Terms of Business & Agreement
CubeNox Standard Terms and Conditions
1. Definitions and Interpretation
In these terms and conditions:-
“Agreement” means these terms and conditions together with the Order Confirmation. “Ad-hoc Support” means the arrangement whereby the Customer purchases an undetermined tranche of Support time in arrears of Support provision by CubeNox, as detailed on the Order Confirmation. “Prepaid Support” means the arrangement whereby the Customer purchases a designated tranche of Support time in advance of Support provision by CubeNox, as detailed on the Order Confirmation. “Charges” means the charges for the Services as set out in the Order Confirmation. “the Customer” and “You / Your” means the company, firm, person, persons, corporation or public authority using any of CubeNox’s services and includes their successors or personal representatives. “Customer’s Equipment” means any equipment including pc’s, laptop computers, projectors, screens, cabling, facilities or tools owned or leased by the Customer and located in the Premises. “Commencement Date” where applicable means the date set out in the Order Confirmation when Services will be available to the Customer.
“Deliverable” means any item identified in the Order Confirmation as a Deliverable to be supplied by CubeNox. “CubeNox” and “We / Us / Our” means CubeNox (Nigeria) Limited, a company incorporated in Nigeria (Company Number RC 1640372) and with its registered office at 10A Akerele Street, Surulere, Lagos, Nigeria. “Equipment” means any equipment, machinery, parts, spares or other hardware, as identified in the Order Confirmation. “Initial Term” means a period commencing on the Commencement Date and continuing for the period set out in the Order Confirmation. “Intellectual Property” means any patent, invention, copyright, database right, registered or unregistered design, trademark (whether registered or unregistered), trade name, logo, trade secrets, know-how or other industrial or intellectual property right subsisting anywhere in the world, and applications for any of the foregoing, together with the goodwill thereon.
“Instruction” means the order from the Customer for the Services. “Maintained Products” means hardware, software or peripheral products in respect of which support is provided by CubeNox. “On Site Support” means support and maintenance services at the Customer’s premises, as detailed in the Order Confirmation (where applicable). “the Order Confirmation” means the written confirmation of the Customer’s which is emailed or sent to the Customer by CubeNox which sets out the Services to be carried out, Charges and such other specific contractual terms as may be appropriate.
“the Premises” means the Customer’s premises where the Services are being provided. “Services” means the work undertaken or service provided by CubeNox as set out in the Order Confirmation. “Support” means provision by CubeNox of one or more of the Services detailed in the Support Contract as confirmed in the Order Confirmation (where applicable). “Support Contract” means the CubeNox document detailing the Services available together with service arrangements.
2 “Term” means the Initial Term together with any successive periods agreed between the parties. “Working Day” means Monday to Friday and excludes public holidays. “Writing” includes any written paper document, any fax and any email correspondence.
2. Conditions a. Unless otherwise stated in writing, all orders are accepted subject to these terms and conditions as stated herein and the Customer by authorising or allowing work to proceed is deemed to have acknowledged this fact.
b. These terms and conditions should be read together with the Order Confirmation. No order shall subsist between the Customer and CubeNox unless and until it has been confirmed by a Order Confirmation. If there is any conflict between the Order Confirmation and these terms and conditions, the provisions of the Order Confirmation shall prevail.
c. No variation to these terms and conditions shall be binding unless agreed in writing to between the authorised representatives of CubeNox and the Customer.
d. CubeNox’s employees, agents or sub-contractors are not authorised to make any representations concerning the Instruction or any other aspect of this Agreement unless such authority is confirmed by CubeNox in advance in writing. In entering into the Agreement, the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
e. CubeNox shall not unreasonably refuse to provide any additional services requested by the Customer, subject to agreement between the parties as to the applicable terms and conditions, including charges.
3. Duration Where Services are being provided by CubeNox, this Agreement shall be valid on the Commencement Date and shall remain in force for the Initial Term set out in the Order Confirmation. Following the Initial Term the Agreement may continue on a monthly basis or successive terms as mutually agreed.
