CLOUD COMPUTING SERVICES AGREEMENT
WITH
[CUSTOMER]
Logicalis UK
110 Buckingham Avenue
Slough
Berkshire SL1 4PF
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Table of Contents
Document Control and Information ................................................................................... 3
Cloud Computing Services Agreement ............................................................................. 4
Schedule 1: Contract Particulars .................................................................................... 26
Schedule 2: Computing as a Service .............................................................................. 28
Schedule 3: Storage as a Service ................................................................................... 32
Schedule 4: Network as a Service .................................................................................. 47
Schedule 5: Service Level Agreement ............................................................................ 52
Schedule 6: Charges and Payment Terms ..................................................................... 60
Schedule 7: Acceptable Use Policy ................................................................................ 62
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Document Control and Information
Document Information
File Name
Cloud Computing Agreement Template (Aug 11)
Save Date
14/03/2016 - 20:39
Current Document Status
Release
Revision History
Version
Date
Revision Details
1A
© Logicalis 2011. All rights reserved.
All trademarks are acknowledged.
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Cloud Computing Services Agreement
Date:
2011
Parties
Logicalis
Logicalis UK Limited, whose registered office is at 110 Buckingham Avenue,
Slough, Berks SL1 4PF.
Customer
[Insert name of Customer], whose registered office [insert registered office
address of Customer]
RECITALS
(A)
Logicalis has developed a cloud computing service which it makes available to its customers.
(B)
The Customer wishes to make use of and Logicalis has agreed to make available to the
Customer its cloud computing service.
(C)
The parties have agreed that their respective rights and obligations shall be as set out in this
Agreement (including the Schedules).
OPERATIVE PROVISIONS
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Definitions
1.1
In this agreement unless the context shall otherwise require the following words and
expressions shall have the following meanings:
Acceptable Use
The Acceptable Use Policy set out in Schedule 7 and any
Policy
subsequent modification in accordance with clause 12.2
Agreement
This agreement including the Schedules.
Application Storage
A method of delivering storage to the Customer based
Units
upon high speed SAS disks for application style
workloads.
Archive Storage Units
A method of delivering storage to the Customer based
upon higher density SATA disks for archival style
workloads.
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Availability
The amount of time during Hours of Cover in each
Quarter when the Services are available, measured as a
percentage, as defined in Schedule 5.
Blade
A self contained server which fits into an enclosure
(chassis) with other Blades
Carrier
Where the Customer takes External Carrier Services as
part of Network as a Service, the telecommunications
provider named in Schedule 4.
Contract Change
Any change to this Agreement or any matter arising under
it, including without limitation any change to the Services
but for the avoidance of doubt excluding any change to
which paragraph 5 of the SLA applies.
Change Advisory
A board consisting of nominated representatives of the
Board (or CAB)
Customer and Logicalis who will consider and approve or
reject any changes that are proposed under paragraph 5
of the SLA.
(Clarification note: the Change Advisory
Board does not form part of the Contract Change
Mechanism)
Contract Change
A written document executed by both parties confirming
Control Note
the details of a Contract Change which has been agreed
between the parties pursuant to the Contract Change
Mechanism
Contract Change
The procedure set out at clauses 12.6 to 12.8 to be
Mechanism
followed by the parties in proposing and agreeing any
Contract Changes
Charges
The charges as set out in Schedule 6 and any other
charges due under this Agreement
Cloud
The combination of hardware and software elements
described in Schedule 1 which Logicalis makes available
for use by its customers.
Computing as a
The cloud computing services as described in Schedule
Service
2. Computing as a Service are provided subject to the
terms of Schedule 2.
Commencement Date
As stated in the Contract Particulars
Confidential
This Agreement and all other information in whatever
Information
form (including oral) disclosed by one party to the other in
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respect of which the disclosing party owes an obligation
of confidence to a third party or which relates to the
disclosing
party’s
operations,
processes,
plans,
intentions, products, know-how, design rights, trade
secrets,
software,
market
opportunities,
customers,
business affairs or financial or contractual arrangements
or dealings, provided that each such item of information
either contains thereon or is accompanied by (in the case
of oral information within fourteen days of disclosure) a
written statement that it is confidential, or otherwise is
information which a reasonable person would consider to
be confidential because of its nature.
Content
Information, software and data, including but not limited to
HTML files, scripts, programs, recordings, sound, music,
graphics and images that the Customer creates, installs,
uploads or transfers through the Cloud.
Contract Particulars
The details contained in Schedule 1.
Dispute Resolution
The process for resolving Disputes set out in clause 19
Procedure
below
Enabling Service
Where one Service is a pre-requisite for the delivery of
another Service, for example, where Network as a
Service is a pre-requisite for the operation of Computing
as a Service.
Equipment
A hardware component of the Cloud.
External Carrier
The provision of network connectivity between the
Services
Customer’s computing environment and the Cloud by
means of a Carrier as described in Schedule 4.
Hours of Cover
The hours of cover described in paragraphs 3 and 5 of
Schedule 6.
Incident
The record of a reported fault within the Incident
Management System
Incident Management
The system used by Logicalis to record Incidents to which
System (or IMS)
Logicalis is required to respond under this Agreement.
Intellectual Property
Patents, trade marks, service marks, domain names,
Rights
registered designs, utility models, applications for and the
right to make applications for any of such rights, inventions,
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know-how, confidential information, unregistered trade
marks and service marks, trade and business names,
including rights in any get-up or trade dress, copyrights
(including rights in computer software), unregistered design
rights and other rights in designs and database rights and
all rights of the same or similar effect or nature as any of the
above subsisting in any part of the world
Logicalis Data Centre
Either of the data centres owned by Logicalis and located
as follows:
110 Buckingham Avenue, Slough, Berks SL1 4PF
Unit 2, Zenith Business Park, Downmill Road, Bracknell,
Berks, RG12 1GJ
MAC
An implementation of either a move, an addition or a
change and is defined as no more than one hour of MSC
engineering
time performed by Logicalis during a
Working Day.
MSC
The Managed Service Centre (operations centre) for the
Logicalis group currently located at 110 Buckingham
Avenue, Slough, Berkshire SL1 4PF, or any other
operations centre used by Logicalis in connection with the
Services at any time during the Term
NetApp
NetApp UK Ltd. a company organized and existing under
the laws of England and Wales, having its registered
office at Waterview House, 1 Roundwood Avenue,
Stockley Park, Middlesex, Uxbridge UB11 1EJ
Network as a Service
The network connectivity services as described in
Schedule 4. Network as a Service are provided subject to
the terms of Schedule 4.
Normal Working
9 a.m. to 5.30 p.m. on a Working Day
Hours
Priority Level
A measure of the severity of the impact of a fault as
defined in paragraph 4.2 of the SLA.
Quarter
Each successive period of three calendar months, the first
commencing on the Commencement Date, and ‘quarterly’
shall be interpreted accordingly
Remote Response
The time, measured from the time that an Incident is
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Time
raised within the IMS, for an engineer to be assigned and
to begin the investigation of an Incident.
Senior CAB
A
Change
Advisory
Board
consisting
of
senior
representatives nominated by the Customer and Logicalis
Service Credits
A credit against the Charges given by Logicalis to the
Customer for performance of the Services which falls
short of the Service Level.
Service Level
The standard to which Logicalis is to perform the Services
as described in the SLA.
Service Level
The service level agreement set out in Schedule 5.
Agreement or SLA
Service Management
The service provided in accordance with paragraph 7 of
the SLA
Service Year
Each period of 12 months the first of which shall
commence on the Commencement Date and the second
and subsequent of which shall commence on each
anniversary thereof during the Term.
Services
The Services described in the Contract Particulars which
may include all or any of Computing as a Service, Storage
as a Service and Network as a Service.
Storage as a Service
The storage services as described in Schedule 3.
Storage as a Service are provided subject to the terms of
Schedule 3.
Target Diagnostic
The time, measured from the time that an Incident is
Time
raised within the IMS and as shown in the table in
paragraph 4.2 of the SLA, within which Logicalis aims to
have diagnosed the cause of a fault in equipment.
Target Resolution
The time, measured from the time that an Incident is
Time
raised within the IMS and as shown in the table in
paragraph 4.2 of the SLA, within which Logicalis aims to
have restored faulty equipment to operation or to have
achieved an acceptable work around
Term
The period stated in the Contract Particulars and includes
any extended period agreed in accordance with clause
10.1.
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Uncommitted Blade
As described in paragraph 4 of Schedule 2.
Days
Working Day
Monday to Friday (excluding Bank and public holidays in
England)
1.2
The headings in this Agreement are for ease of reference only and shall not affect its
interpretation.
1.3
Reference to the singular includes the plural and vice versa, and reference to a gender
includes the other gender.
1.4
References to clauses and schedules are, unless otherwise stated, references to Clauses
and Schedules of this Agreement.
1.5
References to a statutory provision include a reference to that statutory provision as from time
to time amended, extended or re-enacted and any regulations made under it provided that in
the event that the amendment, extension or re-enactment of any statutory provision or
introduction of any new statutory provision has a material impact on the obligations of either
party, the parties will negotiate in good faith to agree such amendments to this Agreement as
may be appropriate in the circumstances.
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Agreement
2.1
The terms and conditions of this Agreement shall apply to the exclusion of any standard terms
or conditions of Customer or Logicalis, whether appearing in any purchase order,
acknowledgement of order or in any other document issued by either of the parties and
notwithstanding any statement to the contrary appearing in such standard terms or conditions.
2.2
In the case of any conflict or inconsistency between the clauses and the Schedules of this
Agreement the clauses of this Agreement shall take priority over the Schedules.
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Services
3.1
In consideration of the performance by the Customer of the Customer’s obligations under this
Agreement (including but not limited to the payment of the Charges), Logicalis agrees to
provide such of the following Services as are stated in Schedule 1 as being taken by the
Customer:
3.1.1
Computing as a Service in accordance with the terms of Schedule 2; and
3.1.2
Storage as a Service in accordance with the terms of Schedule 3; and
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3.1.3
Network as a Service in accordance with the terms of Schedule 4.
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Telecommunications Services
4.1
The installation of telecommunications connections or apparatus in the Logicalis Data Centre
or to equipment located in the Logicalis Data Centre is subject to Logicalis’ approval and
Logicalis may require any such apparatus or connections to be disconnected or removed if it
has reasonable grounds for doing so including if it reasonably believes that such apparatus or
connections may pose a risk to health and safety or may interfere with operation of other
equipment located at or services provided from the Logicalis Data Centre.
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Customer Obligations
5.1
The Customer shall not access, store, distribute or transmit any viruses, or any Content or
other material during the course of its use of the Services that:
5.1.1
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or
racially or ethnically offensive;
5.1.2
facilitates illegal activity;
5.1.3
depicts sexually explicit images;
5.1.4
promotes unlawful violence;
5.1.5
is discriminatory based on race, gender, colour, religious belief, sexual orientation,
disability, or any other illegal activity;
5.2
5.1.6
causes damage or injury to any person or property; or
5.1.7
infringes the Intellectual Property Rights of any third party.
Customer shall indemnify and keep indemnified Logicalis from and against any and all costs,
losses, charges, damages expenses, claims, demands, liabilities, actions and proceedings
whatsoever suffered by Logicalis which may arise out of a breach or non observance of
clause 5.1 by Customer or its employees, agents or subcontractors.
5.3
Customer must comply with all reasonable security standards notified by Logicalis when
accessing the Cloud and shall use all reasonable security precautions in connection with its
use of the Services including maintaining up to date virus scanning and operating system
security patches and firewall protection..
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5.4
The Customer shall comply with all applicable laws and regulations with respect to its
activities under this Agreement.
5.5
The Customer shall comply with the Acceptable Use Policy.
5.6
Except where the Service specifically includes the taking of back up copies of data by
Logicalis, the Customer shall be responsible for backing up its data onto appropriate separate
storage media with a regularity appropriate to the estimated value of that data.
5.7
The Customer is solely responsible for all Content including, without limitation, its selection,
creation, design, licensing, installation, accuracy, maintenance, testing, backup and support;
for all copyright, patent and trademark clearances in all applicable jurisdictions and usage
agreements for all Content; for the selection of controls on the access and use of Content and
the selection, management and use of any public and private keys and digital certificates it
may use with the Services.
5.8
The Customer will be responsible for purchasing, licensing, installation, management and
maintenance of all software and hardware apart from the Cloud including but not limited to
Hypervisors, Operating Systems, Applications and platform connected systems.
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Payment Terms
6.1
The Charges are payable at the times or intervals set out in Schedule 6.
6.2
If any invoice is not paid by the due date Customer shall indemnify Logicalis against all costs
and expenses (including any legal costs and expenses on a full indemnity basis) incurred or
sustained by Logicalis in recovering sums due in each case without prejudice to any other
rights or remedies available to Logicalis and in addition Logicalis may (unless the Customer
