Acceptable Use Policy

 

Last updated: June 22, 2016

G-Core Labs S.A. (“G-Core”) and the Customer of G-Core (“Customer”) will comply with the following acceptable use policy (“G-Core AUP” or “AUP”) with respect to Customer’s use of the Service(s) provided by G-Core pursuant to the G-Core Master Services Agreement (“Agreement”) and any Service Order thereunder concluded between G-Core and Customer.

1. Definitions

Terms not defined within the G-Core AUP shall have the same definition as within the Agreement or, as the case may be, within the applicable Service Order for the respective Service(s) ordered by Customer. The following terms will have the respective meanings stated below for the purposes of this G-Core AUP:

  • Accompanying Person(s): Any person(s) other than Authorized Personnel accompanying Customer while at a G-Core Data Center.
  • Authorized Personnel: Any member of staff of G-Core, G-Core’s affiliates or subcontractors that is providing Escorted Access to Customer and/or who is otherwise in charge or entitled to give instructions to customers at the respective G-Core Data Center.
  • Cross Connect: A physical or wireless interconnection within a G-Core Data Center that (i) exits Customer’s cage or (ii) connects Customer to another G-Core customer.
  • Customer Cross Connect: A physical interconnection, including cables, connections, and other wiring, that (i) does not exit Customer’s cage; (ii) does not connect Customer to another G-Core customer; and (iii) interconnects (a) Customer’s Equipment or (b) G-Core-provided SDP Equipment in Customer’s cage with Customer’s Equipment.
  • Customer’s Equipment: All network, computer and other equipment provided, leased, owned or otherwise directly or indirectly controlled by Customer, Customer’s affiliates or subcontractors or Accompanying Persons (including wiring and connections between such equipment and Customer’s demarcation equipment) located at a G-Core Data Center, excluding Cross Connects and G-Core’s SDP Equipment.
  • Limit: For any power circuit, the lesser of (i) the power rating for such power circuit stated in the respective Service Order (80% of the rated capacity for power circuits in G-Core Data Centers in the Asia Pacific region) or (ii) the rated capacity pursuant to the applicable local codes.
  • Service Delivery Point Equipment or SDP Equipment: (1) patch panels, DSX panels for category 5 twisted pair, co-axial, single and multi-mode fiber, or (2) other appropriate (as reasonably determined by G-Core) point of demarcation for interconnection or power distribution equipment.
  • Ports: All wiring, connections, circuitry and utility ports at the SDP Equipment.
  • Redundant Power Circuit Pair: Two identical power circuits installed in the same cabinet or rack (neither of which are part of another pair of circuits in the same cabinet or rack) that are fed from diverse power busses and are powering only equipment with redundant power supplies capable of auto-failover.
  • Unordered Service: A G-Core service used by Customer without coverage by an Service Order for such service.
  • G-Core Data Center: The data centers of G-Core, G-Core’s affiliates or subconstractors in which Customer receives Services from G-Core pursuant to an Service Order.
  • G-Core Data Center Property: The real property on which, and the building in which, a G-Core Data Center is located.
  • G-Core Power Distribution System: Any and all Hendry panels (or other data center distribution panels that are compliant with G-Core specifications), locks, and power strips and electrical, utility, or power distribution systems and items that are installed by G-Core.

2. General

2.1 Customer is expected to use the Services in accordance with reasonable industry standards and shall be responsible for its use of the Services as well as the activities of its subscribers, end users or customers. Customer agrees and acknowledges that the violation of this G-Core AUP by Customer’s subscribers, end-users or customers shall be deemed to be a violation by Customer of the G-Core AUP. Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer. Nothing in this G-Core AUP obligates G-Core to monitor, edit or censor Customer’s use of the Services and/or such respective content.

2.2 G-Core makes no guarantee regarding, and assumes no liability for, the security and integrity of any data or information Customer transmits via the Services or over the Internet.

2.3 These G-Core AUP contain provisions on Customer’s obligations to G-Core as (i) the provider of Services, (ii) the owner of equipment, or (iii) otherwise responsible for any property, subject-matters, actions or omissions within the G-Core Data Centers. These obligations of Customer also extend to, as the case may be, G-Core’s affiliates or subcontractors that are responsible for the respective G-Core Data Center. However, G-Core shall serve as Customer’s point of contact for matters related to the G-Core Data Centers. All Services provided through an affiliate and/or subcontractor shall be subject to, and governed by, these G-Core AUP as if such Services were furnished directly by G-Core.

2.4 G-Core will use reasonable efforts to notify Customer of any violations of the G-Core AUP and to give Customer an opportunity to correct any violations before taking action, provided that G-Core shall reserve the right to suspend or block Services in cases where G-Core believes that G-Core’s property or the property of other parties, G-Core’s reputation or the integrity of its network is threatened by Customer’s violation of the G-Core AUP, in cases where Customer’s violation of this G-Core AUP involves illegal activities, or in cases where Customer is unavailable or there have been repeated violations of the G-Core AUP involving unsolicited commercial e-mail (“UCE”)/SPAM, mail relaying, alteration of IP address information, or denial of service attacks.

3. Limitations of use of the Services

Customer is not allowed to:

  • (a) Use any Service in a manner that violates any applicable law, statute, ordinance or regulation;
  • (b) Use any Service in a manner that infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
  • (c) Use any Service to commit any act that is defamatory, libelous, threatening, harassing or obscene;
  • (d) Use the Services to distribute unsolicited emails, chain letters, mailbombs or SPAM (including in particular unsolicited bulk e-mail (“UBE”) and/or UCE);
  • (e) Use the Service in a manner that interferes with, disrupts, or causes an excessive or disproportionate load on the infrastructure of G-Core, G-Core’s affiliates or subcontractors;
  • (f) Use the Services to commit, or attempt to commit, acts of non-authorized relays through any third party systems;
  • (g) Use the Services to forge electronic mail, (including the use of fraudulent “from addresses”) or to overburden a recipient or computer system by sending mass amounts of electronic mail or data with the intent to disable the recipient system or provoke a denial of service;
  • (h) Operate open relay/unsecure mail servers which provide SMTP functionality to third parties;
  • (i) Host web sites and services involved in SPAM advertisements;
  • (j) Use the Services to distribute viruses, Trojan horses, worms or other similar harmful or deleterious programming routines (including portscanning); and/or
  • (k) Use the Services in an effort to gain unauthorized access to, or attempt to interfere with or compromise the normal functioning, operation, or security of any network, system, account, computing facility, equipment, data, or information, or to use the Service to engage in any activities that may interfere with the ability of others to access or use the Service or the Internet.

