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TOS-ISP/NETWOR

TOS-ISP/NETWOR

General Terms & Conditions and Service Level Agreement

January 2020

THIS AGREEMENT is made

BETWEEN:

  • SUBSET SOLUTIONS UK LIMITED a company registered in England and Wales under company number 09542306 and whose registered office is at Po Box 1327 Woodgrange Avenue, Enfield, EN1 9AE trading as SUBSET (“SUBSET”) and
  • The company named in the service order form (“Customer”)

The Parties wish to enter into this Agreement pursuant to which the Customer will be able to order telecommunication services and, subject to the terms of this Agreement, SUBSET has agreed to provide and maintain (and/or procure the provision and maintenance of) such telecommunication services.

Now it is hereby agreed that:

  1. Definitions and Interpretations
    • In this Agreement, unless the context otherwise requires, the following terms shall have the meanings assigned to them below, namely:

“Act” means the Communications Act 2003 and any successor legislation;

“Acceptable Use Policy” means the acceptable use policy (as may be amended from time to time) published on SUBSET’s website located at https://subsetenterprise.co.uk;

“Acceptance Tests” means a series of installation and testing procedures to be carried out by SUBSET prior to the delivery of the Services and “Acceptance Testing” shall be construed accordingly;

“Access Zone” means the fibre or radio network connection between the Premises and/or the Site and the SUBSET Zone

“Agreement” means this Agreement, which comprises SUBSET’s standard terms and conditions, the Service Level Agreement, the Miscellaneous Charges, the Acceptable Use Policy and the Order Acceptance Form;

“Annual Rental” means the annual charges payable by the Customer as set out in the Order Acceptance Form;

“Associate” any company associated with Subset Solutions UK Limited, including for the avoidance of doubt,

Brexit Trigger Event” means an adverse impact on SUBSET’s ability to perform any part of its obligations under this Agreement and/or an increase in the costs incurred by SUBSET in performing its obligations under this Agreement;

“BUaaS” means back-up as a service;

“Charges” means the Annual Rental and other charges payable to SUBSET pursuant to this Agreement and the Order Acceptance Form;

“Connection” means an electronic communication circuit or circuits to be supplied by SUBSET to an agreed Service Demarcation Point for the delivery of internet Services pursuant to this Agreement. Such Connection shall be supplied as point to point only, or as part of an IP VPN or Ethernet VLAN depending on the Customer requirements identified in the Order Acceptance Form;

“Connection Commencement Date” means the date each individual Connection is available for use by the Customer;

“Connection Ready for Service Date” means the date upon which the individual Connection will be ready for service such date to be confirmed by SUBSET;

“Consultancy Services” means the advisory and consultancy services (if any) to be provided by SUBSET to the Customer under this Agreement, as described in more detail in the Order Acceptance Form (as modified or substituted by SUBSET from time to time);

“Customer Data” means the data processed by the Customer using the Services;

“Customer Equipment” means any apparatus, and any software embodied therein, which does not form part of the Equipment (but which may be connected to the Equipment) and is used by the Customer in conjunction with the Equipment in order to obtain or use the Services;

“Data Controller” has the same meaning given to the term in the DPA;

Data Processor” has the same meaning given to the term in the DPA;

“Data Protection Legislation” means the DPA, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2016, the Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations 2018, the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy from time to time including the General Data Protection Regulation (EU) 2016/679;

“Data Subject” has the same meaning given to the term in the DPA;

“DPA” means the Data Protection Act 2018 and any successor legislation;

“Default Interest Rate” means the statutory rate of interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;

“DRaaS” means disaster recovery as a service;

“Due Date” means the due date for payment of an invoice pursuant to clause 13;

“Emergency” means any event or circumstance which results or could reasonably be expected to result in a risk of personal injury or death or material damage to property and, without prejudice to the generality of the foregoing, an event or circumstance defined as an Emergency in the Act;

“EULA” means the end user licence agreement applicable to any software provided to the Customer as part of the Services as stipulated by the manufacturer of the software;

“Equipment” means any hardware, cabling, software, underlying infrastructure or any other equipment that SUBSET shall provide to the Customer as part of the Service pursuant to this Agreement from time to time, whether owned by SUBSET or a third party supplier but excluding any equipment, which is bought by the Customer and specified in the Order Acceptance Form. Such equipment may include an appropriate switch and/or router to be supplied by SUBSET to the Customer if agreed between the Parties and/or indicated as required on the Order Acceptance Form.

“Force Majeure” means a circumstance described in clause 16;

“General Conditions of Entitlement” means the general conditions of entitlement set by OFCOM in accordance with the Communications Act 2003, as may be amended, modified or replaced from time to time.

“Group” in relation to a body corporate, means the body corporate, any other body corporate which is its holding company or subsidiary and any other body corporate which is a subsidiary of that holding company as defined in s1159 Companies Act 2006;

“IaaS” means infrastructure as a service which may include, but not limited to, co-location, managed/dedicated/virtual servers, hosting, DRaaS and BUaaS;

“Installation Charge” means the charges payable on installation of the Connection by the Customer as set out in the Order Acceptance Form;

Intellectual Property Rights” means all intellectual property rights of whatever nature subsisting at any time in any part of the world including without limitation, patents, copyrights, design rights, registered designs, trademarks, service marks and know-how, rights in respect of confidential information, rights in respect of the EULA, rights in respect of databases, the rights to apply for any of the foregoing and applications for any of the foregoing;

“IP VPN” means a communications network running over a shared infrastructure which is used to supply Layer 3 IP connectivity between two or more Sites;

“Law” means the Act and any other law, statute or regulation, country specific regulations, General Conditions of Entitlement, code of conduct (whether or not having the force of law), copyright or other third party rights, obligation in contract or any term of any licence to which SUBSET or the Customer is from time to time subject;

“Managed Security Firewall” means the virtual or physical firewall which may be offered as part of SUBSET’s managed security solution. For the avoidance of doubt, SUBSET shall retain responsibility for the hardware, licensing and any high availability configuration while the Customer shall remain responsible for the configured policy and rule set and its suitability for the Customer’s own environment;

“SUBSET PoP” means a point of presence on the SUBSET System where SUBSET Equipment is sited, excluding the Premises and/or the Site;

“SUBSET System” means the System or systems operated by SUBSET which also includes, where applicable to any internet Services provided under this Agreement and any system operated by an Associate;

“SUBSET Zone” means the national IP network that SUBSET operate in the United Kingdom;

“Miscellaneous Charges” means the miscellaneous charges set out in Schedule 2;

“Minimum Term” means the relevant duration of this Agreement to provide Services as set out in the Order Acceptance Form. The Minimum Term shall be no less than 12 months from the later of the Connection Commencement Date and, where the Order Acceptance Form includes a service other than internet Services or more than one Service, the date the other Service or last Service (as the case may be) is delivered to the Customer;

“Network Interface Device” is a network device that serves as the demarcation point between the SUBSET Zone and the Customer’s internal network, which allows LAN connected computers to connect to outside networks across the SUBSET Zone.

“Order Acceptance Form” means the order acceptance form containing details of the Services to be supplied to the Customer, together with any additional forms submitted by the Customer and accepted by SUBSET;

“Outage” means an event or action (not attributable to the act or omission of the Customer or arising at the request of the Customer), which prevents or restricts the passage of electronic communications signals across any Connection;

Personal Data” has the same meaning given to the term in the DPA;

“Planned Outage” means an event or action that has been planned when network maintenance or upgrades may be required by SUBSET from time to time;

“Parties” means the Customer and SUBSET;

“Premises” means the building or buildings where Equipment is located, and whether or not occupied by the Customer;

“Processing” has the same meaning given to the term in the DPA;

“Processing Details” the processing details set out in Schedule 4 which sets out the scope, nature and purpose of Processing by SUBSET, the duration of the Processing, the types of Personal Data and the categories of Data Subject;

Programs” any computer program or software forming part of the Services;

“Public Internet Zone” means that portion of the Public Internet that lies beyond the SUBSET core Internet routers;

“RFQ” means a request for quotation submitted by the Customer to SUBSET;

“Service Fee” means such sum calculated with reference to SUBSET’s current charging rate and in accordance with clause 9.7 as shall be charged to the Customer in the event of maintenance services provided consequent on an event or events specified in sub-clause 9.6.1; 9.6.2; 9.6.3; which necessitates a callout by a SUBSET engineer;

“Service Level Agreement” means SUBSET’s standard Service Level Agreement from time to time set out in Schedule 1 and any other relevant service levels applicable to a specific service set out in the Services Schedule;

“Service Demarcation Point” means an agreed interface on a piece of Equipment prescribed by SUBSET in a location agreed with the Customer whose purpose is handing over internet Services from its own network to the Customer’s network;

“Services” means the internet services and/or other communication services, or cloud services and/or Consultancy Services set out in the Order Acceptance Form. For the avoidance of doubt any Service may be provided by SUBSET and/or an Associate;

“Services Schedule” the services schedule containing specific service levels and terms and conditions which relate to services other than the provision of internet Services, which may include services provided by an Associate and/or third party supplier.

“Site” means the location where a Connection provided under this Agreement starts or terminates as set out as the A End Address and B End Address on the Order Acceptance Form. Where the Customer contracts for the supply of an IP VPN, the term Site shall also include references to all Sites specified on the Order Acceptance Form;

“Site Occupier” means the owner and/or landlord of a Site;

“Site Wayleave” means a wayleave agreement to be executed by SUBSET and the Customer and/or the Site Occupier in respect of the relevant Premises and/or the Site, if necessary, for SUBSET to provide the Services under this Agreement;

“Subprocessor” means any person (including any third party and any Associate, but excluding an employee of SUBSET) appointed by or on behalf of SUBSET or an Associate to process Personal Data on behalf of the Customer in connection with this Agreement; 

“System” means an electronic communication system;

“Tail Circuit” means a Connection on an electronic communications network provided by a supplier (other than SUBSET) between a SUBSET PoP and the Premises and/or the Site over which SUBSET will supply internet Services;

Third Party Code” means software and/or code created by third parties, including without limitation “open source”;

“Viruses” means anything (including any device, software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses, harmful or malicious code, and other similar things or devices;

“Working Day” means any day excluding Saturdays, Sundays and the usual bank holidays in England.

1.2 References herein to clauses are to clauses in this Agreement.

1.3 References in this Agreement to the “Site Occupier” shall (where applicable) include its respective successors (whether by operation of law or otherwise) and permitted assigns.

1.4 References in this Agreement to “day” shall be to a calendar day.

1.5 A reference in this Agreement to a statutory provision will, unless expressly provided otherwise, be interpreted as a reference to such provision as amended, consolidated, replaced or re-enacted.

1.6 In this Agreement unless the context otherwise requires:

1.6.1 Words in the singular include the plural and vice versa; and

1.6.2 Words importing any gender include all genders.

1.7 The headings are for convenience only and do not affect the interpretation of this Agreement.

1.8 References in this Agreement to a “person” shall include any person, partnership, firm, company, body corporate or corporation or organisation (as defined in the Companies Act 2006).

1.9 The words and phrases “other”“including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wide construction is possible.

