Terms and Conditions
1. Definitions
"Access Connection" means a telecommunications circuit that the Customer may use to obtain telecommunications services at the Site.
"Agreement" means this document.
“Bearer Circuit” “Customer Access Connection”’“Access Connection” means the BT telephone service required for provision ofADSL and FTTC data services.
"Carrier" means any supplier of telecommunications services to the Provider as part of the Service.
"Commencement Date" means the date when Provider has installed and is ready to supply the Service at any Site, irrespective of whether the Service or part thereof is not actually being provided due to the failure of the Customer to comply with its obligations under this Agreement.
“Communications Service” means the underlying PSTN or ISDN telecommunications links provided by the Customer to support the Internet services provided by the Provider.
"Customer Equipment" means any equipment connected to the service not belonging to the Provider.
“Day Visit Charge” means the daily rate charge for Provider engineer to visit Client site to install services.
"Provider Equipment" means any apparatus or equipment provided by Provider or their third party to the Customer at the Site to enable provision of the Service under this Agreement.
“Initial Period” means one month from the Commencement Date.
“Internet” means the worldwide TCP/IP network formed by an interconnection of the private and public networks ofcompanies, organisations and institutions.
"Provider" means Clearstream Technology Ltd of Tredomen Innovation Centre, Ystrad Mynach, Hengoed CF82 7FN.
"Service" means the installation, connection and supply of data networking services firewalls and associated support services.
“Service Availability Area” means an area where availability of Carriers’ network infrastructure allows provision of the Service.
"Site" means the Customer’s Sitewhere the Service is to be received, as nominated by the Customer on the Order Form.
“Working Hours” means 8:30am to 6:00pm,Mondays to Saturday, excluding bank holidays.
2. Contractual Terms and Duration
This Agreement will be effective on signing and shall continue until the expiry of the Initial Period and thereafter will automatically renew for a further month term unless notice is given in writing 30 days prior to the expiry of the initial period or term.
If the Customer wishes to modify theservices it must provide Provider with at least 30 days’ written notice of itswishes. Provider may (subject to availability) vary the Service accordinglysubject to the Customer paying Provider an alternative Service tariff that willbe notified to the Customer at the time of receipt of the request.
If the Customer wishes to change the Sitethen it will need to provide Provider with at least 30 days’ written notice andProvider may, in its absolute discretion agree to such change of Site providedan migration charge, as notified to the Customer at the time of receipt of therequest, shall be payable to Provider.
For the avoidance of doubt any purchase orders placed by the Customer shall be governed by this Agreement and not byany terms and conditions provided with the Customer’s purchase order.
3. Installation of the Service
The services shall be installed according to a schedule agreed by Provider and Customer. Where a Customer Communications Service is required it shall be provided in good time and ongoing by the Customer in order to allow provision of the Services.
Customer shall provide Provider with use of an operational BearerCircuit where required for provision of Service.
The provision of the Service to the Customerwill be subject to the characteristics of the Customer’s Access Connection andthe Carrier may determine that it is not possible to supply the Service overthe Customer’s Access Connection. Wherethis is the case, Provider will immediately terminate this Agreement andProvider will not be liable to the Customer for such termination.
The Customer acknowledges that during the installation of the Provider Equipment for the provision of the Service, any Access Connection at the Site may suffer temporary interference, which shall be reinstated following installation. Provider will not be liable for any loss,interruption or interference during installation. The Customer also acknowledges that any telephone socket extensions that are incorrectly wired may be disconnected during installation, without liability to Provider.
Provider shall use its reasonable endeavours to comply with the Customer's reasonable requests in respect of installation but Provider or the Carrier’s decision on the routing of cables and wires and the positioning of outlets and other apparatus constituting the Provider Equipment shall be final and binding.
Provider shall comply with Customers Health and Safety and reasonable site working procedures subject to timely receipt and reasonable assistance to implement such. No works will commence where such procedures and assistance are not received by Provider and Customer shall bear responsibility for any delay so caused.
Provider shall use all reasonable endeavours to provide and install or procure the provision and installation of theProvider Equipment at the Site so that the Service can be provided on or before any installation date specified or agreed to by Provider. Any installation date is an estimate only and Provider shall not be liable for any failure to meet such installation date.
Installation of the Service may be subjectto a survey carried out by Provider or the Carrier and the Service may not beprovided where the survey carried out is incomplete or unsatisfactory.
Once Provider or the Carrier has establishedthe Access Connection to enable the Customer to use the Service it shall be the Customer’s responsibility to connect the Provider Equipment to this connection.