4. Access to the Services

Physical access of Customer to the Services provided from G-Core Data Center(s) will be subject to the following rules:

  • (a) Physical access to the Licensed Space is restricted to Authorized Personnel and designated personnel of Customer. Authorized Personnel will accompany the designated personnel of Customer at all times during Customer’s access to the Licensed Space. Subject to the terms and conditions of the Agreement and the applicable Service Orders, Customer will have access to the respective Services, including in particular its Licensed Space for Colocation Services, twenty-four (24) hours per day, three hundred sixty-five (365) days per year. However, physical access to G-Core Data Centers is always subject to Customer’s prior written request to G-Core (i) according to the notice periods set forth in the applicable Service Order, or (ii) otherwise a minimum notice period of at least ten (10) Business Days. During physical access to any G-Core Data Center, Customer must comply (i) with all rules and procedures applicable to the G-Core Data Center, in particular any additional acceptable use policy of G-Core’s affiliates or subcontractors, and (ii) with all related orders and directions of the Authorized Personnel. This applies specifically also to any event of an emergency at any G-Core Data Center (e.g., fire, building evacuation, medical emergency, weather-related emergency, terrorist attack, etc.) or drill.
  • (b) The Authorized Personnel may require Customer to produce a government-issued photo ID (driver’s license or passport) for identity verification prior to entry into the G-Core Data Center.
  • (c) The Authorized Personnel may, at its discretion, require Customer to have a full-face photograph taken at the G-Core Data Center for purposes of identification.
  • (d) Every person who accesses a G-Core Data Center must use the then-in-use secure access means to enter and exit the G-Core Data Center.
  • (e) G-Core reserves the right to deny access to G-Core Data Centers to anyone who does not have a business purpose at a G-Core Data Center where access is requested.
  • (f) G-Core reserves the right to exclude or expel from the G-Core Data Center any person who, in G-Core’s judgment, is under the influence of alcohol or drugs or who, in G-Core’s judgment, poses a risk to persons or property in the G-Core Data Center.
  • (g) Upon Customer’s entry into a G-Core Data Center, the Authorized Personnel will accompany Customer inside the G-Core Data Center, and will (at its discretion) remain with Customer for the entire time that Customer is in the G-Core Data Center.
  • (h) G-Core may access Customer’s Licensed Space (i) during an emergency; (ii) to perform Scheduled Maintenance, Remote Hands Services or other services for Customer; (iii) as needed to perform those services necessary for the use of the G-Core Data Center by G-Core itself or some or all customers; or (iv) as otherwise agreed upon between the Parties.
  • (i) If the landlord or owner of a G-Core Data Center or a G-Core Data Center Property wishes to access, or permit others to access, Customer’s Licensed Space, G-Core, G-Core’s affiliates or subcontractors will accompany such persons during such visit, and Customer will, if practicable, receive advance notice from G-Core and have an opportunity to be present.
  • (j) Access by Customer to any shared work area (or any other common area where G-Core permits access by customers) may be restricted by G-Core at any time, including when another customer is in such area.
  • (k) Customer may not attempt to gain fraudulent access to a G-Core Data Center or to any G-Core website.

5. Conduct within G-Core Data Centers

5.1 Customer will

  • (a) comply with all rules, regulations and procedures in effect at the G-Core Data Center;
  • (b) comply with all applicable laws in its use of its Licensed Space and its activities in the G-Core Data Center, and comply with all signs posted at any time (including changes in such signs) at the G-Core Data Centers concerning security procedures relating to the G-Core Data Centers;
  • (c) for all purposes under the G-Core AUP, have full responsibility and liability for all acts or omissions of the designated personnel of Customer, including, as the case may be, any Accompanying Persons, and all such acts or omissions will be attributed to Customer for all purposes, including for the purposes of determining whether Customer has breached (i.e. failed to abide by) the G-Core AUP. Without limiting the foregoing, Customer is responsible and must ensure that Customer’s designated personnel, including, as the case may be, any Accompanying Persons, do not take any actions that Customer is prohibited from taking under the Policies;
  • (d) be responsible for and will use its Licensed Space only for configuring, providing, placing, installing, upgrading, adding, maintaining, repairing and operating Customer’s own technical equipment, or, as the case may be, Rented Hardware from G-Core, in a safe and lawful manner to the extent permitted by and subject to the terms of these G-Core AUP, the Agreement and any applicable Order From concluded thereunder;
  • (e) use the restrooms, any shared work area, and any other common spaces in the G-Core Data Centers and the parking areas outside of the G-Core Data Centers in accordance with the terms of the Agreement and any applicable Order From concluded thereunder, these G-Core AUP and any rules or signs then posted in or near such areas in the respective G-Core Data Center;
  • (f) maintain its Licensed Space in an orderly and clean manner and in good repair and condition (reasonable wear and tear only excepted);
  • (g) deposit litter in designated receptacles or in appropriate locations outside the G-Core Data Centers;
  • (h) behave in a courteous and professional manner within the G-Core Data Centers and the G-Core Data Center Properties;
  • (i) immediately notify G-Core of any damage or risk of damage to the G-Core Data Centers or the G-Core Data Center Properties, or damage to any equipment or property of any person in the G-Core Data Centers or the G-Core Data Center Properties;
  • (j) comply with all applicable property control procedures, which may include providing Authorized Personnel with a description and the serial numbers of items brought into an G-Core Data Center that are valued by the Authorized Personnel at more than EUR 1,000 (or equivalent local currency) and/or providing the Authorized Personnel with the name, contact number and signature of the person removing such items;
  • (k) if applicable, be responsible for maintaining the confidentiality of Customer’s account numbers and passwords for using G-Core’s customer care website and for restricting and granting access thereto. Notwithstanding anything to the contrary, Customer is responsible and liable for all activities that occur under Customer’s account (including all payments owed for any orders for Services that are placed under Customer’s account), regardless of whether such activities are conducted by Customer or any other third party, and regardless of whether such orders are authorized by Customer. G-Core does not have any obligation to verify that anyone using Customer’s account and password has Customer’s authorization.

