Terms & Conditions
Contents
1. 8 1 6 if SCL receives a serious complaint against the Customer which SCL believes to be genuine 8 1 7 if SCL reasonably believes that the Customer has used the Services for illegal or improper purposes in contravention of SCL s acceptable use policy or requirements 8 1 8 if SCL reasonably suspects or believes that the Customer is in breach of Clause 6 8 1 9 if the Customer fails to comply with its obligations under the Agreement including the obligation to pay the Charges or 8 1 10 if the Customers credit rating decreases at any time and the Customer fails to supply reasonable security in response to a request from SCL SCL shall have the right without notice to suspend or deny access to the Network 8 2 1 by any equipment which will or may adversely affect the operation of the Network or provision of the Services whether or not such equipment has been approved or tested by SCL or 8 2 2 if SCL suspects fraudulent criminal or illegal activities are being carried out or are likely to be carried out via that equipment 8 2 3 whenever it in its absolute discretion it considers necessary or desirable in order to monitor or reduce the incidence of fraud SCL will use its reasonable endeavours to notify the Customer promptly of the details of any incident where SCL has relied on its rights under Clause 8 2 3 The Customer will be responsible for all Charges incurred in respect of the Services even if such Charges were inc2. Agreement given by this Clause 9 shall be without prejudice to any other right or remedy of either Party in respect of the breach concerned if any or any other breach LIMITATIONS AND EXCLUSIONS OF LIABILITY This Clause 10 sets out SCL s entire liability including any liability for acts or omissions of SCL s employees agents or subcontractors in respect of any breach of the Agreement and any representation statement or tortuous act or omission arising out of or in connection with the Agreement Except as set out in these Terms SCL provides no warranties conditions or guarantees as to the description or quality of the Services and all warranties conditions or guarantees 10 3 10 4 10 5 10 6 11 implied by or expressly incorporated as a result of custom and practice statute common law or otherwise are hereby expressly excluded so far as permitted by law Subject to Clause 10 5 SCL s aggregate liability in contract tort including negligence or breach of statutory duty misrepresentation restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall not exceed 1 000 000 one million pounds sterling Subject to Clause 10 5 SCL shall not be liable to the Customer whether in tort including for negligence or breach of statutory duty contract misrepresentation or otherwise the Agreement for 10 4 1 loss of profits or 10 4 2 loss of revenue
3. SCL SCL and the Customer shall each comply with there respective obligations under the DPA and maintain all relevant registrations and notifications 12 12 1 12 2 12 3 13 13 1 13 2 14 14 1 14 2 The Customer agrees that SCL may provide its Personal Data to SCL s Network Operator to enable it to process the Customer s information and users personal data which SCL collects or which the Customer submits to SCL during any sales or registration process for a number of purposes including to open and manage an account for Services to deliver products and services ordered by the Customer for security and emergency service support for credit checking and fraud prevention and for product analysis The Customer further agrees that SCL may contact BT or previous communications service providers of the Customer to obtain information required to perform the Services IPR AND OWNERSHIP All IPR relating to the subject matter of the Agreement shall vest in SCL or its licensors as appropriate and ownership of SCL s Equipment and the System including any works performed by SCL to connect the Site to the System shall remain with SCL or its licensors as appropriate The Customer 12 1 1 acknowledges that it shall have no licence right title or interest in or to any IPR of SCL or its licensors or SCL s Equipment or the System 12 1 2 may not include SCL s name or any other trade mark brand name logo o
4. adversely affected by failure of a server or other external causes and may fail or require maintenance without notice The Customer further acknowledges that SCL will have no liability for failure of the Services unless and to the extent caused by SCL s negligence or fraudulent misrepresentation ROUTER The Customer acknowledges that SCL is not responsible for any broadband router that has not been provided by SCL or the configuration of that device and that any fault diagnosis on the broadband circuit will only be carried out with the test router supplied by SCL for that purpose The Customer also acknowledges that it is the Customer s responsibility to provide full assistance during that testing and that failure to provide such assistance that results in an inability for SCL to correctly troubleshoot the fault will be the sole responsibility of the Customer and SCL will not be liable for any claim resulting due to loss of or a poor speed Services SCL S GENERAL OBLIGATIONS SCL shall supply the Services to the Customer from the Commencement Date for the term of the Agreement in accordance with these Terms SCL shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services and SCL shall notify the Customer in any such event The provision of the Services is subject to all relevant licences infr
5. change notified by SCL is Southern Communications Ltd Glebe Farm Down Street Dummer Hants RG25 2AD The address for service on the Customer is as set out in the most recent invoice Notices may be delivered by hand sent by first class mail fax or e mail Correctly addressed notices if delivered by hand shall be deemed to have been delivered at the time of delivery if sent by first class mail shall be deemed to have been delivered 72 hours after posting correctly directed faxes shall be deemed to have been received instantaneously on transmission and in proving the service of any notice by e mail it will be sufficient to prove that such e mail was sent to the specified e mail address of the addressee 15 15 1 15 2 15 3 16 16 1 16 2 16 3 16 4 16 5 16 6 16 7 ENTIRE AGREEMENT It is acknowledged and agreed that the Agreement including the documents and instruments referred to herein the Documents shall supersede all prior representations arrangements understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Do
