Internet Services

These General Terms and Conditions are applicable to Order Forms agreed and executed by the Company and the Customer. Each Order Form, when agreed and executed by the Company, shall incorporate and shall be subject to these General Terms and Conditions.

Term and Termination

The Services shall commence on the Provisioning Date and the Agreement shall continue in force for the Initial Contract Term and thereafter the contract will continue unless either party gives written notice to the other to terminate the Agreement, such notice not to expire prior to the expiry of the Initial Contract Term.

90 days written notice on leased lines (Ethernet, wireless, GEA, EFM etc)

30 days written notice on FTTC, ADSL and HVX licence + bolt on products

Either party may immediately terminate the Agreement without payment of compensation or other damages caused to the other party solely by such termination by giving notice in writing to the other party if any one or more of the following events happens:

(a) any sum payable under the Agreement is not paid within seven days of its due date for payment in accordance with the Agreement;

(b) the other party proposes a voluntary arrangement within the meaning of Section 1 or Section 253 of the Insolvency Act 1986, or an interim order is made in relation to the other party under Section 252 of the Insolvency Act 1986, or any other steps are taken or negotiations commenced by the other party or any of its creditors with a view to proposing any kind of composition, compromise or arrangement involving the other party and any of its creditors;

(c) the other party is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or a resolution is passed by the directors of the other party to seek a winding up or administration order, or the other party presents, or has presented, a petition for a winding up order, or presents, or has presented, a petition to appoint an administrator, or has an administrative receiver, or receiver appointed over all or any part of its business, undertaking, property or assets;

(d) the other party stops or suspends making payments (whether of principal or interest) with respect to all or any class of its debts or announces an intention to do so or the other party suspends or ceases or threatens to suspend or cease to carry on its business;

(e) a secured lender to the other party takes any steps to obtain possession of the property on which it has security or otherwise

Without prejudice to any other rights or remedies the Company may have at law or under the Agreement:

(a) the Company may, in its sole discretion, suspend the use of the Network and/or Services by the Customer:

(i) in the event of a breach or suspected breach of the Acceptable Use Policy by the Customer, or any of its End Users; or

(ii) if the Company otherwise considers, in its sole discretion, that such suspension is required to maintain or protect the security or operations of:

(A) the Network and/or Services; and/or

(B) the computer networks or systems of the Company or any other customer of the Company where the Company determines that such security or operations are under potential, threatened, or actual attack or compromise;

(b) the Company may terminate the Agreement in the event of a breach by the Customer or any of its End Users of the Acceptable Use Policy.

Consequences of termination

On the expiry or termination of the Agreement (for whatever reason):

(a) the Customer shall immediately cease (and shall procure that its employees, contractors and representatives immediately cease) all use of the Equipment and the Services;

(b) the Customer shall immediately surrender possession of the Equipment in good condition to the Company (fair wear and tear excepted) and the Customer shall provide for the Company access on reasonable notice to its premises, facilities and equipment for the purpose of  removing the Equipment; and

(c) without prejudice, the Customer shall forthwith make payment of all sums due and owing to the Company and the Company shall be entitled to submit an invoice to the Customer for Services rendered up until the date of termination and the Customer shall make prompt payment of such invoice within 14 days of date of invoice.

Proprietary rights

The Equipment and all Intellectual Property rights subsisting therein shall remain the property of the Company or its licensors. The

Company hereby grants to the Customer a right to use the Equipment for the Term for the sole purpose of receiving the Services.

The Customer shall not:

(a) attempt to copy, modify, duplicate, create derivative works from, 1frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of such Software;

(c) access all or any part of the Equipment or Software in order to build a product or service which competes with the Services;

(d) use the Services and/or Equipment to provide services to third parties outside the Site without the prior written consent of the Company (such consent not to be unreasonably withheld); or

(e) license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit, or otherwise make the Services and/or Equipment available to any third party outside the Site without the prior written consent of the Company (such consent not to be unreasonably withheld).

Charges and payment

The Customer must cover all charges enforced by The Carrier relating to aborted or missed Engineer visits, or visits where the Engineer left the premises without being able to complete their task in full.

The Customer will pay to the Company the Charges in accordance with this clause 7 and as otherwise agreed in writing from time to time by the Company.

Charges are payable within 14 days of the date of the invoice.

Unless otherwise agreed or specified by the Company, the Customer shall pay in full and cleared funds all Charges invoiced within 14 days of date of invoice. Time for payment is of the essence.

