Terms and conditions
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Section A - Telephony Service Provision
1. DEFINITIONS AND INTERPRETATION
1.1. In this agreement the following terms and phrases shall have the following meaning, unless the context otherwise requires: “Agreement” shall mean, as between the Rosecom Ltd Signatory and Customer Signatory, this Retail Communication Services Agreement, and, as between Rosecom Ltd and Customer for a Service, the relevant Service Order(s) incorporating the terms of this Retail Communication Services Agreement. “Business Day” shall mean, in respect of a Service, every day excluding Saturdays, Sundays and any national holidays in the jurisdiction where the Service is provided. “Call Charges” shall mean the charges for switched telecommunications services payable in accordance with Clause 4. “Charges” shall mean Call Charges/Usage Charges and/or Installation Charge/Start Up Charge and/or Rental Charges/Monthly Fees and any other charges or fees payable by the Customer to Rosecom Ltd in respect of a Service, as set out or referred to in a Service Order and revised from time to time in accordance with Clause 4.3 and/or Clause 4.10 and/or Clause 4.14.1. “Confidential Information” shall mean all information (in whatever format) which: (i) relates to the Agreement; (ii) is designated as confidential by either Party; or (iii) relates to the business, affairs, networks, customers, products, developments, trade secrets, know-how and personnel of either Party (including, in the case of the Customer, Customer Data) and which may reasonably be regarded as the confidential information of the disclosing Party. “Customer” shall mean, for a Service, jointly and severally, the Customer Signatory and the Customer Affiliate that delivers a signed Service Order to Rosecom Ltd pursuant to Clause 2.1. “Customer Affiliate” shall mean: (i) any entity or person wholly owned, whether directly or indirectly, by the Customer Signatory as at the date of this Agreement; or (ii) any other entity or person as agreed by the Parties from time to time. “Customer Signatory” shall mean the Body Corporate signing this agreement. “Customer Data” shall include, but not be limited to, data transmissions (including the originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions, and other data necessary for the establishment, billing or maintenance of the transmission), data containing personal and/or private information of the Customer, its employees or authorised users of the Services, and other data provided to or obtained by Rosecom Ltd, Rosecom Ltd Affiliates and their respective agents in connection with the provision of Services. “Regulated Customer Data” is that Customer Data whose use, processing or transfer is regulated by law or regulation as “personal data” where Rosecom Ltd, its Rosecom Ltd Affiliates or their respective agents come into possession of such Customer Data. “Customer Equipment” shall mean hardware, software, systems, cabling and facilities provided by the Customer (or any third party to which the Customer resells the service) and used in conjunction with the Service Equipment in order to receive the Service. “Customer Site” shall mean a site or sites specified in a Service Order and/or any third party termination point, at which a Service is to be provided. “Emergency Works” means works, the execution of which, at the time it is proposed to execute them, is required to put an end to, or prevent, the arising of circumstances then existing or imminent that are likely to cause: (i) danger to persons or property; (ii) the interruption of any service provided by the Network or the network generated by a third party; (iii) substantial loss to Rosecom Ltd or any third party; and such other works as in all the circumstances it is reasonable to execute with those works. “Force Majeure Event” shall mean any cause beyond a Party’s reasonable control affecting the performance of its obligations, including, but not limited to, fire, flood, explosion, accident, war, acts of terrorism, strike, embargo, governmental requirement, civil or military authority, Act of God, changes to laws or regulations, inability to secure materials or services, industrial disputes and acts or omissions of other providers of telecommunications services. “Rosecom Ltd” shall mean, in respect of a Service, the Rosecom Ltd Signatory or Rosecom Ltd Affiliate providing the Service under the Service Order. “Rosecom Ltd Affiliate” shall mean any entity or person controlled by, controlling, or under common control with Rosecom Ltd, including, if different, the Rosecom Ltd Signatory. “Installation Charge” or “Start Up Charge” shall mean the one time charge for installation of a Service (including installation of any Service Equipment) payable in accordance with Clause 4. “Internet” shall mean the international interconnected network of networks using the TCP/IP protocol to exchange data communications. “Internet Service” shall mean a service providing access to the Internet together with any related Service Equipment or support services, and as more particularly described in the relevant Service Order. “IP Network” shall mean the points of presence, network hubs, and host computers owned, operated or used by Rosecom Ltd or Rosecom Ltd Affiliate in connection with the provision of an Internet Service. “Network” shall mean the Telecommunications Network and the IP Network. “Party” shall mean, in respect of a Service, each of Rosecom Ltd and the Customer, and “Parties” shall be construed accordingly. “Ready for Service Notification” shall mean a notification that may be provided in accordance with Clause 3.1 that, with respect to Rosecom Ltd obligations hereunder, the Service is ready for use. “Rental Charge” or “Monthly Fee” shall mean the monthly rental charge for a Service payable in accordance with Clause 4. “Service” shall mean the specific telecommunications service or Internet Service provided by Rosecom Ltd to the Customer, and as may be further described in the relevant Service Order. “Service Activation Date” or “Acceptance Date” shall mean, in relation to a Service, the date a Customer accepts or is deemed to accept a Service in accordance with Clause 3.2. “Service Equipment” shall mean the hardware, software, systems, cabling, and facilities provided by Rosecom Ltd at the Customer Site in order to make available the Service to the Customer (or any third party to which the Customer resells the service). Service Equipment shall not include the Network or any hardware or software which is the subject of a separate supply contract between Rosecom Ltd or Rosecom Ltd Affiliate and the Customer. “Service Order” shall mean a request for a specific Service delivered by the Customer to Rosecom Ltd and accepted by Rosecom Ltd in accordance with Clauses 2.1 and 2.2. “Service Term” in relation to a Service, shall mean the total period for which the Service is provided pursuant to a Service Order. The “Initial Service Term” shall mean the (initial) service term from the Service Activation Date or Acceptance Date as stated on the Service Order or, if not stated, one year from the Service Activation Date or Acceptance Date. “Telecommunications Network” shall mean the telecommunication system(s) that are owned, operated or used by Rosecom Ltd or an Rosecom Ltd Affiliate from time to time. “Usage Charges” shall mean the usage-based charges for Internet Services payable in accordance with Clause 4. 