6. of the proprietor of such software at the time of supply or provision provided such terms and such conditions are not inconsistent with the Customer s rights under this Agreement The Customer undertakes to 4 17 1 use such software strictly in accordance with such terms and conditions which have been provided to it by SCL 4 18 4 19 4 20 4 21 5 1 5 2 5 3 5 4 5 5 4 17 2 enter into any licence or agreement reasonably required by the owner of any intellectual property rights in any software supplied to the Customer for the purpose of accessing the Services The Customer acknowledges that as part of the Customer s Order to receive and enjoy the full benefit of the Services some minor modifications may need to be made to the Customer s computer It is the Customer s responsibility to ensure that such modifications do not invalidate the terms of any warranty that the Customer may have concerning the Customer s computer SCL will not be liable for any claim that the Customer s warranty has been invalidated if applicable as a result of work carried out by the Customer SCL or SCL s agents in order to make the Customer s computer operate with the Services It is the Customer s responsibility to ensure the compatibility of the Services with the Customer s personal computer any hardware software or any other equipment or services The Customer recognises that the Services may from time to time be
7. terminate the Agreement provided 4 10 1 itis no earlier than the date the Customer actually moves 4 10 2 the Customer gives SCL ten 10 days notice in writing and 4 10 3 the Customer sends to SCL proof of the Customer s change of address Any Charges due in respect of the Customer s existing account to the date of cancellation will remain payable Where SCL connect the Customer at the Customer s new address SCL will use reasonable endeavours to ensure that the Customer s connection is at the same Transmission Speed as that at the Customer s old address prior to the Customer s move However if it is not possible SCL will connect the Customer at the Transmission Speed SCL determines is available and possible As part of the Services the Customer may set up the Customer s Website s Domain Names are subject to availability and SCL cannot guarantee the availability of any specific domain name The Customer shall ensure that the Customer saves the Customer s e mails in the event that the Customer s e mail storage is approaching its limit Only one free Domain Name may be allocated to the Customer during the term of the Agreement at no additional cost any additional Domain Names will be charged at SCL s then current rate Where SCL provides the Customer with one or more e mail addresses and storage as part of providing the Services the Customer acknowledge that such e mail addresses are not the Customer s property a
8. 1 1 SOUTHERN COMMUNICATIONS LIMITED TERMS AND CONDITIONS FOR DATA SERVICES DEFINITIONS AND INTERPRETATION In these terms and conditions Terms the following words shall have the following meanings Agreement BT Charges Commencement Date Confidential Information Connection Customer you Customer s Website Domain Name DPA Early Termination Fee the agreement between you and SCL for the supply of the Services in accordance with the Order and these Terms British Telecommunications plc and its associated companies the charges as notified to the Customer from time to time and payable by the Customer to SCL for the Services the date of the Agreement any and all information whether disclosed in written or oral or machine readable form or otherwise including without limitation information relating to SCL s services equipment operations know how trade secrets and information of commercial value a single connection of the Customer to the Services the individual company entity organisation or business that purchases the Services from SCL any website provided and which the Customer uses in connection with the Website Services such domain name as SCL may allocate to the Customer such allocation being subject to separate terms and conditions details of which can be obtained upon written request or by contacting SCL the Data Protection Act 1998 means i all Charges that are accr
9. 10 4 3 loss of income or business 10 4 4 depletion or loss of goodwill reputation or similar losses 10 4 5 loss of anticipated savings 10 4 6 loss of use 10 4 7 loss of contract 10 4 8 any indirect or consequential or special loss or damage or pure economic loss costs damages charges or expenses whatsoever and howsoever caused Nothing in these Terms shall exclude or limit the liability of SCL for 10 5 1 death or personal injury resulting from the Company s negligence or 10 5 2 for fraud or fraudulent misrepresentation or 10 5 3 for any matter which it would be illegal for SCL to exclude or attempt to exclude its liability The provisions of this Clause 10 shall survive termination or expiry of the Agreement CONFIDENTIALITY AND DATA PROTECTION The Customer agrees to keep all Confidential Information confidential to disclose it only to its employees that need to know it and to use it exclusively for the purposes contemplated by the Agreement This Clause shall not apply to information that the Customer can prove 11 1 1 is in the public domain otherwise than by the Customer s breach 11 1 2 it already had in its possession prior to obtaining the information directly or indirectly from SCL or 11 1 3 a third party subsequently disclosed to the Customer free of restrictions on disclosure and use This Clause shall survive for three 3 years from when the Customer acquired that Confidential Information from
10. Network and also comply with all relevant legislation relating to their use The Customer will not use the Services to access any computer network or data without authorisation or in a manner which exceeds authorisation including any attempt to 6 9 1 retrieve alter or destroy data 6 9 2 probe scan or test the vulnerability of a system or network or 6 9 3 breach or defeat system or network security authentication authorisation confidentiality intrusion detection monitoring or other security measures The Customer shall co operate with and comply with at all times 6 10 1 any operating procedures and any other technical requirements of SCL as may be notified to the Customer from time to time 6 10 2 SCL s reasonable instructions to ensure the proper use and security of the Services The Customer will provide SCL with all up to date and accurate information that SCL needs to provide the Services and allow SCL to use that information for credit checking and debt collection including disclosure to and Data use by third parties acting for SCL and any other uses and disclosures permitted under the DPA and will allow SCL to disclose such information to the extent that SCL is required to do so by PhonepayPlus OFCOM the law or any relevant authority The Customer shall 6 12 1 keep all of SCL s Equipment at the Site safe and shall pay for the replacement and or repair of any of SCL s Equipment which is lost damaged
