Pre-lease and build-to-suit agreement

Pre-lease and build-to-suit agreement

The Parties agree as follows:

1. 1Definitions and interpretation

   1. 1.1

      In this agreement:

      1. (a)“Acceptance Certificate” means a certificate issued under clause 8.3, or deemed issued under clause 8.4, confirming that a Phase has passed the Acceptance Tests;
      2. (b)“Acceptance Tests” means the commissioning and testing procedures described in Schedule 4, ending with Integrated Systems Testing;
      3. (c)“Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where control means the ownership of more than half of the voting rights or the power to direct management;
      4. (d)“Agreed Form Wholesale Agreement” means the form of [wholesale whitespace lease / wholesale capacity services agreement] initialled by or on behalf of the Parties for identification on the date of this agreement;
      5. (e)“Business Day” means a day other than a Saturday, Sunday or public holiday in [country];
      6. (f)“Capacity” means [number] MW of critical IT load, with the associated data hall space and supporting infrastructure, described in Schedule 1 and delivered in the Phases;
      7. (g)“Change Request” has the meaning given in clause 5.1;
      8. (h)“Conditions” means the conditions listed in clause 2.1;
      9. (i)“Customer Delay” means any delay to the Works caused by a breach of this agreement by the Customer, by the Customer’s failure to provide information, approvals or access by the dates in the Milestone Programme, or by any act or omission of the Customer or its contractors at the Site;
      10. (j)“Delay Remedies” means the remedies for late delivery set out in clause 7 and Schedule 3;
      11. (k)“Facility” means the datacenter to be constructed at the Site, including the building, the data halls, the electrical and mechanical plant and the site infrastructure;
      12. (l)“Final Design” has the meaning given in clause 3.4;
      13. (m)“Financier” means any person providing or arranging debt or equity finance for the Facility, and any agent or trustee acting for such persons;
      14. (n)“Force Majeure Event” has the meaning given in clause 11.1;
      15. (o)“Grid Delay” has the meaning given in clause 11.4;
      16. (p)“Guaranteed RFS Date” means, for each Phase, the date so described in Schedule 2, as extended under clause 6.3;
      17. (q)“Integrated Systems Testing” means the testing of all electrical, mechanical, control and safety systems of a Phase operating together under simulated load, as described in Schedule 4;
      18. (r)“Long-Stop Date” means [date], as extended under clause 2.5;
      19. (s)“Milestone Programme” means the programme of milestones in Schedule 2, and “Milestone” means each milestone in it;
      20. (t)“Phase” means each part of the Capacity identified as a separate phase in Schedule 1;
      21. (u)“Ready for Service” or “RFS” means, for a Phase, that an Acceptance Certificate has been issued or deemed issued for it, and “RFS Date” means the date on which that occurs;
      22. (v)“Site” means the land at [address / property designation] shown on the plan attached to Schedule 1;
      23. (w)“Specification” means the technical specification of the Capacity in Schedule 1;
      24. (x)“Target RFS Date” means, for each Phase, the date so described in Schedule 2, as extended under clause 6.3;
      25. (y)“Unconditional Date” means the date on which the last of the Conditions is satisfied or waived;
      26. (z)“Wholesale Agreement” means the agreement to be entered into under clause 9.1 in the Agreed Form Wholesale Agreement; and
      27. (aa)“Works” means the design, procurement, construction, installation, commissioning and testing of the Facility and the Capacity.
   2. 1.2

      References to clauses and Schedules are to clauses of and Schedules to this agreement, and the Schedules form part of it. Where the Capacity is delivered in more than one Phase, clauses 6 to 8 apply separately to each Phase.

   3. 1.3

      The words “including” and “in particular” do not limit the words that come before them.

