====== Section 8-15 ======

===== 8.  Credit approval and financial security =====
 
8.1  The provision of Services or sale of Equipment by LeaseWeb to 
Customer is subject to approval by LeaseWeb of Customer’s 
credit. In view hereof, Customer shall prior to the RFS Date or 
Delivery  Date  provide  credit  information  to  LeaseWeb  for 
approval by LeaseWeb. 

8.2  LeaseWeb may, at any time, by notice in writing impose a credit 
limit  on  Customer  to  an  amount  to  be  determined  by 
LeaseWeb. Any Services required by Customer in excess of any 
such credit limit will require Customer to deposit an amount 
equal to or greater than the amount by which Customer will 
exceed the credit limit. 

8.3  In addition to Section 8.2, LeaseWeb may require Customer to 
provide a deposit or a bank guarantee or a parent guarantee, 
equivalent to up to three (3) months' Service Charges (actual or 
projected) or other security satisfactory to LeaseWeb. 

8.4  Any deposit or bank guarantee or parent guarantee shall be 
held  by  LeaseWeb  as  security  for  the  payment  of  Service 
Charges and any other amounts due under the Agreement. 

8.5  Upon termination or expiration of the Agreement, LeaseWeb 
may apply a deposit or bank guarantee or parent guarantee to 
any amounts owed by Customer to LeaseWeb. Any remaining 
credit balance of a deposit shall be refunded to Customer. Any 
deposit paid by Customer pursuant to this Section will not carry 
any interest. 

===== 9.  Terms of payment =====
  
9.1  For  Equipment  purchased  by  Customer  from  LeaseWeb, 
Customer shall pay to LeaseWeb the purchase price specified in 
the Order Form. For the use of the Services, Customer shall pay 
to LeaseWeb the Service Charges. Unless specified otherwise, 
all Service Charges are in US Dollars. 

9.2  LeaseWeb is entitled to increase any of the Service Charges one 
(1)  time  per  calendar  year,  by  the  higher  of  either:  (a)  five 
percent (5%); or (b) the percentage increase of the CPI for the 
previous year. The increase will apply with effect from the first 
(1st) of January, unless stipulated otherwise by LeaseWeb in its 
notification to Customer. In the event that the increase of the 
Service Charges takes effect within twelve (12) months of the 
Effective Date, the increase will be pro‐rated on the basis of the 
number of months that have passed since the Effective Date. 

9.3  In addition to Section 9.2, LeaseWeb shall be entitled to pass on 
changes  in  any  (license)  fees  or  prices  or  charges  for 
(software)products: (i) used by LeaseWeb in the provision of 
Service to Customer; (ii) or licensed or resold by LeaseWeb to 
Customer. 

9.4  Unless specified otherwise in the Order Form, LeaseWeb will 
invoice:

a) the purchase price of any Equipment sold by LeaseWeb to 
Customer, upon the Effective Date of the Order; \\
b) setup charges, Service activation charges and any other non‐
recurring  initial  charges,  upon  the  RFS  Date  or  upon  the 
Effective Date, whichever is earlier; and \\
c) all recurring Service Charges, e.g. with respect to the usage 
of Bandwidth and/or Data Traffic, as of the RFS Date or the 
Effective Date (whichever is earlier), and monthly in advance 
thereafter, with the exception of use of Services above the 
agreed levels of Service and/or additional services which will 
be invoiced monthly in arrears.  

9.5  In deviation of Section 9.4a), LeaseWeb may require Customer 
to  make  a  pre‐payment  to  LeaseWeb  in  relation  to  any 
Equipment purchased by Customer from LeaseWeb. 

9.6  LeaseWeb  will  send  invoices  to  Customer  by  e‐mail,  in  a 
portable  document  format  (PDF).  At  Customer’s  request, 
LeaseWeb will – as an extra Service – provide Customer with a 
print out of the invoice, via regular mail. For such extra Service, 
Customer shall pay a Service Charge to LeaseWeb, in relation to 
the  additional  (administrative)  activities  performed  by 
LeaseWeb and the costs of the mail service.
  
