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Clearstream Standard Terms and Conditions – 2015

1. Definitions

  • “Analogue Line” means a Customer telecommunications circuit that Provider by agreement uses to deliver ADSL and FTTC services at the Site. Each ADSL or FTTC circuit requires one Analogue line.
  • “Agreement” means this document.
  • “Carrier” means any supplier of telecommunications services to the Provider used as part of the Service.
  • “Charges” means the amounts to be paid by the Customer defined in “B – Costs and Charges”
  • “Co-Location Service(s)” means rack space and ancillary services made available to Customer as described in the Service Description.
  • “Commencement Date” means the date when Provider is ready to supply the Service(s).
  • “Customer Circuit” means any communications circuit used to access Services that is not provided by Provider.
  • “Customer Equipment” means any equipment used in or connected to the service not provided or belonging to the Provider.
  • “Day Visit Charge” means the daily rate charge for Provider engineer to visit Client site in connection with the Services.
  •  “Initial Period” means the period defined in “B – Costs and Charges” beginning on 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.
  • “Managed Server” means Provider computing equipment made available to Customer on a rental basis as part of the Service.
  • “Notice Period” means a 90 day period following receipt by Provider of notice of termination from Customer.
  • “Provider” means Clearstream Technology Ltd of Clearstream Centre, Station Road, Church Village, Rhondda Cynon Taff CF38 1AF.
  • “Provider Equipment” means any equipment apparatus or device whether hardware or software which is used in or conjunction with the Service and is not the property of the Customer.
  • “Service(s)” means the installation, connection and on-going supply of the services described in the Service Description.
  • “Service Availability Area” means an area where availability of Carriers’ network infrastructure allows provision of the Service.
  • “Service Credit(s)” means a value to be offset against future charges.
  • Service Description means the contents of “A – Service Description”
  • “Service Level Guarantee(s)” means a guarantee identified as a “Service Level Guarantee” in the Service Description.
  • “Standard Support Hours” means 8:00am to 6:00pm Monday to Saturday, excluding bank holidays.
  • “Service Working Hours” means 24 x 7, 365 days each year excluding periods for equipment maintenance and changes.
  • “Termination Date” means the later of the expiry of the Initial Period or the Notice Period.

2. Contractual Terms and Duration

This Agreement will be effective signing of this Agreement and shall continue until the expiry of the Initial Period and thereafter will automatically renew for a further 12 month period (“Extension”) unless notice is given in writing 90 days prior to the expiry of the initial period or Extension.

Services may only be varied by written request by Customer and agreement by Provider. Thirty (30) days’ notice shall be given for such request and changes may be subject to additional charges.

For the avoidance of doubt any purchase orders placed by the Customer for the Services shall be governed by this Agreement and not by Customer purchase order terms and conditions

3. Charges

The charges for any Service will be calculated and charged in accordance with Schedule B – Costs and Charges and begin on the Commencement Date.

The Customer will pay the Charges initially for set-up costs by cheque or electronic transfer within 30 days of invoice. Provider may charge daily interest on late payments at a rate equal to 4% per annum above the base-lending rate of Barclays Bank Plc. All set-up charges payable for the Service are non-refundable.

The Customer will pay on-going charges by Direct Debit monthly in advance on the 5th of each calendar month unless varied by the Provider in writing.

Where Service availability does not meet or exceed any Service Level Guarantee Service Credits will be granted in accordance with Schedule B – Costs and Charges. Service Credits applied will reduce charges accordingly in the next billing period, or if remaining outstanding following expiry or termination of this agreement will be paid within 30 days by cheque or electronic transfer.

All charges and credits are subject to Value Added Tax (VAT) at the applicable rate, unless stated otherwise.

Provider shall be entitled to set off any amounts owed to the Customer against any Charges due under this Agreement.

Provider may make additional charges equal to costs incurred plus a reasonable administration charge where:

  • incorrect or omitted information by the Customer leads to an inability by Provider to deliver the Service;
  • Provider or Carrier work outside of Service Working Hours at the Customer request to supply of the Services;
  • a fault relates to equipment other than the Provider Equipment;
  • Customer requests a change to the Service

4. Providers Obligations

The services shall be installed according to a schedule agreed by Provider and Customer. Provider shall use all reasonable endeavours to begin Service on or before any installation date agreed. Any installation date is an estimate only and Provider shall not be liable for any failure to meet such installation date.