1.2. Unless the context otherwise requires, in this Agreement, a reference to: 1.3. a person includes a reference to a body corporate, association or partnership; 1.4. a person includes a reference to that person’s legal personal representatives, successors and permitted assigns 1.5. any statute or statutory provision includes references to that statute or provision as amended, modified or re-enacted; and 1.6. a document is a reference to that document as supplemented or varied from time to time. 2. SERVICE 2.1. The Customer may from time to time deliver to Rosecom Ltd a Service Order on the terms of this Agreement. A Service Order shall be in such form as is notified to the Customer from time to time by Rosecom Ltd and/or as Rosecom Ltd may in its sole discretion accept. 2.2. A Service Order shall be binding on both Parties only after it is accepted by Rosecom Ltd in written form, such acceptance to include the carrying out to Rosecom Ltd’s satisfaction of appropriate credit checks against the Customer in accordance with Clause 4.11. Each Service Order issued and accepted pursuant to the terms of this Agreement shall create an individual contractual relationship between the Parties to provide and receive the Service for the Service Term. That contractual relationship shall be governed by this Agreement, together with the relevant Service Order and any specific terms contained in such Service Orders, to which terms the Parties to such Service Order agree. In addition to these terms, the Services shall be subject to all mandatory legal requirements in the jurisdiction where the Service is to be provided, including but not limited to the regulatory and data protection requirements in the respective countries. In the event of any conflict between the terms of an Rosecom Ltd Service Order and the terms of this Agreement, the terms of the Service Order shall take precedence. 2.3. Without releasing it from any of its obligations, Rosecom Ltd shall be entitled at any time, and without notice, to use Rosecom Ltd Affiliates and/or subcontractors to perform some or all of such obligations, on the condition that doing so will not materially detract from the quality of the service. 2.4. The terms and conditions of this Agreement and the Charges for a Service provided hereunder are agreed expressly on the condition that the Customer shall not resell, charge, transfer or otherwise dispose of the Service (or any part thereof) to any third party. 2.5. Rosecom Ltd reserves the right from time to time to change the configuration of the Network or the Service Equipment, or to change any applicable access code for receipt of a Service, provided always that such change does not materially affect the relevant Service. Rosecom Ltd shall use reasonable endeavours to give the Customer a minimum of twenty-five (25) Business Days’ notice of any such changes to access codes. 3. SERVICE ACTIVATION 3.1. Prior to the provision of the Service, Rosecom Ltd shall conduct such tests as it considers to be appropriate to determine that all necessary work has been done to provide the Service to the Customer and, upon successful completion of such tests, Rosecom Ltd shall use reasonable endeavours to deliver a Ready for Service Notification to the Customer. 3.2. The Customer shall be deemed to have accepted the Service either (i) upon the date of delivery of the relevant Ready for Service Notification or, (ii) if earlier, or where no Ready for Service Notification is received by the Customer, upon the date the Customer first uses the Service. Such date for a particular Service may be further described and defined in the relevant Service Order. If the Customer feels that the service has not been correctly put into service, it may dispute the ready for service date in accordance with Clause 17. 4. CHARGES AND PAYMENT TERMS 4.1. The Customer shall pay the Charges in accordance with this Clause 4. 4.2. Subject to the provisions of Clauses 4.3, 4.10 and 4.11, the Charges shall not be increased during the Initial Service Term. 4.3. Rosecom Ltd shall be entitled to amend (i) Usage Charges and/or Rental Charges/Monthly Fees on thirty (30) Business Days’ notice and (ii) Call charges on seven (7) days notice and in the case of all Charges except Call Charges, such notice shall only take effect on or at any time after the expiry of the relevant Initial Service Term. 4.4. Call Charges and/or Usage Charges shall accrue from the date on which the Customer commences use of the Service and may be invoiced by Rosecom Ltd monthly in arrears. 4.5. Installation Charges and/or Start-up Charges shall accrue on the relevant Service Activation Date or Acceptance Date and may be invoiced by Rosecom Ltd on or before that time. 4.6. Rental Charges and/or Monthly Fees shall accrue from the relevant Service Activation Date or Acceptance Date and may be invoiced by Rosecom Ltd monthly in advance. Service provided for part of a month will be charged on a pro-rata basis. 4.7. Any invoice for Charges shall be due on issue of the invoice and shall be paid by the Customer within thirty (30) days of the date of the invoice. 4.8. Interest shall accrue on any overdue amounts of a properly due invoice from the due date until payment (whether before or after judgment) at the annual rate of five (5) percent above the base lending rate from time to time of HSBC plc. 4.9. All Charges or other sums which may from time to time be due, owing or incurred to Rosecom Ltd are stated exclusive of value added tax and any similar sales tax, levy or duty which shall be payable by the Customer and invoiced by Rosecom Ltd at the then prevailing rate where the Service is provided. 4.10. The Customer agrees to comply with any obligation as to minimum usage and/or minimum payment as may be set out in the relevant Service Order, except to any extent that any non-compliance in this respect is the direct result of Rosecom Ltd’s negligence or breach of this Agreement. The Customer also agrees to comply with any Initial Service Term commitment. Any breach by the Customer of its obligations under this Clause 4.10 shall, in addition to constituting a material breach of this Agreement, entitle Rosecom Ltd to: 4.10.1. in the case of a minimum usage or payment commitment, increase to no more than the then prevailing Rosecom Ltd base rate, the Charges for the relevant Service with effect from the commencement of the period to which the breach relates; or 4.10.2. in the case of early termination of a Service (or part of a Service) any time from acceptance of a Service Order by Rosecom Ltd to the expiry of the Initial Service Term, levy an early termination charge upon the Customer (which the Customer hereby acknowledges to be reasonable and a genuine pre-estimate of Rosecom Ltd’s loss) equal to: (i) 100% (one hundred percent) of the remaining Rental Charges or Monthly Fees (not including any part relating to payment for local access circuits) payable by Customer for the unexpired portion of the Initial Service Term; and (ii) any termination charges or other costs or expenses incurred by Rosecom Ltd or a Rosecom Ltd Affiliate for the cancellation of the local access circuits or related services or equipment provided to Rosecom Ltd in connection with the Service. 