Agreement for the Provision of Broadband Managed Service

1. INTRODUCTION AND INTERPRETATION

1.1 This Agreement is made between Wanstor Ltd (“Wanstor”) and the (“Customer”) as set out on the Agreement Signature Page.

1.2 This Agreement sets out the terms and conditions on which Wanstor will supply the Service to the Customer.

1.3 All words and expressions set out in this Agreement shall have the meaning given to them in Schedule 1.

1.4 This Agreement comprises the following contractual documents:
(a) these Conditions;
(b) Schedule 1 - Definitions;
(c) Schedule 2 - Service Schedule;
(d) Schedule 3 - Service Level Agreement;
(e) Schedule 4 – Pricing Schedule; and
(f) relevant CRF (as accepted by Wanstor).

1.5 The Wanstor Policy for Credit Vetting shall apply to the provision of Service under this Agreement and any financial risk limitation measures that are applied by Wanstor under the Wanstor Policy for Credit Vetting will be compliant applied in a consistent and non-discriminatory way and shall be proportionate to the risk identified.

1.6 Unless specifically stated otherwise in this Agreement the following documents (if applicable) do not contractually form part of the Agreement:
(a) Handbooks;
(b) Order Handbooks;
(c) Service Manuals
Wanstor may refer to these documents in relation to Wanstor’s provision of the relevant Service but any such reference will be for guidance only. Wanstor shall be entitled to amend these non-contractual documents at Wanstor’s sole discretion and Wanstor will provide reasonable notice of such amendment by bringing them to the attention of the Customer through a Wanstor briefing note and publication of the amended document on the Wanstor website. For any elements of these documents specifically stated to be contractual such amendments shall be made in accordance with Clause 10 of this Agreement.

1.7 Unless expressly stated otherwise if there is a conflict between the following, the order of precedence shall be the:
(a) Conditions;
(b) the relevant Schedules; and
(c) CRF (as accepted by Wanstor).

1.8 In this Agreement, except if the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) a reference to an agreement, schedule, annex, appendix, document, manual or other instrument forming part of the Agreement includes any agreed variation or replacement;
(c) all amounts are expressed in UK pound sterling unless otherwise indicated;
(d) a reference to a period of time:
(i) which dates from a given day or the day of an act or event; or
(ii) which commences on a given day or the day of an act or event is to be calculated inclusive of that day;
(e) a reference to a month is a reference to a calendar month and a reference to a year is a calendar year;
(f) a reference to a third person or a third party is a reference to a person who is not a Party;
(g) the words ‘include’, ‘including’, ‘for example’ or ‘such as’ are not used as, and are not to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind; and
(h) the headings in this Agreement are for convenience only and shall not affect its interpretation.

2. COMMENCEMENT

2.1 This Agreement commences on the Commencement Date and continues until terminated in accordance with these Conditions.

3. PROVISION OF SERVICE

3.1 The Service is supplied in accordance with these Conditions and the Service Schedule, as may be amended by Wanstor from time to time, and the CRF as accepted by Wanstor.

3.2 Wanstor shall exercise the reasonable skill and care of a competent service provider in providing the Service and, if required, in determining how to provide the Service to a Site.

3.3 Wanstor gives the following warranties:
(a) that it will provide the Service in an efficient and timely manner and with the reasonable skill and care of a competent provider of the Service;
(b) that it has the appropriate skills, experience and expertise to provide the Service;
(c) that the Service will comply with all relevant contractual specifications and contractual descriptions including without limitation those referred to in the Service Schedule;
(d) that, subject to the relevant Service Level Agreement, it will take reasonable endeavours to restore the Service as quickly as possible in the event of any failure; and
(e) that any goods supplied to the Customer or used to provide the Service under this Agreement (whether or not title is transferred) comply with all relevant contractual specifications and are safe, of satisfactory quality and fit for purpose.

3.4 It is technically impracticable to provide a fault free Service and Wanstor does not undertake to do so. The Service Schedule sets out the obligations of Wanstor and the Customer in respect of maintenance and repair commitments that may apply to a Service, which may include, where applicable, the relevant Service Level Agreement.

3.5 Wanstor agrees to grant the Customer a non-exclusive non-transferable right to use the Wanstor Network for the sole purpose of enabling the Customer to provide the Service to one or more Sites. Wanstor shall only be obliged to continue to provide the Service to a Site for whichever is the shorter of:
(a) the duration of the Customer’s contract with an End User for the Customer Service at that Site; or
(b) the duration of the End User’s contract (whether with Wanstor or a third party) for the use of a BT provided analogue direct exchange line, on which the Customer Service depends, and which terminates on a BT public switched telephone network master socket forming part of the BT Network; or
(c) the duration of this Agreement.

3.6 Wanstor agrees to use its reasonable efforts to provide the Service by the date specified in the Service Schedule and in accordance with the Service Levels set out in Schedule 3 but all dates are estimates and except as set out in the Service Level Guarantee provisions in Schedule 3 (where applicable), Wanstor has no liability for failure to meet any date.