5.2 Customer will ensure that it does not do any of the following:

  • (a) install, touch, access, tamper with, damage, adjust, repair, interfere with, or breach the security of, the Licensed Space of other customers of G-Core or the equipment, property or services of any other customers, vendors, contractors or other parties that license, sublicense, lease or sublease space or otherwise utilize space at the G-Core Data Center or the G-Core Data Center Properties, or provide services or products to those who do;
  • (b) alter, tamper with, damage, adjust, repair, interfere with, or breach the security of Customer’s Licensed Space, the G-Core Data Centers or the G-Core Data Center Properties (including, without limitation, the electrical and other building systems of the G-Core Data Centers or the G-Core Data Center Properties), or any equipment or property leased, licensed or owned by G-Core (including, without limitation, any Cross Connects and the G-Core Power Distribution System, which only G-Core will install, repair or alter);
  • (c) install or otherwise perform any Cross Connects;
  • (d) affix or maintain labels to any Ports or any SDP Equipment that connects Customer’s Equipment to equipment belonging to other customers (G-Core will affix and maintain such labels, which will contain information as determined by G-Core, including circuit identification and other information needed to identify each G-Core-provided Port);
  • (e) encumber or obstruct the pathways, driveways, yards, entrances, hallways, stairs or any common areas in or around the G-Core Data Centers or the G-Core Data Center Properties;
  • (f) unless G-Core expressly consents, use any common areas at the G-Core Data Centers or the G-Core Data Center Properties (other than a shared work area where G-Core permits customers to repair their equipment) for any purpose other than access and exit to and from its Licensed Space;
  • (g) use a shared work area that G-Core permits customers to use for any purpose other than to repair their equipment;
  • (h) use the Services to compete with any services offered by G-Core, G-Core’s affiliates or G-Core’s subcontractors who operate, as the case may be, the specific G-Core Data Center;
  • (i) create any nuisances at the G-Core Data Centers or the G-Core Data Center Properties;
  • (j) manufacture, generate, treat, transport, dispose of, release, discharge, or store on, under or about the G-Core Data Centers, the G-Core Data Center Properties or any surrounding properties, any hazardous materials;
  • (k) eat, drink or use tobacco products within the G-Core Data Centers except within areas designated for such purposes;
  • (l) bring recording equipment in, or take photographs of (whether by use of a camera, video camera, cell phone, wireless handset or otherwise), any part of the G-Core Data Centers;
  • (m) place furniture in its Licensed Space except as permitted by the G-Core Data Center site manager in his/her reasonable discretion. In the event that Customer places furniture in its Licensed Space with the necessary consent from the G-Core Data Center site manager,       G-Core may at any time thereafter notify Customer that the furniture must be removed within three (3) calendar days following such notice. If Customer fails to remove the furniture within that period, G-Core may remove the furniture, charge Customer Remote Hands Service rates for doing so, and store the furniture at Customer’s expense;
  • (n) install any surveillance cameras or other surveillance equipment without G-Core’s prior consent. G-Core reserves the right to require Customer to remove or relocate any surveillance cameras or surveillance equipment that G-Core deems to threaten or impede the security of the G-Core Data Center (including the security of other G-Core customers);
  • (o) block any exit route or aisle way or create a fire hazard;
  • (p) use VRLA (valve-regulated lead-acid) batteries within the G-Core Data Centers, unless the batteries are a manufacturer-installed and integrated part of equipment that is an express exception to this rule according the applicable G-Core Data Center rules;
  • (q) use circuit splitters on any G-Core-provided power circuit;
  • (r) use UPS (uninterrupted power supply) systems that are not provided by G-Core;
  • (s) use 48v DC rectifiers that are not provided by G-Core without obtaining advance approval from G-Core;
  • (t) connect a power circuit to a cabinet other than the cabinet specified by G-Core for such power circuit;
  • (u) consume power beyond the Limit of any power circuit or Redundant Power Circuit Pair.

5.3 Redundant Power Circuit Policy: A power circuit is a redundant power circuit only if at all times it meets both of the following conditions: (a) It is part of a Redundant Power Circuit Pair, and (b) The aggregate draw of such Redundant Power Circuit Pair does not exceed the Limit of one (1) of the power circuits in the Redundant Power Circuit Pair. Accordingly, if a power circuit is originally a redundant power circuit but subsequently fails to meet conditions a and b simultaneously, such power circuit will thereafter be deemed a primary power circuit that will be treated as an Unordered Service.

5.4 Use of Unordered Services: In the event that Customer uses an Unordered Service, G-Core will so notify Customer (which notification may be delivered only by e-mail or regular mail as indicated in the relevant Service Order, notwithstanding anything to the contrary in the Agreement) and provide Customer with an Service Order which lists the Unordered Service. If Customer does not execute such Service Order and return it to G-Core within five (5) Business Days of the date of such notification, in addition to all other remedies available to G-Core, G-Core may charge Customer for such Unordered Service at its then current list price commencing on the date Customer began using the Unordered Service. Use of a power circuit beyond its Limit and use of a Redundant Power Circuit Pair beyond the Limit of one of the circuits in such Redundant Power Circuit Pair shall be considered an Unordered Service.

6. Handling of Customer Equipment

6.1 Customer will ensure that:

  • (a) all Customer’s Equipment will be installed, operated, maintained and repaired in compliance with all applicable laws and manufacturer specifications and requirements;
  • (b) the installation and use of Customer’s Equipment complies with applicable safety codes and product safety agency listings;
  • (c) all of the cables and wiring (including Customer Cross Connects and Customer power cords) in its Licensed Space, other than any Cross Connects or G-Core’s SDP Equipment, are neatly wrapped and tied together (if Customer fails to do so, G-Core may at its sole option neatly wrap and tie such wires and cables, and G-Core may charge Customer Remote Hands Service rates for doing so);
  • (d) Customer’s Equipment is not stacked or resting on any other equipment;
  • (e) all of Customer’s Equipment is securely fixed onto a cabinet or rack in a manner reasonably satisfactory to G-Core. If Customer’s Equipment is too large or heavy for a rack or cabinet, including but not limited to large servers, G-Core may affix such equipment directly to the floor, and G-Core may charge Customer Remote Hands Service rates for doing so;
  • (f) appropriate air management products (including, but not limited to, blanking plates, grommets and brushes) are installed in cabinets to minimize any potential mixing of cold and hot air between a cabinet and any source of cooling to that cabinet and, where these have not been installed, G-Core may install or replace (as appropriate) such air management products;
  • (g) where practical, the heaviest and/or hottest (when in operation) of Customer’s Equipment is installed in the lower sections of a cabinet to make the most effective use of the supplied cooling system;
  • (h) where practical, cables and wiring (including Customer Cross Connects and Customer power cords) should only run from Customer’s Equipment out of the back of the cabinet or rack. If this is unavoidable, Customer will ensure that appropriate air management products are installed to make the most effective use of the supplied cooling system.

6.2 Customer may install and maintain Customer Cross Connects. G-Core has no obligation to install, maintain or repair any Customer Cross Connects.

6.3 G-Core may require Customer to remove from any G-Core Data Center Customer’s Equipment that, in G-Core’s sole discretion, (i) causes a threat to safety (including any risk of fire or other hazard) to the operations of the G-Core Data Center or the G-Core Data Center Property, or (ii) unreasonably interferes with the operations of G-Core, another customer or any other person or entity that is licensing, sublicensing, leasing or subleasing space or otherwise utilizing any portion of the G-Core Data Center or the G-Core Data Center Property.

6.4 If Customer wants to identify Customer’s Equipment or its Licensed Space, the means of identification will be subject to G-Core’s prior approval before Customer uses such means of identification. G-Core will not identify the location of Customer’s Equipment in the G-Core Data Center, and G-Core will not be responsible for labeling Ports except that G-Core is responsible for connecting Customer’s Equipment to equipment belonging to other G-Core customers at an G-Core Data Center.

6.5 G-Core will not touch, maintain, use, upgrade, repair or operate Customer’s Equipment, except in an emergency, or where explicitly or implicitly authorized by Customer’s use of Remote Hands Service, or as otherwise agreed in the Agreement, any Service Order thereunder or these G-Core AUP.

6.6 Customer is solely responsible for any loss or theft of or damage to Customer’s Equipment left unattended outside of the Licensed Space in a shared cage.

6.7 G-Core is not responsible for any electronic interference that may occur with respect to Customer’s use of wireless communications equipment.

