The following terms apply where the supplier accepts Asanti Datacentre Limited’s Purchase Order:
For the purposes of this Agreement, the following expressions shall have the following meanings:
1.1 “Agreement” means this agreement between the Supplier and Asanti for the supply of Goods and/or Services.
1.2 “CEDR” means the Centre for Effective Dispute Resolution, a non-profit mediation and arbitration organisation based in London.
1.3 “Confidential Information” means any information of a confidential nature including commercial, financial, marketing, technical, product or business information, know-how, trade secrets, designs, data, or any other information which may reasonably be regarded as the confidential information of the disclosing party, whether disclosed orally or in writing before or after the date of this Agreement.
1.4 Effective Date” means the date upon which the Supplier accepts the Purchase Order.
1.5 “Fees” means the fees payable by Asanti to the Supplier under Clause 6 for the provision of the Goods and/or Services.
1.6 “Premises” means Asanti Datacentres at:
Asanti Hamilton G72 0FT
Asanti Leeds WF17 9LU
Asanti Manchester M1 4EH
Asanti Reading RG2 0QX
Asanti Farnborough GU14 0NR
1.7 “Services” means the services to be provided by the Supplier to Asanti under Clause 3 and “Goods” means the Supply of Goods under Clause 4.
1.8 “Term” means the initial period from the Effective Date together with any subsequent periods as agreed in writing by the parties.
2.1 The Supplier may submit a written proposal to Asanti outlining the specific Services available and proposed Fees or charges (a “Proposal”).
2.2 Asanti may accept or reject the Proposal in its sole discretion. Acceptance of a Proposal by Asanti shall not itself constitute a binding contract.
2.3 A binding contract for the Supplier to provide the Services set out in a Proposal shall only be formed when:
(a) Asanti has accepted the Proposal in writing; and
(b) The Supplier has confirmed acceptance of Asanti’s response in writing.
(c) The Supplier has successfully completed Asanti’s pre-qualification process, including submission and approval of responses to Asanti’s pre-qualification questionnaire (PQQ); and
(d) The terms of the Proposal have been incorporated into this Agreement and the Agreement is duly signed.
3.1 The Supplier shall provide the Services specified in the purchase order.
3.2 The Supplier shall provide the Services with reasonable skill and care expected from a leading service provider in the Supplier’s industry.
3.3 The Services shall correspond with their description and any applicable specification. They shall be performed to a satisfactory standard and be fit for any purpose held out by the Supplier or made known to the Supplier.
3.4 The Supplier shall ensure that at the time of performance any Services supplied shall:
(a) correspond with their description and any applicable specification.
(b) be performed to a satisfactory standard and fit for any purpose held out by the Supplier or made known to the Supplier.
(c) be performed using reasonable skill and care by suitably qualified personnel; and
(d) comply with all applicable statutory and regulatory requirements.
3.5 If any Services do not comply with Clause 3.4, Asanti shall be entitled to remedies available in law or equity, including but not limited to requiring re-performance of the defective Services or claiming damages.
4.1 The Supplier shall supply the Goods specified in the purchase order.
4.2 Title and risk of loss or damage to the Goods shall pass to Asanti on delivery. Delivery shall occur when the Goods are received at the delivery location/s specified in the Premises.
4.3 The Goods shall correspond with their description and any applicable specification or sample. They shall be of satisfactory quality, fit for any purpose held out by the Supplier or made known to the Supplier, and free from defects in design, material, and workmanship.
4.4 The Supplier shall ensure that at the time of delivery any Goods supplied shall:
(a) correspond with their description and any applicable specification.
(b) be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier.
(c) be free from defects in design, material, and workmanship; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling, and delivery of the Goods.
4.5 If any Goods do not comply with Clause 4, Asanti shall be entitled to avail itself of any one or more remedies available to it in law or equity, including but not limited to:
(a) rejecting the Goods (whether or not title has passed) and returning them to the Supplier at the Supplier’s own risk and expense.
(b) requiring the Supplier to repair or replace the rejected Goods.
(c) claiming damages for any reasonably foreseeable loss or damage to Asanti resulting from the Supplier’s breach or its failure to deliver the Goods on the due date.
4.6 These remedies for breach of Clause 4 are in addition to the remedies available to Asanti under Clause 8 (LIMITATIONS AND EXCLUSIONS OF LIABILITY).
5.1 This Agreement shall commence on the Effective Date and, subject to earlier termination in accordance with this Clause 5, shall continue for an initial period of 1 (one) year from the Effective Date (Initial Term).