4. Customer Obligations
a. The Customer shall co-operate with CubeNox in all matters relating to the provision of the Services and, without prejudice to the foregoing generality, shall ensure that CubeNox is provided in good time with all information, decisions and/or approvals which CubeNox requires for provision of the Services and shall provide any additional assistance which CubeNox may reasonably request.
b. Where Services are to be provided at the Customer’s premises, the Customer shall: -
i. provide for CubeNox and its officers, employees, agents and sub-contractors in a timely manner and at no charge, access to such premises and other facilities, systems, data and material as may be reasonably requested by CubeNox;
ii. be responsible at its own cost for preparing and maintaining the premises for the provision of the Services; and
iii. inform CubeNox of all health and safety rules and regulations and any other reasonable security requirements that apply at any such premises.
c. CubeNox must be kept informed of any upgrades or third parties updating systems or software that may affect the Services provided.
d. If CubeNox’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or any of its officers, employees, agents or sub-Contractors CubeNox shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
a. CubeNox will provide support of the Maintained Equipment either remotely or at the Premises, in accordance with the Support Contract and as identified in the Order Confirmation.
b. Support does not cover consumables or items guaranteed by Manufacturer.
6. Orders and Delivery
a. The Customer shall state on placing an order for Equipment whether he requires CubeNox to arrange carriage and if so the delivery address. If the Customer so requests CubeNox shall be entitled to make any contract of carriage and/or insurance on behalf of the Customer as CubeNox considers necessary and will be under no obligation to notify the Customer thereof. The Customer will be responsible for complying with all conditions and requirements of the carriers. Unless otherwise agreed by CubeNox delivery of the Equipment will be ex-worked.
b. All times or dates given for delivery of Equipment are given in good faith and shall not be of the essence of in this Agreement.
c. CubeNox shall give the Customer notice when the Equipment is ready for delivery. If the Customer refuses or fails to arrange collection or take delivery (as the case may be) of Equipment ordered within seven days of service of the notice then
(a) the Customer will bear the risk of any loss or damage to the Equipment after expiry of that time
(b) CubeNox shall be entitled to immediate payment in full for the Equipment which is the subject of the order and
(c) the Customer shall in addition to the invoice price pay all costs of storage and any additional costs incurred as a result of such refusal or failure. CubeNox shall not be liable to the Customer for any loss or damage to the Equipment caused by their storage.
d. CubeNox may make and the Customer shall accept partial deliveries of Equipment ordered. Any failure by CubeNox to make any one or more deliveries in accordance with the Agreement or any claim by the Customer in respect of any one or more deliveries shall not entitle the Customer to treat the Agreement as a whole as repudiated.
a. The Customer will accept the Equipment even if it is delivered late and late delivery will not entitle the Customer to terminate the Agreement.
b. The Customer shall inspect the Equipment as soon after delivery as is reasonably practicable and will notify CubeNox in writing of any shortage of supply deficiency of damage to the Equipment within five days of delivery. If the Customer fails to comply with this clause CubeNox shall be under no legal obligation in respect of any alleged shortage discrepancy or damage.
From the time the Equipment leaves CubeNox's premises whether this be by way of collection by the Customer or receipt by carriers (as the case may be) the risk in the Equipment shall pass to the Customer who shall be solely responsible for the custody and maintenance thereof.
9. Service Provider’s Duties
a. CubeNox shall exercise reasonable skill, care and diligence in the performance of the Services, in accordance with the standards of a qualified and competent contractor experienced in carrying out work of a similar scope and complexity to the Services.
b. CubeNox shall use reasonable endeavours to provide the Services in accordance in all material respects with the Customer’s Instruction and the Order Confirmation (where applicable). Any time or times for the provision of the Services shall be an estimate only and time shall not be of the essence of the Agreement.
c. CubeNox shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Premises and that have been communicated to it. CubeNox shall not be liable under the Agreement if as a result of such observation it is in breach of any of its obligations under the Agreement.
d. In order to comply with its duty of care and any statutory duties, CubeNox reserves the right to at any time notify the relevant authority of any serious breach of any health and safety or protection legislation, regulation, order, rule or other legal requirement which CubeNox discovers in connection with the provision of the Services.
10. Specification and Performance
a. All drawings specification and technical documents issued by CubeNox at any time in relation to the Contract are issued solely for the Customers use in connection with the Equipment and shall not be copied reproduced or communicated to any third party without CubeNox's express written agreement.
b. CubeNox reserves the right to alter or depart from any specification or design of any Equipment sold provided that such alteration or departure shall not to a material extent adversely affect the performance of the Equipment or the quality of the workmanship or the materials used.
c. Unless otherwise expressly agreed in writing any performance figures quoted or referred to in any specification or other document are estimates only based on assumed conditions in a well managed office with experienced adequate and efficient operatives and appropriate services and proper use of satisfactory materials.