7. Shipping Policy

7.1 Customer will comply with the shipping and receiving policies in effect at the G-Core Data Center.

7.2 Customer will ensure that all shipments (including the boxes) are clearly labeled with the company name and/or identifier of Customer (as required by the G-Core Data Center) and with a reference to G-Core  and the licensed space. Customer will not list G-Core as a recipient of any shipment or identify G-Core as a recipient to any shipping carrier. Unidentified packages or packages that list G-Core as the recipient may be rejected.

7.3 G-Core reserves the right to visually and/or physically inspect any and all shipments to or from the G-Core Data Centers when such shipments arrive at the shipping/receiving area. Shipments containing liquids, combustibles and any hazardous materials are prohibited, and, to the extent G-Core is so aware of the contents of such shipments, will not be accepted at any time.

7.4 At the time of G-Core’s inspection of any shipments to or from the G-Core Data Centers, G-Core may record serial numbers for Customer’s Equipment. Accordingly, when packing Customer’s Equipment for shipping, Customer should be aware that G-Core personnel may need access to the serial numbers on Customer’s Equipment being shipped, prior to the boxes being sealed.

7.5 Customer is responsible for moving its shipments from the shipping/receiving area to its Licensed Space and from its Licensed Space to the shipping/receiving area, and Customer’s failure to do so in accordance with the shipping/receiving policies applicable to the G-Core Data Center may result in charges as set forth in such policies.

7.6 Unless prior arrangements are made with G-Core by Customer in accordance with the shipping/receiving policies applicable to the G-Core Data Center, G-Core reserves the right to ship the shipment back to the “shipped from” address, at Customer’s expense.

7.7 G-Core is not responsible or liable for any missing or damage to Customer’s Equipment which may occur during the packaging and/or shipment of such equipment.

7.8 Customer is responsible for all duties, charges, fees, taxes and customs requirements associated with international shipments.

8. Network System Numbers

8.1 G-Core strongly encourages Customer to have its own autonomous system number as designated by the American Registry of Internet Numbers, the Réseaux IP Européens (RIPE), or the Asia Pacific Network Information Centre or their successors.

8.2 Customer will be responsible for obtaining telecommunications services as needed from the carrier of its choice. G-Core will not be responsible for providing or installing such services except as otherwise agreed upon in any Service Order.

Service Terms

Last updated: June 22, 2016

G-Core Labs S.A. (“G-Core”) and the Customer of G-Core (“Customer”) will comply with the following G-Core Service Terms (“Service Terms”) with respect to Customer’s use of the Service(s) provided by G-Core pursuant to the G-Core Master Services Agreement (“Agreement”) and any Service Order thereunder concluded between G-Core and Customer.

The G-Core Service Terms consist of:

  • Colocation Service Terms
  • Connectivity Service Terms
  • Hardware Rental Service Terms.

The G-Core Service Terms are part of the G-Core Master Services Agreement (“Agreement”). Terms not defined within these Service Terms shall have the same definition as within the Agreement.

I. Colocation Service Terms

1. Scope of Colocation Services 

1.1 G-Core provides the Customer with space, facilities and services necessary to install and operate Customer’s equipment and/or equipment of G-Core rented by Customer at the data center(s) of G-Core, G-Core’s affiliates or G-Core’s subcontractors, including security control, environmental control, connectivity and power supply (including back-up power) (“Colocation Services”).

1.2 A Service Order will usually set forth the following: (a) the Colocation Services to be provided, (b) any Specifications pertaining to such Colocation Services, including the location where the Colocation Services will be provided at and the areas within that location (together the “Licensed Space”), (c) the term for the Colocation Services, (d) the Fees for the Colocation Services and (e) any other terms mutually agreed upon by the Parties.

1.3 G-Core shall provide the Colocation Services in accordance with the Service Levels set out in the SLA, available at http://gcore.lu/legal.

1.4 Physical access to the Licensed Space is restricted to G-Core personnel and designated personnel of Customer. G-Core personnel will accompany and supervise the designated personnel of Customer at all times during access to the Licensed Space (“Escorted Access”).         G-Core will provide Escorted Access to Customer only for the purpose of removing Customer’s equipment from the Licensed Space and/or for testing, resetting, modifying and/or configuring the Customer’s equipment and/or equipment of G-Core rented by Customer located within the Licensed Space. During Escorted Access, Customer must comply (i) with all rules and procedures applicable to the Licensed Space, in particular any applicable acceptable use policy, and (ii) with all related orders and directions of G-Core’s personnel. Escorted Access will be charged with G-Core’s then current hourly rates (depending on the level of technical qualification of G-Core’s personnel to accompany and supervise Customer) and has to be requested by Customer at least three (3) Business Days in advance. Instead of G-Core personnel, G-Core may also use personnel of G-Core’s subcontractors to provide Escorted Access to Customer and may charge G-Core’s respective expenses to Customer.

1.5 G-Core will provide Colocation Services only up to the relevant location at which G-Core’s responsibility to provide equipment and Services ends and where Customer’s responsibilities begin (“Service Delivery Point”), as identified within the Specifications, and shall not be responsible for providing any Colocation Services on Customer’s side of the Service Delivery Point or for providing in-house cabling or conduits unless agreed otherwise in the Service Order.

1.6 Unless agreed otherwise in the Service Order, Customer is solely responsible for providing and maintaining all necessary electronic communications required to linking the Colocation Services, including wiring, communication line access and networking devices.

1.7 The Colocation Service shall be provided subject to G-Core’s Acceptable Use Policy, available at http://gcore.lu/legal. Customer agrees to use the Colocation Services only in compliance with        G-Core’s Acceptable Use Policy.

1.8 The Parties agree that if G-Core, in its sole discretion, determines that an emergency action is necessary to protect G-Core’s network, G-Core may block any path over G-Core’s network used by Customer.

1.9 While Customer has no right to use the Colocation Services after the Service Order expires or terminates, if G-Core permits Customer to do so in its sole discretion, Customer will remain bound by the terms of the Agreement and the Service Terms, including, without limitation, all payment obligations and such continued use may be terminated by G-Core immediately upon notice.

2. Delay of Colocation Services

2.1 Any tentative commencement date for provision of the Colocation Services (e.g. the Estimated Delivery Date) or lead-time provided by G-Core to Customer which is not specified as “Committed Commencement Date” by G-Core shall be deemed a target date for commencement of the Colocation Service and shall not be binding on or create any liability for G-Core.

2.2 If a Committed Commencement Date is not met by G-Core, and such delay is not due to Customer’s acts or omissions, the failure of a third-party to deliver or provide services, or a Force Majeure event, Customer is entitled to claim credits at the amount of one percent (1%) of the monthly Fee applicable to the respectively delayed Colocation Service for each Business Day beyond the Committed Commencement Date, which shall be Customer’s sole and exclusive remedy in connection with the delay (“Delay Credits”). Delay Credits will be issued as a credit against the Fees applicable to the respectively delayed Colocation Service. All requests for Delay Credits must (a) be sent by email to G-Core at its registered address under the Service Order, (b) include Customer’s name, sufficient detail pertaining to the alleged delay to permit G-Core to investigate (e.g. dates, duration, etc.) and (c) be received by G-Core within ten Business Days after the end of the respective delay. The maximum amount of Delay Credits owed to Customer for the delay of a particular Colocation Service is limited to ten percent (10%) of the monthly Fee applicable to the respectively delayed Colocation Service.