Provider undertakes to supply the services detailed in the Service Description and to:

  • not allow the Customer Equipment to be accessed other than by an authorised representative(s) of Customer;
  • not damage, interfere with, charge, sell or dispose of  the Customer Equipment;
  • not remove any identification mark affixed to the Customer Equipment showing that it is the property of Customer.
  • provide Customer representatives with access to Customer Equipment at the hosting locations subject to prevailing access security protocols.
  • make all reasonable endeavours to maintain the Provider Equipment to achieve the Service Levels specified in the Service Description.

5. Customers Obligations

Customer is responsible for understanding the regulatory and operating requirements applicable to its business and for selecting and using Services in a manner that complies with Customers applicable requirements.

Any Provider Equipment shall remain the property of Provider or its supplier(s) and the Customer shall at all times make this clear to its employees and third parties.  Provider may modify, substitute, renew or add to the Provider Equipment from time to time at its absolute discretion.

Following installation the Customer is responsible ensuring Provider Equipment is not interfered with. The Customer will be liable for any loss of or damage to the Provider Equipment not caused by Provider except for fair wear and tear.

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.

The Customer will co-operate with Provider’s reasonable requests for information regarding the Customer use of the Service and supply such information without delay.

The Customer hereby irrevocably gives permission to Provider or the Carrier and its employees, agents or contractors to execute any works required for the installation, maintenance, or removal of the Provider Equipment.

The Customer undertakes:

  • to comply with all reasonable instructions Provider may notify to the Customer for use of Provider Equipment;.
  • not to damage the Provider Equipment and not to add modify or in any way interfere with the performance of the Provider Equipment;
  • not to remove any identification mark affixed to the Provider Equipment showing that it is the property of Provider or other third party supplier of such equipment.

Except as otherwise expressly permitted under this Agreement, the Customer may not:

  • modify the Service without Provider’s prior written consent;
  • redistribute or copy the Service (or any part thereof), or transfer rights to the use of the Service to any third party;
  • disclose details of the Service, to any third party without Provider’s prior written consent;
  • use the Service except in conjunction with Provider’s recommended operating procedures.

The Customer must not use the Service:

  • 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;
  • in connection with the carrying out of a fraud or criminal offence against Provider, or any other public telecommunications operator;
  • 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;
  • 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;
  • in a way that in Provider’s reasonable opinion could materially affect the quality of any service, including the Service, provided by Provider or the Carrier.
  • Other than in accordance with our Acceptable Use Policy which may be updated from time to time to reflect changes in law, regulation or accepted industry practice.

Where 3rd Party products are supplied as part of any Service Customer agrees to comply with such products licence terms and hold Clearstream harmless for any breach of the same. Copies of agreements are available on request.

6. Support of the Service

The Provider shall use its reasonable endeavours to maintain the Services in accordance with Providers standard support procedures which are provided for general guidance and updated by Provider from time to time.

Services will be provided to the performance levels specified in Schedule 3 – Service Level Targets and where performance in any period does not equal or exceed such targets Service Credits shall be applied according to Schedule 3.

Security products within the Service shall be configured in accordance with prevailing Provider security procedures. Modifications for individual Customers shall be carried at as part of the Services on request up to a reasonable number of annual change requests not to exceed 12 per site.

The Provider warranties that all Service components provided by any Carrier or Provider Equipment supplier as part of the Services are of standard which would reasonably allow the Service Levels to be met.

7. Intellectual Property Rights

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.

Any and all intellectual property rights used or embodied in or in connection with the Service shall be and remain the sole property of Provider or Provider’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.

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 Provider’s (or any third party suppliers’) title, interests or rights with respect to the Service, including but not limited to, using Provider’s or the Carriers trademarks or trade name.

Except as permitted by applicable law as expressly permitted under this Agreement, the Customer will not, without Provider’s prior written consent, copy, de-compile or modify any software nor copy any manuals or documentation provided with the Service.

Customer will not copy any software provided as part of the Services or remove, modify or obscure any copyright, trade mark, or other proprietary rights notices. Use of any Microsoft® software is governed by Microsoft’s licence terms including use restrictions on Microsoft software that is provided for your use under a subscriber access licence or “SAL” or an “anonymous” licence as indicated in your Services Description.

Customer will ensure that any software used is licenced by the appropriate vendor. On request Customer will certify such compliance in writing to Provider and provide supporting evidence as we may reasonably request.

If Provider has agreed to install, patch or otherwise manage software for you in reliance on your licence with a software vendor then Customer shall have a valid and current licence agreement with the software vendor permitting Provider to perform these activities during the period of this agreement.

If any of these terms in 8. are breached then Provider may at its sole discretion:

  • revise the Commencement Date;
  • charge Customer licences costs for the use of the software;
  • suspend or terminate the Agreement.

Customer shall indemnify Provider for any costs incurred as a result of Customer use of unlicensed software.

