Terms of Service

B1Definitions and Interpretation

In this Agreement:

"Agreement"

These Terms of Service together with the AUP, the SLA, the DDoS Mitigation SLA, the Privacy Notice and any executed Order Form or Service Schedule.

"Business Day"

A day other than a Saturday, Sunday or public holiday in England.

"Charges"

The fees payable by the Customer for the Services as set out in the Order Form.

"Confidential Information"

Information of a confidential nature disclosed by one party to the other, whether marked as such or not, including pricing, network design, customer lists, traffic data, and security information.

"Equipment"

Any router, ONT, optic, transceiver, cross-connect or other physical equipment provided by us at the Customer's site or in a co-location facility for the purpose of delivering the Services.

"Force Majeure Event"

Has the meaning given in clause B14.

"Initial Term"

The minimum committed period for a Service as set out in the Order Form.

"Intellectual Property Rights"

Patents, trade marks, copyright, database rights, design rights, rights in confidence and all other rights of a similar nature, in each case whether registered or unregistered, anywhere in the world.

"Order Form"

A document signed by both parties setting out the Services to be provided, the Charges, and any service-specific commercial terms.

"Service" or "Services"

The connectivity and related services described in an Order Form, which may include IP transit, dark fibre, wavelength (WDM) services, resold internet exchange ports, and any ancillary managed or value-added services.

"SLA"

The Service Level Agreement at Part C.

"Service Credit"

Has the meaning given in the SLA.

References to a statute or statutory provision include any subordinate legislation made under it and are references to that statute, provision or subordinate legislation as amended or re-enacted from time to time.

B2The Services

1. We shall provide the Services to the Customer in accordance with the Order Form, the SLA and the rest of the Agreement.
2. We will use reasonable endeavours to deliver each Service by the target service commencement date set out in the Order Form. Target dates are estimates only and time is not of the essence in respect of delivery.
3. The Services do not include the provision of customer premises equipment except as expressly stated in the Order Form, nor any internal customer LAN, customer-side configuration, or in-building cabling.
4. The nature and technical characteristics of each Service are as described in the relevant Order Form. IP transit Services are designed for the carriage of internet protocol traffic; dark fibre and wavelength Services provide unlit or lit optical capacity without any Layer 2 or Layer 3 management by the Company; resold internet exchange port Services are subject to the rules and policies of the relevant exchange. We do not warrant that any Service is suitable for any particular application, including but not limited to real-time trading, broadcast media, or Life-Critical Use (as defined in clause A7.1).

B3Customer Responsibilities

The Customer shall:

1. comply with the AUP and procure that all Users do the same;
2. provide accurate and complete information for the provisioning of the Services, including site contact, demarcation, IP addressing, and ASN information;
3. procure all necessary consents, wayleaves and access permissions in respect of any third-party premises at which Services are to be installed;
4. provide a safe working environment, suitable rack space, power, cooling and cross-connects for any Equipment located at the Customer's site or chosen co-location facility;
5. be responsible for the security of its own systems and for backing up its own data;
6. co-operate in good faith with our reasonable requests for information or assistance in connection with the Services; and
7. pay the Charges when due.

The Customer acknowledges that delays caused by the Customer or its third parties (including landlords, building managers, and other suppliers) are not the responsibility of the Company and may result in the postponement of any service commencement date and the consequential adjustment of milestones.

B4Charges, Invoicing and Payment

1. The Charges are as set out in the Order Form. Unless stated otherwise, Charges are exclusive of VAT and any similar taxes, which shall be added to invoices at the prevailing rate.
2. Recurring Charges are invoiced monthly in advance. Usage-based Charges (including burstable bandwidth in excess of any committed data rate) are invoiced monthly in arrears.
3. Invoices are payable within thirty (30) days of the date of issue, by bank transfer to the account specified on the invoice.
4. If the Customer fails to pay any undisputed sum by the due date, the Company may, without prejudice to any other right or remedy: (i) charge interest on the overdue amount at the rate of four per cent (4%) per annum above the Bank of England's base rate from time to time, accruing daily from the due date until payment in full, whether before or after judgment; (ii) claim statutory compensation and reasonable recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998; (iii) on no less than seven (7) days' written notice, suspend the Services in whole or in part until payment is received in full; and/or (iv) terminate the Agreement under clause B12.
5. If the Customer in good faith disputes any portion of an invoice, it must pay the undisputed portion by the due date and notify the Company of the disputed amount and the basis of the dispute within fifteen (15) Business Days of the invoice date. The parties shall use reasonable endeavours to resolve the dispute promptly.
6. The Company may increase recurring Charges once in any twelve (12) month period by no more than the percentage increase in the UK Consumer Prices Index (CPI) over the preceding twelve months, on giving the Customer not less than thirty (30) days' written notice.