5.2 Upon expiration of the Initial Term, this Agreement shall automatically renew for successive periods of 1 (one) year each (Renewal Term) unless Asanti gives written notice of non-renewal to the Supplier at least 3 (three) months prior to the end of the then-current term and:
(a) the Supplier may increase the Fees payable during any Renewal Term by providing written notice to Asanti setting out the proposed increase at least 3 (three) months prior to the start of that Renewal Term. Asanti may accept or reject the proposed increase in its sole discretion; and
(b) any agreed increase to the Fees shall not exceed the percentage increase in RPI (Retail Price Index) since the start of the previous term or 5%, whichever is lower.
5.3 Asanti may terminate this Agreement at any time by giving 3 (three) months’ written notice to the Supplier.
5.4 Either party may terminate this Agreement immediately at any time by written notice to the other party if the other party:
(a) commits a material breach not resolved within Clause 14.
(b) repeatedly breaches more than 3 (three) times in any 3 (three) month period of their obligations under this Agreement; or
(c) ceases to trade or becomes insolvent or bankrupt.
5.5 Asanti may terminate this Agreement immediately without penalty if:
(a) the Supplier fails to perform under its obligations under this Agreement in terms of its performance as detailed in the purchase order.
5.6 Upon termination, all rights and licenses granted will immediately terminate. Each party shall promptly return or destroy the other’s Confidential Information and materials located at Asanti’s Premises.
5.7 Survival of Clauses
The following clauses shall survive termination or expiration of this Agreement:
(a) Clause 12 (Confidentiality).
5.8 Termination or expiration of this Agreement shall be without prejudice to any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiration, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiration.
5.9 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiration of this Agreement shall remain in full force and effect.
6.1 Asanti shall pay the Fees to the Supplier in accordance with this Agreement.
6.2 All invoices to be addressed to ASANTI DATA CENTRES LTD. No invoice issued without a purchase order number will be processed for payment.
6.3 All amounts stated in or in relation to this Agreement are unless the context requires otherwise stated, excluded from VAT (Value Added Tax).
6.4 The Supplier shall invoice Asanti monthly in arrears for the Fees.
6.5 The Supplier shall provide Asanti with any proof of delivery or performance documents (PODs) reasonably requested by Asanti to evidence the Services or Goods have been delivered/performed in accordance with the Agreement.
6.6 If Asanti requests a POD for any Services or Goods and the Supplier fails to provide the POD, Asanti may in its sole discretion refuse to pay the invoice for those Services or Goods until the POD is provided.
6.7 No payment by Asanti shall be deemed to be a waiver of any rights or remedies Asanti may have against the Supplier.
7.1 The Supplier warrants to Asanti that:
(a) the Supplier has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
(b) the Supplier will comply with all applicable legal and regulatory requirements applying to the exercise of the Supplier’s rights and the fulfilment of the Supplier’s obligations under this Agreement.
(c) the Supplier has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
7.2 All the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
8.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence.
(b) limit or exclude any liability for fraud or fraudulent misrepresentation.
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
8.2 The Supplier shall be liable for any losses, damages, costs, or expenses incurred by Asanti as a direct result of the Supplier’s negligence, breach of contract, or other failure to perform the Services in accordance with the requirements of this Agreement.
8.3 The limitations and exclusions of liability set out in this Clause 8 and elsewhere in this Agreement are subject to Clause 8.1 and govern all liabilities arising under this Agreement or relating to its subject matter, including liabilities arising in contract, tort, and breach of statutory duty.
8.4 Asanti reserves the right to claim liquidated damages from the Supplier in the event of any poor performance, defects, delays, or other failures by the Supplier to properly carry out the Services, which result in losses to Asanti’s operations.
8.5 Neither party shall be liable to the other for any indirect, special, or consequential losses.
8.6 Subject to Clauses 8.1 to 8.4, each party’s total aggregate liability in contract, tort, breach of statutory duty or otherwise arising under or in connection with this Agreement shall be limited to 100% of the total Fees payable under this Agreement.
9.1 The Supplier shall take out and maintain the following insurances at its own cost:
(a) Professional Indemnity Insurance with a minimum limit of £5m per claim covering legal liability arising from any breach of professional duty, negligent act, error or omission in the performance or failure to perform the Services. Such insurance shall be maintained for a minimum of ONE year following termination or expiry of this Agreement.
(b) Public Liability Insurance with a minimum limit of £5M per claim covering legal liability for death, injury, or damage to property of third parties arising out of or in connection with the performance of this Agreement.
(c) Employer’s Liability Insurance with a minimum limit of £2m per claim covering death or injury to the Supplier’s employees arising out of or in the course of their employment in connection with this Agreement.
9.2 The Supplier shall provide Asanti with copies of insurance certificates evidencing compliance with Clause 9.1 upon request.
10.1 The Supplier is an independent contractor and nothing in this Agreement shall render it an employee, worker, agent, or partner of Asanti.