Unless otherwise expressly provided in the Agreement, all Charges payable under the Agreement are exclusive of VAT, which the Company shall add to its invoices at the appropriate rate.

The Customer shall be responsible for any additional costs or charges imposed by the landlord or management company for the Site.

The Company shall be entitled to increase Charges once per annum at the rate of increase of RPI during the previous 12 month period.

Without prejudice to any other right or remedy of the Company, if the Customer fails to make any payment under the Agreement on the due date for payment then the Company shall be entitled to:

(a) charge the Customer, and the Customer shall pay the Company on demand, interest on the unpaid amount at the rate of 8% per annum above the then current base rate of the Bank of England from the due date for payment until payment is received in full by the Company; and/or

(b) suspend supply and/or performance of all Services to the Customer until it has received payment in full.

If any sums are due to the Customer from the Company, then the Company shall be entitled to exercise the right to set-off such sums against any payments due to the Company from the Customer under or in relation to this or any other agreement. All amounts due to the Company from the Customer shall be paid by the Customer to the Company in full without any deduction or withholding and the Customer shall not be entitled to claim set-off against the Company in relation to the payment of the whole or part of any such amount.

Cessations

A cessation charge will apply on all cessations of End User Access Services. If a cessation of an End User Access Service occurs during or before the Minimum Service Period for any reason other than because of a Migration, the End User will be required to pay a cessation charge.

Cancellation Charges

The Charges levied for cancelling a leased line order prior to its Go-Live Date. Where the End User or Partner cancels or terminates any Order or Service Schedule: prior to the Go-Live Date, it shall be liable to the carrier for the applicable Cancellation Charges;

Pre-planning (up until site survey) approx. £750

Committed (once site survey has been completed) approx. £1500-£3000

General

The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of the Agreement. Words imparting the singular shall include the plural and vice versa. Words imparting a gender include every gender and references to persons include an individual, company, corporation, firm or partnership.

All sums payable hereunder are exclusive of VAT or any other applicable tax or duty payable upon such sums which shall be added if appropriate at the rate prevailing at the relevant tax point.

References to any statute or statutory provision shall include

(i) any subordinate legislation made under it,

(ii) any provision which it has modified or re-enacted (whether with or without modification), and

(iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification).

The words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible. References to in writing include by e-mail, fax and letter. All references in the Agreement to clauses and Schedules are to the clauses of and Schedules to the Agreement.

Scope of Agreement

Each Order Form agreed and executed by the parties shall constitute an individual contract for the supply of the Services specified in that Order Form and shall be subject to these General Terms and Conditions and the applicable Service Level Agreements, as specified in the Order Form.

Unless stated to the contrary in any Order Form, in the event and to the extent only of any conflict or inconsistency between:

(a) any provision in the General Terms and Conditions and any provision in the Service Level Agreements, the provision in the General Terms and Conditions shall prevail;

(b) any provision in an Order Form and any provision in the General Terms and Conditions and/or the Service Level Agreements, the provision in the Order Form shall prevail.

Provision of Services

In consideration of the payment of the Charges by the Customer and the Customer’s compliance with its obligations under the Agreement, the Customer engages the Company, and the Company agrees, to provide the Services to the Customer during the Term in accordance with and subject to the terms and conditions of the Agreement and any applicable Service Level Agreement.

The Company shall provide the Services with all reasonable skill and care and in a good workmanlike manner to good industry practice in accordance with the provisions of the Agreement.

The Company shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Site and that have been communicated to the Company, provided that it shall not be liable under the Agreement if, as a result of such observation, it is in breach of any of its obligations under the Agreement.

The Company reserves the right from time to time in its sole discretion to make operational changes to the Services, including to comply with any changes in applicable law, provided that such changes do not materially affect the scope of the Services.

In performing the Services, the Company shall operate as, and have the status of, an independent contractor and shall not operate or have the status of agent, employee or representative of the Customer.

The Company shall be entitled to sub-contract the whole or any part of the performance of the Services to any person provided that the Company remains responsible to the Customer for the performance of the Services in accordance with the terms of the Agreement.

Installation and Equipment

The Company shall install the Equipment at the Site on the Installation Dates.

Once the Company has carried out the Installation, the Company shall carry out provisioning of the Services and shall conduct testing to satisfy itself that the Equipment at each Site is able to connect to the Network and the Customer is able to receive the Services.