4. Provision of the Network Services
The provision of the Service is subject to the Site being within aService Availability Area.
Provider shall provide or procure the provision of the Service to theCustomer in accordance with the terms of this Agreement. The Customer acknowledges that it istechnically impracticable to provide a fault free Service and performance ofthe Service will be accordance with the Providers’ Service Levels defined inSchedule 3.
Occasionally Provider and/or any Carrier mayhave to interrupt the Service or change the technical specification of theService for operational reasons (such as maintenance or Service upgrades) orbecause of an emergency. In thesecircumstances, where possible, Provider will give notice to the Customer of anysuch interruption, however, the Customer shall have no claim against Providerfor any such interruption.
The Customer acknowledges and accepts thefollowing “Technical Limits” relating to the Service:
· transmissionperformance of some metallic local loops will mean it is technicallyimpracticable to provide Service to all Customers within the ServiceAvailability Area;
· the Service may not beprovided over the same Access Connection as certain other telecommunicationsservices which Provider can advise at time of order.
· the Service may notavailable to Sites where all or part of the Access Connection is provided over Carrierinfrastructure not supported by Provider.
· that the Service mayalso affect the performance of some PSTN customer premises equipment includingfax machines.
· that some technicallimitations, in particular the performance of telephone connections supportingxDSL services, may not become apparentuntil after the Service has been installed and working for some time. In such circumstances the Service for someCustomers may need to be withdrawn by Provider and alternative solutionsoffered.
· that some existingcommunications equipment including PABX and voice equipment may be incompatiblewith the service unless tested and accepted by the Provider.
· ADSL services aresubject to an initial settling period of up to 10 days during which the Servicemay not be continuously available.
Where the Technical Limits above apply theProvider will have no liability to the Customer relating to the provision ofthe Service (or Provider's inability to provide the Service), the performanceof the Service, its effect on other services or equipment or the withdrawal ofthe Service.
The Service will be provided as described inthe order form and supporting descriptive documentation.
5. Charges
The charges for the Service will be calculatedin accordance with the Schedule 2 – Service Pricing. Charging will begin on the Commencement Datefor a Service at any Site. Charges willbe calculated each month on the first working day of each month for whichService has been ordered and provided.
The Customer must pay the Charges initiallyfor set-up costs by cheque or electronic transfer within 30 days of invoice.Provider may charge daily interest on late payments at a rate equal to 4% perannum above the base-lending rate of Barclays Bank Plc.
All set-up charges payable for the Serviceare non-refundable.
All charges are subject to Value Added Tax(VAT) at the applicable rate, unless stated otherwise.
Provider shall be entitled to set off anyamounts owed to the Customer against any Charges due under this Agreement.
Provider may also make an additional chargeon its own behalf or on behalf of a Carrier in the following circumstances asdefined in Schedule 2 – Service Pricing:
· an additional setupcharge may be incurred where incorrect information supplied by the Customermeans it is technically impractical to provide the Service over the CustomersAccess Connection;
· where Provider or theCarrier are unable to gain access to the Site to carry out installation of theService or the installation is aborted, a Day Visit Charge may be payable;
· where certain orderinformation provided by the Customer is illegible, inaccurate or incomplete;
· where Provider or theCarrier provide the support to the Customer at the Customer’s request outsideWorking Hours in supply of the Service;
· where a fault relatesto equipment other than the Provider Equipment; or
· where it is necessaryto relocate the existing telephone master socket or power sockets to providethe Service.
6. Customer Obligations
Where required the Customer will allow theinstallation and use of the Provider Equipment at the customer Site, theCustomer will, prior to any installation work for the Service, at theCustomer's own expense:
· obtain all necessaryconsents, including consents for any necessary alterations to buildings;
· take up or remove, anyfitted or fixed floor coverings, ceiling tiles, suspended ceiling and partitioncovers as Provider or the Carrier advises are necessary and carry outafterwards any making good or decorator's work required; and
· provide any electricityand connection points required by Provider or the Carrier.
The Provider shall carry out work withreasonable care and skill and make reasonable endeavours to avoid damage toCustomer equipment and premises.
The Provider Equipment shall remain theproperty of Provider or the supplier of such equipment (including any Carrier)and the Customer shall at all times make clear to third parties that the sameis the property of Provider or a third party supplier of such equipment. Provider may modify, substitute, renew or addto the Provider Equipment from time to time at its absolute discretion.
Provider shall supply the Customer with therelevant information to enable the Customer suitably to prepare the Site fordelivery and installation of the Provider Equipment. The Customer shall at their own expenseprovide suitable accommodation, assistance, facilities and environmentalconditions for the Provider Equipment and all necessary electrical and otherinstallations and fittings.