4.11. Rosecom Ltd reserves the right to carry out an Equifax credit check against the Customer prior to the acceptance by Rosecom Ltd of any Service Order in accordance with Clause 2.2 and if such credit check shows that the Customer has an insufficient credit limit for the committed business, Rosecom Ltd may request from the Customer a cash deposit or bank guarantee in a form to be approved by Rosecom Ltd and issued by a bank acceptable to it or such other form of security as Rosecom Ltd may at its sole discretion request, provided that the total amount of any cash deposit or bank guarantee shall not exceed the total Charges which Rosecom Ltd might reasonably expect the Customer to incur during any twelve (12) month period. 4.12. If the unpaid Charges incurred by the Customer (including Charges which have accrued but have not yet been invoiced) shall at any time exceed the amount of any initial deposit or bank guarantee provided by the Customer to Rosecom Ltd in accordance with this Clause 4, Rosecom Ltd may request an additional amount by way of cash deposit or bank guarantee, acceptable to Rosecom Ltd, or such other form of security as Rosecom Ltd at its sole discretion may request, provided that the total amount of any cash deposit or bank guarantee shall not exceed the total Charges which Rosecom Ltd might reasonably expect the Customer to incur during any twelve (12) month period. 4.13. The Customer acknowledges that any failure by it to comply with any request made by Rosecom Ltd under Clauses 4.11, 4.12 or 4.15 shall constitute a material breach of this Agreement which is not capable of remedy. 4.14. If the Customer fails to make payment in accordance with Clause 4.7 of properly due invoices delivered to it under either Clauses 4.4, 4.5 or 4.6, Rosecom Ltd shall be entitled in addition to any remedy which it might have under this Agreement or otherwise at law: 4.14.1. where applicable in respect of any Service forthwith to increase the Charges to the prevailing Rosecom Ltd standard retail rate for such Service; 4.14.2. to set off any sums owing to it against any cash deposit or bank guarantee provided to Rosecom Ltd in accordance with this Clause 4; 4.14.3. to terminate this Agreement in accordance with Clause 7.7. 4.15. If Rosecom Ltd is entitled to suspend a Service under Clause 6.1.5 then, without prejudice to Rosecom Ltd’s rights under Clause 6.1, Rosecom Ltd may request from the Customer a cash deposit or bank guarantee in an amount not exceeding the total Charges which Rosecom Ltd might reasonably expect the Customer to incur during any twelve (12) month period or such other form of security as Rosecom Ltd may request at its sole discretion. 4.16. Title to all equipment provided to the Customer shall remain with Rosecom Ltd until payment has been made in full for all charges related to that equipment and any associated Service Installation and/or Start-up charges. 5. SERVICE PERFORMANCE 5.1. In performing its obligations under this Agreement, Rosecom Ltd shall at all times exercise the reasonable skill and care of a competent public telecommunications operator or a provider of Internet related services, as the case may be. 5.2. Rosecom Ltd shall use reasonable endeavours to ensure that each Service will conform to any service descriptions and/or service levels as set out, or referred to, in the applicable Service Order and/or any applicable ancillary service level agreement. 5.3. Except as expressly set out in this Agreement, all warranties, representations or agreements, with respect to the provision of a Service or otherwise, whether oral or in writing and whether express or implied, either by operation of law, statute or otherwise, are excluded to the extent permitted by law. 5.4. HIPT SERVICE IMPORTANT INFORMATION 5.4.1. If the Customer’s Broadband connection fails, the voice service will also fail. The voice service may cease to function if there is a power cut or failure. These failures may be caused by reasons outside Rosecom Ltd’s control. 5.4.2. The VoIP service does allow calls to emergency services numbers 999 and 112. However calls will fail if there is a power cut or failure. These failures may be caused by reasons outside Rosecom Ltd’s control. 5.4.3. Location information transmitted with an emergency services call will be the registered location. The caller must inform the emergency services of the actual location if the call is not made from the registered location. 6. SERVICE SUSPENSION 6.1. Rosecom Ltd may, at its sole discretion and without prejudice to any right which it might have to terminate a Service and/or this Agreement, elect to immediately suspend the provision of a Service (or part thereof) if: 6.1.1. Rosecom Ltd has reasonable grounds to consider it is entitled to terminate the Service and/or this Agreement pursuant to Clause 7; 6.1.2. Rosecom Ltd is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority; 6.1.3. Rosecom Ltd needs to carry out Emergency Works to the Network or Service Equipment; 6.1.4. Rosecom Ltd has reasonable grounds to consider that the respective Service is being used fraudulently or illegally or in violation of Clause 8.5; 6.1.5. Rosecom Ltd has reasonable grounds to consider that the Customer will not or is unable to make any payment which is due or is to fall due to Rosecom Ltd hereunder; or 6.1.6. Rosecom Ltd has reasonable grounds to consider that the Customer is or has been involved or connected with criminal activity or other activity, which is or may be detrimental to Rosecom Ltd. Rosecom Ltd will endeavour to advise the Customer of any suspension action taken with minimum delay. 6.2. If Rosecom Ltd exercises its right to suspend the Service (or part thereof) pursuant to Clauses 6.1.2 or 6.1.3 it shall, whenever reasonably practicable, give prior notice of such suspension to the Customer, such notice to state the grounds of such suspension and its expected duration. Rosecom Ltd shall in such circumstances use all reasonable endeavours to resume the Service as soon as is practicable. 6.3. If the Service (or part thereof) is suspended as a consequence of the breach, fault, act or omission of the Customer or a third party to which the Customer resells the Service, the Customer shall pay to Rosecom Ltd all reasonable costs and expenses incurred by the implementation of such suspension and/or recommencement of the provision of the Service. 6.4. Rosecom Ltd shall not be liable for any loss, damage or inconvenience suffered by the Customer as a result of any suspension made pursuant to Clause 6.1, except to the extent that such suspension is made pursuant to Clause 6.1.3 and for reasons which are solely and directly attributable to the negligence of Rosecom Ltd, or as defined in any Service Level Agreement agreed between the parties. 7. TERM AND TERMINATION 7.1. This Agreement shall take effect from the date first stated below, the date the first Service Order is accepted by Rosecom Ltd in accordance with Clause 2.2, or the date the Customer first uses a Service whichever of these is earlier, and shall continue in force unless and until terminated in accordance with this Clause 7. 