a. We shall make good, by repair or at our election by the supply of a replacement, defects which, under proper use, appear in Equipment within a period of 12 calendar months after the Equipment been delivered and which arise solely from faulty design, materials or workmanship.
b. We shall be under no liability in respect of any defects which arise due to fair wear and tear, negligence of the Customer, abnormal working conditions, failure to follow our or where appropriate the manufacturer’s instructions (whether oral or in writing), misuse or alteration or repair of the Equipment without our approval.
c. Any defect in or failure of the Equipment must be notified to CubeNox in writing as soon as practicable and in any event no later than five days after discovery.
d. Before returning the Equipment or any part thereof the Customer must obtain a return authorisation number from CubeNox and details of CubeNox's returns procedure which must be fully complied with.
e. The Equipment or part to be returned must be delivered to CubeNox's premises in its original packaging together with supporting documentation showing full description of the alleged fault and quoting the relevant returns number. In the event that the Customer fails to comply with this requirement then CubeNox will be entitled to charge a 15% handling fee upon authorised return of the Equipment.
f. All delivery charges for carriage to and from CubeNox's premises must be paid by the Customer.
g. Where parts only are returned CubeNox shall not be responsible for installing any such part after repair or exchange.
h. CubeNox may elect to carry out any repairs at the premises of the Customer and if so electing then the Customer shall provide CubeNox's employees or agents with free access to the place of installation and free access to any services or facilities that may be required to repair the Equipment.
i. If it so elects CubeNox may require the Customer to return the Equipment or part direct to the manufacturer for repair or exchange in which case such repair or exchange on the part of the manufacturer shall satisfy CubeNox's obligations under this clause 9.
j. The foregoing warranty shall only apply to any replacement Equipment or parts thereof supplied by CubeNox under this warranty for the balance of the warranty period applicable to the Equipment sold.
k. CubeNox gives no undertaking that the Equipment is fit for any particular purpose and the Customer, having greater knowledge of his own requirements, relies entirely on his own skill and judgement in evaluating the suitability of the Equipment for his purpose.
l. Subject to the foregoing all conditions, terms and representations, express or implied by statute, common law, custom or usage in relation to the Equipment are hereby excluded and CubeNox shall be under no liability to the Customer for any loss, damage or injury direct or indirect resulting from defective material faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of CubeNox, its employees or agents.
m. Without prejudice to the generality of Clause 11-l. hereof, we shall be under no liability in respect of any defects or damage arising out of circumstances beyond our control, including (without limitation) any damages caused by computer viruses.
CubeNox shall be under no obligation to accept return of any Equipment other than as provided in Clause 11. if, notwithstanding CubeNox shall in any particular case agree return of Equipment which is not defective then it shall only do so in terms that
(a) the item is returned within 14 days of delivery
(b) the Customer shall pay a sum in respect of the costs so incurred by CubeNox equal to twenty-five per cent of the full invoice price subject to a minimum charge of £30
(c) the customer shall obtain a returns authorisation number from CubeNox and comply with CubeNox's returns procedure and (d) the Equipment must be delivered to CubeNox's premises in its original packaging.
13. Telecommunications Equipment
a. When the Equipment supplied by CubeNox is to be used in conjunction with British Telecom lines or apparatus then the following additional conditions shall apply:
b. British Telecom shall have the right to require modifications to be carried out to Equipment which is already installed and in use. Any modifications required will be carried out at the Customer's expense; and
i. in no event shall CubeNox be liable for damages, loss or injury to British Telecom equipment or personnel in connection with or arising out of the Customer's act or neglect.
14. Charges and Payment
a. Except for Support under Prepaid arrangements, Payment of the Charges for the Equipment or Services is due immediately on delivery of Equipment or or completion of work, either by cheque, cash or credit/debit cards. Credit accounts can be opened in line with our normal credit terms and are subject to credit vetting procedures. Details are available on request.
b. If credit terms have been agreed in writing by CubeNox payment shall be made in full without any deduction or set-off within 14 days from invoice date unless otherwise agreed in writing by CubeNox.
c. All prices and fees are exclusive of Value Added Tax which shall be added to any invoice payable under this Agreement at the rate applicable under the relevant regulations.
d. Unless otherwise specified prices payable for the Equipment are exclusive of carriage and are subject to CubeNox's right to require payment of delivery charges, insurance costs, customs duties, special handling charges and / or packaging charges as appropriate.