genuinely disputes the amount payable and has complied with clauses 6.5.1 and 6.5.3), at its
discretion terminate this Agreement pursuant to Clause 10.2 (termination for breach) if
Customer is more than 60 days late in paying any invoice.
6.3
The Charges are exclusive of Value Added Tax (VAT), if applicable, which shall be payable
by Customer on receipt of a valid VAT invoice.
6.4
Unless otherwise stated all invoices issued under this Agreement are payable within 30 days
of the date of the invoice.
6.5
If the Customer receives an invoice which it reasonably believes includes a sum which is not
valid and properly due:
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6.5.1
the Customer shall notify Logicalis in writing as soon as reasonably practicable;
6.5.2
the Customer's failure to pay the disputed Charges shall not be deemed to be a
breach of this Agreement;
6.5.3
the Customer shall pay the balance of the invoice which is not in dispute by the due
date for payment;
6.5.4
either party may refer the matter to the Dispute Resolution Procedure;
6.5.5
once the dispute has been resolved, where either party is required to make a
balancing payment, it shall do so within 10 Working Days and, where Logicalis is
required to issue a credit note, it shall do so within 20 Working Days.
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Liability
7.1
Neither party excludes or limits liability to the other party for:
7.1.1
death or personal injury due to negligence; or
7.1.2
fraudulent misrepresentation; or
7.1.3
breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2
Supply of Goods and Services Act 1982; or
7.1.4
7.2
any other liability which may not be excluded by law.
Logicalis’ liability for a breach of warranty in respect of the Services will be limited to the
supplying of the Services again.
7.3
Subject to clause 7.1, the total liability of Logicalis arising out of or under this Agreement in
any Service Year in respect of any or all events giving rise to any loss or damage from any
cause whatsoever in that Service Year shall not exceed;
7.3.1
in the case of loss or damage to any property £1,000,000 (one million pounds); and
7.3.2
in the case of any other loss or damage a sum equal to the amount of the Charges
payable by Customer under this Agreement in the Service Year in respect of which
the loss or damage arose or £1,000,000 (one million pounds) whichever is the lesser.
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7.4
Subject to clause 7.1, but without prejudice to clause 7.3;
7.4.1
the total liability of Logicalis arising from the External Carrier Services in any Service
Year shall not exceed the maximum liability as set out in the terms and conditions
contained in Schedule 4 if any ; and
7.4.2
the total liability of Logicalis arising from the Storage as a Service shall not exceed a
sum equal to the amount of the Charges payable by Customer under this Agreement
in the Service Year in respect of which the loss or damage arose or £200,000 (two
hundred thousand pounds) whichever is the lesser.
7.5
Subject to clause 7.1, Logicalis will not be liable for any loss of profits, revenues, business,
goodwill, anticipated savings, data or any special, indirect, consequential or economic loss,
howsoever arising (in negligence or otherwise), in relation to or otherwise in connection with
the Services, this Agreement or any act or omission by Logicalis.
7.6
If for any reason the exclusion of liability in clause 7.5 above is void or unenforceable,
Logicalis’ total liability for all loss or damage under this Agreement shall be as provided in
clause 7.3.
7.7
No action (including mediation or litigation) may be brought under this Agreement more than
two years after the circumstances giving rise to the action have come, or with reasonable
diligence should have come, to the notice of the party bringing the action.
7.8
Logicalis is not liable to the Customer for any unauthorised access to the Customer’s data
unless such unauthorised access is due to Logicalis’ negligence.
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Disaster Recovery
8.1
Any disaster recovery requirements required by the Customer will be subject to a separate
quotation and a specific contract for such purposes between Logicalis and the Customer.
Logicalis does not provide any disaster recovery services as part of the Services.
8.2
Logicalis has no knowledge of the type, content or value of the data stored on the Cloud by
the Customer and (except where the Service specifically includes the taking of back up copies
of data by Logicalis) the Customer is responsible for arranging for the back up and storage of
all data, materials and documents in accordance with good industry practice.
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9
Suspension of Services
9.1
Logicalis, upon giving notice to Customer, may elect at its sole discretion, without prejudice to
any of its rights to terminate this Agreement and without liability, to suspend forthwith
provision of all or any of the Services until further written notice is given in the event that:
9.1.1
Logicalis has reasonable grounds for suspecting Customer of using any part of the
Services in breach of clauses 5.1, 5.3 or 5.4 or attempting to do so, or of committing
any other illegal or unlawful act in connection with the use of the Services;
9.1.2
Customer has not paid any of the charges set out in Schedule 6 in relation to the
Services when due;
9.1.3
Logicalis reasonably believes that the provision of the Services will cause it to breach
an applicable law or regulation; or
9.1.4
Logicalis is required by law to suspend the Services; or
9.1.5
Logicalis has the right to terminate the Agreement provided that suspension in such a
case operates without prejudice to Logicalis' right to terminate.
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Term and Termination
10.1
This Agreement shall be deemed to have commenced on the Commencement Date and
(subject to earlier termination under Clauses 10.2 or 10.3) shall continue in force for the Term
and shall then expire unless the parties have agreed in writing to renew or extend this
Agreement.
10.2
Either party may terminate this Agreement forthwith by notice in writing to the other party
where the other party has committed a material breach which either (a) is incapable of
remedy, or (b) which is capable of remedy but the other party has failed to remedy such
breach within thirty (30) days of receiving notice specifying the breach and requiring its
remedy.
10.3
Either party may terminate this Agreement forthwith by notice in writing to the other party
when the other party is unable to pay its debts as they fall due within the meaning of the
Insolvency Act 1986 (as amended by the Insolvency Act 2000) or if any action, application or
proceeding is made with regard to it for:
10.3.1 a voluntary arrangement or composition or reconstruction of its debts;
10.3.2 the presentation of an administrative petition;
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10.3.3 its winding-up or dissolution;
10.3.4 the appointment of a liquidator, trustee, receiver, administrative receiver or similar
officer;
10.3.5 any similar action, application or proceeding in any jurisdiction to which it is subject;
and/or
10.3.6 distress or execution to be levied upon Customer’s property or assets
10.4
For the avoidance of doubt, neither party shall be entitled to terminate this Agreement
pursuant to clause 10.3 where a resolution that a party be wound up is for the purpose of a
bona fide reconstruction or amalgamation.
10.5
Except for Clauses 5.2, 10, 11, 13, 18.6 and 19, and any provisions of the Schedules which
expressly or by implication survive expiry or termination, which shall remain in full force and
effect, expiry or termination of this Agreement shall relieve both parties from further
performance of their respective obligations hereunder but shall not affect the accrued rights of
either party in respect of this Agreement or any breach.
10.6
For the purposes of Clause 10.2 a breach shall be considered capable of remedy if the party
in breach can comply with the provision in question substantially in all respects other than as
to time of performance.
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Consequences of expiry or earlier termination
11.1
The provisions of this Clause 11 shall apply upon the expiry of this Agreement or the earlier
termination of the Agreement under Clause 10.
11.2
The Customer’s right to access the Cloud shall cease on the date of termination.
11.3
Without prejudice to any rights or remedies arising as a result of such expiry or termination
Logicalis shall be entitled to be paid in accordance with the Agreement for all payments due
to Logicalis prior to the date of expiry or termination.
11.4
Logicalis will return to the Customer all Customer data in its possession at the date of
termination in its then existing format and on media supplied by the Customer.
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12
Contract Change Control
12.1
Any Contract Change shall be agreed between the parties in accordance with the Contract
Change Mechanism.
12.2
This Agreement may not be amended except in writing signed by a duly authorised
representative of each party, except that Logicalis, in its reasonable discretion, may modify
the Acceptable Use Policy upon thirty (30) days’ prior written notice to the Customer. If such
modification has a material adverse effect on the Customer’s use of the Services, and
provided such modification is not required by law, regulation or similar governmental action,
or a ruling by a court of competent jurisdiction, then the Customer may terminate this
Agreement without payment of termination charges provided the Customer gives Logicalis
written notice of its intention to terminate within ninety (90) days of the effective date of such
modification.
12.3
Each party shall bear its own costs in connection with the preparation of all documentation
relating to and negotiation of proposed Contract Changes.
12.4
Any discussions, negotiations, or other communications that may take place between the
parties in connection with any proposed Contract Change shall be without prejudice to the
rights of either party.
12.5
At any time during the term of this Agreement Customer may request or Logicalis may
suggest any reasonable alteration to this Agreement.
12.6
Any suggestion or request for a Contract Change shall be in writing and served on the other
party in accordance with clause 14 below.
12.7
Logicalis shall submit with any such suggested Contract Change, or in response to a request
for a Contract Change from Customer, details of the effect the proposed Contract Change will
have on its provision of the existing Services and/or this Agreement and any alteration that
will be made to the Charges in respect of that Service Year and future Service Years.
12.8
If agreement is reached between the parties on such suggestion or request, the party
proposing the Contract Change shall prepare a written record of the alteration to this
Agreement for signature by both parties (a ‘Contract Change Control Note’). No change to
this Agreement shall be made until a Contract Change Control Note is so agreed and signed.
With effect from the date of such signature this Agreement shall be deemed to be varied as
set out in the Contract Change Control Note.
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12.9
No proposed Contract Change to this Agreement shall be binding on the parties unless the
requirements of the Contract Change Mechanism have been satisfied and a Contract Change
Control Note is signed by both parties. Until such documentation is signed by the Customer
and Logicalis, each party shall continue to perform its obligations under this Agreement
without taking account of the proposed Contract Change.
12.10
Once a Contract Change Control Note has been signed by both parties, such Contract
Change Control Note shall constitute an amendment to this Agreement in accordance with
the content thereof with effect from the date of signature.
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Confidential Information
13.1
Each party undertakes in relation to the other party’s Confidential Information;
13.1.1 To maintain the same in confidence and to use it only for the purposes for which it
was disclosed and for no other purpose and in particular, but without prejudice to the
generality of the foregoing, not to make any commercial use thereof or use the same
for the benefit of itself or of any third party other than pursuant to this Agreement or a
further agreement with the other party;
13.1.2 to apply thereto no lesser security measures and degree of care than those which the
receiving party applies to its own confidential information, but in any event not less
than reasonable care to protect the Confidential Information;
13.1.3 not to copy or reduce to writing any part thereof except as may be reasonably
necessary for the proper use of the Confidential Information for the purposes for
which it was disclosed, and that any such copies or reductions to writing shall be the
property of the disclosing party; and
13.1.4 not to disclose the same to its employees except in confidence to such of its
employees who need to know the same and shall ensure that any employee to whom
Confidential Information is disclosed is made aware of and complies with its
obligations hereunder.
13.2
The restrictions on the disclosure of Confidential Information contained herein shall not apply
to;
13.2.1 information which was in the public domain at the time it was disclosed or which
subsequently enters the public domain other than by a breach of the provisions of this
Agreement by the recipient party;
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13.2.2 information which was already known to the recipient party prior to its receipt thereof
from the disclosing party and which was not previously acquired by the receiving
party from the disclosing party under an obligation of confidence, or which is
independently discovered by the recipient party;
13.2.3 information which is disclosed to the recipient party by a third party without restriction
on disclosure or use; or
13.2.4 any disclosure of Confidential Information required by law, by any rule or regulation of
any stock exchange of which the recipient party is a member, by any Court procedure
or by any rule or regulation of any governmental or quasi-governmental authority
having jurisdiction over the recipient party. Provided that, so far as is practicable to
do so the recipient party shall consult with the disclosing party prior to such disclosure
and shall in any event inform the disclosing party of the nature, content and timing of
the disclosure of its Confidential Information.
13.3
The disclosure of Confidential Information shall not confer on the recipient party any right or
licence to it or to any copyright or other intellectual property rights in it.
13.4
Each party shall, upon receipt of a written request from the other, return to the other all
Confidential Information (including any and all copies thereof in whatever form) received by it
under this Agreement.
13.5
Each party warrants that it has the right to disclose its Confidential Information to the other
party and the right to authorise the other party to use the same on the terms of this
Agreement.
13.6
Each party acknowledges that damages alone would not be an adequate remedy for any
breach of the provisions of this Clause and, accordingly, without prejudice to any and all other
rights or remedies that either party may have against the other each shall be entitled without
proof of special damage to the remedies of injunction, specific performance and other
equitable relief for any threatened or actual breach of the provisions of this Clause.
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Notices
14.1
Any notice, document or other communication given in connection with this Agreement must
be in writing and must be left at or sent by facsimile or pre-paid post addressed to a party at
the party's registered office or at such other address as may be notified for the purpose of the
service of notices hereunder. A notice delivered by hand is deemed to have been given on
the date on which it is left, a notice sent by facsimile is deemed to have been given at the time
