1.
Definitions
"Access Connection" means a telecommunications
circuit that the Customer may use to obtain
telecommunications services at the Site
"Agreement" means these Terms, together with the
Order Form.
“AUP” means the Netpremacy Acceptable Use Policy as
published and amended from time to time on the
Netpremacy website at www.netpremacy.com/aup.htm
“BT
Service” means the Service provided from BT only
enabled exchanges.
"Carrier" means any supplier of telecommunications
services to Netpremacy for the Service.
"Commencement date" means the date when Netpremacy
is ready to supply the Service, irrespective of whether
the Service or part thereof is not actually being
provided due to the failure of the Customer to comply
with its obligations under this Agreement.
"Consumer" means a person who enters into a contract
other than in the course of a business.
"Customer" means the person who places the Order and
uses the Services.
"Customer Equipment" means apparatus belonging to
the Customer not forming part of the Netpremacy
Equipment but which may be connected to the Netpremacy
Equipment
"Netpremacy" means Netpremacy Ltd whose registered
office is at 100 Wellington Street Leeds LS1 4LT.
Registered in England and Wales. Registered No.
4050972 .
"Netpremacy Equipment" means any apparatus or
equipment provided by Netpremacy or any third party (eg.
the Carrier) to the Customer at the Site to enable
provision of the Service under this Agreement.
“EasySecure Product” means the leased and managed
firewall service offered by Netpremacy as one of its
Security Products.
“Initial Period” means the period of 12 months from
the Commencement Date.
“Internet”
means the worldwide TCP/IP network formed by an
interconnection of the private and public networks of
companies, organisations and institutions.
“LLU Service” means the Service provided over
Netpremacy or Carrier enabled exchanges.
"Order Form" means the form signed by the Customer
ordering the Service.
“Security Product” means any firewall product or
service offered by Netpremacy.
"Service" means the installation, connection and
supply of a telecommunications circuit over the Access
Connection (including the provision of the carrier
equipment) that is capable of supporting Internet access
services at the Site and the provision of the Internet
service selected on the Order Form over such circuit and
any documentation relating to such circuit.
“Service Availability Area” means a geographic area, as
may be amended by Netpremacy from time to time, where
the Service is potentially available.
"Site" means the Customer’s Site where the Service is to
be received, as nominated by the Customer on the Order
Form.
“Working Hours” means 9:00am to 5:00pm, Mondays to
Fridays, excluding bank holidays
2.
Contractual Terms and Duration
2.1
This Agreement will be effective on signing and
shall continue until the expiry of the Initial Period
and thereafter will automatically renew for a further 12
month term, subject to Clauses 2.2 and 15.
2.2
If the Customer wishes to either:
i.
change its IP options for the Service; or
ii.
upgrade the Service to a higher speed;
then
it will need to provide Netpremacy with at least 70
days’ written notice of its wishes. Netpremacy may
(subject to availability) vary the Service accordingly
subject to the Customer paying Netpremacy an
administration fee that will be notified to the Customer
at the time of receipt of the request.
2.3
If the Customer wishes to change the Site then it
will need to provide Netpremacy with at least 70 days’
written notice and Netpremacy may, in its absolute
discretion agree to such change of Site provided that:
i. this
Agreement will be deemed to terminate on the day
Netpremacy ceases to provide Services to the Site and a
new agreement on substantially the same terms as this
Agreement shall be effective as of the date of the
provision of Services to the New Site, (such date being
a day up to 20 days or more after the day Netpremacy
ceases to provide Services to the Site); and
ii. an
administration fee, as notified to the Customer at the
time of receipt of the request, shall be payable to
Netpremacy.
2.4
For the avoidance of doubt any purchase orders
placed by the Customer shall be governed by this
Agreement and not by any terms and conditions provided
with the Customer’s purchase order.
3.
Installation of the Service
3.1
For the LLU Service only, Netpremacy shall
arrange for the Carrier to visit the Site and install an
Access Connection to enable the Customer to receive the
Service. This Access Connection shall be separate to any
existing Access Connection at the Site. For the BT
Service, the Access Connection will be enabled remotely
by the Carrier.
3.2
The provision of the Service to the Customer will
be subject to the characteristics of the Customer’s
Access Connection and the Carrier may determine that it
is not possible to supply the Service over the
Customer’s Access Connection. Where this is the case,
Netpremacy will immediately terminate this Agreement and
Netpremacy will not be liable to the Customer for such
termination.
