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1. APPLICATION OF THESE MASTER CONDITIONS
1.1 Your completed Sales Order constitutes an offer by You to purchase the Services subject to the terms of these Master Conditions and the Sales Order and the Schedules. We shall only accept an offer by You: (a) by a the Sales Order executed by Us; or (b) (if earlier) by Our starting to provide the Services to You, when a contract for the supply and purchase of those Services under the terms of the Contract will be formed.
1.2 In the event of any conflict or inconsistency between the documents comprising this Contract, precedence will be given in the following order: (i) the Sales Order; (ii) the Schedules and (iii) the Master Conditions, but only to the extent necessary to resolve that conflict or inconsistency.
1.3 In this Contract, unless the contract requires otherwise, these expressions shall have the following meanings:
You, Your, Partner the partner named as such on the Sales Order;
We, Us, Our, Company The Bunker Secure Hosting Limited, a company registered in England & Wales under number 05038041 whose registered office is at Ash Radar Station, Marshborough Road, Sandwich Kent CT13 0PL;
Acceptable Usage Policy the usage policy set out in the Schedule and any changes to it as notified to you from time to time by Us;
Business Day means any day (excluding Saturdays and Sundays) on which banks are open for business in England;
Commencement Date means the earlier of (i) the date on which the Services are first made available to You as set out in the Sales Order and (ii) the date on which You first use the Services;
Contract together, these Master Conditions, the Sales Order and its Schedules and any other documents referred to in them;
Partner Equipment means any equipment (and related software other than Our Software) not provided by Us, that is used in connection with the Services;
Partner Material any information (other than Data), text, graphics, material or content (whether in the form of software code or not) as specified in the Sales Order or as otherwise agreed between the parties from time to time and which is provided by or on Your behalf for the purpose of the Services or for other use in the course of this Contract;
Data the digital information provided by You or Your customers to Us through the use of the Software to be stored on Our systems as part of the Services;
Data Protection Requirements have the meaning given in Clause 7.1;
Development Tools all software programs, applications, documents, processes, methods, know-how and data which have not been designed, produced, manufactured or created specifically for or in relation to the Contract by Us and which belong to or are in Our possession prior to the Contract, including any modifications, enhancements and developments to them;
Fees the fees for the Services set out on the Sales Order;
Initial Term the term as set out in the Sales Order or if none are stated the term shall be for a period of thirty six (36) months from the Commencement Date;
Intellectual Property Rights patents, trade marks, copyrights, rights to extract information from a database, design rights, trade secrets and rights of confidence and all intellectual property rights or forms of protection which may subsist anywhere in the world, whether or not any of them are registered and including applications for registration of any of them;
Sales Order Your completed Sales Order, as executed by You and acknowledged and executed by Us;
Services the services described on the Sales Order;
Service Levels the service levels in respect of the Services as set out in the Service Level Agreement Schedule;
Software the software owned by Us or Our licensors and could be used in the provision of the Services to You; and
VAT value added tax as defined in the Value Added Tax Act 1994 (and legislation supplemental to it) and including any other tax from time to time replacing it or of a similar fiscal nature, or its equivalent charged in other jurisdictions.
2. SERVICE PROVISION
2.1 We shall provide the Services in accordance with the Service Levels on the terms of the Contract.
2.2 We shall use reasonable endeavours to ensure that, except for Our representatives, agents, sub-contractors and other third parties who are validly authorised for the purposes of providing the Services under the terms of the Contract, Data may not be accessed by anyone other than You at any time.
2.3 We shall have the right, without liability and without prejudice to our other rights (including termination), to immediately suspend, remove or disable access to or use of the Services if We become aware of or have reasonable grounds to expect any abuse of such access and/or use (by You or any third party, for example through denial of service attacks, spamming or otherwise): (i) which interferes with the provision of the Services or any services provided by Us to third parties; (ii) which would entitle us to terminate this Contract; or (iii) where We are properly required to do so by applicable law, regulatory or governmental body. You acknowledge and agree that We have no obligation to monitor or actively seek facts or circumstances indicating any abuse or illegal activities.
2.4 Where possible We will inform you of any steps taken in accordance with Clause 2.3 above as soon as legally and reasonably possible and may, but are not obliged to, advise You on actions that you should consider implementing to mitigate the risk of recurrence. The fact that We do not take some or all of the steps set out in Clause 2.3 and / or provide any recommendations, does not affect Our right to take such steps or invoke other rights that we may have at any other time in response to the same or other events occurring.