2. 2Conditions precedent

   1. 2.1

      Clauses 1, 2, 3 and 10 to 19 take effect on the date of this agreement. All other obligations of the Parties are conditional on the following Conditions being satisfied or waived:

      1. (a)the grant of [the building permit] and [the environmental permit] for the Facility on terms reasonably satisfactory to both Parties, and either the expiry of every appeal period without an appeal or the final dismissal of every appeal;
      2. (b)the signing of a connection agreement with [grid operator] for an import capacity at the Site of not less than [number] MW, with a planned energisation date no later than [date];
      3. (c)the Developer having obtained financing commitments sufficient to complete the Works [and financial close having occurred under them];
      4. (d)the approval of this agreement and the Agreed Form Wholesale Agreement by the [board of directors / investment committee] of the Customer [and of its parent company];
      5. (e)the approval of this agreement by the [board of directors] of the Developer; and
      6. (f)[any foreign investment screening, merger control or other regulatory approval required for the transaction].
   2. 2.2

      The Developer shall use [reasonable / all reasonable] endeavours to satisfy the Conditions in clauses 2.1(a), 2.1(b), 2.1(c) and 2.1(e), and the Customer shall use [reasonable / all reasonable] endeavours to satisfy the Condition in clause 2.1(d) [and clause 2.1(f)], in each case as soon as reasonably practicable. Each Party shall report progress to the other at least [monthly] and give the other copies of material applications and decisions.

   3. 2.3

      The Conditions in clauses 2.1(a) and 2.1(b) may be waived only by both Parties jointly in writing. The Conditions in clauses 2.1(c) and 2.1(e) may be waived only by the Developer, and the Condition in clause 2.1(d) only by the Customer, in each case by written notice to the other Party.

   4. 2.4

      Each Party shall notify the other within [five] Business Days after it becomes aware that a Condition has been satisfied.

   5. 2.5

      If the Conditions have not all been satisfied or waived by the Long-Stop Date, either Party may terminate this agreement by written notice, unless the failure results from that Party’s own breach of clause 2.2. [The Developer may extend the Long-Stop Date once, by up to [number] months, by written notice given before it passes, if the only outstanding Conditions are those in clauses 2.1(a) or 2.1(b) and the Developer reasonably expects them to be satisfied within the extension.] The consequences of termination under this clause are set out in clause 13.5.

3. 3Specification and design

   1. 3.1

      The Developer shall design and construct the Facility so that, on the RFS Date of each Phase, the Capacity complies with the Specification, applicable law, the permits for the Facility and good industry practice for datacenters of a similar type and resilience.

   2. 3.2

      The Developer shall submit the [concept design, the developed design and the detailed design] for the Facility to the Customer for review by the dates in the Milestone Programme. Within [ten] Business Days after receiving each submission, the Customer shall either approve it or give written comments explaining in what respect it does not comply with the Specification or will not reasonably meet the Customer’s operational requirements stated in Schedule 1.

   3. 3.3

      The Developer shall take account of the Customer’s comments that are consistent with the Specification and resubmit the design. A comment that would require the Facility to exceed or differ from the Specification is not a condition of approval, and the Customer may instead raise it as a Change Request under clause 5.

   4. 3.4

      Each design submission that is approved, or on which the Customer gives no comments within the period in clause 3.2, becomes part of the “Final Design”. The Customer’s approval does not relieve the Developer of its responsibility for the design or for compliance with the Specification.

   5. 3.5

      The Customer shall provide the information about its intended use of the Capacity listed in Schedule 1, including its rack layout, power density, network and security requirements, by the dates in the Milestone Programme. The Developer may rely on that information.

4. 4Construction and progress reporting

   1. 4.1

      The Developer shall carry out the Works diligently, in accordance with the Final Design, and so as to achieve each Milestone by its date. The Developer may appoint designers and contractors but remains responsible to the Customer for their work.

   2. 4.2

      The Developer is responsible for health and safety at the Site and for complying with the construction safety rules that apply to the Works, including any duties it has under them as client or principal contractor.

   3. 4.3

      By the [tenth] Business Day of each month, the Developer shall give the Customer a written progress report covering:

      1. (a)progress against each Milestone and the critical path;
      2. (b)the forecast date of RFS for each Phase, compared with its Target RFS Date and Guaranteed RFS Date;
      3. (c)the status of permits and of the grid connection;
      4. (d)health, safety and environmental incidents;
      5. (e)the principal risks to the programme and the steps being taken to manage them; and
      6. (f)the status of each Change Request.
   4. 4.4

      The Parties shall hold a progress meeting at least [monthly], in person or by video. The Customer and its technical advisers may visit the Site on at least [five] Business Days’ notice, accompanied by the Developer’s representative and in compliance with the Site rules.