Upon the Company confirming to the Customer by telephone and/or email that the provisioning has been completed to the Company’s satisfaction, Installation shall be complete, this point being the Provisioning Date.

The Customer’s obligations

Carrier Appointments – The Customer is required to be present throughout the appointment. If you have asked another person to supervise the engineer they must be over the age of 18 and able to answer any questions or make decisions about your installation and line location. Engineers can arrive anytime within the appointment slot and may work beyond the appointed time to deliver the service.

If this appointment is not suitable, you MUST call us to change the appointment no later than 2 working days BEFORE the booked appointment.  If the engineer is unable to gain access to your premises to complete the installation a new appointment will be required. This will delay your order and you may be charged for the aborted visit.

The Customer agrees to provide:

(a) such co-operation and assistance to the Company, its agents or subcontractors, as is reasonably required by the Company in order to perform the Services in accordance with the Agreement;

(b) such information as is required by the Company in order to provide the Services under the Agreement; and

(c) access for the Company, its agents or subcontractors during Business Hours, or at such other times as may be agreed by the parties, to such premises, facilities, relevant systems and personnel as the Company may reasonably require from time to time to perform the Services in accordance with the Agreement.

The Customer shall:

(a) use the Services in accordance with all applicable laws and regulations, including all telecommunications laws and Data Protection Legislation;

(b) obtain all authorisations, approvals and consents, including landlord and management company consents, as are required in order for:

(i) the Customer to use the Services at the Site;

(ii) the Company and its agents and contractors to provide the Services at the Site and to carry out any alterations required to the Site in order for the Company to provide the Services to the Customer;

(iii) the Company and its agents and contractors to access the Site for the purposes of installing the Equipment and providing the Services;

(c) use the Services in accordance with the Acceptable Use Policy; and

(d) keep and maintain the Equipment in good condition and repair and in accordance with the manufacturer’s specifications and any required environmental conditions advised by the Company to the Customer.

The Customer shall supply to the Company any documents, materials, assistance, data or other information (Input Materials) required in connection with the Consultancy Services. The Input Materials shall be supplied within sufficient time to enable the Company to perform the Consultancy Services in accordance with the Agreement.

The Company shall not be liable or deemed to be in breach of contract if the Input Materials are delayed, incomplete or inaccurate and the Company will be entitled to charge the Customer for any additional services necessary as a result.

Any recommendations or suggestions proposed by the Company in the performance of the Consultancy Services are given in good faith, but the Customer is solely responsible for satisfying itself of the suitability of any ideas, strategies, equipment or products recommended or suggested by the Company for its own particular purposes (notwithstanding that such purposes are known to the Company), and all such recommendations and suggestions are acted upon entirely at the Customer’s own risk.

Where the Company agrees in the Order Form to facilitate the provision of the ADSL Failover Solution to the Customer:

(a) the Customer acknowledges that a dedicated BT ADSL compatible telephone line (ADSL Line) is required to enable the ADSL Failover Solution to be provided, and the Customer is responsible for:

(i) ensuring that the Company is supplied with a phone number and/or (as requested by the Company) a MAC Code for the ADSL Line so that the ADSL Failover Solution can be provided;

(ii) any costs associated with the provision and maintenance of the ADSL Line;

(iii) testing the ADSL Line and the associated circuit regularly and otherwise ensuring it is operating satisfactorily and is capable of enabling the ADSL Failover Solution;

(b) the Company is not responsible for any additional costs incurred as a result of being supplied with a telephone line that is unsuitable for the Services;

(c) the Customer agrees not to use the ADSL Line for any purpose other than in connection with the provision of the ADSL Failover Solution.

In the event of any breach or suspected breach of the Acceptable Use Policy by the Customer or any of its End Users, in addition to and without prejudice to its other rights and remedies at law or otherwise under the Agreement, the Company may:

(a) monitor usage, and carry out investigations into potential misuse or abuse of the Services insofar as the same is carried out over or using the Network and the Customer shall co-operate with the Company in connection with such investigations; and/or

(b) involve and co-operate with law enforcement, regulatory and any other authorised agencies in the investigation and prosecution of crimes alleged or suspected to have been committed using the Services insofar as the same is carried out over or using the Network.

Warranties

Each of the parties warrants to the other that it has full power and authority to enter into and perform the Agreement.

