(1) Tollon Limited whose registered office is at Suite 4, Scotts Sufferance Wharf, 1 Mill Street, London, SE1 2DE ("The Company") and
(2) The Reseller ("the reseller of Tollon Limited services")
together referred to as the "Parties".
This Agreement shall be executed and in force upon The Reseller submitting an order ADSL services on or after 20th August 2004.
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
1.1 In this Agreement the following expressions shall have the following meanings unless the context otherwise requires:
| "Acceptance" | means The Company's acceptance of any given Service Order; |
| "Business Day" | means any day which is not a Saturday, a Sunday or a bank or public holiday in England and Wales; |
| "Charges" | means due to The Company by The Reseller as specified in the published price list at http://online.tollon.net; |
| "Credit Checks" | Means the Credit Checks carried out by The Company; |
| "Credit Limit" | means the financial limit placed on The Reseller's use of the Service; |
| "Reseller Equipment" | means equipment, systems, cabling and facilities provided by The Reseller (or any third party to which The Reseller resells the Service); |
| "Email" | means electronic mail sent to a recipient via the Internet; |
| "Group" | means, in relation to any company, that company and the following for the time being: its subsidiaries, and its holding companies and their subsidiaries ("holding company" and "subsidiary" as defined in s736 and 736A of the Companies Act 1995); |
| "Intellectual Property Rights" | means (i) patents, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, know-how and confidential information; (ii) all other intellectual property rights and similar or equivalent rights in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights; |
| "Initial Fees" | means with respect to the sums due under any Service Order the (1) Installation Charge and (2) Monthly Recurring Charge (3) The Company reserves the right to request 1 months security deposit for any Service Order; |
| "Provisioning Procedure" | means the procedure for the issuing of a Service Order and delivery of the Services; |
| "RFS Date" | means the date on which The Company notifies The Reseller that the individual ADSL requested under a Service Order is ready for Service by The Reseller or User; |
| "Services" | means the Asymmetric Digital Subscriber Line (ADSL) service; |
| "Service Level Agreement" | means the service levels; |
| "Service Order" | means any request for Services by The Reseller; |
| "Site(s)" | means the locations(s) at which the Service is to be provided as set out in the Service Orders; |
| "Transmission" | a signal transmitted over the The Company Network or its Suppliers; |
| "The Company Equipment" | the equipment, systems, cabling and facilities used by The Company to provide the Services pursuant to this Agreement. The The Company Equipment shall not include The Company Network; |
| "The Company Network" | means the system used for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy of (i) speech, music and other sounds, (ii) visual images signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images or (iii) signals serving for the actuation or control of machinery or apparatus which The Company utilises in the provision of the services. |
| "Users" | means the third party user to whom The Reseller resells the Services from time to time in accordance with the terms of this Agreement; |
| "VAT" | means value added tax as defined in the Value Added Tax Act 1994 and including any other tax from time to time replacing it or of a similar fiscal nature. |
| "CPE" | means Customer Premise Equipment, and refers to equipment provided by The Company located at a customer site; |
| "Customer Equipment" | means equipment, systems, cabling and facilities provided by The Reseller (or any third party to which The Reseller resells the Service); |
| "End User Access" | means an individual ADSL circuit; |
| "First Line Support" | means the facilities that end users can use to highlight and report potential Service Issues; |
| "Provisioning Procedure" | means the procedure for the issuing of a Service Order and delivery of the Services; |
| "Services" | means the range of Asymmetric Digital Subscriber Line (ADSL); |
| "Service Order" | means any request for Services by The Reseller made in accordance with the accepted procedures; |
| "USB Modem" | Universal Serial Bus Modem; |
| "RADIUS" | Is Remote Authentication Dial-IN User Services. |
| "Technical Support" | Means the provision of resources to resolve connectivity issues. |
| "Support System" | Means access to the technical support team via the Resellers online account. |
| "Online Account" | Means the customer account which is accessed via the Internet. |
1.2 The Clause headings are for convenience only and shall not affect the interpretation of this Agreement.
1.3 References to the singular include the plural and vice versa, and references to one gender shall include the other gender.
1.4 Any phrase introduced by the expressions, "including" or "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.5 Any reference to a statute, statutory provision or subordinate legislation (together " legislation ") shall (except where the context otherwise requires) (i) be deemed to include any bye-laws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that legislation and (iii) shall be construed as referring to any legislation which replaces, re-enacts, amends or consolidates such legislation (with or without modification) at any time.