9.7  Unless specified otherwise in the Order Form, all invoices sent 
by  LeaseWeb  to  Customer  are  payable  by  Customer  to 
LeaseWeb within fourteen (14) days of the date of the invoice 
by Customer.  

9.8  The method of payment is specified in the Order Form. In case 
of Direct Debit or Credit Card, Customer authorizes LeaseWeb 
to  charge  Customer’s  bank  account  or  Credit  Card  for  the 
Service Charges. 

9.9  In case Customer has a complaint with respect to an invoice, 
Customer  shall  communicate  such  complaint  in  writing  to 
LeaseWeb within the payment term, in the absence whereof 
invoices  are  deemed  to  be  approved  of  by  Customer.  A 
complaint with respect to an invoice shall only be taken into 
consideration  in  the  event  that  the  complaint  specifies  the 
relevant  invoice(s)  and  provides  proper  motivation  for  the 
complaint.  In  such  case,  the  Parties  will  use  commercially 
reasonable  efforts  to  resolve  the  dispute  amicably  within 
twenty  (20)  days  of  LeaseWeb’s  receipt  of  Customer’s 
complaint,  firstly  at  the  level  of  each  Party’s  senior 
management and – failing satisfactory resolution within fifteen 
(15) days – secondly at the Parties’ executive level. In the event 
Parties fail to resolve the dispute amicably within twenty (20) 
days of LeaseWeb’s receipt of Customer’s complaint, each Party 
shall be entitled to commence dispute resolution in accordance 
with Section 27. 

9.10  Customer shall not be entitled to any set‐off or deduction of 
payment of an invoice. Customer’s right to suspend payment of 
(part of) an invoice is limited to the amount of the invoice that 
is  contested  in  good  faith  by  Customer,  in  accordance  with 
Section 9.9. In the event Customer’s complaint is found to be 
unjustified,  Customer  will  immediately  pay  the  outstanding 
amount, plus interest in accordance with Section 9.11. 

9.11  If Customer does not pay an invoice within the payment term, 
in  the  event  that  such  invoice  has  not  been  disputed  in 
accordance  with  Section  9.9,  or  Customer  does  not  pay  the 
undisputed  part  of  the  invoice  within  the  payment  term, 
Customer shall be in default by operation of law and LeaseWeb 
will, without a warning or notice of default being required, be 
entitled to charge Customer interest on such sum on a daily 
basis  from  the  due  date  until  the  date  of  payment  with  an 
interest  rate  of  six  percent  (6%)  per  annum,  without  any 
prejudice to LeaseWeb’s other rights and remedies. 

9.12  In addition to Section 9.11, in the event that LeaseWeb and 
Customer have agreed to payment by Customer to LeaseWeb 
by means of Direct Debit, LeaseWeb will be entitled to charge 
an administrative fee of five hundred US Dollars (US$ 500.‐‐) to 
Customer,  if:  (i)  Customer  has  cancelled  the  Direct  Debit 
authorization; or (ii) payment to LeaseWeb has been reversed 
or denied more than once.

===== 10.  Taxes =====
 
10.1  Customer shall be responsible for and shall pay all sales, use, 
excise,  or  similar  consumption  taxes  (including  VAT,  if  
applicable)  arising  out  of  its  purchase  or  lease  of  Services 
and/or  Equipment  from  LeaseWeb;  provided,  however,  that 
LeaseWeb shall be solely responsible for its own income‐, net 
worth‐, and property taxes.  

10.2  Notwithstanding  the  foregoing,  LeaseWeb  shall  not  invoice 
Customer for any taxes for which Customer has provided a valid 
exemption  certificate  in  a  form  reasonably  acceptable  to 
LeaseWeb. 