e. Unless otherwise agreed in writing, CubeNox shall have the right at any time to revise prices to take into account increases in costs including (without limitation) costs of agreed changes in any taxes, duties, levies or exchange rates or costs arising as a result of site conditions, delays, interruptions, lack of information and any other factor beyond CubeNox's control.
f. Time of payment shall be of the essence in the Agreement. If the Customer fails to make payment within the period specified in Clauses 14-a or 14-b (as applicable) then, without prejudice to any other right or remedy available to us, we shall be entitled to:-
i. suspend performance of the Services; and/or
ii. cancel the Agreement; and/or
iii. charge you interest on the amount unpaid, at the rate of 4 per cent per annum above the base rate from time to time of the Royal Bank of Nigeria plc, calculated on a daily basis, until payment is made;
g. The Customer shall not be entitled by reason of any set-off, counter-claim, abatement, or other deduction to withhold payment of any amount due;
h. If the Customer’s cheque is returned by the bank as unpaid for any reason, the Customer shall be liable for a “returned cheque” charge of £25.
15. Retention of Title (Lien)
a. Any Equipment supplied shall remain the property of CubeNox until payment is made in full or all sums due under all contracts and/or agreements between CubeNox and the Customer.
b. Until title passes to the Customer under Clause 15-a the following shall apply:
i. the Customer shall hold the Equipment as bailee for CubeNox, store the same in such a way that it is can be identified as CubeNox's property and keep it separate from their own property and the property of any other person;
ii. if payment has become due or the provisions of sub-Clauses 16-a-ii, 16-a-iii or 16-a-iv shall apply CubeNox shall be entitled to recover the Equipment from the Customer and for that purpose the Customer hereby grants to CubeNox, its agents and employees an irrevocable licence to enter any premises where the Equipment is stored in order to repossess the same;
iii. if in the normal course of business the Customer shall sell the Equipment then he shall do so as agent for CubeNox and out of the proceeds of such sale shall retain the amount due to CubeNox in a separate identified bank account as trustee for CubeNox;
iv. in the event that the exercise by CubeNox of the rights conferred by this clause result in CubeNox repossessing Equipment for which the Customer has paid, CubeNox may set-off against any sums which become due from them on that basis any sums due from the Customer in respect of other Contracts; and
v. each of the foregoing sub-clauses of this clause constitutes an entirely independent provision and shall be interpreted separately from the remainder.
a. A party ('the Initiating Party') may terminate this Agreement with immediate effect by written notice to the other party ('the Breaching Party') on or at any time after the occurrence of one or more of the following events:-
i. the Breaching Party committing a material breach of this agreement and failing to remedy the breach within 30 days starting on the day after receipt of notice from the Initiating Party giving details of the breach and requiring the Breaching Party to remedy it;
ii. the Breaching Party passing a resolution for winding up, a court of competent jurisdiction making an order for the Breaching Party's winding up or the presentation of a petition for the Breaching Party's winding up that is not dismissed within seven days, in each case other than for the purposes of solvent amalgamation or reconstruction in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the Breaching Party's obligations under this agreement;
iii. the making of an administration order in relation to the Breaching Party or the appointment of a receiver over, or an encumbrancer taking possession of or selling any asset of, the Breaching Party; or
iv. the Breaching Party making an arrangement or composition with his creditors generally or making an application to a court of competent jurisdiction for protection from his creditors generally. v. Either party may terminate this Agreement at any time during the agreed contract period, providing 90 days written notice to the other party and reaching a mutual agreement.
vi. Following the expiry of the original contract period, termination is subject to 30 days written notice by either party to the other.
b. Should the Customer be subject to sub-Clauses 16-a-ii, 16-a-iii, 16-a-iv, 16-a-v or 16-a-vi then any equipment held by CubeNox for any reason may be retained against monies owed to CubeNox. c. On termination of the Agreement for any reason:
i. the Customer shall immediately pay to CubeNox all of CubeNox’s outstanding unpaid and uncredited invoices and interest and in respect of Services provided but for which no invoice has been submitted CubeNox may submit an invoice which shall be payable immediately on receipt; and
ii. if delivery of the Equipment has been effected the invoice shall immediately become due and payable by the Customer, if delivery had not been so effected then CubeNox may as its option terminate the Agreement or cancel or suspend delivery.
d. The accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
17. No Waiver
Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement. Any waiver by a party of any breach of, or any default under, any provision of the Agreement by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.
18. Force Majeure
Neither party shall be liable for any breach of these terms caused by matters beyond their reasonable control, including but not limited to, Acts of God, fire, lightening, explosion, war, disorder, flood, industrial dispute (whether or not involving our employees), failures or interruptions of electricity or water supplies, weather of exceptional severity or acts of local or central government or other authorities.