2.3 If provision of a Colocation Service is delayed more than thirty (30) calendar days following a Committed Commencement Date (as amended) and such delay is not due to Customer’s acts or omissions, the failure of a third-party to deliver or provide services, or a Force Majeure event, Customer shall be entitled to terminate the Service Order by providing written notice to G-Core, in lieu of Delay Credits and without any termination charge applying. Such right of termination shall be Customer’s sole and exclusive remedy in the event that G-Core fails to provide Colocation Services within thirty (30) calendar days of an applicable Committed Commencement Date and will expire if not exercised prior to the date on which G-Core provides the respective Colocation Service to Customer.

3. Service Delivery

The ready for service date (“RFS Date”) for a Colocation Service shall be the date (a) on which G-Core sends a notification via email to Customer, confirming that the respective Licensed Space is ready for Customer’s use as agreed in the applicable Service Order, or (b) on which Customer starts using the Colocation Service without such notification by G-Core, whichever (a) or (b) is earlier.

4. Defects

4.1 A “Defect” occurs only in case a Colocation Service covered by a Service Order does not operate according to the applicable Service Levels.

4.2 In case of Defects, the submission of Defect Reports and, as applicable, the claim of Service Level Credits, both as defined in the SLA (available at http://gcore.lu/legal) shall be Customer’s sole and exclusive remedy.

4.3 G-Core is not obliged to remedy Defects caused without negligence by G-Core (each, an “Excluded Cause”), in particular in case the Defect was caused by: (a) third-party equipment or software not provided by G-Core as part of the Colocation Services, (b) Customer’s equipment or software, (c) any use of the Colocation Services other than agreed with G-Core, in particular any use in violation of G-Core’s Acceptable Use Policy, (d) the Customer’s actions or interventions, (e) any third party’s actions or interventions (excluding actions or interventions by G-Core’s affiliates and/or G-Core’s subcontractors), (f) an event of Force Majeure, and/or (g) the suspension, interruption or termination of Colocation Services in accordance with the Agreement. Further to this, interruptions to the Colocation Services in part or as a whole due to Scheduled Maintenance as defined in Section 5 of these Service Terms are not considered Defects.

4.4 Customer acknowledges that Customer shall reimburse G-Core for any Service provided by         G-Core if G-Core was not obliged to provide this Service due to an Excluded Cause. In particular, G-Core reserves the right to charge Customer for resources devoted by G-Core to the receipt, investigation, troubleshooting and/or clearance of Defects reported by Customer that are not attributable to G-Core (e.g., no Defect is found or the reported Defect is caused by an Excluded Cause). If a Defect reported by Customer is found not to be attributable to G-Core, then Customer shall compensate G-Core at G-Core’s then current hourly rates (depending on the level of technical qualification of G-Core’s personnel that investigated the alleged Defect) and for any expenses G-Core may have incurred (e.g. for using G-Core’s affiliates and/or G-Core’s subcontractors) when investigating and/or remedying the alleged Defect. G-Core will invoice these charges for the Defect support and Customer shall make payment in accordance with the terms of the Agreement.

4.5 Except as otherwise set forth in this Section 4, G-Core does not make and disclaims (i) all warranties that the Colocation Services will be uninterrupted, defect-free or completely secure, and (ii) the implied warranties of merchantability and fitness for a particular purpose. All Colocation Services are provided on an “as is” basis and Customer’s use of the Colocation Services is solely at its own risk. Section 10 of the Agreement remains unaffected.

5. Scheduled Maintenance 

5.1 G-Core or any of its subcontractors will from time to time carry out routine maintenance or improvements to the network, facilities, network equipment or other technical equipment required for the provision of the Colocation Services (“Scheduled Maintenance”). Scheduled Maintenance may cause interruptions to the Colocation Services in part or as a whole.

5.2 G-Core may carry out Scheduled Maintenance which is unlikely to affect the Colocation Services at its own discretion and without notice. Insofar as Scheduled Maintenance will likely cause interruptions to the Colocation Services in part or as a whole or any other problems for the Customer, G-Core will notify Customer at least seven (7) Business Days in advance or with as much advance notice as reasonably possible in the event that G-Core receives a maintenance notification from an underlying provider. The notification will include time and date, duration and description of any such work. Notwithstanding the foregoing, if G-Core reasonably believes that timely providing such notice would result in an unacceptable risk of a Defect, damage or loss of integrity to the G-Core network, G-Core may perform such work and may serve notice to Customer of the need to perform emergency maintenance on the network with a notice period reasonable under the given the circumstances.

6. Removal of Customer’s Property

Customer will remove all of Customer’s property, in particular any of Customer’s equipment, from the Licensed Space on or before the expiry or termination of the Service Order. Unless G-Core otherwise agrees in writing, failure to remove Customer’s property within seven (7) calendar days from the expiry or termination of the Service Order or within twenty (20) calendar days if the Service Order is terminated due to G-Core’s material breach, will be deemed an abandonment of Customer’s property and G-Core will be entitled to pursue all available legal remedies, including, without limitation and at Customer’s risk and costs, (i) immediately removing Customer’s property and storing it at Customer’s costs at another location of G-Core’s reasonable choice, (ii) shipping Customer’s property to Customer, or (iii) upon thirty calendar days prior written notice to Customer liquidating Customer’s property and retaining the proceeds.

7. Remote Hands Services

7.1 With respect to any hardware and/or hardware components and/or any other integral or ancillary technical equipment (including any storage media) and/or Colocation Services and/or Connectivity Services which are located at and/or provided at the Licensed Space of Customer, G-Core will provide upon request by Customer the following Services (together “Remote Hands Services”): (a) the installation and setup of new equipment for operational use by Customer, including the installation of software, drivers or firmware necessary for operational use of such new equipment, (b) the modification, (re-)configuration, resetting and/or power cycling of equipment, Colocation Services and/or Connectivity Services, including respective cabling and/or connections, and (c) exchanging removable storage media (e.g. hard drives etc.).

7.2 During the Service Times and via the means of communications as set forth in the Service Service Order, Customer may contact G-Core to issue a request for particular Remote Hands Services (each a “Service Request”). A Service Request shall include (a) Customer name and on-site technical contact information (telephone number, email address and hours of operation of the responsible Customer contact), (b) the specific date and time at which Customer wants              G-Core to perform the requested Remote Hands Service, (c) any available serial numbers of the installed and/or new components to be installed, removed or otherwise modified or (re-)configured during the requested Remote Hands Service, and (d) a reasonably detailed description of the requested Remote Hands Service, together with any supporting information that Customer’s engineers believe will assist G-Core in its fulfillment of the Service Request.

7.3 Following G-Core’s receipt of the Service Request, G-Core will commence Remote Hands Services by analyzing the Service Request and providing Customer with the estimated time frame to complete the necessary Remote Hands Services. Any date and time specified by Customer for G-Core to perform the requested Remote Hands Service shall only be an Estimated Delivery Date.