of dispatch if sent during normal office hours (or if outside normal office hours the next
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Working Day following its transmission) and a notice sent by post is deemed to have been
given (in the absence of evidence of earlier receipt) two Working Days after the date of
posting if sent first class (and 4 Working Days after the date of posting if sent second class)
and in proving posting it shall be sufficient to show that the envelope containing such notice,
document or other communication was properly addressed, stamped and posted.
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Force Majeure
15.1
Neither party will be liable for any delay or failure to fulfil its obligations under this Agreement
if and to the extent that such delay or failure arises from any cause reasonably beyond its
control including but not limited to acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental action after the date of this Agreement, failure to obtain wayleaves or any other
necessary consents or permissions having used reasonable endeavours to do so, acts or
omissions of the other party, fire, communication line failures, power failures, earthquakes or
other disasters (called “Force Majeure”).
15.2
The party unable to fulfil its obligations due to Force Majeure will immediately:
15.2.1 notify the other in writing of the reasons for its failure to fulfil its obligations and the
effect of such failure; and
15.2.2 use all reasonable endeavours to avoid or remove the cause and perform its
obligations.
15.3
Where a Force Majeure event prevents either party from performing the whole or a
substantial part of its obligation under this Agreement and continues for more than 180 days,
the party not affected by Force Majeure may immediately terminate this Agreement on written
notice to the other.
16
Warranties
16.1
Logicalis warrants that:
16.1.1 it shall discharge its obligations hereunder with all due skill, care and diligence and in
accordance with its own established internal procedures;
16.1.2 all personnel assigned to the performance of the Services shall possess and exercise
such qualifications, skill and experience as are necessary for the proper performance
of the Services
16.1.3 it has the full capacity and authority and all necessary consents to enter into and
perform this Agreement and that this Agreement is executed by a duly authorised
representative of Logicalis.
19
16.1.4 it has and will maintain all necessary licences, consents, and permissions necessary
for the performance of its obligations under this Agreement.
16.2
Logicalis does not warrant that Customer’s use of the Services will be uninterrupted or error
free.
16.3
Customer warrants that:
16.3.1 all personnel assigned to the performance of Customer’s obligations under this
Agreement shall possess and exercise such qualifications, skill and experience as
are necessary for the proper performance of those obligations;
16.3.2 it has the full capacity and authority and all necessary consents (including, but not
limited to, where its procedures so require, the consent of its parent company) to
enter into and perform this Agreement and that this Agreement is executed by a duly
authorised representative of Customer;
16.3.3 It owns, or is a licensee of, having the right to sublicense, the Content and that the
Content does not and will not infringe, violate or misappropriate any Intellectual
Property Rights of any third party.
17
Transfer of Undertakings
17.1
Application of this Clause
17.1.1 This clause shall apply if and to the extent that the Transfer of Undertakings
(Protection of Employment) Regulations 2006 (the ‘Regulations’) shall apply at the
commencement of this Agreement.
17.2
Provisions If the Regulations Apply
If the Regulations shall apply to this Agreement:
17.2.1 Indemnity
(a)
The Customer shall indemnify Logicalis against all wages, holiday pay, employment
benefit costs, redundancy costs and unfair or wrongful dismissal costs and awards
arising from any act or omission of the Customer before the date of the transfer, in
respect of any person whose contract of employment has effect by reason of the
operation of the Regulations as if originally made with Logicalis; and
17.2.2 Regulations 13(2) and 13(4)
20
(a)
The Customer shall indemnify and keep indemnified Logicalis from and against any
and all costs, losses, charges, damages expenses, claims, demands, liabilities,
actions and proceedings whatsoever suffered by Logicalis which may arise out of any
failure of the Customer to comply with its obligations under Regulation 13(2) (duty to
inform and consult representatives) of the Regulations except in so far as such failure
is directly or indirectly caused by a failure by Logicalis to comply with its obligations
under Regulation 13(4) of the Regulations; and
(b)
Logicalis shall indemnify and keep indemnified the Customer from and against any
and all costs, losses, charges, damages expenses, claims, demands, liabilities,
actions and proceedings whatsoever suffered by the Customer which may arise out
of any failure of Logicalis to comply with its obligations under Regulation 13(4) of the
Regulations; and
17.2.3 Regulation 11
(a)
The Customer shall supply to Logicalis the information required by Regulation 11
(Notification of Employee Liability Information) in a timely fashion whether or not such
information is requested by Logicalis; and
17.2.4 Warranty
(a)
The Customer warrants that all information communicated to Logicalis by the
Customer or its employees in connection or arising out of the application or possible
application of the Regulations to the arrangements contemplated by this Agreement
will be true, complete and accurate in all material respects.
17.2.5 Termination of Employment
The Customer shall indemnify and keep indemnified Logicalis against all payments
made by Logicalis as a result of the termination of employment of any person whose
contract of employment has effect by reason of the operation of the Regulations as if
originally made with Logicalis (“Affected Employee”) within 3 months of the transfer
date such payment being:
(a)
statutory redundancy payments in accordance with section 162 of the Employment
Rights Act 1996;
(b)
any payments to which any Affected Employee is entitled or the Customer has
reserved the right to pay either by contract or by previous conduct under (without
21
limitation) any individual contract of employment, any collective agreement and/or any
related or supplemental agreement thereto, or any other agreement under which any
Affected Employee is entitled to a redundancy or other termination payment under a
voluntary redundancy or other scheme; and
(c)
any other contractual entitlements (including, without limitation, payments in lieu of
notice and compensation for loss of benefits).
(d)
any reasonable severance payments made under (without limitation) any compromise
agreement;
(e)
the reasonable costs of legal advice provided to any Affected Employee for the
purpose of complying with legal requirements relating to compromise agreements;
and
(f)
any and all costs, losses, claims, damages, awards, expenses or proceedings
suffered or incurred by Logicalis which relate to or arise out of any and all claims or
proceedings brought or threatened by any Affected Employee in relation to such
dismissals.
17.2.6 Claims
In respect of any claim arising under any of the above indemnities, the party claiming the right
to be indemnified (the ‘Indemnified Party’) shall:
(a)
as soon as possible give the other party (the ‘Indemnifying Party’) written notice of the
claim; and
(b)
not without the written consent of the Indemnifying Party (which shall not be
unreasonably withheld or delayed) admit liability or make any offer, promise or
compromise in respect of the claim; and
(c)
allow the Indemnifying Party to conduct at the Indemnifying Party’s cost the defence
or settlement of the claim.
18
General
18.1
This Agreement is complete and constitutes the entire agreement between the parties with
respect to the subject matter hereof and any and all written or oral agreements,
representations (other than fraudulent misrepresentations) or understandings of any kind that
may have been made prior to the date of this Agreement shall be deemed to have been
22
superseded by the terms of this Agreement. No statement or representation made by either
party has been relied upon by the other party in agreeing to enter into this Agreement.
18.2
All implied terms or warranties are excluded to the fullest extent permitted by law.
18.3
Neither party may assign any or all of its rights under the Agreement without the prior written
consent of the other party, which will not be unreasonably withheld or delayed.
18.4
Neither party may sub-contract any of its obligations under this Agreement without the prior
written consent of the other party, which will not be unreasonably withheld or delayed.
18.5
Any failure by either party to enforce or take action on any of its rights under this Agreement
shall not be construed as a waiver of the same.
18.6
Severability
18.6.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any
reason by any court of competent jurisdiction, such provision shall be severed and
the remainder of the provisions hereof shall continue in full force and effect as if this
Agreement had been executed with the invalid, illegal or unenforceable provisions
eliminated. In the event that a provision of this Agreement that is fundamental to the
accomplishment of the purpose of the Agreement is held invalid, Logicalis and
Customer shall immediately commence good faith negotiations to remedy such
invalidity.
18.6.2 The invalidity or unenforceability of any provision of the Agreement shall not affect the
validity or enforceability of any other provision of the Agreement and the Agreement
shall continue in full force and effect except for any such invalid and unenforceable
provision.
18.7
A person who is not a party to this Agreement has no right under the Contracts (Rights of
Third Parties) Act 1999 (the “Act”) to enforce any term of this Agreement but this does not
affect any right or remedy of any person which exists or is available otherwise than pursuant
to that Act. The consent of any third party is not required for any variation (including any
release or compromise of any liability hereunder) or termination of this Agreement.
18.8
Logicalis and Customer acknowledge and agree that this Agreement shall not constitute,
create or give effect to a joint venture, pooling arrangement, principal/agency relationship,
partnership or formal business organisation of any kind and neither Logicalis nor Customer
shall have the right to bind the other without the other’s express prior written consent.
23
19
Dispute Resolution
19.1
Save where expressly stipulated to the contrary in this Agreement all and any disputes or
differences arising out of or in connection with this Agreement (including any question as to its
validity or termination) (the ‘Dispute’) shall be resolved in accordance with the provisions of
this clause 19.
19.2
Dispute Notice
19.2.1 Either party may serve on the other party a notice in writing setting out the full
particulars of the Dispute and the remedy sought (the ‘Dispute Notice’). The party
serving the Dispute Notice shall at the same time supply the other party with copies of
all documents that it relies on.
19.2.2 The party receiving the Dispute Notice must serve a written reply within fourteen (14)
days of receipt, together with any documents that it relies on.
19.3
Negotiation
19.3.1 Each party shall designate a person with decision making authority (the
‘Representative’) to act on its behalf regarding the Dispute. The parties, acting by
their respective Representatives, shall meet at a mutually acceptable time and place
within fourteen (14) days after the stipulated deadline for the service of a reply to the
Dispute Notice and attempt in good faith to negotiate a resolution of the Dispute. The
terms of any negotiated resolution shall be recorded in writing, signed on behalf of the
parties by their Representatives, and shall be final and binding on the parties. Where
the terms of settlement involve any change in the Services the parties shall if
necessary execute a Contract Change Control Note in accordance with Clause 12.
19.4
Mediation
19.4.1 In the event that the Representatives have not succeeded in negotiating a settlement
to a Dispute within twenty one (21) days of their first meeting, or if the
Representatives have not met within twenty eight (28) days after the stipulated
deadline for the service of a reply to the Dispute Notice, the parties will attempt to
settle the dispute by mediation in accordance with the Centre for Effective Dispute
Resolution (CEDR) Model Mediation Procedure (“the Model Procedure”). The parties
may agree to initiate mediation without previously having attempted to settle the
Dispute by negotiation.
19.5
Mediation before Litigation
19.5.1 Subject to Clause 19.6 no party may commence any court proceeding or arbitration in
relation to any Dispute until they have attempted to settle it by mediation and that
mediation has terminated.
24
19.6
Litigation without Mediation
19.6.1 Notwithstanding the foregoing provisions of this Clause 19 either party may, without
prejudice to any other rights or remedies available to it, commence proceedings in the
courts for any available relief or remedy:
(a)
where any of Logicalis’ invoices are not paid by the due date for payment
(unless there is a genuine dispute as to the amount payable and Customer
has paid any undisputed part of the invoice by the due date), or
(b)
both parties agree in writing not to follow the procedure set out in clauses
19.1 to 19.5 above; or
(c)
the Dispute concerns an alleged breach of clause 5 (Customer Obligations)
or 13 (Confidential Information).
20
Law
20.1
This Agreement shall be governed by and construed in accordance with English Law.
20.2
Customer and Logicalis hereby irrevocably submit to the jurisdiction of the English Courts.
Signed……………………………………
Signed………………………………………..
Name………………………………………..
Name…………………………………………..
Title………………………………………….
Title………………………………………….
Date………………………………………
Date………………………………………….
For Logicalis UK Limited
For Customer
25
Schedule 1: Contract Particulars
Summary of Services
Computing as a Service
Y/N
Network as a Service
Y/N
Storage as a Service
Y/N
Quad as a Service
Y/N
Commencement Date
DD MM YYYY
Term
[•] years from the Commencement Date
Computing as a Service
MK1 Blades
Number
Dedicated Blades
[.]
Guaranteed Blades
[.]
Uncommitted Blade Days
[.]
MK2 Blades
Dedicated Blades
[.]
Guaranteed Blades
[.]
Uncommitted Blade Days
[.]
Blade Harbour
Number of slots
Network as a Service
[.]
Number
Resilient10/100/1000 Access port pairs
[.]
Resilient 1Gb SX Access port pairs
[.]
Resilient 10Gb SR Access port pairs
[.]
Resilient 1Gb Core port pairs
[.]
Resilient 10Gb Core port pairs
[.]
Rack Based 48 Port 100Mb/1GbE Access
Device
[.]
Internet Bandwidth per peak Mbit
[.]
Janet Bandwidth per peak Mbit
[.]
Inter DC bandwidth per peak 100 Mbit
increment
[.]
External Carrier Services
Storage as a Service
Y/N
Number
SAS Storage Volume Total Gb
[.]
SATA Storage Volume Total Gb
[.]
26
NetApp Volume tape backup retention
(yes/no)
Quad as a Service
Y/N
MK1 Blades
Number
Dedicated Blades
[.]
Guaranteed Blades
[.]
Uncommitted Blade Days
[.]
MK2 Blades
Dedicated Blades
[.]
Guaranteed Blades
[.]
Uncommitted Blade Days
[.]
Blade Harbour
Number of slots
Quad as a Service
[.]
Number
Resilient10/100/1000 Access port pairs
[.]
Resilient 1Gb SX Access port pairs
[.]
Resilient 10Gb SR Access port pairs
[.]
Resilient 1Gb Core port pairs
[.]
Resilient 10Gb Core port pairs
[.]
Rack Based 48 Port 100Mb/1GbE Access
Device
[.]
Internet Bandwidth per peak Mbit
[.]
Janet Bandwidth per peak Mbit
[.]
Inter DC bandwidth per peak 100 Mbit
increment
[.]
External Carrier Services
Quad as a Service
Y/N
Number
SAS Storage Volume Total Gb
[.]
SATA Storage Volume Total Gb
[.]
NetApp Volume tape backup retention
(yes/no)
Y/N
Term
[•] years from the Commencement Date
Moves, Adds and Changes
Number of Moves, Adds and Changes
Number
(MACS) Per Annum included within the
Fixed Charge:
27
[.]
Schedule 2: Computing as a Service
Specification and Service Description
Logicalis has standardised on the half width Cisco UCS Blades for this service which are configured
as follows:
MK1 Blades