1.6 Unless specifically provided to the contrary all notices under this Agreement shall be via email or the Support system as deemed appropriate.
2. The Services
2.1 Subject to the terms and conditions of this Agreement, The Company will, from the RFS Date, provide the Services to The Reseller at the Sites.
2.2 The Company may at is sole discretion provide the Services to The Reseller either directly or through a subsidiary or associated company.
2.3 Without prejudice to the other terms and conditions of this Agreement, The Reseller shall use the Services strictly in accordance with any reasonable operating instructions issued by The Company from time to time.
3. ASDL Services
3.1 The Company will provide Asymmetric Digital Subscriber Line (ADSL) services using existing BT telephone lines to provide a high-speed data connection to enable the use of authorised email services, Internet access, intra-corporate Local Area Network communication or other such service.
3.2 The Reseller shall be entitled to resell the Services to the Users in accordance with the terms and conditions of the Agreement.
3.3 The Company will provide a product portfolio including consumer and business grade connectivity options as requested by The Reseller in any given Service Order. Other service variations may be delivered upon approval by The Company.
Service will be subject to geographic availability.
3.4 The Company will provide the following:
3.4.1 Access to a method of placing Service Orders electronically
3.4.2 Provisioning of the Services;
3.4.3 Manage the RADIUS server for authentication;
3.4.4 IP Transit capacity for Internet Access;
3.4.5 Provide the IP address space and allocate IP addresses to end users; (a) These will be allocated on a dynamic basis, unless agreed with The Reseller to use Static addressing
3.4.6 Network facilities to deliver the Services;
4. Provisioning
4.1 The Company must receive Service Orders via The Resellers online account.
4.2 The Reseller will have visibility of the Service Orders submitted via an on-line tracking system.
4.2.1 The Company will progress the Service Order with any 3 rd party Telecommunications provider as necessary
4.2.2 For any additional information or technical queries customers can contact The Company Support System.
4.3 The Reseller is responsible for tracking the order through to successful deployment, and notifying the end user.
4.4 Cancellation of ADSL lines will be done through The Resellers online account.
4.4.1 The Reseller can give 1 months notice for the cancellation of any individual line after the initial 3 months minimum service.
4.5 Changes of service for individual lines, either upgrades or downgrades, shall be ordered through The Resellers online account.
5. The Reseller Responsibilities
The Reseller shall be responsible for the following items:
(a) Confirming ADSL availability
(b) Providing any CPE Router, USB modem, splitter or other terminating equipment
(c) Providing any additional mail/web space or any other such services
(d) Selling and signing up end users to the Services
(e) Providing First Line Support
(f) Managing end user billing
(g) Registering its Users
(h) Performing its own credit checks
(i) Confirming availability of the Services to the Users
(j) Recording and maintaining any User details necessary for customer relationship management
6. Service Levels
6.1 Incident Report Priority Levels: The Reseller shall notify The Company of any issues via the Support System.
6.2 Scheduled Maintenance: It may be necessary from time to time for The Company to schedule downtime for software updates or network enhancements. The Company will, where possible, give The Reseller a minimum of 48 hours advanced notice of such events, and where possible will schedule such events so as to cause minimum impact to The Reseller. For the avoidance of doubt, it may not be possible to give such notice where downtime is necessary to deal with incidents occurring in connection with the Service.
6.3 Emergency Maintenance: It may be necessary from time to time for The Company to carry out emergency maintenance to the network in order to maintain appropriate levels of service quality and to provide where possible minimum impact to The Reseller service. For such events it may not be possible for The Company to provide The Reseller with advanced notification.
6.4 Provisioning of Users: The Reseller can place orders for subscriber connections via their online account. 80% of all accepted requests will be fulfilled within 10 working days.
7. Incident Management
7.1 Incident Reporting: The Reseller shall make incident reports to The Company via the Support System and shall provide a complete description of the incident and any reasonable information requested by The Company.
7.2 Incident Response Timescales: All incidents will be acknowledged within 30 minutes and The Company use its best endeavours to resolve any incidents as quickly as possible.
7.3 Availability Levels: The Company will aim to provide a weekly average overall network availability of not less than 99.7% for all Digital Subscriber Line Access Multiplexers.
