Leased Line Services Terms
General terms and conditions for the provision of leased line services
1.1. In accordance with the provisions of the Contract, the Supplier shall provide the Services to the Customer for the duration of the Contract.
2. Term and Termination
2.1. The Contract shall come into force on and with effect from the date of the Supplier’s acceptance of the Order and, subject to the terms hereof, shall continue in force for the Minimum Period and thereafter until terminated by either Party giving to the other Party not less than three (3) months’ prior written notice to expire at the end of the Minimum Period or at any time thereafter.
2.2. Either Party shall have the right (without prejudice to its other rights) to terminate the Contract forthwith (except where stated otherwise below) by notice in writing to the other Party in any of the following events:
2.2.1. a liquidator (other than for the purpose of solvent amalgamation or reconstruction), administrative receiver, administrator or receiver is appointed in respect of the whole or part of the assets and/or undertaking of the other Party or the other Party enters into an arrangement or composition with its creditors generally, or if the other Party becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or other circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to make a winding up order in relation to the other Party; or
2.2.2. the other Party fails to make any payment when it becomes due to the first Party and has failed to make full payment within seven (7) days of the date that such payment become due;
2.2.3. the other Party commits a material breach (save for a material breach in relation to payment in relation to which Clause 2.2.2 applies) of the Contract or any other agreement with the first Party or a Group Undertaking of the first Party and (in the case of a remediable breach) fails to remedy the breach within a reasonable time (not less than thirty (30) days) specified by the first Party in such notice so to do; or
2.2.4. either Party becomes subject to a direction under which it is prohibited from providing or restricted in its entitlement to provide the whole or part of an Electronic Communications Network or Electronic Communications Service or is in breach of the Conditions in respect of any such Electronic Communications Network or Electronic Communications Service, in which event the Party exercising its right of termination shall give the other Party the maximum period of notice of termination practicable in the circumstances; or
2.2.5. the other Party has provided the first Party with any false information or made a material misrepresentation for the purpose of obtaining the Services (or any part thereof); or
2.2.6. the other Party is suspected, in the first Party’s reasonable opinion, of involvement with fraud or attempted fraud or any other criminal offence in connection with the use of the Services.
2.3. In the event that the Contract is terminated other than by the Customer pursuant to Clause 2.2.1, 2.2.2, 2.2.3, 2.2.5, 2.2.6 or 3.1.8, or by either Party by reason of the Supplier being affected by an event under Clause 2.2.4, then notwithstanding such termination the Customer shall pay to the Supplier all arrears of charges payable under the Contract up to the date of termination, in addition to any Cancellation Charges payable.
2.4. Upon termination of the Contract for any reason the Customer shall cease to make use of the Services and shall permit the Supplier or any nominated representative of the Supplier to enter the Sites during any Working Day for the purpose of removing any or all of the Services Equipment.
2.5. Termination of the Contract shall be without prejudice to any accrued rights and obligations of the Parties under the Contract as at the date of termination, and shall not affect the continuing rights and obligations of the Parties under Clauses 2.3, 2.4, 2.5, 4.3, 7.2, 9, 10, 13, 14, 15, 17.1.1, 17.1.2 and 17.1.13 or under any other provision of the Contract which is required to give effect to such termination or the consequences of such termination.
3. Obligations of the Parties
3.1.1. The Supplier shall use all reasonable endeavours to ensure that the Services are Ready For Service no later than the Customer Promise Date.
3.1.2. Any Orders shall only be accepted subject to:
- satisfactory Site survey as further described at Clause 3.1.8;
- wayleave permissions being obtained as further described at Clause 14; and
- the Customer’s satisfactory credit status.
3.1.3. Subject to Clauses 3.1.8 and 3.10.3(b), the Supplier and the Customer agree that no Customer Promise Date or Installation Charge shall be changed except:
- by express agreement in writing between the Parties; or
- if a delay is caused by the Customer or is due to any event of Force Majeure, under which circumstances the Customer Promise Date shall be extended by a reasonable period and the Installation Charge may be increased by a reasonable amount.
3.1.4. Save in the circumstances set out in Clause 3.1.3, if the Customer Promise Date is not met in respect of any Site, the Supplier shall use all reasonable endeavours to ensure that the Customer Execute Date is as near as reasonably practicable to such date.
3.1.5. If the Service(s) are not Ready For Use on or before the Deadline, the Customer shall have the right to terminate the relevant Service(s) forthwith by giving written notice to the Supplier no later than ten (10) Working Days after the Deadline. The Customer’s termination rights under this Clause 3.1.5 shall not apply to the extent that any delay is caused by the Customer or is due to any event of Force Majeure.
3.1.6. Prior to the commencement of the Services, the Customer shall submit to the Supplier all payments which may be required in advance in accordance with Clause 5.
3.1.7. Where at the request of the Customer any work to provide the Services is done at any time which is not entirely during a Working Day, the Customer shall pay a charge for such work calculated at the Supplier’s then current standard hourly rate, which shall be advised to and approved by the Customer prior to such works being carried out.
