This agreement is
made between Moving-Edge.net Limited (registered in England & Wales under
number 4149195) of 14 Albert Road, Brighton, East Sussex BN1 3RL (MOVING-EDGE)
and the CUSTOMER, as specified on the SERVICE ORDER FORM.
MOVING-EDGE agrees to provide Internet Services as specified under this
agreement.
1. Definitions
In this agreement (which includes the appendices hereto) the following
terms shall have the following meanings:
“AGENT” – The agent, if any, representing MOVING-EDGE
in the sale of the service to the customer.
“AGREEMENT” – The agreement
comprising the SERVICE
ORDER FORM, these TERMS AND CONDITIONS, the SERVICE LEVEL AGREEMENT
attached as Schedule 1 and all other documentation referred to in any of the
terms.
“SERVICE ORDER FORM” – the order form
which specifies the SERVICE and forms part if this agreement
“CUSTOMER” – the customer specified
on the SERVICE ORDER FORM.
“SERVICE” – MOVING-EDGE’s services as detailed
on the SERVICE ORDER FORM
“START DATE” – the day that the SERVICE
becomes fully functional and is handed over to the CUSTOMER.
“INITIAL TERM” – a period of three (3)
months from the START DATE.
“EVENT OF FORCE MAJEURE” – such event as
defined in clause 16.10 below.
“INSOLVENCY EVENT” – if a party becomes
insolvent, has a receiver appointed over the whole or any part of its assets,
enters into any compound with creditors, or has an order made or resolution for
it to be wound up (otherwise than in the furtherance of a scheme for
amalgamation or reconstruction) or if ownership or control shall pass into the
hands of any other legal person (other than assignment under clause 16.1), or
an event analogous occurs in respect of a party in any jurisdiction to which
that party is subject.
“ACCEPTABLE USE POLICY” – MOVING-EDGE’s
rules concerning acceptable usage of the MOVING-EDGE network, attached as
Schedule 2.
“RIPE” – (Réseau IP Européens) The
organisation that assigns TCP/IP addresses to Internet Service Providers and
their customers in Europe.
2. Terms of Purchase
These MOVING-EDGE Terms and Conditions shall apply to the subject matter
of this AGREEMENT to the entire exclusion of any documentation proposed by the
customer.
3. Services
Subject to compliance by the
CUSTOMER with its obligations under this agreement, MOVING-EDGE shall provide
the services to the CUSTOMER during the currency of this AGREEMENT with
reasonable care and skill. MOVING-EDGE reserves the right to vary the SERVICE
at any time. However, MOVING-EDGE will inform the CUSTOMER of such variations
where MOVING-EDGE deems it necessary to do so and where reasonably practicable
in the circumstances.
4. Term
This agreement shall subsist for the INITIAL TERM and thereafter may be
terminated by no less than thirty (30) days notice in writing by either party
to the other.
5. Usage
5.1 Improper Use. The CUSTOMER shall use it’s reasonable endeavours to
ensure that nothing is transmitted by or on behalf of the CUSTOMER or using the
CUSTOMER’s equipment through the SERVICE or downloaded in violation of any UK
or International law, regulation or treaty or MOVING-EDGE’s ACCEPTABLE USE
POLICY or in breach of the intellectual property or rights of any person. The
CUSTOMER shall fully and effectually indemnify MOVING-EDGE from and against all
loss, liability, damages, costs and expenses which MOVING-EDGE may incur in
relation to any breach by the CUSTOMER of its obligations under this clause.
The CUSTOMER acknowledges that, by the nature of the SERVICE being provided,
information and material downloaded or used by the CUSTOMER will be kept,
whether permanently or temporarily, on MOVING-EDGE’s equipment. The CUSTOMER
shall at all times ensure that such information and material complies with the
laws of all applicable jurisdictions and shall keep MOVING-EDGE fully and
effectually indemnified from and against all costs, claims, liabilities and
demands relating to or arising from:
(a) any breach by the customer of this clause 5.1; or
(b) any criminal or civil legal action brought against MOVING-EDGE as a
result of MOVING-EDGE’s storage of such information or material.