11. an invoice to the Customer If SCL increases the Charges by more than the Retail Price Index during the Minimum Term the Customer may terminate the Agreement on written notice to SCL within ten 10 days of receipt of the notice of increase without the obligation to pay the Early Termination Fee SCL may also change the level of its Charges during or after the Minimum Term as a consequence of 7 13 1 any OFCOM direction determination order or similar decision or 7 13 2 any notice issued by BT or other Network Operator correcting an error in the amount or application of a charge or payment under it s interconnect agreement with SCL In both cases SCL shall only be entitled to change the level of its Charges where the foregoing impacts upon the basis upon which the Charges were calculated If the Customer disputes any invoice including the calculation of any amounts payable they must notify SCL within 3 months of the date of the invoice The Customer shall not be entitled to any credit or refund relating to disputes raised after expiry of this period The Customer shall pay any charges raised to cover time spent dealing with matters such as repairing faults where this work is not covered under any of the terms of the Agreement Such Charges could involve the provision or rearrangement of equipment wiring network or services If SCL becomes liable to pay any additional fees costs or charges to the Government a regulatory authori
12. astructure or interconnect arrangements and consents being in place The Customer shall obtain any consent or facility that is necessary or desirable for SCL to provide the Services at the Site SCL may 5 4 1 change or withdraw some or part of the Services from time to time This may be because of changing technologies obsolescence new or different product features changing content providers or the need to remove replace or modify content and 5 4 2 determine how the Services are presented and delivered or are otherwise made available to the Customer SCL can change the way they are presented delivered or otherwise made available to the Customer at any time Pursuant to Clause 5 4 where a change to or withdrawal of a Service option arises 5 5 1 solely due to SCL s business requirements SCL will give at least three months written notice to the Customer or 5 6 5 7 5 8 5 9 5 5 2 as a result of changing arrangements with a third party or for legal or regulatory reasons SCL will give as much notice to the Customer as is reasonably practicable in the circumstances Upon expiry of any such notice period set out in Clause 5 5 5 6 1 SCL will not accept any new Orders for the relevant service option and 5 6 2 At SCL s discretion 5 6 2 1 any Orders that have been accepted by SCL but where a Connection is not available for use will either be 5 6 2 1 1 ceased by SCL or 5 6 2 1 2 allowed to progress t
13. authorised use of the Customer s username and password and agrees to take all necessary steps or such steps as may be requested by SCL to prevent such use and 4 7 2 indemnify SCL for any loss costs expenses or damages that SCL may suffer as a result of a breach of this Clause 4 7 To ensure that the Services remain secure the Customer must not change or attempt to change a username without SCL s written permission If the Customer moves and wishes to access the Services at their new site then 4 9 1 the Customer will be required to set up a new account for such new site by contacting SCL in writing 4 9 2 the Customer shall provide SCL with proof of its new address If the Customer does not its existing account will not be terminated and the Customer will be liable for any Charges that remain due on that account 4 9 3 the Customer will pay the administration fee for setting up a new account when the Customer moves 4 9 4 if any SCL Equipment is lost or damaged when the Customer moves address the Customer will indemnify SCL in respect of all costs expenses and liabilities that 4 10 4 12 4 13 4 14 4 15 4 16 SCL incurs as a result of any loss of or damage to the Equipment unless directly caused by SCL When the Customer has moved address and notified SCL in accordance with Clause 4 9 a telephone line test will need to be carried out If it is not possible to connect the Customer the Customer may
14. cuments unless such misrepresentation or representation was made fraudulently It is further acknowledged and agreed that no representations arrangements understandings or agreements whether written or oral made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents GENERAL Assignment and other dealings 16 1 1 SCL may at any time assign transfer mortgage charge subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any Authorised Party third party or agent 16 1 2 The Customer shall not without the prior written consent of SCL assign transfer mortgage charge subcontract declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement Severance Each of the clauses of these Terms operates separately If any court or relevant authority decides that any of them are unlawful the remaining clauses will remain in full force and effect Waiver Any failure by SCL to exercise or enforce its right under the Agreement shall not be a waiver of that right nor prevent SCL from exercising or enforcing such right at a later time No partnership or agency Nothing in the Agreement is intended to or shall be deemed to establish any partnership or joint venture between the partie
15. de or given by or on behalf of SCL which is not set out in the Agreement These Terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by trade custom practice or course of dealing MINIMUM TERM SUBSEQUENT TERM RENEWED TERM AND EARLY TERMINATION FEE The Agreement shall commence on the Commencement Date and will continue for the Minimum Term and any Renewed Term or Subsequent Term The Customer acknowledges that it has limited rights to terminate the Agreement during the Minimum Term Renewed Term or Subsequent Term as the case may be These rights are set out in Clause 9 1 If upon the expiry of the Minimum Term Renewed Term or Subsequent Term as the case may be the Customer has not 3 3 1 agreed a Renewed Term or 3 3 2 given notice to SCL in accordance with Clause 9 1 SCL will continue to supply the Services to the Customer for the Subsequent Term unless the Customer terminates the Agreement as set out in Clause 9 1 If a Renewed Term has been agreed SCL will continue to supply the Services to the Customer for the Renewed Term unless the Customer terminates the Agreement as set out in Clause 9 1 If the Customer terminates the Agreement before the expiry of the Minimum Term Renewed Term or Subsequent Term the Customer shall pay the Early Termination Fee THE SERVICES In order for SCL to enable the Customer to use the Services the Custome