3.7 Wanstor will only provide the Service in the Territory.

3.8 Wanstor may:
(a) occasionally, for operational reasons, introduce or withdraw Service features, introduce process changes to improve the quality of the Service, change the codes or the numbers allocated to a service in order to meet the national numbering requirements of Ofcom, change the technical specification of the Service, change/modify particular components of the Service including without limitation Service upgrades; or
(b) interrupt the Service for operational reasons (such as maintenance or Service upgrades) Scheduled Outage Time, Planned Engineering Works or because of an emergency. Wanstor agrees to restore the interrupted Service as quickly as possible.

3.9 In relation to sub-clause 3.8(a) and (b) above, Wanstor is not obliged to provide a minimum period of notice. However where practicable, Wanstor will aim to provide the Customer with as much notice as Wanstor deems appropriate.

3.10 The Customer and Wanstor agree to complete a Customer Service Plan and both parties agree to use their reasonable efforts to keep the Customer Service Plan up to date.

3.11 The Customer must take reasonable steps to ensure that:
(a) the End User is aware that it does not own any number nor has any right to sell or to agree to transfer any number provided to it; and
(b) Resellers are aware of any requirements that may apply to them relating to any number provided to their end users.

3.12 The Customer and Wanstor agree to use their reasonable efforts to provide all such personnel, resources and information as may be reasonably required in order for the parties to perform their obligations under this Agreement.

3.13 The Customer agrees to provide a forecast to Wanstor as detailed in the Service Schedule to this Agreement.

3.14 Wanstor reserve the right to serve 30 days notice of termination if the Wanstor believes the ADSL service is being abused in any way.

4. SUSPENSION AND TERMINATION

4.1 Without prior notice to the Customer, Wanstor may immediately suspend the supply of the Service, in whole or in part, if:
(a) in the reasonable view of Wanstor, that the Service may pose:
(i) a threat to the safety of persons; or
(ii) a hazard which would impair or prevent the operation of equipment; or
(iii) a threat to the proper operation, access, integrity and/or security of the Wanstor Network; or
(iv) is likely to impede the activities of authorised persons responding to an emergency; or
(b) the Customer ceases to be eligible under regulation to receive the Service;
(c) the Customer fails to pay an invoice in relation to the Service; or
(d) the Customer is Insolvent.

4.2 If Wanstor has a right to terminate this Agreement under one or more of the provisions of clause 4, Wanstor may, acting reasonably having regard to the circumstances and prior to any such termination, immediately suspend the relevant Service by written notice to the Customer.

4.3 If Wanstor suspends the Service then, subject to any contrary terms of this Agreement, Wanstor shall use reasonable endeavours to resume the provision of the Service as soon as the grounds for suspension of the Service no longer exist.

4.4 A Party may terminate, by written notice to the other Party, this Agreement, immediately if:
(a) the other Party has breached a material term of this Agreement and the breach is not capable of being remedied;
(b) the other Party commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within the following periods from the date of the notice of breach:
(i) 14 days, where there is a failure to pay a sum due under this Agreement other than a failure to pay a sum which is subject to dispute; or
(ii) 30 days; or
(iii) a shorter time, reasonably specified in the notice, in the case of an emergency;
(c) the other Party is repeatedly in breach of this Agreement and the breach being repeated is the same, related or significantly similar to the previous breaches;
(d) the other Party is Insolvent;
(e) the other Party ceases to be eligible at law to receive or provide the Service;
(f) the other Party ceases to carry on business; or
(g) a right of termination arises pursuant to clause 17.4 for an event of Force Majeure.

4.5 If the Customer:
(a) fails to pay a sum due under this Agreement 14 days from the date of the notice of breach (other than a failure to pay a sum which is subject to a dispute); or
(b) is repeatedly in breach of this Agreement and the breach being repeated is the same, related or significantly similar to the previous breaches; or
(c) fails to provide or maintain any security, deposit or guarantee reasonably required under the Wanstor Policy for Credit Vetting; then Wanstor may, acting reasonably having regard to the circumstances:
(i) on 2 Working Days’ written notice to the Customer suspend the Service (in whole or in part); and/or
(ii) immediately on written notice to the Customer refuse to accept orders for the Service.

4.6 Wanstor may terminate this Agreement on 12 months’ notice to the Customer. The Customer may terminate this Agreement on 6 months’ notice to Wanstor.

4.7 Wanstor may by written notice to the Customer terminate this Agreement immediately if the Customer has failed to place an order for the Service within twelve (12) months’ of the Commencement Date.

4.8 Where Wanstor intends to withdraw the Service in its entirety and not offer a similar version, Wanstor will aim to give the Customer a minimum of twelve (12) months’ notice. Where Wanstor intends to withdraw the Service in its entirety and does offer in Wanstor’s reasonable opinion a similar version, Wanstor will aim to give the Customer a minimum of six (6) months’ notice.

4.9 If the Customer terminates this Agreement during a Minimum Period other than where:
(a) Wanstor has breached this Agreement (and the Customer has a right to terminate); or
(b) this Agreement is terminated for Force Majeure;
the Customer must pay Wanstor the appropriate Early Termination Charge and any other Charges which may be applicable.