Dual 2.53GHz Xeon E5540 processors with 8Mb cache (i.e. 2 x quad core = 8 core)

48Gb of RAM

Qlogic Converged Network Adapter with dual 10Gb uplinks

10Gb boot LUN of storage
MK2 Blades

Dual 2.66GHz Xeon E5640 processors with 8Mb cache (i.e. 2 x quad core = 8 core)

80Gb of RAM

Qlogic Converged Network Adapter with dual 10Gb uplinks

10Gb boot LUN of storage
Further storage capacity is available using Logicalis’ Storage as a Service. Connectivity to the system
is provided through a resilient 10Gb Ethernet network connection which can be accessed using
Logicalis’ Network as a Service.
The Customer has the following service options within Computing as a Service:

Dedicated Blade Service – A commitment to providing a dedicated Blade for 365 days per
year, 24hrs a day.

Guaranteed Blade Service – A commitment to provide a dedicated Blade for 30 days per
annum to be invoked by the Customer as required. Logicalis will provide the Blade according
to the SLA defined in Schedule 5. This service is typically used to support a customer’s
Business Continuity Plan (BCP) by providing computing resources in a DR situation and to
allow for the invocation and testing of the service during the contracted period.
Each
invocation utilises one MAC.

Uncommitted Blade Days – Provides a dedicated Blade for a number of days per annum,
but delivered on the basis that Logicalis may revoke such provision should another customer
invoke a disaster recovery requirement through the Guaranteed Blade Service.
Each
invocation utilises one MAC.

Blade Harbour Option – provides a managed full or half slot in a Cisco UCS chassis for the
installation of a UCS Blade to the Customer’s own specification.
The following service facilities will be provided:
Setup of Computing as a Service:
28

Design and documentation of connectivity and configuration options

Implementation of connectivity to Computing as a Service and configuration of service options
Day to Day Operation:

Monitoring of Computing as a Service hardware, including customer-specific Blade servers

Incident management and fault resolution

Management of changes to the Computing as a Service infrastructure
Service Management

Production of monthly availability and utilisation reports

Production monthly Incident reports

Escalation management
Computing as a Service can be combined with other Logicalis ‘as a Service’ offerings such as
Network as a Service and Storage as a Service to generate a bespoke managed service environment
to meet a customer’s business needs.
Computing as a Service can be supplemented with additional managed services to provide higher
level management of operating systems and applications should this be required.
Terms and Conditions of Supply
1
Introduction
1.1
This Schedule sets out the terms and conditions, in addition to those contained in the
Agreement, on which Logicalis shall provide Computing as a Service.
1.2
Logicalis shall provide Computing as a Service at the Logicalis Data Centre.
2
Dedicated Blade Service
2.1
As at the Commencement Date the Customer is entitled to use the number of Blades shown
in Schedule 1 (Contract Particulars).
2.2
The physical Blades that provide this service may be changed should a fault occur.
3
Guaranteed Blade Service
3.1
Where the Customer has taken the Guaranteed Blade Service as described above, the
Customer is shall be entitled to each one of the guaranteed Blades for up to 30 days in each
Service Year.
3.2
The minimum invocation period for a guaranteed Blade is 1 day.
29
4
Uncommitted Blade Days
4.1
Where the Customer has taken the Uncommitted Blade Days Service as described above,
the Customer shall, subject to availability, be entitled to use up to two concurrent Blades for
the maximum number of days per Service Year as stated in the Contract Particulars but
Logicalis shall be entitled at any time to withdraw the Customer’s right to use the Blade
(whether it is in use by the Customer or not) if needed to meet the needs of a Customer which
has invoked disaster recovery by means of the Guaranteed Blade Service.
5
Blade Harbour
5.1
As at the Commencement Date the Customer is entitled to use the number of half width Cisco
UCS Blade slots shown in Schedule 1 (Contract Particulars).
5.2
Logicalis will provide implementation and support services for the Customer’s Blades at its
standard published charges in accordance with such reasonable conditions as may be
notified in writing to Customer by Logicalis from time to time.
6
Service Operation
6.1
No variation of the specification of either MK1 or MK2 Blades defined above is possible.
Further facilities can be provided within the Blade Harbour service should this be required.
6.2
The Service provides a system up to a boot prompt. Operating systems (including
virtualisation/hypervisor layer) and higher layer services are to be provided either by the
Customer, or by Logicalis under a separate managed service agreement.
6.3
For the Guaranteed Blade Service, the Customer must give 2 hour’s notice of its requirement
for activation. The Customer may place its request for activation by contacting the Logicalis
MSC by telephone or email. Activation of the Guaranteed Blade Service will be performed by
the Logicalis MSC. The minimum period of usage is 1 day (i.e., use for 1 hour on one day will
consume 1 day). Once the Customer has exhausted its 30 days, it may continue by either
purchasing additional days or by converting to a Dedicated Blade Service.
6.4
Where the Uncommitted Blade Days service is included, the Customer accepts that under
exceptional circumstances Logicalis may require its service to be shut down by giving 30
minutes notice.
6.5
The Customer may choose to store multiple boot volumes against its Blades, and select the
operational volume at activation time.
6.6
Uncommitted Blade Days Service activation requires a minimum of 48 hours notice. Requests
for Uncommitted Blade Days Service activation may be denied if the Computing as a Service
platform has insufficient capacity. The Customer may place its request for uncommitted Blade
Days activation by contacting the Logicalis MSC by telephone or email, stating the container
name, Blade name, number of days it wishes to run for and selection of boot volume where
appropriate. The MSC will calculate and adjust the Customer’s pool of Blade days
accordingly.
30
6.7
Where the service includes the Blade Harbour facility, Logicalis will provide a chassis service
to meet the availability SLA and any fault with the Customer’s Blade will be resolved by
Logicalis on a time and materials basis.
7
Technology Refresh
7.1
Logicalis may at any time replace or upgrade at its discretion any equipment forming part of
the Computing as a Service with other equipment which need not be of an identical
specification provided that the performance of the Services is not adversely affected to an
extent discernible to the Customer and provided always that any such replacement or
upgrade does not prevent the Service Level being achieved. Logicalis shall bear all its costs
directly incurred by such replacement during the Term. When in the opinion of Logicalis it is
considered necessary to involve Customer in the implementation of any such changes and/or
considered prudent for Customer to test the effect of such changes Logicalis shall keep
Customer informed and shall request such access as may be appropriate to Customer’s
support staff during the hours it is agreed such changes or testing are to take place.
Customer agrees to provide reasonable co-operation in these circumstances.
8
Customer Rights
8.1
The Customer is entitled to use Computing as a Service which will be provided by Logicalis
from the Logicalis Data Centre subject to and upon the terms of this Agreement.
8.2
The Customer shall not be entitled to have access to the Logicalis Data Centre. In the event
that Logicalis permits the Customer to have access to the Logicalis Data Centre the Customer
shall comply with such reasonable conditions as may be notified in writing to Customer by
Logicalis from time to time
31
Schedule 3: Storage as a Service
Specification and Service Description
Storage is available and priced in multiples of 1Gb blocks and can be delivered as two storage types:

Application Storage Units – Based on high speed SAS disks for application style workloads.

Archive Storage Units – Based on higher density SATA disks for archival style workloads.
Both types can be scaled to provide the storage capacity and peak IOPS rating required by the
Customer.
The peak IOPS rating is a function of storage volume capacity committed to by the Customer. The
peak supported IOPS for SAS storage is a multiple of 0.93 times the storage volume units in Gb. For
example, 100 Gb of storage supports a maximum of 93 IOPS. The peak supported IOPS for SATA
storage is 0.09 IOPS per Gb.
The service price is based on a consumption model that provides a specified amount of storage
allocation, the required IOPS performance and SAN connectivity.
Logicalis provides a ‘multi protocol’ approach to storage provisioning that supports the following
standards:

CIFS – Common Internet File System, that provides native Windows file services with access
managed through Windows Server Manager (on an associated Windows host). Server
Manager allows for remote connection to allocated storage units, share definition and
management of security.

NFS – Network File System, that provides a method of volume exports typically utilised and
mounted in Unix style environments and managed using RSH/SSH command line scripts.

iSCSI – Allows for the provisioning of LUNs over IP infrastructure. Mounted by hosts to be
formatted with native file systems and seen as local disk by O/S and applications. LUN
creation, associated presentation and security can be defined and managed using RSH/SSH
command line scripts.
Logicalis is able to provide customers with additional NetApp SnapDrive / SnapManager management
products as separately priced services should these be required by the Customer.
The total storage space allocated to the customer volumes is limited to the storage volume capacity
included in the Schedule 1 Contract Particulars.
Where the Customer uses functions such as
Snapshots and Mirroring, storage space in the supporting volumes will need to be reserved for this
and other storage changes.
Storage as a Service standard features comprise:

Backup and Recovery - Snapshot - This feature is only available within a customer’s
storage allocation and can be used to secure a single file or a complete data infrastructure. It
32
is managed using RSH/SSH command line scripts – allowing the Customer to trigger
individual snaps while applications are running or to set them up on a scheduled basis. File
level recovery is available using Windows Explorer through the browsing of the .snapshot
directory, or RSH/SSH command line access. Up to 253 Snapshot copies per volume can be
created, instantly, to provide online backups in minimal storage space.
In addition, if specified in Schedule 1, a daily backup to tape media of a single named
snapshot per volume will be taken, and once written, securely transported and stored offsite.
The taking of the snapshot will either be at a customer defined time (hour and minute) or via
Customer initiated snapshot as described earlier, and retained by the Customer for the 24hr
period starting and finishing at 00.01 hrs. The timing of taking the Snapshot to tape will be at
the discretion of Logicalis within the 24hour period.
Storage space consumed by, and reserved for, snapshots is counted within the total storage
footprint of the Customer and limited to the storage volume capacity specified in Schedule 1
Contract Particulars..

Data Replication – Asynchronous SnapMirror – This service feature offers a data
replication solution that can provide disaster recovery protection for business-critical data.
Leveraging the unified storage architecture, SnapMirror simplifies the management of data
replication so a customer can use a single solution across all NetApp storage arrays and
protocols for any application in both virtual and traditional environments in a variety of
configurations. The feature would typically be used to mirror data from, say, the Logicalis’
Storage as a Service allocation to a customer’s own NetApp array running within their
organisation (or perhaps in the Logicalis Data Centre). This service feature uses
asynchronous replication with replication periods no lower than 30mins. The recovery process
also supports low recovery time objectives, enabling businesses to get back on-line faster.
The following service facilities will be provided:
Setup of Storage as a Service:

Design and documentation of connectivity and configuration options

Implementation of connectivity to Storage as a Service and configuration of service options
Day to Day Operation:

Monitoring of Storage as a Service hardware

Incident management and fault resolution

Management of changes to the Storage as a Service infrastructure
Service Management

Production of monthly availability and utilisation reports

Production monthly Incident reports
33

Escalation management
Storage as a Service can be combined with other Logicalis ‘as a Service’ offerings such as Network
as a Service and Computing as a Service to generate a bespoke managed service environment to
meet a customer’s business needs.
Storage as a Service can be supplemented with additional managed services to provide higher level
management of operating systems and applications should this be required.
Terms and Conditions of Supply
1
Introduction
1.1
This Schedule sets out the terms and conditions, in addition to those contained in the
Agreement, on which Logicalis shall provide Storage as a Service.
1.2
Logicalis shall provide Storage as a Service at the Logicalis Data Centre on NetApp based
infrastructure.
2
Application Storage Units
2.1
Where the Customer has taken Application Storage Units as a component of Storage as a
Service at the Commencement Date the Customer is entitled to use the level of storage as
shown in Schedule 1 (Contract Particulars).
2.2
The physical hardware that provides this service may be changed should a fault occur.
3
Archive Storage Units
3.1
Where the Customer has taken Archive Storage Units as a component of Storage as a
Service at the Commencement Date the Customer is entitled to use the quantity of storage as
shown in Schedule 1 (Contract Particulars).
3.2
The physical hardware that provides this service may be changed should a fault occur.
4
Software Licence
4.1
All NetApp software supplied to or used by Customer is subject to the terms and conditions of
the End User Software Licence set out in the Appendix to this Schedule.
5
Infringement
5.1
Customer agrees not to directly or indirectly infringe the intellectual property or other rights of
NetApp and to ensure that such rights are not infringed by its employees or contractors.
Customer shall indemnify Logicalis for all claims, actions and damages suffered by Logicalis
as a result of Customer’s failure to comply with the requirements of this paragraph.
6
Service Operation
6.1
The Customer should contract with Logicalis for the supply of sufficient space in the volume to
incorporate both the expected disk usage and additional space for snapshots etc. This
34
volume will be set to autogrow to avoid risk to storage operation. The Customer will be
notified if its volume autogrows significantly past its contracted storage space, and will need
to either reduce its usage or increase its contracted space.
6.2
It is not possible for the Customer to take snapshots of boot LUNS directly via RSH. This
operation will be carried out on the request of the Customer by the Logicalis MSC using the
change management process. Boot LUNS will operate a scheduled snapshot service as a
minimum.
6.3
Should the Customer require additional space on a volume containing iSCSI LUNs to
accommodate FlexClone if used, this operation will be carried out on the request by the
Customer to the Logicalis MSC using the change management process..
6.4
It is not possible for the Customer to clone boot LUNS directly via RSH. This operation will be
carried on the request by the Customer by the Logicalis MSC using the change management
process.
7
Technology Refresh
7.1
Logicalis may at any time replace or upgrade at its discretion any equipment forming part of
the Storage as a Service with other equipment which need not be of an identical specification
provided that the performance of the Services is not adversely affected to an extent
discernible to the Customer and provided always that any such replacement or upgrade does
not prevent the Service Level being achieved.
incurred by such replacement during the Term.
Logicalis shall bear all its costs directly
When in the opinion of Logicalis it is
considered necessary to involve Customer in the implementation of any such changes and/or
considered prudent for Customer to test the effect of such changes Logicalis shall keep
Customer informed and shall request such access as may be appropriate to Customer’s
support staff during the hours it is agreed such changes or testing are to take place.
Customer agrees to provide reasonable co-operation in these circumstances.
8
Customer Rights
8.1
The Customer is entitled to use Storage as a Service which will be provided by Logicalis from
the Logicalis Data Centre subject to and upon the terms of this Agreement.
8.2
The Customer shall not be entitled to have access to the Logicalis Data Centre. In the event
that Logicalis permits the Customer to have access to the Logicalis Data Centre the Customer
shall comply with such reasonable conditions as may be notified in writing to Customer by
Logicalis from time to time
35
Schedule 4: Quad as a Service - Computing
Specification and Service Description
Logicalis has standardised on the half width Cisco UCS Blades for this service which are configured
as follows:
MK1 Blades

Dual 2.53GHz Xeon E5540 processors with 8Mb cache (i.e. 2 x quad core = 8 core)

48Gb of RAM

Qlogic Converged Network Adapter with dual 10Gb uplinks

10Gb boot LUN of storage
MK2 Blades

Dual 2.66GHz Xeon E5640 processors with 8Mb cache (i.e. 2 x quad core = 8 core)

80Gb of RAM

Qlogic Converged Network Adapter with dual 10Gb uplinks

10Gb boot LUN of storage
Further storage capacity is available using Logicalis’ Storage as a Service. Connectivity to the system
is provided through a resilient 10Gb Ethernet network connection which can be accessed using
Logicalis’ Network as a Service.
The Customer has the following service options within Computing as a Service:

Dedicated Blade Service – A commitment to providing a dedicated Blade for 365 days per
year, 24hrs a day.