8. Service Credits
Service Credits will only apply to services were the contention ratio is 20:1 or less. The Company will consider claims for failures in The Company Network or The Company Equipment which exceed 24 hrs in duration. Credits will be limited to a maximum of 10% of the published monthly service charge of the affected adsl service(s). The Reseller can submit a maximum of 4 claims per month. Service credits are subject to The Reseller's compliance with this agreement.
9. Client Obligations
9.1 Client Contact Details: The Reseller shall promptly notify The Company of any amendments to the details provided to The Company in accordance with the foregoing that may occur during the term of the ADSL Services Contract.
The Company shall not be liable for any failure to meet the requirements of this Service Level Agreement to the extent that such failure is due to:
(a) The Reseller having failed to provide the requisite information or to update such information as required; or
(b) The Company being unable to make contact with The Reseller's nominated personnel due to such personnel being unavailable.
9.2 Management & Maintenance of The Reseller's Equipment
9.2.1 The Company shall not be liable for any failure of the Service to meet its Service Level Agreement due to items of hardware or software provided by The Reseller, and The Reseller shall be liable for the charges incurred by The Company in dealing with any problems with the Service due to any such items.
9.2.2 It is acknowledged that The Reseller may, from time to time, have difficulty in clearly identifying whether or not a problem is due to the Service, resulting in The Reseller referring to The Company an incident which should have been dealt with by The Reseller pursuant to the foregoing. The Reseller shall be liable for the charges incurred by The Company in dealing with any such incidents referred to The Company.
10. Acceptance of Service Orders
10.1 The Reseller shall place Services Orders in accordance with the Provisioning Procedure. Each Service Order shall be binding on both Parties only after The Company's Acceptance of the Service Order.
10.1.1 Prior to RFS Date, The Company reserves the right to revoke its Acceptance of any Service Order where the Services cannot be reasonably delivered to the Site in question having due regard to the any technical issues arising.
10.1.2 If after Acceptance, The Reseller cancels or amends any Service Order prior to the RFS date The Company will be entitled to pass on to The Reseller any charges for the installation or provisioning of that Service Order levied on The Company .
10.2 All Service Orders shall be for a minimum term of 3 months or as otherwise agreed by the Parties in writing.
10.3 The Company shall be entitled to reject any Service Order where:
10.3.1 The Reseller fails the Credit Checks;
10.3.2 The Reseller has provided The Company with incorrect or incomplete information necessary for registration as part of the Provisioning Process.
11. Resale of Services
11.1 The Reseller may, subject to the strict compliance with this agreement, resell the Services to end users of the service.
11.2 The Company shall deliver the Services to the Users only after The Reseller has placed a Service Order with The Company and such Service Order has been Accepted.
11.3 Where The Reseller resells the Services;
11.3.1 The Reseller shall not and shall not allow its Users to: (a) purport to act on behalf of or represent The Company; (b) except with The Company's prior written consent refer to The Company in any of its marketing or service literature; or (c) seek to resell the Service to other customers of The Company or its Group.
11.3.2 The Reseller shall enter into binding agreements with each of its Users. Each such agreement shall include a prohibition on the use of the Services by the Users no less onerous than the prohibitions and obligations imposed on The Reseller under this agreement.
12. Management of the Capacity and the Services
12.1 The Company will use its best endeavours to forecast likely capacity requirements three months in advance.
12.2 The Company may at any time make any changes to the Services supplied to The Reseller which in the reasonable opinion of The Company are necessary:
12.2.1 to comply with any applicable safety, regulatory or other statutory requirements; or
12.2.2 to preserve the integrity or avoid degradation of the The Company Network.
12.3 The Company shall use reasonable endeavours to provide The Reseller with reasonable prior notice of any changes to the Services as is practicable in the circumstances.
12.4 The Reseller shall permit The Company to use and store information relating to any Transmission or any User, without limitation, information as to origin, destination, duration, route and time, exclusively for the purpose of collating statistics there from which will be of assistance to The Company in its network and business planning, provided that The Company uses and stores such information strictly in accordance with the provisions of the Data Protection Act 1998 (the " DPA ").