3. YOUR OBLIGATIONS
3.1. You have sole responsibility for the accuracy and completeness of Partner Material and Data and shall ensure that Partner Material and Data do not contain anything which is defamatory, offensive or abusive or of an obscene or menacing character, or which constitutes a violation or infringement of the rights (including without limitation Intellectual Property Rights) of any person or which is illegal or which constitutes a breach of any relevant regulations or codes of practice.
3.2. You shall comply at all times with the Acceptable Usage Policy. If You breach its terms We may, without prejudice to any of Our other rights, pursue the remedies available to Us under the Acceptable Usage Policy.
3.3. You shall ensure that Partner Equipment, telecommunications, internet and other access lines shall be properly maintained and meet any minimum technical requirements specified by Us, and that all appropriate security precautions are taken with respect to Your systems and Data in order to receive the benefit of the Services.
3.4. You shall provide Us with all reasonable cooperation, information, equipment, data and support that may reasonably be required by Us for the provision of the Services at such times as We may reasonably request. You agree to grant Us access (whether remotely or otherwise) at all reasonable times to Your premises, systems, networks and staff as may be necessary for the performance of the Services. We shall use reasonable efforts to comply with all reasonable security procedures made known to Us.
4.1. You shall pay all Fees in GBP pounds sterling in full without any set-off, deductions or withholding, within thirty (30) days of the date of the invoice or such date as may be set out on the Sales Order, as applicable. The Fees do not include VAT or any other applicable taxes which may from time to time be introduced, which shall be charged in accordance with the relevant regulation in force at the time of making the taxable supply and must be paid by You.
4.2. We will not increase Our Fees during the Initial Term save where such Fees are usage based or related to charges levied by Our suppliers or contractors such as license fees. We shall provide You with at least one (1) month’s notice of any other increase of the Fees (provided that failure to give such notice shall not preclude Us from making such increase in any event).
4.3. We reserve the right to charge daily interest on all amounts not paid until payment is received in full at the annual rate equal to four (4) per cent. above the base rate of Barclays Bank plc as current from time to time calculated on a pro rata basis, whether before or after judgment.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. You (or Your licensors where applicable) retain all legal and beneficial interest in the Intellectual Property Rights related to the Partner Materials, Data and Partner Equipment. You grant Us a limited, non-exclusive, royalty-free licence for the duration of this Contract to use the Partner Materials, Data and Partner Equipment for the purposes only of providing the Services to You.
5.2. We (or Our licensors where applicable) retain all legal and beneficial interest in the Intellectual Property Rights related to the Services, including but not limited to the Development Tools and the Software. We grant You a limited, non-exclusive, non-sublicenseable licence for the duration of this Contract to use such Development Tools and Software in the United Kingdom only to the extent necessary for the purpose of receiving the Services.
6.1. The parties agree that the indemnities given in this Clause 6 are conditional upon the parties informing each other as soon as reasonably practicable after becoming aware of any claims, on the parties mitigating their costs and losses and not compromising or settling any claims without the prior written consent of the party who has agreed to indemnify the other.
6.2. You shall fully indemnify Us against all costs, claims, demands, losses, damages, expenses (including, without limitation, reasonable legal expenses) and liabilities of whatsoever nature suffered or incurred by Us relating to: (i) any claim by a third party that the use or possession of Partner Material, Data and/or Partner Equipment by Us infringes the Intellectual Property Rights of that third party or gives rise to any other liabilities of any nature to Us based on the operation of the Partner Material, Data and/or Partner Equipment or content of data or information held on or transmitted via or by it, or (ii) any claim by Your customers against Us.
6.3. We shall fully indemnify You against all costs, claims, demands, losses, damages, expenses (including, without limitation, reasonable legal expenses) and liabilities of whatsoever nature suffered or incurred by You relating to any claim by a third party that the Services infringe the Intellectual Property Rights of that third party. We shall have no liability to You under this Clause 6.3 if the third party claim results from Your breach of this Contract or Your negligent acts or omissions.
6.4. In the event of any third party claims referred to in Clause 6.3, We shall be entitled at Our expense and option to: (a) procure the right for You to continue using the Services; (b) to replace all or any part of the Services so that it becomes non-infringing whilst remaining consistent with Your requirements under the Contract; or (c) make such alterations, modifications or adjustments to the Services so that it becomes non-infringing.
7. DATA PROTECTION
7.1 Each party's attention is drawn to the Data Protection Act 1998, Directive 95/46/EC of the European Parliament and any legislation and/or regulations implementing or amending them from time to time (Data Protection Requirements).