4.10 If the Agreement is terminated by the Customer under clause 4.4 Wanstor agrees to credit or repay the Customer with the appropriate proportion of any rental or other Charges paid in advance (other than for any part of the Minimum Period if Early Termination Charges are payable under this Agreement) for the period after the cessation of the Customer’s liability to pay rental.

4.11 For the avoidance of doubt Wanstor, in the event of any of the circumstances identified in clause 4 of the Agreement (excluding clause 4.6 above) arising and thereby giving either Party a right to terminate the Agreement or to suspend the Service, the dispute resolution process in clause 11 of this Agreement will not operate to extinguish, override or otherwise hinder the exercise of that right provided that any such suspension and/or termination right (including notice of and/or any reference to any such rights) is not used to unconscionably or unduly influence the outcome of that dispute process. Nothing in this clause restricts Wanstor from suspending new orders for a Service.

4.12 A Party is not obliged to suspend a Service or give a notice of suspension before exercising its right to terminate this Agreement.

4.13 Wanstor may terminate the Service provided under this Agreement to any individual Site on 30 days’ written notice, in accordance with clause 21 below, to the Customer in circumstances which include but are not necessarily limited to the following:
(a) where an End User’s Site or a Customer’s Site has been demolished; or
(b) where the new occupant at an End User Site does not wish to receive the Customer
Service. Wanstor agrees that it will not use the provisions of this sub-clause as a means to terminate this Agreement.

4.14 If Wanstor terminates this Agreement on the grounds of insolvency or cessation of business specified above, Wanstor may, communicate directly with End Users to inform them of the termination of the Service and how this will affect the telecommunications services they receive from the Customer and/or Wanstor including the options available to End Users in order to avoid disconnection or interruption to the End Users’ existing telecommunications services. Such communication will not favour Wanstor’s own products and services. This sub-clause survives termination of the Agreement.

5. CHARGES

5.1 The Customer must pay Wanstor the Charges for the Service as set out in the Pricing Schedule
(a) by the Due Date; and
(b) without set-off, counterclaim or deduction (except where permitted in this Agreement).

5.2 Charges for a component of the Service shall commence on the applicable Operational Effective Date.

5.3 The Customer agrees to pay the Charges by the Due Date and Wanstor may charge daily interest on late payments at London Inter-Bank Offered Rates + 4% per annum both before and after any judgment for the period beginning on the date on which the payment is due and ending on the date payment is actually made.

5.4 In addition to charging interest in accordance with any right Wanstor has under the Agreement or exercising any other rights Wanstor may have at law where an amount which is not disputed and is outstanding and remains unpaid after the Due Date, Wanstor reserves the right to take action, without further notice to the Customer, to recover such amount.

5.5 All Charges exclude VAT, which is charged at the applicable rate and is payable by the Customer.

5.6 The Customer is subject to the Wanstor Policy for Credit Vetting.

5.7 Subject to the Wanstor Policy for Credit Vetting the Customer agrees to provide any deposit or guarantee required immediately upon receiving notice from Wanstor, and if it does not Wanstor may refuse to accept any orders in relation to the Service until such deposit or guarantee is provided.

5.8 The Customer agrees to pay, where applicable, rental in accordance with Wanstor’s billing cycle as set out in the Handbook. If Wanstor begins, or ceases, the Service or part of it on a day which is not the first or last day of the period by reference to which the Customer pays rental, Wanstor will apportion rental on a daily basis for the incomplete period.

5.9 If the Customer disputes any invoice from Wanstor relating to the Service, it will notify Wanstor within 28 days giving written reasons for such dispute and, without prejudice to clause 5.10 below, will not withhold payment of any amount not in dispute. Such dispute will then be dealt with in accordance with clause 11 below.

5.10 The Customer will not be entitled to withhold any payment to Wanstor on the grounds that the Customer has a dispute with End Users and/or Resellers in respect of the provision of the Customer Service to End Users and/or Resellers.

5.11 The Customer may cancel the Service or any part of it at any time before the Operational Effective Date. If the Customer cancels the Service or any part of it before the Operational Effective Date, it must pay Wanstor the cancellation Charges specified in the Pricing Schedule.

6. WANSTOR EQUIPMENT

6.1 Wanstor Equipment remains the property of Wanstor at all times unless otherwise specifically agreed by the Parties in writing.

6.2 The Customer agrees (and agrees to take reasonable steps) to, if necessary having regard to the Service:
(a) ensure End Users or Resellers agree to allow the installation and use of Wanstor Equipment at the Customer’s, End Users’ or Resellers’ Site(s);
(b) prepare and provide a suitable place, conditions and connection points required by Wanstor, for Wanstor Equipment and electricity at the Site in accordance with Wanstor’s reasonable instructions, if any; and
(c) either:
(i) obtain all necessary third party consents (excluding wayleaves); or
(ii) provide reasonable assistance to Wanstor where Wanstor is the Party obliged to obtain
necessary third party consents; in relation to building alterations or additions, access to land or permission to put Wanstor Equipment on property if such consents are necessary for Wanstor to provide the Service.

6.3 The Customer is responsible for Wanstor Equipment at the Customer’s, End Users’ and Resellers’ Sites, and must take reasonable steps to ensure that nobody (other than somebody authorised by Wanstor) adds to, modifies or in any way interferes with it.