10.3  The Parties are of the opinion that the use or provision (as 
appropriate)  of  the  Colocation  Service  will  not  create  a 
relationship of lessor/landlord and tenant between the Parties.  

===== 11.  Suspension of services =====
 
11.1  LeaseWeb  shall  be  entitled  to  immediately  suspend  the 
provision of any of the Services and/or to suspend Customer’s 
access to the Customer Portal and/or to suspend Customer’s 
right to access to the Equipment, by giving written notice to 
Customer, in the event that:  

a) LeaseWeb  receives  an  order  or  ruling  or  decision  to  that 
effect from a court, any law enforcement authority or any 
(other) governmental authority; \\
b) Customer is in breach of the Anti‐Spam Policy, or is involved 
in activities such as IP high jacking, and Customer fails to 
respond to LeaseWeb within thirty (30) minutes after having 
received written notice with respect to the breach and/or 
Customer fails to remedy such breach within two (2) hours 
after having received written notice thereon; \\
c) Customer  is  in  breach  of  the  Acceptable  Use  Policy  and 
Customer fails to respond to LeaseWeb  within thirty (30) 
minutes after having received written notice with respect to 
the  breach  and/or  Customer  fails  to  remedy  such  breach 
within eight (8) hours after having received written notice 
thereon; \\
d) Customer is in breach of any of the other LeaseWeb Policies 
and Customer fails to respond to LeaseWeb within thirty (30) 
minutes after having received written notice with respect to 
the  breach  and/or  Customer  fails  to  remedy  such  breach 
within twenty four (24) hours after having received written 
notice thereon; \\
e) Customer’s consumption of electricity exceeds Basic Power 
(specified  in  the  Order)  and  Customer  fails  to  reduce  its 
electricity consumption to a level on or below Basic Power 
within three (3) days after having received notice thereon; \\
f)  Customer’s  consumption  of  Data  Traffic  or  Bandwidth 
exceeds  the  Committed  Data  Traffic  or  the  Committed 
Bandwidth (specified in the Order), as the case may be, and 
Customer fails to reduce such consumption to a level on or 
below  the  Committed  Data  Traffic  or  the  Committed 
Bandwidth, as the case may be, within three (3) days after 
having received notice thereon; \\
g) Customer has failed to maintain the licenses, permits, and 
authorizations  required  to  use  the  Services  and/or  the 
Equipment and fails to remedy such failure within seven (7) 
days after having received written notice thereon; \\
h) Customer  does  not  cooperate  with  any  investigation  of 
Customer’s alleged improper or unlawful use of the Services, 
the Network or other networks accessed through LeaseWeb, 
and fails to remedy such breach within seven (7) days after 
having received written notice thereon; \\
i)  Customer does not pay an invoice within the payment term 
and fails to pay such invoice, plus the interest referred to in 
Section 9.11, within a period of seven (7) days after having 
received notice thereon;  \\
j)  the Services, software, Equipment are exported or used in a 
country, or used by a Customer or an End‐User, in violation 
of the restrictions referenced in Section 15.9; or  \\
k) Customer is in breach of any of the other provisions of the 
Agreement and Customer fails to remedy such breach within 
a  reasonable  period  after  having  received  written  notice 
thereon,  whereby,  unless  such  notice  period  has  been 
extended in writing by LeaseWeb, a period of fourteen (14) 
days shall be considered a reasonable period. 

11.2  In addition to Section 11.1, in the event that Customer is in 
default of its payment obligations according to Section 9.11, 
LeaseWeb shall ‐upon three (3) days prior written notice‐ be 
entitled to: 

a) limit Customer’s consumption of Data Traffic or Bandwidth; 
and/or \\
b) suspend  Customer’s  right  to  access  or  use  the  Customer 
Portal; and/or \\
c) suspend the provision of support Services. 