A breach of this clause and/or MOVING-EDGE’s ACCEPTABLE USE POLICY will
also be grounds for MOVING-EDGE to terminate this AGREEMENT without notice and
with immediate effect, at MOVING-EDGE’s discretion.
5.2. Offending Material. Without prejudice, to any other right,
MOVING-EDGE shall be entitled to disable the SERVICE or any other part of it
immediately and without notice or to take such action as it may in its
discretion think appropriate to ensure that any material which MOVING-EDGE in
its reasonable opinion considers to offend the principles set out in Clause 5.1
is not capable of being transmitted or down-loaded. MOVING-EDGE shall not
however be obligated to take, or consider whether it should take any such
action. MOVING-EDGE shall inform the CUSTOMER of any such action and the
reasons for the same.
5.3 Customer-Only Traffic. The right to use the SERVICE is limited to
the CUSTOMER, the CUSTOMER’s clients and those members of its staff and others
engaged by the CUSTOMER to perform work for the CUSTOMER.
5.4 International Bandwidth. The CUSTOMER acknowledges that MOVING-EDGE
has no direct control over the availability of bandwidth over the entirety of
the Internet and that while it will use such endeavours as MOVING-EDGE, in its
absolute discretion deems appropriate to facilitate the SERVICE at all times.
MOVING-EDGE shall not be responsible for delays caused by overuse or lack of
such bandwidth.
5.5 ACCEPTABLE USE POLICY. MOVING-EDGE reserves the right to make
reasonable amendments to the ACCEPTABLE USE POLICY from time to time, effective
upon notice to the CUSTOMER of such changes.
6. CUSTOMER Equipment and Network
6.1 The CUSTOMER agrees that from the from the START DATE, it will have
available all necessary CUSTOMER equipment for which it is responsible, to
allow effective installation and continuation of the SERVICE.
6.2 It is the sole responsibility of the CUSTOMER and not MOVING-EDGE to
provide security with respect to and of the CUSTOMER’s facilities or the
facilities of others. The CUSTOMER shall be solely responsible for maintaining
user access security and network access.
7. Domain Name and Network Number
7.1 MOVING-EDGE will route IP addresses that were previously assigned to
the CUSTOMER only if those addresses were assigned to the CUSTOMER directly and
not through another Internet Service Provider. MOVING-EDGE will not be held
responsible if other Internet Service Providers refuse to accept these
addresses. MOVING-EDGE shall assign new or additional TCP/IP addresses as
requested by the CUSTOMER upon being provided with satisfactory documentation
justifying the need for those addresses. The documentation must be in
accordance with the policies set forth by RIPE. In certain circumstances, it may
be necessary for TCP/IP addresses to be approved by RIPE, and in such cases
those addresses are only assigned for the duration of the SERVICE and become
invalid at such time as MOVING-EDGE no longer provides the SERVICE to the
CUSTOMER. MOVING-EDGE shall not be responsible for any decision made by RIPE.
When MOVING-EDGE assigns addresses to the CUSTOMER, a temporary extension
(usually thirty (30) days after the end of the SERVICE) may be granted at
MOVING-EDGE’s sole discretion. After termination or after such period (if any)
those TCP/IP addresses may be reassigned to other customers by MOVING-EDGE. If
the CUSTOMER wishes to apply for addresses that will subsist beyond the
duration of the SERVICE, it must do so directly to RIPE. Any decision by RIPE
or by another Internet Service Provider relating to TCP/IP addresses is the
responsibility of RIPE or of that other Internet Service Provider and
MOVING-EDGE accepts no responsibility for such decision.
7.2 In respect of any actions taken by MOVING-EDGE pursuant to this
clause 7, MOVING-EDGE may levy additional charges on the CUSTOMER as agreed in
advance.
8. Historical Archive and backup
While Moving-Edge backs up its server computers as a regular part of its
internal systems administration, Moving-Edge does not guarantee any storage or
backup of CUSTOMER data.
