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Terms and Conditions
1 DEFINITIONS
1.1 "Arrowhead" means Arrowhead Systemss Limited, a company registered in England, Registered Company Number 02694760.
1.2 "The Customer" means the person or company who contracts with Arrowhead for the Services and where one person contracts with Arrowhead on behalf of or as an agent for another, the Customer shall be deemed to include all those persons.
1.3 "This Agreement" means this Master Service Agreement together with any Service Orders issued by the Customer and accepted by Arrowhead.
1.4 "Base Rate" means the base lending rate of Bank os Scotland plc for the time being
1.5 "Working Hours" means the hours between 9:00am and 5:30pm in United Kingdom local time, every day excluding Saturdays, Sundays and national holidays in the United Kingdom.
1.6 "Internet" means the global data network consisting of interconnected networks which communicate using TCP/IP ("Transmission Control Protocol/Internet Protocol") and related Internet protocols and standards
1.7 "Internet Standards" means the protocols and standards defined from time to time by RFCs and Standards documents issued by the IETF (Internet Engineering Task Force), including RFCs 1009, 1122, 1123, 1250, and the RFCs obsolescing or extending these RFCs.
1.8 "Packet" means an Internet Protocol (IP) packet containing data in a form suitable for transmission over the Internet, including source and destination IP addresses.
1.9 "IP Address" is a number used by Internet Protocols for the routing and delivery of IP packets.
1.10 "IP Address Block" is a set of IP Addresses allocated by RIPE, or some competent Internet registry.
1.11 "RIPE" means the European Internet Registry, Reseaux IP Europeens.
1.12 "Name" means any Internet-specific name specifically requested by, allocated to, or used by the Customer for the provision of Service(s) and shall include, without limitation, any domain name or email address.
1.13 "Acceptable Use Policy" or "AUP" means the set of policies of an Internet network or site specifying what use may be made of network facilities by the Customer.
1.14 "Access Router" is a router conforming to Internet Protocols used to route IP packets between Arrowhead and the Customer's network.
1.15 "Access Circuit" means any communications line or data port supplied or made available by Arrowhead or its sub-contractors for the purpose of provision of Service(s) to the Customer.
1.16 "Access Equipment" means the access router(s) and any access circuit(s) used by Arrowhead in providing the Service(s) to the Customer.
1.17 "Customer Premises Equipment" or "CPE" means any equipment, cabling and systems provided by Arrowhead (or its subcontractors) which is to be installed at the Customer's premises in order to make available the Service(s) to the Customer. For the avoidance of doubt, Customer Premises Equipment shall not include any equipment which is the subject of a separate supply contract between Arrowhead and the Customer.
1.18 "Customer Equipment" means equipment, systems, cabling and facilities provided by the Customer and used in conjunction with the Access Equipment in order to obtain the Service(s). Customer Equipment shall include but shall not be limited to the means by which electrical power is supplied to any Customer Premises Equipment.
1.19 "Point of Presence" or "PoP" means an Arrowhead-operated facility in which Arrowhead keeps its data communications equipment.
1.20 "Colocation" means the accommodation of Customer Equipment at an Arrowhead PoP; "Colocated Equipment" is the equipment so accommodated.
1.21 "Hosting Platform" means the accommodation of Customer Files & Applications at an Arrowhead PoP, on Arrowhead Equipment and made available to the Customer and Users on the Internet via the HTTP and or FTP and or SMTP and or POP3 and or IMAP Protocols. Customer access to their Files & Applications is limited to these protocols.
1.22 "FQDN" means a Fully Qualified Domain Name. FQDN is that portion of an Internet Uniform Resource Locator (URL) that fully identifies the server program that an Internet request is addressed to. The FQDN includes the second-level domain name (such as "theinternet.org.uk") and any other levels (for example, "www. theinternet.org.uk").
1.22.1 "URL" means the standard for writing a string referring to an arbitrary piece of data on the Internet. A URL has the form: protocol://host/localinfo where protocol specifies the protocol to use to fetch the resource, e.g., FTP, HTTP; host specifies the FQDN of the remote host where the resource exists; and localinfo is a string—usually a file name—used by the protocol handler on the remote host to find the resource.
1.22 "Network Border Point" means the point at which packets pass from equipment managed by Arrowhead to or from Equipment not managed by Arrowhead during transmission of a stream of IP data packets between the Access Equipment and any other Internet host which correctly advertises its routes (either directly or indirectly) to Arrowhead according to the relevant Internet Standards. Thus the boundary between Customer Equipment and Access Equipment is a Network Border Point, as is the point of interconnection between networks provided and maintained by Arrowhead and other networks with whom Arrowhead is interconnected.
1.23 "Autonomous System" means a group of Internet hosts assigned an Autonomous System Number ("ASN") by RIPE or another competent Internet registry.
1.24 "Border Gateway Protocol" or "BGP" means an IP used to exchange routing information between Autonomous Systems.
1.25 "IP Routing" means the transmission of IP data packets between the Access Equipment and a Arrowhead host or proxy server or a Network Border Point appropriate for the destination address specified in the IP packet.
1.25.1 "Full Transit" shall mean IP Routing to the Network Border Point(s) associated with all Internet hosts which correctly advertise their routes (either directly or indirectly) to Arrowhead according to the relevant Internet Standards, to the extent that the agreement(s) between Arrowhead and any intermediate network(s) permit.
1.25.2 "LINX-only Transit" means IP Routing to the Network Border Point(s) associated with all Internet hosts which correctly advertise their routes (either directly or indirectly) to Arrowhead according to relevant Internet Standards, where the data path between the Access Equipment and the Internet host concerned passes via LINX infrastructure to the extent that the agreement(s) between Arrowhead and any intermediate network(s) permit.