If the Customer can prove to the Company’s reasonable satisfaction that, due to the Company’s own act or omission, the Company has failed to perform the Consultancy Services in accordance with the Agreement, then the Company may at its option remedy such breach:

(a) by re-executing the relevant part of the Consultancy Services free of charge up to the amount of the Charges received by the Company for the provision of such Consultancy Services (exclusive of any VAT); or

(b) by repaying or crediting to the Customer that part of the Charges paid by the Customer to the Company relating to the provision of the relevant part of the Consultancy Services (exclusive of any VAT), and any such action shall discharge in full the Company’s liability to the Customer for such failure to perform the Consultancy Services.

The Customer must notify the Company in writing of any claims within 14 days of the date when the relevant Services were performed.

The Company shall have no liability for any defects, faults, noncompliance, or shortcomings in the Equipment and/or Services, or for any failure to meet any Service Level, to the extent that any are caused by:

(a) any act, omission and/or default of the Customer, including any failure of the Customer to comply with its obligations pursuant to the Agreement; (b) any unauthorised, improper, incomplete and/or inadequate maintenance of Equipment by the Customer and/or any third party;

(c) the use of any software, hardware, services and/or system(s) which, in each case, are not part of the Equipment and are not compatible with the Equipment or which are defective;

(d) any amendment to or modification and/or alteration of the Equipment which has not been undertaken by or with the prior written approval of the Company;

(e) any unauthorised and/or improper use and/or operation of the Equipment or the Services;

(f) failure by the Customer to meet the Equipment manufacturer’s specifications or any environmental conditions advised by the Company to the Customer, and to the extent that any of the above apply, the Company shall be entitled to charge the Customer a one-off additional fee of £50 in respect of each Site which is affected by any matter listed in subclauses (a) to (f) of this clause

The Company gives no warranty that the use of the Services will be uninterrupted or free of virus or bugs.

Except as expressly and specifically provided in the Agreement:

(a) all warranties, conditions, terms, representations, statements, undertakings and obligations implied by statute, common law, custom, usage or otherwise are, to the fullest extent permitted by applicable law, hereby excluded from the Agreement; and

(b) the Equipment and Services are provided to the Customer on an ‘as is’ basis.

Limitation of Liability

This clause sets out the entire financial liability of the Company to the Customer in respect of:

(a) any breach of the Agreement;

(b) any use made by the Customer of the Services and/or Equipment; and

(c) any representations, statement or tortuous act or omission (including negligence) arising under or in connection with the Agreement.

If any of the Services fail to conform to the Service Levels in the relevant Service Level Agreement, the Customer shall be entitled to the remedies specified in the relevant Service Level Agreement, which shall be the Customer’s sole and exclusive remedy for such failure.

The Company shall not be liable for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over the Network, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities.

Nothing in the Agreement shall exclude or restrict either party’s liability for death or personal injury resulting from that party’s negligence, or for fraud, or for fraudulent misrepresentation, or for any other liability which cannot be excluded or limited under applicable law.

The Company shall not in any circumstances be liable to the Customer for any of the types of loss listed below whether arising from negligence, breach of contract or otherwise. Those types of loss are as follows:

(a) loss of profits;

(b) loss of revenue;

(c) economic loss;

(d) loss of business or contracts;

(e) loss of anticipated savings or goodwill;

(f) losses arising from loss of data;

(g) consequential, special or indirect losses;

(h) any losses suffered by the Customer arising from any claim against it by a third party for any of the above types of loss.

The Company shall not be held in breach of the Agreement, and shall not be liable to the Customer for any loss or damage suffered or incurred by the Customer or any third party as a result of:

(a) any failure to provide the Services in accordance with the Agreement as a result of any act or omission of the Customer or any End Users;

(b) the Company’s compliance with any instruction or direction given by the Customer;

(c) the absence of any authorisation, consent or approval required to be obtained by the Customer pursuant to clause; or

(d) the acts or omissions of the Customer or any End Users.

If the Company’s compliance with the Service Levels or the performance of any of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, or any of its End Users, including any delay or refusal to permit the Company, its agents or contractors, access to the premises, facilities, relevant systems and personnel for the purpose of providing the Services:

(a) the Service Levels shall not apply for the period during which the Company, its agents or contractors, are delayed or prevented from performing the Services; and

(b) the Company shall not be liable for any costs, charges or losses sustained by the Customer that arise directly or indirectly from such prevention or delay.