6.4 The Customer agrees to be liable to Wanstor for any loss of or damage to Wanstor Equipment (reasonable wear and tear excepted) in accordance with the liability provisions detailed at clause 12, except where such loss or damage is caused by Wanstor or anyone acting on Wanstor’s behalf.

7. CONNECTION OF EQUIPMENT TO THE SERVICE

7.1 Any Customer supplied equipment connected to the Service must:
(a) be technically compatible with the Service;
(b) not harm the Wanstor Network, Wanstor Equipment or another communication provider’s or third party’s network or equipment; and
(c) be connected and used in line with any relevant instructions and (including any standards set out in the relevant SIN), laws and applicable OFCOM decisions and/or directions.

7.2 If the equipment does not meet the relevant instructions, standards (including SINs) or laws, the Customer must immediately disconnect it or Wanstor may do so, at the Customer’s expense. If the Customer asks Wanstor to test the equipment to make sure that it meets the relevant instructions, standards (including SINs) or laws, the Customer agrees to pay Wanstor any applicable Charges referred to in the Pricing Schedule.

7.3 Wanstor shall not be liable for failure to meet any Service Levels or other obligations under this Agreement if the failure is caused by any equipment which is found to be connected otherwise than in accordance with this clause 7.

8. ACCESS AND SITE REGULATIONS

8.1 Wanstor will normally only require access for Site visits during Wanstor Normal Working Hours but may, on reasonable notice, require the Customer to provide access at other times. Wanstor may agree to work outside Wanstor Normal Working Hours but the Customer must pay Wanstor’s additional Charges for doing so as detailed in Pricing Schedule.

8.2 The Customer agrees to provide and agrees to take reasonable steps to ensure that End Users and Resellers provide a suitable and safe working environment for Wanstor at the Customer’s Site, the End Users’ Sites and or Resellers’ Sites and take reasonable steps to provide access to the Customer’s Site and to ensure that the End Users or Resellers provide Wanstor with access to End Users’ or Resellers’ Sites.

8.3 Wanstor agrees to observe the Customer’s and the End User’s or the Reseller’s reasonable Site safety and security requirements as previously advised to Wanstor in writing. Wanstor agrees to observe any reasonable changes in such requirements upon receipt of written notification of such change.

8.4 Wanstor agrees to provide a suitable and safe working environment for the Customer at Wanstor’s Site.

8.5 Wanstor agrees that its personnel will comply with the highest standards of personal conduct and courtesy and with any relevant rules (of which it is made aware) of the Customer’s, Resellers’ and End Users’ Sites.

8.6 Wanstor accepts responsibility for any property damage caused by Wanstor’s negligence however following installation or maintenance of equipment by Wanstor it is the responsibility of the Customer, End User or Reseller to carry out afterwards any making good or decorator’s work that may be required.

9. USE OF THE SERVICE

9.1 The Customer must not use the Service and must take reasonable steps to ensure that the Customer Service is not used:
(a) unlawfully or fraudulently or in breach of any legislation, including but not limited to:
(i) any improper use of a telecommunication system under the Communications Act 2003 or any other relevant UK legislation including:
(A) to send, knowingly receive, upload, download, use or re-use material or a message which is grossly offensive or of an indecent, obscene or menacing character; or
(B) to make Nuisance Calls, including false messages and persistent misuse to cause annoyance, inconvenience or needless anxiety; or
(ii) any unauthorised access or denial of service attacks in breach of the Computer Misuse Act 1990; or
(b) contrary to any instructions given by Wanstor which Wanstor reasonably believes are necessary for reasons of:
(i) health and safety;
(ii) quality of the Service; or
(iii) an interruption to the Service for operational reasons (such as maintenance or Service upgrades) Scheduled Outage Time, Planned Engineering Works or because of an emergency.

9.2 If an End User uses the Customer Service in breach of clause 9.1 then the Customer agrees to send warning letters to the End User that their service will be disconnected if they continue to use the Customer Service in that way or make such Nuisance Calls. If the End User continues to use the Customer Service in breach or to make such Nuisance Calls, that End User’s service will be disconnected by Wanstor.

9.3 If an End User uses the Service in breach of clause 9.1 and the Customer continues to supply the Customer Service to the End User, Wanstor will disconnect that End User’s service without prejudice to Wanstor’s rights of termination under this Agreement.

9.4 The Customer shall include and maintain in its contracts with its Resellers conditions equivalent to those contained in clause 9 and undertakes to diligently and properly enforce such conditions.

10. AMENDING THE AGREEMENT

10.1 Wanstor may change this Agreement at any time in order to:
(a) comply with any legal or regulatory obligation; or
(b) change the Charges payable under this Agreement; or
(c) protect the use of the Wanstor Corporate Marks; or
(d) introduce new or improved Service features; or
(e) withdraw Service features or components; or
(f) introduce new or improved Service Levels; or
(g) maintain the integrity or security of the Service or Wanstor Network; or
(h) change the technical specification of the Service; or
(i) improve clarity, or make corrections to typographical errors; or
(j) introduce process changes; or
(k) change the codes or the numbers allocated to a service in order to meet the national numbering requirements of Ofcom.