9. Service Pricing
9.1 Service Pricing. The CUSTOMER shall pay fees to MOVING-EDGE as
specified on the SERVICE ORDER FORM. Such fees maybe varied by MOVING-EDGE from
time to time with the prior agreement
of the CUSTOMER. MOVING-EDGE agrees not to increase the prices it charges to
the CUSTOMER during the INITIAL TERM. The customer acknowledges that it has
read and agreed the fees on the SERVICE ORDER FORM. All fees are exclusive of
any applicable VAT which are chargeable in addition at the then current rate.
9.2 Initial Commitment. Upon execution of this AGREEMENT, the CUSTOMER’s
fees shall include without limitation the following (save where otherwise
specified): (1)MOVING-EDGE’s set up fee(s), upgrade fee(s) (as
applicable);(payable with order);
(2)MOVING-EDGE’s service fees for the INITIAL TERM (including any
options selected by the CUSTOMER on the SERVICE ORDER FORM);
(3)Domain Name Charges (as applicable)
(4)Equipment Lease Fees (as applicable)
(5)Equipment Purchase Charges (as applicable)
The fees for the INITIAL TERM whether paid or payable, are
non-refundable. They are independent of the amount of traffic or systems access
by the CUSTOMER.
9.3 Invoicing. MOVING-EDGE (or the AGENT on MOVING-EDGE’s behalf) will
invoice and the CUSTOMER shall pay MOVING-EDGE’s set up fee and any other one
off fees (including any options selected on the SERVICE ORDER FORM) immediately
upon the execution of this AGREEMENT (at MOVING-EDGE’s sole option the CUSTOMER
will also pay the fee for the first billing period upon execution of the
AGREEMENT) and shall pay the fee for the first billing period of the service
immediately upon the START DATE, subject to satisfactory credit checking
results. Should the CUSTOMER fail the MOVING-EDGE credit checking procedure,
the CUSTOMER shall be pro-forma invoiced immediately for MOVING-EDGE’s set up
fee and any other one off fees and the fee for the first billing period
(including any options selected on the SERVICE ORDER FORM). The AGREEMENT will
be executed upon receipt of payment in full of this pro-forma invoice.
MOVING-EDGE (or the AGENT on MOVING-EDGE’s behalf) will invoice subsequent
periods of SERVICE separately to the CUSTOMER. Payment is due immediately on
presentation of the invoice.
9.4 Set Off. Notwithstanding any other provision of this AGREEMENT,
MOVING-EDGE shall be entitled to set-off against an amount due for payment by
any entity controlled by, controlling or under common control with the
CUSTOMER. MOVING-EDGE Equipment. The CUSTOMER is responsible for any
MOVING-EDGE equipment located at its premises and will only use the MOVING-EDGE
equipment and any associated software in accordance with any instructions
and/or software license provided from time to time. The CUSTOMER may not add
to, modify or in any way interfere with the MOVING-EDGE equipment and
MOVING-EDGE will not be liable for any repairs of the MOVING-EDGE equipment
other than those arising as a result of its normal and proper use. The CUSTOMER
will insure any MOVING-EDGE equipment located on its premises from all risks
equal to the full replacement value of the equipment.
10. Termination.
10.1 For Non-payment. If any MOVING-EDGE invoice remains unpaid thirty
(30) days after its due date, MOVING-EDGE may without further notification or
prejudice to any other remedy, suspend or disable the SERVICE or, at its
option, terminate this AGREEMENT. Termination for non-payment shall not relieve
the CUSTOMER of its responsibilities under this AGREEMENT, including the
responsibility to pay all fees up to the date of termination.
10.2 For Default. Either party may terminate this AGREEMENT at any time
if the other materially breaches this AGREEMENT and in the case of a breach
capable of remedy fails to remedy the breach within thirty (30) days of a
notice requiring the breach to be remedied.