1.25.3 "Peering" means IP Routing to the Network Border Point(s) associated with all Arrowhead customers currently purchasing the "Full IP Routing Service", to the extent that the agreement(s) between Arrowhead and the connected host(s) and the agreement(s) between Arrowhead and any intermediate network(s) permit.
1.25.4 "BGP Peering" means the exchange of routing information between Arrowhead' Autonomous System(s) and the Customer's Autonomous System(s) using a Border Gateway Protocol.
1.26 "User" means any third party connected to the Customer's network.
1.27 "Internet Service(s)" means the service(s) provided by Arrowhead whereby the Customer can gain access to any part(s) of the Internet using Arrowhead' Access Equipment.
1.28 "Service(s)" means the services supplied by Arrowhead to the Customer as described in each Service Order.
1.29 "Service Order" means the order specifying the Service(s) which the Customer wishes to obtain from Arrowhead.
1.30 "Tariff Details" means the tariff details included with the corresponding Service Order.
1.31 "Certificate of Acceptance" means the Certificate of Acceptance to be signed by the Customer on the initial connection of services pursuant to section 4 below.
1.32 "Deemed Date of Acceptance" means the earlier of either (i) the date on which the Customer signs a Certificate of Acceptance; or (ii) the date on which the Service is deemed to be accepted pursuant to clause 4.3.
1.33 "Period of Notified Service Interruption" means the period of relevant Service Interruption (subject to the exemptions specified in clause 1.34) starting at the Service Interruption Notification Point to the end of the relevant Service Interruption.
1.34 "Service Interruption Notification Point" means the point at which Arrowhead are informed in writing of the relevant Service Interruption (subject to the exemptions specified in clause 1.34) if that point lies within Working Hours, or the start of Working Hours on the following day if the point at which Arrowhead are informed in writing of this Service Interruption lies outside Working Hours.
1.35 "Service Interruption" means any interruption in the Service(s) making the Service(s) unusable to the Customer or fall below the Quality of Service Specification which is due to a failure of Arrowhead' facility, equipment or personnel used to provide the Service(s), and which failure is not excusable pursuant to section 21 below or section 7 below, and which interruption is not covered by clause 16.2 below.
1.36 "Quality of Service Specification" or "QoS Specification" means the level of service specified by the section entitled Quality of Service Specification within the corresponding Service Order.
2 SERVICE(S)
2.1 Any Service Order issued by the Customer shall be subject to the terms and conditions of this Agreement, and the Tariff Details and any additional terms and conditions contained within that Service Order.
2.2 A Service Order shall be deemed accepted by Arrowhead when the Customer has received a copy of the Service Order signed by an officer of Arrowhead. A Service Order shall supersede all prior agreements or understandings with respect to the specific Service(s) described in the Service Order, and shall, together with this Agreement and the Tariff Details provided with the Service Order, comprise the entire agreement between the parties.
2.3 In order that it may continue to maintain the level and quality of the Services provided, Arrowhead reserves the right at all times to change or alter the configuration of the Service(s) provided under this Agreement. Arrowhead shall, where possible, use reasonable efforts to give at least thirty (30) days prior written notice to the Customer of such change or alteration. Regardless of any configuration changes, the Service provided will be that stated on the relevant Service Order.
2.4 The Customer may use the Service(s) and Internet Service(s) to link into other Internet networks, but the provisions of this agreement apply only to those parts of the Internet Service(s) which are provided by Arrowhead. Arrowhead is not responsible in any way for any other part of the Service(s), including but not limited to other networks to which Arrowhead connects. Arrowhead may without notice and from time to time change or alter the networks to which Arrowhead connects.
3 DELIVERY
3.1 Prior to delivery of CPE the Customer will where necessary and unless otherwise agreed in writing with Arrowhead at its own expense and in sufficient time to facilitate delivery of CPE prepare its premises for installation providing all necessary electrical and other connections, fittings, facilities, and equipment as recommended by Arrowhead.
3.2 Arrowhead will use its reasonable endeavours to comply with any date or dates for delivery of CPE but unless expressly provided in writing such dates will constitute only statements of expectation and time will not be of the essence.
3.3 If Arrowhead having used its reasonable endeavours fails to dispatch or deliver the CPE by such date or dates such failure shall not constitute a breach of this Agreement and in particular without limitation Arrowhead shall not be responsible for delays caused by
3.3.1 data carriers or telephone companies providing access circuits
3.3.2 any default of the Customer
3.3.3 the management of the Customer's premises
3.3.4 any failure beyond the control of Arrowhead
3.4 Service Order processing will commence and the delivery time will be reckoned from the date of receipt of initial payment for the Service Order from the Customer.
4 ACCEPTANCE
4.1 The Customer shall accept the installation of the CPE by submitting the Certificate of Acceptance attached.
4.2 The Customer shall notify Arrowhead in writing within 40 Working Hours of installation of any defect, fault, or impairment in the CPE describing the fault. Arrowhead will use reasonable efforts to remedy such defects, faults, or impairment of which it is so notified. The CPE shall not be deemed to be accepted by the Customer until the identified defect(s), fault(s) or impairment has been remedied, except as provided in clause 5.2.
4.3 In the event that the Customer fails to submit the Certificate of Acceptance or has not made any notification to Arrowhead pursuant to clause 4.2, the connection of the CPE shall be deemed accepted by the Customer on the date of installation.