3.3
The Customer acknowledges that during the
installation of the Netpremacy Equipment for the
provision of the Service, any Access
Connection at the Site may suffer temporary
interference, which shall be reinstated following
installation. Netpremacy will not be liable for any
loss, interruption or interference
during installation.
The
Customer also acknowledges that any telephone socket
extensions that are incorrectly wired may be
disconnected during installation, without liability to
Netpremacy.
3.4
Netpremacy shall use its reasonable endeavours to
comply with the Customer's reasonable requests in
respect of installation but Netpremacy or the Carrier’s
decision on the routing of cables and wires and the
positioning of outlets and other apparatus constituting
the Netpremacy Equipment shall be final and binding.
3.5
Netpremacy shall use all reasonable endeavours to
provide and install or procure the provision and
installation of the Netpremacy Equipment at the Site so
that the Service can be provided on or before any
installation date specified or agreed to by Netpremacy.
Any installation date is an estimate only and Netpremacy
shall not be liable for any failure to meet such
installation date.
3.6
Installation of the Service may be subject to a
survey carried out by Netpremacy or the Carrier and the
Service may not be provided where the survey carried out
is incomplete or unsatisfactory.
3.7
Once Netpremacy or the Carrier has established
the Access Connection to enable the Customer to use the
Service it shall be the Customer’s responsibility to
connect the Netpremacy Equipment to this connection.
4. Provision
of the Service
4.1
The provision of the Service is subject to the
Site being within a Service Availability Area.
4.2
Netpremacy shall provide or procure the provision
of the Service to the Customer in accordance with the
terms of this Agreement. The Customer acknowledges that
it is technically impracticable to provide a fault free
Service and Netpremacy does not undertake to do so.
4.3
Occasionally Netpremacy and/or any Carrier may
have to interrupt the Service or change the technical
specification of the Service for operational reasons
(such as maintenance or Service upgrades) or because of
an emergency. In these circumstances, where possible,
Netpremacy will give notice to the Customer of any such
interruption, however, the Customer shall have no claim
against Netpremacy for any such interruption.
4.4
The Customer acknowledges and accepts the
following technical limits relating to the Service:
i.
transmission performance of some metallic local
loops will mean it is technically impracticable to
provide Service to all Customers within the Service
Availability Area;
ii.
currently, until such time as Netpremacy advises
otherwise, the Service cannot be provided over the same
Access Connection as certain other telecommunications
services as listed on the Netpremacy Website.
iii.
the Service is not available to Sites where all
or part of the Access Connection is provided over fibre
optic cable or radio systems.
iv.
that the Service may also affect the performance
of some PSTN customer premises equipment including fax
machines.
v.
that some technical limitations may not become
apparent until after the Service has been installed and
working for some time. In such circumstances the
Service for some Customers may need to be withdrawn.
4.5
In the circumstances referred to in Clause 4.4
Netpremacy will have no liability to the Customer
relating to the provision of the Service (or
Netpremacy's inability to provide the Service), the
performance of the Service, its effect on other services
or equipment or the withdrawal of the Service.
4.6
The Service will be provided up to the maximum
speed specified on the Order Form. Due to the innovative
nature of this technology used to provide the LLU
Service it may not always be possible to provide this
Service to the maximum speed specified and the Customer
acknowledges this. In the event that the LLU Service
operates at less than 75% of the specified maximum
speed, the Customer shall be entitled to have its
contract migrated to the next most appropriate Service
speed and be invoiced the corresponding Charges for this
Service. Any difference already paid for by the Customer
in the set-up or rental Charges between the two Service
speeds shall be credited to the Customer. This shall be
the sole remedy of the Customer in respect of any
failure by Netpremacy to provide the Service at the
specified maximum speed.
4.7
Where the Customer has taken the ISDN backup
option, Netpremacy will supply a configured ISDN backup
router to the Customer. It is the Customer’s
responsibility to provide an ISDN line for exclusive use
of the ISDN backup service. Any ISDN call costs incurred
due to the activation of the backup service is the
Customer’s responsibility. Netpremacy can not guarantee
that the ISDN backup service will initiate in all
possible outage circumstances.