10.3 INSOLVENCY. Where one party suffers an INSOLVENCY event, then the
other may, without prejudice to any other right or remedy, terminate this
AGREEMENT. Where the CUSTOMER suffers an INSOLVENCY event, and this occurs
during the INITIAL TERM, the CUSTOMER shall be liable for the balance of
payments outstanding for the first year.
11. Additional Service Terms.
11.1 Customer provided equipment. To enable MOVING-EDGE to provide the
SERVICE, the CUSTOMER agrees to abide by MOVING-EDGE’s prior agreed
recommendations and specifications regarding the existence, configuration and
maintenance of equipment used by the CUSTOMER (if any), the software used by
the CUSTOMER and cabling required to integrate the CUSTOMER’s host or local
area network (LAN) into MOVING-EDGE’s wide area network (WAN). The CUSTOMER’s
equipment must comply with the relevant portions of such recommendations and
specifications. Such recommendations and specifications, if any, are given
solely for the protection of MOVING-EDGE’s equipment and not the CUSTOMER’s and
the CUSTOMER may not therefore rely upon such recommendations and
specifications in the design, maintenance or service of the CUSTOMER’s
equipment or system.
11.2 Support. MOVING-EDGE’s helpdesk will provide reasonable telephone
support on problems experienced by the CUSTOMER in relation to the SERVICE.
Requests for advice and assistance can be sent to support@moving-edge.net
12. Service Level.
Our standard ADSL service does not have any service level guarantees.
13. Network Infrastructure
From time to time MOVING-EDGE may upgrade its network infrastructure.
This may require the CUSTOMER to upgrade some of its equipment if the SERVICE
is to be continued. In that event, the CUSTOMER agrees to make within thirty
(30) days such reasonable upgrades to its hardware or software as MOVING-EDGE’s
technical staff may from time to time reasonably specify by written notice to
the CUSTOMER. MOVING-EDGE shall not be responsible for degradation of or
disruption to the SERVICE if the CUSTOMER does not make the required upgrade.
14. Limited Warranty
14.1 Subject to Clause 3, MOVING-EDGE warrants that the SERVICE will not
be substantially different from any written description of the SERVICE
previously supplied by MOVING-EDGE to the CUSTOMER.
14.2 The CUSTOMER is responsible for assessing its own commercial needs,
how the service relates to the CUSTOMER and how the CUSTOMER should use the SERVICE.
The CUSTOMER warrants that it is familiar with services of this type and that
it understands the level of service to be provided and the implications for the
CUSTOMER’s own business of the choices which the CUSTOMER made when completing
the SERVICE ORDER FORM. MOVING-EDGE makes no warranty as to the value of the
SERVICE in the CUSTOMER’s business or the results to be obtained from the use
of the SERVICE.
14.3 The CUSTOMER is solely responsible for the use of any information
or other material obtained through the SERVICE. MOVING-EDGE specifically
excludes any responsibility for the accuracy or quality of any information
obtained through the SERVICE, or that any other material obtained through the
SERVICE may be used in any way by the CUSTOMER without infringing the rights of
any third parties. The CUSTOMER further acknowledges that these matters are
outside the control of MOVING-EDGE.
15. Limitation of Liability
Without prejudice to the express warranties contained in clause 14 above
and to the maximum extent permissible in law, all conditions and warranties
which are to be implied by statute or otherwise by general law into this
AGREEMENT or relating to the SERVICE are hereby excluded.
15.2 The following provisions in this clause 15 set out MOVING-EDGE’s
entire liability (including any liability for the acts and omissions of its
employees, agents or sub-contractors)to the CUSTOMER in respect of:
15.2.1 a breach of MOVING-EDGE’s contractual obligations;
15.2.2 a tortious act or omission for which MOVING-EDGE is liable;
15.2.3 an action arising out of a misrepresentation by or on behalf of
MOVING-EDGE; arising in connection with the performance of this AGREEMENT or
out of an act done or omission made as a consequence of the entry into by
MOVING-EDGE of this AGREEMENT.
15.3 Subject to clauses 15.6 and 15.7, the total liability which
MOVING-EDGE shall owe to the CUSTOMER and in respect of all claims shall not
exceed the then current annual fee for the SERVICE.