3.1.8. The Supplier or any third party appointed by the Supplier may conduct a survey of any Site and the Supplier may confirm a Customer Promise Date later than the Initial Delivery Date and/or amend the Installation Charge based on the results of such survey. The Customer shall be entitled to see documentary evidence attesting to the reason for such revision. The Customer shall have the right to terminate the Contract by giving written notice of termination within four (4) Working Days of the date on which the Supplier confirmed the Customer Promise Date and/or revised the Installation Charge pursuant to this Clause 3.1.8 only in the event that the Customer Promise Date is later than the Initial Delivery Date and/or the revised Installation Charge is more than the original Installation Charge specified in the Order.
3.2. Standard of Service
The Supplier reserves the right to modify, change, add to or replace the Supplier Network or the Services Equipment or any apparatus comprised therein. Any such modification, change, addition or replacement shall be carried out at the Supplier’s own expense and the Supplier shall use reasonable endeavours to ensure it does not materially detract from, reduce or impair the overall performance or operation of the Services or require any material alteration to the physical interface or protocol used by the Customer in using the Services.
3.3.1. The Supplier shall be responsible for the maintenance of the Supplier Network and the Services Equipment and, unless agreed otherwise, any third party equipment or services procured by the Supplier in connection with the provision of the Services.
3.3.2. Prior to reporting a fault to the Supplier, the Customer shall ensure that it has undertaken a fault analysis to demonstrate that the fault does not relate to the Customer Provided Apparatus.
3.3.3. When a fault is reported the Supplier shall use reasonable endeavours to take such steps and give such advice as may be appropriate to restore normal operation of the Services as soon as is reasonably practicable.
3.3.4. The Supplier shall have the right to charge the Customer for work carried out by the Supplier to locate, rectify or repair faults, at the Supplier’s then current standard hourly rate plus any third party costs incurred by the Supplier as a direct result of the reporting of such fault, if such work results from:
- any cause or reason associated with Customer Provided Apparatus;
- power failure at a Customer Site or User Site;
- any fault or other problem caused by the Customer’s act, fault or negligence, or the Customer’s failure to comply with its obligations hereunder;
- misuse or improper use of Services;
- the Customer reporting a fault in circumstances where the Supplier is unable to locate any fault on a Circuit provided under the Contract (having used reasonable endeavours to do so); or
- the Customer failing to comply with its obligations under Clause 3.5.3.
3.3.5. The Supplier shall give the Customer as much notice of Planned Works as it is reasonably able to give, but in any event not less than eleven (11) Working Days’ notice except in the case of emergency when the Supplier shall give such notice as is reasonably practicable. The Customer shall give all reasonable assistance to the Supplier to enable Planned Works to commence on the planned date and for it to be completed efficiently. The Supplier shall use reasonable endeavours to minimise any inconvenience caused to the Customer by such Planned Works.
3.4. Information and Co-operation Exchange
Each Party undertakes promptly to provide to the other Party, free of charge, all information and co operation that the other Party may reasonably require and which the first Party is able to provide from time to time to enable the other Party to perform uninterrupted its obligations under this Contract.
3.5. Access to the Sites, Security and Customer Provided Apparatus
3.5.1. The Customer shall provide at all times suitable secure accommodation, assistance, facilities, and environmental conditions for the installation and housing of Services Equipment and all necessary electrical power supplies (including back-up) and other installations and fittings at the Site(s) for the commissioning and provision of the Services. The Customer shall ensure that such preparation and provision is effected at the Customer’s sole cost before the Services and Services Equipment are installed at the Sites and are in accordance with any reasonable specifications provided by the Supplier. The Customer shall ensure that any restoration and re decorating is effected at the Customer’s sole cost.
3.5.2. Save as provided in Clause 14.2, the Supplier shall procure at its own expense all permissions, licences, waivers, consents, registrations and approvals necessary, that are within the Supplier’s reasonable knowledge, for the Supplier to deliver, install and provide the Services and Services Equipment to and at the Sites and to enable the Supplier to deal with the Customer’s designated maintainers of Customer Provided Apparatus. In relation to the Customer Provided Apparatus, the Supplier shall not authorise any work or incur any costs on behalf of the Customer without the prior written approval of the Customer.
3.5.3. To enable the Supplier expeditiously and properly to exercise its rights and fulfil its obligations under the Contract, including without limitation delivery, installation, inspection, commissioning, alteration, maintenance, testing and ongoing provision of the Services, the Customer undertakes to permit or procure permission for the Supplier and any other person(s) authorised by the Supplier to have access at any time to the Sites and Services Equipment and shall provide the Supplier with or procure such facilities and co-operation as the Supplier shall reasonably request.
3.5.4. A secure electricity power supply (including back-up) is required at the Sites for installation, provision, operation and maintenance of the Services and Services Equipment or any third party equipment or services procured by the Supplier in connection with the provision of the Services. Unless otherwise agreed in writing such power supply shall be supplied by the Customer at the Customer’s expense and not supplied by the Supplier via the Supplier Network. Back-up power with sufficient capacity to conform to the stand-by requirement of the relevant British Standards is needed if Services are required to continue uninterrupted in the event of a power failure in the principal power supply. The Supplier will not be responsible for faults arising in the Services Equipment or interruption in the provision of Services caused by failures in the power supply, save where such power supply failure is directly caused by the Supplier. The Customer shall only employ suitably qualified electrical engineers to undertake any work in this regard.
