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Clearstream Standard Terms and Conditions – 2017

This Agreement defines the terms of provision of Services to the Customer by Clearstream.

1. Definitions

"Acceptable Use Policy" means the policy set out in Schedule 4 (Acceptable Use Policy), including any variations to that policy notified by Clearstream to the Customer from time to time;
"Agreement" means this document, including these general terms and conditions of supply and the preceding schedules.
"Business Day" means Monday to Friday excluding public holidays in England and/or Wales.
"Business Hours" means 9:00am to 5:00pm GMT/BST on a Business Day.
"Call" means an issue relating to the Services that is logged by the Customer in accordance with Schedule 3 (Service Levels).
"Carrier" means any third party that provides or enables the provision of telecommunications and/or connectivity services, where those services are provided by Clearstream to the Customer, or where the provision of the Services is dependent upon those services.
"Charges" means the amounts to be paid by the Customer and defined in Schedule 2 (Costs and Charges) or elsewhere in this Agreement, or agreed in writing by the parties.
"Charging Period" means the period with respect to which recurring Charges are levied, as specified in Schedule 2 (Costs and Charges).
"Clearstream" means Clearstream Cloud Centres of Station Road, Church Village, Rhondda Cynon Taff CF38 1AF.
"Clearstream Equipment" means any equipment apparatus or device whether hardware or software which is used in or conjunction with the Services and is owned or supplied by Clearstream or a Carrier.
"Clearstream Policies" means Clearstream's policies and procedures relating to the provision and use of the Services, including the Clearstream Security Policy.
"Clearstream Security Policy" means Clearstream's policies and procedures relating to the secure provision and use of the Services.
"Commencement Date" means the date when Clearstream is ready to supply the Services.
"Customer Equipment" means any equipment, apparatus or device whether hardware or software which is used in conjunction with the Services and is not Clearstream Equipment.
"Customer Representative" means a person identified as such in the Schedules to this Agreement.
“Data Protection Laws” means the current Information Commissioners Office guidelines for the use of personal data.
"Extension Period" has the meaning given to it in Section 3.
"Initial Period" means the period defined in "Schedule 2 (Costs and Charges)" beginning on the Commencement Date.
"Order Date" means the date of the signing, electronic signing or other formal acceptance of this Agreement by the second of the parties to accept.
"Scheduled Maintenance" means scheduled maintenance work performed by Clearstream in accordance with the Service Level Targets.
"Service Credit" means a value to be offset against future Charges.
"Services Description" means the contents of Schedule 1 (Services Description), subject to any changes to the Services agreed in writing by the parties.
"Service Level Target" means a target identified as such in Schedule 3 (Service Levels).
"Services" means the services described in the Services Description.
"Support Hours" has the meaning given to it in Schedule 3 (Service Levels).
"Term" means the term of this Agreement.

2. Contractual Terms

Any orders placed by the Customer for any services shall be governed by this Agreement and not by Customer purchase order terms and conditions or other legal documentation produced or supplied by the Customer.

3. Duration

This Agreement will be effective from the Order Date.

The Agreement will continue until the end of the Initial Period and, at the end of the Initial Period, this Agreement will automatically renew for a further 12 month period (an "Extension Period"); and at the end of each Extension period, the Agreement will automatically renew for a further 12 month Extension Period.

Either party may terminate this Agreement by giving to the other party at least 90 days' written notice of termination expiring at the end of the Initial Period or an Extension Period.

4. Clearstream's Obligations

The Services shall be provided according to the Services Description and Schedule 3 (Service Levels).

Clearstream shall use reasonable endeavours to begin the Services on or before any date agreed in writing. Nonetheless, any installation date or other Services start date is an estimate only and Clearstream shall not be liable for any failure to meet such installation date.

Clearstream shall use reasonable efforts to provide the Services in accordance with the Services Description and the Service Level Targets.

Where Services availability does not meet or exceed any Service Level Target, and the Customer notifies Clearstream of the failure within 30 days following the end of the Charging Period to which the failure relates, Service Credits will be granted in accordance with Schedule 3 (Service Levels).

Clearstream shall maintain the Clearstream Equipment to a reasonable standard during the Term.