B5Term, Renewal and Termination for Convenience

1. Each Service commences on its service commencement date and continues for the Initial Term set out in the Order Form.
2. Following the Initial Term, the Service shall renew automatically for successive periods of twelve (12) months ("Renewal Terms") unless either party gives the other not less than ninety (90) days' written notice of non-renewal expiring at the end of the Initial Term or the then-current Renewal Term.
3. The Customer may terminate a Service for convenience before the end of its Initial Term or any Renewal Term by giving not less than ninety (90) days' written notice, subject to payment of an early termination charge equal to one hundred per cent (100%) of the recurring Charges that would have been payable for the remainder of the then-current term.

B6Suspension of Service

We may suspend a Service in whole or in part where:

1. the Customer is in material breach of the Agreement, including the AUP, and (where capable of remedy) has failed to remedy that breach within fourteen (14) days of being notified in writing;
2. the Customer has failed to pay an undisputed invoice in accordance with clause B4;
3. we are required to do so by law, by a court order, or by a notice from a competent regulator;
4. continuing to provide the Service would, in our reasonable opinion, expose us, the Customer, our other customers, or third parties to a material security or stability risk; or
5. emergency works, planned maintenance, or upstream supplier action requires it.

Suspension does not relieve the Customer of its obligation to pay the Charges, save where suspension results from a default solely attributable to the Company.

B7Termination for Cause

Either party may terminate the Agreement immediately by written notice if the other party:

1. commits a material breach of the Agreement which is not capable of remedy, or which (being capable of remedy) is not remedied within thirty (30) days of receipt of written notice requiring remedy;
2. repeatedly breaches any term of the Agreement in a manner that, taken as a whole, constitutes a material breach;
3. becomes insolvent, enters into administration, has a receiver or liquidator appointed over any of its assets, or ceases or threatens to cease to carry on business; or
4. undergoes a change of control to a person or entity that is a competitor of the terminating party or that is subject to applicable sanctions.

On termination of the Agreement for any reason, the Customer shall pay all Charges accrued up to the effective date of termination and shall return or, at our election, permit the recovery of any Equipment in good condition (fair wear and tear excepted).

B8Intellectual Property

1. Each party retains ownership of all Intellectual Property Rights subsisting in materials it creates or owns prior to or independently of this Agreement.
2. We grant the Customer a non-exclusive, non-transferable, royalty-free licence to use any portal, software, or documentation provided to it for the sole purpose of receiving and using the Services during the term of the Agreement.
3. IP addresses allocated to the Customer by us under PA assignment remain our property (or that of the relevant Regional Internet Registry) and must be returned on termination of the relevant Service. The Customer is responsible for managing any PI assignments held under its own RIPE membership.

B9Confidentiality

1. Each party undertakes that it will not at any time during this Agreement, and for a period of two (2) years thereafter, disclose to any person any Confidential Information of the other party, except as permitted by this clause.
2. Each party may disclose the other's Confidential Information to its employees, officers, contractors and professional advisers who need to know such information for the purposes of carrying out the party's obligations under this Agreement, provided that such persons are bound by obligations of confidentiality no less protective than those in this clause.
3. The obligations in this clause do not apply to information which is, or becomes, publicly known other than through breach of this clause; was lawfully in the possession of the receiving party prior to disclosure; is independently developed; or is required to be disclosed by law or by a regulator.