7.2 The parties agree that for the purposes of any personal data included in the Data provided by You to Us in the performance of the Services, You shall be regarded as a data controller and We shall be regarded as a data processor under the Data Protection Act 1998 and accordingly We shall limit Our activity to processing personal data as requested by You under the Contract.
7.3 You warrant and undertake that You have informed and shall inform all data subjects whose personal data may be included in the Data of the processing and other use of such persons' personal data as contemplated by this Contract and have obtained and shall obtain all relevant consents and otherwise satisfied all of Your obligations as a data controller under the Data Protection Requirements in respect of the processing of such personal data.
8. TERM AND TERMINATION
8.1 The Contract shall commence when Your offer is accepted by us in accordance with Clause 1.1 and will remain in effect for the Initial Term and, after the Initial Term, until terminated by either party giving the other three (3) months’ notice in writing, to expire on or after the Initial Term, or otherwise in accordance with its terms.
8.2 Each party may terminate the Contract immediately upon written notice to the other if: (i) any resolution is passed or any petition presented for the winding-up of the other party, a receiver, administrative receiver or liquidator is appointed in respect of all or any part of its undertaking, the other party calls a meeting of or enters into or proposes to enter into any arrangement, scheme or composition with creditors or otherwise enters into liquidation, is would up or in the event the other party ceases or threatens to ceases to carry on doing business; or (ii) the other party commits a breach of the Contract which is material in the context of the Contract as a whole, including but not limited to non-payment of Fees, and which is not remediable, or which in the case of a breach which is capable of remedy, is not remedied within thirty (30) days after the non-breaching party has given written notice requiring such breach to be remedied.
8.3 If any amount payable by You to Us under the Contract remains unpaid for forty-five (45) days or more after the relevant invoice date, We may, without prejudice to Our other rights and remedies suspend performance of Our obligations under the Contract without liability to You until such outstanding amount is paid.
8.4 Unless otherwise expressly stated in the Contract, the remedies available to either party shall be cumulative and Clauses 1, 5 to 10 inclusive and 12 shall continue to apply notwithstanding such termination together with any other provision, the survival of which is necessary to give effect to the Contract.
9. WARRANTIES AND REPRESENTATIONS
9.1 Each party warrants to the other that it is duly incorporated and has full power and authority to enter into and perform its obligations under the Contract.
9.2 We shall use all reasonable skill, care and diligence in providing the Services in accordance with the terms of the Contract and to the standards reasonably expected of a competent service provider.
9.2 Except as set out otherwise in the Contract, all warranties, representations and guarantees relating to the Services and any other matter relating to the Contract whether express or implied by statute, common law, usage or otherwise are expressly excluded to the maximum extent permitted by law.
10. LIMITATION OF LIABILITY
10.1 Nothing in the Contract excludes or restricts either party's liability for death or personal injury resulting from that party's negligence or any of its employee's negligence while acting in the course of their employment.
10.2 Neither party shall be liable to the other whether under the Contract or otherwise in contract, tort, breach of statutory duty, under any indemnity or otherwise (including for any negligent act or omission) in respect of any incidental, indirect or consequential loss or any loss of profits, capital, revenue, business, contracts or anticipated savings.
10.3 Our liability in contract, tort or otherwise (including but not limited to any liability for negligence) however arising out of or in connection with the performance of Our obligations under the Contract (including any liability under Clause 6) is limited in the aggregate for all events or series of connected events occurring in any twelve (12) month period to the higher of (i) the amount of the Fees received by Us from You for the Services pursuant to the Contract in that twelve (12) month period and (ii) an amount of £10,000.
10.4 We shall have no liability in respect of any delay or failure by Us to provide the Services to the extent that this is caused (whether directly or indirectly) by You, for example where you delay or fail to provide necessary information, other materials or access to Your premises, system or staff.
11. FORCE MAJEURE
11.1 Neither party shall be liable for any failure to perform obligations under the Contract to the extent that such performance has been prevented, hindered or delayed due to any causes outside the reasonable control of the defaulting Party, including but not limited to default or failure of a third party (including another telecommunications operator, equipment supplier, installer or maintainer) except to the extent that any such disaster is caused by, or its effects contributed to by, the party claiming such cause. Any party whose performance is affected by an event under this Clause shall inform the other party immediately and shall take reasonable steps to mitigate the impact of such event(s) on its obligations under the Contract. If the event continues for sixty (60) days or more, the party whose performance is not affected by the event may terminate the Service to the extent affected by serving written notice on the affected party.