10.2 In relation to clause 10.1 above, Wanstor is not obliged to provide a minimum period of notice. However where practicable, Wanstor will aim to provide the Customer with as much notice as Wanstor deems appropriate. Wanstor shall be entitled to amend these terms at Wanstor’s sole discretion and Wanstor will provide reasonable notice of such amendment by bringing them to the attention of the Customer through a Wanstor briefing note or publication of the amended Agreement on the Wanstor website. On notification of amendments to the Agreement, the Customer shall be deemed to be bound by the amended terms.

10.3 Wanstor may also change this Agreement at any time with the agreement of the Customer. Wanstor will give the Customer written notice of the proposed changes and publish details of those changes on the Wanstor Website.

11. DISPUTES

11.1 The Parties agree to use their reasonable endeavours to resolve disputes without the requirement for escalation and/or the involvement of the courts or applicable regulatory authorities by making use of the dispute resolution procedure set out in this clause 11.

11.2 Nothing in this dispute resolution procedure shall prevent either Party:
(a) from seeking (including obtaining or implementing) interlocutory or other immediate relief; or
(b) from pursuing any form of court proceedings or alternative dispute resolution; or
(c) exercising any rights and remedies that may be available in respect of a breach of the provisions of this Agreement.

11.3 A Party to the Agreement must initiate a dispute by notifying the other Party’s Nominated Contact of their complaint. Following such notice the Parties will use their reasonable endeavours to resolve the dispute within 21 days of notification.

11.4 If the dispute remains unresolved after 21 days either Party may send written notice to the other Party’s Nominated Contact requiring the dispute to be escalated and stating to whom the Party has escalated the dispute. The Nominated Contact receiving such notice shall acknowledge receipt of such notice within 4 Working Days and state to whom the dispute has been escalated. Following such notice the Parties shall use their reasonable endeavours to resolve the dispute within 14 days of escalation, involving appropriate senior managers.

11.5 If the dispute remains unresolved 14 days after escalation under clause 11.4, then the Parties shall use their reasonable endeavours to agree an appropriate alternative dispute resolution (“ADR”) procedure for the resolution of the dispute, as detailed in clause 11.7; and/or

11.6 Failing settlement or agreement for ADR, all disputes arising out of or in connection with this Agreement may be settled by reference to the Courts of England and Wales.

11.7 The Parties agree to consider resolving disputes through ADR by:
(a) Early neutral evaluation in accordance with the CIArb’s IDRS Cost-Controlled Early Neutral Evaluation Procedure;
(b) Expert non-binding determination in accordance with the CIArb’s IDRS Cost-Controlled Early Expert Determination Procedure; or
(c) Mediation in accordance with the CIArb’s IDRS Cost-Controlled Mediation Procedure.

11.8 The Parties shall bear their own costs of any alternative dispute resolution procedure adopted in accordance with this clause and all negotiations connected with the dispute will be conducted in confidence and without prejudice to the rights of the Parties and any further or other proceedings.

11.9 Unless otherwise agreed by the Parties, any alternative dispute resolution will be conducted in London and in the English language.

12. LIABILITIES

12.1 Nothing in this Agreement shall operate so as to exclude or limit the liability of either Party to the other for:
(a) death or personal injury arising out of negligence; or
(b) fraudulent misstatement; or
(c) fraud;
or for any liability which cannot be excluded or limited by law.

12.2 Subject to clauses 12.1, 12.3 and 12.6, the total aggregate liability of either Party to the other under or in relation to this Agreement for breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty, shall not exceed:
(a) £50,000.00 for any one incident or series of connected incidents; and
(b) £50,000.00 for all incidents connected or unconnected in any 12 calendar month period.

12.3 The limitation of liability set out in Clause 12.2 shall not apply in respect of any liability which may arise under any of the following:
(a) clause 9 (Use of Service);
(b) clause 16 (IP Rights);
(c) the relevant Service Level Guarantee in Schedule 3; and
(d) obligations arising under this Agreement to pay moneys in the ordinary course of business.

12.4 Neither Party shall be liable to the other for any of the following types of loss or damage arising under or in relation to this Agreement:
(a) any loss of business, contracts, anticipated savings, anticipated profits, anticipated revenue, goodwill, or revenue, any wasted expenditure, time, opportunity, from business interruption or any loss or corruption of data (regardless of whether any of these types of loss or damage are direct, indirect or consequential); or
(b) any indirect or consequential loss or damage whatsoever, even if that Party was aware of the possibility that such loss or damage might be incurred by the other.

12.5 Each Party shall be liable to reimburse the other Party in respect of any claims made or losses suffered in respect of damage to or loss of tangible property caused by the first Party’s negligence up to a maximum of £50,000.00 in any period of 12 calendar months.

12.6 Nothing in clause 12.4 shall prohibit or hinder the exercise of either Party’s rights under the relevant Service Level Guarantees in Schedule 3.

12.7 This Clause 12 shall survive and shall not be rendered ineffective by the termination or expiry of this Agreement for any reason whatsoever.