1.10 References to SUBSET in this Agreement shall include an Associate where such Associate provides any of the Services.

  1. Purpose of Agreement

Subject as set out in this Agreement:

2.1 In consideration of the payment of the Charges made by the Customer to SUBSET and the Customer’s compliance with the terms of this Agreement, SUBSET shall provide the Customer with the Services and maintenance of the Equipment thereof as set out in this Agreement;

2.2 The Customer shall make the relevant payments to SUBSET, as set out in clauses 12 and 13, and the Order Acceptance Form and any subsequent Order Acceptance Form submitted by the Customer and accepted by SUBSET.

  1. Consent to install the Equipment

3.1 The Customer hereby irrevocably gives permission to SUBSET and its employees, agents or contractors on reasonable notice at such reasonable times to: (a) Execute any works on the Premises and/or the relevant Site for, or in connection with, the installation, maintenance, adjustment, repair, alteration, moving, replacement, renewal or removal of the Equipment; (b) Keep and operate the Equipment installed on, under or over the Premises and/or the Site; (c) Enter the Premises and/or the Site to inspect any of the Equipment kept on, under or over the Premises and/or the Site or elsewhere for the purpose of providing the  Services.

3.2 SUBSET agrees with the Customer to cause as little disturbance, damage and inconvenience as reasonably possible when exercising any of its rights under this Agreement and to make good (to the reasonable satisfaction of the Customer) as soon as reasonably practicable any damage that SUBSET, its employees, agents or contractors may cause to the Premises and/or the Site.

3.3 The Customer agrees not to do or allow anything to be done to the Premises and/or the Site that may cause damage to, or interfere with, the Equipment or prevent reasonable access to it.

3.4 The Customer warrants that: (a) It is the current occupier of the Premises and/or the Site; (b) It is either the freeholder of the Premises and/or the Site or is a tenant of it under a lease or licence or other tenancy agreement expiring not before the expiry of the Minimum Term and any subsequent period agreed between the Parties; (c) It will not do or allow to be done at the Premises and/or the Site anything which might damage the Equipment in any way and that it will take all steps reasonably necessary to ensure that no one interferes with or tampers with the Equipment; (d) If the Customer wants to carry out works to refurbish, demolish or substantially reconstruct all or part of the Premises and/or the Site and requires the Equipment to be removed or relocated or altered it will give SUBSET as much notice of its proposed works as is reasonably practicable (and in any event no less than six calendar months’ prior written notice). Upon receipt of such notice the Parties shall agree to consult with each other in good faith and use all reasonable endeavours to find an alternative site or route for the Equipment as is reasonably acceptable to SUBSET and as are necessary to allow the Customer to carry out its refurbishment, demolition or reconstruction of the Premises and/or the Site.

3.5 The terms set out in clauses 3.1 to 3.4 (inclusive) shall remain in force and survive this Agreement for a period of 60 Working Days following cancellation or termination of this Agreement. Upon such cancellation or termination, the Customer shall give SUBSET or its sub-contractors or suppliers all reasonable access to the Premises and/or the Site to remove the Equipment.

3.6 The Customer shall procure and/or continue throughout the term of this Agreement all site related permissions and approvals necessary for SUBSET to deliver, install and maintain the Equipment for the provision of the Services and Connection.

  1. Ordering and Provision of Connection

4.1 If the Customer wishes to order Services it may submit an RFQ to the SUBSET sales team at accountmanager@subset.solutions The Customer acknowledges that SUBSET may utilise facilities by, and provision all or any part of the Services from, an Associate or a third party.

4.2 If an RFQ is submitted to SUBSET pursuant to clause 4.1, SUBSET shall use all reasonable endeavours to respond in writing within 10 Working Days. At SUBSET’s sole discretion, a credit check may be conducted against the Customer and a guarantee and indemnity sought from one or more directors of the Customer.

4.3 If the Customer returns a duly completed Order Acceptance Form within 30 Working Days of receipt from SUBSET the following provisions will apply:

4.3.1 Where a Site Wayleave is required by the owner and/or the landlord of the Premises and/or the Site the Customer shall use its reasonable endeavours to procure that such parties (including the Customer where required) enter into a Site Wayleave;

4.3.2 On the grant of a Site Wayleave (if applicable) for the Premises and/or the Site and on execution of the Order Acceptance Form by SUBSET and SUBSET confirming receipt and acceptance to the Customer by email, the Order Acceptance Form will be deemed to be a binding contract for the provision of the Services in accordance with and subject to the terms of this Agreement.  If SUBSET is not supplying any applicable routers and/or switching equipment it shall be the sole responsibility of the Customer to ensure that they have adequate routing and switching equipment at the Premises and/or the Site for the operation of any internet Services.

4.3.3 Subject to clauses 14 and 15 below, this Agreement for the provision of the Services and any Connection shall continue for the Minimum Term.

4.4 SUBSET shall use its reasonable endeavours to meet any dates specified in this Agreement and/or the Order Acceptance Form but for the avoidance of doubt, time shall not be of the essence in delivering any Services under this Agreement.

4.5 Subject to the existence of the Site Wayleave, or other third party consent (if applicable), SUBSET shall provide the Customer with the Services and/or Connection to the Premises and/or the Site and/or between more than one Premises and/or Site (where applicable) in accordance with the terms set out in this Agreement and the Order Acceptance Form.

4.6 SUBSET shall provide the Customer with the relevant information to enable the Customer to prepare or procure the preparation of the Premises and/or the Site for delivery and installation of the Equipment and the Customer shall suitably prepare or procure the preparation of the Premises and/or the Site for delivery and installation of the Equipment and comply or procure the compliance in all material respects with SUBSET’s reasonable instructions and requirements relating to the preparation of the Premises and/or the Site. Such instructions shall include confirmation of applicable switching and/or routing equipment which will be required at the Premises and/or the Site for the operation of internet Services.

4.7 The Customer shall at its own cost procure the provision to SUBSET at all times of suitable accommodation, assistance, facilities and environmental conditions for the Equipment (as specified in clause 4.8) and all reasonably necessary electrical and other installations and fittings relating to the Equipment and shall ensure that any necessary preparation is effected before the Equipment is delivered and installed.

4.8 Except where SUBSET is providing air conditioning and other environmental controls as part of the Services, the Customer shall ensure that air conditioning and all other environmental controls in the premises where the Equipment is located are maintained to a satisfactory level so that the Equipment can operate correctly.

4.9 SUBSET shall deliver the Equipment to the Customer (or as directed by the Customer) and install the Equipment at the Premises and/or the Site. SUBSET shall use its reasonable endeavours to comply with the Customer’s requests in respect of installation but SUBSET’s reasonable decision on the routing of cables and wires and the positioning of outlets and other apparatus constituting the Equipment or part thereof shall be final and binding on the Customer.

4.10 Following the installation of the Equipment, Acceptance Testing shall be carried out by the Parties to ensure that the Services and any applicable Connection is ready for use. If the Services and/or Connection is not ready for use by the date agreed between the Parties, SUBSET shall either repair or replace, at its sole option, the Equipment or any part thereof and repeat the Acceptance Testing. All Acceptance Testing shall, if appropriate, be carried out in the presence of a duly authorised representative of the Customer provided the representative is available at such reasonable times as SUBSET may specify.

4.11 SUBSET shall on successful completion of the Acceptance Testing notify the Customer. The Customer will be deemed to have accepted the Services and the Connection Ready for Service Date (where applicable) unless within 7 days of receiving such notice, the Customer notifies SUBSET to the contrary and specifies in such notice the grounds for rejection.

4.12 In the event of valid rejection of the Services, SUBSET, without additional charge, will carry out the necessary work to remedy such discrepancy and will notify the Customer when such Services are ready for further Acceptance Testing. The same process as set out in clause 4.11 will apply to such testing. If it is not possible to remedy the discrepancy SUBSET shall have the right to terminate this Agreement.

4.13 SUBSET shall be entitled to sub-contract the whole or any part of the performance of the Services to any person provided that SUBSET remains responsible to the Customer for the performance of the Services in accordance with the terms of this Agreement.

4.14 Where the Services include a Managed Security Firewall (as specified in the Order Acceptance Form), the rule sets used by the Managed Security Firewall to control access shall be configured in accordance with the Customer’s instructions. The Customer shall be entitled to change the configuration from time to time, either itself in accordance with the documentation provided by SUBSET, or by making a request to SUBSET via the support process. The Customer acknowledges that SUBSET does not provide an advisory service as to how the Managed Security Firewall should be configured and that the configuration is entirely within the Customer’s discretion and at the Customer’s own risk.

4.15 Where the Customer retains responsibility for managing its own security firewall the Customer will retain liability for managing the firewall platform and SUBSET shall not accept any responsibility for any failure with the firewall platform.

  1. Service Levels

5.1 Unless otherwise stated in the Services Schedule, SUBSET shall use its reasonable endeavours to ensure that the Services are available for use twenty-four (24) hours a day throughout the Minimum Term and any subsequent period agreed between the Parties. SUBSET shall use its reasonable endeavours to provide the minimum service levels as set out in the Service Level Agreement.

5.2 If the Services are not available as set out in clause 5.1 (other than for a Planned Outage or for a Force Majeure event or as otherwise set out in this Agreement when SUBSET shall have no liability), SUBSET shall be liable as set out in the Service Level Agreement, which shall be the total of SUBSET’s liability hereunder or otherwise for lack of the Services.

5.3 If you are unhappy with the provision of the Services you may issue a complaint to SUBSET. Please refer to SUBSET’s Complaints Code of Practice which can be found on subsetenterprise.co.uk

  1. Customer’s Obligations

6.1 To facilitate the provision of the Services and Connection, the Customer shall use its reasonable efforts to procure, at its own expense, a secure electricity supply of such type and at such points as SUBSET shall reasonably require for each Connection. Except where the Customer is receiving co-location services:

6.1.1 no electricity will be supplied by SUBSET through the Customer’s or any third party’s electricity cables; and

6.1.2 the Customer shall also procure the provision of back-up power with sufficient capacity to conform to the stand-by requirement of the relevant British Standards as needed if the Connection, including the provision of access to Emergency services, is required to continue uninterrupted in the event of a power failure in the principal power supply for Equipment at the Premises and/or the Site.

6.2 The Customer will ensure that the location and position of all Equipment complies with all applicable health and safety regulations in force on the date of this Agreement. The Customer shall pay for the relocation of any and all Equipment found to be in breach of any such regulations. Should new legislation or regulations come into force after the commencement of this Agreement which would require any Equipment to be relocated, the Customer will pay such relocation costs.

6.3 The Customer shall comply with the Acceptable Use Policy and shall procure that any other party using the Services shall comply with the Acceptable Use Policy.

6.4 If the Customer wishes, other than for reasons connected to applicable health and safety regulations, to move any part of the Equipment to a different location within the Premises and/or the Site, the Customer shall give the maximum notice reasonably practicable (but not less than three (3) months’ notice in writing). On the expiry of such notice and with the consent of SUBSET (not to be unreasonably withheld or delayed) the Customer shall be entitled (at its own expense) to move any Equipment to such different location within the Premises and/or the Site. The Customer shall consult with SUBSET to ensure that any such relocation takes place at a time when the least disruption shall be caused to SUBSET’s business.