The Charges have been calculated on the basis that the Company will exclude or limit its liability as set out in the Agreement and the Customer agrees that:

(a) the Customer shall insure against or bear itself any loss for which the Company has excluded or limited its liability in the Agreement; and

(b) the Company shall have no further liability to the Customer.

The Company’s entire liability whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise:

(a) arising out of or in connection with the Consultancy Services, shall be limited to the Company’s Charges for the Consultancy Services;

(b) otherwise arising out of or in connection with the Agreement, shall be limited in each Year to 50% of the Charges payable by the Customer under the Agreement in respect of that Year, as set out in the Order Form (or as amended from time to time in accordance with the provisions of the Agreement).

Confidentiality and Publicity

Each party shall keep and procure to be kept secret and confidential all Confidential Information belonging to the other party disclosed or obtained as a result of the relationship of the parties under the Agreement and shall not use nor disclose the same save or the purposes of the proper performance of the Agreement or with the prior written consent of the other party.

Confidential Information may only be disclosed on a need-to-know basis to a party’s:

(a) legal advisors in order to advise it on its rights or obligations under the Agreement; and

(b) employees, consultants, or agents, provided that disclosure is made solely for the purpose of performing its obligations or exercising its rights under the Agreement, provided in each case that such disclosure is subject to obligations equivalent to those set out in the Agreement and each party shall procure that any person to whom Confidential Information is disclosed complies with such obligations. Each party shall continue to be responsible to the other party in respect of any disclosure or use of the disclosing party’s Confidential Information by a person to whom disclosure is made by the receiving party.

The obligations of confidentiality in this clause shall not extend to any information which the receiving party can show to the reasonable satisfaction of the disclosing party:

(a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under the Agreement; or

(b) was in its written records prior to the disclosure by the disclosing party; or

(c) was independently disclosed to it by a third party entitled to disclose the same; or

(d) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, provided that such information is disclosed only to the extent actually required by law and prior to such disclosure the receiving party gives the disclosing party such prior notice that it is reasonably able to give in order to give the disclosing party the opportunity to seek a protective order for the Confidential Information.

Without prejudice to any other rights or remedies that the disclosing party may have, the receiving party acknowledges and agrees that damages alone may not be an adequate remedy for any breach by the receiving party of this clause. Accordingly, the disclosing party shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of this clause.

The Customer agrees that the Company shall be entitled to refer to being a service provider of the Customer and may publicise such information as the nature of such services and overall contract amount and term without the Customer’s consent.

The obligations under this clause shall survive termination of the Agreement.

Customer Data

The Customer shall own all rights, title and interest in and to the Customer Data and shall have sole responsibility for ensuring the security, legality, reliability, integrity, accuracy and quality of the Customer Data.

Unless otherwise agreed, the Company shall not be responsible for undertaking back-up of any Customer Data and the Customer shall be solely responsible for undertaking back-up of the Customer Data and shall ensure that such back-up copies are recorded on media from which the Customer Data can be re-loaded by the Customer in the event of any corruption or loss thereof and kept safe.

The Customer shall be solely responsible for obtaining all necessary consents in respect of its processing of Customer Data.

Change Control

Each party will appoint a suitably experienced and qualified representative who shall be the primary representative of that party in relation to the management and administration of the Services (Authorised Representative).

If either of the parties wishes to request a change to the Services, that party’s Authorised Representative will submit a change request to the other party’s Authorised Representative describing the proposed change. The receiving party will provide a response to the change request within 14 days (or such other time as is agreed by the Authorised Representatives) and where the party requesting the change is the Customer, the Company will in its response to a change request from the Customer issue a new Order Form.

If the parties agree to proceed with the change, the Authorised Representatives shall agree and sign the new Order Form issued by the Company. In the event that the parties are unable to agree on the proposed change and unless and until a new Order Form is signed by the Authorised Representative, the party submitting the change will withdraw the change request and the Agreement shall continue without change.

Indemnity

The Customer shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:

(a) the use of the Services and/or Equipment by the Customer or any of its End Users save to the extent caused by any negligence or wilful misconduct of the Company;

(b) any content or communications transmitted, sent or stored by the Customer or any of its End Users using the Services;

(c) any failure by the Customer to obtain the necessary authorisations, approvals and consents for the use and provision of the Services at the Site pursuant to clause and

(d) any breach by the Customer or any of its End Users of any of the terms of the Agreement.