7.2. Either Party may terminate a Service: 7.2.1. on twenty-five (25) Business Days’ notice to take effect on or at any time after expiry of the relevant Initial Service Term, and, in the case of termination by the Customer, such notice to be copied to the local Rosecom Ltd Customer Services department; 7.2.2. immediately by notice if, in relation to that Service, the other Party has committed a material breach which is incapable of remedy; 7.2.3. immediately by notice if, in relation to that Service, the other Party has committed a material breach capable of remedy, but which it fails to remedy within ten (10) Business Days of having been notified of such breach; or 7.2.4. immediately by notice if, in relation to that Service, a Force Majeure Event subsists for a continuous period exceeding three (3) months. 7.3. Either the Rosecom Ltd Signatory or the Customer Signatory may terminate this Agreement immediately upon notice: 7.3.1. in the event of a material breach by the other, which has application to all Services then provided under this Agreement, and which is incapable of remedy; 7.3.2. in the event of a material breach by the other, which has application to all Services then provided under this Agreement, and which is capable of remedy, but which such other fails to remedy within ten (10) Business Days of having been notified of such breach; 7.3.3. if the other has a receiver or an administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other becomes subject to an administration order or enters into any voluntary arrangement with its creditors or ceases or threatens to cease to carry on business, or undergoes or is subject to any analogous acts or proceedings under any foreign law; 7.3.4. in the event of a Force Majeure Event, which has application to all Services then provided hereunder, and which subsists for a continuous period exceeding three (3) months. 7.4. Either the Rosecom Ltd Signatory or the Customer Signatory may terminate this Agreement for convenience at any time on notice, such termination only to take effect either (i) twenty-five (25) Business Days following such notice, where the Initial Service Term in respect of all Services being provided on the date of expiry of such notice has expired; or (ii) the date on which the Initial Service Term for the last Service expires, whichever shall be the later. 7.5. The Rosecom Ltd Signatory (or Rosecom Ltd) may terminate this Agreement (or the relevant Service) immediately by notice if a suspension of a Service pursuant to Clauses 6.1.4, 6.1.5 or 6.1.6 has continued for a period of at least two (2) consecutive months. 7.6. If Rosecom Ltd has reasonable grounds to consider that there has been a violation of Clause 8.5.2, Rosecom Ltd may notify the Customer and require it to remedy the violation: 7.6.1. in the event of an incident involving a violation of public law or regulation or an imminent threat to the IP Network, immediately; or 7.6.2. in all other cases, within forty-eight (48) hours, 7.6.3. If the Customer fails to notify Rosecom Ltd that such a remedy has been effected in accordance with this Clause 7.5 or if Rosecom Ltd reasonably determines that the violation is continuing or is likely to occur again, the Rosecom Ltd Signatory (or Rosecom Ltd) may terminate the respective Service immediately upon notice to the Customer. 7.7. Notwithstanding the provisions of Clauses 7.2 and 7.3, the Rosecom Ltd Signatory (or Rosecom Ltd) may terminate this Agreement (or the relevant Service) on five (5) Business Days’ notice if the Customer fails to make any payment, on invoices properly due, in accordance with the terms of this Agreement. 7.8. Without prejudice to accrued rights or obligations, upon termination of this Agreement: 7.8.1. all Service Orders and accompanying Services shall terminate immediately; 7.8.2. notwithstanding the provisions of Clause 4, all accrued Charges not yet invoiced and properly due, shall become due and shall be paid by the Customer immediately on receipt of an invoice; and 7.8.3. each Party shall promptly return to the other Party all copies of the other Party’s Confidential Information and, if requested, verify to the other Party that it has done so. 7.9. Termination of this Agreement shall not affect the continuation, to the extent necessary, of Clauses 1, 2.2, 2.4, 3.2, 4, 5.3, 6.3, 6.4, 7.8, 8.3, 8.5, 9, 11, 12, 14, 15, 16, 17 and 19 8. CUSTOMER OBLIGATIONS 8.1. The Customer shall grant or shall procure the grant to Rosecom Ltd of such rights of access to each Customer Site, including any necessary licences, waivers or consents to enable it to perform its obligations or exercise its rights under this Agreement. The Customer shall advise Rosecom Ltd in writing of all health and safety rules and regulations and any other reasonable security requirements applicable at the Customer Site, and Rosecom Ltd shall use all reasonable endeavours to observe and ensure that its employees and authorised representatives observe such regulations and requirements as advised whilst at the Customer Site. 8.2. The Customer shall provide Rosecom Ltd with such facilities and information as Rosecom Ltd may reasonably require, to enable it to perform its obligations or exercise its rights under this Agreement. 8.3. The Customer warrants and undertakes that it shall: 8.3.1. use the Service Equipment only for the purpose of receiving the Service and in accordance with Rosecom Ltd’s reasonable instructions from time to time and/or any software licence that may be provided with the Service Equipment; 8.3.2. not move, modify, relocate, or in any way interfere with the Service Equipment (or any words or labels on the Service Equipment) or the Network; 8.3.3. not cause the Service Equipment to be repaired or serviced except by an authorised representative of Rosecom Ltd; 8.3.4. insure and keep insured all Service Equipment installed at each Customer Site against theft and damage; 8.3.5. not create or allow any charges, liens, pledges or other encumbrances to be created over the Service Equipment. Title to the Service Equipment shall at all times belong and remain with Rosecom Ltd, a Rosecom Ltd Affiliate or their subcontractor; 8.3.6. permit Rosecom Ltd to inspect, test, maintain and replace the Service Equipment at all reasonable times; 8.3.7. comply with Rosecom Ltd’s reasonable instructions in relation to the modification of the Customer Equipment to enable the Customer to receive the Service, at its own expense; and 8.3.8. upon termination of a Service, allow Rosecom Ltd access to each Customer Site to remove the Service Equipment. Should any construction or alteration to the Customer Site have occurred to facilitate any Service, Rosecom Ltd is not obliged to restore the Customer Site to the same physical state as prior to Service delivery. 8.3.9. The Customer shall be liable for any and all damage to Service Equipment or the Network which is caused by (i) the act or omission of the Customer or the Customer’s breach of the terms of this Agreement; or (ii) malfunction or failure of any equipment or facility provided by the Customer or its agents, employees, or suppliers, including but not limited to the Customer Equipment, nor shall Rosecom Ltd be liable for any costs incurred by Customer arising out of any malfunction or failure of any such equipment or facility, including Customer Equipment. 