16. e fit in the circumstances This includes but is not limited to any circumstances where the Customer is running an application or program that places excessive bandwidth demands on the Services for continued periods SCL may also impose a limit on the Customer s usage capacity at any time at our sole discretion if the Customer s usage is affecting or may affect other users enjoyment of the Services During the term of the Agreement the Customer may request a change to the Customer s Service Plan at any time provided that it is only once in every thirty 30 days Changes to the Customer s Service Plan are subject to availability and payment of any applicable Charges SCL will use reasonable endeavours to complete the change as soon as possible but cannot guarantee how quickly this will be done and time shall not be of the essence The Customer will be responsible for all Charges on the existing Service Plan until the change is completed SCL may publish an acceptable use policy which provides more detail about the rules for use of certain Services in order to ensure that use of the Services is not excessive or to combat fraud and where Services SCL may introduce require certain rules to ensure they can be 6 8 6 9 6 11 enjoyed by the Customer If SCL publishes a policy SCL will let the Customer know such a policy may be amended from time to time The Customer must only use Equipment authorised by SCL for connection to the
17. er 6 17 3 any breach by the Customer of the use provisions set out in this Agreement CHARGES AND PAYMENT The Customer shall pay the Charges SCL will send to the Customer within thirty 30 days of the Start Date an invoice which will include a pro rated charge for the remainder of the Minimum Term in which the Customer s account is activated and the charge for the any Renewed Term or Subsequent Term and if applicable any costs for Equipment the Customer has purchased Thereafter SCL will prepare and send to the Customer each month quarter or year as the case may be an invoice detailing the charge for the following month quarter or year The Rental shall continue to be payable during any period of suspension or restriction requested by the Customer in addition to any Charges for such suspension or restriction Where any Customer exceeds their allocated monthly limit then Overage Charges will apply to each applicable Connection If the Customer disputes any invoice including the calculation of any amounts payable they must notify SCL within 6 months of the date of the invoice The Customer shall not be entitled to any credit or refund relating to disputes raised after expiry of this period The Customer shall pay the full amount invoiced by SCL by direct debit within fourteen 14 days of the date of invoice If the Customer s credit rating decreases at any time SCL shall be entitled to revise the credit terms to require payment up
18. er for an amount equal to the applicable service credit In order to receive an available service credit the Customer must give notice to SCL within 15 days of the end of the calendar month for which the service credit is claimed If the Customer fails to claim the service credit to which it is entitled the Customer shall be deemed to have waived its right to claim the service credit Service credits will not be available to the Customer to the extent that SCL fails to meet any service levels as a result of 5 21 1 an act fault or omission by the Customer or any of its representatives employees agents or sub contractors 5 21 2 any equipment not supplied by SCL or a Network Operator 5 21 3 any circumstances beyond SCL s control 5 21 4 any failure by the Customer to act on SCL s reasonable instructions 5 21 5 any suspension of the Services under Clause 8 or 5 21 6 any other event specified in the applicable service level agreement The duration of any Service fault for the purposes of calculating service credits will be measured from the time the fault report is logged by the SCL Customer Services Department to the time SCL can demonstrate that the Service has been restored to the standards set out in the applicable service level agreement Where the Customer suffers a fault or interruption in respect of any Service SCL acknowledges that in relation to such Service the Customer is entitled to arrange for traffic to be
19. et over Fibre to the Support Mon Fri 8am to 69m cabinet EoFTTC No Fibre to the cabinet FTTC No Service Level available Yes Broadband ADSL MPF SMPF No Service Level available Yes 21
20. etwork and the Customer s chosen Equipment Working Day 09 00 to 17 00 Monday to Friday but excluding public holidays in the United Kingdom recognised by SCL Construction In these Terms the following rules apply 1 2 1 a person includes a natural person corporate or unincorporated body whether or not having separate legal personality 1 2 2 a reference to writing or written includes faxes and e mails 1 2 3 a reference in these Terms to any provision of a statute shall be construed as a reference to that provision as amended re enacted or extended at the relevant time 1 2 4 headings in the Agreement shall not affect interpretation ORDERS The Order constitutes an offer by the Customer to purchase the Services in accordance with these Terms No order placed by the Customer shall be accepted by SCL until the Order is accepted by SCL in writing or if earlier SCL provides the Services to the Customer Subject to Clause 7 8 once an Order has been accepted by SCL the Customer may not cancel an Order 2 4 2 5 2 6 3 1 3 2 3 3 3 4 3 5 4 1 4 2 SCL shall be under no obligation to provide the Services until acceptance of the relevant Order by SCL SCL may accept or reject an Order at its sole discretion The Agreement constitutes the entire agreement between the parties The Customer acknowledges that it has not relied on any statement promise representation assurance or warranty ma
21. forming part of the System used by SCL to connect the Site to a telephone exchange to provide the Services patents rights to inventions copyright and related rights trade marks business names and domain names rights in get up goodwill and the right to sue for passing off rights in designs database rights rights to use and protect the confidentiality of confidential information including know how and all other intellectual property rights in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world means twelve 12 months or such other minimum period as is set out in the Order from the date the Order is deemed completed by SCL and made available to the Client the fixed line telecommunications network operated by a Network Operator a network operator who operates a Network to which a line is connected in accordance with an agreement between the Network Operator and SCL the Office of Communications or other replacement authority the Customer s order for the Services the website located at www southern comms co uk as may be amended from time to time means the charges for use of data in excess of any agreed limit on the Services levied by SCL a