13. Customer Obligations and Prohibitions
13.1 The Reseller shall not itself or knowingly allow any User to use the The Company Network to do any of the following:
13.1.1 publish, post, distribute or disseminate defamatory, infringing, obscene, indecent or other unlawful material or information;
13.1.2 threaten, harass, stalk, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
13.1.3 engage in illegal or unlawful activities through the The Company Network; 13.1.4 knowingly make available or upload files that contain software or other material, data or information not owned by or licensed to The Reseller or the User (as appropriate);
13.1.5 knowingly make available or upload files that contain a virus or corrupt data; 13.1.6 falsify the true ownership of software or other material or information contained in a file that The Reseller or any User makes available via the The Company Network; 13.1.7 "spam" or otherwise deliberately abuse any part of the The Company Network; 13.1.8 obtain access, through whatever means, to notified restricted areas of The Company's Network.
13.2 If The Reseller becomes aware that any User is using the The Company Network to perform any of the activities in breach of this agreement it shall enforce the applicable terms in its agreement with Users and shall use all best endeavours to stop such User from doing so. In the event that The Company becomes aware that a User is performing any of the activities in breach of this agreement, The Company shall bring the breach to the attention of The Reseller. If The Company have not received, within five (5) Business Days of dispatch of such a message, a satisfactory response from The Reseller detailing the actions that have been taken to stop a User or Additional performing in this way, which actions may include restricting the access of the User to the The Company Network or disconnecting the User from the The Company Network, then The Company shall have the right to restrict the access of and/or disconnect the User(s), and if necessary the entire Service, from the The Company Network. If The Company exercises its rights to disconnect a User as set out in this agreement it will notify The Reseller as soon as reasonably practicable in the circumstances and shall consult with The Reseller about the possibility of re-connecting the User in due course, but for the avoidance of doubt The Company shall not be under any obligation to reconnect any offending User.
14. Equipment
14.1 The provisions of this Clause shall only apply where the Services include The Company Equipment or require The Company to modify The Reseller Equipment and all references to The Company shall include its authorised agents and sub-contractors.
14.2 The Reseller shall grant or shall procure the grant to The Company such rights of access to each Site and shall provide to The Company such facilities and information as The Company may reasonably require enabling it to perform its obligations or exercise its rights under this Agreement.
14.3 The Reseller shall notify The Company of any existing technical or other facilities including but not limited to, water and gas which could be damaged during installation of the The Company Equipment.
14.4 The Reseller warrants that it holds and shall continue to hold such licences and/or other authorisations as are required under or by any relevant legislation, regulation or other administrative order to run and connect The Reseller Equipment to the The Company Network and The Company Equipment.
14.5 The Reseller shall at its own expense comply with The Company's reasonable instructions in relation to the modification of The Reseller Equipment to enable The Reseller to receive the Service.
14.6 The Reseller hereby grants and/or shall procure the grant to The Company of all licences, waivers, consents or registrations as may be required to deliver, install and keep installed at the Site(s) the The Company Equipment. The Company may in this regard notify The Reseller of requirements and the date by which they are required.
14.7 The Reseller warrants and undertakes that it shall:
14.7.1 house the The Company Equipment required to be housed on the Site(s) in accordance with The Company's reasonable instructions as may be given from time to time;
14.7.2 not to move, modify, relocate, or in any way interfere with the The Company Equipment or the The Company Network;
14.7.3 not cause the The Company Equipment to be repaired, serviced or otherwise attended to except by an authorised representative of The Company;
14.7.4 not to remove or tamper with any words or labels on the The Company Equipment;
14.7.5 not to create or allow any changes, liens, pledges or other encumbrances whatsoever to be created over the The Company Equipment. Title to the The Company Equipment shall at all times belong and remain with The Company;
14.7.6 use the The Company Equipment only for the purpose of receiving the Services from The Company;
14.7.7 permit The Company to inspect or test the The Company Equipment at all reasonable times;
14.7.8 upon the Termination of a Service, allow The Company to access each Site to remove the The Company Equipment.
15. Payment Terms
15.1 The Initial fees shall be invoiced and due for payment on the RFS Date. Future charges will be invoiced 28 days in advance of the next period start date.
15.2 The Company reserves the right to amend the Charges from time to time. The Company shall notify The Reseller 30 days in advance via email prior to any amendment to the Charges being implemented.