13. INDEMNITIES

13.1 Subject to the limitations of liability set out in clause 12 and the provisions of clause 13.2 each Party agrees to be responsible for and indemnify the other Party against all liabilities, loss, damages, costs and expenses arising or incurred in respect of any actions, claims or legal proceedings which are brought or threatened against that other Party by a third party where that first Party is in breach of:
(a) Clause 8 (Access and Site Regulations); or
(b) Clause 9 (Use of the Service); or
(c) Clause 14 (Data Protection); or
(d) Clause 16 (IP Rights);

13.2 Nothing in this clause shall restrict or limit the indemnified Party's general obligation at law to mitigate a loss which it may incur as a result of a matter giving rise to a claim.

13.3 As a condition of any indemnity given by the Customer or by Wanstor in this Agreement, the indemnified Party shall:
(a) notify the other Party promptly of any related claims or legal proceedings or allegation of infringement upon becoming aware of the same;
(b) actively consult with the other Party regarding the conduct of any action and take its views into account;
(c) make no admissions relating to any claims or legal proceedings or allegations of infringement without the consent of the other Party, which consent shall not be unreasonably withheld or delayed;
(d) not agree any settlement or compromise of such claims or legal proceedings nor make any payment on account of them without the consent of the other Party, which consent shall not be unreasonably withheld or delayed;
(e) allow Wanstor to modify any services or facilities provided pursuant to this Agreement so as to avoid the infringement; and
(f) allow the other Party at the other Party’s reasonable request to conduct all negotiations and proceedings providing that the other Party consults with the indemnified Party and keeps the indemnified Party fully informed with respect to a claim, legal proceedings or an allegation of infringement and obtains the indemnified Party’s approval (such approval not to be unreasonably withheld or delayed) to all material steps taken in the conduct of the defence of a claim, legal proceedings or an allegation of an infringement. The indemnified Party shall give the other Party all reasonable assistance in these matters providing the other Party agrees to pay the indemnified Party’s reasonable expenses for such assistance.

14. DATA PROTECTION

14.1 Wanstor and the Customer each agree to comply with their respective obligations under Data Protection Law and to obtain and maintain all relevant registrations and notifications. For the purposes of this Agreement, the Customer shall be the Data Controller and Wanstor shall be the Data Processor, each as defined pursuant to Data Protection Law. The Data Controller shall obtain and maintain all consents required under Data Protection Law to enable the Data Processor to process Personal Data (as defined pursuant to Data Protection Law) for the performance by the Data Processor of its obligations under this Agreement.

14.2 In processing the Personal Data the Data Processor will process such data to the extent necessary for the purposes of performing its obligations under this Agreement or as may be required by any competent authority under Data Protection Law, or other legislation or regulation.

14.3 Any instructions given by the Data Controller in respect of the Personal Data shall at all times comply with the Data Protection Law.

14.4 The Data Processor agrees to:
(a) take such technical and organisational measures against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the Personal Data in accordance with such standards of protection (and no less) than that which it would treat its Personal Data where it is the Data Controller; and
(b) take reasonable steps to ensure that employees who have access to the Personal Data have appropriate data protection training; and
(c) provide all reasonable cooperation to assist the Data Controller with all notices, requests or other enquiries relating to data subject access requests which the Data Controller may receive, provided that the Data Controller agrees to pay any reasonable costs incurred by the Data Processor.

15. CONFIDENTIALITY

15.1 The Parties agree to keep in confidence any information (whether written or oral) of a confidential nature obtained under or in connection with this Agreement or the Service. The Parties shall not without the written consent of the other Party disclose that information to any person other than:
(a) their employees or professional advisers;
(b) the employees of either Party’s Group Companies or its or their sub-contractors or suppliers; and disclosure under sub-clauses 15.1(a) or (b) above can only be made to the extent necessary in order for the Party to fulfil its obligations under this Agreement.

15.2 The receiving Party shall exercise no lesser degree of care of Confidential Information than would a reasonable person with knowledge of the confidential nature of the information. A receiving Party shall exercise no less security or degree of care than that Party applies to its own Confidential Information of an equivalent nature.

15.3 A receiving Party shall restrict disclosure of Confidential Information relating to the other Party to those persons who have a reasonable need to know and Confidential Information shall be used solely for the purposes for which it was disclosed.

15.4 Disclosure of the following shall not be a breach of this clause 15:
(a) any information which is in the public domain other than through a breach of this Agreement;
(b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
(c) information obtained from a third party who is free to disclose it;
(d) information which is lawfully demanded or required to be disclosed by any governmental or judicial authority or by the Listing Rules of the London Stock Exchange (in force from time to time) provided that (if reasonable and lawful to do so) the receiving Party informs the disclosing Party in writing of the extent of the disclosure, prior to or as soon as reasonably practicable after such disclosure; and
(e) any information which has been replicated independently by someone without access to or knowledge of the information.

15.5 This clause 15 shall remain in effect for 2 years after the termination of this Agreement

16. IP RIGHTS

16.1 Except as expressly provided in this Agreement, Intellectual Property Rights shall remain the property of the Party creating or owning the same and nothing in this Agreement shall be deemed to confer any assignment or license of the Intellectual Property Rights of one Party to the other Party.