If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
a. If the Customer wishes to change any aspect of the Service, it will notify CubeNox in writing and CubeNox will advise whether it is possible to implement the change and the effects (if any) on performance, cost and any other matters. If the Customer requires the change to be implemented, the parties shall negotiate in good faith the increase or decrease, if any, to the Charges arising directly from the implementation of the change.
b. Agreed changes shall be documented by way of a written change order or addendum executed by the Parties.
c. It is the customer’s duty to inform CubeNox of material changes to the level of support required in users, hardware or software support.
a. Satisfaction with the quality of the Services provided is of paramount importance to us. If at any time you would like to discuss with us how our service to you could be improved, or if you are dissatisfied with the service you are receiving, please let us know, by telephoning +234 90 99275621 or emailing us at email@example.com. We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. If you feel that we have given you a less than satisfactory service, we undertake to do everything reasonable to address your concerns. Should matters not be resolved to your satisfaction and any dispute arise in connection with the Agreement parties shall attempt to settle it by Mediation.
b. Should you have a query or concern regarding a specific service which we have provided, this must be notified to us within 5 days of receipt by you of the service using the above telephone or email contact details, failing which we reserve the right to regard any subsequent service provided by us as a new requirement and to charge you accordingly.
a. CubeNox and the Customer shall keep confidential all information of the other party, whether designated as confidential or not, obtained under or in connection with the Agreement and shall not divulge the same to any third party without the written consent of the other party. The provisions of this clause shall not apply to any information in the public domain otherwise than by breach of the Agreement; or information obtained from a third party who is free to divulge the same.
b. Nothing in this Agreement shall prevent CubeNox from commercially exploiting the data processing techniques, ideas and know-how gained during the performance of this Agreement in the furtherance of its normal business, to the extent that this does not relate to a disclosure of Confidential Information or an infringement by CubeNox of any Intellectual Property Rights of the Customer.
c. CubeNox may refer to the Agreement or to the fact that the Customer is CubeNox’s Customer with the prior consent of the Customer which shall not be unreasonably withheld.
23. Intellectual Property
a. Unless expressly provided in this Agreement, each party agrees that it neither has nor will obtain any rights in or to any of the other party’s Intellectual Property Rights or confidential information. b. In the event that CubeNox shall supply any deliverables, items, or other materials in the course of providing the Service all Intellectual Property Rights shall vest in CubeNox unless otherwise agreed in writing by the parties prior to the date of supply.
The Customer hereby indemnifies and holds harmless CubeNox against all claims, demands, losses, damages, costs or expenses howsoever arising incurred by CubeNox in connection with the Agreement as a result of a breach by the Customer of any provision of this Agreement, law or regulation and/or as a result of any third party legal action or threatened action.
a. Notwithstanding any other provision in this agreement, CubeNox’s liability to the Customer for death or injury resulting from his own negligence or that of his employees, agents or sub-contractors shall not be limited.
b. The Customer acknowledges and accepts that he is placing no reliance on any representations made by CubeNox as to the fitness, suitability, description, specification or quality of any software supplied by CubeNox.
c. CubeNox’s entire liability to the Customer in respect of any breach of our contractual obligations, any breach of warranty, any representation, statement or delictual act or omission including negligence arising under or in connection with this Agreement shall be limited to an amount equal to the value of the Charges invoiced to the Customer in the 6 months preceding any claim..
d. CubeNox shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer, even if the loss is reasonably foreseeable or CubeNox has been advised of the possibility of the Customer incurring it.
e. CubeNox shall not be liable for any loss or damage sustained or incurred by the Customer or any third party (including, without limitation, any loss of use of the Maintained Products or loss of or spoiling of any of the Customer’s programs or data) resulting from any breakdown of, or fault in the Maintained Products, unless such breakdown or fault is caused by the negligence or wilful misconduct of CubeNox, its employees, agents or sub-contractors, or to the extent that such loss or only to the extent not excluded by the Agreement.
f. Without prejudice to the foregoing generalities, CubeNox will not be held responsible for any losses arising from the supply by the Customer or others of incorrect or incomplete information, or your or others’ failure to supply any appropriate information or your failure to act on our advice or respond promptly to communications from us.