Clearstream undertakes to:

not allow the Customer Equipment to be accessed other than by authorised representatives of the Customer, except to the extent required by law or in the case of an emergency;
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 the Customer; and
provide Customer representatives with access to Customer Equipment at the hosting locations, subject to the Clearstream Security Policy and in accordance with the Services Description.

5. Customer's Obligations

The 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 applicable law and the Customer's requirements.

The Customer must comply with the Clearstream Policies and Procedures, which shall be provided by Clearstream to the Customer, and may be updated by Clearstream giving written notice of the update to the Customer.

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

Following installation of Clearstream Equipment at the Customer's premises, the Customer is responsible for ensuring that Clearstream Equipment is not interfered with. The Customer will be liable for any loss of or damage to Clearstream Equipment not caused by Clearstream, except for fair wear and tear.

Any Customer Equipment connected to or used with the Services must be connected and used in accordance with any instructions, safety and security procedures applicable to the use of that equipment. Any Customer Equipment which is attached (directly or indirectly) to the Services must be technically compatible with the Services and approved for that purpose under any relevant legislation or telecommunications industry standards.

The Customer will co-operate with Clearstream's reasonable requests for information regarding the Customer use of the Services and will supply such information without delay.

The Customer hereby irrevocably gives permission to Clearstream or the Carrier and its employees, agents or contractors to execute any works required for the installation, maintenance, or removal of Clearstream Equipment (including at the Customer's premises).

The Customer undertakes:

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

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

modify the Services without Clearstream's prior written consent;
copy any content from the Services (or any part thereof);
disclose details of the Services to any third party without Clearstream's prior written consent;
use the Services except in accordance with the Clearstream Policies.

The Customer must not sub-license, resell or redistribute the Services, except to the extent expressly permitted by any reseller agreement in force between the Customer and Clearstream.

The Customer must not use the Services other than in accordance with the Acceptable Use Policy.

The Customer agrees to comply with any end user licence agreements for any software or hardware provided with the Services. Copies of such agreements are available on request. Use of Services may be subject to Customer expressly accepting such agreements on an individual basis.

The Customer acknowledges that Services may only be varied by written agreement of the parties, and that Clearstream will usually require at least 30 days' advanced written notice of any such variations.

6. Charges

The Charges will be calculated and charged in accordance with Schedule 2 (Costs and Charges). Any recurring Charges will begin on the Commencement Date.

The Customer will pay the Charges in accordance with Schedule 2 (Costs and Charges) or, if that Schedule does not specify the date of payment, within 30 days following the date of issue of Clearstream's invoice.

Installation Charges are non-refundable.

Service Credits granted by Clearstream will reduce charges accordingly in the next Charging Period, or if remaining outstanding following termination of the Agreement, will be paid within 30 days following termination. The payment of such Service Credits shall discharge Clearstream's entire liability to the Customer under this Agreement with respect to the failure, subject to the first paragraph of Section 11.

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

Clearstream may charge daily interest on late payments at a rate equal to 5% per annum above the Bank of England base rate, compounded at the end of each month.

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

Clearstream 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 Clearstream to deliver the Services;
Clearstream or a Carrier work outside of Business Hours at the Customer's request to supply Services;
a fault with respect to which Services are provided relates to equipment other than Clearstream Equipment;
the Customer requests a change to the Services.

7. Support of the Services

Clearstream shall use its reasonable endeavours to support and maintain the Services in accordance with Schedule 3 (Service Levels).

Clearstream shall ensure that security products within the Services shall be configured in accordance with the Clearstream Security Policy.

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. Additional changes maybe chargeable.

8. Intellectual Property Rights

The Customer acknowledges that the Customer shall have no rights in relation to any intellectual property rights in the Services or arising out of the provision of the Services. All such intellectual property rights shall be and remain the sole property of Clearstream or Clearstream's licensors.

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

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

The 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 the Customer's use under a subscriber access licence or "SAL" or an "anonymous" licence as indicated in the Services Description.

Customer will ensure that any software used on, through or on connection with the Services is licensed by the appropriate vendor. On request Customer will certify such compliance in writing to Clearstream and provide such supporting evidence as Clearstream may reasonably request.

