Terms and Conditions – Services

STANDARD TERMS AND CONDITIONS FOR SUPPLY OF SERVICES OF

Burstfire Networks Limited

1          DEFINITIONS

In this document the following words shall have the following meanings:

1.1        “Agreement” means these Terms and Conditions together with the terms of any applicable Service Specification;

1.2        “Client” or “Customer” means the organisation or person who purchases services from the Supplier;

1.3        “Equipment” means all client equipment installed in the Premises;

1.4        “Fees” means all the amounts payable as defined in the Service Specification, as amended from time to time;

1.5        “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;

1.6        “Parties” means the Supplier and the Client; “Party” shall be used accordingly;

1.7        “Premises” means the premises at the address to which services may be provided;

1.8        “Restricted Information” means all documents, materials and other information, whether technical or commercial passed between the Supplier and the Client as a result of entering into or performing its obligations under this Agreement which would otherwise not be available;

1.9        “Service Specification” means a statement of work, quotation or other similar document describing the services to be provided by the Supplier;

1.10      “Supplier” means Burstfire Networks Limited of 16 Beaufort Court, Admirals Way, Docklands, London E14 9XL, United Kingdom.

2          GENERAL

 2.1        These Terms and Conditions shall apply to all contracts for the supply of services by the Supplier to the Client.

2.2        Before the commencement of the services the Supplier shall submit to the Client a Service Specification which shall specify the services to be performed and the fees payable. The Client shall notify the Supplier immediately if the Client does not agree with the contents of the Service Specification. All Service Specifications shall be subject to these Terms and Conditions.

2.3        The Supplier shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services. If there is any particular service which is time critical, it should be stated in the Service Specification that this is the case and that this supersedes this clause.

3          FEES AND PAYMENT

3.1        The fees for the performance of the services are as set out in the Service Specification. The Supplier shall invoice the Client for the Services in monthly instalments in advance of receipt of the Services (unless otherwise specified in the Services Specification); and for reasonable out-of-pocket expenses incurred in providing those services through failure of the Client to meet its obligations set out in this Agreement.

3.2        Invoiced amounts shall be due and payable within 28 days of receipt of invoice unless otherwise specified. The Supplier reserves the right to levy their statutory right to charge late payment interest as provisioned by the Late Payment of Commercial Debts (Interest) Act 1998 and its amendment(s). In the event that the Client’s procedures require that an invoice be submitted against a purchase order to payment, the Client shall be responsible for issuing such purchase order before the services are rendered.

3.3        All sums payable under or pursuant to this Agreement are exclusive of VAT, duty, sales or similar taxes. Accordingly, the payer of any such sum shall, subject only to the presentation of a valid invoice, pay such VAT, duty, sales or similar taxes in addition to the sum which would otherwise be due.

3.4        The Supplier reserves the right to increase its prices annually in connection with the Services to reflect the increase in the annual UK Retail Prices Index or ten percent (whichever is greater) from the commencement date provided that the then increased prices shall not be greater than the Suppliers published price list.

3.5        The Supplier reserves the right to take action following an invoice becoming overdue for payment which may involve the restriction of physical access to the Client, preventing the removal of equipment and in extreme cases, disconnection. These restrictions may come into effect at the discretion of the Supplier if an invoice becomes overdue.

4          CUSTOMER’S OBLIGATIONS

4.1        To enable the Supplier to perform its obligations under this Agreement the Client shall:

4.1.1     co-operate with the Supplier;

4.1.2     provide the Supplier with any information reasonably required by the Supplier;

4.1.3     obtain all necessary permissions and consents which may be required before the commencement of the services; and

4.1.4     comply with such other requirements as may be set out in the Service Specification or otherwise agreed between the parties.

4.2        The Client shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Clients failure to comply with Clause 4.1.

4.3        Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Client unlawfully terminates or cancels the services agreed to in the Service Specification, the Client shall be required to pay to the Supplier as agreed damages and not as a penalty the full amount of any third party costs to which the Supplier has committed and in respect of cancellations on less than five working days written notice the full amount of the services contracted for as set out in the Service Specification, and the Client agrees this is a genuine pre-estimate of the Suppliers losses in such a case.  For the avoidance of doubt, the Clients failure to comply with any obligations under Clause 4.1 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.

4.4        In the event that the Client or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Client as soon as possible and:

4.4.1     the Supplier shall have no liability in respect of any delay to the completion of any project;

4.4.2     if applicable, the timetable for the project will be modified accordingly;

4.4.3     the Supplier shall notify the Client at the same time if it intends to make any claim for additional costs.

4.5        to keep the any allotted area and all fixtures and fittings therein in good condition and upon termination of this Agreement return it to its original condition, fair wear and tear excepted, and:

4.5.1     Not to do anything at the Premises that would breach any health and safety, security, or other regulations, or put the Supplier in breach of its covenants or insurance conditions as notified by the Supplier to the Client from time to time;

4.5.2     Not to exceed the specified maximum limit of electrical power usage nor allow or do anything which would cause interruption in power at the Premises or to the Services.

4.5.3     Not to do anything which may be dangerous, nuisance, inconvenience or any other disturbance to other clients of the Supplier, or other clients of the Premises;

4.5.4     To maintain the Equipment to a standard which ensures that at all times the Equipment is safe and complies with all applicable health and safety standards;

4.5.5     To comply at all times with all applicable laws and regulations (including the Computer Misuse Act 1990, and any applicable Government or regulatory authority laws relation to any internet or other servers provided by the Client to its customers and the Data Protection Act 1998) in effect from time to time.

5          ALTERATIONS TO THE SERVICE SPECIFICATION

5.1        The parties may at any time mutually agree upon and execute new Service Specifications. Any alterations in the scope of services to be provided under this Agreement shall be set out in the Service Specification, which shall reflect the changed services and fees and any other terms agreed between the parties.