5. Charges
5.1
The charges for the Service will be calculated in
accordance with the Order Form. Charging will begin on
the Commencement Date for the Service. Charges will be
calculated in accordance with details recorded by, or on
behalf of, Netpremacy.
5.2
The Customer must pay for the Charges either
annually in advance or quarterly by direct debit. Where
payment is by direct debit, the Charges shall be
automatically deducted within 30 days of the date of
Netpremacy's invoice. Netpremacy may charge daily
interest on late payments at a rate equal to 4% per
annum above the base-lending rate of Barclays Bank Plc.
5.3
Subject to clause 4.6, any set-up charges payable
for the Service are non-refundable.
5.4
All charges exclude Value Added Tax (VAT) at the
applicable rate, unless stated otherwise.
5.5
Netpremacy shall be entitled to set off any
amounts owed to the Customer against any Charges due
under this Agreement
5.6
Netpremacy may also make an additional charge on
its own behalf or on behalf of a Carrier in the
following circumstances:
i.
an abortive visit charge may be incurred where
incorrect information supplied by the Customer means
it is technically impractical to provide the Service
over the Customers Access Connection;
ii.
where Netpremacy or the Carrier are unable to
gain access to the Site to carry out installation of
the Service or the installation is aborted, an
abortive visit charge may be payable;
iii.
where certain order information provided by the
Customer is illegible, inaccurate or incomplete an
administration fee will be charged;
iv.
where Netpremacy or the Carrier provide the
support to the Customer outside Working Hours in
supply of the Service;
v.
where a fault relates to equipment other than
the Netpremacy Equipment; or
vi.
where it is necessary to relocate the existing
telephone master socket to provide the Service.
6. Customer
Obligations
6.1 To allow the installation and use of the
Netpremacy Equipment at the Site, the Customer will,
prior to any installation work for the Service, at the
Customer's own expense:
i.
obtain all necessary consents, including consents
for any necessary alterations to buildings;
ii.
take up or remove, any fitted or fixed floor
coverings, ceiling tiles, suspended ceiling and
partition covers as Netpremacy or the Carrier advises
are necessary and carry out afterwards any making good
or decorator's work required; and
iii.
provide any electricity and connection points
required by Netpremacy or the Carrier.
6.2 The Netpremacy Equipment shall remain the
property of Netpremacy or the supplier of such equipment
(including any Carrier) and the Customer shall at all
times make clear to third parties that the same is the
property of Netpremacy or a third party supplier of such
equipment. Netpremacy may modify, substitute, renew or
add to the Netpremacy Equipment from time to time at its
absolute discretion.
6.3 Netpremacy shall supply the Customer with the
relevant information to enable the Customer suitably to
prepare the Site for delivery and installation of the
Netpremacy Equipment. The Customer shall at their own
expense provide suitable accommodation, assistance,
facilities and environmental conditions for the
Netpremacy Equipment and all necessary electrical and
other installations and fittings.
6.4 A secure electricity supply is required at the
Site for the installation, operation and maintenance of
the Netpremacy Equipment at such points and with such
connections as specified by Netpremacy. Unless
otherwise agreed, this power supply is to be provided by
the Customer. Netpremacy shall not be responsible for
interruption or failure of the Services caused by a
failure of such power supply.
6.5 The Customer is responsible for the Netpremacy
Equipment and must not add to, modify or in any way
interfere with it nor allow anyone else (other than
someone authorised by Netpremacy) to do so. The
Customer will be liable to Netpremacy for any loss of or
damage to the Netpremacy Equipment, except where such
loss or damage is due to fair wear and tear or is caused
by Netpremacy, or anyone acting on Netpremacy's behalf.
Where a replacement for the Netpremacy Equipment has
been sent to the Customer by Netpremacy, the Customer
must follow the instructions contained on the
replacement and arrange for the collection of the
original Netpremacy Equipment within 7 days of receipt
of the replacement.
6.6
Any Customer Equipment connected to or used with
the Service must be connected and used in accordance
with any instructions, safety and security procedures
applicable to the use of that equipment. Any equipment
which is attached (directly or indirectly) to the
Service must be technically compatible with the Service
and approved for that purpose under any relevant
legislation or telecommunications industry standards.