3.5.5. The Supplier shall not be responsible for any faults or interruptions in the Services or any inability of the Customer to access the Services where this is caused by a failure or inadequacy in any Customer Provided Apparatus or any incompatibility between any Customer Provided Apparatus and the Supplier Network or between any Customer Provided Apparatus and any third party equipment or services procured by the Supplier in connection with the provision of the Services.
3.6. Behaviour of Employees and Agents
Each of the Parties hereto undertakes with the other to do all things reasonably within its power which are necessary or desirable to give effect to the spirit and intent of the Contract and to ensure as far as reasonably possible that its respective employees, agents and representatives comply with such undertakings.
3.7. Connection of Customer Provided Apparatus
The Customer shall ensure at all times that Customer Provided Apparatus shall to the extent and manner required generally by law or by the Authorisation and Conditions be approved for connection to other telecommunication systems and the Customer shall at all times comply with the conditions of such approval. The Supplier reserves the right to disconnect any Customer Provided Apparatus if the Customer does not fulfil its obligations under this Clause 3.7 or if in the reasonable opinion of the Supplier, the Customer Provided Apparatus is liable:
3.7.1. to cause the death of, or personal injury to, or damage to:
- the property of the Supplier; or
- the property of any third party providing services to the Supplier in connection with the provision of the Services; or
- any person engaged in the operation of the Supplier Network or any third party equipment or services procured by the Supplier in connection with the provision of the Services; or
3.7.2. materially to impair the quality of any telecommunications service provided by means of the Supplier Network or any third party equipment or services procured by the Supplier in connection with the provision of such services.
3.8. Health Hazards
The Customer undertakes to advise the Supplier of any rules or regulations relating to health and safety applicable at the Sites and the Supplier shall observe and procure that the persons so authorised as referred to in Clause 3.5.3 (other than the Customer) observe such rules or regulations while at the Sites.
3.9. Use and Care of Services Equipment
3.9.1. The Customer shall ensure that Services Equipment is properly insured for all usual risks including without limitation fire, destruction, theft, damage and injury or death of any person. The Supplier shall on request provide the Customer with details of the insurance value of the Services Equipment on or before delivery thereof and the Customer shall ensure that such values are incorporated into any such insurance policies. Upon request from the Supplier, the Customer shall produce evidence of such insurance.
3.9.2. The Customer shall be responsible at all times for the safety, safe custody and safe use of the Services Equipment after installation at the Sites and in particular (but without limitation to the generality of the foregoing) the Customer undertakes:
- to house, keep and use the Services Equipment in accordance with such written instructions as may be notified by the Supplier to the Customer from time to time or, in the absence of such instructions, to the same standard as if the Services Equipment were the property of the Customer;
- at all times to keep the Services Equipment at the Sites and free from movement, external vibration or collision;
- not to add to, modify, or in any way interfere with the Services Equipment;
- not to cause the Services Equipment to be repaired, serviced or otherwise attended to except by an authorised representative of the Supplier;
- not to cause any attachments (other than Customer Provided Apparatus which has been pre-approved by the Supplier) to be fitted to the Services Equipment except in accordance with such written authorisation as may be notified by the Supplier to the Customer from time to time;
- not to do anything nor to allow to subsist any circumstances, matter or thing which is likely to damage Services Equipment or detract from or impair its performance or operation;
- not to remove, tamper with or obliterate any words or labels on the Services Equipment or any part thereof.
3.9.3. The Customer acknowledges that the effectiveness of the Services Equipment depends to a great extent upon how the Customer uses it. It is the Customer’s responsibility to ensure that it uses the Services Equipment in accordance with the instructions supplied, whether by the Supplier or its manufacturers. Neither the Supplier nor such manufacturers shall be liable for any breaches of security in the Customer’s network arising from the Customer’s failure to comply with such instructions or its misuse or improper use of the Services Equipment.
3.10. Changes to the Services
3.10.1. The Customer shall be entitled at any time by notice in writing to request a change to the Services. Agreement to such request shall be at the Supplier’s sole discretion. Where the Supplier agrees to change the Services, the Supplier shall reconfigure the Supplier Network as appropriate as soon as reasonably practicable.
3.10.2. The Customer shall pay the Reconfiguration Charges for changes requested under Clause 3.10.1 within thirty (30) days of being invoiced for such charges by the Supplier and such applicable Installation Charges, Rental and other charges for the Services and Services Equipment as shall be relevant following the change, from the Customer Execute Date for the reconfigured Service as notified to the Customer by the Supplier.