22. hrough to completion or 5 6 2 2 the Customer will be offered a new service option for acceptance save that if in the reasonable opinion of the Customer it deems the service levels of the new service to be materially less than the service to be withdrawn and the Customer may terminate the Order without incurring any form of Early Termination Charges SCL may relocate a Connection within the Network for reasons including security improvements to infrastructure capacity management cost reduction or mitigation of a known fault provided any such relocation will not have an adverse effect on the Services If the Customer concludes in consultation with SCL that the relocation will have an adverse effect on the relevant Services it may terminate the Connection without incurring Early Termination Charges The Services will be provided within SCL s Network Operator s Network area but it s always possible that the quality or coverage may be affected at times The Customer acknowledges that 5 9 1 the provision of certain Services shall be subject to the completion of a satisfactory Site survey In a limited number of cases SCL or its representative shall require access to the Site to complete the Site survey 5 9 2 upon completion of the Site survey SCL shall notify the Customer of the estimated Connection date for the relevant Service and 5 9 3 SCL shall inform the Customer by email when the Service has successfully been instal
23. ing ringtones except where SCL gives the Customer prior permission in writing or 6 3 7 to download send or upload content of an excessive size quantity or frequency SCL will contact the Customer if the Customers use is excessive or 6 3 8 in violation of any applicable local national or international law or regulation 6 3 9 in a manner which infringes the rights of any person including intellectual property rights and rights of confidentiality To prevent spam from entering and affecting the operation of SCL s systems and the Services SCL may take any reasonable measures or actions necessary to block access to or delivery of any e mail which appears to be of an unsolicited nature and or part of a bulk e mail transmission SCL may also use within its systems virus screening technology that may result in the deletion or alteration of e mail and or e mail attachments However SCL does not warrant that such technology will be effective against all virus attacks or unsolicited e mails The Customer acknowledges that the Services are provided to other users and SCL owes a duty to them as a whole to preserve Network integrity and to avoid Network degradation If in SCL s reasonable opinion SCL believes that the Customer s use of the Services has or may adversely affect such network integrity or may cause network degradation SCL may change the Customer s Transmission Speed or manage the Customer s use of our Services as SCL se
24. led SCL shall exercise the reasonable care and skill of a competent telecommunications operator The Customer acknowledges that 5 10 1 SCL cannot guarantee that the Services will be available without interruption or will be free from error 5 10 2 it is technically impossible to provide an incident free service and SCL does not undertake to do so 5 10 3 the Services have not been developed to meet the Customers individual requirements and that it is therefore the Customer s responsibility to ensure that the facilities and functions of the Services meets their requirements 5 11 5 12 5 10 4 the operability quality and availability of the Services may sometimes be affected by factors outside SCL s BT s or the Network Operator s control such as physical obstructions atmospheric conditions and other causes of radio interference faults in other telecommunication networks or other events 5 10 5 the existence of any minor errors in the Services shall not constitute a breach of the Agreement and 5 10 6 SCL BT or other Network Operator may at any time and without liability modify expand improve maintain or repair the Services and this may require suspension of the operation or provision of the Services and SCL shall have no liability to the Customer in connection with any such adverse effect on the quality and availability of the Services SCL shall use reasonable endeavours to meet any agreed dates but shall no
25. nd as more particularly detailed in the Service Plan personal data as defined in the DPA the renewed term agreed with SCL accordance with Clause 3 3 in writing in 1 2 2 1 2 2 2 3 Rental the monthly quarterly or annual fee including line rental equipment rental and other rental payable by the Customer for the Services as set out in the Order or as otherwise notified by SCL Service Plan the monthly quarterly or annual tariff which the Customer selects at the time the Customer orders the Services Services the data services including but not limited to broadband FTTC MPF SMPF Ethernet First Mile and Ethernet as set out in the Order and that SCL agrees to supply to the Customer Site the site s at which SCL shall provide the Services Subsequent Term a minimum of twelve 12 months or such other period set out in the Order SCL We Southern Communications Limited Company Number 1328040 whose Registered Office is at Glebe Farm Down Street Dummer Hampshire RG25 2AD SCL s Equipment any equipment owned by SCL or its licensors that SCL uses to provide the Services System the Network that SCL uses to provide the Services Transmission Speed either the rate in Kops or Mbps that data is transferred between the Equipment and the Service The Transmission Speed available to the Customer will be affected by the operational and technical characteristics of the Customer s telephone line the N
26. nd that SCL is entitled to alter them in its sole discretion SCL will only change the Customer s e mail addresses where reasonably necessary after providing the Customer with reasonable notice of such change The number of e mail addresses and the amount of e mail storage that SCL provides to the Customer will depend on the Service Plan the Customer subscribes to The Customer acknowledges that the Customer has no right to sell or to agree to transfer or dispose of in any way any e mail addresses or Domain Name provided to the Customer by SCL If SCL receives a complaint about the Customer s Website SCL may suspend it immediately without notifying the Customer beforehand SCL may ask the Customer to either agree with the person making the complaint that the material can remain or can be altered or ask the Customer to agree to remove it permanently However if SCL believes that the material on the Customer s Website is sufficiently harmful unlawful or offensive is illegal or SCL receives further complaints about the Customer s Website after SCL has already issued the Customer with a warning SCL may end the Agreement without further notice to the Customer In such circumstances SCL will be under no obligation to provide the Customer with any refund If SCL supplies or provides any third party software to the Customer pursuant to the Agreement then such software shall be supplied or provided subject to the standard terms and conditions