6.7
To enable Netpremacy to carry out its obligations
under this Agreement, the Customer will at all
reasonable times provide Netpremacy employees, and
anyone acting on Netpremacy's behalf including the
Carrier, who produces a valid identity card, with access
to any Site and any other premises outside of
Netpremacy's control. Netpremacy will normally only
require access during Working Hours but may, on
reasonable notice, require the Customer to provide
access at other times. Netpremacy may agree to work
outside Working Hours, but the Customer must pay
Netpremacy's standard additional charges for doing so.
6.8
The Customer will co-operate with Netpremacy's
reasonable requests for information regarding the
Customer use of the Service and supply such information
without delay.
6.9
The Customer hereby irrevocably gives permission
to Netpremacy or the Carrier and its employees, agents
or contractors to:
i.
execute any works on the Site for, or in
connection with, the installation, maintenance, or
removal of the Netpremacy Equipment;
ii.
keep and operate telecommunication apparatus
installed on, under or over the Site;
iii.
enter the Customer’s premises to inspect any
telecommunication apparatus kept on the Site or
elsewhere for the purposes of providing the Service.
iv.
Where this Agreement or the Service is terminated
for any reason Netpremacy or the Carrier will be
entitled to enter the Site to remove the Netpremacy
Equipment installed there.
6.10
The Customer undertakes:
i.
to comply with all instructions Netpremacy may
notify to the Customer for use of the Netpremacy
Equipment;.
ii.
not to allow the Netpremacy Equipment to be
repaired or maintained other than by an authorised
representative of Netpremacy;
iii.
not to damage the Netpremacy Equipment and not to
add modify or in any way interfere with the performance
of the Netpremacy Equipment;
iv.
not to attempt to sell or charge the Netpremacy
Equipment;
v.
not to remove any identification mark affixed to
the Netpremacy Equipment showing that it is the property
of Netpremacy or other third party supplier of such
equipment.
6.11 The
Customer shall be responsible for the repair and
maintenance of any Customer Equipment used in order to
obtain or use the Service.
6.12
Except as otherwise expressly permitted under
this Agreement, the Customer may not:
i.
modify the Service without Netpremacy's prior
written consent;
ii.
redistribute or copy the Service (or any part
thereof), or transfer rights to the use of the Service
to any third party;
iii.
disclose details of the Service, to any third
party without Netpremacy's prior written consent;
iv.
use the Service except in conjunction with
Netpremacy's recommended operating guidelines.
6.13
The Customer must not use the Service:
i.
in a way that does not comply with the terms of
any legislation or any license applicable to the
Customer or that is in any way unlawful or fraudulent or
has any unlawful or fraudulent purpose or effect;
ii.
in connection with the carrying out of a fraud or
criminal offence against Netpremacy, or any public
telecommunications operator;
iii.
to send, knowingly receive, upload, download, use
or re-use any material which is abusive, indecent,
defamatory, obscene or menacing, or in breach of any
copyright, confidence, privacy or any other rights;
iv.
to send or procure the sending of any unsolicited
advertising or promotional material other than in the
case of the Customer to its own customers;
v.
in a way that does not comply with the AUP or any
other instructions Netpremacy or the Carrier has given;
or
vi.
in a way that in Netpremacy's reasonable opinion
could materially affect the quality of any service,
including the Service, provided by Netpremacy or the
Carrier.
6.14
The Customer shall be responsible for maintaining
and paying any telephone charges for the Access
Connection. If the Access Connection is terminated by
the Carrier, the Service will automatically be cancelled
and this Agreement terminated with the Customer
remaining liable for any charges for the service for the
balance of the Initial Period. A new Agreement for the
Service will need to be entered if the Access Connection
is reinstated by the Carrier, with a new Initial Period.
6.15
The Customer agrees to comply with any end-user
license agreement for any software provided with the
Service, including any end user license for the
EasyFilter service.
7. Support
of the Service
7.1 First line
Faults in the Service may be reported to
0113 2373072 during
working hours – 9am to 5pm. Faults outside working hours
may be reported to the Support Centre on
0845 333 3374. Repairs to
the Service will be carried out during Working Hours.
8. Domain
Names & IP Addresses
8.1
Where the Customer has purchased this service,
Netpremacy will host the domain name chosen by the
Customer on selected domain name servers.
8.2
The Customer warrants that they are the owners
of, or that they have been and are duly authorised by
the owner to use, any trademark or name requested or
allocated as the Customer’s name for the Service
including any mailbox or domain names.