   5. 4.5

      The Developer shall notify the Customer promptly on becoming aware that a Milestone or the Guaranteed RFS Date of any Phase is likely to be missed, and within [ten] Business Days after that notice shall provide a recovery plan describing the steps it will take to reduce the delay.

5. 5Customer change requests

   1. 5.1

      The Customer may at any time before the RFS Date of a Phase request a change to the Specification or the Final Design for that Phase by written notice to the Developer (a “Change Request”).

   2. 5.2

      Within [ten] Business Days after receiving a Change Request, or such longer period as is reasonable for a complex change, the Developer shall give the Customer a written proposal stating:

      1. (a)the work required;
      2. (b)the cost of the change, with reasonable supporting detail;
      3. (c)any change to the fees payable under the Wholesale Agreement;
      4. (d)any effect on the Milestone Programme, the Target RFS Date and the Guaranteed RFS Date; and
      5. (e)any effect on permits, the grid connection or other users of the Facility.
   3. 5.3

      The Customer shall accept or reject the proposal in writing within [ten] Business Days. A change is binding only when both Parties have signed a written change order. Until then, the Developer shall continue the Works without the change.

   4. 5.4

      The Customer shall pay for each accepted change, as elected in the change order, either:

      1. (a)as a lump sum, payable [in instalments as the change is carried out / on the RFS Date of the relevant Phase]; or
      2. (b)through an increase in the fees under the Wholesale Agreement, calculated by spreading the cost of the change over the initial term of the Wholesale Agreement at an annual rate of [percentage].
   5. 5.5

      The Customer shall reimburse the Developer’s reasonable costs of preparing a proposal for a Change Request that the Customer does not accept, to the extent those costs exceed [amount].

   6. 5.6

      The Developer may refuse a Change Request that would breach applicable law or a permit, require a new permit, put the grid connection at risk, materially affect other users of the Facility, or breach a condition of the Developer’s financing, and shall give its reasons in writing.

   7. 5.7

      The Developer may make changes to the Final Design without the Customer’s consent if they do not reduce the capacity, performance or resilience of the Capacity or affect the Customer’s rights, provided it notifies the Customer. The cost of changes required by a change in law after the date of this agreement shall be [borne by the Developer / treated as a Change Request and shared [equally] between the Parties].

6. 6Ready-for-service dates

   1. 6.1

      The Developer shall use reasonable endeavours to achieve RFS for each Phase by its Target RFS Date, and shall achieve RFS for each Phase by its Guaranteed RFS Date.

   2. 6.2

      Each Target RFS Date and Guaranteed RFS Date is [the calendar date stated in Schedule 2 / the date falling the number of months stated in Schedule 2 after the Unconditional Date].

   3. 6.3

      The Developer is entitled to a fair and reasonable extension of the Target RFS Date and the Guaranteed RFS Date of a Phase to the extent that achieving RFS is delayed by:

      1. (a)Customer Delay;
      2. (b)an accepted Change Request, to the extent stated in the change order;
      3. (c)a Force Majeure Event, in accordance with clause 11; or
      4. (d)a Grid Delay, to the extent provided in clause 11.4.
   4. 6.4

      To claim an extension, the Developer shall notify the Customer within [20] Business Days after becoming aware of the cause of delay, giving details of the cause and its expected effect, and shall keep the Customer updated. If the Developer does not give notice in time, its extension is limited to the delay that would have occurred had notice been given in time.

   5. 6.5

      Where Customer Delay prevents the Developer from carrying out or completing the Acceptance Tests, and the Developer has done everything else needed for RFS, RFS shall be treated as achieved on the date it would have been achieved but for the Customer Delay. The Customer shall also pay the Developer’s reasonable additional costs caused by the Customer Delay.