15.4 The CUSTOMER acknowledges that the MOVING-EDGE network has not been
designed for use in circumstances where its failure could cause pure economic
loss, loss of profit, loss of business or like loss.
15.5 MOVING-EDGE shall in no circumstances be liable to the CUSTOMER,
whether in tort or otherwise, for loss, whether direct or indirect, of
business, revenues, profits, anticipated savings or wasted expenditure or for
any indirect or consequential loss whatsoever, or for the acts or omissions of
other providers of telecommunications services or for faults or failures in
their apparatus.
15.6 MOVING-EDGE shall in no circumstances (whether before or after
termination of this AGREEMENT) be liable to the CUSTOMER for any loss of or
corruption to data or programs held or used by or on behalf of the CUSTOMER and
the CUSTOMER shall at all times keep adequate back up copies of the data and
programs held or used by or on behalf of the CUSTOMER.
15.7 Notwithstanding anything to the contrary herein contained
MOVING-EDGE’s liability to the CUSTOMER for:
15.7.1 death or personal injury resulting from the negligence of
MOVING-EDGE or its employees, agents or subcontractors;
15.7.2 damage suffered by the CUSTOMER as a result of a breach by
MOVING-EDGE of the condition as to title or the warranty as to quiet possession
implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply
of Goods and Services Act 1982; and
15.7.3 damage for which MOVING-EDGE is liable to the CUSTOMER under Part
1 of the Consumer Protection Act 1987; shall not be limited save that nothing
in this clause 15 shall confer a right or remedy upon the CUSTOMER to which the
CUSTOMER would not be otherwise entitled.
15.8 The exclusions from and limitations of liability set out in this
clause 15 shall be considered severably. The validity or unenforceability of
any one clause, sub-clause, paragraph or sub paragraph of this clause 16 shall
not affect the validity or enforceability of any other part of this clause 15.
15.9 The provisions of this clause 15 shall survive the termination of the
whole or a part of this AGREEMENT.
16. General Terms
16.1 Assignment. Neither party may sell, transfer or assign its rights
or obligations under this AGREEMENT without the other’s written consent. No
such assignment, even if consented to, shall relieve the other party of its
obligations under this AGREEMENT prior to the date of such assignment.
16.2 Waiver. The waiver or failure of either party to exercise any right
provided for in this AGREEMENT shall not be deemed a waiver of that or any
other right in this AGREEMENT.
16.3 Invalidity. If any provision of this AGREEMENT is held by a court
of competent jurisdiction to be contrary to law, the remaining provisions of
this AGREEMENT will remain in full force and effect.
16.4 Whole AGREEMENT. This AGREEMENT, together with any document
expressly referred to in any of its terms, contains the entire AGREEMENT
between the parties relating to the subject matter covered and supersedes any
previous agreements, arrangements, undertakings or proposals, written or oral,
between the parties in relation to such matters. No oral explanation or oral
information or e-mail given by any party shall alter the interpretation of this
AGREEMENT. The CUSTOMER confirms that, in agreeing to enter into this
AGREEMENT, it has not relied on any representation save insofar as the same has
expressly in this AGREEMENT been made a representation and agrees that it shall
have no remedy in respect of any misrepresentation which has not become a term
of this AGREEMENT save the agreement of the CUSTOMER contained in this Clause
shall not apply in respect of any fraudulent or negligent misrepresentation
whether or not the same has become a term of this AGREEMENT.
16.5 Notices. Notices sent pursuant to this AGREEMENT shall be in
writing and may be delivered by hand or sent by post or faxed with hard copy
confirmation by post to the recipient at its address shown on the SERVICE ORDER
FORM or at such other address as may be notified in accordance with this clause
or, in the case of a company, to its registered office. Notices hand delivered
or faxed shall be deemed received on delivery and those posted on the second
working day after they are posted.
16.6 Headings. The headings shall be disregarded in construing this
AGREEMENT.