8.3
The Customer acknowledges that Netpremacy cannot
guarantee that any name the Customer requests, will be
available or approved for use.
8.4
Netpremacy has the right to require the Customer
to select a replacement name and may suspend the Service
if, in Netpremacy’s opinion, there are reasonable
grounds for Netpremacy to believe that the Customer’s
current choice of name is, or is likely to be, in breach
of the provisions of this Clause.
8.5
The Customer acknowledges and agrees that:
8.5.1
Netpremacy does not represent, warrant or
guarantee that any domain name applied for by the
Customer or on the Customer’s behalf will be registered
in the Customer’s requested name or is capable of being
registered by the Customer or that the use of such
domain name by the Customer will not infringe any third
party rights. Accordingly, Netpremacy will not be
liable for any action taken by the Customer in respect
of its requested domain name(s) until the Customer has
been notified that the requested domain name has been
duly registered.
8.5.2
The registration of the domain name and its
ongoing use by the Customer is subject to the relevant
naming authority’s terms and conditions of use and the
Customer undertakes that they will comply with such
terms and conditions. The naming authority’s terms and
conditions are available on the following websites:
www.nominet.net for .uk domain names and
www.networksolutions.com or
www.nic.net for .com,.net and .org domain
names and
www.centralnic.com for other domain names.
8.5.3
The Customer acknowledges that its contact
details, including where such details constitute
Personal Data such as name, address, phone numbers and
email address, will be passed to the relevant naming
authority. The Customer further acknowledges that it is
a necessary requirement of being registered with the
relevant naming authority that the Customer’s details be
placed on the naming authority’s “whois” database which
is publicly viewable on the naming authority’s website.
The Customer hereby consents to its details being dealt
with in the manner stated in this clause and in the
relevant naming authority’s terms and conditions.
8.5.4
The Customer hereby irrevocably waives any claims
the Customer may have against Netpremacy in respect of
any decision of a naming authority to refuse to register
a domain name and, without limitation, the Customer
acknowledges and agrees that any administration or other
charge paid by the Customer in respect of the
registration of the domain name is non-refundable in any
event.
8.5.5
Netpremacy accepts no responsibility in respect
of the use of a domain name by the Customer and any
dispute between the Customer and any other individual or
organisation regarding a domain name must be resolved
between the parties concerned and Netpremacy will take
no part in any such dispute. Netpremacy reserves the
right, on becoming aware of such a dispute concerning a
domain name, at its sole discretion and without giving
any reason, to either suspend or cancel the relevant
service associated with the domain name, and or to make
such representations to the relevant naming authority,
as Netpremacy deems appropriate.
8.5.6
The Customer shall remain responsible for any
charges levied by the naming authority for the
registration, transfer or renewal of registration of the
domain name.
8.6
In the case of a transfer of a domain name, the
Customer agrees to provide all necessary consents and
notices to the naming authority to enable the transfer
of the domain name to Netpremacy’s domain name servers.
8.7
Netpremacy retains the right to withhold the
release of any Domain Name tag with the relevant naming
authority until the Customer pays all Charges due under
the Contract.
8.8 Any
Internet Protocol address purchased by the Customer from
Netpremacy shall at all times remain Netpremacy’s sole
property and the Customer will have a non-transferable
license to use such address for the duration of this
Contract. If this Contract is terminated for whatever
reason, the Customer’s license to use the Internet
Protocol address shall automatically terminate and
thereafter the Customer will not use such address.
8.9
The Customer acknowledges that its contact
details, including where such details constitute
Personal Data such as name, address, phone numbers and
email address, will be passed to RIPE, the registry body
for IP addresses. The Customer further acknowledges that
it is a necessary requirement of being registered with
RIPE that the Customer’s details be placed on the RIPE
database which is publicly viewable on the RIPE website.
The Customer hereby consents to its details being dealt
with in the manner stated in this clause.
9.
Security Products
9.1
Where the Customer purchases an Netpremacy
Security Product other than a NetPilot, the product
shall be purchased outright by the Customer and will not
be managed or supported by Netpremacy. Any
configuration, including the original configuration, or
support of the product will be charged by Netpremacy at
its standard hourly rates. The sole remedy of the
Customer in respect of any failure or problem with the
product shall be the remedy contained in the third party
supplier’s product literature (including any warranty)
supplied with the product.