A secure electricity supply is required atthe Site for the installation, operation and maintenance of the ProviderEquipment at such points and with such connections as specified byProvider. Unless otherwise agreed, thispower supply is to be provided by the Customer. Provider shall not be responsible for interruption or failure of theServices caused by a failure of such power supply.
The Customer is responsible for the ProviderEquipment and must not add to, modify or in any way interfere with it nor allowanyone else (other than someone authorised by Provider) to do so. The Customer will be liable to Provider forany loss of or damage to the Provider Equipment, except where such loss ordamage is due to fair wear and tear or is caused by Provider, or anyone actingon Provider's behalf. Where a replacement for the Provider Equipment has beensent to the Customer by Provider, the Customer must follow the instructionscontained on the replacement and arrange for the collection of the originalProvider Equipment within 7 days of receipt of the replacement.
Any Customer Equipment connected to or usedwith the Service must be connected and used in accordance with anyinstructions, safety and security procedures applicable to the use of thatequipment. Any equipment which isattached (directly or indirectly) to the Service must be technically compatiblewith the Service and approved for that purpose under any relevant legislationor telecommunications industry standards.
To enable Provider to carry out itsobligations under this Agreement, the Customer will at all reasonable timesprovide Provider employees, and anyone acting on Provider's behalf includingthe Carrier, who produces a valid identity card, with access to any Site andany other premises outside of Provider's control. Provider will normally only require accessduring Working Hours but may, on reasonable notice, require the Customer toprovide access at other times. Providermay agree to work outside Working Hours, but the Customer must pay Provider'sstandard additional charges for doing so.
The Customer will co-operate with Provider'sreasonable requests for information regarding the Customer use of the Serviceand supply such information without delay.
The Customer hereby irrevocably gives permissionto Provider or the Carrier and its employees, agents or contractors to:
· execute any works onthe Site for, or in connection with, the installation, maintenance, or removalof the Provider Equipment;
· keep and operatetelecommunication apparatus installed on, under or over the Site;
· enter the Customer’spremises to inspect any telecommunication apparatus kept on the Site orelsewhere for the purposes of providing the Service (subject to compliance withcustomer Health & Safety procedures).
Where this Agreement or the Service isterminated for any reason Provider or the Carrier will be entitled to enter theSite to remove the Provider Equipment installed there.
The Customer undertakes:
· to comply with allinstructions Provider may notify to the Customer for use of the ProviderEquipment;.
· not to allow theProvider Equipment to be repaired or maintained other than by an authorisedrepresentative of Provider;
· not to damage theProvider Equipment and not to add modify or in any way interfere with theperformance of the Provider Equipment;
· not to attempt to sellor charge the Provider Equipment;
· not to remove anyidentification mark affixed to the Provider Equipment showing that it is theproperty of Provider or other third party supplier of such equipment.
The Customer shall be responsible for the repair and maintenance ofany Customer Equipment used in order to obtain or use the Service.
Except as otherwise expressly permittedunder this Agreement, the Customer may not:
· modify the Servicewithout Provider's prior written consent;
· redistribute or copythe Service (or any part thereof), or transfer rights to the use of the Serviceto any third party;
· disclose details of theService, to any third party without Provider's prior written consent;
· use the Service exceptin conjunction with Provider's recommended operating guidelines.
The Customer must not use the Service:
· in a way that does notcomply with the terms of any legislation or any license applicable to theCustomer or that is in any way unlawful or fraudulent or has any unlawful orfraudulent purpose or effect;
· in connection with thecarrying out of a fraud or criminal offence against Provider, or any otherpublic telecommunications operator;
· to send, knowinglyreceive, upload, download, use or re-use any material which is abusive,indecent, defamatory, obscene or menacing, or in breach of any copyright,confidence, privacy or any other rights;
· to send or procure thesending of any unsolicited advertising or promotional material other than inthe case of the Customer to its own customers;
· in a way that does notcomply with any other instructions Provider or the Carrier has given; or
· in a way that inProvider's reasonable opinion could materially affect the quality of anyservice, including the Service, provided by Provider or the Carrier.
The Customer shall be responsible for maintaining and paying anytelephone charges for the Access Connection. If the Access Connection isterminated by the Carrier, the Service will automatically be cancelled and thisAgreement terminated with the Customer remaining liable for any charges for theservice for the balance of the Initial Period. A new Agreement for the Servicewill need to be entered if the Access Connection is reinstated by the Carrier,with a new Initial Period.