15.3 All payments under this Agreement shall be payable to The Company within seven (7) calendar days of the period start date. The Charges are exclusive of all applicable taxes, including VAT and any other duties imposed by any competent authority or government department, all of which, if any shall be assumed and paid promptly when due by The Reseller.
15.4 In addition to any other remedies available to The Company, all amounts due hereunder to The Company by The Reseller that are not paid when due shall accrue interest for the day following the day on which payment was due until paid in full. Interest shall be computed at a rate of 3% per annum above the then current base lending rate for Barclays Bank Plc.
16. Credit Limit
16.1 The Company reserves the right to carry out a credit check against The Reseller prior to Acceptance by The Company of any Service Order and up to 4 times during any calendar year of the Agreement.
16.2 The Company shall have the right to impose a Credit Limit upon The Reseller's use of the Services. The Credit Limit shall apply in respect of Services already provided to The Reseller by The Company but not invoiced.
16.3 The Company shall not be obligated to Accept any Service Order in the event that the Credit Limit is exceeded and shall be entitled to suspend this Agreement.
16.4 The Company shall use reasonable endeavours to notify The Reseller if it appears to The Company that The Reseller will imminently exceed its Credit Limit. If The Reseller exceeds the Credit Limit, The Company may require that The Reseller immediately make a payment (in a form which The Company shall reasonably require) of any amount that The Company shall require in order to reduce The Resellers aggregate liability to The Company to an amount which is less that the Credit Limit and to ensure that the Credit Limit shall not be exceeded until the following months Charges are settled.
16.5 The Company may amend the Credit Limit upon 30 days notice to The Reseller.
16.6 The Company may at its sole discretion extend The Reseller's Credit Limit upon written application of The Reseller.
17. Warranties
17.1 Each Party Warrants to the other that it:
17.1.1 has the authority and legal capacity to enter into this Agreement;
17.1.2 has obtained and will keep in force all requisite registrations under the DPA throughout the Term of this Agreement and will comply at all times with the provisions of the DPA.
17.2 The Company warrants to The Reseller that:
17.2.1 in performing its obligations under this Agreement it shall at all time exercise reasonable skill and care;
17.2.2 the provision of the Services and/or the use of the The Company Equipment shall not infringe the Intellectual Property Rights of third parties.
17.3 Except as expressly set forth in this Agreement all warranties, representations or agreements, with respect to the provision of the Service or otherwise, whether oral or in writing and whether express or implied, either by operation of law, statutory or otherwise, are hereby expressly excluded to the maximum extent permitted by law.
18. Indemnities
18.1 The Reseller shall fully indemnify and hold harmless The Company and keep it fully indemnified at all times against all losses, liabilities, costs, including legal costs (on a solicitor and client basis) and expenses arising from or in connection with any of the following:
18.1.1 claims or proceedings brought by third parties, Users against The Company or its Group in respect of, or arising directly or indirectly from the resale of the Service(s) by The Reseller; or
18.1.2 any breach by The Reseller, or Users; and
18.1.3 damage to the The Company Equipment or the The Company Network which is caused by (i) the act or omission of The Reseller, its Users; (ii) The Reseller's breach of this Agreement; or (iii) malfunction or failure of any equipment or facility provided by The Reseller or its agents, employees or suppliers, including but not limited The Reseller Equipment.
18.2 The Company shall fully indemnify and hold harmless The Reseller and keep it fully indemnified at all times against all losses, liabilities, costs, including legal costs (on a solicitor and client basis) and expenses arising from or in connection with any claim by any third party that the Services and/or the use of the Equipment infringes that third party's Intellectual Property Rights provided that The Reseller shall promptly notify The Company of such a claim and give to The Company, at The Company's sole expense, sole conduct of the defence of such claim.
19. Limitation of Liability
19.1 Except where The Reseller terminates this Agreement for The Company's material breach The Company's sole liability to The Reseller in respect of a failure of the Services shall be the Service Credits set out in this Agreement.
19.2 Neither Party shall be liable to the other under or in connection with this Agreement, whether in contract, tort (including negligence), misrepresentation (other than where made fraudulently), breach of statutory duty or otherwise for:
19.2.1 any loss of anticipated savings or goodwill;
19.2.2 any loss of contracts, business, revenue or profits;
19.2.3 any loss or corruption of data; and/or
19.2.4 for any indirect or consequential loss whatsoever incurred by either party,
whether or not the party relying was advised in advance of the possibility of any such loss.