9.2
Where the Customer purchases a NetPilot product
then this shall be purchased in accordance with the
standard Netpremacy Terms and Conditions.
10.
E-Mail Services
10.1
Any email accounts provided by Netpremacy shall
be restricted to 200MB per mailbox. Where any of the
Customer’s mailboxes exceeds this size Netpremacy may
reject any new mail sent to the mailbox. Such rejected
mail will be returned to the sender and will not be
received by the Customer.
11.
Intellectual Property Rights
11.1
The Customer acknowledges that the Customer shall
have no rights to any intellectual property rights in
the service arising as a result of any use of the
Service.
11.2
Any and all intellectual property rights used or
embodied in or in connection with the Service shall be
and remain the sole property of Netpremacy or
Netpremacy's licensors. No title or intellectual
property rights therein or in any modification or
extension thereof shall pass to the Customer unless
specifically stated under the Agreement.
11.3
For the avoidance of doubt, nothing in Clauses
11.1 and 11.2 affects the intellectual property rights
that the Customer may have in any content delivered or
received using the Service.
11.4
The Customer acknowledges such title, interest
and rights and the Customer shall not take any action to
jeopardize, limit or interfere in any manner with
Netpremacy's (or any third party suppliers') title,
interests or rights with respect to the Service,
including but not limited to, using Netpremacy's or the
Carriers trademarks or trade name.
11.5
Where software is provided to enable the Customer
or to use the Service, Netpremacy grants the Customer,
for the duration of this Agreement, a non-exclusive,
non-transferable license to use the software for that
purpose.
11.6
Except as permitted by applicable law as
expressly permitted under this Agreement, the Customer
must not, without Netpremacy’s prior written consent,
copy, de-compile or modify the software nor copy any
manuals or documentation provided with the Service.
12.
Warranties
12.1
The service will be provided without warranty or
representation of any kind, whether express or implied
Netpremacy disclaims and excludes all such warranties
and representations including without limitation any
warranty or representation that the Service is free of
defects, of satisfactory quality, fit for a particular
purpose or non-infringing of third party rights. The
Customer accepts all risks and liabilities associated
with the use of the Service.
13.
Limitation of Liability
13.1
Nothing in this Agreement shall exclude or limit
liability for death or personal injury resulting from
the negligence of either party or their servants, agents
or employees.
13.2
Neither party shall be liable in contract, tort,
pre-contract or other representations (other than
fraudulent or negligent misrepresentations) arising out
of or in connection with this Agreement for:
i.
any economic losses (including, without
limitation, loss of revenues, profits, contracts, or
business); or
ii.
any special, indirect or consequential losses or
any destruction of data, arising out of or in connection
with the provisions of this Agreement.
13.3
Subject to clauses 13.1 and 13.2 Netpremacy's
liability to the Customer in contract, tort, negligence,
pre-contract or other representations arising out of or
in connection with this Agreement or the performance or
observation of its obligations under this Agreement
shall be limited in aggregate to the charges paid, by
the Customer under this Agreement.
13.4
Each provision of this Agreement, excluding or
limiting liability, operates separately. If any part is
held by a court to be unreasonable or inapplicable, the
other parts shall continue to apply.
13.5
The Customer indemnifies Netpremacy and its
suppliers including any Carrier against any claims or
damages arising from the Customers access to or use of
the Service and any information, data or material
produced, transmitted or downloaded on the Service.
14.
Force Majeure
14.1
If either party is unable to perform any
obligation under this Agreement because of a matter
beyond that party's reasonable control such as
lightning, flood, exceptionally severe
weather, fire, explosion, war, civil disorder,
industrial disputes (whether
or
not
involving that party's employees), or acts of local or
central Government or other competent authorities or
events beyond the reasonable control of that party's
suppliers, the party will have no liability to the other
for that failure to perform.
14.2
If any of the events detailed in paragraph 14.1
continue for more than 3 months either party may serve
notice on the other terminating this Agreement.
15.
Suspension & Termination
15.1
The Customer may terminate this Agreement after
the Initial Period by giving 90 days written notice to
Netpremacy.