26. Privacy and Data Protection
a. Both parties shall observe all their obligations under the Data Protection Act which arise out of or in connection with this Agreement, including but not limited to the provision or use of the Service.
b. The parties acknowledge that information about individuals which may be derived from the work carried out by CubeNox may constitute Personal Data in terms of the Act. In processing such personal data CubeNox is a data processor in terms of the Act and such processing is at the behest of and under the direction of the Customer.
The Customer hereby acknowledges its obligations as a data controller in terms of the Act and warrants and represents to the CubeNox that it has discharged and shall discharge its obligations in terms thereof and the Customer shall hold the CubeNox harmless from any claims by any third party relating thereto.
c. Subject to sub-clause 26-d, any Personal Data (as defined in the Act) provided by the Customer to CubeNox shall at all times remain the Customer’s property and CubeNox shall take all reasonable precautions to preserve the integrity of such Personal Data and to prevent any corruption or loss, damage or destruction of such Personal Data.
d. CubeNox reserves the right to disclose to the police, the fire authorities, any other relevant authority, our insurance company and any of their representatives details of the Personal Data or records kept by us or in our possession at any time.
27. Employees and Employment
The parties agree that during the Term, and for a period of nine (9) months thereafter, neither party shall directly or indirectly solicit for employment any officers or employees employed then or within the preceding nine (9) months by the other party who is or was involved in the provision or management of the provision of the Services without the prior written consent of the party whose staffare to be solicited. In the event that a party employs or hires any of the other party’s personnel in breach of this Clause 27, the breaching party shall pay to the injured party upon demand as liquidated damages a sum equal to the annual salary of such personnel at the time of breach. Notwithstanding CubeNox’s consent the parties recognise that employment of the aforementioned CubeNox officers or employees may adversely affect CubeNox’s ability to perform the Service and the Customer shall not be entitled to any resulting remedies. Nothing in this Clause shall restrict either party from employing any individuals who apply unsolicited in response to general advertising or other general recruitment campaigns.
The rights and remedies provided for by this agreement are cumulative with and not exclusive of any rights or remedies provided by law.
The Customer shall not assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement in whole or in part without the prior written consent of CubeNox, which consent shall not be unreasonably withheld or delayed. CubeNox may subcontract, assign or transfer our obligations or rights to a competent third party or to any associated company whether in whole or in part.
30. Entire Agreement
These terms and conditions together with the Order Confirmation set out the entire understanding of the parties with respect to their subject matter and replace any prior agreements or understandings or representations (unless fraudulent), whether written or oral.
This Agreement shall be governed by and construed in accordance with the laws of Nigeria the courts of which shall have non-exclusive jurisdiction.
Schedule 1: Service Specific Conditions
Subject to the Services specified in your Proposal, your Agreement will also be subject to the
conditions below which are identified as applicable to your Services.
Unless stated otherwise, terms defined in the Conditions shall have the same meaning when
used in the Service Specific Conditions.
A. CO-LOCATION SERVICES
1. Right to use Licensed Space
========= 1.1 Subject to the Proposal, CubeNox grants you the right during the Agreement to:
1.1.1. locate the Customer Equipment in the Licensed Space, and for these purposes to install such Customer Equipment under CubeNox's supervision, or to have us install it subject to your payment of our installation charges calculated in accordance with the rates set out in the Proposal or as communicated by CubeNox to you from time to time;
1.1.2. access the Customer Equipment in the Licensed Space in accordance with the Agreement together with the security and access policies and procedures, which we can provide you with on request, at the Co-Location Facility, the operating environment within which the Customer Equipment must function and the minimum standards of maintenance and repair that the Customer Equipment must be kept in, and subject to the following:
22.214.171.124. if you have Licensed Space of 1 or more RSU’s, Half or Quarter Rack systems, then unrestricted and unescorted access is provided on a 24x7 basis; and
126.96.36.199. if Licensed Space is provided in Unit’s, then only escorted access is available during Business Hours.
1.2. You may have up to 2 hours escorted access in any 30 day period free of supervision charges. All other escorted access will be charged by CubeNox at our standard hourly rates, as set out in the Proposal or as communicated to you from time to time.
1.3. Following installation of the Customer Equipment in accordance with Condition 1.1.1, unless you instruct us not to, we will connect the Customer Equipment to the internet, via the CubeNox System, unless otherwise requested not to. You are not permitted to make such connection.
1.4. We will utilise 1 Unit of any Licensed Space (for Racks, Half Rack or Quarter Rack customers) for the provision of a single Cat5e patch panel. Internal cabinet space (in the vertical axis) will also be used for provision of power bars.