8.4. The Customer warrants that it holds and shall continue to hold such licences and/or other authorisations as are required under any relevant legislation, regulation or administrative order, to receive the Services and to run and connect the Customer Equipment to the Network and Service Equipment. Rosecom Ltd reserves the right to disconnect any Customer Equipment where the Customer has failed to comply with the provisions of this Clause 8.4 and Rosecom Ltd shall in no event be liable in respect of the Customer’s failure to comply with this Clause 8.4. 8.5. The Customer warrants and undertakes that it shall in its use of: 8.5.1. the Services, comply with any relevant legislative and regulatory provisions and shall not use the Services for any illegal or immoral purpose; and 8.5.2. any Internet Service, comply with the then current version of the Rosecom Ltd Acceptable Use Policy (the “Policy”) The applicable Policy shall be available on request. The Customer shall, prior to commencing its use of the Internet Service, read and understand the Policy. Rosecom Ltd reserves the right to change the Policy from time to time, effective upon posting of the revised Policy at the URL or other notice to the Customer. Rosecom Ltd will use reasonable endeavours to provide 30 days notice of such changes when possible. The Customer shall indemnify Rosecom Ltd and Rosecom Ltd Affiliates in respect of any and all losses, damages, costs or expenses resulting from or arising out of any breach of the warranties set out in this Clause 8.5 and/or any third party claim or allegation arising out of or relating to the use of the Service, and which relates to any act or omission of the Customer which is, or if substantiated would be, a breach of this Clause 8.5. 9. LIABILITY 9.1. Subject to Clause 9.5 but otherwise notwithstanding anything else in this Agreement, each Party’s total liability to the other (and, in the case of Rosecom Ltd, “Party” in this Clause 9 refers to the Rosecom Ltd Signatory and each respective Rosecom Ltd Affiliate providing Services under this Agreement) in contract, tort (including negligence or breach of statutory duty) or otherwise arising in connection with this Agreement, except in respect of any liability arising pursuant to the Customer’s obligations set out in Clauses 4 and 8.5, shall be limited to: 9.1.1. £10,000 (ten thousand pounds) per event or series of connected events; and 9.1.2. notwithstanding Clause 9.1.1, a maximum of £100,000 (one hundred thousand pounds) in aggregate in any twelve (12) month period. 9.2. For the avoidance of doubt, for the purposes of this Clause 9.1, the limits on liability expressed above are cumulative and apply across all Services. 9.3. Subject to Clause 9.5 but otherwise notwithstanding anything else in this Agreement, neither Party shall in any event be liable to the other for indirect or consequential losses or otherwise for harm to business, loss of revenues, loss of anticipated savings or lost profits, whether or not reasonably foreseeable at the time when the Agreement was entered into. 9.4. The Customer acknowledges that Rosecom Ltd is unable to exercise editorial or other control over any content placed on or accessible through the Customer’s use of the Services and Rosecom Ltd shall have no liability as to the quality, content or accuracy of information received through or as a result of the use of the Services. 9.5. In the event that the Customer does not meet any liability to Rosecom Ltd arising out of or in connection with this Agreement and/or any of the Service Orders (including but not limited to the payment of the Charges), the Customer Signatory acknowledges and agrees that it is jointly and severally liable to Rosecom Ltd in respect of any such liability and Rosecom Ltd may demand that the Customer Signatory satisfies such liability in whole or in part. 9.6. Nothing in this Agreement shall serve to limit either Party’s liability in respect of death or personal injury caused by or arising from its negligence. 10. FORCE MAJEURE Notwithstanding anything herein to the contrary, neither Party shall be liable to the other for any delay or failure in performance of any part of this Agreement (other than for payment obligations set out in Clause 4) to the extent such delay or failure is attributable to a Force Majeure Event. 11. INTELLECTUAL PROPERTY 11.1. The Customer acknowledges: 11.1.1. that any and all patents, registered and unregistered designs, copyrights, trademarks and all other intellectual property rights whatsoever and wheresoever enforceable, which are used in connection with the Service and/or Service Equipment, shall remain the sole property of Rosecom Ltd or Rosecom Ltd Affiliates; and 11.1.2. without limitation to the foregoing, that the Customer shall not be entitled to use the name, trademarks, trade names or other proprietary identifying marks or symbols of Rosecom Ltd or Rosecom Ltd Affiliates without Rosecom Ltd’s prior written consent. 11.2. The Customer warrants that any domain name registered or administered on its behalf will not contravene the trademark or other intellectual property rights of any third party and that it shall comply with the rules and procedures of the applicable domain name authorities, registries and registrars. The Customer shall indemnify Rosecom Ltd and Rosecom Ltd Affiliates in respect of any and all losses, damages, costs and expenses arising from or in connection with breach of this Clause 11.2. The Customer irrevocably waives any claims against Rosecom Ltd or Rosecom Ltd Affiliates which may arise from the acts or omissions of domain name registries, registrars or other authorities. 11.3. Any Internet Protocol (IP) addresses assigned to the Customer by Rosecom Ltd in connection with an Internet Service shall be used solely in connection with the Internet Service. If such Internet Service is discontinued for any reason (including termination of the Agreement or the Internet Service), the Customer’s right to use the IP addresses shall immediately cease and the IP addresses shall be returned immediately to Rosecom Ltd. Any breach of this Clause 11.3 is a material breach of the Agreement. 11.4. If the Customer does not move the domain name(s) registered by Rosecom Ltd to another Internet provider within one month after termination of the Agreement and/or the Internet Service, Rosecom Ltd reserves the right to terminate the domain name(s) registered by Rosecom Ltd for the Customer with the applicable domain name authorities, registries and registrars. 12. CONFIDENTIALITY 12.1. Subject to Clause 12.2, the Rosecom Ltd Signatory, the Customer Signatory, and each Party hereunder, shall: 12.1.1. only use Confidential Information for the purposes of this Agreement; 12.1.2. only disclose Confidential Information to a third party with the prior written consent of the other Party (except that Rosecom Ltd or the Rosecom Ltd Signatory (if different) may disclose Confidential Information to Rosecom Ltd Affiliates or to its employees, agents or contractors, including professional advisors or auditors, and Customer Signatory may disclose Confidential Information to Customer Affiliates for the purposes of this Agreement); and 12.1.3. ensure that any third party to whom Confidential Information is disclosed executes a confidentiality undertaking substantially similar to the terms of this Clause 12. 