6.5 The Customer shall supply to SUBSET any documents, materials, assistance, data or other information (Input Materials) required in connection with the Consultancy Services. The Input Materials shall be supplied within sufficient time to enable SUBSET to perform the Consultancy Services in accordance with this Agreement.

6.6 SUBSET shall not be liable or deemed to be in breach of contract if the Input Materials are delayed, incomplete or inaccurate and SUBSET will be entitled to charge the Customer for any additional services necessary as a result.

6.7 Any recommendations or suggestions proposed by SUBSET in the performance of the Consultancy Services are given in good faith,but the Customer is solely responsible for satisfying itself of the suitability of any ideas, strategies, equipment or products recommended or suggested by SUBSET for its own particular purposes (notwithstanding that such purposes are known to SUBSET), and all such recommendations and suggestions are acted upon entirely at the Customer’s own risk.

6.8 the Customer undertakes not to, and not to allow third parties, to:

6.8.1 sublicence, lease, rent, loan, or otherwise transfer the Programs to any third party;

6.8.2 decompile, disassemble, decrypt, extract or otherwise reverse engineer or attempt to reconstruct or discover any source code of, or any underlying ideas in, the Programs;

6.8.3 modify, adapt, or prepare derivative works from the Programs.

6.9 the Customer shall in respect of any Programs relating to the Services comply with any relevant end user agreement relating to the use of the Programs PROVIDED THAT SUBSET has provided a copy of such end user agreement to the Customer.

  1. Equipment

7.1 The Equipment shall remain the property of SUBSET or its nominee at all times and SUBSET may modify, substitute, renew or add to the Equipment from time to time at its sole discretion provided that such modifications, substitutions, renewals or additions shall not affect the supply of Services and/or Connection. Where such modification would impact on a Connection then modifications will be carried out as a Planned Outage.

7.2 The Customer shall be responsible for ensuring at all times the safe keeping and proper use of the Equipment at the Site and/or the Premises and shall be liable for any loss or damage to the Equipment pursuant to clause 7.4. In particular, (but without prejudice to the generality of the foregoing) the Customer covenants with SUBSET:

7.2.1 To comply with all reasonable instructions as SUBSET may notify to the Customer;

7.2.2 Not to (and to ensure that no other person shall) sell, let, transfer, dispose of, mortgage, charge, modify, repair, service, tamper with, remove or interfere with the Equipment or suffer any distress, seizure of, or execution to be levied against, the Equipment or otherwise do anything prejudicial to SUBSET’s rights in the Equipment;

7.2.3 To keep the Equipment at the Premises and/or the Site and stationary at all times;

7.2.4 Not to add to, modify, or in any way interfere with, the Equipment and to keep and maintain the Equipment in good repair and condition;

7.2.5 Notwithstanding clauses 7.2.3 and 7.2.4, in the case of an Emergency, to take whatever steps as are reasonably necessary to safeguard the Equipment and to notify SUBSET as soon as possible of the circumstances of such Emergency;

7.2.6 Other than in the event of an Emergency not to cause the Equipment to be repaired, serviced or otherwise attended to except by an authorised representative of SUBSET;

7.2.7 Not to do anything or allow to subsist any circumstance, matter or thing, which is likely to damage the Equipment or detract from or impair its performance or operation;

7.2.8 Not to remove, tamper with or obliterate any words or labels on the Equipment or any part thereof and in any event to ensure the Equipment can be identified as belonging to SUBSET or its supplier;

7.2.9 To permit SUBSET to inspect or test the Equipment at all reasonable times and without notice in the event of Emergency; and

7.2.10 At the request of SUBSET to produce evidence to SUBSET that it has obtained and is maintaining suitable insurance in respect of relevant risks in accordance with standard industry practice relating to such Equipment.

7.3 For the purposes of this Agreement the “point of interconnect” for internet interfaces for hand off will be either 10/100 Base T Ethernet, 1000 Base SX/LX or 10Gigabit LAN Phy. The Parties may agree a different point of interconnect.

7.4 The Customer shall be liable for any loss or damage howsoever caused at or beyond the Customer’s side of the point of interconnect at the Site and/or the Premises (including but not limited to lightning or electrical damage) to any part of the Equipment within the Site and/or the Premises and the Customer indemnifies SUBSET against all such loss or damage. The Customer will notify SUBSET immediately of any such loss or damage.

7.5 The Customer shall maintain insurance of its liabilities under clause 7.4 including for the avoidance of doubt insurance of the Equipment which is located on the Premises and insurance for public liability, material damage and business interruption.  Such insurance will include a waiver of subrogation in favour of SUBSET. The Customer shall hold any proceeds received from an insurer strictly on trust for SUBSET.

7.6 For the avoidance of doubt the Customer shall not be liable for any loss or damage to the Equipment where such loss or damage occurs before the Service Demarcation Point within the Site and/or the Premises provided that if such loss or damage is due to the negligent, malicious or wilful action or inaction of the Customer, its employees or sub-contractors, or by the Customer’s breach of this Agreement, the Customer shall be liable to and shall reimburse SUBSET therefore to the extent of all losses, damages and costs incurred by SUBSET by such action and/or inaction of the Customer, its employees or subcontractors and/or by such breach of this Agreement by the Customer.

  1. Customer Equipment

8.1 Where the Customer is required to provide equipment to enable any of the Services to be delivered the Customer shall be responsible for procuring that the Customer Equipment is programmed, equipped, compatible and connected for the operation of the Services and/or installation of the Connection in accordance with SUBSET’s reasonable instructions.. The Customer shall be responsible for procuring the connection of the Customer Equipment to SUBSET’s System.

8.2 The Customer acknowledges that SUBSET shall not be responsible for the repair and maintenance of Customer Equipment unless this is delivered as part of a SUBSET managed service as specified in the Order Acceptance Form.

8.3 The Customer shall ensure or procure that all other Customer Equipment that it uses complies with all relevant Laws and applicable industry standards for the time being in force. The Customer shall disconnect any Customer Equipment if such apparatus does not, or ceases to, conform to any relevant Law or to any applicable and industry standards for the time being in force. SUBSET reserves the right to disconnect any Customer Equipment if the Customer does not fulfil any of its obligations under this clause 8 or, if in the reasonable opinion of SUBSET, such apparatus does not comply with any relevant Law or applicable industry standard for the time being in force or may cause the death of or any personal injury to any person, or material damage to property or materially impair the quality of the Services or any electronic communication service provided by means of SUBSET’s System.

  1. Maintenance

9.1 Unless otherwise stated in the Order Acceptance Form or the Services Schedule, SUBSET shall provide such maintenance services for the proper functioning of the Services and, where appropriate, the switching and routing equipment supplied by SUBSET, as are reasonably required to provide the Services in accordance with this Agreement and the Service Level Agreement.

9.2 The Customer shall permit SUBSET or its agents upon reasonable notice (except in an Emergency, when no notice is required) to enter the Site and/or the Premises for the purpose of monitoring and maintaining the Equipment.

9.3 If the Customer detects any defect or impairment in the operation or performance of the Services and/or applicable Connection, it shall notify SUBSET of the nature of such defect or impairment. SUBSET shall respond promptly after such notification and shall make the necessary corrections in accordance with the Service Level Agreement.

9.4 If SUBSET detects any defect or impairment in the operation or performance of the Equipment, it shall notify the Customer of the nature of such defect or impairment. The Customer shall after such notification comply with its obligations under paragraph 1.3 of the Service Level Agreement and shall make the necessary corrections in accordance with the Service Level Agreement.

9.5 Subject to clause 9.6 below, charges for maintenance are included in the Annual Rental.

9.6 SUBSET will be entitled to charge the Customer and the Customer will pay a Service Fee at SUBSET’s then current reasonable charging rates to the extent that the need for any maintenance results from any one or more of the following:

9.6.1 Misuse or neglect of, or accidental or wilful damage to, the Equipment where such misuse, neglect or damage occurs beyond the point of interconnect in the Premises and/or the Site; or

9.6.2 Failure by the Customer to comply with any of the provisions of this Agreement; or

9.6.3 Fault in, or other problem associated with the Customer’s System other than the Connection PROVIDED THAT in the case of any event referred to in clause 9.6 SUBSET shall have given the Customer reasonable written notice of its intention to charge such Service Fee.

9.7 In the event that the Customer prevents or delays the performance of maintenance services as described in this Agreement, SUBSET shall have the right to charge the Customer all reasonable costs incurred by such delay or prevention.

  1. Use of Services and performance of Consultancy Services

10.1 The Customer shall at all times comply with the Acceptable Use Policy and particularly undertakes not to use or permit anyone else to use the Services and Connection:

10.1.1 To send a message or communication which is offensive, abusive, indecent, obscene or menacing; or

10.1.2 To cause annoyance or inconvenience; or

10.1.3 In a manner which is contrary to any applicable Law.

10.2 The Customer shall keep SUBSET indemnified against all liabilities, claims, damages, losses, proceedings, compensation, costs and expenses arising out of, or in any way connected with, any such use of the Services and Connection by the Customer which infringes the Acceptable Use Policy, provided that SUBSET shall not compromise, admit or settle any such actions without the prior written consent of the Customer which is not to be unreasonably withheld or delayed.

10.3 If the Customer can prove to SUBSET’s reasonable satisfaction that, due to SUBSET’s own act or omission, SUBSET has

   
   

failed to perform the Consultancy Services in accordance with this Agreement, then SUBSET may at its option remedy such breach:

10.3.1 by re-executing the relevant part of the Consultancy Services free of charge up to the amount of the Charges received by SUBSET for the provision of such Consultancy Services (exclusive of any VAT); or

10.3.2 by repaying or crediting to the Customer that part of the Charges paid by the Customer to SUBSET relating to the provision of the relevant part of the Consultancy Services (exclusive of any VAT),

and any such action shall discharge in full SUBSET’s liability to the Customer for such failure to perform the Consultancy Services.

  1. Suspension of Services

11.1 Without prejudice to the Parties’ other rights and remedies under this Agreement and otherwise at law and subject to clause 11.2, SUBSET may suspend the performance of its obligations under this Agreement on prior written notice to the Customer (such notice not to apply with respect to 11.1.1, 11.1.2 and 11.2) in the event that:

11.1.1 The Customer has failed to pay the Charges in full; or

11.1.2 SUBSET is entitled to terminate this Agreement in accordance with clause 15; or

11.1.3 SUBSET is required to suspend such performance in order to comply with any Law or request of any governmental department, emergency services organisation or other competent administrative authority PROVIDED THAT if SUBSET is entitled to suspend this Agreement pursuant to this clause 11.1.3, SUBSET shall use its reasonable endeavours to minimise such period of suspension.

11.2 In the event of an Emergency, SUBSET may at its sole discretion interrupt or suspend its obligations hereunder for so long as the Emergency lasts (but no longer) without giving any notice to the Customer but shall notify the Customer as soon as reasonably practicable following the start of the interruption or suspension and shall use its reasonable endeavours to minimise the period of such interruption or suspension.