12.1 Each party will treat the terms of this Contract and any information received or obtained as a result of entering into or performing this Contract as confidential save that either party may disclose such information if and to the extent such disclosure: (i) is properly required by any applicable law, securities exchange, regulatory or governmental body to which either party is subject or reasonably submits; (ii) is to a party’s professional advisors, auditors or any of that party’s employees, affiliates or contractors who have a need to know; or (iii) concerns information already in the lawful possession of the receiving party or in the public domain other than through the negligence or default of the recipient.
12.2 Any notice under the Contract shall be in writing and signed by or on behalf of the party giving it and may be served personally or by prepaid first class letter or fax to the addresses stated on the Sales Orders or to such other address as shall previously have been notified by one party to the other under the Contract, on not less than ten (10) days' prior written notice. Any such notice shall be deemed to have been received, in the case of posted notice, 48 hours after posting and in the case of a fax, at the time of transmission. Any notice or other communication received on a day which is not a Business Day or after 5.00 p.m. local time on any Business Day shall be deemed to be received on the next following Business Day.
12.3 Nothing in the Contract shall be deemed to constitute a partnership between the parties and neither party shall have authority to bind the other party without prior written approval of the other in each and every case.
12.4 If any term or provision or part of the Contract, not being of a fundamental nature, is held to be illegal or unenforceable the validity or enforceability of the remainder of the Contract shall not be affected.
12.5 Failure by either party at any time to require the performance of any provision of the Contract shall not affect the right of that party to require full performance of it at any time thereafter and the waiver by either party of any breach of any such provision of the Contract does not represent a waiver of any subsequent breach.
12.6 No amendment, modification or addition to the Contract, nor any waiver of any of the terms of the Contract, shall be valid unless made in writing and signed by duly authorised representatives of both parties.
12.7 Except where expressly provided to the contrary, the Contract is not intended for the benefit of, and shall not be enforceable by any person who is not a party to it, under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself a trustee of the rights under it for the benefit of any third party.
12.8 The Contract is personal to You and You may not assign, hold on trust or otherwise deal in any way with this Contract or the benefit and burden thereof. We may assign the benefit and burden of the Contract and employ subcontractors to carry out any of Our obligations under the Contract.
12.9 The Contract (and the documents referred to in it) represents the entire understanding between the parties in relation to its subject matter and supersedes all agreements and representations (unless made fraudulently) made by either party, whether oral or written.
12.10 The parties may, with prior written consent of the other party, issue a press release or make a public statement with respect to this Contract.
12.11 The Contract will be governed and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.
Acceptable Use Policy Schedule
Our relationships with other customers requires that you act responsibly at all times. Accordingly, we require that all of our customers act in strict compliance with this AUP as set out below.
You must not, or allow others to, use the Services for any improper or unlawful purposes, including but not limited to the following:
(a) the sending of information which in our sole discretion are or are considered to be either offensive, menacing, defamatory or infringe or are likely to infringe any third party intellectual property rights (including, but not limited to, trade marks, copyright or rights relating to domain names);
(b) the interference or attempted interference with the service to any other customers of the Company, hosts or networks. This includes, but is not limited to flooding networks with information, deliberately attempting to overload a service or attempting to "crash" a host;
(c) the sending of email that contains misleading or incorrect headers content, or information so that the origin of the email is deceptive or damaging to Our or Our other customers’ reputations;
(d) violating or attempting to violate Our network security or other systems' networks, authentication measures, servers or equipment including attempting to circumvent user authentication or security of any host, network or account;
(e) the sending of any message or virus through our network which causes or is likely to cause harm, in any degree, to Us or to our other customers or any other party's communication systems;
(f) the interception or monitoring data not intended for You; and/or
(g) the operation of any service that would allow a third party to perform any action not permitted under this AUP.
You must and ensure that others, in connection with the use of the Services, comply immediately with:
(a) all applicable legal and regulatory requirements (in effect from time to time); and
(b) the reasonable instructions that We give You relating to the use of the Services.
Policing Your Compliance With the AUP
We acknowledge we have no control over any of Your software or materials used in relation to your Partner Equipment and We do not purport to monitor such content.
It is Our policy to co-operate with the police and other applicable law enforcement bodies when reasonably requested by them. You confirm your consent to allow Us to disclose any information and to report to the police or other applicable law enforcement or regulatory body (including without limitation in response to a Court Order) any suspected illegal activity of which we become aware. We also reserve the right and You confirm Your consent to allow Us to grant to the police or any other applicable law enforcement or regulatory body physical access to oOr premises to carry out the same.