7.4 Customer acknowledges that the timely and successful fulfillment of a Services Request requires good faith cooperation and frequent communication between the Parties as well as precise technical directions and orders by Customer. Remote Hands Services will be performed by              G-Core solely as instructed by Customer. Further, Customer will furnish all information reasonably requested by G-Core to provide the respective Remote Hands Service, including provision of access to all relevant technical information, competent and qualified Customer personnel, facilities, equipment and software that G-Core or its personnel or subcontractors may reasonably request. Upon Customer’s request, G-Core will keep Customer informed on the progress regarding any Service Request.

7.5 G-Core reserves the right to reject a Service Request submitted by Customer, in particular if, in G-Core’s sole judgment, (a) G-Core lacks sufficient facilities, material, equipment, capacity or regulatory authority to fulfill the Service Request, (b) the requested Remote Hands Service would endanger technical equipment of G-Core or any third party, and/or (b) Customer does not provide sufficient information in accordance with Section 7.4 above for G-Core to fulfill the respective Service Request.

7.6 After completion of a Service Request, G-Core shall notify Customer thereof via email. The date of that email shall be the RFS Date with respect to the Remote Hands Services provided when processing that Service Request.

7.7 G-Core will only provide Remote Hands Services as instructed by Customer. G-Core therefore does not make and disclaims (i) all warranties that the Remote Hands Services will be performed defect-free or completely secure, and (ii) the implied warranties of merchantability and fitness for a particular purpose. All Remote Hands Services are provided on an “as is” basis and Customer’s use of the Remote Hands Services is solely at its own risk. Section 10 of the Agreement remains unaffected.

II. Connectivity Service Terms

8. Scope of Connectivity Services

8.1 These Service Terms set forth the terms and conditions for the provision of IP connectivity by G-Core to Customer (“Connectivity Services”).

8.2 A Service Order will usually set forth the following: (a) the Connectivity Services to be provided, (b) any Specifications pertaining to such Connectivity Services, including the location where the Connectivity Services will be provided (“Service Location”), (c) the term for the Connectivity Services, (d) the Fees for the Connectivity Services and (e) any other terms mutually agreed upon by the Parties.

8.3 G-Core shall provide the Connectivity Services in accordance with the Service Levels set out in the SLA, available at http://gcore.lu/legal.

8.4 Insofar as the Service Location is situated on the premises of G-Core, G-Core’s affiliate(s) or               G-Core’s subcontractor(s), physical access to the Service Location is restricted to G-Core  personnel and designated personnel of Customer. G-Core personnel will accompany and supervise the designated personnel of Customer at all times during access to the Service Location (“Escorted Access”). G-Core will provide Escorted Access to Customer only for the purpose of removing Customer’s equipment from the Service Location and/or for modifying and/or configuring Customer’s equipment and/or equipment of G-Core rented by Customer located within the Service Location. During Escorted Access, Customer must comply (i) with all rules and procedures applicable to the Service Location, in particular any applicable acceptable use policy, and (ii) with all related orders and directions of G-Core’s personnel. Escorted Access will be charged with G-Core’s then current hourly rates (depending on the level of technical qualification of G-Core ’s personnel to accompany and supervise Customer) and has to be requested by Customer at least three (3) Business Days in advance. Instead of G-Core personnel, G-Core may also use personnel of G-Core’s subcontractors to provide Escorted Access to Customer and may charge G-Core’s respective expenses to Customer.

8.5 G-Core will provide Connectivity Services only up to the relevant location at which G-Core’s responsibility to provide Connectivity Services ends and where Customer’s responsibilities begin (“Service Delivery Point”), as identified within the Specifications, and shall not be responsible for providing any Connectivity Services on Customer’s side of the Service Delivery Point or for providing in-house cabling or conduits unless agreed otherwise in the Service Order.

8.6 Unless agreed otherwise in the Service Order, Customer is solely responsible for providing and maintaining all necessary electronic communications required to linking the Connectivity Services, including wiring, communication line access and networking device.

8.7 The Connectivity Service shall be provided subject to G-Core’s Acceptable Use Policy, which shall be provided to Customer before signing the Agreement, and thereafter upon request. Customer agrees to use the Connectivity Services only in compliance with G-Core’s Acceptable Use Policy.

8.8 The Parties agree that if G-Core, in its sole discretion, determines that an emergency action is necessary to protect G-Core’s network, G-Core may block any path over G-Core’s network used by Customer.

8.9 While Customer has no right to use the Connectivity Services after the Service Order expires or terminates, if G-Core permits Customer to do so in its sole discretion, Customer will remain bound by the terms of the Agreement and the Service Terms, including, without limitation, all payment obligations and such continued use may be terminated by G-Core immediately upon notice.

9. Delay of Connectivity Services 

9.1 Any tentative commencement date for provision of the Connectivity Services (e.g. the Estimated Delivery Date) or lead-time provided by G-Core  to Customer which is not specified as “Committed Commencement Date” by G-Core  shall be deemed a target date for commencement of the Connectivity Service and shall not be binding on or create any liability for G-Core.

9.2 If a Committed Commencement Date is not met by G-Core, and such delay is not due to Customer’s acts or omissions (in particular any breach of the Customer’s obligations under Section 3 of the Agreement), the failure of a third-party to deliver or provide services, or a Force Majeure event, Customer is entitled to claim credits at the amount of one percent (1%) of the monthly Fee applicable to the respectively delayed Connectivity Service for each Business Day beyond the Committed Commencement Date, which shall be Customer’s sole and exclusive remedy in connection with the delay (“Delay Credits”). Delay Credits will be issued as a credit against the Fees applicable to the respectively delayed Connectivity Service. All requests for Delay Credits must (a) be sent by email to G-Core  at its registered address under the Service Order, (b) include Customer’s name, sufficient detail pertaining to the alleged delay to permit G-Core  to investigate (e.g. dates, duration, etc.) and (c) be received by G-Core  within ten Business Days after the end of the respective delay. The maximum amount of Delay Credits owed to Customer for the delay of a particular Connectivity Service is limited to ten percent (10%) of the monthly Fee applicable to the respectively delayed Connectivity Service.

9.3 If provision of a Connectivity Service is delayed more than thirty (30) calendar days following a Committed Commencement Date (as amended) and such delay is not due to Customer’s acts or omissions (in particular any breach of the Customer’s obligations under Section 3 of the Agreement), the failure of a third-party to deliver or provide services, or a Force Majeure event, Customer shall be entitled to terminate this Service Order by providing written notice to G-Core, in lieu of Delay Credits and without any termination charge applying. Such right of termination shall be Customer’s sole and exclusive remedy in the event that G-Core fails to provide Connectivity Services within thirty (30) calendar days of an applicable Committed Commencement Date and will expire if not exercised prior to the date on which G-Core  provides the respective Connectivity Service to Customer.