5.2        The Client may at any time request alterations to the Service Specification by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 working days or such other period as may be agreed between the parties, advise the Client by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties

5.3        Where the Supplier gives written notice to the Client agreeing to perform any alterations on terms different to those already agreed between the parties, the Client shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed.

5.4        Where the Supplier gives written notice to the Client agreeing to perform alterations on terms different to those already agreed between the parties, and the Client confirms in writing that it wishes the alterations to proceed on those terms, the Service Specification shall be amended to reflect such alterations and thereafter the Supplier shall perform this Agreement upon the basis of such amended terms.

6          WARRANTY

6.1        The Supplier warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.

6.2        Without prejudice to Clause 6.1, and except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the services to be provided by the Supplier.

7          INDEMNIFICATION

            The Client shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Client’s breach of any of its obligations under this Agreement, including any claims brought against the Supplier alleging that any services provided by the Supplier in accordance with the Service Specification infringes a patent, copyright or trade secret or other similar right of a third party.

8          LIMITATION OF LIABILITY

8.1        Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Supplier to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the fees paid by the Client to which the claim relates.

8.2        In no event shall the Supplier be liable to the Client for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Client incurring such a loss.

8.3        Nothing in these Terms and Conditions shall exclude or limit the Suppliers liability for death or personal injury resulting from the Suppliers negligence or that of its employees, agents or sub-contractors.

9          CONFIDENTIALITY

9.1        Each Party shall hold in confidence any Restricted Information during the term of this Agreement and thereafter, and shall not disclose any Restricted Information to any third party without the express permission of the other Party.

9.2        Nothing in this clause 9 shall be deemed to construe or prevent either Party from disclosing:

9.2.1     any Restricted Information to any parent company, consultant, subcontractor, professional adviser, or other person engages in connection with the provision of the Services provided the disclosing Party shall take all reasonable steps to ensure that such information is held in confidence by such persons;

• any Restricted Information which is or becomes public knowledge other than by a breach of this Clause 9;

• any Restricted Information which must be disclosed in discharge of any obligation to supply the information for governmental or judicial purposes.

9.3        The Client acknowledges that any Restricted Information obtained from or relating to the Supplier by the Client in the course of negotiating or in the performance of this Agreement is and shall remain the property of the Supplier.

9.4        In the event of any conflict between the terms contained in this Agreement and the terms in any confidentiality agreement between the Parties, the terms of the confidentiality agreement prevail.

10         DURATION AND TERMINATION

10.1      This Agreement shall commence on the Commencement Date and continue for the minimum term as specified in the Service Specification and thereafter shall remain in full force and effect unless or until terminated by three (3) month’s written notice by either Party subject to these terms and conditions.

10.2      The Client shall not be entitled to give notice of termination until the expiry of the Service Period.

10.3      Either party may terminate this Agreement forthwith by notice in writing to the other if:

10.3.1   the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;

10.3.2   the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;

10.3.3   the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;

10.3.4   the other party ceases to carry on its business or substantially the whole of its business; or

• the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.

10.4      The Supplier may elect to suspend the provision of Services if the Client is in material breach of this Agreement as specified in clause 10.4.1 The Supplier shall first give the Client notice of its intention to suspend the Services and allow the Client 14 days to remedy the breach, failing which Services shall be suspended.

10.5      The Supplier has the right to terminate the Agreement immediately if:

10.5.1   the Client or any of its employees or agents engages in any conduct that is prejudicial to the Supplier or in the event of non-payment of the Fees by the Client within thirty (30) days of the due date for payment; or

10.5.2   either Party ceases to be under the control (as defined by Section 840 of the Income and Corporation Taxes Act 1988) of the person or persons controlling it on the date of this Agreement, then the other Party shall be entitled to give not less than three (3) months’ notice in writing.

10.6      Upon termination the provision of the Services shall immediately cease and the Client shall:

10.6.1   pay all outstanding Fees due for the Service Period, except where the Client has terminated the Agreement pursuant to the provisions of clause 10.3 in which case the Client shall only be obliged to pay all fees outstanding up until the date of termination;

10.6.2   remove all its equipment from the Premises without delay;

• return to the Supplier any materials and Restricted Information belonging to the Supplier;

• return to the Supplier all non-portable IP address space assigned to the Client.

10.7      Notwithstanding termination, the Client shall continue to be liable to pay a sum equivalent to the monthly Fees otherwise payable under this Agreement in respect of any Client Equipment which has not been removed from the Supplier’s Premises, such sum to be calculated on a daily rate from the date of termination up to the date when the Equipment is removed.

10.8      The Supplier reserves the right to:

10.8.1   remove the Client’s Equipment from the Premises if the Client has failed to remove it after the expiry of one (1) month from the termination date;

10.8.2   exercise a lien over the Client’s Equipment in respect of any unpaid Fees beyond the termination date and shall be entitled to sell the Equipment if it remains on the Premises after the expiry of two (2) months from the termination date in order to recoup any unpaid Fees.

11         INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Supplier, and the Client shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties. IP addresses supplied by the supplier are non-portable unless explicitly specified in writing.

12         FORCE MAJEURE

Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.

13         INDEPENDENT CONTRACTORS

The Supplier and the Client are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Client and such engagement shall not relieve the Supplier of its obligations under this Agreement.

14         ASSIGNMENT

             The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.

15         SEVERABILITY

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

16         WAIVER

The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

17         NOTICES

Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Service Specification or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.

18         ENTIRE AGREEMENT

This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.

19         NO THIRD PARTIES

Nothing in this Agreement is intended to, nor shall it confer any rights on a third party whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

20         GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.