If Clearstream has agreed to install, patch or otherwise manage software for the Customer in reliance on the Customer's licence with a software vendor then the Customer must have a valid and current licence agreement with the software vendor permitting Clearstream to perform these activities.

If any provision of this Section 8 is breached by the Customer, Clearstream may at its sole discretion:

revise the Commencement Date;
charge Customer licences costs for the use of the software; and/or
suspend the Services and/or terminate this Agreement.

9. Warranties

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

10. Indemnities

Clearstream shall indemnify the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses) suffered or incurred by the Customer and arising directly from a claim that the normal use of the Services by the Customer in accordance with this Agreement infringes the Intellectual Property Rights of any third party.

The Customer shall indemnify Clearstream and any Carrier against any and all liabilities, damages, losses, costs and expenses (including legal expenses) suffered or incurred by the Clearstream or the Carrier and arising from: (a) any Customer use of unlicensed software; (b) any information, data or material produced, transmitted or downloaded on the Services; and (c) the Customer's access to or use of the Services generally.

Any liability of a party under any of the indemnities in this Section 10 shall not be subject to the limitations and exclusions of liability set out in Section 11, except that the liability cap in the final paragraph of Section 11 shall apply.

11. Limitations and Exclusions of Liability

Nothing in this Agreement will: (a) limit or exclude any liability for death or personal injury resulting from negligence; (b) limit or exclude any liability for fraud or fraudulent misrepresentation; (c) limit any liabilities in any way that is not permitted under applicable law; or (d) exclude any liabilities that may not be excluded under applicable law.

The limitations and exclusions of liability set out in this Section 9 and elsewhere in this Agreement: (a) are subject to the first paragraph of this Section 9; and (b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

Neither party shall be liable to the other party in respect of any loss of revenue or income.

Neither party shall be liable to the other party in respect of any loss of use or production.

Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this paragraph shall not protect Clearstream unless Clearstream has fully complied with its obligations under Sections 12, 13 and 14.

Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

The liability of each party to the other under this Agreement in respect of any event or series of related events shall not exceed the greater of: (a) £10,000; and (b) the total amount paid and payable by Customer to Clearstream under this Agreement in the 12 month period preceding the commencement of the event or events.

The aggregate liability of each party to the other party under this Agreement shall not exceed £1,000,000.

12. Force Majeure

If either party is unable to perform any obligation (excluding payment obligations) 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.

13. Suspension and Termination

Clearstream will be entitled to suspend the Services where Clearstream, in its absolute discretion, believes the Customer is in material breach of any provisions of this Agreement.

Either party may terminate this Agreement or the Services provided under it immediately, on notice, if the other: (a) 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; (b) commits a material breach of this Agreement which cannot be remedied; (c) is repeatedly in breach of this Agreement; or (d) 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 or compulsory liquidation, or a receiver or administrator is appointed over their assets.

Clearstream may terminate this Agreement immediately upon written notice to the Customer if: (a) Clearstream is informed by the Carrier supporting the Services that the Carrier is required to cease the Services by a competent regulatory authority; (b) the Carrier supporting the Services ceases to do so for whatever reason or changes the terms its provision of telecommunications services to Clearstream for the Services beyond the reasonable control of Clearstream; or (c) 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 Services and the Customer right to use the Services shall immediately terminate.

14. Confidentiality

Each party must: (a) keep the other party's Confidential Information strictly confidential; (b) not disclose the other party's Confidential Information to any person without the other party's prior written consent, and then only under conditions of confidentiality approved in writing by the other party; (c) use the same degree of care to protect the confidentiality of the other party's Confidential Information as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and (d) act in good faith at all times in relation to the other party's Confidential.

Notwithstanding the preceding paragraph of this Section 14, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

No obligations are imposed by this Section 14 with respect to a party's Confidential Information if that Confidential Information: (a) is known to the other party before disclosure under this Agreement and is not subject to any other obligation of confidentiality; (b) is or becomes publicly known through no act or default of the other party; or (c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

The restrictions in this Section 14 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

The provisions of this Section 14 shall continue in force indefinitely following the termination of this Agreement.

15. Personal data

Clearstream and Customer each agree to comply with their respective obligations under the Data Protection Laws and to maintain all relevant registrations and consents, including (in relation to Customer) such registrations and consents as Customer should obtain and maintain to enable Clearstream to process the Customer Personal Data in connection with the performance by Clearstream of its obligations under this Agreement.