7. 7Delay remedies

   1. 7.1

      If RFS for a Phase is not achieved by its Guaranteed RFS Date, the Developer shall provide the Delay Remedies set out in Schedule 3 for each day from the Guaranteed RFS Date until the RFS Date of that Phase, in the form of [rent-free days under clause 7.2 / delay liquidated damages under clause 7.3 / rent-free days or delay liquidated damages, as the Customer elects by notice before the Guaranteed RFS Date].

   2. 7.2

      Rent-free days: for each day of delay, the Customer shall receive a credit equal to the number of days’ fees under the Wholesale Agreement for the delayed Phase stated in Schedule 3, applied against the fees falling due after the RFS Date of that Phase until fully used.

   3. 7.3

      Delay liquidated damages: for each day of delay, the Developer shall pay the Customer the amount per MW of delayed Capacity stated in Schedule 3, invoiced monthly in arrears and payable within [30] days of invoice.

   4. 7.4

      The aggregate Delay Remedies for each Phase shall not exceed the cap stated in Schedule 3.

   5. 7.5

      The Parties agree that the Delay Remedies are a reasonable estimate of the loss the Customer is likely to suffer from late delivery and are not a penalty. The Delay Remedies are the Customer’s only financial remedy for delay in achieving RFS, without affecting its rights under clauses 7.6 and 13.

   6. 7.6

      If RFS for a Phase has not been achieved by the date falling [number] days after its Guaranteed RFS Date, or the Delay Remedies for that Phase have reached their cap, the Customer may terminate this agreement [in respect of that Phase and any later Phase / in its entirety] by written notice given before RFS for that Phase is achieved. The consequences are set out in clause 13.3.

   7. 7.7

      If this agreement is terminated under clause 7.6, or by the Customer under clause 13.1, before rent-free days credited under clause 7.2 have been used, the Developer shall pay the Customer the value of the unused credit within [30] days.

8. 8Acceptance testing and handover

   1. 8.1

      The Developer shall give the Customer at least [15] Business Days’ notice of the start of the Acceptance Tests for each Phase and, at least [20] Business Days before they start, shall submit test scripts complying with Schedule 4 for the Customer’s review. The Customer shall comment on the scripts within [ten] Business Days.

   2. 8.2

      The Developer shall carry out the Acceptance Tests in accordance with Schedule 4. The Customer and its technical advisers may witness them.

   3. 8.3

      Within [five] Business Days after the Developer gives the Customer the completed test results for a Phase, the Customer shall either issue an Acceptance Certificate or give a notice stating in reasonable detail each respect in which the Phase has failed the Acceptance Tests. The Developer shall then correct the failures and repeat the relevant tests, and this clause 8 applies to the repeated tests.

   4. 8.4

      The Customer shall not withhold an Acceptance Certificate because of minor defects that do not affect the operation, resilience, security or use of the Capacity. Such defects shall be listed in the certificate and corrected by the Developer within [30] days. An Acceptance Certificate is deemed issued if the Customer does not respond within the period in clause 8.3, or if the Customer begins to use the Phase for live operations.

   5. 8.5

      On the RFS Date of each Phase, the Developer shall give the Customer [access credentials for the Customer’s areas, as-built drawings and operating information for the Customer’s areas, the Acceptance Test records, and copies of the permits allowing occupation and use of the Facility].

   6. 8.6

      The Developer shall correct, at its own cost and as soon as reasonably practicable, any defect in the Works that appears within [24] months after the RFS Date of a Phase and is notified by the Customer within that period. This obligation is in addition to the Developer’s obligations under the Wholesale Agreement.

9. 9The lease and services phase

   1. 9.1

      The Parties shall enter into the Wholesale Agreement [on the date of this agreement, with its commencement conditional on RFS of the first Phase / within [ten] Business Days after the Unconditional Date / on the RFS Date of the first Phase], in the Agreed Form Wholesale Agreement completed only with the particulars of each Phase, its RFS Date, and the fees as adjusted for accepted Change Requests and any rent-free days under clause 7.2.

   2. 9.2

      The term and the fees under the Wholesale Agreement for each Phase start on its RFS Date, whether or not the Customer has installed any equipment by then. [The Customer’s committed power draw for each Phase ramps up as set out in Schedule 1.]