3.10.3. In the event that the Customer requests that a Site address or location is to be changed before or after the Customer Execute Date, then:
- the Supplier shall have the right to charge at its then current standard hourly rate (which shall be advised to and approved by the Customer prior to such work being carried out) for any work required to be undertaken; and
- the Supplier shall have the right to amend the Installation Charges and Rental and the Customer Promise Date for provision of the Services to the new Site dependent on the location of the new Site; and
- the measurement period of the Availability of the reconfigured Service shall recommence on the Customer Execute Date for the reconfigured Service, and any Non-Availability prior to such Customer Execute Date shall not be considered when calculating any Service Credits which may be due to the Customer.
4. Misuse of and Limitations on Use of Services
4.1. The Customer undertakes to use the Services and to procure that each User uses the Services in accordance with such reasonable operating instructions as may be notified in writing or verbally (and confirmed in writing) to the Customer by the Supplier from time to time and in accordance with the Authorisation and Conditions applicable to any Electronic Communications Services supplied by and/or Electronic Communications Network operated by the Customer.
4.2. Without limitation to the generality of Clause 4.1, the Customer undertakes not to use the Services and undertakes to prevent each User from using the Services:
4.2.1. for the communication, publication, transmission or receipt of any material which is defamatory, offensive or abusive or of an obscene, nuisance, hoax threatening or menacing character; or
4.2.2. in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to rights of copyright, privacy or confidentiality); or
4.2.3. in a manner that is associated with a criminal offence.
4.3. The Customer shall indemnify the Supplier for all costs, claims, damages or proceedings made or threatened to be made by reason of the Customer’s or a User’s misuse of the Services or Services Equipment.
5.1. In consideration of the Supplier’s obligations hereunder, the Customer shall pay to the Supplier the Installation Charges and Rental and any other charges due under the Contract.
5.2. Rental shall be due and payable in cleared funds quarterly in advance no later than 30 days after the date of the Supplier’s invoice. The first instalment of Rental (for the period between the Customer Execute Date for that Service and the date of commencement of the first Billing Period) shall be calculated as a proportionate part of the Rental on a pro-rata daily basis. The Supplier shall be entitled to issue the invoice for the first instalment of Rental at any time on or after the Customer Execute Date. The Supplier shall be entitled to issue invoices for subsequent instalments of Rental 30 days before the start of the next Billing Period.
5.3. Installation Charges for each Service shall be due and payable in cleared funds no later than 30 days after the date of the Supplier’s invoice. The Supplier shall be entitled to issue such invoice at any time on or after the Customer Execute Date. Installation Charges for any particular Service ordered under the Contract shall not be dependent on the Customer Execute Date for any other such Services, unless the Parties agree otherwise.
5.4. Where any Customer Execute Date is delayed at the Customer’s request or by virtue of the Customer’s act, neglect or failure to fulfil its obligations hereunder, the Installation Charges and Rental for that Service shall be payable no later than the Customer Promise Date for that Service unless otherwise agreed in writing between the Parties.
5.5. The Supplier shall be entitled to increase the Rental and other Charges payable by the Customer after expiry of the Minimum Period from time to time by giving the Customer not less than four (4) weeks’ prior written notice. However, if within two (2) weeks of receiving such notice the Customer notifies the Supplier in accordance with Clause 2.1 that it wishes to terminate the Contract in total or cancel provision of some of the Services, such price increase shall not apply to the Services so terminated during the termination notice period.
5.6. All sums due to the Supplier under the Contract are exclusive of Value Added Tax (“VAT”) and any other applicable taxes which may from time to time be introduced, which shall be charged thereon in accordance with the relevant regulations in force at the time of making the taxable supply and shall be paid by the Customer.
5.7. Without prejudice to the Supplier’s right to treat non-payment or late payment as a repudiatory breach of the Contract, the Supplier reserves the right to charge daily interest on outstanding amounts, until payment in full is received by the Supplier, at a rate equal to four (4) per cent per annum above LIBOR as current from time to time whether before or after judgement. Interest shall continue to accrue notwithstanding termination of the Contract for any cause whatsoever.
5.8. All sums due to the Supplier under the Contract shall be payable by the Customer within thirty (30) days of the date of the Supplier’s invoice in respect thereof, save to the extent that they are the subject of a dispute pursuant to Clause 5.9. Payment shall be made by the Customer in full (without any set-off, deductions or withholding whatsoever) by direct debit or bank transfer. Where payment is by direct debit there will be a fourteen (14) day advice period from the date of the invoice prior to the debit being made.
5.9. Where the Customer acting in good faith disputes that an amount is due or an invoice is valid, the Customer shall pay the undisputed portion in accordance with Clause 5.8 and within ten (10) Working Days of the date of invoice give to the Supplier a written statement of the reasons why the amount is in dispute, including supporting evidence (the “Billing Dispute Notice”). The Parties shall then use all reasonable endeavours to resolve the billing dispute. If the billing dispute is not resolved within ten (10) Working Days of receipt of the Billing Dispute Notice, then the billing dispute will be resolved in accordance with Clause 17.1.2.