12.2. The provisions of Clause 12.1 shall not apply to any Confidential Information which: (i) is in or comes into the public domain other than by breach of this Clause 12; or (ii) is or has been independently generated by the recipient Party; or (iii) is properly disclosed pursuant to a separate written consent or a statutory obligation, the order of a court of competent jurisdiction or the requirement of a competent regulatory body. 13. ASSIGNMENT Neither Party may assign, charge, transfer or otherwise dispose of this Agreement, any Service Order, or any rights or obligations therein in whole or in part, without the written consent of the other Party (which consent shall not be unreasonably withheld or unduly delayed), except that Rosecom Ltd may assign any and all of its rights and obligations hereunder: (i) to any Rosecom Ltd Affiliate; (ii) to a third party pursuant to any sale or transfer of substantially all the assets or business of Rosecom Ltd or a Rosecom Ltd Affiliate; or (iii) to a third party pursuant to any financing, merger, or reorganisation of Rosecom Ltd or a Rosecom Ltd Affiliate. 14. GENERAL 14.1. Severability. If any provision of this Agreement, including any limitation, is held by a court or any governmental agency or authority to be invalid, void or unenforceable, the remainder of this Agreement shall nevertheless remain legal, valid, and enforceable. 14.2. No Waiver. Failure or delay by either Party to exercise or enforce any right or benefit conferred by this Agreement, including Rosecom Ltd’ right to deliver invoices in accordance with Clause 4, shall not be deemed to be a waiver of any such right or benefit nor operate so as to bar the exercise or enforcement thereof or of any other right or benefit on any later occasion. 14.3. Relationship. Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute or be deemed to constitute between the Parties a partnership, agency, association, joint venture or other co-operative entity. 14.4. Third Party Beneficiaries. Except as otherwise contemplated by this Agreement, nothing herein will create or confer any rights or other benefits in favour of any person other than the Parties. 14.5. Variation. This Agreement (or any part thereof) shall be modified only by the written agreement of the Parties. 15. NOTICES Except as otherwise expressly provided for herein, any notice required or authorised to be given under this Agreement shall be delivered by prepaid registered post or by facsimile transmission (immediately confirmed by post) to the address stated above and shall be deemed to have been served forty-eight (48) hours after such posting or such transmission. 16. ENTIRE AGREEMENT This Agreement sets out the entire and exclusive agreement between the Rosecom Ltd Signatory and the Customer Signatory, and Rosecom Ltd and Customer, as the case may be, superseding all prior or contemporaneous representations, agreements or understandings concerning the subject matter addressed herein. No oral explanation or oral information provided shall alter the interpretation of this Agreement. The Customer confirms that, in agreeing to enter into this Agreement and/or a Service Order, it has not relied on any representation except as set out herein and the Customer agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement, excluding any fraudulent misrepresentation. 17. DISPUTE RESOLUTION 17.1. In the event of a dispute concerning this Agreement, each Party shall in the first instance promptly bring the dispute to the attention of a Director or similar person in a management position. 17.2. If the Customer wishes to dispute any invoice or part of an invoice falling due in accordance with Clause 4.7, the Customer shall, before the invoice is due, notify Rosecom Ltd by e-mail, (to which Rosecom Ltd will acknowledge) setting out the nature of its dispute, including: (i) date and number of disputed invoice; (ii) amount in dispute; (iii) reason for dispute; and (iv) supporting documentation, as appropriate. Any undisputed part of a disputed invoice shall be paid by the Customer in accordance with Clause 4.7. 17.3. The Parties shall use all reasonable endeavours to resolve such payment disputes as soon as is reasonably practicable. If we are unable to resolve a dispute satisfactorily, we will issue a ”deadlock” letter so that you may make a complaint through Otelo, an independent alternative dispute resolution scheme. We can provide you with details of this service. Alternatively, if more than three months has passed since you first made your complaint, please contact the ADR scheme directly. Contact details. Otelo, PO Box 730, Warrington, WA4 6WU, United Kingdom, http://www.otelo.org.uk. 18. CUSTOMER DATA AND PRIVACY 18.1. The Customer acknowledges that Rosecom Ltd, its Rosecom Ltd Affiliates and their respective agents will, by virtue of the provision of Services, come into possession of Customer Data. 18.2. Rosecom Ltd shall implement appropriate technical and organisational measures to protect Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against other unlawful forms of processing. The Customer acknowledges that it has right to access Regulated Customer Data upon written notice and have any agreed errors in such Regulated Customer Data rectified. 18.3. The Customer acknowledges and agrees that Rosecom Ltd, its Rosecom Ltd Affiliates and their respective agents may use, process and/or transfer Customer Data (including intra-group transfers and transfers to entities in countries that do not provide statutory protections for personal information): 18.3.1. in connection with the provision of Services; 18.3.2. to incorporate Customer Data into databases controlled by Rosecom Ltd or Rosecom Ltd Affiliates for the purpose of administration, provisioning, billing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and customer analysis and reporting, market and customer use analysis, and 18.3.3. to communicate to the Customer regarding products and services of Rosecom Ltd or its Rosecom Ltd Affiliates. 18.3.4. The Customer may withdraw consent for such use, processing or transfer of Customer Data as set out above, unless it is required to (i) provision, manage, account and bill for the Services; (ii) carry out fraud detection; or (iii) comply with any statutory obligation, regulatory requirement or court or other public authority order, by sending written notice to Rosecom Ltd in accordance with the prescribed form, available from Rosecom Ltd on request. 18.4. The Customer warrants that it has obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of Customer Data as described in this Clause 18. 19. GOVERNING LAW AND JURISTRICTION This Agreement shall be governed and construed in accordance with English Law, and the Rosecom Ltd signatory and the customer signatory (and the relevant parties hereto) irrevocably agree to the exclusive jurisdiction of the English Courts.