11.3  LeaseWeb  shall  be  entitled  to  continue  the  suspension  or 
limitation described in Section 11.1 and Section 11.2 until: 

a) Customer  has  remedied  the  breach  and  has  paid  the 
deactivation charge specified in Section 11.4; or  \\
b) the  Agreement  has  been  terminated  in  accordance  with 
Section 20. 

11.4  Following suspension of the provision of the Services and/or 
access  to  the  Equipment,  in  accordance  with  Section  11, 
LeaseWeb may claim, and Customer shall pay upon demand, a 
deactivation  charge  in  the  amount  of  one  hundred  fifty  US 
Dollars (US$ 150.‐‐), in relation to the (administrative) activities 
performed  in  order  to  suspend  and,  if  applicable,  to 
recommence the provision of the Services and/or Customer’s 
(right to) access to the Equipment. 

===== 12.  Service disruption =====
 
12.1  Immediately  on  becoming  aware  of  a  Service  Disruption, 
Customer shall notify LeaseWeb by e‐mail and by telephone of 
the  Service  Disruption  and  shall  provide  LeaseWeb  with  the 
appropriate information regarding in accordance with Chapter 
A of the Support and Service Level Schedule:  

12.2  Following notification by Customer in accordance with Section 

12.1, LeaseWeb shall: 

a) notify Customer of the estimated timescale for restoration 
of the affected Services, on LeaseWeb’s website and via e‐
mail; \\
b) use its best endeavors to end the Service Disruption and to 
restore the affected Services; and – as necessary ‐  \\
c) provide Customer with information updates on its progress 
to end the Service Disruption. 

12.3  Instead of restoring a Service, LeaseWeb may elect to substitute 
such affected Service by a reasonably equivalent Service. 

12.4  In the event of a Service Disruption, Customer may be entitled 
to compensation in the form of a Service Credit as specified in 
the Support and Service Level Schedule. 

===== 13.  Maintenance and testing =====

13.1  LeaseWeb reserves the right to suspend the Services and may 
suspend Customer’s right to access to the Equipment in order 
to perform Maintenance. 

13.2  Customer acknowledges that LeaseWeb will from time to time 
have  to  perform  Maintenance  in  order  to  ensure  a  proper 
performance  of  the  Network,  LeaseWeb  Datacenter  and  the 
Services and that such Maintenance may affect the provision of 
the Services to Customer.
  
13.3  If  LeaseWeb  expects  scheduled  Maintenance,  referred  to  in 
Section  13.2,  to  affect  the  provision  of  the  Services  and/or 
access to the Equipment, LeaseWeb shall: 

a) ‐ to the extent reasonably possible ‐ provide at least three 
(3)  days  prior  notice  to  Customer  of  the  intended 
Maintenance; \\
b) ‐  to  the  extent  reasonably  practicable ‐ schedule  such 
Maintenance  and  any  related  suspension  of  the  Services 
and/or  access  to  the  Equipment  within  the  Maintenance 
Window,  so  as  to  minimize  any  adverse  effect  of  the
Maintenance  on  Customer’s  use  of  the  Services  and/or 
access to the Equipment; and \\
c) endeavor  to  keep  the  duration  of  any  interruption  or 
suspension or degradation in the provision of the Services 
and/or  Customer’s  access  to  the  Equipment  as  short  as 
possible. 

13.4  If LeaseWeb does not expect scheduled Maintenance, referred 
to in Section 13.2, to affect the provision of the Services and/or 
access to the Equipment, LeaseWeb shall be entitled to perform 
such Maintenance at any time, without taking into account a 
notice period. 

13.5  Customer acknowledges that LeaseWeb may from time to time 
have  to  perform  non‐scheduled  Maintenance,  in  order  to 
resolve or prevent an Emergency. LeaseWeb shall be entitled to 
perform  such  Maintenance  at  any  time,  without  taking  into 
account  a  notice  period.  LeaseWeb  shall in  such  case  notify 
Customer  of  such  Emergency  and  the  need  to  perform 
Maintenance without undue delay. 