Guaranteed Blade Service – A commitment to provide a dedicated Blade for 30 days per
annum to be invoked by the Customer as required. Logicalis will provide the Blade according
to the SLA defined in Schedule 5. This service is typically used to support a customer’s
Business Continuity Plan (BCP) by providing computing resources in a DR situation and to
allow for the invocation and testing of the service during the contracted period.
Each
invocation utilises one MAC.

Uncommitted Blade Days – Provides a dedicated Blade for a number of days per annum,
but delivered on the basis that Logicalis may revoke such provision should another customer
invoke a disaster recovery requirement through the Guaranteed Blade Service.
Each
invocation utilises one MAC.

Blade Harbour Option – provides a managed full or half slot in a Cisco UCS chassis for the
installation of a UCS Blade to the Customer’s own specification.
The following service facilities will be provided:
Setup of Quad as a Service Computing:
36

Design and documentation of connectivity and configuration options

Implementation of connectivity to Computing as a Service and configuration of service options
Day to Day Operation:

Monitoring of Computing as a Service hardware, including customer-specific Blade servers

Incident management and fault resolution

Management of changes to the Computing as a Service infrastructure
Service Management

Production of monthly availability and utilisation reports

Production monthly Incident reports

Escalation management
Computing as a Service can be combined with other Logicalis ‘as a Service’ offerings such as
Network as a Service and Storage as a Service to generate a bespoke managed service environment
to meet a customer’s business needs.
Computing as a Service can be supplemented with additional managed services to provide higher
level management of operating systems and applications should this be required.
Terms and Conditions of Supply
1
Introduction
1.1
This Schedule sets out the terms and conditions, in addition to those contained in the
Agreement, on which Logicalis shall provide Computing as a Service.
1.2
Logicalis shall provide Computing as a Service at the Logicalis Data Centre.
2
Dedicated Blade Service
2.1
As at the Commencement Date the Customer is entitled to use the number of Blades shown
in Schedule 1 (Contract Particulars).
2.2
The physical Blades that provide this service may be changed should a fault occur.
3
Guaranteed Blade Service
3.1
Where the Customer has taken the Guaranteed Blade Service as described above, the
Customer is shall be entitled to each one of the guaranteed Blades for up to 30 days in each
Service Year.
3.2
The minimum invocation period for a guaranteed Blade is 1 day.
37
4
Uncommitted Blade Days
4.1
Where the Customer has taken the Uncommitted Blade Days Service as described above,
the Customer shall, subject to availability, be entitled to use up to two concurrent Blades for
the maximum number of days per Service Year as stated in the Contract Particulars but
Logicalis shall be entitled at any time to withdraw the Customer’s right to use the Blade
(whether it is in use by the Customer or not) if needed to meet the needs of a Customer which
has invoked disaster recovery by means of the Guaranteed Blade Service.
5
Blade Harbour
5.1
As at the Commencement Date the Customer is entitled to use the number of half width Cisco
UCS Blade slots shown in Schedule 1 (Contract Particulars).
5.2
Logicalis will provide implementation and support services for the Customer’s Blades at its
standard published charges in accordance with such reasonable conditions as may be
notified in writing to Customer by Logicalis from time to time.
6
Service Operation
6.1
No variation of the specification of either MK1 or MK2 Blades defined above is possible.
Further facilities can be provided within the Blade Harbour service should this be required.
6.2
The Service provides a system up to a boot prompt. Operating systems (including
virtualisation/hypervisor layer) and higher layer services are to be provided either by the
Customer, or by Logicalis under a separate managed service agreement.
6.3
For the Guaranteed Blade Service, the Customer must give 2 hour’s notice of its requirement
for activation. The Customer may place its request for activation by contacting the Logicalis
MSC by telephone or email. Activation of the Guaranteed Blade Service will be performed by
the Logicalis MSC. The minimum period of usage is 1 day (i.e., use for 1 hour on one day will
consume 1 day). Once the Customer has exhausted its 30 days, it may continue by either
purchasing additional days or by converting to a Dedicated Blade Service.
6.4
Where the Uncommitted Blade Days service is included, the Customer accepts that under
exceptional circumstances Logicalis may require its service to be shut down by giving 30
minutes notice.
6.5
The Customer may choose to store multiple boot volumes against its Blades, and select the
operational volume at activation time.
6.6
Uncommitted Blade Days Service activation requires a minimum of 48 hours notice. Requests
for Uncommitted Blade Days Service activation may be denied if the Computing as a Service
platform has insufficient capacity. The Customer may place its request for uncommitted Blade
Days activation by contacting the Logicalis MSC by telephone or email, stating the container
name, Blade name, number of days it wishes to run for and selection of boot volume where
appropriate. The MSC will calculate and adjust the Customer’s pool of Blade days
accordingly.
38
6.7
Where the service includes the Blade Harbour facility, Logicalis will provide a chassis service
to meet the availability SLA and any fault with the Customer’s Blade will be resolved by
Logicalis on a time and materials basis.
7
Technology Refresh
7.1
Logicalis may at any time replace or upgrade at its discretion any equipment forming part of
the Computing as a Service with other equipment which need not be of an identical
specification provided that the performance of the Services is not adversely affected to an
extent discernible to the Customer and provided always that any such replacement or
upgrade does not prevent the Service Level being achieved. Logicalis shall bear all its costs
directly incurred by such replacement during the Term. When in the opinion of Logicalis it is
considered necessary to involve Customer in the implementation of any such changes and/or
considered prudent for Customer to test the effect of such changes Logicalis shall keep
Customer informed and shall request such access as may be appropriate to Customer’s
support staff during the hours it is agreed such changes or testing are to take place.
Customer agrees to provide reasonable co-operation in these circumstances.
8
Customer Rights
8.1
The Customer is entitled to use Computing as a Service which will be provided by Logicalis
from the Logicalis Data Centre subject to and upon the terms of this Agreement.
8.2
The Customer shall not be entitled to have access to the Logicalis Data Centre. In the event
that Logicalis permits the Customer to have access to the Logicalis Data Centre the Customer
shall comply with such reasonable conditions as may be notified in writing to Customer by
Logicalis from time to time
39
Quad as a Service - Storage
Specification and Service Description
Storage is available and priced in multiples of 1Gb blocks and can be delivered as two storage types:

Application Storage Units – Based on high speed SAS disks for application style workloads.

Archive Storage Units – Based on higher density SATA disks for archival style workloads.
Both types can be scaled to provide the storage capacity and peak IOPS rating required by the
Customer.
The peak IOPS rating is a function of storage volume capacity committed to by the Customer. The
peak supported IOPS for SAS storage is a multiple of 0.93 times the storage volume units in Gb. For
example, 100 Gb of storage supports a maximum of 93 IOPS.
The peak supported IOPS for SATA
storage is 0.09 IOPS per Gb.
The service price is based on a consumption model that provides a specified amount of storage
allocation, the required IOPS performance and SAN connectivity.
Logicalis provides a ‘multi protocol’ approach to storage provisioning that supports the following
standards:

CIFS – Common Internet File System, that provides native Windows file services with access
managed through Windows Server Manager (on an associated Windows host). Server
Manager allows for remote connection to allocated storage units, share definition and
management of security.

NFS – Network File System, that provides a method of volume exports typically utilised and
mounted in Unix style environments and managed using RSH/SSH command line scripts.

iSCSI – Allows for the provisioning of LUNs over IP infrastructure. Mounted by hosts to be
formatted with native file systems and seen as local disk by O/S and applications. LUN
creation, associated presentation and security can be defined and managed using RSH/SSH
command line scripts.
Logicalis is able to provide customers with additional NetApp SnapDrive / SnapManager management
products as separately priced services should these be required by the Customer.
The total storage space allocated to the customer volumes is limited to the storage volume capacity
included in the Schedule 1 Contract Particulars.
Where the Customer uses functions such as
Snapshots and Mirroring, storage space in the supporting volumes will need to be reserved for this
and other storage changes.
Storage as a Service standard features comprise:

Backup and Recovery - Snapshot - This feature is only available within a customer’s
storage allocation and can be used to secure a single file or a complete data infrastructure. It
40
is managed using RSH/SSH command line scripts – allowing the Customer to trigger
individual snaps while applications are running or to set them up on a scheduled basis. File
level recovery is available using Windows Explorer through the browsing of the .snapshot
directory, or RSH/SSH command line access. Up to 253 Snapshot copies per volume can be
created, instantly, to provide online backups in minimal storage space.
In addition, if specified in Schedule 1, a daily backup to tape media of a single named
snapshot per volume will be taken, and once written, securely transported and stored offsite.
The taking of the snapshot will either be at a customer defined time (hour and minute) or via
Customer initiated snapshot as described earlier, and retained by the Customer for the 24hr
period starting and finishing at 00.01 hrs. The timing of taking the Snapshot to tape will be at
the discretion of Logicalis within the 24hour period.
Storage space consumed by, and reserved for, snapshots is counted within the total storage
footprint of the Customer and limited to the storage volume capacity specified in Schedule 1
Contract Particulars..

Data Replication – Asynchronous SnapMirror – This service feature offers a data
replication solution that can provide disaster recovery protection for business-critical data.
Leveraging the unified storage architecture, SnapMirror simplifies the management of data
replication so a customer can use a single solution across all NetApp storage arrays and
protocols for any application in both virtual and traditional environments in a variety of
configurations. The feature would typically be used to mirror data from, say, the Logicalis’
Storage as a Service allocation to a customer’s own NetApp array running within their
organisation (or perhaps in the Logicalis Data Centre). This service feature uses
asynchronous replication with replication periods no lower than 30mins. The recovery process
also supports low recovery time objectives, enabling businesses to get back on-line faster.
The following service facilities will be provided:
Setup of Storage as a Service:

Design and documentation of connectivity and configuration options

Implementation of connectivity to Storage as a Service and configuration of service options
Day to Day Operation:

Monitoring of Storage as a Service hardware

Incident management and fault resolution

Management of changes to the Storage as a Service infrastructure
Service Management