27. on invoice or in less than fourteen 14 days The Customer shall pay the Charges in pounds sterling without set off or deduction 7 8 7 9 7 10 7 11 7 12 7 13 7 14 7 15 7 16 7 17 8 1 The Charges are exclusive of Value Added Tax which shall be payable by the Customer in addition to the Charges at the rate applicable from time to time If any Excess Construction Charges are identified such Charges must be accepted by the Customer before work on the Order can continue Where such Excess Construction Charges are identified if no acceptance of such Excess Construction Charges is provided by the Customer within 30 days of notification by SCL of such Excess Construction Charges or such longer period as the Parties may expressly agree the Charges will be considered rejected and the Order deemed cancelled Time for payment of the Charges shall be of the essence of the Agreement If the Customer fails to make payment in full by the due date in addition to SCL s right to suspend the Services as set out in Clause 8 1 SCL may charge interest at the rate of 4 per annum above the base rate of the National Westminster Bank plc on any amounts outstanding from the due date for payment until payment is made in full SCL will give the customer as much prior notice as practicable of any alteration to the charges and in any event not less than 1 month s prior notice of such change This notice may be included in
28. oses of a reconstruction or amalgamation or if a receiver or administrator is appointed over all or part of the other Party s assets or the other Party suffers seizure of any of its property for non payment of monies owing SCL may without prejudice to any of its other rights under the Agreement terminate the Agreement with immediate effect by notice in writing without liability to the Customer in the event that 9 3 1 SCL is not for whatever reason permitted or authorised to provide the Services 9 3 2 SCL reasonably considers that the breach act omission or default of the Customer may result in SCL s failure to comply with any applicable legislation or may place SCL in breach of its agreement with the Network Operator 9 3 3 use by the Customer of the Network or the Services is or is likely to cause damage to interrupt or otherwise prevent SCL from supplying the Services to other customers or complying with obligations owed to other customers 9 3 4 the Customer fails to pay the Charges when due 9 3 5 such action is required in order to comply with any legislation 9 3 6 SCL has reasonable grounds to suspect that the Customer is involved in fraudulent or other unlawful activity If the Agreement is signed before SCL has completed its credit check of the Customer SCL shall be permitted to terminate the Agreement immediately by written notice if the Customer fails to pass SCL s credit policy The rights to terminate the
29. otherwise than by fair wear and tear or destroyed by an act or omission of the Customer its employees agents or subcontractors 6 12 2 not alter or move any of SCL s Equipment nor do anything that is likely to damage or adversely affect its performance nor remove or deface any words or signs on it nor permit anyone else to do so 6 12 3 not modify move relocate or in any way interfere with such SCL Equipment 6 12 4 comply at all times with the specified operating procedures and interconnection requirements of SCL as may be notified to it from time to time 6 12 5 indemnify SCL in respect of all costs expenses and liabilities that SCL incurs as a result of any loss of or damage to the Equipment unless directly caused by SCL 6 12 6 not cause the SCL s Equipment to be repaired serviced or otherwise attended to except by an authorised representative of SCL 6 12 7 insure and keep insured all SCL s Equipment 6 12 8 use the SCL Equipment only for the purpose of receiving the Services and in accordance with such reasonable instructions as may be given by SCL from time to time and 6 12 9 permit SCL to inspect or test the SCL Equipment at all reasonable times 7 1 7 2 7 3 7 4 193 7 6 7 7 It is the Customer s responsibility to make sure that SCL s Equipment is only used to access Services as permitted The Customer shall not sell let mortgage charge pledge dispose of or do anything
30. r agrees to comply with the following 4 1 1 the Customer must have an existing BT or any other non cable network telephone line 4 1 2 the Customer must have a personal computer of minimum specification 4 1 3 the Customer must have compatible cables and extension leads between any communications equipment and telephone socket and 4 1 4 SCL s provision of the Services is subject to testing to SCL s satisfaction of the Customer s telephone line to ensure that broadband is available in the Customer s area and can be activated If any installation work is needed at the Customer s Site before SCL is able to provide the Services the Customer must arrange this through an authorised third party or by SCL at the Customer s own cost In certain limited circumstances in addition to any express restrictions set out in any relevant handbook for the Services the Customer accepts that 4 3 4 4 4 5 4 6 4 7 4 8 4 9 4 2 1 SCL may not be able to set up the Services for technical reasons beyond SCL s control 4 2 2 some limitations within the Network may not become apparent through no fault of SCL until after the Service has been installed and working for some time and 4 2 3 there may be geographical limitations that may affect or prevent installation of a Service The Customer accepts that provision of the Services is subject to these potential limitations In such circumstances SCL will notify the Cus