6.1. The Supplier shall be responsible for the installation and commissioning of the Services and Services Equipment at the Sites. Following such installation and commissioning the Supplier shall carry out the Acceptance Tests to establish whether such Services are Ready For Use. The Customer shall provide such assistance in carrying out the Acceptance Tests as the Supplier shall reasonably request.
6.2. The Supplier shall confirm to the Customer in writing when the Supplier considers the Acceptance Tests have been successfully concluded.
7. Title and Risk - Leasing of Services Equipment
7.1. Title to the Services Equipment shall not pass to the Customer. On all occasions when the ownership of the Services Equipment is in question, the Customer shall make clear to third parties that the same is the property of the Supplier and shall ensure that all third parties comply with the provisions of Clause 3.9.2.
7.2. The Customer shall be responsible for the Services Equipment whilst it is at the Sites and shall be liable to the Supplier for and shall indemnify the Supplier against any loss or damage to the Services Equipment (except in so far as it can be shown that any such loss or damage is attributable to the negligent act or omission of the Supplier). The Customer shall notify the Supplier immediately of any such loss or damage.
7.3. The Customer shall not permit or suffer any execution or distress to be levied or used against the Services Equipment or permit or suffer the Services Equipment to be seized under or affected by any distress, execution or other legal process.
7.4. The Customer shall not attempt to rent, lease, let, sell, charge, assign or otherwise deal with the Services Equipment in a manner prejudicial to the Supplier’s rights therein.
7.5. The Supplier shall remove the Services Equipment within a reasonable period of time upon termination of the Contract at a date and time to be mutually agreed with the Customer.
8. Warranties and Representations
8.1. The Supplier warrants that the Services shall be provided in a professional manner and with reasonable skill and care.
8.2. The Supplier warrants that the Services shall be provided in compliance with all applicable laws, enactments, orders, regulations and other similar instruments and that the Supplier will obtain all licences and permits required to comply with such laws, enactments, regulations, standards or other similar instruments.
8.3. The Supplier warrants that the provision of the Services will not in any way constitute an infringement or other violation of any intellectual property rights of any third party and that the Supplier has obtained valid licences of all intellectual property rights which are necessary to the performance of the Services.
8.4. Save as expressly set forth in the Contract, all conditions and warranties, express or implied, statutory or otherwise, (including but not limited to any concerning the fitness of the Services or any part thereof for a particular purpose) are hereby excluded.
9. Limitation of Liability
9.1. The following provisions and those in Clause 10 set out each Party’s entire liability (including any liability for the acts and omissions of its employees or agents) to the other Party in respect of:
9.1.1. any breach of its contractual obligations arising under the Contract; and
9.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2. Any act or omission on the part of either Party or its employees or agents falling within Clause 9.1 shall for the purposes of this Clause 9 be known as an “Event of Default”.
9.3. Each Party’s liability to the other Party for any fraudulent misrepresentation or for breach of its payment obligations or for death or personal injury resulting from its own negligence or the negligence of its employees or agents while acting in the course of their employment, or under any indemnities granted under the Contract (save as expressly stated otherwise), or for any breach of any obligations imposed by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982 shall not be limited or excluded.
9.4. Subject to the provisions of Clauses 9.3 and 10, and subject always to the Maximum Aggregate Annual Liability, each Party’s entire liability in respect of any Event of Default or series of connected Events of Default shall be limited to damages not exceeding the greater of:
9.4.1. one hundred thousand pounds (£100,000); and
9.4.2. one hundred and twenty five percent (125%) of the annual Rental payable by the Customer for the affected Service.
9.5. Subject to Clause 9.3, neither Party shall be liable to the other Party in respect of any Event of Default for:
9.5.1. loss of profits;
9.5.2. loss of business;
9.5.3. loss of revenue;
9.5.4. loss of goodwill;
9.5.5. loss, corruption or destruction of data;
9.5.6. loss of or damage to reputation;
9.5.7. loss of anticipated savings and interest;
9.5.8. increased operation costs and/or increased maintenance costs; or
9.5.9. any type of special, indirect or consequential loss (including loss or damage suffered by the other Party as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Party had been advised of the possibility of the other Party incurring the same.
9.6. If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under the Contract.
9.7. A failure by either Party to perform its obligations under the Contract shall not be treated as an Event of Default if and to the extent that such failure was caused by an Event of Default of the other Party.
9.8. Except in the case of an Event of Default arising under Clause 9.3, neither Party shall have any liability to the other Party in respect of any Event of Default unless the other Party shall have served notice of the same upon the liable Party within twelve (12) months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
9.9. The provisions of this Clause 9 shall continue to apply notwithstanding the termination or expiry of the Contract for any reason whatsoever.
10. Service Credits
10.1. The Supplier shall use reasonable endeavours to provide the Services in accordance with the Service Levels. The Customer may be entitled to Service Credits in respect of failure by the Supplier to meet Target Circuit Availability, Customer Promise Date and Target Repair Times, calculated in the manner set out in the Service Level section of the Service Schedule. Subject to the right to terminate the relevant Service(s) as set out in Clause 3.1.5, such Service Credits shall be the Customer’s sole and exclusive remedy with respect to such failure to meet the Service Levels and shall be in lieu of any other remedy which the Customer may have at law.