Production of monthly availability and utilisation reports

Production monthly Incident reports
41

Escalation management
Storage as a Service can be combined with other Logicalis ‘as a Service’ offerings such as Network
as a Service and Computing as a Service to generate a bespoke managed service environment to
meet a customer’s business needs.
Storage as a Service can be supplemented with additional managed services to provide higher level
management of operating systems and applications should this be required.
Terms and Conditions of Supply
1
Introduction
1.1
This Schedule sets out the terms and conditions, in addition to those contained in the
Agreement, on which Logicalis shall provide Storage as a Service.
1.2
Logicalis shall provide Storage as a Service at the Logicalis Data Centre on NetApp based
infrastructure.
2
Application Storage Units
2.1
Where the Customer has taken Application Storage Units as a component of Storage as a
Service at the Commencement Date the Customer is entitled to use the level of storage as
shown in Schedule 1 (Contract Particulars).
2.2
The physical hardware that provides this service may be changed should a fault occur.
3
Archive Storage Units
3.1
Where the Customer has taken Archive Storage Units as a component of Storage as a
Service at the Commencement Date the Customer is entitled to use the quantity of storage as
shown in Schedule 1 (Contract Particulars).
3.2
The physical hardware that provides this service may be changed should a fault occur.
4
Software Licence
4.1
All NetApp software supplied to or used by Customer is subject to the terms and conditions of
the End User Software Licence set out in the Appendix to this Schedule.
5
Infringement
5.1
Customer agrees not to directly or indirectly infringe the intellectual property or other rights of
NetApp and to ensure that such rights are not infringed by its employees or contractors.
Customer shall indemnify Logicalis for all claims, actions and damages suffered by Logicalis
as a result of Customer’s failure to comply with the requirements of this paragraph.
6
Service Operation
6.1
The Customer should contract with Logicalis for the supply of sufficient space in the volume to
incorporate both the expected disk usage and additional space for snapshots etc. This
42
volume will be set to autogrow to avoid risk to storage operation. The Customer will be
notified if its volume autogrows significantly past its contracted storage space, and will need
to either reduce its usage or increase its contracted space.
6.2
It is not possible for the Customer to take snapshots of boot LUNS directly via RSH. This
operation will be carried out on the request of the Customer by the Logicalis MSC using the
change management process. Boot LUNS will operate a scheduled snapshot service as a
minimum.
6.3
Should the Customer require additional space on a volume containing iSCSI LUNs to
accommodate FlexClone if used, this operation will be carried out on the request by the
Customer to the Logicalis MSC using the change management process..
6.4
It is not possible for the Customer to clone boot LUNS directly via RSH. This operation will be
carried on the request by the Customer by the Logicalis MSC using the change management
process.
7
Technology Refresh
7.1
Logicalis may at any time replace or upgrade at its discretion any equipment forming part of
the Storage as a Service with other equipment which need not be of an identical specification
provided that the performance of the Services is not adversely affected to an extent
discernible to the Customer and provided always that any such replacement or upgrade does
not prevent the Service Level being achieved.
incurred by such replacement during the Term.
Logicalis shall bear all its costs directly
When in the opinion of Logicalis it is
considered necessary to involve Customer in the implementation of any such changes and/or
considered prudent for Customer to test the effect of such changes Logicalis shall keep
Customer informed and shall request such access as may be appropriate to Customer’s
support staff during the hours it is agreed such changes or testing are to take place.
Customer agrees to provide reasonable co-operation in these circumstances.
8
Customer Rights
8.1
The Customer is entitled to use Storage as a Service which will be provided by Logicalis from
the Logicalis Data Centre subject to and upon the terms of this Agreement.
8.2
The Customer shall not be entitled to have access to the Logicalis Data Centre. In the event
that Logicalis permits the Customer to have access to the Logicalis Data Centre the Customer
shall comply with such reasonable conditions as may be notified in writing to Customer by
Logicalis from time to time
43
Appendix
END USER SOFTWARE LICENSE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY
MATERIAL, THE USE OF WHICH IS SUBJECT TO THIS END USER SOFTWARE LICENSE
AGREEMENT. THIS LICENSE IS ENFORCEABLE EVEN IF YOU HAVE NOT GIVEN YOUR
WRITTEN APPROVAL. INSTALLATION AND/OR USE OF THIS SOFTWARE INDICATES YOUR
ACCEPTANCE OF THIS AGREEMENT IN ITS ENTIRETY.
BY THE USE AND/OR
INSTALLATION OF THIS PRODUCT, YOU ACCEPT ALL OF THE TERMS STATED HEREIN. IF
YOU DO NOT AGREE WITH ALL THE TERMS, YOU MUST RETURN THE UNUSED PRODUCT
(S), INCLUDING ALL MANUALS AND DOCUMENTATION, TO NETAPP, INC. (“NETAPP”). IF
THE FOREGOING IS RETURNED WITH PROOF OF PAYMENT TO NETAPP WITHIN FIFTEEN
(15) DAYS OF FIRST ACQUISITION, THEN YOU WILL RECEIVE A FULL REFUND.
1.
LICENSE
NetApp, Inc. (“NetApp”) grants Customer a nonexclusive, worldwide license to use the accompanying software
as specified herein in object code form (“Software”) solely for Customer’s business use, together with the
accompanying documentation. Customer shall only use the Software on NetApp’s products, and in the manner
specified in the user documentation. Customer has no right to receive any source code or design documentation
relating to the Software. This License is personal to Customer and Customer shall not assign, transfer or
sublicense this license without NetApp’s prior written approval; any attempt to do so shall be void. This license
is further restricted to the particular protocols and accompanying documentation purchased hereunder.
2.
RESTRICTIONS
NetApp shall retain title to the Software and the accompanying documentation and all copies and any derivative
works thereof. Customer shall not make any copies of the Software except as reasonably required for backup
purposes. Customer shall not, nor shall Customer allow any third party to: (a) decompile, disassemble, decrypt,
extract, or otherwise reverse engineer or attempt to reconstruct, or discover any source code or underlying ideas,
algorithms, or file formats of, or used in, the Software by any means whatever; or (b) remove or conceal any
product identification, copyright or other notices contained in or on the Software or accompanying documents; or
(c) modify the Software, incorporate it into or with other software, or create a derivative work of any part of the
Software. Customer must not publish or provide any results of benchmark tests run on the Software to a third party
without NetApp’s prior written consent.
The Software is NetApp’s confidential property and contains trade secrets. It is protected by copyrights, one or
more U.S. patents issued or pending, and other applicable law. Customer must take adequate steps to protect the
Software from a disclosure or use.
3.
TERMINATION OF LICENSE
This License is effective until terminated. The License will terminate automatically if:
I) Customer fails to cure any material breach of this Agreement within thirty (30) days after such breach first
occurs (or immediately in the case of a breach of Section 2 herein).
ii) Customer becomes insolvent, files, or has filed against it a petition under applicable bankruptcy or insolvency
laws which is not dismissed within ninety (90) days; proposes any dissolution, composition or financial
reorganization with creditors; makes an assignment for the benefit of creditors; or if a receiver, trustee or similar
agent is appointed or takes possession with respect to any property or business of the defaulting party. The
termination of this Agreement shall not relieve Customer from its obligations to immediately pay NetApp any
sums accrued hereunder prior to such termination.
If Customer is using the Software for evaluation, the License expires thirty (30) days after Customer receives it.
Upon termination, Customer shall immediately cease all use of the Software, deinstall it, and return or destroy all
copies of the Software and all portions thereof and the accompanying documentation and so certify to NetApp.
44
When Customer installs upgraded Software, Customer loses its license to use the previous version. Customer must
discontinue using the previous version immediately upon installing the upgrade.
Except for the Use License granted in Section 1, Customer’s obligations under this Agreement shall survive
termination. Termination is not an exclusive remedy and all other remedies will be available whether or not the
License is terminated.
4.
LIMITED WARRANTY AND DISCLAIMER
Subject to the conditions and limitations on liability stated in this Agreement, NetApp warrants for a period of
ninety (90) days from Customer’s receipt of the Software: (a) that the Software will materially conform to
NetApp’s accompanying documentation for such Software; and (b) that the media containing the Software (but not
the Software itself) is free from physical defects. This warranty covers only problems that are reproducible and
verifiable and does not cover software, or other items or any services provided by any persons other than NetApp
or its Distributors or other agents. Maintenance and support, if any, are governed by a separate agreement.
Software, which has been abused, misused, damaged in transport, modified, or subjected to un use, or installation,
as determined by NetApp, shall void this warranty.
NETAPP’S LIABILITY WITH RESPECT TO THE SOFTWARE OR THE SOFTWARE’S PERFORMANCE
UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY IS LIMITED
EXCLUSIVELY TO SOFTWARE REPAIR OR REPLACEMENT, AT NETAPP’S OPTION. THE SOFTWARE
AND THE ACCOMPANYING DOCUMENTATION ARE OTHERWISE PROVIDED "AS IS" WITHOUT ANY
WARRANTY INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW
LIMITATIONS OF IMPLIED WARRANTIES; THESE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
5.
LIMITATIONS OF LIABILITY
NETAPP’S TOTAL LIABILITY FOR ANY DAMAGE OR CLAIM ARISING FROM LICENSING OR USE OF
THE SOFTWARE OR THE ACCOMPANYING DOCUMENTATION IS CUSTOMER’S TOTAL PURCHASE
PRICE FOR THE SOFTWARE. NETAPP IS NOT LIABLE FOR ANY INCIDENTAL, EXEMPLARY,
SPECIAL OR CONSEQUENTIAL DAMAGES; LOST OR CORRUPTED DATA, LOSS OF PROFITS,
SAVINGS, OR REVENUES; OR FOR ANY OCCURRENCE BEYOND ITS CONTROL.
WARNING: The hardware and software are not designed or intended for use in on-line control of equipment in
hazardous environments such as the operation of nuclear facilities, aircraft, air traffic, aircraft navigation or aircraft
communications, or in the design, construction, operation or maintenance of any nuclear facility, or in the operation
or maintenance of any direct life support system. NetApp disclaims any express or implied warranty of fitness for
such uses and shall not be liable for any costs, liabilities or damages resulting from the use of the hardware or
software in such an environment. Customer agrees that it will not use or license the hardware or software for such
purposes.
6.
U.S. GOVERNMENT AND EXPORT REGULATIONS
If Customer is acquiring the Software and accompanying documentation on behalf of the U.S. Government, special
provisions apply. If the Software is supplied to the Department of Defense (“DOD”), the Software is subject to
“Restricted Rights,” as that term is defined in the DOD Supplement to the Federal Acquisition Regulations
(“DFAR”) in paragraph 252.227-7013(c)(1). If the Software is supplied to any unit or agency of the United States
Government other than DOD, the Government’s rights in the Software will be defined in paragraph 52.22719(c)(1) or (2) of the Federal Acquisition Regulations (“FAR”), as applicable. Use, duplication, reproduction or
disclosure by the Government is subject to such restrictions or successor provisions. Contractor/Manufacturer is:
NetApp, Inc., 495 East Java Drive, Sunnyvale, CA 94089. Except as expressly licensed hereunder, all rights are
reserved.
NetApp’s Software is subject to U.S. export control laws and may be subject to export or import regulations in
other countries. Customer must comply with all applicable regulations and obtain licenses to export, re-export, or
import the Software.
Both parties, at all times, must comply with all applicable laws, ordinances, statutes, rules, and regulations. 7.
TRANSFERABILITY OF LICENSE
45
THIS LICENSE IS PERSONAL TO CUSTOMER. CUSTOMER SHALL NOT ASSIGN, SUBLICENSE OR
TRANSFER THE LICENSE OR THE AGREEMENT WITHOUT NETAPP’S PRIOR WRITTEN APPROVAL;
ANY ATTEMPT TO DO SO SHALL BE VOID.
7.
PATENT, COPYRIGHT AND PROPRIETARY RIGHTS INDEMNITY
NetApp shall, at its expense, defend and indemnify Customer for damages and reasonable costs incurred in any suit
or claim brought against Customer alleging that the Products sold pursuant to this Agreement infringe any U.S.
patent, copyright, trade secret or similar right provided that NetApp is promptly notified, rendered reasonable
assistance by Customer as required, and permitted to direct the defense or settlement negotiations. NetApp shall
have no liability for any infringing combinations arising from the integration of NetApp’s Products together with
other products provided by Customer or any third party.
Should the use of Product by Customer be enjoined, or in the event NetApp wishes to minimize its potential
liability hereunder, NetApp may, at its option, either: (i) substitute a fully equivalent non-infringing unit t; (ii)
modify the infringing item so that it no longer infringes but remains functionally equivalent; (iii) obtain for
Customer, at NetApp’s expense, the right to continue use of such item; or (iv) take back such infringing item or
items and refund to Customer the purchase price paid therefor, less depreciation amortized on a straight line basis.
8.
COMPLIANCE WITH LAWS
Each party shall comply all applicable federal, state, local and foreign laws and ordinances including, but not
limited to all export laws, restrictions and regulations of the Department of Commerce or other United States or
foreign agency or authority, the Occupational Safety and Health Act of 1970 (29 U.S.C. Sections 651, 678), the
Fair Labor Standards Act of 1938 (29 U.S.C. Sections 201-219), the Work Hours and Safety Act of 1962 (40
U.S.C. Sections 327, 333), the Equal Employment Opportunity (42 U.S.C. Sections 2000e, et seq.) and federal
regulations governing affirmative action programs.
9.
GENERAL
Any notice, report, approval or consent required or permitted by this Agreement shall be in writing. If any
provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or
invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the obligations of the
parties shall remain in full force and effect and enforceable. This Agreement shall be deemed to have been made
in, and shall be construed pursuant to, the laws of the State of California and the United States excluding their
conflicts of laws provisions. Customer agrees that a material breach of this Agreement by it would cause
irreparable injury to NetApp for which monetary damages would not be an adequate remedy and that NetApp shall
be entitled to equitable relief in addition to any remedies it may have hereunder or at law. Any amendments or
waivers shall be effective only if made in writing by non-preprinted agreements clearly understood by both parties
to be an amendment or waiver and signed by an representative of each party . This Agreement is the final and
complete Agreement between the parties relating to the license of the Software hereunder.
46
Schedule 5: Network as a Service
Specification and Service Description
Network as a Service allows customers to chose a range of fully managed connectivity options
including Data Centre LAN Services which provide interconnection between services within the Data
Centre and Data Centre WAN services providing resilient Internet access and WAN access to other
services.
Data Centre LAN Services provide a variety of connectivity options for customers ranging from a
resilient pair of ports up to a complete network service, all delivered using a resilient, flexible and
secure underlying network infrastructure.
This service is delivered using a resilient architecture of Cisco Data Centre-class switches. This
infrastructure is fully managed by the Logicalis Managed Service Centre (MSC) using the CA
Spectrum Infrastructure Manager and eHealth Performance Manager toolsets.
The following connectivity packages are offered:

10/100/1000Mb Access Port – This option provides a resilient pair of RJ45 presented copper
based Ethernet ports delivered as one port from each pair of resiliently connected Cisco
Switches.

1GbE Access/Core Port – This option provides a resilient 1GbE Fibre Access Port Pair
delivered as one 1GbE port from each of a pair of resiliently connected Cisco switches. If a
core port is specified this may be used for Layer 3 switching.

10GbE Access/Core Port – This option provides a resilient 10GbE Fibre Access Port Pair
delivered as one 10GbE port from each of a pair of Cisco switches. If a core port is specified
this may be used for Layer 3 switching.

Rack Level Switching – This option uses a dedicated Cisco Nexus 2000 with 48 x 100/1000T Ports delivered within a Customer Rack with resilient up-links to the distribution layer.
All ports are provided in pairs, with the service level being measured as the availability of the service
via either port, not simultaneously.
The following configurations are supported:

Segregation - VLANs are available and can be scaled depending on the number of ports
taken. However in order to support high numbers of VLANs on a low number of ports an
additional charge may be made. This will be agreed with the Customer during the design
phase.