Customer shall only supply to Clearstream, and Clearstream shall only process, in each case under or in relation to this Agreement, the Personal Data of falling within the categories, and for the purposes, specified in Schedule 5 (Data Processing Information).

Clearstream shall only process Customer Personal Data during the Term and for not more than 14 days following the end of the Term.

Clearstream shall only process Customer Personal Data on the documented instructions of Customer (including with regard to transfers of Customer Personal Data to any place outside the European Economic Area), as set out in this Agreement or any other document agreed by the parties in writing.

Notwithstanding any other provision of this Agreement, Clearstream may process Customer Personal Data if and to the extent that Clearstream is required to do so by applicable law. In such a case, Clearstream shall inform Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

Clearstream shall ensure that persons authorised to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

Clearstream and Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for Customer Personal Data, including those measures specified in Schedule 5 (Data Processing Information).

Clearstream must not engage any third party to process Customer Personal Data without the prior specific or general written authorisation of Customer. Clearstream is hereby authorised by Customer, as at the Effective Date, to engage those third parties identified in, or falling within the processor categories specified in, Schedule 5 (Data Processing Information) to process Customer Personal Data. In the case of a general written authorisation, Clearstream shall inform Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, giving the Customer the opportunity to object to such changes. Clearstream shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on Clearstream by this Section 15.

Clearstream shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist Customer with the fulfilment of Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.

Clearstream shall assist Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.

Clearstream shall make available to Customer all information necessary to demonstrate the compliance of Clearstream with its obligations under the Data Protection Laws.

Clearstream shall, at the choice of Customer, delete or return all of Customer Personal Data to Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

Clearstream shall allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer in respect of the compliance of Clearstream's processing of Customer Personal Data with the Data Protection Laws and this Section 15.

If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

16. Customer data

Clearstream 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: (a) a breach of this Agreement by Clearstream; or (b) Clearstream's failure to comply with the Clearstream Security Policy.

Customer is responsible for the use of the Services by: (a) any person Customer authorises or permits to use the Services; (b) any person given access by Customer to the Services; and (c) any person who gains access to data or the Services as a result of Customer failure to use reasonable security precautions or comply with the Clearstream Security Policy, even if such use was not authorised by Customer.

Clearstream does not have knowledge of the data stored within the Customer's 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 Services features to protect data that Clearstream has agreed to provide are set out in the Services Description. Clearstream does not promise to back up data unless specified otherwise in the Services Description.

Clearstream does not promise to retain any data backup(s) for longer than the agreed data retention period as set out in the Services Description. Subject to the first paragraph of Section 11, you release Clearstream 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.

If Clearstream provides a complete backup of the Customer's data to the Customer at any time during the Term, Clearstream shall have no responsibility for any data older than the backup data, and subject to the first paragraph of Section 11 shall not be liable to the Customer in respect of any loss or corruption of such older data.

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 any applicable laws, rules or regulations.

17. Notices

Notices given under this Agreement must be in writing and may be delivered by email, hand, courier or first class post to Clearstream's or Customer's email or postal address specified on the first page of this Agreement. A party receiving a notice by email must send and acknowledgement of receipt of that notice to the other party within 2 Business Days following such receipt.

18. General Provisions

Subject to any express restrictions elsewhere in this Agreement, Clearstream may subcontract any of its obligations under this Agreement. Clearstream shall remain responsible to the Customer for the performance of any subcontracted obligations.

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.

All changes to the Services will be subject to the change control procedure set out in the Clearstream Policies. Subject to this, this Agreement may not be varied except by means of a written document signed by or on behalf of each party.

This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party; and the exercise of the parties' rights under this Agreement is not subject to the consent of any third party.

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.

If either party delays in acting upon a breach of this Agreement that delay will not be regarded as a waiver of that breach. 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.

Clearstream may assign the entirety of its contractual rights and obligations under the Agreement to any member of Clearstream's group of companies or to any successor to all or a substantial part of the business of Clearstream from time to time. Subject to this, neither party may assign, transfer or otherwise deal with that party's contractual rights and obligations under this Agreement without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed.

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.