Provider shall have no responsibility for the suitability, quality, performance or feature set of any software chosen by Customer.

8. Warranties and Liability

Provider shall indemnify Customer against any liability arising directly from a claim that the normal use of the Service infringes the Intellectual Property Rights of any third party.

The service is provided without warranty or representation not stated in this Agreement. Provider disclaims and excludes all prior warranties and representations (including any made in advertising and promotional materials).

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.

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:

  • any economic losses (including, without limitation, loss of revenues, profits, contracts, or business); or
  • any special, indirect or consequential losses or any destruction of data, arising out of or in connection with the provisions of this Agreement.

The Provider’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 remaining under this Agreement.

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.

The Customer indemnifies Provider 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 other than in accordance with the terms of this agreement.

9. Force Majeure

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.

If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.

10. Suspension & Termination

Either Party may terminate this Agreement or the Service provided under it immediately, on notice, if the other:

  • commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within 30 days of a written notice to do so;
  • commits a material breach of this Agreement which cannot be remedied;
  • is repeatedly in breach of this Agreement; or
  • 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.

Customer may terminate this agreement for convenience by paying 50% charges up to the Termination Date.

Customer may terminate this agreement for convenience if control of the Provider should change or if Paul Webb ceases to be a Director of the company.

Provider may re-assign its obligations herein with agreement of Customer such agreement not to be unreasonably withheld if the Charges and Services and Terms remain substantially unchanged.

Provider will be entitled to suspend the Service or terminate the Agreement where Provider, in its absolute discretion, believes the Customer is in material breach of any provisions of the agreement.

Provider may terminate this Agreement immediately upon written notice to the Customer if:

  • Provider is informed by the Carrier supporting the Service that the Carrier is required to cease the Service by a competent regulatory authority;
  • the Carrier supporting the Service ceases to do so for whatever reason or changes the terms its provision of telecommunications services to Provider for the Service beyond the reasonable control of Provider; or
  • 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 30 days of a request to do so.

Upon termination of this Agreement the Customer shall immediately stop using the Service and the Customer right to use the Service shall immediately terminate.

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.

11. Confidentiality

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 Provider the employees of a Provider Group Company or their suppliers, who need to know the information).

Clause 12 will not apply to:

  • any information, which has been, published other than through a breach of this Agreement;
  • information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
  • information obtained from a third party who is free to disclose it; and
  • information, which a party is, requested to disclose and, if it did not, would be required by law to do so.

This Clause 12  will remain in effect for 2 years after the termination of this Agreement.No announcement or publicity concerning this Agreement or any matter ancillary to this Agreement including the Provider’s relationship with Customer shall be made by the Provider without the prior written consent of Customer

12. Data Protection

Provider 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 Provider to process personal data in connection with the performance by Provider of its obligations under this Agreement.

The Customer agrees that Provider may put their name and other details obtained from the Order Form into a computerized directory for internal use and to enable Provider to provide the Service.

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.

All Customer specific information held in Providers own hosting centres will remain within the European Economic Area.

Provider is not responsible to Customer or any third party for unauthorised access to data or the unauthorised use of the Services other than resulting from Providers failure to comply with its Security Policy. Customer is responsible for the use of the Services by any person Customer authorises or permits to use the Services, any person given access by Customer to the Services, and any person who gains access to data or the Services as a result of Customer failure to use reasonable security precautions, even if such use was not authorised by Customer.

Provider does not have knowledge of the data stored within Customers systems, including the quantity, value or use of the data. Customer will take all reasonable steps to mitigate the risks inherent in the provision of the Services including data loss. Any Service features to protect data that Provider has agreed to provide are set out in the Services Description. Provider does not promise to back up data unless specified.

Provider does not promise to retain any data backup(s) for longer than the agreed data retention period as set out in the Service Description. In all events, you release Provider from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.

Provider has no responsibility for any data older than any complete backup set provided to Customer.

Customer will not make use of the Services to possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) any information which would breach any statutory export restrictions. Customer will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles; illegal gambling, terrorism, drugs or drugs trafficking, or arms trafficking; nor provide or permit use of the Services by any persons (including any natural person, government or private entity or company) that is located in or is a national of any country that is embargoed or highly restricted under United Kingdom rules or regulations.

13. Notices

Notices given under this Agreement must be in writing and may be delivered by hand, or by courier or first class post to the Provider address.


14. General Provisions

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.

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.

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.

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.

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.

The Customer may assign or subcontract any or all of its rights, benefits, obligations or duties without the consent of the Provider so long as the new contracting party is of the same or better financial standing as Customer.

The headings to the sections of this Agreement are for convenience only.

The Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England.