The Customer agrees to comply with any end-user license agreements forany software or hardware provided with the Service. Copies of agreements areavailable on request.
7. Support of the Service
The Provider shall use its reasonable endeavoursto maintain the Services.
· Faults in the Servicemay be reported at any time to the Helpdesk in accordance with the proceduresabove..
· Faults will be managedin accordance with the support procedures as exist from time to time andprovided with the service.
· Security Products
· All security productswithin the Service shall be configured in accordance with prevailing Providersecurity procedures. Modifications for individual Customers shall be carried atas part of the Services on request up to a reasonable number of annual changerequests not to exceed 5 per site.
The Provider makes no warranties in additionto those of the Service components provided by any Carrier or ProviderEquipment supplier as part of the Services.
8. Intellectual Property Rights
The Customer acknowledges that the Customershall have no rights to any intellectual property rights in the service arisingas a result of any use of the Service.
Any and all intellectual property rightsused or embodied in or in connection with the Service shall be and remain thesole property of Provider or Provider's licensors. No title or intellectual property rightstherein or in any modification or extension thereof shall pass to the Customerunless specifically stated under the Agreement.
The Customer acknowledges such title,interest and rights and the Customer shall not take any action to jeopardize,limit or interfere in any manner with Provider's (or any third partysuppliers') title, interests or rights with respect to the Service, including butnot limited to, using Provider's or the Carriers trademarks or trade name.
Where software is provided to enable theCustomer or to use the Service, Provider grants the Customer, for the durationof this Agreement, a non-exclusive, non-transferable license to use thesoftware for that purpose.
Except as permitted by applicable law asexpressly permitted under this Agreement, the Customer must not, withoutProvider’s prior written consent, copy, de-compile or modify the software norcopy any manuals or documentation provided with the Service.
9. Warranties and Liability
Provider shall indemnify Customer against any liability arisingdirectly from a claim that the normal use of the Service infringes theIntellectual Property Rights of any third party.
The service is provided without warranty or representation not statedin this Agreement. Provider disclaims and excludes all prior warranties andrepresentations (including any made in advertising and promotional materials).
Nothing in this Agreement shall exclude or limit liability for deathor personal injury resulting from the negligence of either party or theirservants, agents or employees.
Neither party shall be liable in contract, tort, pre-contract or otherrepresentations (other than fraudulent or negligent misrepresentations) arisingout of or in connection with this Agreement for:
· any economic losses(including, without limitation, loss of revenues, profits, contracts, orbusiness); or
· any special, indirector consequential losses or any destruction of data, arising out of or inconnection with the provisions of this Agreement.
The Provider's liability to the Customer in contract, tort,negligence, pre-contract or other representations arising out of or inconnection with this Agreement or the performance or observation of itsobligations under this Agreement shall be limited in aggregate to the chargespaid, by the Customer under this Agreement.
Each provision of this Agreement, excluding or limiting liability,operates separately. If any part is held by a court to be unreasonable orinapplicable, the other parts shall continue to apply.
The Customer indemnifies Provider and its suppliers including anyCarrier against any claims or damages arising from the Customers access to oruse of the Service and any information, data or material produced, transmittedor downloaded on the Service.
10. Force Majeure
If either party is unable to perform any obligation under thisAgreement because of a matter beyond that party's reasonable control such aslightning, flood, exceptionally severe weather,fire, explosion, war, civil disorder, industrial disputes (whether or not involving that party's employees), or acts of local or centralGovernment or other competent authorities or events beyond the reasonablecontrol of that party's suppliers, the party will have no liability to theother for that failure to perform.
11. Suspension & Termination
Either Party may terminate this Agreement after the Initial Period bygiving 90 days written notice to Provider.
Either Party may terminate this Agreement or the Service providedunder it immediately, on notice, if the other:
· commits a materialbreach of this Agreement, which is capable of remedy, and fails to remedy thebreach within 14 days of a written notice to do so;
· commits a materialbreach of this Agreement which cannot be remedied;
· is repeatedly in breachof this Agreement; or
· Is the subject of abankruptcy order, or becomes insolvent, or makes any arrangement or compositionwith or assignment for the benefit of their creditors, or goes into voluntary(otherwise than for reconstruction or amalgamation), or compulsory liquidationor a receiver or administrator is appointed over their assets.
The Provider may re-assign its obligations under this agreement withagreement of Customer such agreement not to be unreasonably withheld and suchthat the Charges and Services and Terms are substantially unchanged.