   3. 9.3

      Until the RFS Date of the first Phase, this agreement prevails over the Wholesale Agreement if they conflict. After that date, the Wholesale Agreement prevails, except in relation to Delay Remedies, the correction of defects under clause 8.6 and the Works for any later Phase, which remain governed by this agreement.

   4. 9.4

      If the Customer fails to sign the Wholesale Agreement when required by clause 9.1, the Developer may by notice require it to do so within [ten] Business Days. If the Customer still fails to do so, the Developer may terminate this agreement by written notice, with the consequences set out in clause 13.4.

   5. 9.5

      Before the RFS Date of a Phase, the Developer may give the Customer early access to its areas for fit-out, at the Customer’s risk and on terms to be agreed. Early access for fit-out is not use for live operations under clause 8.4.

10. 10Security

    1. 10.1

       [Customer security. Within [ten] Business Days after [the date of this agreement / the Unconditional Date], the Customer shall provide the Developer with [a cash deposit / an on-demand guarantee from a bank with a credit rating of at least [rating] / a guarantee from [parent company]] for [amount] (the “Customer Security”), securing the Customer’s payment obligations under this agreement.]

    2. 10.2

       [The Developer may call on the Customer Security for any amount due from the Customer under this agreement that remains unpaid [ten] Business Days after its due date, including any amount due under clause 13.4. On the RFS Date of the [first / last] Phase, the Customer Security shall [be released / become security under the Wholesale Agreement]. A cash deposit shall be held in [a separate account / escrow with [escrow agent]], and interest on it belongs to the Customer.]

    3. 10.3

       [Developer security. Within [ten] Business Days after the Unconditional Date, the Developer shall provide the Customer with [a performance bond from a bank or surety with a credit rating of at least [rating] / a guarantee from [parent company]] for [amount] (the “Developer Security”), securing the Developer’s obligations to pay Delay Remedies in cash, to return the Customer Security and any advance payments, and to pay any amount due under clause 13.3. The Developer Security shall remain in force until [[number] months after the RFS Date of the last Phase].]

    4. 10.4

       If the issuer of a bank guarantee or bond provided under this clause 10 ceases to have the required credit rating, or the security will expire before it is no longer required, the Party that provided it shall replace or extend it within [20] Business Days. If it does not, the other Party may call on the security in full and hold the proceeds as cash security.

11. 11Force majeure

    1. 11.1

       A “Force Majeure Event” is an event or circumstance beyond the reasonable control of the affected Party that it could not have prevented or overcome by acting prudently, including natural disaster, extreme weather beyond the design conditions, fire, epidemic, war, terrorism, sabotage, civil unrest, an act of government or of a court, and a strike or lockout that is not limited to the workforce of the affected Party or its contractors. It does not include lack of funds, the failure of a contractor or supplier unless itself caused by a Force Majeure Event, changes in market prices or[, except as provided in clause 11.4,] any delay by a grid operator.

    2. 11.2

       A Party affected by a Force Majeure Event shall notify the other within [five] Business Days after becoming aware of it, take reasonable steps to mitigate its effects, and resume performance as soon as possible. It is relieved from liability for any failure to perform to the extent caused by the Force Majeure Event, and the Developer is entitled to an extension of time under clause 6.3. A Force Majeure Event does not excuse any payment obligation.

    3. 11.3

       If one or more Force Majeure Events delay RFS for any Phase by more than [number] days in aggregate, either Party may terminate this agreement [in respect of that Phase and any later Phase] by written notice, with the consequences set out in clause 13.5.

    4. 11.4

       A “Grid Delay” is a delay in the energisation of the grid connection for the Site beyond [the date in the connection agreement / the grid energisation date in Schedule 2] caused by the grid operator, where the Developer has complied with its obligations under the connection agreement and taken reasonable steps to avoid or reduce the delay. [Option A: A Grid Delay is treated as a Force Majeure Event.] [Option B: A Grid Delay entitles the Developer to an extension of the Target RFS Date and the Guaranteed RFS Date of up to [number] months in aggregate, but to no other relief. If the Grid Delay continues beyond that period, either Party may terminate this agreement by written notice, with the consequences set out in clause 13.5.] [Option C: A Grid Delay is at the Developer’s risk and gives no extension of time.]