15.2
Either party may terminate this Agreement or the
Service provided under it immediately, on notice, if the
other:
i.
commits a material breach of this Agreement,
which is capable of remedy, and fails to remedy the
breach within 14 days of a written notice to do so;
ii.
commits a material breach of this Agreement
which cannot be remedied;
iii.
is repeatedly in breach of this Agreement; or
iv.
Is the subject of a bankruptcy order, or
becomes insolvent, or makes any arrangement or
composition with or assignment for the benefit of
their creditors, or goes into voluntary (otherwise
than for reconstruction or amalgamation), or
compulsory liquidation or a receiver or administrator
is appointed over their assets.
15.3
If any of the events detailed in 15.2 occur as a
result of Customer default, Netpremacy may suspend the
Service without prejudice to its right to terminate this
Agreement. Where the Service is suspended under this
paragraph 15.3 the Customer must pay the charges for the
Service until this Agreement is terminated.
15.4
Netpremacy will be entitled to suspend the
Service or terminate the Agreement where Netpremacy, in
its absolute discretion, believes the Customer is in
breach of any provisions of Clause 6.13.
15.5
Netpremacy may terminate this Agreement
immediately upon written notice to the Customer if:
i.
Netpremacy is informed by the Carrier supporting
the Service that the Carrier is required to cease the
Service by a competent regulatory authority;
ii.
the Carrier supporting the Service ceases to do
so for whatever reason or changes the terms its
provision of telecommunications services to Netpremacy
for the Service beyond the reasonable control of
Netpremacy; or
iii.
the Customer fails to comply with any of the
material terms or conditions of the Agreement and the
Customer does not remedy such failure within 14 days of
a request to do so.
15.6
Upon termination of this Agreement the Customer
shall immediately stop using the Service and the
Customer right to use the Service shall immediately
terminate.
15.7
If either party delays in acting upon a breach of
this Agreement that delay will not be regarded as a
waiver of that breach. If either party waives a breach
of this Agreement that waiver is limited to that
particular breach.
16.
Confidentiality
16.1
The parties will keep in confidence any
information (whether written or oral) of a confidential
nature (including software and manuals) obtained under
or in connection with this Agreement or the Service and
will not without the written consent of the other party
disclose that information to any person (other than
their employees or professional advisers, or in the case
of Netpremacy the employees of a Netpremacy Group
Company or their suppliers, who need to know the
information).
16.2
Clause 16.1 will not apply to:
i.
any information, which has been, published other
than through a breach of this Agreement;
ii.
information lawfully in the possession of the
recipient before the disclosure under this Agreement
took place;
iii.
information obtained from a third party who is
free to disclose it; and
iv.
information, which a party is, requested to
disclose and, if it did not, would be required by law to
do so.
16.3
Clauses 16.1 and 16.2 will remain in effect for 2
years after the termination of this Agreement.
16.4
The Customer
agrees that Netpremacy may make reasonable references to
the Customer as a consumer of the Services in its press
releases, advertising and promotional material.
17
Data Protection
17.1
Netpremacy and the Customer each agree to comply
with their respective obligations under applicable data
protection legislation and maintain all relevant
registrations, including (in relation to the Customer)
such registrations and consents as the Customer should
obtain and maintain to enable Netpremacy to process
personal data in connection with the performance by
Netpremacy of its obligations under this Agreement.
17.2
The Customer agrees that Netpremacy and its
carriers may put their name and other details obtained
from the Order Form into a computerized directory for
internal use and to enable Netpremacy to provide the
Service.
17.3
Rights of subject access will be in accordance
with the Data Protection Act 1998 and upon request in
writing and payment of the appropriate fee.
17.4
Any and all data supplied by Customers is held in
accordance with Netpremacy's current Privacy Policy
available at http://www.netpremacy.com
18
Consumers
Where
you are purchasing the Service as a Consumer the
exclusion of the implied terms in Clause 12 and the
provisions of Clause 17.1 will not apply.
19
Notices
19.1
Notices given under this Agreement must be in
writing and may be delivered by hand, or by courier or
first class post to the following addresses:
19.2
To Netpremacy at the address of the Netpremacy
office shown on the Order Form or any alternative
address which Netpremacy notifies to the Customer;
19.3
To the Customer at the address to which the
Customer asks Netpremacy to send invoices, the address
of the Customer's premises, or, if the Customer is a
limited company, its registered office.