Addressing - A customer’s own IP addressing is supported with IPV4 and IPV6 options
available supporting public and private structures based on best practice principles. The
addressing structure will be agreed with the Customer during the design phase.
47

Resilience – The service provides a pair of resilient ports where the aim is to use these
either, to connect a single device in a resilient fashion or to connect to two devices operating
their own resilience. Where a ‘Top of rack’ switch is provided, port configurations will be
agreed with the Customer during the design phase.
Logicalis’ Data Centre WAN services are based on a carrier neutral approach to the provision of
bandwidth services and have the potential to support any carrier within its Data Centres.
External Carrier Services:
To provide resilience for carrier services Logicalis has dual diverse
routes into its Slough Data Centre from both sides of the site. These terminate in separate ‘Meet-Me’
rooms providing termination points for the Carrier services. The service profile for each Customer will
be agreed during the design phase and the agreed network connectivity will be delivered directly to
the Customer’s rack.
Internet as a Service: Those Customers requiring Internet access can contract with Logicalis for an
agreed bandwidth rate (such as 10Mb) at an agreed rate, for which charges will be invoiced
separately. Where a Customer requires additional bandwidth, the service can be ‘flexed’ (either
permanently or for a period of time) by simply ordering more bandwidth from Logicalis. This will be
implemented quickly and simply under change management control, typically requiring no service
downtime or the installation of physical upgrades.
JANET Connectivity:
Logicalis can provide connectivity to the JANET network for authorised
Customers.
The following service facilities will be provided:
Setup of Network as a Service:

Design and documentation of connectivity and configuration options

Implementation of connectivity to Network as a Service and configuration of service options
Day to Day Operation:

Monitoring of Network as a Service hardware and circuit performance and utilisation

Incident management and fault resolution

Management of changes to the Network as a Service infrastructure
Service Management

Production of monthly availability and utilisation reports

Production monthly Incident reports

Escalation management
Network as a Service can be combined with other Logicalis ‘as a Service’ offerings such as Storage
as a Service and Computing as a Service to generate a bespoke managed service environment to
meet a customer’s business needs.
48
Network as a Service can be supplemented with additional managed services to provide higher level
management of operating systems and applications should this be required.
Terms and Conditions of Supply
1
Introduction
1.1
This Schedule sets out the terms and conditions, in addition to those contained in the
Agreement, on which Logicalis shall provide Network as a Service.
1.2
Logicalis shall provide Network as a Service at the Logicalis Data Centre.
2
10/100/1000Mb Access Port
2.1
Where the Customer has taken the 10/100/1000Mb Access Port Pair Service as described
above at the Commencement Date the Customer is entitled to use the number of
10/100/1000Mb Access Port Pairs as shown in Schedule 1 (Contract Particulars).
2.2
The physical hardware that provides this service may be changed should a fault occur.
3
1GbE Access Port
3.1
Where the Customer has taken the 1GbE Fibre Access Port Pair Service as described above
at the Commencement Date the Customer is entitled to use the number of 1GbE Fibre
Access Port Pairs as shown in Schedule 1 (Contract Particulars).
3.2
The physical hardware that provides this service may be changed should a fault occur.
4
10GbE Access Port
4.1
Where the Customer has taken the 10GbE Fibre Access Port Pair Service as described
above at the Commencement Date the Customer is entitled to use the number of 10GbE
Fibre Access Port Pairs as shown in Schedule 1 (Contract Particulars).
4.2
The physical hardware that provides this service may be changed should a fault occur.
5
Rack Level Switching
5.1
This uses a dedicated Cisco Nexus 2000 with 48 x 100/1000-T Ports delivered within a
Customer Rack with resilient up-links to the distribution layer.
5.2
Where the Customer has taken the Rack Level Switching Service as described above at the
Commencement Date the Customer is entitled to use the number of dedicated Cisco Nexus
2000 switches as shown in Schedule 1 (Contract Particulars).
5.3
The physical hardware that provides this service may be changed should a fault occur.
6
Internet as a Service
6.1
Where the Customer has taken the Internet as a Service component of Network as a Service
as described above at the Commencement Date the Customer is entitled to use the level of
bandwidth as shown in Schedule 1 (Contract Particulars).
6.2
The physical hardware that provides this service may be changed should a fault occur.
49
6.3
Internet connectivity is available at bandwidth increments of 1Mbps (with a minimum 2Mbps
service size).
6.4
The service provides a raw Internet feed, with no filtering or restrictions (subject to Logicalis’
Acceptable Use Policy). The Customer is responsible for its own processes and policies for
Internet filtering.
6.5
Logicalis can provide networks of public IPv4 addresses for the Customer as required
(subject to RIPE justification). Alternatively, the Customer may use its own IP addressing with
the Logicalis service, either by bringing provider independent (PI) address space with it, or
peering with the Logicalis service from its own autonomous system (AS). Address allocations
of up to /21 of address space per customer per year is subject to availability and pressure on
IPv4 space is predicted to be high post 2011.
6.6
IP addresses can be allocated as primary at Logicalis’ Slough Data Centre or primary at
Logicalis’ Bracknell Data Centre. Addresses are not interchangeable once allocated.
6.7
Customer address space allocated to it by its existing provider remains the ‘property’ of that
provider and cannot be re-used within Internet as a Service.
7
External Carrier Services
7.1
Where the Customer has taken external carrier services as a component of Network as a
Service as described above at the Commencement Date the Customer is entitled to use the
level of bandwidth as shown in Schedule 1 (Contract Particulars).
7.2
Where External Carrier Services are supplied to the Customer, these are subject to the terms
and conditions of the Carrier as set out in an Appendix to this Schedule.
8
JANET Connectivity
8.1
Where the Customer has taken JANET Services as a component of Network as a Service as
described above the Commencement Date the Customer is entitled to use the level of
bandwidth as shown in Schedule 1 (Contract Particulars).
9
IP Addressing
9.1
The Customer may use its own address schemes within the platform, without interference
from the platform itself. The Network as a Service platform can interoperate with agreed
Customer routing protocols if that is required in the solution design. However, non-sane
customer addressing (e.g. using public address space not registered to the Customer) is not
supported. Logicalis supports OSPF and RIP (alongside static routing) for interacting with the
customer network.
10
Network VLANs
10.1
Network VLANs will be agreed in the design phase and specified by the Customer at order
time. The Customer must use the VLAN tags assigned to it by Logicalis. Multiple VLANs
configured to a single Blade must be handled within the server’s operating system, using
802.1q mechanisms.
50
11
Technology Refresh
11.1
Logicalis may at any time replace or upgrade at its discretion any equipment forming Network
as a Service with other equipment which need not be of an identical specification provided
that the performance of the Services is not adversely affected to an extent discernible to the
Customer and provided always that any such replacement or upgrade does not prevent the
Service Level being achieved. Logicalis shall bear all its costs directly incurred by such
replacement during the Term. When in the opinion of Logicalis it is considered necessary to
involve Customer in the implementation of any such changes and/or considered prudent for
Customer to test the effect of such changes Logicalis shall keep Customer informed and shall
request such access as may be appropriate to Customer’s support staff during the hours it is
agreed such changes or testing are to take place.
Customer agrees to reasonable co-
operation in these circumstances.
12
Customer Rights
12.1
The Customer is entitled to use Network as a Service which will be provided by Logicalis from
the Logicalis Data Centre subject to and upon the terms of this Agreement.
12.2
The Customer shall not be entitled to have access to the Logicalis Data Centre. In the event
that Logicalis permits the Customer to have access to the Logicalis Data Centre the Customer
shall comply with such reasonable conditions as may be notified in writing to Customer by
Logicalis from time to time
13
Appendix
13.1
Carrier terms and conditions will be included here if applicable.
51
Schedule 6: Service Level Agreement
1
Introduction
1.1
The Services comprise a number of discrete components, namely Computing as a Service,
Storage as a Service and Network as a Service. This document constitutes the Service Level
Agreement (SLA) between the Customer and Logicalis for the delivery of the Services.
1.2
This SLA identifies and defines the Service Levels to be provided by Logicalis to the
Customer in respect of the monitoring, maintenance, management and provision of the
Services. Logicalis shall be responsible for the provision of the Services in accordance with
this SLA.
2
Availability Definition and Service Levels
2.1
Definition: The following formula will be used to calculate Availability for each individual
Service for the measurement period expressed as a percentage:
where:
c = number of hours of service during the measurement period (e.g. 31 days per month, 24
hours per day = 744)
f = duration (measured in hours) within the measurement period during which an individual
Service was not available (i.e. did not respond to a poll)
K = duration (measured in hours) within the measurement period during which an individual
Service was unavailable due to circumstances beyond Logicalis’ control.
2.2
Availability metrics for the Services are detailed below:
Service Component
Availability Metric
Measurement Period
1 calendar month
Network as a Service
99.99%
Internet as Service
(Component element of Network as a Service)
99.99%
External Carrier Services
(Component element of Network as a Service)
As specified by the relevant Carrier in its
SLA
Computing as a Service
99.99%
Storage as a Service
99.99%
52
2.3
Where elements of a Service are provided in pairs, including but not limited to the Network as
a Service port pairs, the availability SLA shall be deemed to be met whilst either port in the
pair is available. The Availability metric of either port will be 99%.
2.4
Where multiple Services are taken by the Customer:
2.4.1
Each SLA metric shall apply only to the element of the Service to which it is stated to
apply within this Schedule.
2.4.2
Should more than one SLA metric be applicable to any one element of the Service,
only the lowest SLA metric will apply to that element of the Service.
2.4.3
Should the failure of a Service be caused by the failure of an Enabling Service, only
the failure of the Enabling Service will be applicable for Service Credits as defined in
Schedule 5 Section 9.
3
Monitoring
3.1
Hours of Cover
The following table details the Hours of Cover for the monitoring service for the Services
within the scope of this Agreement as defined in Schedule 1:
Service Element
Cover
Monitor Services
3.2
24 x 7
Service Responsibilities
The following table summarises the monitoring responsibilities between the parties:
Responsibility
Logicalis
Monitor Service components and identify Service affecting
events

Monitor Services, operating systems, infrastructure and
applications hosted on or connected to Services
4
Incident management
4.1
Hours of Cover
Customer

The following table details the Hours of Cover for Incident management for the Services within
the scope of this Agreement as defined in Schedule 1:
Service Element
Cover
Incident Management through the MSC
4.2
24 x 7
Service Responsibilities
The following table summarises the incident management responsibilities between the
parties:
53
Responsibility
Logicalis
Provide an Incident Management System through which to
manage the resolution of incidents.

Register the incident on the Incident Management System
(Service Now) and notify customer using agreed contact
details.

Customer
Provide a single point of contact within the Customer’s
organisation with whom the Logicalis MSC will liaise in the
delivery of the Services.
4.3

Incident Classification, Priorities and Target Response times
The following table summarises the categories of priorities allocated and the SLA response
times:
Remote
Response
Time
Target
Diagnostic
Time
Target
Resolution
Time
Extensive/widespread impact
to the Customer’s business or
critical risk to Customer’s
resilient environment
30 mins.
(24 x 7)
1 hour
(24 x 7)
4 hours
(24 x 7)
Every 30
minutes or
on status
change
P2
-orMajor
Significant/Large impact to the
Customer’s
business
or
significant risk to Customer’s
resilient environment
2 hours
(24 x 7)
2.5 hours
(24 x 7)
8 hours
(24 x 7)
Every 60
minutes or
on status
change
P3
-orMedium
Moderate/Limited impact to the
customer’s
business
or
moderate risk to Customer’s
resilient environment
5 hours
(working
hours)
5 hours
(working
hours)
10 hours
(working
hours)
On status
change
P4
-orMinor
Minor/localised impact to the
Customer’s business or minor
risk to Customer’s resilient
environment
10 hours
(working
hours)
12 hours
(working
hours)
24 hours
(working
hours)
On status
change
Priority
Level
Definition
P1
-orCritical
Customer
Updates
Please note that Target Diagnostic and Customer Updates parameters are operational
guidelines and do not form part of the monthly reporting statistics.
5
Change Management
5.1
Hours of Cover
The following table details the Hours of Cover for the various elements of the change
management process:
54
Service Element
Cover hours
Change registration and administration
Normal Working Hours
Change Advisory Board (CAB) meeting
Weekly on Wednesdays
Senior CAB (when required)
Weekly on Fridays
Service support available through the MSC
Implementation of Change
5.2
24 x 7
Normal Working Hours
(Outside of Normal Working Hours by prior
agreement)
Service Responsibilities
The following table summarises the change management responsibilities between the parties:
Responsibility
Logicalis
Customer
Identify and log requests for change


Review and authorise change requests


Implement changes

5.3
Change Service Metrics
The priority of a change will be defined as either:
5.4

Critical - Impacts the Services in their entirety

High - Impacts more than one customer

Medium - Impacts one customer

Low - Impacts one or more users
Typical Changes
Logicalis will ensure that all changes are carried out in a planned and authorised manner.
The following lists the implementation timetable for standard changes. The implementation
timetable for all other changes will be agreed in advance with the Customer.
Completion Time
Change
Network as a Service
24 hours
Reconfigure physical networks (i.e. ports).
24 hours
Reconfigure logical networks.
Internet as a Service
4 hours
Reconfigure connectivity services (e.g. customer WAN, Internet
bandwidth).
Computing as a Service
55
Completion Time
Change
24 hours
Reconfigure Blades.
1 hour
Activate/deactivate Blades provided under Guaranteed Blade service.
2 hours
Activate/deactivate Blades provided under Uncommitted Blade Days
service.
Storage as a Service
2 hours
Reconfigure/grow/shrink volumes.
2 hours
Create/delete flex clones.
2 hours
Create/delete/revert to storage snapshot.
48 hours
Recover storage volume from tape backup.
2 hours
Snapshot of boot LUNS
6
Service Interruptions
6.1
Planned maintenance of the hosting equipment, facility, software or other aspects of the
services that may require interruption of the service will not be performed during Normal
Working Hours. Logicalis may however, interrupt the services outside of Normal Working
Hours for planned maintenance, provided that it has given the Customer at least three days'
advance notice. Any maintenance events which occur during Normal Working Hours, and
which were not requested by the Customer, will be considered downtime for the purpose of
service availability measurement. Logicalis will at all times endeavour to keep any service
interruptions to a minimum.
7
Service Management
7.1
The ‘as a Service’ Service Management will comprise:
8

Production and circulation of monthly reports

Management of any changes to the service.