19.3 Except in the case of The Resellers non-payment of the Charges, the total aggregate liability of either party to the other under or in connection with this Agreement shall not exceed fifty thousand pounds (£50,000) for any one event or series events.
19.4 Nothing in this Agreement shall exclude or limit either Party's liability for fraud or for death or personal injury due to its negligence to the extent that the exclusion of liability is prohibited by or unenforceable under English law.
19.5 The Company shall have no liability to The Reseller connection with this Agreement, whether in contract, tort (including negligence), misrepresentation (other than where made fraudulently), breach of statutory duty or otherwise as result of any suspension made by The Company save where the suspension is directly and wholly attributable to the negligence of The Company.
20. Advertising
The Company shall be entitled to use The Reseller's name and details and the fact of the existence of this Agreement in the normal course of its business after the Service Commencement. In relation to any promotional, databasing or advertising activities undertaken by The Company it shall not do so without obtaining The Reseller's prior written consent in respect of any such activity, such consent not to be unreasonably withheld.
21. Confidential Information
21.1 Each Party shall keep confidential all information (including the terms of this Agreement) and documentation, including without limitation information concerning the business or trade secrets, processes, know-how or methods used by the other Party in carrying on business (the " Confidential Information "), obtained from the other Party pursuant to this Agreement. In order to protect The Company's rights and interests hereunder, The Reseller may only disclose Confidential Information regarding The Company to those of its personnel who require such Confidential Information for the purpose of this Agreement. In order to protect The Resellers rights and interests hereunder, The Company may only disclose Confidential Information regarding The Reseller to those of its personnel and professional advisors who require such Confidential Information for the purpose of this Agreement. Each Party shall take the same care to avoid disclosing Confidential Information of the other Party to any third party as the receiving party takes with similar information of its own which it does not wish to disclose.
21.2 Each Party agrees that it shall not use any Confidential Information regarding the other Party for any purpose other than the performance of its respective obligations or enforcing its rights under this Agreement or as otherwise permitted hereunder, no copy or disclose any such Confidential Information to any third party without the written consent of the other Party's authorised representative. However, both Parties shall permit to disclose this Agreement to their professional advisers, agents or representatives subject to appropriate confidentially obligations.
21.3 This Clause does not apply to Confidential Information which the recipient can show to the disclosing Party's reasonable satisfaction:
21.3.1 was know to the recipient (without obligation to keep the same confidential) at the date of the disclosure;
21.3.2 is after the date of disclosure lawfully acquired by the recipient in good faith from an independent third party who is not subject to any obligation of confidentiality in respect of such Confidential Information;
21.3.3 in its entirety was at the time of disclosure or has become public knowledge otherwise than by reason of the recipient's neglect or breach of the restrictions set out in this or any other agreement; or
21.3.4 is independently developed by the recipient without access to any or all of the Confidential Information.
22. Maintenance & Technical Support
22.1 The Company undertakes to consult with The Reseller, as appropriate in the circumstances, by means of email as to the time periods for conducting routine maintenance or upgrading works to the The Company Equipment and/or the The Company Network. The Company shall use its best endeavours to carry out such routine maintenance or upgrading during such times as the User traffic over the Internet or private network (if applicable) is at its lowest.
22.2 The Company shall be free to carry out emergency or urgent maintenance to the The Company Equipment and/or the The Company Network at any time to ensure the Services are continued to be supplied. Wherever reasonably possible, any emergency or urgent maintenance will be carried out during such times as the traffic over the Internet (if applicable) is at its lowest. The Company shall advise The Reseller if practicable prior to the conducting of any such emergency or urgent maintenance, or at least as soon as practicable after the completion of the emergency or urgent maintenance.
22.3 The Company shall provide, at no extra cost to The Reseller, a technical help desk facility for The Reseller's use. For the avoidance of doubt, this technical help desk shall not be available to the Users and The Reseller shall not refer any Users to it.
23. Fault Procedure
23.1 In the event that The Reseller detects any fault which affects the Services being provided by The Company, The Reseller shall report the fault to The Company as soon as reasonably practicable after detecting the same and provide The Company with the fault in sufficient detail.
23.2 In the event that The Company detects a fault which affects its provision of the Services it will alert The Reseller Contact as soon as reasonably practicable upon detecting the same.