13.6  Customer acknowledges that LeaseWeb will from time to time 
perform Tests and that Tests may be performed at any time, 
without taking into account a notice period.  

===== 14.  Housing space / relocation =====
 
14.1  Customer  acknowledges  that  LeaseWeb’s  ability  to  grant 
Customer  a  license  to  use  the  Housing  Space,  as  well  as 
LeaseWeb’s ability to provide (other) Services, are subject to 
the  provisions  of  –  and  continuance  of  –  (a)  Facility 
Agreement(s). 

14.2  LeaseWeb reserves the right to relocate the Housing Space, as 
well as the right to suspend the Services in connection with 
such relocation. 

14.3  LeaseWeb shall give prior written notice to Customer of the 
intended relocation, taking into account a notice period of at 
least thirty (30) days, unless such notice cannot reasonably be 
expected from LeaseWeb. 

14.4  In  the  event  that  LeaseWeb  elects  to  relocate  the  Housing 
Space, Customer shall be required to relocate the Colocated 
Equipment to the new/alternative Housing Space designated by 
LeaseWeb. 

14.5  In case the relocation of the Colocated Equipment is performed 
by Customer, as referred to in Section 14.4, LeaseWeb shall 
provide compensation to Customer for any reasonable costs, to 
be determined by LeaseWeb, incurred by Customer as a result 
of  the  relocation,  excluding  the  costs  of  any  new 
interconnections  that  Customer  may  require  or  the 
procurement,  delivery,  and/or  installation  of  any  duplicate 
Colocated Equipment required to accomplish the relocation. 

14.6  Without prejudice to Section 14.4, LeaseWeb may – at its sole 
discretion – decide to relocate the Colocated Equipment for and 
on behalf of Customer, provided that LeaseWeb shall in such 
case: 

a) notify Customer thereof simultaneously with its notification 
of the intended relocation of the Housing Space; and \\
b) to the extent practicable, coordinate the relocation of the 
Colocated Equipment with Customer. 

===== 15.  Warranties =====
 
15.1  Each Party warrants, represents and undertakes that it:  

a) has obtained and that it will, at least for the duration of the 
Agreement, maintain all of the necessary licenses, permits, 
and authorizations to use or provide (as appropriate) the 
Services and the Equipment; \\
b) shall comply with all relevant laws in providing or using (as 
appropriate) the Services; \\
c) shall use or provide (as appropriate) the Services with all due 
skill, care and diligence, at least in accordance with good 
industry practice. 

15.2  Without  limiting  the  generality  of  Section  15.1a),  Customer 
warrants, represents and undertakes that it shall pay all due 
local  access‐  or  telecommunications  charges  applicable  to 
transmitting data beyond the Network and/or through other 
public  and  private  networks,  as  necessary  and  related  to 
Customer’s use of the Services. 

15.3  Without  limiting  the  generality  of  Section  15.1,  Customer 
warrants, represents and undertakes that it owns or has the 
right to use and offer (i) the content on its website; and (ii) the 
content transmitted by Customer over the Network. 

15.4  With respect to software licensed or resold or otherwise given 
into  use  by  LeaseWeb  to  Customer,  Customer  warrants, 
represents  and  undertakes  that  it  shall  comply  with  the 
provisions of any end user license agreement related to such 
software. 

15.5  With respect to the Equipment sold by LeaseWeb to Customer, 
LeaseWeb will provide a hardware warranty to Customer that is 
equivalent or equal to the warranty granted to LeaseWeb by 
the manufacturer / supplier of such Equipment. To the extent 
possible,: 

a) LeaseWeb  will  transfer  to  Customer  and  Customer  will 
accept the warranty that LeaseWeb has received from the 
manufacturer / supplier of the Equipment; or \\
b) LeaseWeb will arrange that the manufacturer / supplier of 
the Equipment grants such warranty directly to Customer. \\
c) In the events referred to in sub  a) and b) of this Section, 
Customer will not have any recourse against LeaseWeb with 
respect to such Equipment sold by LeaseWeb to Customer, 
but  instead  may  seek  recourse  directly  from  the 
manufacturer / supplier of such Equipment.  