5 COMMENCEMENT OF SERVICE
5.1 The Service will commence on the date of installation of the CPE unless the Customer notifies Arrowhead of faults as specified in clause 4.2.
5.2 Notwithstanding clause 4.2, the CPE will be deemed to be accepted and the Service to commence if
5.2.1 Arrowhead having installed an Access Router as part of CPE, Arrowhead can communicate with that Access Router using Internet Protocols; or
5.2.2 Arrowhead not having supplied an Access Router as part of CPE, Arrowhead engineers can communicate using Internet Protocols with test equipment installed by Arrowhead engineers at the Customer's premises and connected to the access circuit, whether the circuit is provided by Arrowhead or the Customer; or
5.2.3 the Customer fails to provide Arrowhead engineers with access to the Customer's premises to allow them to test the CPE as described in 5.2.2.
6 TERM AND TERMINATION
The agreement begins on the Commencement Date and, unless terminated earlier in accordance with the termination clause, continues in effect until either party provides the other party with 90 days’ prior written notice of termination of the agreement.
6.1 The agreement shall automatically extend for a period of time equal in length to the Initial Term (the “Extended Term”) at the end of the Initial Term and at the end of each Extended Term, unless either party gives written notice to the other party not later than ninety (90) days before the end of the Initial Term or the relevant Extended Term, to terminate the agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
6.2 Notwithstanding any provision of the agreement to the contrary, the agreement may be terminated:
(a) by Arrowhead Systems Ltd, on giving prior notice in writing to the Customer, forthwith (or on the date specified in the termination notice) if:
(i) the Customer fails to pay any sum due under the agreement (otherwise than as a direct consequence of any default on the part of Arrowhead Systems Ltd or if such sum is subject to a Bona Fide Dispute) and such sum remains unpaid for thirty days; or
(ii) on the advice (or Arrowhead System’s reasonably anticipated advice) of the emergency services;
(b) by either party forthwith on giving notice in writing to the other if any step or proceeding is taken, any application, order, resolution or appointment is made, or any notice given, by or in respect of the other party in relation to the whole or any part of its undertaking for a: distress; execution; the suspension of payments; a moratorium of any indebtedness, a composition; assignment or arrangement with creditors; winding-up; dissolution; administration; receivership (administrative or otherwise); or bankruptcy, in any jurisdiction to which it is subject (including the one in which it is incorporated) that has an effect similar or equivalent to any of the events mentioned in this clause.
6.3 On termination of the agreement for any reason, in respect of the Services that have been terminated:
(a) the Customer shall immediately pay to Arrowhead Systems all of Arrowhead Systems' outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Arrowhead Systems may submit an invoice, which shall be payable within 30 days of the invoice date; and
(b) subject to any prior rights of Arrowhead Systems pursuant to the prior rights clause, the Customer shall remove the Customer Equipment from the Data Centre by the later of (i) the date of termination of the agreement Order or (ii) 7 days after the Customer is notified of termination of the agreement.
6.4 For as long as any amounts properly owed by the Customer to Arrowhead Systems under the agreement remain outstanding, Arrowhead Systems shall, until such amounts are paid in full, have a lien over any Customer Equipment on any Data Centre, other than:
(a) over such Customer Equipment that the Customer can show is owned by a Third Party; and
(b) over such Customer Equipment over which the Customer can show that a Third Party has (or will, in the event of Financial Instability of the Customer, have) a right to take or exercise a charge, lien or other security; and
(c) over such Customer Equipment in respect of which the Customer shows that it has (prior to the relevant default in payment pursuant to the agreement) undertaken not to create any charge lien or other security interest in favour of any Third Party.
6.5 If the Services have been terminated for a reason other than breach by the Customer of its obligations under the agreement, the Customer may request Arrowhead Systems to assist with the orderly transition of the Services from Arrowhead Systems to the Customer and/or any replacement supplier. Arrowhead Systems shall have the right to charge for all reasonable costs incurred in providing assistance given in accordance with time spent by Arrowhead Systems employees, storage costs and delivery costs. Arrowhead Systems shall have no obligation whatsoever to provide the Services at any time after the termination date, unless otherwise agreed between the parties in writing
7 SERVICE MAINTENANCE
7.1 Arrowhead shall give written notification to the Customer for all scheduled Service(s) maintenance, alteration or suspensions which shall affect the Customer. Such notification will normally be made by email to the address specified on the Service Order, but may also be made by fax or by post to the fax number or address specified on the Service Order respectively. Where possible, such notice shall be given at least two (2) calendar days prior to the scheduled event. Such maintenance may include but is not limited to deliberate impairment or suspension of Service(s) to the Customer.
8 FAULT RESOLUTION
8.1 In the event that the Customer becomes aware of a defect, fault or impairment in the provision of the Service(s) other than as provided in clause 7, and the Customer gives notification to Arrowhead of such defect, fault or impairment, then Arrowhead shall use its reasonable efforts to resolve the defect, fault or impairment as quickly as reasonably possible.
8.2 If it is determined that the defect, fault or impairment is a result of: (i) the negligence, wilful acts, omissions, or faults of the Customer or its agents, or (ii) the Customer or its Agent's breach of this Agreement, or (iii) the failure or malfunction of Customer Equipment, then Arrowhead may recover from the customer all reasonable costs incurred in remedying the defect, fault or impairment.
9 CUSTOMER PREMISES EQUIPMENT
9.1 Arrowhead or its subcontractors may substitute, change, rearrange or reconfigure any Customer Premises Equipment used in providing the Service(s) at any time, but shall not thereby alter the technical functionality of the Service(s) except where such alteration is made pursuant to clause 2.3.