20
General Provisions
20.1
The Agreement will constitute the entire
agreement between the parties and will supersede all
prior and contemporaneous agreements, communications and
representations (except for fraudulent or negligent
misrepresentations) whether oral or written, between the
parties
20.2
A person who is not party to this Agreement has
no right under the Contracts (Rights of Third Parties)
Act 1999 to enforce any term of this Agreement, but this
does not affect any right or remedy of a third party
which exists or is available apart from that Act.
20.3
In the event of a dispute between the parties,
the parties will attempt in good faith to resolve the
dispute or claim arising out of or relating to the
Agreement promptly through negotiations between the
respective representatives of the parties who have
authority to settle the same.
20.4
If any provision of the Agreement (whether in
part or in whole) is held by a court of competent
jurisdiction to be illegal, invalid or unenforceable the
remaining provisions of the Agreement shall remain in
full force and effect.
20.5
Any waiver of any breach of any provision of the
Agreement will not constitute a waiver of any prior,
concurrent or subsequent breach of the same or any other
provisions of the Agreement.
20.6
The Customer may not assign or otherwise
transfer, by operation of law or otherwise, the
Agreement or any rights or obligations therein without
the prior express written consent of Netpremacy.
20.7
The headings to the sections of this Agreement
are for convenience only.
21
Law
The
Agreement shall be governed by the laws of England and
the parties submit to the exclusive jurisdiction of the
Courts of England.
A: SERVICE LEVEL
AGREEMENT - NORMAL CARE
(available as standard for both LLU and BT
Service)
1.
Faults in the Service may be reported to the Call
Centre 24 x 7.
2.
Front line support for faults in the Service
shall be available during Working Hours (9am to 5pm,
Monday to Fridays).
3.
Where second line support is required, Netpremacy
shall aim to respond on the following Working Day
(Monday to Fridays, excluding Bank Holidays) from the
day that the fault is reported and shall aim to fix the
fault by the end of the following Working Day.
4.
Netpremacy shall use its reasonable endeavours to
respond to and fix any fault in the Service in
accordance with the above targets, however, beyond this
Netpremacy shall not be liable for any failure to fix a
fault within the above targets levels.
B: SERVICE LEVEL AGREEMENT – TOTAL CARE (only
available for the LLU Service and only if selected on
Order Form)
Service Levels
1.
Faults in the Service may be reported to the
nominated support centre 24 x 7.
2.
Front line support for faults in the Service
shall be available 24 x 7.
3.
Where second line support is required, Netpremacy
shall respond within 4 Working Hours from the time that
the fault is reported and shall aim to fix the fault
within 5 Working Hours thereafter.
Service Credits
4.
Where Netpremacy fails to fix a fault in the
Service within 12 Working Hours from the time that the
fault is reported, subject to clause 5 below, the
Customer shall be entitled to 1 day’s credit for the
Service affected for each hour or part thereof that it
takes to fix the fault beyond the 12 Working Hours.
5.
A maximum of 1 day’s credit shall be awarded for
any 24-hour period and the total number of days to be
credited each quarter shall be 22 days.
6.
Service credits shall be made at the end of each
quarter with the credits to be applied to the following
quarter. If the Customer wishes to receive a service
credit then the Customer must submit a written request
to Netpremacy for a credit within 14 days of the end of
the quarter claimed for. Service credits are not
redeemable as cash.
7.
Service Credits shall not be awarded where the
fault in the Service arises, or continues, due to:
(i)
Scheduled Maintenance, being maintenance work
that is either:
(a)
Notified to the Customer at least minimum of 72
hours in advance; or
(b)
Carried out between the hours of 2am to 5am on a
Wednesday morning.
(ii)
Any Customer equipment or software;
(iii)
Any negligent act or omission of the Customer;
(iv)
Any hacking, spamming, viruses or other hostile
computer programs;
(v)
Failure by the Customer to provide Netpremacy
with access to the Site or to follow any reasonable
instruction issued by Netpremacy;
(vi)
Any failure by the Customer to comply with its
obligations under the Agreement;
(vii)
Any event outside of Netpremacy’s reasonable
control, including but not limited to, any event of
force majeure as defined in Clause 14.
8.
The right to receive service credits shall be the
Customer’s sole remedy for any failure by Netpremacy to
fix the fault within the times specified above.
|