23.3 In the event of a fault being reported The Company undertakes to:
23.3.1 keep a record of all such reported faults; and
23.3.2 use all reasonable endeavours to remedy such reported fault within a reasonable time of said fault being so reported.
23.4 The Reseller will be responsible for charges and expenses levied on The Company by BT where The Reseller has requested an engineer to visit any Site to carry out remedial works which in the event are substantially attributable to the act or omission of The Reseller or the User.
24. Force Majeure
If the performance of either Party of any of its obligations is prevented, hindered or delayed by any circumstances beyond its reasonable control, including without limitation, any act of God, tempest, failure or shortages of power supplies, flood, lighting or fire, the act or omission of Government and regulators, highways authorities, third party telecommunications suppliers or other competent authority, military operations or riot (herein referred to as a " Force Majeure Event "), the party claiming to be affected by the Force Majeure Event shall take all reasonable steps to avoid the impact of the Force Majeure Event and shall promptly notify and advise the other Party and the parties shall forthwith meet to consider the most appropriate course of action required to be taken in the circumstances. Having done so, such party shall be excused from the performance of its obligations to the extent only that it is prevented, hindered or delayed by such circumstances and for so long as they continue. Where the Force Majeure event continues for a period of thirty (30) calendar days, the party not claiming the Force Majeure event may immediately give written notice to the other party and terminate this Agreement forthwith.
25. Duration, Termination and Suspension
25.1 Either party may terminate this Agreement by giving to the other not less than 3 months' written notice.
25.1.1 The Reseller may not submit to The Company any Service Order during the any period of notice.
25.1.2 Any outstanding Services provided under a Service Order shall continue under the terms of this Agreement (in so far as they are still applicable) until such Service Order expires.
25.2 Notwithstanding any other rights under this Agreement, either Party may terminate this Agreement forthwith in the event that: -
25.2.1 if the other holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors (including any voluntary arrangement as described in the Insolvency Act 1986); has a receiver, administrator, or other encumbrancer take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within seven (7) calendar days) upon the whole or substantially all of its assets; ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;
25.2.2 if either party commits a material breach of this Agreement and which, in the case of a breach capable of being remedied, shall not have been remedied within thirty (30) calendar days of a written request by the other party to remedy the same. 25.3 The Company may, at its sole discretion and without prejudice to any right which it might have to terminate this Agreement, elect to suspend the provision of a Service until further notice in the event that:
25.3.1 The Company is entitled to terminate in accordance with this agreement;
25.3.2 The Company has reasonable grounds to believe that the Service is being used fraudulently or illegally;
25.3.3 The Company has reasonable grounds to believe that The Reseller will not or is unable to, make any payment which is due or is to fall due to The Company under this Agreement;
25.3.4 if The Reseller exceeds the Credit Limit.
25.4 If the Service is suspended as a consequence of the breach, fault, act or omission of The Reseller or a Use, The Reseller shall pay to The Company all reasonable costs and expenses incurred by the implementation of such provision and or recommencement of the provision of Services.
26. Consequences of Termination
26.1 Subject to 18.1.2, in the event of the termination of this Agreement for whatever reason:
26.1.1 The Reseller shall cease forthwith to use the Services;
26.1.2 The Company and The Reseller shall immediately cease to use and shall delete all Confidential Information.
26.2 Upon termination of this Agreement all accrued Charges not yet invoiced shall become due immediately on receipt of an invoice or invoices.
26.3 Upon the termination of this Agreement for whatever reason, The Company shall be entitled to set off any amounts due to The Reseller or its Group under any other agreement or arrangement form the sums due to The Company under this Agreement.
26.4 Where this Agreement is terminated for any reason whatsoever, save for termination by The Company, both Parties shall do such acts and things as may be reasonably necessary to ensure the provision of internet access services to Users remain uninterrupted as far as possible, provided that The Reseller shall reimburse all reasonable costs incurred by The Company in doing such acts and things and the parties shall negotiate in good faith any further transitional arrangements necessary ensuring the minimal disruption to existing Users.
26.5 Termination of this Agreement will not affect any accrued rights or obligations of the Parties as at the date of termination
26.6 Notwithstanding the termination of this Agreement the interpretation or enforcement of this Agreement shall continue in full force.