11.3 Where the suspension is implemented as a consequence of the breach, fault, act or omission of the Customer, the Customer shall reimburse SUBSET for all reasonable costs and expenses incurred by SUBSET in connection with the implementation of such suspension (including a re-connection of service fee as set in Schedule 2) and any other service provided by SUBSET under this Agreement as appropriate.

  1. Charges

12.1 In consideration for the provision by SUBSET of the Services in accordance with this Agreement, the Customer will in respect of the Services and each Connection provided by SUBSET under this Agreement, pay the Charges.

12.2 Subject to clauses 12.5 and12.6 the Installation Charge and the Annual Rental Charge relating to the Services and Connection shall remain fixed during the relevant Minimum Term.

12.3 Following the expiry of the Minimum Term, SUBSET shall be entitled to increase the Charges on giving the Customer not less than one (1) month’s prior notice. Any revised Charges shall become payable from the date set out in the notice served by SUBSET.

12.4 SUBSET reserves the right to impose any of the Miscellaneous Charges and reserves the right to increase such Miscellaneous Charges.  Any increases shall be set out in the current professional services price book, which is available from the Customer’s Account Manager on request.

12.5 SUBSET shall increase the Charges in April in each year of the Minimum Term and any rollover term (or any replacement month published on SUBSET’s website or notified to the Customer from time to time) by the same increase in the Retail Prices Index for the previous 12 months announced by the Office for National Statistics (or successor body). 

12.6 If SUBSET is required to replace any Equipment as a result of changes in the Law, the Customer shall pay all reasonable costs incurred by SUBSET in replacing the Equipment.

  1. Payment and review

13.1 All Charges payable under this Agreement shall be payable in full by direct debit (without any set off or deduction) within fifteen days of the date of the invoice from SUBSET. 

13.2 The Installation Charge on the Order Acceptance Form shall be invoiced by SUBSET on each relevant Connection Commencement Date PROVIDED THAT SUBSET shall in its absolute discretion have the right to request that the Installation Charge is paid in full prior to the date of the installation.

13.3 All Charges on the Order Acceptance Form shall be invoiced by SUBSET monthly in advance and the first payment due under this Agreement shall be payable with effect from the Connection Commencement Date in respect of each Connection, and where the Customer is taking Services in addition to internet Services the first payment of each additional Service shall be payable with effect from the date each Service is available for use by the Customer.

13.4 All Charges expressed to be payable under this Agreement shall be exclusive of VAT and the Customer shall also pay to SUBSET such additional amounts of VAT.

13.5 If the Customer shall fail to pay any amount due under this Agreement by the Due Date, SUBSET shall be entitled to charge to and receive from the Customer interest in respect of any such amount outstanding at the Default Interest Rate (whether before or after judgment) as at the Due Date. Such interest shall be payable from and including the day after the Due Date until and including the date of payment in full. Such interest shall accrue day by day and shall be compounded quarterly.

13.6 In the event that SUBSET is unable to proceed with the installation of the Equipment and/or Tail Circuit (or any other communication services set out in the Order Acceptance Form) due to acts or omissions of the Customer which prevent or delay installation beyond an agreed Connection Ready for Service Date or other agreed date, then SUBSET shall have the right to invoice the Customer (which invoice the Customer shall pay within 15 days of the date of the invoice from SUBSET) for all costs incurred in provisioning such Equipment and/or other 3rd party services in readiness for that original Connection Ready for Service Date or other agreed date in accordance with the terms of clause 13.2 notwithstanding any such delay in actual installation of Equipment and/or Tail Circuit. Costs will be calculated using the Miscellaneous Charges tariffs.

13.7 The Customer agrees not to cancel or amend any direct debit instruction without the consent of SUBSET.

13.8 If specified in the Order Acceptance Form the Customer shall pay a deposit in the amount specified in the Order Acceptance Form.  Any deposit shall be payable with the first payment of the Annual Rental. 

13.9 SUBSET may, at its discretion, set off such deposit against any Charges or other amounts owing to SUBSET from time to time. No interest shall be payable in respect of the deposit. Any deposit remaining at the end of the Minimum Term which is not set off against any Charges shall be returned to the Customer upon return of the Equipment to SUBSET in satisfactory condition.

13.10 If SUBSET has set off any deposit under clause 13.9 the Customer shall be required to top up the deposit to the original amount specified in the Order Acceptance Form.

13.11 In the event SUBSET has provided a credit facility to the Customer, SUBSET shall have the right in its absolute discretion to withdraw the credit facility on 5 days’ prior notice to the Customer.

13.12 SUBSET reserves the right to refer any unpaid Charges to a debt collection agency to collect payment, interest and any late payment charges on its behalf.  The Customer must pay SUBSET’s costs payable to the agency, who will add such costs to the total debt outstanding.

  1. Duration

14.1 This Agreement shall come into force on the date the Customer signs the Order Acceptance Form and shall continue for the Minimum Term unless it is terminated in accordance with clause 15. 

14.2 Either Party shall have the right to terminate this Agreement at the end of the Minimum Term by serving not less than 1 month’s prior written notice such notice to expire at the end of the Minimum Term.  If the Agreement is not terminated at the end of the Minimum Term it shall continue on a 3 month rolling basis until it is terminated by either Party giving the other Party not less than three (3) months’ prior written notice PROVIDED THAT SUBSET shall have a right to serve a shorter termination notice so that the notice expires at the same time as any termination notice SUBSET receives from a third party where such third party is providing the Services on behalf of SUBSET.  For clarification, where the Service includes the provision of a licence which is renewable on a yearly basis the Customer shall have the right to terminate the licence by giving SUBSET at least 1 month’s prior notice such notice to expire at the end of the initial contracted licence period. If the Customer fails to terminate the licence in accordance with this clause 14.2 the licence shall automatically renew for successive periods of 12 months until terminated by the Customer on giving SUBSET at least 1 month’s prior notice such notice to expire at the end of the then current licence period.

  1. Termination

15.1 Notwithstanding anything to the contrary in this Agreement, either Party (without prejudice to its other rights) shall be entitled to terminate this Agreement forthwith by notice to the other Party if:

15.1.1 Any licence granted to SUBSET for the provision of the Services is revoked or otherwise varied for any reason whatsoever and is not immediately replaced by a licence that would permit SUBSET to continue to provide the  Services on the same terms and conditions as set out in this Agreement, in which event SUBSET shall give the Customer the maximum period of notice of termination practicable in the circumstances; or

15.1.2 Any action or proceedings under insolvency law is taken against the other Party or the other Party makes any arrangement or compromise with its creditors, or ceases to carry on business or suffers any execution or distress over its assets, or shall be the subject of a voluntary or compulsory liquidation (other than for the purpose of reconstruction or amalgamation) or an administrator or administrative receiver is appointed; or

15.1.3 The other Party commits a material breach of any of the provisions of this Agreement (including without limitation, non-payment of the Charges or a breach of the Acceptable Use Policy and/or breach of intellectual property right by the Customer and/or breach of any Law) and, in the case of a material breach of any of the provisions which is capable of remedy, the defaulting party fails to remedy the same within 30 Working Days after receipt of a notice in writing from the other Party giving particulars of the breach and requiring it to be remedied. If the Customer terminates this Agreement it may do so by email to the customercareteam@Subset.com.

15.2 If the Customer and/or the owner and/or the landlord of the Premises, or loss of line of sight to the Equipment, prevents SUBSET from delivering the Services or the Customer is unable to meet any conditions referred to in the Order Acceptance Form, SUBSET shall be entitled to terminate this Agreement forthwith by notice to the Customer.

15.3 The right to terminate this Agreement shall not prejudice any other right or remedy of either Party in respect of any breach or any rights, obligations or liabilities accrued prior to termination.

15.4 Upon the termination of this Agreement, the Customer will immediately cease to use the Services and SUBSET will, subject to SUBSET having a right of set off for any payment due to SUBSET repay to the Customer the appropriate proportion of any Charges paid in advance for any period ending after the Customer’s liability to pay such Charges ceases PROVIDED THAT SUBSET shall not be liable to repay any Charges where this Agreement is terminated as a result of the Customer’s breach.

15.5 Without prejudice to the Parties’ other rights and remedies under this Agreement or otherwise at law, if this Agreement is terminated by SUBSET in accordance with clauses 15.1.2, 15.1.3 and 15.2 the Customer shall pay SUBSET all arrears of Charges and sums due and payable to SUBSET under this Agreement until the expiry of the Minimum Term or the date of termination (if longer).

15.6 The termination or expiry of this Agreement shall not operate so as to terminate any Site Wayleave.

15.7 The obligations of the Parties under this Agreement, which are of a continuing nature and capable of surviving expiry or termination of this Agreement, shall continue in full force and effect notwithstanding such expiry or termination.

  1. Force Majeure

16.1 Neither Party (for the purpose of this clause, the “Affected Party”) shall be liable for any failure to perform its obligations under this Agreement caused by an act of God, insurrection or civil disorder, terrorism, war or military operations, national or local emergency, acts or omissions of government, highway authority, industrial disputes of any kind (not involving employees of that Affected Party or of sub-contractors working for that Affected Party pursuant to this Agreement), fire, lightning, explosion, subsidence, inclement weather, insolvency of a supplier, acts or omissions of persons or bodies for whom the Affected Party is not responsible (which shall include, but not be limited to, third party communication suppliers to SUBSET) or any other cause whether similar or dissimilar outside the reasonable control of that Affected Party PROVIDED THAT, in such circumstances the Affected Party can demonstrate that it has taken all reasonable steps to continue to perform its obligations under this Agreement.

16.2 The Affected Party shall promptly notify the other of the estimated extent and duration of such inability to perform its obligations (for the purposes of this clause 16, a “Force Majeure Notification”).

16.3 Upon cessation of the delay or failure resulting from the event of Force Majeure the Affected Party shall notify the other of such cessation.

16.4 If, as a result of the event of Force Majeure, the performance of the Affected Party’s obligations under this Agreement is only partially affected, such Affected Party shall, subject to the provisions of clause 16.5, nevertheless remain liable for the performance of those obligations not affected by the event of Force Majeure.

16.5 In the case of an Affected Party making a Force Majeure Notification then:

16.5.1 If the delay or failure caused by the event of Force Majeure lasts for a continuous period of three (3) months or less from the date of the Force Majeure Notification (whether or not notice of cessation has been given pursuant to clause 16.3) any obligation outstanding shall be fulfilled by the Affected Party as soon as reasonably possible after the event of Force Majeure has ended, save to the extent that such fulfilment is no longer possible or is not required by the other Party; or

16.5.2 If the delay or failure caused by the event of Force Majeure lasts for more than three (3) months from the date of the Force Majeure Notification and notice of cessation has not been given pursuant to clause 16.3 and such event of Force Majeure prevents the Affected Party from performing such Affected Party’s obligations in whole or in part during that period, the other Party shall be entitled (but not obliged) to terminate this Agreement by giving not less than thirty (30) Working Days’ written notice to the Affected Party on expiry of the said three (3) months period PROVIDED THAT such notice shall be deemed not to have been given in the event that notice of cessation of the event of Force Majeure given pursuant to clause 16.3 is received by the other Party prior to the expiry of the thirty (30) Working Days’ written notice.