10. Service Delivery 

The ready for service date (“RFS Date”) for a Connectivity Service shall be the date (a) on which G-Core sends a notification via email to Customer, confirming that the respective Connectivity Service is ready for Customer’s use as agreed in the applicable Service Order, or (b) on which Customer starts using the Connectivity Service without such notification by G-Core, whichever (a) or (b) is earlier.

11. Defects 

11.1 A “Defect” occurs only in case a Connectivity Service covered by the Service Order does not operate according to the applicable Service Levels.

11.2 In case of Defects, the submission of Defect Reports and, as applicable, the claim of Service Level Credits, shall be Customer’s sole and exclusive remedy.

11.3 G-Core  is not obliged to remedy Defects caused without negligence by G-Core  (each, an “Excluded Cause”), in particular in case the Defect was caused by: (a) third-party equipment or software not provided by G-Core  as part of the Connectivity Services, (b) Customer’s equipment or software, (c) use of the Connectivity Services other than agreed with G-Core, in particular any use in violation of G-Core ’s Acceptable Use Policy, (d) insofar as applicable, environmental conditions at the Customer site such as power supply, climate or housing, (e) the Customer’s actions or interventions, (f) any third party’s actions or interventions (excluding actions or interventions by G-Core ’s affiliates and/or G-Core ’s subcontractors), (g) an event of Force Majeure, and/or (h) the suspension, interruption or termination of Connectivity Services in accordance with the Agreement. Further to this, interruptions to the Connectivity Service in part or as a whole due to Scheduled Maintenance as defined in Section 12 of these Service Terms are not considered Defects.

11.4 Customer acknowledges that Customer shall reimburse G-Core for any Services provided by G-Core if G-Core was not obliged to provide this Service due to an Excluded Cause. In particular, G-Core  reserves the right to charge Customer for resources devoted by G-Core  to the receipt, investigation, troubleshooting and/or clearance of Defects reported by Customer that are not attributable to G-Core  (e.g., no Defect is found or the reported Defect is caused by an Excluded Cause). If a Defect reported by Customer is found not to be attributable to G-Core, then Customer shall compensate G-Core at G-Core’s then current hourly rates (depending on the level of technical qualification of G-Core’s personnel that investigated the alleged Defect) and for any expenses G-Core may have incurred (e.g. for using G-Core’s affiliates and/or G-Core’s subcontractors) when investigating and/or remedying the alleged Defect. G-Core will invoice these charges for the Defect support and Customer shall make payment in accordance with the terms of the Agreement.

11.5 Except as otherwise set forth in this Section 11, G-Core does not make and disclaims (i) all warranties that the Connectivity Services will be uninterrupted, defect-free or completely secure, and (ii) the implied warranties of merchantability and fitness for a particular purpose. All Connectivity Services are provided on an “as is” basis and Customer’s use of the Connectivity Services is solely at its own risk. Section 10 of the Agreement remains unaffected.

12. Scheduled Maintenance

12.1 G-Core or any of its subcontractors will from time to time carry out routine maintenance or improvements to the network, facilities, network equipment or other technical equipment required for the provision of the Connectivity Services (“Scheduled Maintenance”). Scheduled Maintenance may cause interruptions to the Connectivity Service in part or as a whole.

12.2 G-Core may carry out Scheduled Maintenance which is unlikely to affect the Connectivity Services at its own discretion and without notice. Insofar as Scheduled Maintenance will likely cause interruptions to the Connectivity Services in part or as a whole or any other problems for the Customer, G-Core will notify Customer of any Scheduled Maintenance expected to cause a service outage or other problems for the Customer at least seven (7) Business Days in advance or with as much advance notice as reasonably possible in the event that G-Core receives a maintenance notification from an underlying provider. The notification will include time and date, duration and description of any such work. Notwithstanding the foregoing, if G-Core reasonably believes that timely providing such notice would result in an unacceptable risk of a Defect, damage or loss of integrity to the G-Core network, G-Core may perform such work and may serve notice to Customer of the need to perform emergency maintenance on the network with a notice period reasonable under the given the circumstances.

III. Hardware Rental Service Terms 

13. Scope of Hardware Rental

13.1 These Service Terms set forth the terms and conditions for the rental of hardware and/or hardware components and/or other integral or ancillary technical equipment by Customer from         G-Core (“Hardware Rental”).

13.2 The Service Order will usually set forth the following: (a) the equipment which G-Core will rent to Customer (“Rented Hardware”), (b) the Fees (i.e. the rental fees and any additional costs) for the Hardware Rental, (c) the destination at which the Rented Hardware shall be set up and used (“Setup Location”), (d) the term of the Service Order, and (e) any other terms mutually agreed upon by the Parties.

13.3 Insofar as the Setup Location is situated on the premises of G-Core, G-Core’s affiliate(s) or               G-Core’s subcontractor(s), physical access to the Setup Location is restricted to G-Core personnel and designated personnel of Customer. G-Core personnel will accompany the designated personnel of Customer at all times during access to the Setup Location (“Escorted Access”). G-Core will provide Escorted Access to Customer only for the purpose of testing, resetting, modifying and/or configuring the Rented Hardware. During Escorted Access, Customer must comply (i) with all rules and procedures applicable to the Setup Location, in particular any applicable acceptable use policy, and (ii) with all related orders and directions of G-Core’s personnel. Escorted Access are subject to an additional agreement of the Parties and will be charged with G-Core’s then current hourly rates (depending on the level of technical qualification of G-Core’s personnel to accompany and supervise Customer) and has to be requested by Customer at least three (3) Business Days in advance. Instead of G-Core personnel, G-Core may also use personnel of G-Core’s subcontractors to provide Escorted Access to Customer.

13.4 The Parties agree that if G-Core, in its sole discretion, determines that insofar as an emergency action is necessary to protect G-Core’s network, G-Core may block any path over the Rented Hardware.

13.5 Unless agreed otherwise in the Service Order, Customer is solely responsible (i) for procuring, providing and maintaining, at its own expense, the space, the level of power (including the necessary grounding as is required for the installation), heating and air conditioning, and humidity levels necessary to maintain the proper environment for any Rented Hardware, and (ii) for providing and maintaining all necessary electronic communications required to linking the Rented Hardware, including wiring, communication line access and networking devices.

13.6 While Customer has no right to use the Rented Hardware after the Service Order expires or terminates, if G-Core permits Customer to do so in its sole discretion, Customer will remain bound by the terms of the Agreement and the Service Terms, including, without limitation, all payment obligations and such continued use may be terminated by G-Core immediately upon notice.

14. Delay of Hardware Rental

14.1 Any tentative commencement date for the Hardware Rental (e.g. the Requested Delivery Date) or lead-time provided by G-Core to Customer which is not specified as “Committed Commencement Date” by G-Core shall be deemed a target date for commencement of the Hardware Rental and shall not be binding on or create any liability for G-Core.