26.7 In consideration of the rights and obligations contained in this Agreement, if this Agreement is terminated due to the default of The Reseller, The Company shall be entitled to require, but not be obligated, to migrate all or any Users so that the Services provided by The Reseller will be provided directly by The Company. The Reseller shall also transfer to The Company any database of the Users and together with any domain names used to trade or market the Services to the Users. The Reseller will provide The Company will all necessary assistance to achieve any such migration and shall execute any documents which are necessary to this end.
27. Intellectual Property
27.1 All Intellectual Property Rights in the Services and the The Company Equipment shall be owned by The Company or its Group save to the extent that any of the same contain Intellectual Property Rights owned by third parties.
27.2 The Company grants to The Reseller a non-exclusive, royalty free, licence to use The Company's Intellectual Property Rights within the United Kingdom, for the purpose of receiving the Services in accordance with the terms of this Agreement and any usage guidelines that The Company may provide from time to time.
27.3 The Reseller grants to The Company and its Group a non-exclusive, royalty free, licence to use, copy and interface with any Intellectual Property Rights within the United Kingdom in any Customer Equipment and the information and data in the Services for the purpose of performing The Company's obligations under this Agreement.
27.4 The Reseller shall not be entitled to use the name, trade mark, trade name, or other proprietary identifying marks or symbols of The Company or its Group without The Company's written consent.
27.5 In the event that Services and The Company Equipment contain Intellectual Property Rights owned by third parties which The Company is not entitled to sub-licence to The Reseller, The Company will assist The Reseller in obtaining a licence to use those Intellectual Property Rights owned by third parties on terms that are acceptable to The Reseller.
27.6 In the event that The Reseller Equipment contains Intellectual Property Rights owned by third parties which The Reseller is not entitled to sub-licence to The Company, The Reseller will assist The Company in obtaining a licence to use those Intellectual Property Rights owned by third parties on terms that are acceptable to The Reseller.
27.7 The Reseller shall not, and shall procure that its personnel and, where used, its sub-contractors and their personnel do not, do anything (whether by omission or commission) during this Agreement or at any time thereafter to affect or imperil the validity of any Intellectual Property Rights belonging to The Company.
27.8 The Reseller shall not obtain any rights in respect of any of The Company's Intellectual Property Rights by virtue of this Agreement.
28. Assignment
28.1 This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party provided always that The Company may assign this Agreement to any member of its Group.
28.2 The provisions of this Agreement shall insure to the benefit of, and be binding upon, any successor in the interest of The Company, whether by merger, consolidating, transfer or all or substantially all of its assets or otherwise .
29. Notices
All notices, requests, or other communications hereunder shall be via The Company's Support System. In the interest of greater confidentiality then the use of the postal system or fax is acceptable.
29.1 Notices mailed by registered or certified mail shall be conclusively deemed to have been received by the addressee when delivered. Notices sent by telex or fax shall be conclusively deemed to have been received by the addressee upon confirmation of receipt if followed by first class mail, postage prepaid.
29.2 If either Party wishes to alter the recipient or address to which communications to it are sent, it may do so by updating the information via their online account.
30. General Provisions
30.1 Nothing in this Agreement shall be deemed to constitute a partnership, or create a relationship of principal and agent for any purpose between the parties.
30.2 No variation of this Agreement shall be effective unless made in writing and signed by or on behalf of a duly authorised representative of each of the parties.
30.3 This Agreement constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, undertakings, arrangements, understandings or statements of any nature made by the Parties, whether oral or written, with respect to such subject matter.
30.4 Each party acknowledges that it has not relied on any statements, warranties or representations given or made by any other party under or in connection with this Agreement. Each party further acknowledges that it shall have no rights or remedies with respect to such subject matter other than under this Agreement.
30.5 Nothing in this Agreement excludes or restricts the liability of either party for fraud or fraudulent misrepresentation.
30.6 No waiver by either party of any breach of any provision of this Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
30.7 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
30.8 This Agreement shall be governed by English law and both parties agree to submit to the exclusive jurisdiction of the English courts.
30.9 The Reseller shall not approach any The Company employee regarding employment, or employ any The Company employee, during the period of this Agreement or for 12 months after the Agreement is terminated.
30.10 This Agreement does not create any rights under the Contracts (Rights of Third Parties) Act 1999 which are enforceable by any person who is not a party to it.
30.11 This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original but all the counterparts together shall constitute one and the same document.