9.2 Where reasonably practicable, Arrowhead shall give the Customer seven (7) days prior notification of any substitution, change, rearrangement or reconfiguration of any Customer Premises Equipment made pursuant to clause 9.1.
9.3 Title to any Customer Premises Equipment shall at all times belong to and remain with Arrowhead (or its subcontractors) and the Customer shall not create or allow any charges, liens, or other encumbrances whatsoever to be placed on any Customer Premises Equipment.
9.4 If the Customer desires to relocate or otherwise change the place at which the Service(s) is delivered, then at Arrowhead' option, the Customer may be required to pay any additional installation charges for the new location and any Service(s) support costs resulting from such agreed relocation or change of the place of the Service(s).
10 SERVICE INTERRUPTION
10.1 For Service Interruptions (subject to the exemptions specified in clause 1.34), Arrowhead shall grant a credit allowance against future charges under the same Service Order(s) incurred under this Agreement as follows:
10.1.1 For Service Interruptions (subject to the exemptions specified in clause 1.34) where the Period of Notified Service Interruption is of two (2) hours or longer, the amount to be credited shall be calculated from Service Interruption Notification Point, and increment and thereafter be calculated in one (1) hour intervals at a rate equal to the amount charged to the Customer for the equivalent period of the Service(s) which are affected by this interruption.
10.1.2 Where Period(s) of Notified Service Interruption (subject to the exemptions specified in clause 1.34) include either twenty-four (24) hours of cumulative working hours during any quarter, or include a single period of Notified Service Interruption (subject to the exemptions specified in clause 1.34) or seventeen (17) Working Hours or more, the amount to be credited shall be equal to all sums charged by Arrowhead for affected Service(s) for the quarter in which the start of the Service Interruption applies.
10.1.3 Where both subclauses 10.1.1 and 10.1.2 apply, the amount to be credited shall be the greater of the two.
10.2 A credit allowance for the Service(s) Interruption will be granted only if (i) the Interruption is not the result of negligence, wilful act or omissions or the fault of the Customer or its agents, or the failure or malfunction of Customer Equipment (including but not limited to the Power Supply to any Customer Premises Equipment), and (ii) the Customer affords Arrowhead full and free access to the Customer Premises to make appropriate repairs, maintenance and testing, and (iii) the Customer does not continue to use the Service(s) on an impaired basis, and (iv) the exceptions given as per clause 1.34 do not apply.
10.3 Where a credit allowance is granted under clause 10.1, it shall be granted exclusively against future charges made by Arrowhead under the relevant Service Order(s), and thus shall neither be available to the Customer as a set-off refund, nor as credit against charges made by Arrowhead under other Service Order(s) under this Agreement.
11 SERVICE SUSPENSION
11.1 Arrowhead may at its sole discretion elect to suspend forthwith provision of the Service(s) until further notice in the event that (i) Arrowhead is entitled to terminate this Agreement, and no exercise by Arrowhead of its right of suspension under this clause shall exclude Arrowhead' right subsequently to terminate this Agreement; or (ii) Arrowhead needs to carry out maintenance pursuant to section 7 of this Agreement to any Customer Premises Equipment or any other equipment or configurations of equipment which are used to provide the Service(s); or (iii) Arrowhead is obliged to comply with an order, instruction or request of Government, an emergency service organisation or other competent administrative authority; or (iv) if outstanding amounts due under this agreement to Arrowhead are not paid in accordance with 16.2.
11.2 In the event that Arrowhead exercises its right to suspend the Service(s) pursuant to clause 11.1(ii) or 11.1(iii), it shall where reasonably practicable give prior notice to the Customer of such suspension.
11.3 Where the suspension is implemented other than as a consequence of the breach, fault or omission of the Customer, Arrowhead shall make no charge to the Customer in respect of the suspension and/or recommencement of the provision of the Service(s).
11.4 Where the suspension is implemented as a consequence of the breach, fault or omission of the Customer, the Customer shall at Arrowhead' option pay Arrowhead' reasonable costs and expenses incurred by the implementation of such suspension and/or recommencement of the provision of the Service(s). The parties agree that the original setup fee is a reasonable estimate of such costs and expenses.
12 WARRANTIES
12.1 Provided that the Customer performs its obligations under this Agreement, Arrowhead warrants that it shall use reasonable skill and care:-
12.1.1 to establish that the Service(s) meet the Quality of Service Specification (para. 1.35) when they are installed (provided Arrowhead conducts such installation); and
12.1.2 thereafter in the performance of the Service(s) to meet the Quality of Service Specification.
12.2 Save to the extent that they are expressed in this Agreement, all representations, conditions, warranties and terms relating to this Agreement or the Service(s) to be performed by Arrowhead under or in connection with this Agreement (whether statutory or otherwise, and including, without limitation, any as to the fitness for a particular purpose, satisfactory quality or merchantability of any thereof) are hereby excluded by Arrowhead to the fullest extent permitted by law.
12.3 Unless (and to the extent) otherwise agreed in writing between the parties, time shall not be of the essence of the performance by Arrowhead of any of its obligations under this Agreement.
13 LIABILITY
13.1 Nothing in this Agreement shall limit Arrowhead' liability to the Customer for death or personal injury resulting from Arrowhead' negligence.
13.2 The Customer acknowledges that the sole and exclusive remedy in respect of Service Interruptions and Notified Service interruption shall be as provided in section 10.