31. r get up associated with SCL without SCL s prior written consent Risk in any rental equipment shall pass to the Customer on delivery Ownership of rental equipment remains at all times with SCL or other third party owner The Customer has no right title or interest in the rental equipment except that it is provided to the Customer for the duration of and on the terms of the Agreement This Clause shall survive termination or expiry of the Agreement CIRCUMSTANCES BEYOND REASONABLE CONTROL Neither Party shall be liable for any delay in performing its obligations under the Agreement caused by circumstances beyond its reasonable control These are circumstances such as but not limited to Acts of God insurrection or civil disorder or military operations national or local emergency acts or omissions of government or other competent authority or regulatory authority fire flood lightning or other weather of exceptional severity subsidence explosion or industrial disputes This Clause does not apply to the Customer s obligation to pay the Charges If either Party is affected by circumstances beyond its reasonable control it shall notify the other Party and shall use reasonable endeavours to overcome the effects If those effects continue for more than three 3 months the Parties shall enter into a discussion to agree in good faith the best way forward NOTICES Notices must be in writing The address for service on SCL subject to any
32. redirected to another operator and the Customer agrees that subject to compliance with any obligations in each applicable service level agreement it is not SCL s responsibility to arrange for the provision of alternative services in such circumstances THE CUSTOMER S OBLIGATIONS The Customer may only use the Services 6 1 1 as laid out in the Agreement and 6 1 2 for their own use The Customer may not resell or commercially exploit any of the Services without the prior written consent of the Company 6 2 6 3 6 4 6 5 6 6 6 7 The Customer shall comply with all security standards applicable to the Services and as notified to the Customer by SCL from time to time The Customer shall not utilise and shall ensure that no other person uses the Services 6 3 1 for storing reproducing transmitting communicating or receiving any material in breach of any law regulation code of practice or in breach of SCL s acceptable use policy or 6 3 2 fraudulently or for any criminal or illegal purpose or in a manner that is contrary to any regulatory or legal requirement or 6 3 3 to make defamatory offensive obscene indecent menacing abusive nuisance or hoax calls or 6 3 4 to cause annoyance inconvenience or needless anxiety to any person or 6 3 5 contrary to instructions that SCL may give to the Customer from time to time or 6 3 6 to copy store modify publish or distribute services or content includ
33. s nor constitute either party the agent of the other for any purpose Neither party shall have authority to act as agent for or to bind the other party in any way Third parties A person who is not a party to the Agreement shall not have any rights to enforce its terms Variation 16 6 1 SCL shall be entitled to reasonably amend the Agreement at any time upon notice to the Customer if there is any amendment to the agreement between SCL and the network provider which directly or indirectly impacts upon the Agreement 16 6 2 Except as set out in these Terms no variation of the Agreement including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by SCL Governing law The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation including non contractual disputes or claims shall be governed by and construed in accordance with English law 16 8 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation including non contractual disputes or claims 20 SERVICE LEVELS SERVICE SERVICE LEVEL DO OVER USAGE CHARGES APPLY Ethernet Support 24 7 4 hour fix time No EFM Support Mon Fri 8am to 69m 7 hour fix time No Ethern
34. t be liable for failure to meet them or for any delay caused by circumstances beyond SCL s reasonable control including but not limited to delays in obtaining consent to carry out work at the Site or delay in the Customer approving any Excess Consiruction Charges Time shall not be of the essence of the Agreement SCL shall not and shall not be under any obligation express or implied to monitor the Customer s usage and or patterns of usage The Customer shall report any fault in the Services to SCL s Customer Services Department as soon as reasonably practicable where it will be dealt with in accordance with the agreed fault repair service or any applicable service level agreement SCL shall not be obliged to fix any fault if 5 13 1 the defect arises because the Customer failed to follow any user manual or other documentation available from the manufacturer or SCL s oral or written instructions as to the use or maintenance of the Services or if there are none good trade practice 5 13 2 the defect is caused by improper use of the Services or use outside its normal application If SCL agrees to fix a fault 5 13 3 caused by the circumstances set out in this Clause 5 13 or 5 13 4 caused by the Customer or 5 13 5 that otherwise falls outside the responsibility of SCL or 5 13 6 where no fault is subsequently found SCL may charge the Customer for such work at its applicable man hour rate SCL shall not be liable for any faul
35. t whether under Clause 5 13 or otherwise unless the Customer gives written notice of the defect to SCL within seven 7 days of the time when the Customer discovers or ought to have discovered the defect Service Levels 5 15 In fulfilling its obligations under these Terms SCL will comply with its obligations as set out in any applicable service level agreement for the Services 5 20 5 21 5 22 5 23 6 1 The technical specification of each Service and manner in which SCL discharges its obligations under these Terms is at the sole discretion of SCL If the Customer instructs SCL to dispatch a SCL representative to any site to investigate a possible fault SCL reserves the right to invoice the Customer for the visit should the fault be found to be with the Customer s network Where at the Customer s request SCL spends time investigating any fault which is repeatedly or continuously reported by the Customer and SCL concludes each time that there has been no service failure SCL reserves the right to charge the Customer for all reasonable costs and expenses incurred in investigating the alleged Service Failure and the Customer agrees to pay such charges in accordance with Clause 7 The Customer shall be responsible for claiming any service credit in accordance with the applicable service level agreement Where a valid claim is made and the Customer becomes entitled to a service credit SCL will issue a credit note to the Custom