10.2 The Supplier is not authorised to make any representation, contract, or commitment on behalf of Asanti.
10.3 The Supplier is not entitled to participate in any employee benefits that Asanti provides to its employees.
10.4 Termination or expiration of this Agreement shall not itself qualify as a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 or any equivalent legislation in any jurisdiction. However, the parties agree to comply with any legal obligations that may apply in the event a relevant transfer is deemed to occur, whether before or after termination or expiration of this Agreement.
10.5 For the avoidance of doubt, termination of this Agreement shall not give rise to any entitlement to compensation or redundancy pay.
11.1 The Supplier shall not subcontract any of its obligations under this Agreement to third parties without the prior written consent of Asanti.
11.2 If Asanti provides written consent to the use of subcontractors, the Supplier shall:
(a) provide Asanti with the name and details of the proposed subcontractor.
(b) ensure the subcontractor agrees to be bound by the relevant obligations under this Agreement; and
(c) remain fully responsible and liable for all acts and omissions of any subcontractor as if they were the Supplier’s own.
11.3 Asanti may withdraw its consent to use a subcontractor at any time on reasonable grounds such as concerns over quality of work or regulatory compliance. The Supplier shall ensure any subcontracted work is transitioned back in-house or to an alternative approved subcontractor.
12.1 Each party shall keep in confidence all Confidential Information of the other party and shall not disclose such Confidential Information to any person except to its own employees and then only to those employees who need to know such information for the purposes of discharging that party’s obligations under this Agreement.
12.2 Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
12.3 The provisions of Clauses 12.1 and 12.2 shall not apply to information which is:
(a) in the public domain otherwise than by breach of this Agreement.
(b) acquired from a third party who is free to disclose it; or
(c) required to be disclosed by law or by order of a court or governmental body.
12.4 The provisions of this Clause 12 shall continue in force indefinitely after termination of this Agreement.
12.5 Remedies for Confidentiality Breach
If either party breaches the obligations in this Agreement, the non-breaching party shall be entitled to the following remedies:
(a) Injunctive Relief: The breaching party acknowledges that damages alone may not adequately compensate the non-breaching party for violation of this Agreement, accordingly the non-breaching party shall be entitled to injunctive relief against the breaching party to prevent disclosure of Confidential Information.
(b) Liquidated Damages and Profits: If the breach results in disclosure of Confidential Information to a third party and the breaching party obtains any profits from a transaction with that third party involving the use of such Confidential Information, the breaching party shall pay the non-breaching party liquidated damages of £5,000 per disclosure plus 50% of any profits obtained from the transaction(s).
(c) Termination: In the event of a material breach, the non-breaching party may terminate this Agreement immediately upon written notice to the breaching party.
(d) Return of Confidential Information: The breaching party shall promptly return to the non-breaching party or destroy at the non-breaching party’s request any Confidential Information in its possession or control.
13.1 A party shall not be liable for any delay or failure to perform its obligations under this Agreement to the extent such delay or failure results from a Force Majeure Event.
13.2 For the purposes of this Agreement, a “Force Majeure Event” means an event beyond the reasonable control of a party including but not limited to strikes, lock-outs or other industrial disputes (in each case, whether involving the workforce of such party), failure of a utility service or transport network, act of God, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.3 The affected party shall promptly notify the other party in writing of the Force Majeure Event and its expected duration. The affected party’s performance shall be suspended for the period that the Force Majeure Event continues, provided it has taken reasonable steps to mitigate the effect of the Force Majeure Event.
13.4 If the Force Majeure Event continues for more than 3 months, either party may terminate this Agreement immediately by written notice to the other party.
14.1 In the event of any dispute arising out of or in connection with this Agreement, the parties shall follow the dispute resolution procedure in this Clause 14.
14.2 The dispute shall first be referred by way of notice from one party to the other, to their respective representatives or as otherwise agreed in writing from time to time.
14.3 The representatives shall meet within 10 days of receipt of the notice to resolve the dispute in good faith.
14.4 If the dispute is not resolved within 10 days of the representatives meeting, it shall be referred to a more senior manager of each party who has authority to settle the dispute.
14.5 If the dispute remains unresolved after 10 days from referral to the senior managers, the parties shall attempt to settle it by mediation through CEDR in accordance with the CEDR Model Mediation Procedure.
14.6 If the dispute is not settled by mediation within 30 days of commencement of the mediation or within such other period as the parties may agree in writing, the dispute shall be referred to arbitration administered by CEDR in accordance with its Rules.
14.7 The seat of arbitration shall be London. The language used in the arbitral proceedings shall be English.
14.8 The parties agree to exclude any right of application or appeal pursuant to Sections 45 and 69 of the Arbitration Act 1996 and any equivalent rights in any other jurisdiction.