10.2. Subject to Clauses 9.3 and 10.1, the Supplier shall have no other liability in contract, tort or otherwise howsoever arising, including negligence in respect of any loss or damage the Customer may suffer as a result of the Supplier failing to provide the Services in accordance with the Service Levels.
10.3. The Customer must claim Service Credits in writing within six (6) months of the end of the Billing Period in which the right to the Service Credit arose. Failure to submit a claim in accordance with this Clause 10.3 shall result in the Customer’s right to claim such Service Credit being forfeited.
10.4. All valid claims will be settled by the issue of a credit note which may be used to offset future invoices. Credit notes will be issued at the end of the Billing Period in which the Parties agreed that a Service Credit is due. Upon expiry or termination of the Contract, the Customer may request an outstanding credit note to be settled by the issue of a cheque to reduce the account to zero.
11. Suspension of Services
11.1. The Supplier may at its sole discretion suspend forthwith provision of Services either in whole or in part until further notice on notifying the Customer either verbally (confirming such notification in writing) or in writing in the event that:
11.1.1. the Supplier shall be entitled to terminate this Contract other than by reason of an event under Clause 2.2.4; or
11.1.2. the Customer or a User is misusing Services pursuant to Clause 4; or
11.1.3. the Supplier or any third party providing equipment or services to the Supplier in connection with the provision of the Services shall be obliged to comply with an order, instruction or request of Government, regulatory authority, emergency services organisation, or other competent authority such that suspension is required; or
11.1.4. the Customer engages in activities that, in the Supplier’s sole and reasonable discretion, may cause disruption or damage to the Supplier Network; or
11.1.5. the Supplier or any third party providing equipment or services to the Supplier in connection with the provision of the Services shall need to carry out work relating to emergency upgrading or maintenance of the Supplier Network and/or the Electronic Communications Network of the abovementioned third party and the Supplier agrees the times of such work with the Customer beforehand in writing.
11.2. Any exercise or non-exercise by the Supplier of its right of suspension in respect of an event referred to in this Clause 11 shall be without prejudice to the Supplier’s right to terminate this Contract subsequently in respect of the same or any other event.
11.3. The Customer shall reimburse the Supplier all costs and expenses incurred by the implementation of such suspension and/or the recommencement of the provision of Services as appropriate arising out of an event referred to in Clause 11.1.1 or 11.1.2.
11.4. If the Supplier exercises its rights under Clause 11.1.3 or 11.1.5 to suspend the Services or part thereof, the Customer’s obligations to pay Rental in respect of such suspended Services shall be suspended for the duration of the suspension of the Services.
12. Intellectual Property Rights
12.1. Except as expressly provided otherwise in the Contract, intellectual property rights shall remain the property of the Party creating or owning the same and nothing in the Contract shall be deemed to confer any assignment or licence of the intellectual property rights of one Party and to the other Party.
13.1. Neither Party shall use, copy, adapt, alter, disclose or part with possession of any information or data of the other which is disclosed or otherwise comes into its possession directly or indirectly as a result of the Contract and which is of a confidential nature (“Confidential Information”) except as strictly necessary to perform its obligations or exercise its rights hereunder provided that this obligation shall not apply to Confidential Information which:
13.1.1. the receiving Party can prove was already in its possession at the date it was received or obtained; or
13.1.2. the receiving Party obtains from some other person without any breach of confidentiality; or
13.1.3. comes into the public domain otherwise than through the default or negligence of the receiving Party or which is independently developed by or for the receiving Party without use of the other Party’s Confidential Information; or
13.1.4. the receiving Party is under a mandatory obligation to disclose to a government body, court, agency or regulatory body.
13.2. Each Party shall ensure that its employees, agents and sub-contractors are bound by an undertaking in substantially the same terms as contained in this Clause 13.
13.3. The obligations in this Clause 13 shall continue in force notwithstanding termination of the Contract for any reason whatsoever.
13.4. The details of the Contract shall be deemed Confidential Information.
14. Wayleave to Use Land or Accommodation
14.1. In order for the Supplier to perform its obligations under the Contract, upon the Supplier giving to the Customer reasonable notice and subject always to the Customer’s right to supervise any access, the Customer grants to the Supplier (including its employees and authorised representatives) the right from time to time:
14.1.1. to enter those parts of the premises or land of the Customer as necessary to the extent that they are used for the purposes of the provision of the Services;
14.1.2. to perform installation and maintenance work at or on the said premises or land from time to time in accordance with the agreed access provisions and the Customer’s prior agreement to a method statement detailing the nature of the works;
14.1.3. to bring upon, install and keep installed at the said premises or land such equipment as is reasonably necessary for the provision of the Services and the maintaining of the Services Equipment.