13.3 Except for Arrowhead' liability to the Customer under clause 13.1 (to which no limit applies), and without prejudice to clause 13.2, Arrowhead' liability arising under or in connection with this Agreement (whether such liability arises from negligence, breach of contract or howsoever) in respect of each event or series of connected events shall not exceed the greater of:-
13.3.1 £3,000 (three thousand pounds)
13.3.2 The total amounts paid by the Customer under clause 16.1 in the quarter when such event (or the first event in any series of connected events) occurs.
13.4 Notwithstanding clause 13.3, in no case will Arrowhead be liable to the Customer or any third party for or in respect of any indirect of consequential loss or damage (whether financial or otherwise), or for any loss of data, profit, revenue, contracts or business, howsoever caused (whether arising out of any negligence or breach of this Agreement or otherwise), even if the same was foreseeable by, or the possibility thereof is or has been brought to the attention of, Arrowhead.
13.5 No action or proceeding against Arrowhead arising out of or in connection with this Agreement shall be commenced more than one year after the Service(s) rendered, and the Parties acknowledge that this clause constitutes an express waiver of any rights under any otherwise-applicable longer statute of limitations.
14 CUSTOMER OBLIGATIONS
14.1 The Customer shall allow Arrowhead and its subcontractors continuous access and right-of-way to the Customer's premises appropriate and necessary to the provision and maintenance of the Service(s) and any Customer Premises Equipment. The Customer shall furnish Arrowhead and its subcontractors, at no charge, such equipment, space and electrical power as is reasonably required by Arrowhead and its subcontractors to enable Arrowhead to render the Service(s).
14.2 The Customer shall be liable for theft of or any and all damages to any Customer Premises Equipment which is caused by (i) the negligent or wilful acts or omissions of the Customer for the Customer's breach of terms of this Agreement; or (ii) malfunction or failure of any equipment or facility provided by the Customer or its agents, employees or suppliers, including but not limited to Customer Equipment.
14.3 The Customer is responsible for identifying, monitoring, removing and disposing of any hazardous materials which it is required to remove by law prior to any construction or installation work being performed by Arrowhead or its subcontractors, and the Customer shall indemnify, keep indemnified, defend and hold Arrowhead harmless from any liability incurred in the use of or in connection with hazardous materials on the Customer's premises.
14.4 The Customer shall provide to Arrowhead such information as Arrowhead may reasonably require in order to provide the Service(s) and the Customer shall at its own expense modify the Customer Equipment to be used in conjunction with the Service(s) and take full account of any approval granted under national law to the Customer Equipment in question.
14.5 The Customer shall ensure at all times that the Customer Equipment shall conform to the relevant national standards of approval and the Customer shall at all times comply with the conditions of such standard or approval. Arrowhead reserves the right to disconnect any Customer Equipment if the Customer does not fulfil its obligations under this clause, or if in the opinion of Arrowhead or its subcontractors it is liable to cause the death of or personal injury to or damage the property of Arrowhead or its subcontractors or any person, or will impair the quality of any Services provided by Arrowhead to any of its other Customers.
14.6 The Customer shall, if required by any applicable license granted under national law, or if requested by Arrowhead, notify or obtain any necessary permission or co-operation of a telecommunications network provider or other relevant person for the connection or maintenance of Customer Equipment. Arrowhead shall have no liability whatsoever in any case where such notification is not given or such permission or co-operation is not obtained.
14.7 The Customer shall procure all necessary licenses, waivers, consents or registrations necessary to deliver, install, and keep installed at the Customer's Premises any Customer Premises Equipment. Arrowhead may advise the Customer of such requirements and the date by which they are required to be fulfilled in a schedule of requirements.
14.8 The Customer hereby grants all such licenses, consents, or registrations referred to in clause 14.7 to the extent the Customer has the power and authority to grant the same in respect of the delivery, installation and maintenance of any Customer Premises Equipment at the Customer's other premises.
14.9 The Customer undertakes:
14.9.1 to house any Customer Premises Equipment in accordance with Arrowhead' instructions as may be notified to the Customer from time to time; this shall include, but not be limited to, the provision of electrical power to any Customer Premises Equipment (as specified in the appropriate Service Order(s)) supported by an appropriately specified Uninterruptable Power Supply provided at the Customer's own expense. Arrowhead shall not be liable for any fault or depreciation of Service(s) due to failure of the supply of electrical power to any Customer Premises Equipment; such a failure shall be deemed a failure of Customer Equipment for the purposes of assessing whether or not a fault or deprecation of service constitutes a Service Interruption.
14.9.2 to keep any Customer Premises Equipment at the Customer's premises and stationary at all times.
14.9.3 not to add, modify, relocate, reconfigure or in any way interfere with any Customer Premises Equipment;
14.9.4 not to cause any Customer Premises Equipment to be removed, repaired, serviced, or otherwise attended to except by an authorised representative of Arrowhead.
14.9.5 not to remove, tamper with, or obliterate any words or labels on any Customer Premises Equipment or any part thereof.
14.9.6 not to use any Customer Premises Equipment except in accordance with such written instruction as may be notified by Arrowhead from time to time.
14.9.7 to permit Arrowhead or its subcontractors to inspect or test any Customer Premises Equipment at all reasonable times.
14.9.8 on termination of this Agreement (howsoever the same may arise) to yield up any Customer Premises Equipment in a good state of condition and repair to Arrowhead and to allow Arrowhead or its subcontractors access to the Customer premises to remove any Customer Premises Equipment.