16.7 Law. This AGREEMENT shall be governed by English Law. The parties
submit to the non exclusive jurisdiction of the English courts.
16.8 Capacity. Both parties acknowledge that they have read and
understood this AGREEMENT and agree to be bound by its terms.
16.9 Representations. The parties acknowledge that in entering into this
AGREEMENT they have not relied upon any representations other than those
reduced to writing in this AGREEMENT. The provisions of this clause 16.9 shall
not apply in the case of any fraudulent misrepresentation.
16.10 FORCE MAJEURE. Neither party shall be liable for any breach of
this AGREEMENT due to any cause beyond its reasonable control (save obligation
in respect of the payment of monies) including but not limited to Acts of God,
inclement weather, flood, lightening or fire, industrial action, act or
omission of government, or other competent authority, riot, war or act or
omission of any other party for whom that party is not responsible (“an event
of FORCE MAJEURE”).
16.11 Data Protection. The CUSTOMER hereby consents that any CUSTOMER
information (“Data”) collected by MOVING-EDGE in the fulfilment of this AGREEMENT (including but not limited to Data collected during
order processing, delivery, installation, support and maintenance of the
SERVICE) may for the purposes of fulfilling the contract be processed by
MOVING-EDGE, its provisioning entities affiliates and agents both within and
outside the European Economic Area, and outside the country or countries where
the Data is collected.
Schedule 1
Acceptable Use Policy
The CUSTOMER acknowledges that MOVING-EDGE provides the
telecommunications network facilities underlying the SERVICE provided. The use
of MOVING-EDGE’s telecommunications network facilities is subject to the following
terms, breach of which may result in suspension or termination of the
end-user’s right to use the SERVICE:-
1. The MOVING-EDGE network may only be used for lawful purposes.
Transmission of any material through the Moving-Edge network, or use of any
part of it, in violation of any UK law or regulation is prohibited. Such
prohibited transmission might include, but is not limited to: copyright
material, material legally judged to be threatening or obscene, material
protected by trade secret, whether or not the end user was aware of the content
of the material or of the relevant law.
2. The CUSTOMER shall be issued with a password to access the services
and shall take all reasonable steps to keep such password private and
confidential and ensure that it does not become known to other persons. If the
password becomes known to any other person the CUSTOMER will immediately inform
MOVING-EDGE and the password shall be changed immediately be changed.
3. The CUSTOMER shall not knowingly use the service for transmission of
computer viruses, for transmission of any material which is defamatory,
offensive or abusive or of an obscene or menacing character, or which may cause
annoyance, inconvenience or needless anxiety, or for the posting of any such
material to bulletin boards or newsgroups in a manner which constitutes a
violation or infringement of the rights of any person, firm or company
(including but not limited to intellectual property rights).
4. The CUSTOMER acknowledges that MOVING-EDGE is unable to exercise
control over the content of any information passing over the MOVING-EDGE
network and that MOVING-EDGE does not monitor or exercise any editorial control
over the information passing over the MOVING-EDGE network. The CUSTOMER further
acknowledges that MOVING-EDGE hereby excludes all liability in respect of any
transmission or reception of information of whatever kind, or the accuracy of
the contents thereof, or the scrambling of any information or data.
5. The MOVING-EDGE network may be used by the CUSTOMER to access other networks
world-wide and the end user agrees to conform to any acceptable use policies of
MOVING-EDGE and any such other networks. In addition the CUSTOMER undertakes to
conform to any published Internet protocols and standards. In the event that
communications by CUSTOMER do not conform to these standards, or if the
CUSTOMER makes profligate use other than in accordance with this AGREEMENT of
the MOVING-EDGE network to detriment of MOVING-EDGE or other MOVING-EDGE
customers, MOVING-EDGE reserves the right to restrict passage of the CUSTOMER
communications until the CUSTOMER complies with such standards or protocol or
provides undertakings acceptable to MOVING-EDGE in respect of the CUSTOMER’s
future use. In the event that the end user is in breach of any provision of
this schedule, MOVING-EDGE shall be entitled to suspend services forthwith
without notice.