14.2. In order for the Supplier to perform its obligations under the Contract, upon the Supplier giving to the Customer reasonable notice and subject always to the Customer’s right to supervise any access, the Customer shall at its own expense procure for the Supplier (including its employees and authorised representatives) the right from time to time:
14.2.1. to enter those parts of the premises or land of any of the Customer’s landlords or any User as necessary to the extent that they are used for the purposes of the provision of the Services;
14.2.2. to perform installation and maintenance work at or on the said premises or land from time to time in accordance with the agreed access provisions and the Customer’s prior agreement to a method statement detailing the nature of the works;
14.2.3. to bring upon, install and keep installed at the said premises or land such equipment as is reasonably necessary for the provision of the Services and the maintaining of the Services Equipment.
14.3. Each Party shall at all times comply and procure that its employees and authorised representatives comply with all reasonable instructions of the other Party or any third party pursuant to any consents and wayleaves obtained in accordance with this Clause 14.
14.4. The provisions of this Clause 14 shall apply for the duration of the Contract and for other periods thereafter as may be required by the Supplier to exercise its rights to disconnect and remove from the premises any Services Equipment.
15. Protection of Personal Data
15.1. Each Party warrants that it has complied with its notification obligations under the Data Protection Act 1998 for such obtaining, storage and use of personal data as may be required in the performance of the Contract.
15.2. Each Party shall comply with the provisions of the Data Protection Act 1998 and any directions issued by the Information Commissioner in its use of, or provision of, the Services.
16. Force Majeure
16.1. Neither Party shall be liable to the other for any loss or damage which may be suffered by the other Party, or for any failure to perform its obligations under the Contract, to the extent that such failure is due to any event of Force Majeure.
16.2. A Party affected by a Force Majeure Event shall:
16.2.1. promptly notify the other of the occurrence of a Force Majeure Event including the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure Event;
16.2.2. use its reasonable endeavours to remedy, or mitigate the effect of the Force Majeure Event;
16.2.3. continue to perform its obligations under this Contract to the extent possible during the period of the Force Majeure Event (but the Customer shall not be required to pay Charges for Services to the extent it does not receive such Services because of the Force Majeure Event).
16.3. If an event of Force Majeure prevents a Party performing its obligations under the Contract for a period of more than sixty (60) days, either Party may terminate forthwith such part of the Contract as is affected by the event of Force Majeure by serving written notice on the other Party.
17.1. The following Clauses from the Framework Agreement shall be deemed to be incorporated into the Contract as if set out here verbatim, save that all references to the Framework Agreement shall be deemed to be references to the Contract:
17.1.1. Clause 1 (Interpretation)
17.1.2. Clause 6 (Disputes)
17.1.3. Clause 7 (Assignment Transfer and Sub-Letting)
17.1.4. Clause 8 (Communications)
17.1.5. Clause 10 (Third Party Rights)
17.1.6. Clause 11 (Entire Agreement)
17.1.7. Clause 13 (Counterparts)
17.1.8. Clause 14 (Waiver)
17.1.9. Clause 15 (Invalidity)
17.1.10. Clause 16 (Further Assurance)
17.1.11. Clause 17 (Costs)
17.1.12. Clause 18 (Variation)
17.1.13. Clause 19 (Governing Law).
For the purposes of this Framework Agreement and any Contracts formed pursuant to it, unless the context otherwise requires, the following terms shall have the following meanings:
“Acceptance Tests” means the ITU-T industry standard tests to be carried out by the Supplier as modified or amended from time to time;
“Act” means the Communications Act 2003, as amended from time to time;
“Associated Facilities” means a facility falling within Clause 32(3) of the Act;
“Authorisation” means entitlement to provide an Electronic Communications Network or Electronic Communications Services, or to make Associated Facilities available, under the Act;
“Available” means that Services are available for use in accordance with the manner defined in the Service Schedule and “Availability” and “Non Availability” shall be construed accordingly;
“Billing Period” means three (3) month periods of time commencing on 1 January, 1 April, 1 July or 1 October as the case may be and as may be varied from time to time by the Supplier for the billing of Rental and other charges hereunder to the Customer;
“Cancellation Charges” means the charge(s) which shall be payable by the Customer to the Supplier on termination of a Contract or part thereof as set out in the Service Schedule;
“Charges” means any amounts due to the Supplier under the Contract;
“Circuit” means a circuit provided as part of the relevant Service as the context requires;
“Communications Providers ADR Service” means the alternative dispute resolution service established by the Chartered Institute of Arbitrators in association with the United Kingdom Competitive Telecommunications Association (UKCTA) as amended from time to time;
“Conditions” means such applicable conditions as have been set under Clause 45 of the Act;
“Contract” means each individual contract for the provision of Services formed under the Framework Agreement;
“Customer Execute Date” means the date on which the Supplier first notifies the Customer that the Services or part thereof are Ready For Use or, if earlier, the date on which the Customer first makes use of the Services or part thereof;
“Customer Promise Date” means the contractually binding date for commencement of Services to a Site as confirmed to the Customer by the Supplier in accordance with the terms of the Contract;
“Customer Provided Apparatus” means any apparatus at the Sites (not being Services Equipment) provided and used by the Customer and/or a User in order to use the Services, including without limitation the Purchased Equipment (if any);