36. that would prejudice SCL s Equipment in any way The Customer will allow SCL to inspect test modify change add to replace or remove any SCL s Equipment either remotely or via a designated maintainer At the end of the term of the Agreement the Customer will allow SCL access at all reasonable times to collect any of SCL s Equipment in the Customer s possession The Customer shall at its own cost arrange for the required Site specific conditions as notified by SCL This will include without limitation mains electricity supply connection points and computer terminals The Customer shall prepare the Sites in accordance with SCL s reasonable instructions and reinstate them at the Customer s expense after SCL has completed any work necessary for SCL to be able to provide the Services The Customer shall ensure that any Equipment excluding SCL s Equipment that it uses in connection with the Services meets any legal or regulatory requirements and is approved for connection to the System If not the Customer must immediately disconnect it or allow SCL to do so at the Customer s expense The Customer shall indemnify SCL against all costs damages expenses and losses and reasonable professional costs and expenses suffered or incurred by SCL arising out of or in connection with 6 17 1 the use or misuse of the Services by the Customer 6 17 2 claims of third parties seeking damages for any loss or misuse of data by the Custom
37. tomer as soon as possible and the Service may have to be withdrawn Where the Services are withdrawn SCL will provide the Customer with a refund of any advance Charges that the Customer has already paid to SCL for such withdrawn Services Use of the internet is subject to the Customer s own risk and subject to any applicable laws Upon activation of the Services the Customer accepts that the Customer may experience a temporary loss of the Customer s existing line In the event that the Customer wishes to port an existing URL which the Customer wishes to use in connection with the Services the Customer agrees and understands there may be downtime associated with this process and SCL is not responsible for any costs or consequence of delay arising in connection with any such downtime provided always that SCL reserves the right to reject such porting request at its sole discretion SCL may reject or remove names that SCL believes may infringe someone else s trade mark or other intellectual property rights or which SCL considers is offensive abusive defamatory or obscene The Customer may be allocated a username and password in order to access the Services The Customer shall keep such username and password confidential and shall take all necessary steps to ensure their confidentiality and that they are not disclosed to any unauthorised third parties The Customer will 4 7 1 inform SCL if the Customer becomes aware of or suspects any un
38. ty or self regulatory authority and such fees costs or charges are directly attributable to the provision of Services to the Customer under the Agreement SCL shall be entitled to pass through such fees costs and charges to the Customer with immediate effect Where SCL agrees to do work outside a Working Day at the request of the Customer SCL may charge the Customer in accordance with SCL s applicable man hour rate SUSPENSION AND VARIATION OF THE SERVICES SCL reserves the right at its option to terminate the Agreement or suspend or vary the Services without notice 8 1 1 if SCL is obliged or requested to comply with an order or instruction of or a recommendation or request to take such action received from the Government 8 2 8 3 8 4 9 1 OFCOM Radio Communications Agency PhonepayPlus an emergency services organisation or a competent administrative authority 8 1 2 if SCL reasonably believe the Customer has provided false or misleading details about the Customer 8 1 3 if SCL needs to modify expand improve maintain or repair the Services or vary Network capacity 8 1 4 if SCL needs to vary the technical specification of the Services in order to comply with any relevant law or regulation or direction from a competent authority 8 1 5 if SCL advises the Customer that the Customers excessive use of Services is causing problems for other users and the Customer is continuing to use the Services excessively
39. ued up to and including the date of termination plus ii an average per day value of the Charges accrued by the Customer in the three months prior to the date of termination chargeable each day from the date of termination until the date of expiry of the Minimum Term Renewed Minimum Term or Subsequent Term as the case may be plus iii the total amounts of all Exchange Line Rental Charges still remaining on the Minimum Term Renewed Term or Subsequent Term as the case may be from the date of termination until the date of expiry of the Minimum Term Renewed Minimum Term or Subsequent Term as the case may be Equipment Excess Construction Charges Exchange Line IPR Minimum Term Network Network Operator OFCOM Order Our Website Overage Charge Personal Data Renewed Term any communications or other equipment recommended and approved by the Supplier and or third party operator as an essential part of providing the Services This may include without limitation modem and router cables It does not include leads batteries or other accessories or equipment the Customer might purchase from any supplier the Supplier recommends or any alternative supplier any Charge that SCL may apply for resources including Equipment required to provide a Service or any aspect of a Service to a Site that exceeds the level of resources normally required to provide the applicable Service to a Site any apparatus
40. urred through or as a result of fraudulent or unauthorised use of the Services other than by SCL or its representatives SCL is not obliged to detect unauthorised or fraudulent use of the Services The Customer shall reimburse SCL for all reasonable costs and expenses incurred as a result of the suspension and any recommencement or variation of the Services where suspension or variation is implemented as a result of any act or omission of the Customer TERMINATION The Customer may 9 1 1 terminate the Agreement without incurring any Early Termination Fee by giving a minimum of three 3 months prior written notice to SCL such notice to expire on the 9 2 9 3 9 4 9 5 10 10 1 10 2 expiry date of the Minimum Term the Renewed Term or Subsequent Term as the case may be or 9 1 2 terminate the Agreement before the Minimum Term the Renewed Term or Subsequent Term as the case may be has expired but will have to pay the Early Termination Fee to SCL Either Party may immediately terminate the Agreement by written notice if the other Party 9 2 1 commits a material breach of any of the terms of the Agreement and if such a breach is remediable fails to remedy that breach within 14 days of receipt of notice in writing to do so 9 2 2 commits a material breach that is not capable of being remedied or 9 2 3 commits an act of bankruptcy or goes into or is put into liquidation other than solely for the purp
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