14.10 The Customer shall advise Arrowhead of all health and safety at work rules and regulations and any other reasonable security requirements applicable at the Customer's Premises, and Arrowhead shall observe and ensure that its employees and authorised representatives observe such regulations so advised while at the Customer's Premises, provided that Arrowhead shall not be liable hereunder if as a result of conforming with such regulations Arrowhead is in breach of its obligations under this agreement.
14.11 The Customer shall comply with the IP address allocation rules set out by RIPE, and to complete and submit form ripe.137 (or any form which might supersede that form) where necessary.
14.12 The Customer shall provide a support function for the provision of support to Users who must be required and directed to use this route to report all faults, queries and complaints. For the avoidance of doubt, Arrowhead shall have no responsibility for provision of support to Users.
14.13 The Customer undertakes to comply with Arrowhead' Acceptable Use Policy as set forth in section 15 and as published on the World Wide Web at www.Arrowhead.net/docs/aup.html
14.14 The Customer undertakes to include in its contracts with its Users and connected networks which send or receive data using Access Equipment provided by Arrowhead terms of use equivalent to those in clauses 14.3 and 14.4 and section 15.
14.15 The Customer undertakes to indemnify and keep indemnified Arrowhead against any prosecution, civil or criminal, all costs, claims, demands, actions and proceeding which may be brought or threatened against Arrowhead by any User or third party to whose networks the Customer's networks connected, expressly including, but not limited to, uses of the Internet which are in breach of section 15. The Customer undertakes to indemnify Arrowhead against any prosecution, civil or criminal, all costs, claims, demands, actions and proceedings which may be brought or threatened against Arrowhead by the third party which arise from the Customer's use of Internet Services or the User's use of Internet Services.
14.16 The Customer undertakes (except where this is done with full knowledge and consent of the Customer, and pursuant to clause 14.14 and 14.15) to ensure that no third party may use the Service(s) provided by Arrowhead, and to indemnify Arrowhead against any prosecutions, civil or criminal, which result from such use. This clause shall not in itself prevent resale or onsale by the Customer to User(s) of Service(s) provided under this Agreement where those User(s) are known to the Customer, and where the User(s) have the full consent of the Customer, and where such use is pursuant to clause 14.14, 14.15, and 14.20 and all other relevant parts of this Agreement.
14.17 Intellectual property rights in all software supplied to the Customer remain the property of Arrowhead or its licensor. The Customer agrees to comply with the terms of any agreement reasonably required by the owner of intellectual property rights in all software supplied to the Customer for the protection of that software.
14.18 The Customer confirms and warrants that he is the owner of or that he has been duly authorised by the owner to use any trade mark or name requested or allocated as its Name. The Customer acknowledges that Arrowhead cannot guarantee that any Name requested by the Customer will be available or approved for use. Arrowhead shall have discretion to require the Customer to select a replacement Name and may suspend Service if, in the opinion of Arrowhead, there are reasonable grounds for Arrowhead to believe that the Customer's current choice of Name is, or is likely to be, in breach of the provisions of this clause or of section 15.
14.19 Service(s) and Internet Service(s) may comprise equipment, software, services, technical information, training materials or other technical data, which, because of their origin or otherwise are subject to United Kingdom or United States of America export control regulations or the laws or regulations of another country. In such case, provision of Service(s) and Internet Service(s) shall be conditional upon the parties obtaining and providing all necessary consents. The parties shall provide reasonable assistance to each other to obtain such consents. The Customer undertakes to comply with any applicable export or re-export laws and regulations, including but not limited to obtaining written authority from the UK or USA government as appropriate if the Customer intends at any time to re-export any items of UK or USA origin to any proscribed destination.
14.20 The Services may be resold, onsold, or otherwise transferred to persons not in the employ of the Customer or to other companies or organisations only with the written permission of Arrowhead.
14.21 The Customer may not use Arrowhead' name in publicity or press releases without Arrowhead' prior written consent.
15 ACCEPTABLE USE POLICY
15.1 The Services may not be used to send or receive any material which is offensive, abusive, indecent, obscene, or menacing; or in breach of confidence, or privacy, or to send or receive any material the sending or reception of which transgresses any Criminal laws of the United Kingdom.
15.2 The Services may not be used to cause annoyance, inconvenience, or needless anxiety.
15.3 The Services may not be used other than in conformance with the Acceptable Use Policies of any connected networks and the Internet Standards.
15.4 A Name may not be used in such way as to infringe the rights of any person, whether in statute or common law, in a corresponding trademark or name.
15.5 Specifically, but without limitation, the transmission of computer viruses or pornography; forgery of addresses or other such data in IP packets; unauthorised access to the network management equipment of Arrowhead or other Internet providers or their customers; mail bombing; mass mailing of unsolicited advertising material; and the transmission of live video or live audio or the use of IP multicast without authorisation from Arrowhead are all unacceptable practices.
15.6 Where there is a conflict between The Acceptable Use in section 15 of this agreement and the Policy published at www.theinternet.org.uk/tc.htm the later takes precedence. Arrowhead reserves the right to change the Acceptable Use Policy to react to changes in the Internet or the use of the Internet.
15.7 We consider that any application that overloads our Network by whatever means will be considered as making profligate use of the Network and is as such NOT allowed. This also includes, but is not limited to, running applications or services that are likely to be the subject of frequent DOS attacks.
16 PAYMENT
16.1 The Customer shall pay Arrowhead for the Service(s) in accordance with the rates and in the manner set out by the Service Order and the Tariff Details. Service(s) are billed annually in advance for the Service(s) provided during the following year, unless otherwise stated in the relevant Service Order(s).