15. Acceptance

15.1 The date on which the Rented Hardware has been delivered to the Setup Location (and, as the case may be, has been set up as ready for use by G-Core) shall be the ready for acceptance date (“RFA Date”). In case the Setup Location is located at premises of G-Core or G-Core’s affiliates or G-Core’s subcontractors, G-Core will send a notification via email to the Customer contact designated in the relevant Service Order confirming that the Customer may now use the Rented Hardware. The ready for service date (“RFS Date”) for the Hardware Rental provided by G-Core shall be the earlier of (a) two (2) calendar days after the RFA Date, (b) the date on which Customer notifies G-Core of its acceptance of the Hardware Rental, or (c) the date on which Customer begins using the Rented Hardware. Unless Customer notifies G-Core in writing within such two (2) calendar day period that the Rented Hardware is not in compliance with the Specifications, Customer shall be deemed to have accepted the Rented Hardware.

15.2 In case of rejection of acceptance, Customer has to detail in its notification in which way the relevant Rented Hardware has failed to meet the acceptance criteria. G-Core shall then rectify the problem and notify Customer of a new RFA Date. Section 15.1 above applies accordingly.

15.3 In case Customer rejects acceptance only regarding parts of the Hardware Rental and partially accepts the remaining Hardware Rental, Fees for the Hardware Rental shall be reduced on a pro-rata basis to apply only to the Hardware Rental accepted by Customer.

15.4 Customer may not reject acceptance by reason of minor cases of non-compliance of a Service with the applicable acceptance criteria.

16. Retention of title 

16.1 G-Core always retains title to the entire Rented Hardware, unless expressly agreed otherwise in the Service Order.

16.2 Customer is obliged to handle the Rented Hardware with care and only within the scope of the Service Order.

16.3 Customer is obliged to inform G-Core of any third-party access to the Rented Hardware, as in the case of a seizure or any damage to or destruction of the Rented Hardware. Customer is not allowed to remove the Rented Hardware from the current Setup Location without G-Core’s prior written approval. Any change in title regarding the current Setup Location must be reported to G-Core immediately.

17. Defects

17.1 A “Defect” occurs each time the Rented Hardware becomes defective and such defect materially limits Customer’s use of the Rented Hardware during the Service Term. In the event of a Defect, Customer’s sole remedy and G-Core’s sole obligation is that G-Core shall use its best efforts to remedy the Defect, either by repair or replacement of the Rented Hardware, whereas such remedying may be provided at the Setup Location or via remote access to the Rented Hardware. If, in G-Core’s view and at its sole discretion, remedying of the Defect is or becomes technically impossible and/or commercially unreasonable, then either G-Core or Customer may insofar terminate the Service Order in writing. In such case, (a) G-Core will refund any respective prepaid Fees on a pro-rata basis, and (b) in case the Setup Location is at the premises of Customer or at the premises of Customer’s subcontractor(s), Customer will, at G-Core’s discretion and at the cost of Customer, return to G-Core or dispose of the defective Rented Hardware; otherwise, G-Core will remove the defective Rented Hardware.

17.2 Customer has to notify G-Core in writing (email sufficient) of any Defects of the Rented Hardware immediately, but no later than three (3) Business Days, upon Customer’s discovery of the Defects. The notification has to contain a Defect report (“Defect Report”) to G-Core that includes (a) Customer name and, as applicable, on-site technical contact information (telephone number, e-\mail address and hours of operation of the responsible Customer contact), (b) a reasonably detailed description of the Defect, together with any supporting information that Customer’s engineers believe will assist G-Core in its diagnostic process (including e.g. time of first occurrence of Defect, affected systems, error messages etc.), and (c) the date and time that Customer identified the Defect for the first time. In case Customer does not comply with these notification requirements, the Rented Hardware is deemed accepted as defect-free by Customer as regards the respective Defect.

17.3 Customer may contact G-Core for notification of Defects by:

email: support@gcore.lu

All communication between Customer and G-Core regarding Defect Reports and remedying of Defects shall be in English.

17.4 G-Core is not obliged to remedy Defects caused without negligence by G-Core (each, an “Excluded Cause”), in particular in case the Defect was caused by: (a) third-party equipment or software not provided by G-Core as part of the Hardware Rental, (b) Customer’s equipment or software, (c) any use of the Rented Hardware other than agreed with G-Core, in particular any use at or any relocation of the Rented Hardware to a location other than the Setup Location, (d) as applicable, environmental conditions at the Customer premises such as power supply, climate or housing, (e) the Customer’s actions or interventions, (f) any third party’s actions or interventions (excluding actions or interventions by G-Core’s affiliates and/or G-Core’s subcontractors), (g) an event of Force Majeure, and/or (h) the suspension, interruption or termination of Rental Services in accordance with the Agreement. Further to this, interruptions to the Hardware Rental in part or as a whole due to Scheduled Maintenance as defined in Section 18 of the Service Terms are not considered Defects.

17.5 Customer acknowledges that Customer shall reimburse G-Core for any Services provided by G-Core if G-Core was not obliged to provide these Services due to an Excluded Cause. In particular, G-Core reserves the right to charge Customer for resources devoted by G-Core to the receipt, investigation, troubleshooting and/or clearance of Defects reported by Customer that are not attributable to G-Core (e.g., no Defect is found or the reported Defect is caused by an Excluded Cause). If a Defect reported by Customer is found not to be attributable to G-Core, then Customer shall compensate G-Core at G-Core’s then current hourly rates (depending on the level of technical qualification of G-Core’s personnel that investigated the alleged Defect) and for any expenses G-Core may have incurred (e.g. for using G-Core’s affiliates and/or G-Core’s subcontractors) when investigating and/or remedying the alleged Defect. G-Core will invoice these charges for the Defect support and Customer shall make payment in accordance with the terms of the Agreement.

17.6 Except as otherwise set forth in this Section 17, G-Core does not make and disclaims (i) all warranties that the Rented Hardware will be defect-free or completely secure, and (ii) the implied warranties of merchantability, fitness for a particular purpose and non-infringement of any third party’s intellectual property rights. All Rented Hardware is provided on an “as is” basis and Customer’s use of the Rented Hardware is solely at its own risk. Section 10 of the Agreement remains unaffected.

18. Scheduled Maintenance

18.1 In case the Setup Location is at the premises of G-Core, G-Core’s affiliates or G-Core’s subcontractors, G-Core or any of its affiliates or subcontractors may from time to time carry out routine maintenance, upgrades or improvements required for the proper functioning of the Rented Hardware (“Scheduled Maintenance”). Scheduled Maintenance may cause interruptions as regards the Rented Hardware in part or as a whole.

18.2 G-Core may carry out Scheduled Maintenance which is unlikely to affect the Rented Hardware at its own discretion and without notice. Insofar as Scheduled Maintenance will likely cause interruptions as regards the Rented Hardware in part or as a whole or any other problems for the Customer, G-Core will notify Customer at least three (3) Business Days in advance or with as much advance notice as reasonably possible in the event that G-Core receives a maintenance notification from an underlying provider. The notification will include time and date, duration and description of any such work. Notwithstanding the foregoing, if G-Core reasonably believes that timely providing such notice would result in an unacceptable risk of a Defect, damage or loss of integrity to the Rented Hardware G-Core may perform such work and may serve notice to Customer of the need to perform emergency maintenance on the Rented Hardware with a notice period reasonable under the given the circumstances.