If any of the events detailed in 11 occur as a result of Customerdefault, Provider may suspend the Service without prejudice to its right toterminate this Agreement. Where the Service is suspended under this paragraphthe Customer must pay the charges for the Service until this Agreement isterminated.
Provider will be entitled to suspend theService or terminate the Agreement where Provider, in its absolute discretion,believes the Customer is in material breach of any provisions of the agreement.
Provider may terminate this Agreement immediately upon written noticeto the Customer if:
· Provider is informed bythe Carrier supporting the Service that the Carrier is required to cease theService by a competent regulatory authority;
· the Carrier supportingthe Service ceases to do so for whatever reason or changes the terms itsprovision of telecommunications services to Provider for the Service beyond thereasonable control of Provider; or
· the Customer fails tocomply with any of the material terms or conditions of the Agreement and theCustomer does not remedy such failure within 14 days of a request to do so.
Upon termination of this Agreement the Customer shall immediately stopusing the Service and the Customer right to use the Service shall immediatelyterminate.
If either party delays in acting upon a breach of this Agreement thatdelay will not be regarded as a waiver of that breach. If either party waives abreach of this Agreement that waiver is limited to that particular breach.
12. Confidentiality
The parties will keep in confidence any information (whether writtenor oral) of a confidential nature (including software and manuals) obtainedunder or in connection with this Agreement or the Service and will not withoutthe written consent of the other party disclose that information to any person(other than their employees or professional advisers, or in the case ofProvider the employees of a Provider Group Company or their suppliers, who needto know the information).
Clause 12 will not apply to:
· any information, whichhas been, published other than through a breach of this Agreement;
· information lawfully inthe possession of the recipient before the disclosure under this Agreement tookplace;
· information obtainedfrom a third party who is free to disclose it; and
· information, which aparty is, requested to disclose and, if it did not, would be required by law todo so.
Clause 10 will remain in effectfor 2 years after the termination of this Agreement.
The Customer agreesthat Provider may make reasonable references to the Customer as a consumer ofthe Services in its press releases, advertising and promotional material onlysubject to Customer approval of such request.
13. Data Protection
Provider and the Customer each agree to comply with their respectiveobligations under applicable data protection legislation and maintain allrelevant registrations, including (in relation to the Customer) suchregistrations and consents as the Customer should obtain and maintain to enableProvider to process personal data in connection with the performance byProvider of its obligations under this Agreement.
The Customer agrees that Provider may put their name and other detailsobtained from the Order Form into a computerized directory for internal use andto enable Provider to provide the Service.
Rights of subject access will be in accordance with the DataProtection Act 1998 and upon request in writing and payment of the appropriatefee.
All Customer specific information held by Provider will remain withinthe European Economic Area.
14. Notices
Notices given under this Agreement must be in writing and may bedelivered by hand, or by courier or first class post to the Provider address.
15. General Provisions
The Agreement will constitute the entire agreement between the partiesand will supersede all prior and contemporaneous agreements, communications andrepresentations (except for fraudulent or negligent misrepresentations) whetheroral or written, between the parties.
A person who is not party to this Agreement has no right under theContracts (Rights of Third Parties) Act 1999 to enforce any term of thisAgreement, but this does not affect any right or remedy of a third party whichexists or is available apart from that Act.
In the event of a dispute between the parties, the parties willattempt in good faith to resolve the dispute or claim arising out of orrelating to the Agreement promptly through negotiations between the respectiverepresentatives of the parties who have authority to settle the same.
If any provision of the Agreement (whether in part or in whole) isheld by a court of competent jurisdiction to be illegal, invalid orunenforceable the remaining provisions of the Agreement shall remain in fullforce and effect.
Any waiver of any breach of any provision of the Agreement will notconstitute a waiver of any prior, concurrent or subsequent breach of the sameor any other provisions of the Agreement.
The Customer may not assign or otherwise transfer, by operation of lawor otherwise, the Agreement or any rights or obligations therein without theprior express written consent of Provider.
The headings to the sections of this Agreement are for convenienceonly.
The Agreement shall be governed by the lawsof England and the parties submit to the exclusive jurisdiction of the Courtsof England.
Services are delivered strictly inaccordance with the Customer Trusted Third Party Agreement.
IN NO EVENT SHALL CUSTOMER BE LIABLE TO PROVIDEROR ANY THIRD PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) FOR BREACH OFSTATUTORY DUTY OR OTHERWISE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL,SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION,LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHERECONOMIC LOSS ARISING FROM AN INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BYTHE PROVIDER IN THE PROVISON OF THE SERVICES.
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