16.6 If this Agreement is not terminated in accordance with the provisions of clause 16.5.2 then any obligations outstanding shall be fulfilled by the Affected Party as soon as reasonably possible after the event of Force Majeure has ended, save to the extent that such fulfilment is no longer possible or is not required by the other Party.

16.7 Irrespective of the occurrence of any Force Majeure event, the Customer shall continue to pay all Charges due under this Agreement unless and until such time as this Agreement is terminated pursuant to clause16.5.2.

  1. Limitations of Liability

17.1 Nothing herein shall limit either party’s liability for death or personal injury resulting from its own negligence or that of its employees, agents or contractors while acting in the course of their employment.

17.2 Nothing in this Agreement shall exclude or restrict any liability of either party which cannot by law be excluded or restricted.

17.3 Subject to clauses 10.2, 17.1, 17.2, 17.4, 20.3 and 25.14, the aggregate liability of each Party to the other or any third party (whether in contract, tort, breach of statutory duty or otherwise) arising by reason of, or in connection with, this Agreement shall be limited to one year’s Annual Rental payable under the Order Acceptance Form in the relevant year in which the relevant claim arises, or where such liability arises in the provision of the Consultancy Services, the aggregate liability of SUBSET shall be limited to SUBSET’s charges for the Consultancy Services.

17.4 Subject to clauses 17.1 and 17.2, neither Party shall be liable to the other or any third party in contract, tort (including liability for negligence), breach of statutory duty or otherwise for any indirect, consequential or special loss howsoever arising. For the purposes of this Agreement, “indirect or consequential loss” includes but is not limited to, loss or corruption of, or damage to, computer software and/or data, wasted management time, loss of revenue, loss of profits, loss of anticipated savings, business or goodwill or loss of turnover.

17.5 The provision of the Services under this Agreement is supplied in accordance with the Service Level Agreement and SUBSET’s sole obligations and liabilities in respect of the provision of the Services are as stated in this Agreement and all other innocent or negligent representations (but not fraudulent), conditions, warranties and terms express or implied whether by statute, law or otherwise are hereby excluded to the fullest extent permitted by law.

17.6 Nothing in this Agreement shall limit or exclude the liability of SUBSET or the Customer for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

17.7 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

17.8 This clause 17 shall survive termination of this Agreement.

  1. Confidentiality

18.1 In this clause 18, “Confidential Information” means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by a Party (for the purposes of this clause 18, the “Disclosing Party”) to the other Party (for the purposes of this clause 18, the “Receiving Party”) whether before or after the date of this Agreement.

18.2 During the term of this Agreement and after the termination or expiration of this Agreement for any reason, the Receiving Party:

18.2.1 May not use Confidential Information for a purpose other than the performance of its obligations under this Agreement; and

18.2.2 May not disclose Confidential Information to a person except with the prior written consent of the Disclosing Party.

18.3 Clause 18.2 does not apply to Confidential Information which:

18.3.1 Is at the date of this Agreement or, at any time after that date, becomes publicly known other than by the Receiving Party’s breach of this Agreement; or

18.3.2 Can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party; or

18.3.3 Is required to be disclosed under any Law or by any stock exchange or other regulatory requirements.

18.4 This clause 18 shall remain in force for five (5) years following the termination or expiration of this Agreement.

  1. Publicity

The Parties may not, either directly or indirectly, make public announcements, give releases or statements to the press, television, radio or other media relating to, or connected with, this Agreement without the prior consent of the other Party.

  1. Intellectual Property Rights

20.1 The Customer grants, or shall procure the grant, to SUBSET of a non-exclusive, personal licence to use such of the Intellectual Property Rights of the Customer as may be necessary for the sole purpose of undertaking the Services, such licence to terminate immediately on termination of this Agreement for whatever reason.

20.2 Subject to payment of the Charges, with the exception of Third Party Code, and subject to the Customer’s compliance with any relevant EULA, SUBSET grants (or shall procure the grant of) to the Customer a non-exclusive, non-transferable, royalty-free licence, personal licence to use such of the Intellectual Property Rights of SUBSET for the sole purpose of receipt of the Services and use of any software and Systems with the intent that such licence shall take effect on any such copyright or other Intellectual Property Rights coming into existence pursuant to the provision of the Services. The Licence granted or procured under this clause 20.2 shall terminate immediately on termination of this Agreement.  Use of Third Party Code will be subject to the terms imposed by the relevant third party and the Customer is responsible for familiarising itself with and abiding by such terms and the Customer shall indemnify and shall keep SUBSET and any Associate fully and effectively indemnified on demand against all costs, claims, demands, expenses and liabilities (including legal fees and expenses) of whatsoever nature arising out of or in connection with any claim by a relevant third party in respect of the use of such Third Party Code by or on behalf of the Customer and/or infringement by the Customer of SUBSET’s (or those of its licensors) Intellectual Property Rights including and/or Programs.

20.3 SUBSET shall indemnify and shall keep the Customer fully and effectively indemnified on demand against all costs, claims, demands, expenses and liabilities (including legal fees and expenses) of whatsoever nature arising out of or in connection with any claim that except in respect of the provision of Third Party Code, the receipt and use of the Services by the Customer infringes the Intellectual Property Rights of any third party (Claim) to a value not to exceed £100,000 provided that the Customer shall:

20.3.1 notify SUBSET in writing of any alleged infringement of which it becomes aware;

20.3.2 not make any admission or statement in respect of such Claim;

20.3.3 allow SUBSET to defend the Claim; and

20.3.4 provide SUBSET (at SUBSET’s cost) with such reasonable assistance as it may request.

  1. Assignment

21.1 Subject to clause 21.2, the Customer shall not assign, novate, delegate or otherwise deal with all or any of its rights or obligations under this Agreement (apart from on a solvent amalgamation or reorganisation) without the prior written agreement of SUBSET which is not to be unreasonably withheld or delayed.  SUBSET may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement without the consent of the Customer.

21.2 Either Party may assign this Agreement to a member of its Group.  If the Customer wishes to transfer its rights and liabilities to another party and SUBSET is required to enter into a deed of novation the Customer shall pay SUBSET’s reasonable legal costs for approving the deed of novation.

21.3 For the avoidance of doubt, nothing in this clause 21 shall prevent the Customer from using a Connection as part of any service it offers to its customers.

  1. Entire Agreement and Variations

22.1 This Agreement and any documents referred to in it constitutes the entire Agreement between the Parties relating to the subject matter of this Agreement and supersedes any previous agreements and all prior representations made between the Parties, whether orally or in writing.

22.2 In the event of any inconsistencies between the contents of any of the following documents, the order of precedence shall (unless expressly stated to the contrary) be as follows: (i) the EULA; (ii) the Order Acceptance Form; (iii) the terms and conditions contained in any relevant Services Schedule (iv) the main terms and conditions of this Agreement contained in clauses 1 to 28 (inclusive)), (v) the Service Level Agreement (vi) the Miscellaneous Charges and (vii) the Acceptable Use Policy. A variation of this Agreement is valid only if it is in writing and signed on behalf of each Party.

22.3 Each Party agrees that it did not rely on any statement made by the other party before the signature of this Agreement in entering into this Agreement and hereby waives any remedy which but for this clause 22.3 might otherwise be available to it in respect of any untrue statement (whether made innocently or negligently) before the signature of this Agreement.

  1. General

23.1 No one other than a party to this Agreement and an Associate shall have any right to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

23.2 Failure by either Party at any time to enforce any of the provisions of this Agreement shall not be construed as a waiver by such Party of any such provision or in any way affect the validity of this Agreement or any part hereof.

23.3 No granting of time or other forbearance or indulgence by either Party to the other Party shall in any way release, discharge or otherwise affect the liability of the other Party under this Agreement.

23.4 If any provision of this Agreement shall be prohibited or adjudged by a court of competent jurisdiction to be unlawful, void or unenforceable, such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances or the validity or enforcement of this Agreement.

23.5 This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.

23.6 SUBSET shall be entitled to amend these standard terms and conditions and/or any service specific conditions at any time and will publish such changes online at www.Subset.com or at such other URL as is notified to the Customer from time to time. The Agreement shall be amended accordingly with effect from the date of notification online. If the relevant amendment is not required by law and materially affects the Services the Customer shall have the right to terminate this Agreement by serving on SUBSET not less than 14 Working Days’ written notice to terminate this Agreement, provided that such notice is served within the period of 14 Working Days commencing on the date of notification online. In all other cases the Customer will be deemed to have accepted the amendment.  For clarification, the service of notice by the Customer under this clause 23.6 shall not constitute or deem to constitute evidence that the relevant change materially affects the Services.

23.7 SUBSET may for operational reasons introduce service features and/or process changes and/or change the way in which the Services are delivered provided such changes do not have a material adverse effect on the performance or provision of the Services.

23.8 By entering into this Agreement the Customer confirms it has read and understood SUBSET’s privacy policy, which can be found at https://subsetenterprise.co.uk

23.9 If a Brexit Trigger Event occurs SUBSET may require the Customer to negotiate in good faith an amendment to this Agreement to alleviate the Brexit Trigger Event. If no such amendment is agreed between the Parties, or it is not possible to make the necessary amendment in order to alleviate the Brexit Trigger Event, SUBSET may terminate this Agreement by giving the Customer not less than 30 days’ written notice. On termination of this Agreement under this clause 23.9 SUBSET shall have no further liability to provide the Services.

  1. Notices

Any notice, invoice or other document or communication given by the Customer under this Agreement shall be given by e-mail to customercareteam@Subset.com  or to such other email address of which notice has previously been notified by SUBSET to the Customer. Any notice given by SUBSET under this Agreement shall be given by email to the Customer’s address specified in the Order Acceptance Form.

  1. Data Protection and Customer Data

25.1 The Customer shall own all rights, title and interest in and to the Customer Data and shall have sole responsibility for ensuring the security, legality, reliability, integrity, accuracy and quality of the Customer Data. 

25.2 Both Parties shall ensure that they, their employees, agents and Subprocessors shall observe the requirements of the Data Protection Legislation and shall comply with any request made or direction given to the other which is directly due to the requirements of the Data Protection Legislation.

25.3 The Parties agree that for the purposes of the Data Protection Legislation the Customer shall, in respect of all Customer Data which is Personal Data, be the Data Controller and SUBSET shall be the Data Processor.

25.4 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer and processing of any Personal Data.

25.5 SUBSET shall take all measures required pursuant to Article 32 General Data Protection Regulation and also appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data. SUBSET shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

25.6 SUBSET shall not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and shall comply with reasonable instructions notified to it in advance by the Customer with respect to the processing of Personal Data.

25.7 SUBSET shall assist the Customer, at the Customer’s cost, with all Data Subject access requests under the Data Protection Legislation which may be received from the Data Subject of any Personal Data forming part of the Customer Data.

25.8 SUBSET shall notify the Customer without undue delay of and about any actual incident of unlawful destruction or accidental loss or disclosure or access to the Customer Data.