14.9 This Clause 14 shall not prevent either party from seeking urgent interim relief before the courts of competent jurisdiction.
15.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
15.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.1 Any notice or other communication given under this Agreement must be in writing and may be emailed to the address provided by each party or such other address as may be notified by one party to the other from time to time in accordance with this clause.
16.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time of delivery.
(b) if sent by prepaid post, on the second working day after posting; or
(c) if sent by email, at the time of transmission.
16.3 This clause does not apply to notices given in legal proceedings or arbitration.
17.1 The parties shall comply with all applicable requirements of the Data Protection Legislation. If any Personal Data (as defined in the Data Protection Legislation) is processed in connection with the Services, the parties shall only process such data in accordance with regulation and shall not process it for any other purpose.
18.1 The Supplier shall ensure that all personnel requiring access to the Premises to deliver the Goods (if so required) or perform the Services have followed the applicable access procedures per Schedule A.
18.2 Asanti may deny access to any individual who has not completed the required access request procedure in advance per Schedule A.
18.3 The Supplier is responsible for ensuring all subcontractors and third parties involved in delivering the Goods or Services also comply per Schedule A.
18.4 Any access to the Premises granted under this Agreement is solely for the purposes of the Supplier fulfilling its obligations under this Agreement. Asanti may withdraw or limit access at any time for any reason.
18.5 The Supplier shall be liable for any losses or damages incurred by Asanti as a result of a breach of Schedule A by the Supplier or its personnel, including any security incidents caused by unauthorised access.
18.6 Compliance with Schedule A is a material term of this Agreement and any failure to comply may result in termination under Clause 5.
19.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the United Kingdom of Great Britain and Northern Ireland.
19.2 Notwithstanding Clause 19.1 the parties may mutually agree in writing to:
(a) select the laws of Scotland or England and Wales to govern this Agreement; and
(b) submit to the exclusive jurisdiction of the courts of Scotland or England and Wales.
19.3 In the event of any dispute relating to a breach or threatened breach of the obligations of confidentiality under Clause 12:
(a) both parties agree to submit to the exclusive jurisdiction of the courts of the country in which the party receiving the Confidential Information is located; and
(b) in the event of any uncertainty or dispute regarding which party is considered the receiving party for the purposes of determining jurisdiction, the parties agree that the Scottish courts shall have exclusive jurisdiction over any confidentiality disputes arising out of this Agreement.
Any agreement between the parties to select alternative governing law or jurisdiction shall be subject to and governed by the confidentiality jurisdiction provisions in clause 12.3.
21.1 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application, or re-enactment and includes any subordinate legislation for the time being in force made under it.
21.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
21.3 If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.
21.4 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
Schedule A outlines the procedures for accessing the Asanti’s Premises. It contains important details about:
1. To gain access to Asanti Data Centres sites, all visitors are required to have the appropriate access request (REQ). The REQ Ticket reference number will be required to authorise access and arrange appropriate passes / keys. The Site Access must be requested via the Facilities e-mail address ( facilities@vivacious-white-anteater.45-157-41-64.cpanel.site) stating name(s) of attending persons; approx. time of arrival and date(s). PLEASE NOTE THAT MOST OF OUR SITES OPERATE FROM 09.00 a.m. to 17.30 p.m. Mon – Fri.
2. A minimum of 24 hours’ notice is preferred for Standard Access.
3. On receipt of this request, it will be logged, contact details checked, verified against the Suppler authorised list for the Services or Goods specified in the request and a response will be sent to the requestor, quoting the REQ ticket reference number if applicable and if the access is approved or rejected.
4. In the event that it is rejected an explanation will be provided.
5. On arrival the supplier will require photo ID and the access reference number provided by Asanti formal identification can be in the form of a Driving Licence or Passport.
1. In the event that access is required to any of the Asanti Data Centres in an emergency, the Standard Access Procedure should be followed and in addition, a telephone call must be made to 0333 034 4399, stating the reason for the emergency access.
2. The Access Request will be processed accordingly, and an Email request will be responded to as per the Standard Access procedure.
3. Under some circumstances where it is not possible to submit an Access Request Form via email, a telephone call to 0333 034 4399 should be made requesting emergency access.
4. The Standard Access Request information must be provided over the telephone, including the reason for emergency access, and why the Standard Access Procedure cannot be followed.
5. On resumption of normal services, a retrospective access request must be submitted by the customer to cover the emergency access granted.
6. Before the request for access is approved the requestor will be called back on the telephone number recorded on the Master Access List for the relevant Services. If this call is not verified, the access will be rejected.
7. Abuse of the 24×7 Emergency Access Procedure may result in this service being revoked.