Section B - Wide Area Network Provision
1)
Interpretation
a)
All defined terms used in this Agreement shall have the meanings ascribed to them in Agreement unless the context otherwise requires.
b)
Unless otherwise specified, words importing the singular include the plural, words importing any gender include every gender, words importing persons include bodies corporate and unincorporate and references to the whole include the part; and in each case vice versa.
c)
References to clauses are to clauses of this Agreement in which the reference appears unless otherwise specified.
d)
Headings are inserted for convenience only and shall not be used in any way to interpret the provisions of this Agreement.
e)
The expressions “the Customer” and “ROSECOM LTD” shall include their respective successors and permitted assigns and their respective employees and agents.
f)
Any reference to any Act of Parliament shall be deemed to include any amendment, replacement or re-enactment thereof from time to time in force and to include any bye-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made thereunder and any condition attaching thereto.
g)
Any undertaking by the Customer to do or not to do any act or thing shall be deemed to include an undertaking to procure or not to permit or suffer the doing of that act or thing.
2)
Definitions
a)
“RIPE” means the European Internet Registry.
b)
"Service Equipment” means the equipment, cabling and systems provided by ROSECOM LTD, or its subcontractors, which is to be installed at the Customer’s or the Customer’s End-User’s premises in order to make available the Service(s) to the Customer or the End-User and as detailed in Appendix l.
For the avoidance of doubt, Service Equipment shall not include any equipment which is the subject of a separate supply or service agreement between ROSECOM LTD and the Customer.
c)
"Circuit Scedule” means the network as illustrated in Appendix ll describing the Service which ROSECOM LTD provides to the Customer.
d)
“Password” means the alpha numeric characters used exclusively by the Customer at his own risk for the purpose of securing and maintaining exclusive access to the Internet Service(s) provided by ROSECOM LTD.
e)
“Username” means such sequence of alpha numeric characters as are used from time to time by the Customer to identify a user or users of other computers to which ROSECOM LTD is from time to time connecting or otherwise forwarding data to and from the Customer.
f)
“Internet Address” means such sequence of alpha numeric or numeric only characters as are used from time to time by the Customer to identify their own user(s) or computer(s) to other computers to which ROSECOM LTD is from time to time connecting or otherwise forwarding data to and from the Customer.
g)
“IP” means Internet Protocol.
h)
“Internet" means the global data network comprising interconnected networks using TCP/IP (Transmission Control Protocol/Internet Protocol).
i)
“Internet Service” means the access to the Internet as provided by ROSECOM LTD.
j)
“Force Majeur” means any cause beyond a Party’s reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of government, highways authorities, Public Communications Providers or other competent authority, war, military operations, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of any Services Equipment or any part thereof (to the extent only that such difficulty, delay or failure was caused by an event of Force Majeure affecting that third party), or failure to obtain wayleaves having used reasonable endeavours to do so.
k)
“Service” means the provisions of the service as described in the Circuit Schedule.
l)
“Service Levels” means the Target Repair Times and the target levels of availability to be provided by ROSECOM LTD to the Customer as set out below.
m)
“Termination Charge” means the charge(s) which shall be payable by the Customer to ROSECOM LTD on termination of this Agreement or part thereof as set out below.
n)
“Circuit” means a leased line, carrier private circuit, national ethernet circuit or ethernet circuit as the context requires.
For the avoidance of doubt, it does not include any ADSL circuits.
o)
“LIBOR” means the British Bankers' Association London Interbank Offered Rate fixed for pounds sterling (GBP).
p)
“Service Credits” means reductions in certain charges or compensation payments in respect of ROSECOM LTD failing to meet specified Service Levels, calculated in the manner set out below.
q)
“Working Day” means Monday to Friday 9.00am to 6.00pm excluding Bank and Public holidays.
r)
“Fault” means a Service affecting fault.
s)
“Scheduled Service” means work required to be carried out in respect of the Circuits or the Services Equipment which will prevent a Service or Services from being available, notified in advance to the Customer by ROSECOM LTD in accordance with the terms below.
t)
“Commencement Date” means the date on which ROSECOM LTD made the Service or will make the Service available for use to the Customer, hereby agreed as date of contract signature by the Customer.
u)
“Annual Fee” means the amount payable by the Customer for the Service as set out in Appendix III or as quoted by ROSECOM LTD and agreed by the customer.
v)
“End-User” means any person authorized by the Customer to use the Services.
3)
Term
This Agreement shall expire three year (36 months) from the Commencement Date.
Thereafter, this Agreement will automatically renew for successive one-year terms unless either party notifies the other party in writing of its intention not to renew under the provisions of Clause 11 below.
Such notice may only be given to the other party no less than ninety (90) days prior to the date of the next renewal.
4)
Payment of Services
a) ROSECOM LTD will issue invoices in advance for VAT purposes and payment is made by means of a cheque paid three months in advance unless any other payment method has been agreed in writing or orally between ROSECOM LTD and the Customer.
All Services and charges are deemed contracted for a standard 36 months from the Commencement Date, unless otherwise stated in the signed customer contract.
Payments are not refundable.
b) 50% of the installation fee will be payable by the Customer on acceptance of the quote by ROSECOM LTD or as agreed in Appendix III.
The remaining 50% of the installation fee will be invoiced on the Commencement Date, unless otherwise agreed, regardless of whether the Customer is ready to connect its Customer Equipment to it.
c)
Should any invoices remain unpaid for a period of more than 30 days from the day of issue, ROSECOM LTD reserves the right to charge interest at a rate of 2% above LIBOR.
Furthermore, should any invoices remain unpaid for a period of more than 60 days, ROSECOM LTD reserves the right to suspend the Service until payment has been received.
The suspension of this Service will not trigger the termination of this contract or the activation of Service Credits.
d)
ROSECOM LTD may at any time after the expiry of the Term, but no more than once a year, vary the Annual Fee payable by the Customer upon giving the Customer at least thirty (30) days’ prior written notice provided that such variation does not exceed the greater of:
i) ten per cent (10%) of the Annual Fee payable by the Customer in the preceding Year; or
ii) an amount equivalent to any percentage increase in the Retail Prices Index last published by the Office for National Statistics before either the date when the immediately preceding increase came into effect pursuant to Clause 4 d) or this Clause 4 e) or the Commencement Date (whichever is the later) and the Retail Prices Index last published before the current date of notice of variation plus two percent (2%).