B10Data Protection

1. Each party shall comply with its respective obligations under the UK GDPR, the Data Protection Act 2018 and PECR (together, "Data Protection Law").
2. In the ordinary provision of the Services we act as an independent controller in respect of the limited personal data we process about the Customer's personnel and authorised contacts, and as a transmission operator (not as a controller or processor) in respect of payload traffic carried over the Services. Further detail is set out in the Privacy Notice at Part D.
3. Where, exceptionally, the Company processes personal data on behalf of the Customer (for example, in connection with a managed value-added service), the parties shall enter into a data processing addendum compliant with Article 28 of the UK GDPR.

B11Lawful Interception and Law-Enforcement Requests

1. The Customer acknowledges that we are subject to the Investigatory Powers Act 2016, the Regulation of Investigatory Powers Act 2000 and related legislation, and may be required to retain communications data and to give effect to interception and disclosure notices issued by competent authorities.
2. We will not notify the Customer of any such notice or request to the extent prohibited by law, but where lawful and operationally feasible we will narrow the scope of any disclosure to that strictly required by the request.

B12Warranties and Disclaimers

1. Each party warrants that it has full power and authority to enter into and perform this Agreement.
2. Save as expressly set out in the Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
3. Without limiting the foregoing, the Company does not warrant that the Services will be uninterrupted or error-free, that any defect or non-conformity is capable of being corrected, or that the Services will be free from third-party interference. The internet is a network of independently operated networks, and we do not control, and are not responsible for, the acts or omissions of third-party network operators.

B13Limitation of Liability

1. Nothing in the Agreement limits or excludes the liability of either party for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot lawfully be limited or excluded.
2. Subject to clause B13.1, neither party shall be liable to the other, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any: loss of profit; loss of revenue; loss of business or business opportunity; loss of anticipated savings; loss of goodwill; loss, corruption or unavailability of data; or any indirect, special or consequential loss, in each case however arising under or in connection with the Agreement.
3. Subject to clauses B13.1 and B13.2, the total aggregate liability of the Company to the Customer in respect of all claims arising in any twelve (12) month period of the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed an amount equal to the Charges paid by the Customer in respect of the affected Service in that twelve (12) month period.
4. The Customer's sole and exclusive remedy in respect of any failure of the Services to meet the service levels set out in the SLA is the receipt of Service Credits in accordance with the SLA.

B14Force Majeure

1. Neither party shall be in breach of the Agreement, nor liable for any failure or delay in performance, arising from any event or circumstance beyond its reasonable control (a "Force Majeure Event"), including act of God, flood, fire, earthquake, severe weather, war, armed conflict, civil disorder, act of terrorism, riot, government action, imposition of sanctions, third-party industrial action, failure of utilities, failure of upstream telecommunications networks, fibre cuts caused by third parties, and pandemic.
2. The party affected by a Force Majeure Event shall promptly notify the other and shall use reasonable endeavours to mitigate the effect of the event. If the Force Majeure Event continues for more than sixty (60) consecutive days, either party may terminate the affected Service on written notice without further liability (other than in respect of Charges accrued before the date of the Force Majeure Event).

B15Assignment and Subcontracting

1. The Customer may not assign, novate or otherwise transfer any of its rights or obligations under the Agreement without the Company's prior written consent (not to be unreasonably withheld or delayed).
2. The Company may assign, novate or subcontract any of its rights or obligations under the Agreement to any member of its corporate group or to a successor in connection with the sale of all or part of its business, on written notice to the Customer.

B16Notices

1. Any notice given under this Agreement must be in writing and sent to the address of the relevant party set out in the Order Form (or such other address as that party may notify from time to time) by hand, by pre-paid first-class post, or by email to the address designated for legal notices.
2. Notices given by hand are deemed received at the time of delivery; notices sent by post are deemed received on the second Business Day after posting; and notices sent by email are deemed received at the time of transmission, save where transmitted outside Business Hours, in which case at 9:00 am on the next Business Day.

B17General

1. The Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, understandings, representations and arrangements, whether oral or written. Each party acknowledges that it has not relied on any statement, representation, assurance or warranty that is not set out in the Agreement.
2. No variation of the Agreement shall be effective unless in writing and signed by an authorised representative of each party.
3. A failure or delay in exercising any right under the Agreement shall not constitute a waiver of that right.
4. If any provision of the Agreement is found to be invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid and enforceable, or, if it cannot be so modified, severed from the Agreement, without affecting the validity of the remaining provisions.
5. A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
6. The Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.