1.5. Licensed Space taken on a floor space basis does not include the supply of power, which will be provided by CubeNox on the basis set out in the Proposal or on terms otherwise agreed by the parties in writing.
1.6. Unless CubeNox and the Customer have agreed different requirements in the Proposal, full RSU’s are provided with twin 16A fused power supplies and up to 8A total sustained power utilisation (power allowance) as standard on power bars with UK-style 3-pin 13A sockets. Half Racks with twin 8A fused supplies (with 4A total sustained usage), and Quarter Racks with twin 4A supplies (with 2A total sustained usage).
Additional power required beyond the Power Allowance referred to in the Proposal may be provided by CubeNox subject to separate agreement by the parties.
1.7. For Licensed Space taken on a per-Unit basis, Customer Equipment may only be fitted to the front mounting rails of the relevant rack system provided, and power is provided on the basis that the Customer Equipment power supplies are rated to no more than 400W (single or twin PSU) per Unit of space taken.
1.8. For Licensed Space taken in Quarter, Half and Full RSU’s, CubeNox cannot take responsibility for the safety and stability of power and networking cables where you choose to have the Customer Equipment fitted to the rear mounting rails of any rack system provided.
2. Customer Equipment
2.1. You shall work with CubeNox to ensure that adequate ventilation space is provided within the Licensed Space for dissipation of heat generated by the Customer Equipment in accordance with good industry practice.
3. CubeNox’s obligations in respect of the licensed space
3.1. CubeNox will provide you with the following:
3.1.1. dual power, protected by in-line UPS battery systems and on-site generator;
3.1.2. IP transit (bandwidth) measured on a 95th percentile basis, whereby each Megabit of data transferred per calendar month is billed at the rate as set out in the Proposal. Other network services may also be provided as required by you under separate terms, including but not exclusively Copper Ethernet, X25, X21/G703 leased lines, Fibre Ethernet, Voice Services over IP and PRI/SS7 circuit switched services;
3.1.3. such additional services as the parties agree in writing that CubeNox will provide from time to time; and
3.1.4. monitoring of the IP network interface to the Customer Equipment if we are provided with suitable access through firewalls or other devices. The Service Levels, if applicable, provided for IP transit or other network services will only apply in the event that suitable monitoring is possible. By firewalling our monitoring tools, you acknowledge and agree that the relevant Service Levels do not apply.
3.2. CubeNox will use reasonable endeavours to provide you with an appropriate physical environment for the Customer Equipment including air conditioning and humidity control.
3.3. CubeNox will use best endeavours to provide you with a 24x7 secure environment with a fully manned site, perimeter vibration sensors, CCTV, proximity card access control system, fire suppression system (technical details and choice of fire suppression materials will vary according to your choice of datacentre).
3.4. CubeNox will use reasonable endeavours to deliver these Co-location Services within 2 Business Days of receipt of a signed copy of the Agreement and payment of the relevant pro-forma invoices in accordance with Clause 4.
3.5. You acknowledge and agree that while you will have the exclusive right, as applicable to the Services you receive, to locate the Customer Equipment in the Licensed Space and/or to use the CPE in the Co-location Facility and/or to use the connection for so long as the Agreement is in force, we are entitled to use all other parts of the Co-location Facility at our sole discretion, provided always that this does not interfere with, or adversely affect, your use of the Customer Equipment or your ability to access same.
3.6. CubeNox shall allow your representatives to access the Co-Location Facility in accordance with the security and access policies referred to in 1.1.2 save that we may refuse access to the data centre in the case of co-location services in the event of emergency or if we have given you prior notice that such access is denied.