“Deadline” means the date at the end of the period beyond the Customer Promise Date specified in the Service Schedule upon which the Customer’s right to terminate the Contract pursuant to Clause 3.1.5 of Annex 1 arises;
“Downgraded Services” means a Service that has been downgraded to a slower circuit speed than that originally ordered;
“Electronic Communications Network” means a network falling within Clause 32(1) of the Act;
“Electronic Communications Service” means a service falling within Clause 32(2) of the Act;
“Fault” means a Service affecting fault;
“Force Majeure” means any cause beyond a Party’s reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of government, highways authorities, Public Communications Providers or other competent authority, war, military operations, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of any Services Equipment and/or Purchased Equipment (if any) or any part thereof (to the extent only that such difficulty, delay or failure was caused by an event of Force Majeure affecting that third party), or failure to obtain wayleaves or any other necessary consents or permissions having used reasonable endeavours to do so;
“Framework Agreement” means this framework master services agreement between the Supplier and the Customer;
“Group Undertaking” has the meaning given to such phrase in sections 1161 and 1162 of the Companies Act 2006;
“Initial Delivery Date” means the target date agreed between the Supplier and the Customer for commencement of Services to a Site as set out in the Order;
“Installation Charges” means the charges payable for installation of Services Equipment and/or Purchased Equipment (if any) and for the commissioning and configuration of Services, as specified in the Order or as subsequently varied in accordance with the terms of the Contract;
“LIBOR” means the British Bankers’ Association London Interbank Offered Rate fixed for pounds sterling (GBP);
“Maximum Aggregate Annual Liability” means the maximum aggregate liability of each Party in any twelve (12) month period, which shall be the greater of two hundred thousand pounds (£200,000) or two hundred and fifty percent (250%) of the annual Rental payable by the Customer for the affected Service;
“Minimum Period” means the period specified in the Order (or twelve (12) months if nothing is specified in the Order) for provision of specified Services to a Site, commencing on the Customer Execute Date;
“Operations and Maintenance Manual” means the non-binding document containing details of the service levels, fault management, planned works and escalation procedures, updated from time to time by the Supplier and including the most current contact details for the Supplier and the Customer;
“Order” means a request by the Customer for Services in the format most recently notified by the Supplier, which request may be accepted by the Supplier in accordance with Clause 3 of the Framework Agreement;
“Planned Works” means work required to be carried out in respect of the Supplier Network or the Services Equipment which will prevent a Service or Services from being Available, notified in advance to the Customer by the Supplier in accordance with Clause 3.3.5 of Annex 1;
“Pricing Information” means a geographical list of UK priced postcodes provided by the Supplier to the Customer and updated by the Supplier from time to time, including without limitation any online pricing tool made available by the Supplier from time to time;
“Public Communications Provider” means a public communications provider as set out in Clause 151 of the Act;
“Purchased Equipment” means the equipment identified as such in the Order and which is purchased by the Customer from the Supplier pursuant to the Contract;
“Ready For Use” means that the Services are ready for use in accordance with the Contract;
“Reconfiguration Charges” means the reconfiguration charge(s) payable by the Customer to the Supplier following any partial reduction of or other change to Services, as advised by the Supplier and approved by the Customer before the implementation of any change in the Services;
“Remedy” means the system upon which the Supplier logs faults;
“Rental” means the rental payable by the Customer to the Supplier for the provision of Services and the Services Equipment as specified in the Order or as increased or decreased by the Supplier in accordance with the terms of the Contract;
“Representative” means the individual authorised by the Supplier or the Customer as the case may be to handle disputes under Clause 6 of the Framework Agreement, as notified by one Party to the other from time to time;
“Service Credits” means reductions in certain charges or compensation payments in respect of the Supplier failing to meet specified Service Levels, calculated in the manner set out in the Service Schedule;
“Service Levels” means the Target Circuit Availability levels, Target Repair Times and Customer Promise Date to be provided by the Supplier to the Customer as set out in the Service Schedule;
“Service Schedule” means the service definition and the service-specific terms and conditions which apply to the relevant Service, as set out in the relevant section of Annex 3;
“Services” means the provision of Circuits and/or services as specified in the Order and the Service Schedule;
“Services Equipment” means any apparatus, equipment and cabling provided by the Supplier at a Site as an essential part of providing Services under the terms of the Contract (excluding any Purchased Equipment);
“Site” means the premises or other locations from and to which Services are to be provided to the Customer or a User as specified in the Order;
“Supplier Network” means the Electronic Communications Network (including Services Equipment) operated by the Supplier or any Group Undertaking (as principal or agent) from time to time under the Act;
“Target Circuit Availability” means the Availability target for the relevant Circuit, as specified in the Service Schedule;
“Target Repair Times” means the target time within which the Supplier shall aim to repair a Fault, as specified in the Service Schedule;
“Upgraded Services” means a Service that has been upgraded to a higher circuit speed than that originally ordered;
“User” means any person authorised by the Customer to use the Services;
“Working Day” means Monday to Friday 9am to 6pm excluding bank and public holidays.