15.6  With respect to software licensed or sublicensed or otherwise 
given  in  to  use  or  provided  to  Customer  by  LeaseWeb, 
LeaseWeb will provide a (software) warranty that is equivalent 
or  equal  to  the  warranty  granted  to  LeaseWeb  by  the 
manufacturer  /  supplier  of  such  software.  To  the  extent 
possible: 

a) LeaseWeb  will  transfer  to  Customer  and  Customer  will 
accept the warranty that LeaseWeb has received from the 
manufacturer / supplier of the software; or \\
b) LeaseWeb will arrange that the manufacturer / supplier of 
the software grants such warranty directly to Customer. \\
c) In the events referred to in sub a) and b) of this section, 
Customer will not have any recourse against LeaseWeb with 
respect  to  such  software,  but  instead  may  seek  recourse 
directly from the manufacturer/supplier of such software. 

15.7  Without limiting Section 15.6, the Customer Portal (including 
the use thereof, and the related services) is provided ‘as is’; and 
otherwise LeaseWeb hereby disclaims any and all warranties of 
any kind, whether express or implied, relating to the Customer 
Portal, the software used therein or as part thereof, and any 
data accessed there from, including any implied warranties of 
title, satisfactory quality, fitness for a particular purpose and 
non‐infringement. 

15.8  Notwithstanding Section 15.6 and Section 15.7, LeaseWeb does 
not  warrant  that  the  Customer  Portal,  the  software  used 
therein  or  as  part  thereof,  or  the  related  services,  or  the 
Customer’s use thereof, are or will be error free or will operate 
without interruption. 

15.9  The  Services,  software  and  Equipment  may  be  subject  to 
international rules that govern the export of Services, software 
and Equipment. Customer warrants that it shall comply with all 
end‐user, end‐use, destination restrictions issued by national 
governments or similar bodies, and restrictions on embargoed 
nations. 

15.10 The warranties expressly set forth in the Agreement constitute 
the only warranties of LeaseWeb regarding the Services and the 
Equipment  and  such  warranties  are  in  lieu  of  all  other 
warranties,  express,  implied,  written,  oral  or  statutory,  by 
operation  of  law  or  in  fact,  including  but  not  limited  to 
warranties of merchantability, non‐infringement or fitness for a 
particular purpose.  

15.11 The foregoing warranties shall not apply to performance issues 
or  defects  in  the  Services  (i)  caused  by  factors  outside  of 
LeaseWeb’s  reasonable  control;  (ii)  that  resulted  from  any
actions or inactions of Customer or any third parties; or (iii) that 
resulted  from  Customer’s  equipment  or  any  third  party 
equipment not within the sole control of LeaseWeb. 

**15.12 EXCEPT  AS  EXPRESSLY  PROVIDED  IN  THIS  SECTION  15, 
LEASEWEB MAKES NO REPRESENTATIONS OR WARRANTIES OF 
ANY  KIND,  EXPRESS  OR  IMPLIED,  WITH  RESPECT  TO  THE 
EQUIPMENT,  THE  SOFTWARE  OR  THE  SERVICES  PROVIDED 
UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, 
ANY  WARRANTY  OF  MERCHANTABILITY,  FITNESS  OF  THE 
SERVICES  FOR  A  PARTICULAR  PURPOSE,  TITLE  OR  NON‐
INFRINGEMENT  OF  THIRD  PARTY  RIGHTS,  AND  LEASEWEB 
HEREBY  EXPRESSLY  DISCLAIMS  THE  SAME.  LEASEWEB  DOES 
NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, 
ERROR‐FREE OR COMPLETELY SECURE.**