16.2 If software, documentation or manuals are provided to enable the Customer to receive and use the Service, Wanstor grants the Customer, for the duration of this Agreement, a non-exclusive, non-transferable licence to use such software, documentation or manuals for its own internal use in connection with the Service. Nothing in this clause 16.2 shall prevent use of the software, documentation or manuals by any of the Customer’s Group Companies where such use is essential for the proper use of the Service under this Agreement.

16.3 Except as permitted by applicable law the Customer must not, without Wanstor’s prior written consent, copy, de-compile or modify any software, nor copy the manuals or documentation relating to that software, nor knowingly allow or permit anyone else to do so. The Customer shall be entitled to make such number of copies of the software for the purpose of back-up or disaster recovery as is reasonably necessary for the lawful use of the software in accordance with the Service.

16.4 In the absence of explicit prior written consent from Wanstor, the Customer shall not use:
(a) the Wanstor Corporate Marks or the Wanstor name or any element thereof either alone or in combination with another word or device mark, nor any other brand, get up or trade mark of Wanstor or its affiliated companies, where such use constitutes or would constitute an infringement of Wanstor’s registered trade mark or common law trade mark rights; or
(b) photographs or representations of any Wanstor buildings. However, nothing in this clause prohibits the Customer from making legitimate use of the Wanstor name or any trade mark of Wanstor whether in the form of factual statements or in accordance with Section 10(6) of the Trade Marks Act 1994, or in any other way which does not constitute an infringement of Wanstor’s registered or common law trade mark rights. However, when making legitimate use of the letters “Wanstor”, the Customer agrees to ensure that the letters “Wanstor” shall be no more prominent than the immediately surrounding letters and in no case greater than the surrounding typeface.

16.5 The Customer shall not:
(a) represent itself as Wanstor; or
(b) misrepresent its relationship with Wanstor; or
(c) misrepresent the nature and effect of its contracts with End Users; or
(d) represent that it has any authority to provide or promote any products or services on behalf of Wanstor; or
(e) in any other way pass off its business as being Wanstor, in a joint venture with Wanstor or part of Wanstor.

16.6 The Customer shall include and maintain in its contracts with its Resellers conditions equivalent to those contained in clauses 16.4 and 16.5 and undertakes to diligently and properly enforce such conditions and also agrees to:
(a) notify Wanstor if a Reseller is in breach of such conditions; and
(b) assist Wanstor in any action that Wanstor considers to be necessary to stop and/or prevent misuse or infringement of Wanstor’s trade marks by a Reseller acting in breach of such conditions; and
(c) upon request by Wanstor, suspend the Reseller’s right to place such orders through the Customer, except for orders which related to End User debtor management or cessation of services if Wanstor reasonably believes that a Reseller is acting in breach of such conditions.

16.7 The Customer is permitted, subject to the provisions contained in this sub-clause, to state that:
(a) it is provided with the Service by Wanstor but strictly and at all times referring only to the Service by the full name of that Service as defined in this Agreement, and not by any abbreviation of that name; and
(b) the fault repair service is provided by Wanstor on behalf of the Customer; and
(c) installation of the Wanstor Equipment is carried out by Wanstor on behalf of the Customer; and
(d) disconnection and recovery of the Wanstor Equipment is carried out by Wanstor on behalf of the Customer. In connection with paragraphs (b), (c) and (d) above the Customer may make other reasonable statements conveying a substantially similar meaning.

16.8 Wanstor agrees to advise the Customer in writing, in accordance with clause 21, of the procedures that it has put in place (including testing with the latest commercially available virus detection software) to ensure that any software supplied under this Agreement or used in connection with this Service is not infected by viruses and/or logic bombs, worms, Trojan horses and any other types of disruptive, destructive or nuisance programs.

16.9 The Customer warrants to Wanstor that it will follow any reasonable instructions given to the Customer by Wanstor (including testing with the latest commercially available virus detection software) to ensure that any software used with or in connection with the Service is not infected by viruses and/or logic bombs, worms, Trojan horses and any other types of disruptive, destructive or nuisance programs.

16.10 The Customer agrees to sign, and shall use all reasonable efforts to procure that any Reseller and/or End User will sign, any agreement containing reasonable terms which is reasonably required by the owner of the Intellectual Property Rights to protect the owner’s interest in its Intellectual Property Rights provided that any Charges payable under the terms of such agreement will be included within Wanstor’s Charges for the Service payable under this Agreement.

17. FORCE MAJEURE

17.1 If either Party fails to do or is delayed in doing what it has agreed in respect of Service supplied or to be supplied under this Agreement because of Force Majeure:
(a) the Party affected shall:
(i) have no liability to the other for that delay in or failure to perform the Service affected by the Force Majeure event;
(ii) have an obligation to notify the unaffected Party (in writing in accordance with clause 21 below) of the Force Majeure event and the Services affected by the such Force Majeure, as soon as the Party relying on the Force Majeure event considers it reasonably practicable after commencement of the Force Majeure event, and will use reasonable endeavours to mitigate the effect of such Force Majeure; and
(iii) continue performing those obligations under this Agreement that are not affected by Force Majeure and in performing those obligations shall use reasonable endeavours to deploy its resources so that (when taken with obligations to End Users and third parties) there is no undue discrimination against the other Party; and
(b) the other Party shall be released to the equivalent extent from its obligation to make payment for such services or facilities or complying with its obligation in relation to them.