Escalation of Incidents or Problems as required
Service Reports
Logicalis will provide the following monthly reports:
8.1
Network as a Service
Service reporting:

Service Availability for the month

Summary of network Incidents in the month (total Incidents, % within SLA)

Port utilisation (average and peaks)

Port errors (frame loss and CRCs)

Internet service analysis
56

8.2
Performance trends and issues to monitor
Computing as a Service
Service reporting:
8.3

Service Availability for the month

Summary of computing Incidents in the month (total Incidents, % within SLA)

Guaranteed Blade Service – Summary of days used

Uncommitted Blade Days – Summary of usage
Storage as a Service
Service reporting:
8.4

Service Availability for the month

Summary of storage Incidents in the month (total Incidents, % within SLA)

Storage space utilisation (average and peaks)
Contract Management
Service reporting:

Number of MACS implemented in the month

Number of additional MACS purchased in the month

Number of unused MACS carried forward to next month

Service Credits payable
9
Service Credits
9.1
Service Credits will be payable by Logicalis to the Customer where the Availability of the
Services within each quarter fails to meet the Service Level defined in paragraph 2.2.
9.2
The following table defines the Service Credit payable:
Availability of Service Per
Quarter
99.81% and above
Service Credit Payable
No Service Credit
Between 99.76 and 99.80%
1%
Between 99.71 and 99.75%
2%
Between 99.66 and 99.70%
3%
Between 99.61% and 99.65%
4%
99.60% and below
5%
Service Credits for each individual Service are calculated as a percentage of the Charges for
that individual Service for the Quarter in respect of which Service Level is measured.
57
9.3
Customer’s entitlement to Service Credits as defined in this Schedule shall be subject to the
following provisions:
9.3.1
The maximum amount of Service Credits to which the Customer will be entitled in any
Quarter will be 5% of the Charges payable for the individual Service in respect of
which Service Level is measured for that Quarter .
9.3.2
No Service Credits will be payable to the Customer to the extent that any failure by
Logicalis to achieve Service Level was due to any of the following causes:
(a)
Any act or omission of the Customer; or
(b)
An event of Force Majeure; or
(c)
Any fault in software forming part of the Equipment which cannot be fixed by
replacing any units or parts of the Equipment; or
(d)
Any suspension of the Services by Logicalis which has been agreed in writing
between the parties or is otherwise lawful; or
(e)
Anything that is to be disregarded under paragraph 9.3.3 in measuring
Service Level.
9.3.3
The following shall be disregarded for the purpose of measuring Service Level:
(a)
Faults in any equipment not directly maintained or supported by Logicalis, or
otherwise outside the scope of the Service;
(b)
Any period during which the Customer fails to make available to Logicalis
such of its staff as Logicalis reasonably considers necessary to diagnose any
fault or make any repair;
(c)
The time spent in responding to any Incidents which are found to have been
due to any of the following causes:
(i)
Any deliberate, accidental or negligent interference with the
Equipment, other than by the deliberate or negligent act or omission
of Logicalis.
(ii)
The Customer making changes to the services provided under this
Agreement and the operation of the Services being interrupted in
order to accommodate those changes.
(iii)
Any Planned Outage.
(iv)
Any change to the configuration of any item of the Equipment unless
it can be established that such change was made or approved by
Logicalis.
10
Payment of Service Credits
10.1
Any Service Credit claimed and due shall be taken in the form of a credit against Logicalis’
next invoice for Services or, if no further invoices are due for payment, Logicalis shall refund
the amount of the Service Credit.
10.2
Customer’s receipt of Service Credits will be Customer’s only remedy in respect of the
relevant failure by Logicalis to meet the applicable Service Level.
58
59
Schedule 7: Charges and Payment Terms
1
Payment Profile
The following Charges will be levied for each individual Service:
2
Charge
Amount
Frequency
Set Up Charge
£[•]
One off
Fixed Charge
£[•] per annum
Quarterly in Advance
Variable Charge
Variable
Quarterly in Arrears
Additional Moves, Adds,
Changes
£133 per MAC
Quarterly in Arrears
Set Up Charges
Logicalis may invoice for the Set Up Charge on completion of the work or monthly in arrears.
3
Fixed Charges
Logicalis’ charges for the Fixed Charge will be invoiced by Logicalis Quarterly in advance in
accordance with the following invoicing calendar quarters: January to March, April to June, July to
September, October to December.
The initial Fixed Charge will be raised for the pro rata charges for the period commencing on the
Commencement Date continuing up to the end of the current calendar quarter and for the entire
following calendar quarter.
Subsequent Fixed charges will be invoiced on or before the first day of the service period.
All charges are payable 30 days from the date of Logicalis’ invoice.
4
Variable Charges
Logicalis’ invoices for the Variable Charge will be invoiced by Logicalis Quarterly in arrears and are
payable 30 days from the date of Logicalis’ invoice.
5
Other Charges
Any other charges payable under this Agreement are due 30 days from the date of Logicalis’ invoice.
6
VAT
All charges are exclusive of VAT.
60
7
Moves, Adds & Changes
The number of Moves, Adds and Changes (MACS) Per Annum included within the Fixed Charge is
defined within Schedule 1: Contract Particulars. Any unused MACS remaining at the end of each
Service Year may not be carried forward to the following Service Year.
61
Schedule 8: Acceptable Use Policy
This Acceptable Use Policy ("AUP") governs all use of Logicalis’ hosting, collocation, facilities, or
services and any resource supported by them (“Logicalis Facilities and Services”). This AUP is
designed to protect the security, integrity, reliability, and privacy of the Logicalis facilities. This AUP
applies to (i) Customer, (ii) Customer’s employees and agents, and (iii) any other person or entity that
accesses or uses the Logicalis Facilities and Services as a result of Customer’s marketing and
reselling the Logicalis Facilities and Services, (individually and collectively “Users”). All Users must
comply with this AUP. A USER IS NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE
Logicalis Facilities and Services UNLESS SUCH USER FULLY COMPLIES WITH THIS AUP.
Customer agrees that it is responsible for violations of this AUP by itself and by any User that uses or
accesses the Logicalis Facilities and Services through Customer, whether authorized by Customer or
not.
Access to or use of the Logicalis Facilities and Services by a User constitutes its acceptance of the
AUP. Users are responsible for any and all acts and omissions that occur during or relating to their
access to and use of the Logicalis Facilities and Services.
Logicalis reserves the right to take action to investigate, correct or remedy any issue arising from the
use of the Logicalis Facilities and Services in a manner that is abnormal, unlawful or otherwise
prohibited by this AUP or applicable law.
Logicalis Facilities and Services shall be used solely for legitimate business and commercial
purposes. Users shall not use the Logicalis Facilities and Services (a) to transmit, distribute or store
material in violation of any applicable law, regulation, or judicial order, (b) in a manner that violates the
terms of this AUP, the terms of any applicable agreement with Logicalis, (c) in a manner that
interferes with or adversely affects the Logicalis Facilities and Services or use of the Logicalis
Facilities and Services including, without limitation, mail bombing, flooding, or other deliberate
attempts to overload a system and broadcast attacks, or (d) in a manner that would expose Logicalis
to criminal or civil liability. Users shall reasonably cooperate with Logicalis in investigating and
correcting any actual or alleged breach of this AUP by a User.
Without limiting the generality of any other provision of this AUP, Users shall:
(1) not, directly or indirectly, use the Logicalis Facilities and Services to access or use an Internet
account or computer without the owner's authorization, including, but not limited to Internet scamming
(tricking other people into releasing their passwords), password robbery,
62
(2) not, directly or indirectly, use the Logicalis Facilities and Services to transmit, distribute or store
information or material that (a) is inappropriate, offensive, obscene (including, without limitation, child
pornography), defamatory, threatening, abusive, advocating violence or which violates a law,
regulation or public policy, (b) is harmful to or interferes with Logicalis' provision of Logicalis Facilities
and Services, or the provision of any third party's networks, equipment, applications, services, or web
sites (e.g., spyware software, viruses, worms, web crawlers, robots, cancelbots, spiders, Trojan
horses, or any data gathering or extraction tools, etc.), (c) will infringe, dilute, misappropriate, or
otherwise violate any privacy, intellectual property, publicity or other personal rights including, without
limitation, any copyright, patent, trademark, trade secret or other proprietary right (including, without
limitation, unauthorized use of domain names), or (d) is fraudulent or contains false, deceptive, or
misleading statements, claims, or representations (such as "phishing"),
(3) not, directly or indirectly, use the Logicalis Facilities and Services to forge any TCP/IP packet
header or any part of the header information in an e-mail or a newsgroup posting (unless such is
legitimately done in the normal course of User’s business),
(4) not, directly or indirectly, use the Logicalis Facilities and Services to engage in any conduct that is
likely to result in retaliation against the Logicalis Facilities and Services or Logicalis' employees,
officers or other agents, including engaging in behaviour that results in any server being the target of
a denial of service attack,
(5) not, directly or indirectly, use the Logicalis Facilities and Services to gain unauthorized access to
or use of data, systems or networks, including attempting to breach security or authentication
measures (including those belonging to Logicalis and its customers) (notwithstanding the foregoing,
Customer shall have the right to perform security analysis on the Logicalis Facilities and Services,
including, but not limited to, vulnerability analysis, network monitoring, port scanning and penetration
testing on Customer’s own systems, provided such does not interfere with Logicalis’ network),
(6) not, directly or indirectly, use the Logicalis Facilities and Services to engage in any activities
related to (a) the sending of advertising or other material to persons or entities who did not specifically
request such material, including (but not limited to) unsolicited e-mail messages (otherwise known as
Spam) and blast-faxing, (b) harassment, whether through language, frequency, or size of messages
(c) unlawful or deceptive advertising, promotion or sales activities, (d) solicitations of mail or any other
E-mail address other than that of the poster's account or service, with the intent to harass or collect
replies, (e) creating or forwarding "chain letters" or other "pyramid schemes" of any type, (f)
distributing, advertising or promoting software or services that have the primary purpose of
encouraging or facilitating any of the activities or items described in (a) through (f) above.
(7) not, directly or indirectly, use the Logicalis Facilities and Services to violate any charters, policies,
rules or agreements promulgated by any search engines, blogs, subscription Web services, chat
63
areas, bulletin boards, Web pages, USENET, or other services accessed via the Logicalis Facilities
and Services ("Usenet Rules"), including, without limitation, any cross postings to unrelated news
groups, continued posting of off-topic messages, and disrupting newsgroups with materials, postings,
or activities that are business inappropriate, unless such materials or activities are expressly allowed
or encouraged under the Usenet Rules,
(8) not, directly or indirectly, use the Logicalis Facilities and Services to violate the applicable
acceptable use policies of other Internet Service Providers ("ISPs") when data, content, or other
communications are carried across an ISP’s network,
(9) not, directly or indirectly, use the Logicalis Facilities and Services to provide "shell account"
hosting, or the resale of "shell accounts" to third party entities, nor re-sell direct access to Customer’s
hosted server via telnet, ssh or other shell binary,
(10) not, directly or indirectly, deny server log-in access to Logicalis' staff, nor disable or demote an
account from being Administrator or Root account, nor hide any prohibited files on the server(s), and
(11) not, directly or indirectly, use the Logicalis Facilities and Services to engage in any other conduct
that is illegal, abusive, or irresponsible behaviour.
Logicalis may, with prior notice to Customer report to the appropriate authorities any conduct by User
that it believes violates applicable criminal law and provide any information it has about User in
response to a formal or informal request from a law enforcement or government agency, or in
response to a formal request in a civil action that on its face meets the requirements for such a
request.
Customer must have valid and current information on file with Customer’s domain name registrar for
any domain hosted on Logicalis’ network. Customer may only use IP addresses assigned to
Customer by Logicalis staff in connection with Logicalis Facilities and Services. Customer may not
take any malicious action which directly or indirectly results in Logicalis IP space being listed in any of
the various abuse databases.
Customer must reasonably cooperate with Logicalis' reasonable investigation of any suspected
violation of the AUP. Logicalis reserves the right at all times to investigate any actual, suspected, or
alleged violations of this AUP, with such investigation to include accessing of data and records on, or
associated with, the Logicalis Facilities and Services, with prior notice to Customer.
Customer shall take reasonable security precautions in light of each User’s use of the Logicalis
Facilities and Services. Customer is solely responsible for any breaches of security affecting the
Logicalis Facilities and Services under a User’s control. Each User shall protect the confidentiality of
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its password(s), and each User should change its password(s) periodically. A compromised server is
potentially disruptive to Logicalis' network and other customers. Therefore, Logicalis may take a
User’s server off line if it is accessed or manipulated by a third party without Customer’s consent.
Logicalis has no responsibility for any User material or information created, stored, maintained,
transmitted or accessible on or through the Logicalis Facilities and Services and is not obligated to
monitor or exercise any editorial control over such User material. In the event that Logicalis becomes
aware that any such material created, stored, maintained, transmitted or accessible through the
Logicalis Facilities and Services violates this AUP and/or exposes Logicalis to civil or criminal liability,
Logicalis may block access to such material.
Logicalis further reserves the right to cooperate with legal authorities and third parties in investigating
any alleged violations of this AUP, including disclosing the identity of any User that Logicalis believes
is responsible for such violation. Logicalis also reserves the right to implement technical mechanisms
to prevent AUP violations. Nothing in this AUP shall limit in any way Logicalis' rights and remedies at
law or in equity that may otherwise be available. Logicalis is under no duty, and does not by this AUP
undertake a duty, to monitor or police User’s activities and disclaims any responsibility for any User
misuse of the Logicalis network. Unless otherwise stated in this Agreement, Logicalis disclaims any
obligation to any person who has not entered into an agreement with Logicalis for use of Logicalis
Facilities and Services.
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