25.9 SUBSET shall make available to the Customer all information reasonably necessary to demonstrate compliance with its obligations laid down in Article 28 of the General Data Protection Regulation and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer.  Notwithstanding any rights of the Customer under the Data Protection Legislation to inspect and audit SUBSET’s data processing activities, SUBSET may, in its absolute discretion, use independent third party auditors to verify the adequacy of the security controls that apply to the  Services and SUBSET’s compliance with its obligations under this Agreement.

25.10 At the written direction of the Customer, SUBSET shall delete or return to the Customer, at the Customer’s cost, all Personal Data on termination of this Agreement unless required by any Law to store the Personal Data.

25.11 The Customer warrants and represents to SUBSET:

25.11.1 it has the right to licence the processing of the Customer Data that may be processed under this Agreement;

25.11.2 the processing of the Customer Data will not infringe the intellectual property rights of any third party;

25.11.3 the processing of the Personal Data from time to time has been carried out in accordance with the Data Protection Legislation;

25.11.4 it is not aware of any circumstances likely to give rise to breach of any Data Protection Legislation in the future;

25.11.5 SUBSET is entitled to process the Personal Data under the terms of this Agreement and such use will comply with all Data Protection Legislation;

25.11.6 all Data Subjects have given their valid, informed consent to the processing of such Personal Data.

25.11.7 all Customer Data is necessary, accurate and up to date; and

25.11.8 it is registered with the relevant data protection authorities (where applicable) to process the Personal Data.

25.12 Without limiting the effect of clause 17 of this Agreement SUBSET does not give any guarantee that any processed data:

25.12.1 is or are accurate, complete, reliable, useful, fit for purpose or timely;

25.12.2 has or have been tested for use by the Customer or any third party; or

25.12.3 will be suitable for or capable of being used by the Customer or any third party.

25.13 The Parties agree the following provisions so far as they relate to Subprocessors:

25.13.1 The Customer authorises SUBSET to appoint (and permit each Subprocessor to appoint) Subprocessors in accordance with this clause 25.13.

25.13.2 SUBSET may continue to use those Subprocessors already engaged by SUBSET or an Associate as at the date of this Agreement.

25.13.3 SUBSET shall ensure its agreements with Subprocessors incorporate terms similar to the data protection provisions contained in this clause 25.

25.13.4 SUBSET shall give the Customer as much notice as is reasonably practicable of the appointment of any new Subprocessor including details of the processing to be undertaken.  If, within 5 Working Days of receipt of this notice, the Customer notifies SUBSET in writing of any objections (on reasonable grounds) to the proposed appointment SUBSET and the Customer shall work together in good faith to make available any commercially reasonable change in the provision of the  Services which avoids the use of that Subprocessor.

25.13.5 If SUBSET is unable to make the required change to the Services under the provisions of clause 25.13.4 within 20 Working Days from receipt of the Customer’s notice objecting to the proposed appointment of the Subprocessor, the Customer may terminate this Agreement on 1 month’s notice to the extent it relates to the Services which require the use of the proposed Subprocessor.

25.14 Each party shall indemnify the other against all claims, liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred by the indemnified party arising out of, or in connection with, the processing of any Personal Data under this Agreement except to the extent where any such claims arise as a result of the indemnified party’s negligence or breach of this clause 25 PROVIDED THAT each party’s aggregate liability under this clause 25.14 shall be limited to a maximum of £250,000.

25.15 The Customer acknowledges that:

25.15.1 SUBSET is reliant on the Customer for direction as to the extent to which SUBSET is entitled to use and process Personal Data; and

25.15.2 claims against SUBSET referred to under clause 25.14 include any claim or action brought by a Data Subject arising from any action or omission by SUBSET, to the extent such action or omission resulted directly or indirectly from the Customer’s instructions.

25.16 The Processing Details sets out the scope, nature and purpose of Processing by SUBSET, the duration of the Processing, the types of Personal Data and the categories of Data Subject.  The Customer agrees to keep SUBSET updated as to the types of Personal Data and categories of Data Subjects that may be included in the processing of Personal Data on the Customer’s behalf.

26 Anti-Bribery Laws

Each Party shall:

26.1 Comply with all laws relating to anti-bribery and anti-corruption including without limitation the Bribery Act 2010 (Anti-Bribery Laws) and shall not do, or omit to do, any act that will cause the other party to be in breach of the Anti-Bribery Laws.

26.2 Not engage in any activity, practice or conduct which would constitute an offence under the Anti-Bribery Laws if such activity, practice or conduct had been carried out in the United Kingdom.

26.3 Promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement.

26.4 Maintain throughout the term of this Agreement its own anti-bribery policy including without limitation adequate procedures (as defined in section 7(2) Bribery Act 2010) to ensure compliance with the Anti- Bribery Laws and shall enforce such policy and procedures where appropriate.

  1. Resolution of Disputes

In the event of any dispute between the Parties arising out of this Agreement, the Parties shall first use their respective reasonable endeavours in good faith to resolve any such dispute by escalation as follows:

27.1 initially, by negotiation between the Parties’ account managers;

27.2 if the account managers shall fail to resolve the dispute within 14 days of the dispute being referred to them, by the referral to, and negotiation between, directors of the Parties;

27.3 if the directors shall fail to resolve the dispute within 14 days of the dispute being referred to them, by the referral to, and negotiation between, the managing directors of the Parties; and

27.4 if the managing directors shall fail to resolve the dispute within 14 days of the dispute being referred to them, by referring to a mediator approved by mutual agreement or failing mutual agreement by the President from time to time of The Chartered Institute for IT (BCS), who shall consider the resolution of the dispute in a prompt and expeditious manner. Both Parties agree to co-operate fully with such mediator, provide such assistance as is necessary to enable the mediator to discharge his duties and to bear equally between them the fees and expenses of the mediator.

  1. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with English Law and the Parties hereby irrevocably agree to submit to the exclusive jurisdiction of the English courts.

SCHEDULE 1

Service Level Agreement

In this Schedule 1 reference to “Services” shall mean internet services.  

  1. Fault Management

1.1 Faults may be reported to the SUBSET Support Desk as set out in Schedule 3 at which time a Fault Reference Number will be issued.

1.2 SUBSET will in the Notification Period take all reasonable steps to restore the Services in accordance with the terms of this Agreement.

1.3 On notification of a Fault by the Customer to the SUBSET Support Desk, the Customer shall perform all necessary in-house tests to the Service Demarcation Point as specified by SUBSET and shall co-operate fully with SUBSET’s Support Desk in order to locate any Fault.

1.4 SUBSET System

1.4.1 From the end of the Notification Period, the Target Time to Repair for a Service Affecting Fault is set out below.  

1.4.2 From the end of the Notification Period, the Target Time to Repair for a Non Service Affecting Fault on the SUBSET Network is 3 Working Days.

1.4.3 If a Target Time to Repair for a service is not specified SUBSET shall respond within 4 Office Hours from the end of the Notification Period and will use reasonable endeavours to repair the Service Affecting Fault.

1.4.4 If SUBSET does not meet the Target Time to Repair for a Service Affecting Fault the Customer may claim compensation (at the Customer’s sole option) as set out below PROVIDED THAT in calculating the hours past the Target Time to Repair there shall be deducted from such calculation any period of time SUBSET is unable to repair the Service Affecting Fault as a result of the Customer’s breach of this Agreement, or a disruption to the power supply to the Equipment, or a disruption to the Services caused by the Customer or the Customer’s own equipment, or a failure by the Customer to provide access to the Site and/or the Premises or as a result of an event of Force Majeure PROVIDED ALWAYS that SUBSET’s total aggregate liability to the Customer under this Service Level Agreement shall not exceed the sum of one year’s Annual Rental for the relevant Connection which has the Service Affecting Fault.

1.4.5 Where a Fault occurs outside Office Hours and SUBSET’s engineer is required to attend the Premises and/or the Site during darkness or severe inclement weather, the Target Time to Repair may be suspended for such period as it considers reasonably necessary if SUBSET considers that a health and safety hazard exists.  SUBSET will provide as much notice as is reasonably possible if it intends to postpone the Target Time to Repair.

1.4.6 Where a permanent repair/solution is not possible within the Target Time to Repair, SUBSET in its absolute discretion may provide a temporary repair/solution to ensure the Services are restored within the Target Time to Repair.

Target time to repair

Service DescriptionSLATarget Mean Time to Repair Service Affecting Faults (hours)Reasonable endeavours SupportEscalation process
Fibre Ethernet – Direct Internet Access99.95%5 Yes
Fibre Ethernet – MPLS99.95%5 Yes
Fibre Ethernet – Point-to-Point99.95%5 Yes
EFM (DIA-MPLS-P2P)99.95%7 Yes
FTTC (DIA-MPLS-P2P)N/AN/AYesNo
ADSL (DIA-MPLS-P2P)N/AN/AYesNo
3G/4G data servicesN/AN/AYesNo
Hours past Target Time to RepairAmount of Compensation
0 – 4One (1) day of the monthly fee paid for each affected Connection
4 – 8Two (2) days of the monthly fee paid for each affected Connection
8 – 16Three (3) days of the monthly fee paid for each affected Connection
More than 16Five (5) days of the monthly fee paid for each affected Connection

1.4.7 Any compensation awarded to the Customer pursuant to this Agreement will be credited by SUBSET against the next following payment due from the Customer or if no payment is due it will be payable by SUBSET by cheque to the Customer at the end of the next following Quarter. Any sums recovered by the Customer for a failure by SUBSET to meet a Target Time to Repair shall be deducted from any compensation due to the Customer for a failure by SUBSET to meet Services Availability levels as detailed in this Service Level Agreement, if attributable to the same Fault.

1.4.8 For the avoidance of doubt compensation is not payable for a Non Service Affecting Fault or for any service where a Target Time to Repair is not specified or where the Service being provided is “wires only” and SUBSET therefore has no hardware at the Site and/or Premises to enable SUBSET to monitor the Service.

1.5 Switch/router supplied by SUBSET 

1.5.1 From the end of the Notification Period, the Target Time to Repair for a Service Affecting Fault on any switch or router supplied and maintained by SUBSET under the terms of this Agreement is the Next Working Day.

1.5.2 If SUBSET does not meet the above Target Time to Repair for the switches/or routers supplied by SUBSET the Customer may claim compensation (at the Customer’s sole option) as set out below PROVIDED THAT in calculating the hours past the Target Time to Repair there shall be deducted from such calculation any period of time SUBSET is unable to repair the Service Affecting Fault as a result of the Customer’s breach of this Agreement, or a disruption to the power supply to the Equipment, or a disruption to the Services caused by the Customer or the Customer’s own equipment, or a failure by the Customer to provide access to the Site and/or the Premises or as a result of an event of Force Majeure PROVIDED ALWAYS that SUBSET’s total aggregate liability to the Customer under this Service Level Agreement shall not exceed the sum of one year’s Annual Rental for the relevant Connection:

Hours past Target Time to RepairAmount of Compensation
0 – 4One (1) day of the monthly fee paid for each affected Connection
4 – 8Two (2) days of the monthly fee paid for each affected Connection
8 – 16Three (3) days of the monthly fee paid for each affected Connection
More than 16Five (5) days of the monthly fee paid for each affected Connection
  1. Internet Connectivity Standard Service Level

2.1 Availability

2.1.1 SUBSET guarantees the Availability of IP traffic across its SUBSET System to the point of traffic egress to the Public Internet to be at least 99.95%. The calculation used is based on the recorded number of Service Affecting Faults per Connection within the Measurement Period.