12. 12Liability and insurance

    1. 12.1

       Neither Party is liable to the other for loss of profit, revenue, business or goodwill, or for any indirect or consequential loss, arising under or in connection with this agreement. This does not limit the Delay Remedies, any amount payable under clause 5, 6.5, 10 or 13, or the Customer’s obligation to pay fees.

    2. 12.2

       Subject to clause 12.3, the Developer’s total liability under this agreement is limited to [amount], not counting Delay Remedies, which are subject only to the cap in clause 7.4, and amounts payable under clause 13.3. The Customer’s total liability under this agreement is limited to [amount], not counting amounts payable under clauses 5, 6.5 and 13.4.

    3. 12.3

       Nothing in this agreement limits liability for death or personal injury caused by negligence, for fraud, for [gross negligence or] wilful misconduct, or for any other liability that cannot lawfully be limited.

    4. 12.4

       From the start of the Works until the RFS Date of the last Phase, the Developer shall maintain, or ensure that its main contractor maintains, construction all-risks insurance for the full reinstatement value of the Works and third-party liability insurance of at least [amount] per event, with reputable insurers, and shall provide evidence of cover on request.

13. 13Termination

    1. 13.1

       Either Party may terminate this agreement by written notice if the other Party:

       1. (a)commits a material breach of this agreement and, where the breach can be remedied, fails to remedy it within [30] Business Days after notice requiring it to do so; or
       2. (b)becomes insolvent, enters into bankruptcy, liquidation, administration, reorganisation or an arrangement with its creditors, or suffers any similar event in any jurisdiction.
    2. 13.2

       This agreement may also be terminated under clause 2.5 (Conditions not satisfied), clause 7.6 (prolonged delay), clause 9.4 (failure to sign the Wholesale Agreement), clause 11.3 (prolonged force majeure) [or clause 11.4 (prolonged grid delay)].

    3. 13.3

       If the Customer terminates this agreement under clause 7.6 or clause 13.1, the Developer shall within [30] days:

       1. (a)return the Customer Security and any amounts the Customer has paid in advance for Change Requests not yet carried out;
       2. (b)pay all Delay Remedies accrued up to the date of termination, including the value of unused rent-free days under clause 7.7; and
       3. (c)[pay the Customer’s documented costs reasonably incurred in preparing to take the Capacity, up to [amount]].
    4. 13.4

       If the Developer terminates this agreement under clause 9.4 or clause 13.1, the Customer shall pay the Developer [the termination amount in Schedule 3 for the stage the Works have reached / the Developer’s documented costs of the Works incurred or committed up to the date of termination that the Developer cannot reasonably avoid or recover by making the Capacity available to another customer, up to [amount]], and the Developer may call on the Customer Security for that amount.

    5. 13.5

       If this agreement is terminated under clause 2.5, clause 11.3 [or clause 11.4], neither Party has any further liability to the other except for breaches committed before termination, the Developer shall return the Customer Security and any advance payments within [30] days, and [the Customer shall reimburse the Developer’s documented costs of design work carried out specifically at the Customer’s request, up to [amount]].

    6. 13.6

       Termination does not affect rights and liabilities accrued before it. Clauses 1, 12, 13 and 15 to 19, and any other provision intended to continue, survive termination.

14. 14Assignment and financing

    1. 14.1

       Neither Party may assign, transfer or charge any of its rights or obligations under this agreement without the other Party’s prior written consent, not to be unreasonably withheld, except as permitted by this clause 14.

    2. 14.2

       The Customer may assign this agreement to an Affiliate whose financial standing is no weaker than the Customer’s, provided the Customer [or its parent company] guarantees the Affiliate’s obligations.