17.2 To the extent that either Party has paid in advance for the Service affected by the Force Majeure event (or Service has been suspended as a consequence of the Force Majeure event), the other Party will issue a credit note to that Party for a pro-rata proportion of the Charges to that Party for the period of suspension of the Service, pursuant to this clause.

17.3 When the Force Majeure event has ceased the affected Party shall notify the other Party that the terms of the Agreement shall be reinstated in full.

17.4 If a Party is prevented, hindered or delayed in performing an obligation under this Agreement because of Force Majeure, for a period exceeding three (3) months either Party may suspend or terminate this Agreement by giving not less than 30 days written notice and provided the Force Majeure has not ceased prior to the expiry of the notice this Agreement shall terminate or be suspended as applicable.

18. THIRD PARTIES

18.1 A person who is not a Party to this Agreement has no right under The Contract (Rights of Third Parties) Act 1999 (“the 1999 Act”) to enforce any term of this Agreement. The 1999 Act shall not apply to this Agreement.

19. NOVATIONS

19.1 Neither Party may transfer any of their rights or obligations under this Agreement without the written consent of the other, such consent not to be unreasonably withheld or delayed. In the case of transfer to a Party’s eligible Group Company, that Party may transfer the rights or obligations (or both) by way of novation to that Group Company subject to the signing of a novation agreement.

19.2 Wanstor’s consent to any such transfers shall be subject to the Wanstor Policy for Credit Vetting.

20. ENTIRE AGREEMENT

20.1 This Agreement contains the whole agreement between the Parties and replaces all previous written or oral agreements relating to the Service supplied under this Agreement.

20.2 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on, and will have no remedy in respect of, any statement, representation (other than any fraudulent misrepresentation), warranty or understanding (whether negligently or innocently made) of any person (whether Party to this Agreement or not) other than as set out in this Agreement.

21. NOTICES

21.1 Notices given under this Agreement must be in writing and may be delivered, subject to clause 21.3, by hand, fax, e-mail or first class post to the following:
(a) the Nominated Contact or the appropriate person indicated in the Customer Service Plan; and
(b) for all other matters, in the case of notices from Wanstor, the Customer’s registered office address or a fax number at its registered office or any alternative address or fax number or e-mail address which the Customer notifies to Wanstor.

21.2 In the absence of contrary evidence a notice shall be duly served:
(a) if delivered by hand, at the time of delivery;
(b) if sent by first-class post, three (3) Working Days after the date of posting;
(c) if sent by fax, at the time of transmission; and
(d) if sent by email, at the time of successful receipt by the recipient (as may be evidenced by, but not limited to, the transmission of an automatic electronic read receipt from, or a manual acknowledgement by, the recipient).

21.3 Notices in relation to breach, suspension or termination and any document concerning legal proceedings or proposed legal proceedings may not be delivered by email and shall be delivered to the Nominated Contact or the appropriate person indicated in the Customer Service Plan.

22. SEVERABILITY

22.1 Should any provision of this Agreement be held by a court or other competent authority to be invalid, unenforceable, void or voidable in whole or in part the remaining provisions of this Agreement will continue in full force and effect.

23. INDEPENDENT CONTRACTORS AND AGENCY

23.1 Each of the Parties is and shall remain at all times an independent contractor fully responsible for its own acts or defaults (including those of its employees and agents). Neither Party is authorised and neither of the Parties nor their employees, agents or representatives shall at any time attempt to act or act on behalf of the other Party to bind the other Party in any manner whatsoever to any obligations. Neither Party nor its employees, agents or representatives shall engage in any acts which may lead any person to believe that such Party is an employee, agent or representative of the other Party. Nothing in this Agreement shall be deemed to constitute a partnership between the Parties.

23.2 If the Customer wishes to appoint an agent for the purposes of the Service in whole or in part, the Customer will notify Wanstor in accordance with the process set out in the Handbook and Wanstor will consider such request. If agreed, Wanstor will make any necessary changes to its processes and systems and shall deal with the appointed agent for such purposes until the Customer notifies Wanstor that the appointment has been terminated.

24. WAIVER AND REMEDIES

24.1 Any failure to exercise or any delay in exercising a right or remedy provided by this Agreement or at law or in equity will not constitute a waiver of a right or remedy or a waiver of any rights or remedies. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement will not constitute a waiver of any other breach or default and will not affect the other terms of this Agreement.

24.2 No waiver of any breach of, or failure to enforce, any obligation of a Party or a term of this Agreement is valid unless it is in writing and signed by an authorised officer on behalf of the Party granting the waiver.

25. LAW AND JURISDICTION

25.1 The interpretation, validity and performance of this Agreement is governed in all respects by the law of England and Wales and the Parties submit to the exclusive jurisdiction of the English Courts.