2.1.2 If the Availability level on the SUBSET System falls below 99.95% per annum, the Customer may claim compensation as set out below PROVIDED THAT in calculating the Availability level on the SUBSET System there shall be deducted from such calculation any period of time SUBSET is unable to provide the Services as a result of a Planned Outage, the Customer’s breach of this Agreement, or a disruption to the power supply to the Equipment, or a disruption to the Services caused by the Customer or the Customer’s own equipment, or a failure by the Customer to provide access to the Site and/or the Premises or as a result of an event of Force Majeure PROVIDED ALWAYS THAT SUBSET’s total aggregate liability to the Customer under this Service Level Agreement shall not exceed the sum of one year’s Annual Rental for the relevant Connection.

Connection Availability at end of Measurement PeriodAmount of Compensation
0.01% – 0.1% below 99.95%5% of Annual Rental of the affected Connection
0.11% – 0.25% below 99.95%7.5% of Annual Rental of the affected Connection
More than 0.251% below 99.95%10% of Annual Rental of the affected Connection

2.1.3 The above compensation is calculated at the end of the Measurement Period and will be credited by SUBSET against the next following payment due from the Customer or if no payment is due, it will be payable by SUBSET by cheque to the Customer at the end of the next following Quarter. Compensation payable to the Customer for failure to meet the Target Time to Repair under paragraphs 1.4 and 1.5 above shall be deducted from the above compensation payments if attributable to the same Fault.

2.1.4 In calculating the Availability of each Connection, any Service Affecting Fault attributable to the loss of Services or failure in the operation of switches and/or routers supplied by SUBSET shall not be taken into account.

2.1.5 For the avoidance of doubt compensation is not payable for a Non Service Affecting Fault or for any service where a Target Time to Repair is not specified.

2.2 Latency

2.2.1 For Latency measurement purposes, SUBSET divides the network into zones, namely the Access Zone, the SUBSET Zone (SUBSET’s national IP network) and the 3nd zone called the “Public Internet Zone”. If the Access Zone is terminated at the Service Demarcation Point with a SUBSET Network Interface Device then SUBSET target that the round trip Latency between the Service Demarcation Point and a SUBSET Network Core Internet Router will be no greater than 30msIf no such device is provided, then SUBSET target that the round trip Latency between the SUBSET Network PoP and a SUBSET Network Core Internet Router will be no greater than 50ms. If the Latency so identified is greater than the target, the Customer may claim re-imbursement up to 10% of the monthly rental for the relevant Connection, PROVIDED THAT in calculating the average round trip Latency there shall be deducted from such calculation any increase in the Latency as a result of the Customer’s breach of this Agreement, or a disruption to the power supply to the Equipment, or a disruption to the Services caused by the Customer or the Customer’s own equipment, or a failure by the Customer to provide access to the Site and/or the Premises or as a result of an event of Force Majeure PROVIDED ALWAYS THAT SUBSET’s total aggregate liability to the Customer under this Service Level Agreement shall not exceed the sum of one year’s Annual Rental for the relevant Connection.

2.2.2 The Latency between the SUBSET Network PoP (or the Service Demarcation Point if a Network Interface Device is provided) and the designated Core Internet Router will be monitored and reported to the Customer only if the Customer so requests, and SUBSET agrees to such monitoring taking place. SUBSET will agree to such a request once a Quarter, if necessary. The Latency will be calculated by averaging the Latency measurements recorded over a 60 minute period. Any compensation awarded to the Customer pursuant to this Agreement will be credited by SUBSET against the next following payment due from the Customer or if no payment is due it will be payable by SUBSET by cheque to the Customer at the end of the relevant monitoring Quarter.

2.2.3 Latency on access ports below 10Mbps will be targeted for 64 byte frames only.

2.2.4 In respect of a 3rd party circuit, SUBSET will be liable to the Customer for compensation for Latency to the extent only that a third party supplier is liable to SUBSET.

2.3 Public Internet zone performance

2.3.1 Latency target and Credits

Public Internet Zone “Network Latency” refers to the period of time taken for an IP packet to travel between SUBSET upstream Tier 1 IP Transit provider’s nominated core internet nodes and back again (also referred to as RTT or Round Trip Time). SUBSET target average Network Latency between these nominated core nodes in the Public Internet Zone as identified in the table below not to exceed the following thresholds during a calendar month:

Region DescriptionTarget average network latency (during a calendar month)
Intra-EuropeAveraged RTT across all links between – European Core Nodes 50ms
Europe-US*        Averaged RTT between Europe and the US (the New York PoP) 250ms

Network Latency in the Public Internet Zone shall be demonstrated by SUBSET’s upstream transit providers based on averaging sample measurements taken during a calendar month. When the target is not met, the Customer shall be entitled to request a credit equal to the pro-rated charges for the affected Services for two (2) days during the calendar month in which the Network Latency target was not achieved.

2.3.2 Packet Loss Target and Credits

SUBSET target that average packet loss between its nominated core internet nodes in the Public Internet Zone across the identified regions will not exceed the following thresholds during a calendar month:

Region DescriptionTarget average network latency (during a calendar month)
Intra-EuropeAveraged packet loss across all links between Nominated Upstream Provider European core nodes 0.3 %  
Europe-US*Averaged packet loss between Nominated Upstream Provider Europe and the US (New York PoP) 0.3 %

Packet loss shall be determined by the Nominated Upstream Provider based on averaging sample measurements taken during a calendar month. When the target is not met, the Customer shall be entitled to request a credit equal to the charges for the affected IP Service for two (2) days during the calendar month in which the packet loss target was not achieved. 

2.4 Changes in Bandwidth

2.4.1 Subject to paragraph 2.4.5 the Customer may submit to SUBSET by email, a request for SUBSET to increase or decrease the bandwidth of any particular Connection (the “Capacity Change Request”).

2.4.2 SUBSET will acknowledge the Capacity Change Request and confirm whether the bandwidth capacity is available to execute the Capacity Change Request. SUBSET will, subject to the capacity limits of any associated Tail Circuit, arrange for the appropriate increase or decrease in capacity to the Customer’s Connection.

2.4.3 The target response time to vary the bandwidth is 24 hours from the SUBSET acknowledgement being sent to the Customer.

2.4.4 The Customer’s invoice reflecting the change in bandwidth will be incorporated in the next invoice to be sent to the Customer following the relevant bandwidth change. The minimum duration of any Capacity Change Request will be one calendar month from the date of the change in bandwidth is brought into effect.

2.4.5 The Customer may not request a decrease of bandwidth below the Customer’s Initial Capacity Order.

2.4.6 For the avoidance of doubt compensation is not payable if SUBSET does not meet the target time to vary the bandwidth set out in paragraph 2.4.3.

  1. Service Level for circuits connecting the Premises and/or Site to the SUBSET Network

3.1 SUBSET target the Availability of a Connection it provides as part of the Services from the Service Demarcation Point to the Public Internet to be at least 99.95%.  The calculation used is based on the recorded number and duration of Service Affecting Faults per Connection within the Measurement Period.

3.2 If the performance level of the Services delivered to the Service Demarcation Point falls below the relevant supplier’s quoted % availability per annum, the Customer may claim compensation set out below PROVIDED THAT in calculating the Availability of a Connection there shall be deducted from such calculation if the Availability is disrupted as a result of a Planned Outage, the Customer’s breach of this Agreement, or a disruption to the power supply to the Equipment, or a disruption to the Services caused by the Customer or the Customer’s own equipment, or a failure by the Customer to provide access to the Site and/or the Premises or as a result of an event of Force Majeure PROVIDED ALWAYS THAT SUBSET’s total aggregate liability to the Customer under this Service Level Agreement shall not exceed the sum of one year’s Annual Rental for the relevant Connection.

3.3 In calculating the Availability of each Connection, any Service Affecting Fault attributable to the loss of service or failure in the operation of switches and/or routers supplied by SUBSET shall not be taken into account.

3.4 The above compensation is calculated at the end of the Measurement Period and will be credited by SUBSET against the next following payment due from the Customer or if no payment is due, it will be payable by SUBSET by cheque to the Customer at the end of the next following Quarter. Compensation payable to the Customer for failure to meet Target Time to Repair shall be deducted from the above compensation payments if attributable to the same Fault.

3.5 For the avoidance of doubt compensation is not payable for a Non Service Affecting Fault or for any service where a Target Time to Repair is not specified.

Connection Availability at end of Measurement Period    Amount of Compensation
0.01%-0.09% below quoted availability5% of annual rental of the affected Connection
0.1%-0.34% below quoted availability7.5% of annual rental of the affected Connection
0.35% or more below quoted availability10% of annual rental of the affected Connection
  1. Tail Circuits

4.1 SUBSET’s liability for Target Time to Repair, circuit Availability, and Latency in respect of a 3rd party Tail Circuit will at no time better the published contractual liability of the third party supplier of such Tail Circuit.

4.2 Following payment of compensation to SUBSET by the third party supplier, SUBSET will credit the Customer with the relevant compensation against the next following payment due from the Customer, or, if no further payments are due from the Customer, SUBSET will pay compensation by cheque to the Customer at the end of the next following Quarter. 

  1. Outages/Re-routing

5.1 In maintaining the Services, SUBSET may with reasonable notice, request a Planned Outage or re-routing of the Services. Wherever reasonably possible SUBSET will notify the Customer of the Planned Outage or re-routing at least 10 Working Days in advance and will co-operate with the Customer as to timing of the Planned Outage or re-routing. The Customer acknowledges that it may not be possible to provide advance notice under this paragraph 5 in the case of an event of Force Majeure or in an emergency. When notice of a Planned Outage and/or re-routing has been given to the Customer, the Customer will not be entitled to any compensation and lack of Availability will not be counted in any Measurement Period.

5.2 If there is an Outage and/or re-routing that has not been previously notified to the Customer, this will be regarded as a Fault.

  1. Customer Responsible Faults

SUBSET is not responsible for any Fault identified as attributable to the Premises, the Site, the Customer’s equipment, a breach of this Agreement by the Customer, a disruption in the Customer’s power supplies or the action or inaction of the Customer’s employees and/or agents or a failure of the Customer to provide access to the Site and/or the Premises. In such event SUBSET will quote its terms and conditions (including price) for any remedial work necessary for SUBSET to fulfil its obligations under this Agreement but the provisions relating to Target Time to Repair shall not apply and the lack of Availability will not be counted in any Measurement Period. In the event of responsibility being the subject of dispute between SUBSET and the Customer then the decision of SUBSET in this regard shall prevail.