Please note that at all times it remains Your responsibility to comply with this AUP.
Failure to Comply with the AUP
If the Partner fails to comply with any part of the AUP. the Company may suspend or terminate the Services. Although the Company is under no obligation to do so, if in its sole discretion the Company proposes to suspend or terminate the Services due to a breach of this Schedule by the Partner, the following shall apply:
(a) it will notify the Partner in advance that it intends to take action;
(b) it will allow the Partner a reasonable time (not more than 5 working days) to provide it with a written explanation as to the reason(s) for the Partner’s non-compliance with this Schedule.
(c) it will promptly notify the Partner of its decision upon receiving the Partner’s explanation, however it is under no obligation to accept it.
(d) it may suspend or terminate the Partner’s Service immediately prior to receiving or considering the Partner’s explanation if in its sole discretion the circumstances so dictate.
(e) the Company’s acceptance of the Partner’s explanation shall not in any way be a waiver of any indemnity which the Partner’s have granted in the Company’s favour.
SERVICE LEVEL AGREEMENT Schedule
1. Definitions: For the purposes of this Service Level Agreement the definitions in Clause 1.3 of the Master Conditions and the following definitions shall apply:
"Agreement" means this Service Level Agreement.
"Availability" in relation to the Core Services is defined as :
Service Cover Time - Total Unavailability x 100 [%]
Service Cover Time
“Core Services” means the core Cloud Storage services described in the Sales Order;
“Emergency Maintenance” means the Company needs to provide immediate maintenance to equipment in the Building that may result in an outage on Partner hardware.
“End Time” has the meaning given to it in paragraph 7.2.
“Planned Maintenance” means where the Company needs to provide maintenance to equipment in the Building that may result in an outage on Partner Equipment and the Company shall, where practicable, use its reasonable endeavours to provide a minimum of seven days notice for such maintenance.
"Measurement Period" shall mean a period of one calendar month, save that the first such period after the commencement of the Services (First Measurement Period) shall run until the end of the first full calendar month after commencement of the Services.
“Scheduled Maintenance” shall mean where the Company needs to provide maintenance to equipment in the Building that may result in an outage on Partner Equipment on a regular basis. In the case of Scheduled Maintenance the Company shall, where reasonably practicable, to provide notice for such maintenance.
"Service Cover Time" shall mean the total number of minutes comprised in the relevant Measurement Period (or First Measurement Period)
“Service Levels” shall have the meaning given to them in paragraph 3 of this Agreement.
“Start Time” has the meaning given in paragraph 7.1.
"Total Unavailability" is defined as the total time in minutes between the Start Time and the End Time (rounded up to the nearest whole minute) in the relevant Measurement Period (or First Measurement Period) during which the Core Services were inoperable or unusable as determined in accordance with the unavailability computation calculated pursuant to paragraph 7 of this Agreement.
2. Subject to any express provisions of the Agreement, the Company shall maintain the Service Levels for each of the Core Services as set out in paragraph 3 of this Agreement.
If, in any one event, more than one of the Core Services fails, the Unavailability Computation will be based on only the longest duration of any of these Core Services in that said event.
3. Core Services and Service Levels shall mean:
Core Service Measurement Period Service Level First Measurement Period Service Level
Cloud Storage Service 99.5% for the Availability of the Services 95% for the Availability of the Services
4. Exclusions from Service Levels
4.1 The parties agree that, notwithstanding any other provision in this Agreement, the Company will not be responsible for failure to provide the Core Services or failure to meet the Service Levels to the extent that the failure is due to:
4.1.1 force majeure;
4.1.2 for any failure, incorrectly configured or operated hardware or software in relation to the Partner Equipment, overload of system capacities, servers, networks, telecommunication lines and connections and other electronic and mechanical equipment or any other default in respect thereof (except to the extent that such default is directly caused by the Company's breach of the Contract);
4.1.3 any failure by the Partner to comply with any of its duties or obligations set out in this Agreement;
4.1.4 any act or omission of any of the Partner’s contractors, agents and suppliers (other than the Company);
4.1.5 Scheduled Maintenance, Planned Maintenance or Emergency Maintenance which makes any of the Core Services inoperable, unusable or cause any outages;
4.1.6 any gateways used to provide the Services
4.1.7 equipment, connectivity, interruption of power supplies or other utility of service (whether partial or total) and environmental conditions on the Partner’s site;
4.1.8 unauthorised changes by the Partner;
4.1.9 the Services fall outside of the Initial Term;
4.1.10 governmental or regulatory restrictions; exchange rulings, court or tribunal orders or other human intervention;
4.1.11 any other circumstances or matters other than matters for which the Company is responsible pursuant to this Agreement.