16.2 Arrowhead reserves the right to charge interest on all outstanding amounts owed to Arrowhead and not paid in accordance with this Agreement, the applicable Service Order and the Applicable Tariff Details. Until payment in full is received by Arrowhead, interest shall be charged at a rate equal to four (4) percentage points above the Base Rate per annum compound interest before as well as after any judgement. Interest shall accrue notwithstanding termination of this Agreement for whatever reason. The Customer shall also pay all legal fees and other collection costs, if any, until payment in full is received by Arrowhead, Arrowhead reserves the right to withhold any or all parts of any or all Services provided to the Customer under this Agreement until such time as payment in full is received by Arrowhead; during such time(s) as this right is exercised, charges for services shall still accrue.
16.3 The Customer is responsible for all charges including and after the earlier of the (i) Date of Acceptance or (ii) Deemed Date of Acceptance, as that date may be extended from time to time by mutual agreement of the Parties, or (iii) the date on which the Customer begins to use the Service(s) notwithstanding any notification given by the Customer to Arrowhead pursuant to clause 4.2.
16.4 All amounts due to Arrowhead under this Agreement are exclusive of all applicable taxes (including, but not limited to, Value Added Tax) which may be payable or from time to time be introduced and which shall be charged to and paid by the Customer in accordance with the relevant regulations in force at the time of making the taxable supply of the Service(s).
16.5 All amounts due to Arrowhead under this Agreement shall be paid by the Customer in full (without any set-off, deductions or withholdings whatsoever) by standing order, direct debit, cheque, electronic transfer or such other method as may reasonably be specified from time to time. If the invoice being paid is not evident in the remittance information, the payment will be applied to the oldest balance due to Arrowhead.
16.6 Unless otherwise agreed by Arrowhead in writing, payment shall be made by standing order.
16.7 Service fee increases.
Arrowhead Systems may increase the Service Fees on the first day of March, or such other date as Arrowhead Systems may notify to the Customer, by an amount not exceeding the proportionate increase in the Retail Price Index (All Items) as published by the Office of National Statistics (or any official index replacing it) during the period since:
(a) the Service Commencement Date; or
(b) where a Service Fee increase has previously been implemented pursuant to this clause, the immediately preceding increase in Service Fees.
16.8 Arrowhead Systems' right to increase the Service Fees pursuant to this clause shall not be exercisable prior to the first anniversary of the Service Commencement Date, and thereafter shall only be exercisable once within any twelve month period.
16.9 No transfer of services including any transfer of domain names or changes to the delegation of domain names will be permitted unless and until all outstanding invoices have been settled and cleared funds have been transferred to Arrowhead. In particular the customer waives the right to any re-delegation or transfer of any domain name by any third party or authority.
17 COLOCATION SPACE
17.1 Where Colocation Space is provided to the Customer by Arrowhead the terms and conditions in this section shall apply.
17.2 In consideration of payments to be made by the Customer, Arrowhead grants to the Customer a Colocation Space License to locate Colocated Equipment in the space specified in the Service Order form and the right from time to time by prior appointment with Arrowhead to enter such premises for the purpose of repairing and maintaining the Colocated Equipment.
17.3 Installation of Colocated Equipment shall be deemed to have occurred on the Requested Availability Date or when Arrowhead has completed preparing the Colocation Space to receive the Colocated Equipment, whichever is later.
17.4 The Customer may use the Colocation Space only to install, operate, and maintain Colocated Equipment. Telecommunications are restricted to conventional cable or fibre-based media. Microwave and optical communications are prohibited unless authorised in writing by Arrowhead.
17.5 Colocated Equipment must not emit excessive electromagnetic radiation, noise, dust or other pollutants. Colocated Equipment must not draw power in excess of that stated in the Service Order Form. Colocated Equipment must output signals which conform to relevant telecommunications standards. Colocated Equipment may not be connected or attached to the equipment of other customers or of Arrowhead or of other telecommunications service providers without express written permission from Arrowhead and from the other party, with any permission from other customers copied to Arrowhead. Packet sniffers and other forms of electronic surveillance devices are prohibited. Customer equipment must not be used for illegal or criminal purposes. Colocated Equipment not in compliance with these conditions may be disconnected. Unauthorised connections may be removed at Arrowhead' discretion.
17.6 No signs or emblems may be placed on the exterior of equipment or racks. Neither the Customer nor subcontractors may in any way alter walls, floors, ceilings, or other parts of the building, the allocated Colocation Space, or any other cabling, construction, or equipment without specific written authorisation from Arrowhead.
17.7 The Customer must not make any portion of the space available to third parties or locate third party equipment in the space without written authorisation from Arrowhead.
17.8 Customer staff must bear proper identification at all times. Admittance out of hours may require up to three Working days notice. Subcontractors and the staff of other telecommunications services will be admitted only if arranged in advance and specifically approved by Arrowhead in writing and if bearing proper identification. Arrowhead may bar from the premises any individuals who have been observed touching, modifying, or tampering in any way with the equipment of Arrowhead or other customers. Visits by the Customer or parties acting on the Customer's behalf are deemed to be escorted from the time that the party signs in on entering the premises until the party signs out on leaving the premises.
17.9 Arrowhead may at its discretion require the relocation of Colocated Equipment within the building, either because of an emergency or, with 30 calendar days written notice, for good business reasons. Arrowhead will make every reasonable effort to avoid such relocation and will work with the Customer to minimise any disruption to Services. Arrowhead will relocate any cabling and construction installed by Arrowhead at its own expense but the Customer will be responsible for any other costs relating to relocation.