    3. 14.3

       The Developer may, without the Customer’s consent:

       1. (a)assign or charge its rights under this agreement and the Wholesale Agreement by way of security to any Financier; and
       2. (b)assign or transfer this agreement, on notice to the Customer, to a buyer of the Facility, or to an Affiliate, that has the financial and technical resources to perform it.
    4. 14.4

       At the Developer’s request, the Customer shall enter into a direct agreement with the Developer’s Financiers on reasonable terms customary for project financing, under which the Customer agrees, among other things, to give the Financiers notice of any Developer default and a reasonable period to cure it before terminating, and to accept a substitute developer approved by the Financiers. The direct agreement shall not increase the Customer’s obligations or reduce its rights under this agreement, other than by giving the Financiers those cure and step-in rights.

    5. 14.5

       The Customer shall provide information about itself that a Financier reasonably requires for its due diligence and know-your-customer checks, subject to clause 15.

15. 15Confidentiality

    1. 15.1

       Each Party shall keep the terms of this agreement, and all information received from the other in connection with it, confidential and shall use that information only for the purposes of this agreement. [The mutual non-disclosure agreement between the Parties dated [date] continues to apply to information disclosed before the date of this agreement.]

    2. 15.2

       A Party may disclose confidential information to its Affiliates, professional advisers, insurers, contractors, Financiers and potential Financiers, and to genuine potential buyers of the Facility or of that Party, who need to know it and are bound by obligations of confidentiality, and to the extent required by law, by a court or regulator, or by the rules of a stock exchange.

    3. 15.3

       Neither Party shall make any public announcement about this agreement or the Customer’s use of the Facility without the other Party’s prior written approval.

16. 16Introduction through the platform

    1. 16.1

       The Parties acknowledge that they were introduced through AICapacity and that the terms of use of AICapacity that each of them has accepted continue to apply to any agreement between them arising from that introduction, including the Wholesale Agreement. AICapacity is not a party to this agreement or the Wholesale Agreement and has no rights or obligations under either of them.

17. 17Personal data

    1. 17.1

       Each Party shall share personal data under this agreement only where necessary for its performance, such as the names and contact details of personnel, contractors and visitors to the Site, and shall comply with applicable data protection law, including the General Data Protection Regulation (EU) 2016/679, in respect of any personal data it receives. Each Party acts as an independent controller of the personal data it receives. Where the Developer processes personal data on the Customer’s behalf, such as access-control records for the Customer’s areas, the Parties shall agree data processing terms meeting the requirements of that Regulation.

18. 18General

    1. 18.1

       This agreement, together with the Wholesale Agreement once signed, is the entire agreement between the Parties about its subject matter and supersedes any earlier letter of intent, heads of terms or other arrangement about it.

    2. 18.2

       No variation of this agreement is effective unless it is in writing and signed by both Parties. No failure or delay in exercising a right is a waiver of it.

    3. 18.3

       If any provision of this agreement is found invalid or unenforceable, the remaining provisions continue in full force, and the Parties shall replace the invalid provision with a valid one that comes as close as possible to its intended effect.

    4. 18.4

       Notices under this agreement shall be in writing and sent by email to the addresses each Party gives below, with a copy by post or courier where the notice concerns a breach or termination.

    5. 18.5

       Nothing in this agreement creates a partnership or joint venture between the Parties. Each Party bears its own costs of negotiating and entering into this agreement.

    6. 18.6

       This agreement may be signed in counterparts and by electronic signature, each of which is an original and together form one agreement.

19. 19Governing law and disputes

    1. 19.1

       This agreement and any dispute or claim arising out of or in connection with it are governed by the laws of [governing law].

    2. 19.2

       Either Party may refer a dispute about whether the Acceptance Tests have been passed, whether the Developer is entitled to an extension of time, or the valuation of a Change Request, to an independent expert with relevant datacenter engineering experience, appointed by agreement or, failing agreement within [ten] Business Days, by [appointing body]. The expert acts as an expert and not as an arbitrator, and the expert’s decision is binding [unless a Party refers the dispute under clause 19.3 within [30] days after the decision]. The Developer shall continue the Works while any dispute is resolved.

    3. 19.3

       Subject to clause 19.2, any dispute arising out of or in connection with this agreement shall be finally resolved by [arbitration under the rules of [arbitral institution], with the seat of arbitration in [city] and the proceedings conducted in English / the courts of [country and city]].