4. Customer obligations
4.1 You warrant, represent and undertake that you:
4.1.1 will abide by the AUP at all times;
4.1.2. will not use any part of the Co-location Facilities for any purpose other than for the location of the Equipment;
4.1.3. will keep the Rack(s) and/or the Cage and all fixtures and fittings therein in good condition and on expiry or termination of the Agreement return the same to CubeNox in their original condition, fair wear and tear excepted;
4.1.4. will not exceed the specified maximum limit of electrical power usage to each CubeNox Rack as specified in Condition 1.7 above nor allow or do anything which would cause a power interruption at the Co-Location Facility or to the Services; 4.1.5. will ensure that the operation or condition of the Customer Equipment will comply with any reasonable written requirements of CubeNox from time to time so that the Customer Equipment does not adversely affect any other Equipment located at the Co-location Facility or the use of the Co-location Facility by CubeNox or any third party;
4.1.6. will ensure that the operation of the Dedicated Server and Customer Equipment will comply with any reasonable written requirements of CubeNox so that same do not adversely affect any other equipment located at the Co-Location Facility or the use of the Co-Location Facility, and the CubeNox System by CubeNox or any third party;
4.1.7. will not do anything that may:
188.8.131.52. compromise the security of the Co-Location Facility;
184.108.40.206. be dangerous or cause any nuisance, inconvenience or other disturbance to others (including others Customers of CubeNox) at the CoLocation Facility; or
220.127.116.11. place CubeNox in breach of any covenants relating to the CoLocation Facility or insurance Clauses as notified to it by CubeNox from time to time;
4.1.8. have all rights and consents necessary to allow it to:
18.104.22.168 locate the Customer Equipment in the Licensed Space;
22.214.171.124. locate the Equipment in the Customer Premises;.
126.96.36.199. have the Connection and associated CPEs installed at the Customer Premises;
188.8.131.52. use the Dedicated Server and Network Equipment in the Co-location Facility.
5. Service Levels
The following Service Levels apply to the Services described within this section, subject to the other provisions of these Conditions which may limit or reduce them. The remedies specified in this Section represent your exclusive remedy for CubeNox’s failure to achieve the Service Levels.
5.1. CubeNox shall ensure that all Co-Location Services are supported by the following:
5.1.1. we will notify you as soon as reasonably practicable (using either the 24 hour telephone number you provided on the CubeNox’s security access procedure form or the online portal ticket system) in the event that any of the following events have occurred and have affected the Co-Location Services:
184.108.40.206. any disaster or act of God including (but not limited to) explosions, fire, or flood;
220.127.116.11. theft or burglary;
18.104.22.168. power failure;
22.214.171.124. cooling failure.
5.2. Any faults or problems you detect must be reported immediately (and in any event within 24 hours) to the CubeNox Network Operations Centre (“NOC”) using the online portal ticket system or (in the event that it is not working) using a telephone number provided to you. The fault or problem will then be logged by the NOC and you will receive a Ticket number. 5.3. In the event that a problem concerning one of the Co-Location Services (“Event”) is either detected by our monitoring systems or reported by you in accordance with this Condition 5, we shall use our best endeavours to repair and restore the affected Service within the response times outlined in our Customer Service Plan
5.4. The response times will not apply where:
5.4.1 an Event is caused by any act or omission of the Customer, its employees, agents, or subcontractors;
5.4.2 an Event is caused by the Customer’s equipment;
5.4.3 an Event is caused by a Force Majeure event;
5.4.4 you do not report an Event in accordance with the procedures set out in Condition 5.2 above;
5.4.5 if at the time the maximum outside temperature exceeds 35oC or the minimum outside temperature is lower than -1oC, we will not be liable to give Fee Credits in respect of the climate SLA.
6. Planned maintenance
6.1. Where we consider (in our sole discretion) that it is necessary to carry out maintenance activities that will or may reasonably be expected to affect your Services, we shall notify you at least 48 hours in advance of the commencement of the works detailing the nature of the work to be carried out and the timetable for completion thereof. These works will be carried out in accordance with CubeNox’s standard procedures which are available to you upon request
Prohibited Uses of CubeNox Systems and Services
1. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
2. Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP or the AUP of any other internet service provider, which includes, without limitation, the facilitation of the means to send unsolicited bulk email, initiation of pinging, flooding, mail- bombing, denial of service attacks.
3. Unauthorized attempts by a user to gain access to any account or computer resource not belonging to that user (e.g. "cracking").
4. Obtaining or attempting to obtain service by any means or device with intent to avoid payment.
5. Unauthorized access, alteration, destruction, or any attempt thereof, of any information of any CubeNox customers or end-users by any means or device.
6. Knowingly engage in any activities designed to harass, or that will cause a denial-ofservice to any other user whether on the CubeNox network or on another provider's network.
7. Using CubeNox's Services to interfere with the use of the CubeNox System by other customers or authorized users.
Customer Responsibility for Customer's Users As a CubeNox Customer, you are responsible for the activities of your users and, by accepting service from CubeNox, you agree to ensure that your customers/representatives or end-users abide by this AUP. Complaints about your customers/representatives or endusers will be forwarded to your nominated main contact for action. If violations of the AUP occur, CubeNox reserves the right to terminate Services with or take action to stop the offending customer from violating CubeNox's AUP as CubeNox deems appropriate, without notice.