17.10 The Colocated Equipment shall at all times be at the Customer's risk. The Customer shall be responsible for insuring the Colocated Equipment against all risks (including but not limited to fire, theft, and flood) and for obtaining such other insurance cover (including but not limited to consequential loss and loss of profits cover) as may be appropriate.
17.11 Upon the termination of this Agreement the Customer shall at the Customer's own cost remove the Colocated Equipment from Arrowhead' premises at a time to be agreed with Arrowhead, except that Arrowhead shall have a lien over the Colocated Equipment to secure all sums due under this agreement and the Customer shall not be entitled to remove the Colocated Equipment until such sums have been paid.
17.12 Arrowhead shall at Arrowhead' s own expense defend the Customer against any and all claims that the Colocation Space infringes on any third party's property or ownership rights. Arrowhead shall at Arrowhead' discretion either settle any such claim, secure valid rights for the Customer's continued use, or secure equivalent Colocation Space that is not infringing. This warranty and remedy are valid only if the Customer gives Arrowhead prompt written notice of any such claim, provides Arrowhead with all relevant information in its possession, and allows Arrowhead to have sole control over the settlement or defence of such a claim.
17.13 The Customer will indemnify Arrowhead against all costs, claims, demands, losses, damages, expenses, and liabilities of any nature whatsoever suffered or incurred by Arrowhead in connection with any claim that the use or possession of the Colocated Equipment or any computer programs used in connection with the Colocated Equipment infringes the intellectual property rights of any third party.
17.14 The Customer shall indemnify and hold harmless Arrowhead, its officers and employees, servants, agents, affiliates and parent (if any), from and against any and all claims, costs, expenses, or liability arising out of the Customer's use of the Colocation Space or the Customer's operation of the Colocated Equipment.
17.15 Unless otherwise agreed by Arrowhead in writing, Colocated Equipment may be connected only to Arrowhead Access Equipment and Colocated Equipment may not be used to forward IP packets.
17.16 Any visitor to any of Arrowhead' PoPs must comply with Arrowhead' Health and Safety procedures. The relevant documentation will be made available to visitors. The procedures will be explained to any visitor upon request.
18 HOSTING PLATFORM
18.1 Where Hosting Space is provided to the Customer by Arrowhead the terms and conditions in this section shall apply.
18.2 Arrowhead may at its discretion relocate Hosting Space to available servers within the building. Arrowhead will make every reasonable effort to avoid such relocation and will work with the Customer to minimise any disruption to Services. Arrowhead will relocate any cabling and construction installed by Arrowhead at Arrowhead’s expense.
18.3 All Hosting Space & Services are provided on a FQDN basis unless the customer completes a request for IP Address allocation by completing and submiting form ripe.137 (or any form which might supersede that form) to Arrowhead. Such IP Addresses will not be allocated to the Customer and must not be used by the Customer until such time as they are entered in to the RIPE Registry Database & are visible to Users via whois.ripe.net ( http://www.ripe.net/db/whois/whois.html ).
19 CONFIDENTIALITY
19.1 Each party agrees to maintain in strict confidence all plans, designs, drawings, trade secrets, business and other proprietary information of the other Party which is disclosed pursuant to this Agreement. Neither Party shall disclose to any third party such confidential information without the express written consent of the other. No obligation of confidentiality shall apply to the disclosed information which the recipient (i) already possessed without obligation of confidentiality; or (ii) develops independently; or (iii) rightfully receives without obligation of confidentiality from a third party.
20 LICENCE
20.1 No licence, express or implied, is granted by Arrowhead pursuant to this Agreement, except insofar as Colocation Space Service(s) agreed to as part of this Agreement include a license to use space in Arrowhead PoPs.
21 PARTNERSHIP
21.1 Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute or be deemed to constitute between the parties a partnership, association, joint venture, or other co-operative entity.
22 FORCE MAJEURE
22.1 Neither party shall be liable for any delay or failure in performance of any part of this Agreement, other than for any delay or failure to pay money, to the extent that such delay or failure is caused by fire, flood, explosion, accident, war, strike, embargo, governmental requirement, civil or military authority, Act of God, civil unrest, inability to secure materials or labour or any other causes beyond their reasonable control. Any such delay or failure shall suspend this Agreement until the Force Majeure ceases and the Service Order term shall be extended by the length of the suspension.
23 ASSIGNMENT
23.1 Neither party may assign this Agreement without the written consent of the other Party (which consent shall not be unreasonably withheld or unduly delayed).
24 SEVERABILITY
24.1 If any provision of this Agreement is held by a court or any governmental agency or authority to be invalid, void, or unenforceable, the remainder of this Agreement shall nevertheless remain legal, valid and enforceable providing always that if such a provision is of a fundamental nature to this Agreement either party may terminate this Agreement forthwith.
25 NO WAIVER
25.1 Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right, nor operate so as to bar the exercise or enforcement thereof or to any other right on a later occasion.
26 PARAGRAPH HEADINGS
26.1 Paragraph headings do not form part of this Agreement and shall not be taken into account in the construction of interpretation thereof.
27 VARIATION
27.1 Except as provided by clauses 2.2 and 2.3, no term or condition of this Agreement shall be modified except by written agreement signed by a duly authorised representative of each Party.
28 ENTIRE AGREEMENT
28.1 This Agreement expresses the entire understanding of the Parties hereto and replaces any and all former agreements, understandings, solicitations, offers and representations relating to Arrowhead' performance in connection with this Agreement and contains all the terms, conditions, understandings, representations, and promises to the Parties hereto.
29 GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of England, and the Parties irrevocably agree to the exclusive jurisdiction of the courts of England.
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