5)
Wayleave To
5.1
In order for ROSECOM LTD to perform its obligations under this Agreement, upon ROSECOM LTD or its suppliers giving to the Customer reasonable notice and subject always to the Customer’s right to supervise any access, the Customer grants to the ROSECOM LTD and its suppliers (including its employees and authorised representatives) the right from time to time:
5.1.1
to enter those parts of the premises or land of the Customer as necessary to the extent that they are used for the purposes of the provision of the Services;
5.1.2
to perform installation and maintenance work at or on the said premises or land from time to time in accordance with the agreed access provisions and the Customer’s prior agreement to a method statement detailing the nature of the works;
5.1.3
to bring upon, install and keep installed at the said premises or land such equipment as is reasonably necessary for the provision of the Services and the maintaining of the Services Equipment.
5.2
In order for ROSECOM LTD and its suppliers to perform its obligations under this Agreement, upon ROSECOM LTD or its suppliers giving to the Customer reasonable notice and subject always to the Customer’s right to supervise any access, the Customer shall at its own expense procure for the Supplier (including its employees and authorised representatives) the right from time to time:
5.2.1
to enter those parts of the premises or land of any of the Customer’s landlords or any User as necessary to the extent that they are used for the purposes of the provision of the Services;
5.2.2
to perform installation and maintenance work at or on the said premises or land from time to time in accordance with the agreed access provisions and the Customer’s prior agreement to a method statement detailing the nature of the works;
5.2.3
to bring upon, install and keep installed at the said premises or land such equipment as is reasonably necessary for the provision of the Services and the maintaining of the Services Equipment.
5.3
The Customer at its own expense shall procure or provide whatever further consents and wayleaves may be required to enable ROSECOM LTD to provide Services under this Agreement.
5.4
Each Party shall at all times comply and procure that its employees and authorised representatives comply with all reasonable instructions of the other Party or any third party pursuant to any consents and wayleaves obtained in accordance with this Clause 5.
5.5
The provisions of this Clause 5 shall apply for the duration of the Term and for other periods thereafter as may be required by ROSECOM LTD to exercise its rights to disconnect and remove from the premises any Services Equipment.
6)
Improper Use
a)
The Customer shall comply with the IP address allocation rules set out by RIPE, and to complete and submit form Ripe-141 (or any form which might supersede that form) where necessary if requested.
ROSECOM LTD will assist with the completion of this form.
b)
The Customer agrees to use its reasonable endeavours to ensure that it, its agents and End-Users will not access the Service for sending or receiving illegal material, sending multiple (SPAM) mail (other than for marketing purposes in the normal course of its business), using open mail relay, attempting to access other services (hacking) and safeguard against the deployment of viruses, trojans and worms.
The Customer also agrees to use its reasonable endeavours to secure its network from external sources.
c)
The Customer shall indemnify ROSECOM LTD for all costs, claims, damages or proceedings made or threatened to be made by reason of the Customer's or an End-User’s use or misuse of the Services or Services Equipment or due to the Customer failing to make proper provision to secure its network from external sources.
7)
Service Level Targets and Credits
ROSECOM LTD shall use reasonable endeavours to provide the Services throughout the term of the Agreement in a manner which meets or exceeds the Service Level set out in this section.
The Service Credits set below are subject to a maximum, in aggregate in any calendar month, of 100% of the monthly rental for the Service in question.
ROSECOM LTD aims to provide a Service Level target of at least 99.8% in each 12 month period following the Commencement Date.
For the purpose of calculating availability, “Unavailable Time” means a period of time when there is no Service available to the Customer.
Where the availability of the Service falls below 99.8%, the Customer shall be entitled to Service Credits in accordance with the table below.
8)
Technical Support and Service Maintenance
a)
ROSECOM LTD undertakes to respond to telephone support calls and provides a helpdesk and a network wide fault analysis and reporting tool.
ROSECOM LTD provides a 24/7/365 manned fault reporting service and have an e-mail fault reporting service the details of which are listed below.
Any non-Working Day faults will be passed on by the fault reporting service to ROSECOM LTD’s engineers to respond to.
ROSECOM LTD aims to respond to a Fault report within 4 hours of notification on a Working Day and 10 hours on a non-Working Day.
ROSECOM LTD aims to repair faults (“Target Repair Time”) within 6 hours of notification on a Working Day and 12 Hours on a non-Working Day.
24/7/365 Manned Fault Reporting Service Tel: 0845 223 2072
Email Fault reporting address:
support@rosecom.biz
In the event that ROSECOM LTD fails to repair a Fault within the specified Target Repair Time then Service Credits will be payable in accordance with the table below:
Repair times for non-Service affecting faults will be agreed on a case by case basis. No Service Credits shall be payable for failure to repair non-Service affecting faults within the Target Repair Time or where Service is being provided by a back-up Circuit.
Measurement of Repair Time will commence at the time the Customer or ROSECOM LTD reports the Fault and will end when ROSECOM LTD confirms to the Customer that Service has been restored, or in the event that ROSECOM LTD is unable to contact the Customer, then from the time logged by ROSECOM LTD that Service is available.
Once a Fault has been repaired, ROSECOM LTD will report to the Customer and agree the repair and response times associated with that Fault.
b)
ROSECOM LTD shall give notification to the Customer for all Scheduled Service(s) maintenance during normal business hours for alteration or suspensions which shall affect the Customer, such notice shall be given at least three (3) days prior to the scheduled event.
Where possible ROSECOM LTD shall implement all Scheduled Service(s) maintenance, alterations or suspensions outside the Working Day. Such maintenance may include but is not limited to deliberate impairment or suspension of Service(s) to the Customer.
c)
ROSECOM LTD will endeavour to ensure that Schedule Service maintenance will not result in no available Service (“Outage”) and will endeavour to provide two (2) weeks notice to the Customer where Scheduled Service may result in an Outage.
However ROSECOM LTD is reliant on third party service providers and can not guarantee that no Outages will occur.
d)
Where ROSECOM LTD has supplied equipment but it is under separate service level agreements with the manufacturers or the distributors of that equipment, ROSECOM LTD will provide assistance with resolving any faults with this equipment and, where appropriate, will provide loan equipment in case of complete malfunction, subject to availability.
Service Credits shall not apply and, for the purposes of these Service Levels, the Services shall be deemed to be available in respect of any period where ROSECOM LTD's failure to meet the Service Levels results directly or indirectly from:
a)
a Force Majeure Event;
b) any actions or inactions of the Customer (including, without limitation, requests for testing of the Service by Customer although no Fault has been detected, requests for modifications, failure of Customer provided equipment, failu |