4.2 In the event of the above the parties acknowledge and agree that the outages caused by these events will not be included in the Unavailability Computation and the Service Credits will not apply, nor will the Partner be entitled to bring any claims for damages, losses, costs and/or expenses incurred or suffered which arise from any failure to provide the Service.
5. Response and Target Times
In the event a failure concerning one of the Core Services is detected by the Company or reported by the Partner, the Company shall use reasonable endeavours to rectify the affected Core Service within the following Target Times:-
Fault Response Times Target Times to Resolve
Failure of Core Service PROMPT response from time of event notification and assignment of Trouble Ticket number. Within 1 hour of the Company’s response.
6. Fault Escalation Path
If the Fault cannot be resolved within the Target Time specified above, the fault escalation path for the Partner shall be as follows:-
ACTION Position Escalation Time for Fault
Initial Notification Alarm raised - NOC notified of fault – On site Technician Trouble Ticket raised
Level 1 escalation On call Senior Technician notified Promptly
Level 2 escalation On call Senior Manager notified Escalated if Fault not resolved within 60 minutes of Level 1 escalation
7. Unavailability Computation
7.1 A Core Service will be deemed unavailable from either:
7.1.1 the time that the Partner reports the Core Service is below the Service Level; or
7.1.2 the time that the Company discovers that the Core Service is below the Service Level
(the “Start Time” as applicable).
7.2 A Core Service will be deemed available again from when the Core Service is either
7.2.1 above the Service Level, based on the reasonable opinion of the Company; or
7.2.2 where the End Time falls into another Measurement Period the End Time will be deemed to be the last day within the same Measurement Period as the Start Time.
(the “End Time” as applicable)
8. Service Credits
8.1 The Company shall pay to the Partner Service Credits in accordance with this Agreement where the achieved performance levels of certain Services fail to meet certain of the respective Service Levels.
8.2 The parties agree that:
8.2.1 Service Credits are a reasonable and genuine pre-estimate of the loss to the Partner for failure to meet the relevant Service Levels for which Service Credits are specified and will be considered by the parties to constitute liquidated damages; and
8.2.2 where Service Credits are provided for as a remedy for failure to meet a particular Service Level, the payment of Service Credits by the Company to the Partner will constitute the sole and exclusive remedy of the Partner for the failure of the Company to provide the Services.
8.3 In any event, the Company's maximum liability for Service Credits under the Agreement shall be 100% of the Charges payable in respect of the Services for the relevant Measurement Period in which Service Credits are calculated and applied.
8.4 No Service Credits shall be carried forward from one calendar month to another in circumstances where the amount of Service Credits would but for the provisions of paragraph 8.3 exceed 100% of the Charges payable in respect of the Services for such period and/or in any other circumstances.
8.5 Subject to paragraphs 8.3 and 8.4 of this Agreement, the Service Credits shall be calculated as follows: For each FULL percentage point (1%) by which the Availability in a Measurement Period is reduced below the target Availability (or First Measurement Period Availability where applicable), a Service Credit shall be due to the Partner equal to 5% of the Service Fees payable by the Partner in respect of the Services for such Measurement Period.
8.6 If the Partner is entitled to any Service Credits, the Partner must write to the Company within seven days after the end of any Measurement Period to claim the Service Credits in respect of such Measurement Period.
8.7 Service Credits will not be given where the Partner is in arrears of payment to the Company.
8.8 Service Credits can only be claimed by the Partner for any Core Service failure to their specific racking.
8.9 The Partner is not entitled to claim any Service Credits on behalf of any of its clients for any consequential interruption or failure of any third party services provided by the Partner.
9. Breaches to Service Level
9.1 The following list of circumstances will constitute a material breach for the purpose of Clause 8.2(ii) of the Master Conditions and the Partner may, without prejudice to its other rights under the Contract, have the right to terminate the Contract immediately in whole or in part by giving the Company notice in writing:
9.1.1 if the Availability falls below 70% in the First Measurement Period after the date of commencement of the Services; or
9.1.2 if the Availability falls below 80% during any Measurement Period after the date of commencement of the Services; or
9.1.3 if the Availability falls below an average of 90% in any three consecutive Measurement Periods.
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