  1. Third Party Attributable Faults

If a Fault is identified as being attributable to a third party (i.e. neither the Customer nor SUBSET), including loss of line of sight to the Equipment, the lack of Availability will not be counted in any Measurement Period. In such event SUBSET will use all reasonable endeavours to restore the Services within the Target Time to Repair but will not be liable to pay the Customer compensation as a result of any Fault attributable to a third party.

  1. Cancellation of Service

8.1 Cancellation of the order is not permitted unless the Customer pays all of the Charges until the end of the Minimum Term (including all third party charges incurred by SUBSET). The parties acknowledge that this represents a genuine pre-estimate of SUBSET’s revenue loss in the event the Customer cancels the order for convenience.

8.2 Where an Installation Charge was not payable or it was discounted, SUBSET may at its sole discretion claim from the Customer reasonable costs (including but without limitation all third party costs) incurred as a result of such cancellation and the Customer shall become liable for payment of such costs forthwith. Where an Installation Charge was discounted the amounts claimed under this paragraph 8.2 shall be in addition to any sums claimed under paragraph 8.1.

8.3 Notice of cancellation must be given in accordance with clause 24.

  1. Modification of the Services

9.1 If the Customer significantly modifies the order set out in the Order Acceptance Form (e.g. changes an address, point of presence or network presentation) prior to the Connection Ready for Service Date the Customer shall be liable to pay, in addition to the Installation Charge, the relevant Miscellaneous Charges set out in Schedule 2.

9.2 Where an Installation Charge was not payable or it was discounted, SUBSET may at its sole discretion claim reasonable costs incurred as a result of the modification of the Services and the Customer shall become liable for payment of such costs forthwith. Where an Installation Charge was discounted the amounts claimed under this paragraph 9.2 shall be in addition to any sums claimed under paragraph 9.1.

9.3 Where the Customer modifies the order set out in the Order Acceptance Form, SUBSET will present the Customer with a revised installation charge (‘revised installation charge”).

9.4 If such revised installation charge is LESS than the Installation Charge, the amount due under this paragraph 9 will be credited by SUBSET against the revised installation charge.

9.5 If such revised installation charge is MORE than the Installation Charge, the amount due under this paragraph 9 will be added by SUBSET to the revised installation charge and shall be payable by the Customer in accordance with clause 12 of this Agreement.

9.6 If the Customer modifies the order set out in the Order Acceptance Form by requesting a “Move and Change” for either the “A” end location and/or address and/or a “B” end location and/or address of a Connection and/or an increase/decrease in bandwidth for a Connection already installed by SUBSET, the Customer shall be liable to pay all relevant costs incurred by the relevant Move and Change.

  1. Escalation

In the event of SUBSET’s normal point of contact (nominated and/or as may be amended from time to time) not being able to respond satisfactorily the following escalation procedures should be used.

Any requests from either Party for the escalation procedure(s) to be implemented should be initiated through the relevant Network Operations Personnel identified in the table below or as notified from time to time.

LevelSUBSET ContactsEscalation
1Support Desk2 hours after initial fault is reported
2Support Desk Team Leader1 hour after level 1 escalation
3Technical Support Manager3 hours after level 1 escalation
4Services Director5 hours after level 1 escalation

SUBSET operates a personnel roster system for escalation purposes and provides a series of Duty Officers for levels 1 to 3. Accordingly, the dedicated telephone number for Duty Officers is set out in Schedule 3.

  1. Claims Procedures

Fault Handling: All claims for compensation under these terms of this Agreement must be submitted to the SUBSET Account Executive within 30 days of the date of the Fault Reference Number.

Services Availability: All claims must be submitted to the SUBSET Account Executive within 30 days from the end of the Measurement Period.

If the Customer fails to submit a claim for compensation within 30 days payment of compensation will be at the discretion of SUBSET.

  1. Service Level Agreement definitions

In this Service Level Agreement unless listed below all words and phrases shall have the same meaning as defined in clause 1 of this Agreement. The following terms shall have the following meanings:

“Actual Delivery Date” the actual date on which SUBSET provides the Connection tested and ready to use;

“Availability” the time for which the Services and a Connection is available. A Connection shall be deemed unavailable if it is completely interrupted for greater than 30 consecutive seconds;

Core Internet Router” is that router (or routers) in the SUBSET Network that (together) form the gateway between the SUBSET Network and the Public Internet. The designation of such routers may change from time to time.

“Fault” a Service Affecting Fault and/or a Non Service Affecting Fault;

“Fault Reference Number” the unique number issued when logging a Fault with SUBSET’s Support Desk;

“Initial Capacity Order” the initial capacity requested by the Customer for the Minimum Term as stated in the Order Acceptance Form;

“Latency” the amount of time elapsed or the delay between receiving and transmitting a packet across the SUBSET Network.

“Measurement Period” periods of twelve (12) calendar months, the first being calculated from the Actual Delivery Date;

“SUBSET Network” the collection of SUBSET Network PoPs, network equipment and transmission facilities used to interconnect the SUBSET Network PoPs as may be amended or re-engineered from time to time.

“SUBSET Network PoP” a point of presence on the SUBSET Network where SUBSET equipment is located for the aggregation of customers onto the SUBSET Network (excluding the Premises and/or the Site).

“SUBSET Support Desk” SUBSET’s support desk from where SUBSET Network management functions are directed;

“Nominated Upstream Provider” SUBSET selects, at its own sole discretion from time to time, certain providers of Internet Transit service. The services from these providers allow international internet service.

“Non Service Affecting Fault” any fault which does not cause a material interruption to the Services;

“Notification Period” the period of 1 hour from the time a Fault is reported to SUBSET’s Support Desk or an alarm is registered by SUBSET’s fault management centre;

“Office Hours” 0900 – 1700 Monday to Friday excluding bank holidays;

“PoP” means a SUBSET network Point of Presence;

“Public Internet” means the global system of interconnected computer networks that use the Internet protocol suite (TCP/IP) to link billions of devices worldwide;

 “Public Internet Zone” that portion of the Public Internet that lies beyond SUBSET’s Core Internet Router

 “Quarter” each three month period commencing 1 January, 1 April, 1 July, 1 October;

“Service Affecting Fault” any fault originating on the SUBSET Network which causes a material interruption in the Customer’s actual use of the Services, which is not attributable solely to Latency,

 “Tail Circuit” the electronic communications network supplied by a third party circuit provider to the Customer;

“Target Time to Repair” the target length of time to restore Services which is measured from the end of the Notification Period registered by SUBSET’s Support Desk as set out in paragraph 1 above;

SCHEDULE 2

Miscellaneous Charges

ServiceDescriptionCharge (excluding VAT)
   
LOS or Installation Survey.Carried out in connection with a re-location by the Customer.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
Relocation Installation.Carried out in connection with a re-location by the Customer.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
Re-connection of service.Following the suspension of the supply/performance of the Services as a result of the Customer’s breach.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
Reappointment due to failed attendance by Customer.Where the Customer fails to attend a pre-arranged site visit and has failed to notify SUBSET by 2.00pm the previous day. Assumes 1 hour on site for 2 engineers.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
Cancelled appointment.Where the Customer cancels an appointment less than 72 hours before an agreed date and time for SUBSET to attend the Customer’s premises.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
Abandoned Call Out due to Customer not arranging access or access is prevented.Where the Customer has failed to arrange access for SUBSET and SUBSET is unable to gain access to the Customer’s premises or the building in which the Customer’s premises form part.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
Engineer call out and no-fault found with SUBSET supplied and managed Customer Equipment.Where the Customer reports a Fault under the Service Level Agreement and the Equipment is found not to be faulty.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
The preparation of a risk assessment and method statement.Where the contract is terminated or the service cancelled because the Customer has prevented the Company delivering the service, or the Customer is unable to meet the conditions set out in the Order Acceptance Form or this contract.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
Replacement of equipment.Where necessary as a result of damage caused by the Customer.As set out in the current professional services price book, which is available from the Customer’s Account Manager on request.
Additional sundries.Where a non-planned cable run exceeds “5” metres.£50.00 per metre
Missed payment fee.The Customer fails to pay an amount due under this Agreement.£75.00 per missed payment
Administration fee.Paying by method other than by direct debit.£75.00 per annum
Paper billing.Where the Customer insists on receiving a paper bill.£10.00 per invoice
Non-return of Equipment.At the end of the contractual term.£250.00 plus the value of the Equipment

Schedule 3 – SUBSET Support Desk

EscalationContact Details
Level 1:SUBSET Support Desk: Tel: 0203 468 1421, support@subset.solutions   Support Desk operating hours are 24 hours a day, seven days a week.   Change Requests: Please email details to  support@subset.solutions   Faults and Urgent Changes: Please email details to  support@subset.solutions and follow up with a phone call to 0203 468 1421   For Out of Hours support please call 0203468 1421 to be put through to the on call support team
Level 2:SUBSET Support Desk Team Leader Tel: 0161 822 2580, option 1   Request for escalation    
Level 3:Technical Support Manager   Tel: 0203 468 1421, accountmanager@subset.solutions
Level 4Harry Williams – Managing Director (UK) Tel: 0203 468 1421 harru@subsetsolutions.uk

Schedule 4 – Processing Details

Scope of processing

SUBSET processes Personal Data to enable it to provide the services under this Agreement and to comply with any legal obligations imposed upon it.

Nature and purpose of processing

  • Use of Personal Data to set up, operate, monitor and provide the services under this Agreement;
  • Perform day to day management of accounts and products SUBSET provides to the Customer;
  • Record consent (e.g. in respect of marketing of products and services or any other consent the Customer provides which SUBSET is obliged to record);
  • Uploading any fixes or upgrades to the services SUBSET provide (where SUBSET is obliged to carry out fixes and/or upgrades);
  • Back up of Personal Data;
  • Computer processing of Personal Data, including data transmission, data retrieval, data access;
  • Complying with SUBSET’s statutory obligations;
  • Providing access to online platforms (if any);
  • Network access to allow transfer of Personal Data;
  • Execution of the Customer’s written instructions in accordance with the above provisions and/or this Agreement;
  • Administration of accounts to manage user permissions.

Categories of Personal Data

  • Account data such as account number, device ID, IP address, service history etc.
  • Personal data such as name, address, date of birth, email address, telephone number, circuit ID;
  • Professional information such as job title, details of the Customer’s professional body;
  • Financial data such as credit or debit card details, bank account details;
  • History product data and information;
  • Company data where this identifies a Data Subject;
  • Identification data (where required);
  • Special categories of Personal Data.

Categories of Data Subjects

  • Employees, contractors, temporary workers, agents, the Customer’s clients and suppliers or other individuals having Personal Data to be Processed as part of SUBSET’s service to the Customer.
  • End users or their authorised representatives.

Duration of Processing

SUBSET shall process Personal Data no longer than is necessary in order to perform its obligations under this Agreement or in order to comply with any legal requirement regarding the Processing of Personal Data.

Services Schedule

Annex 1 – IaaS – Co-location and/or hosting services

Overview

SUBSET shall provide the Customer’s IaaS solution in accordance with Annex 1, Annex 3 and Annex 4 and any technical specification requested by the Customer and agreed by SUBSET. For clarification, the Service Level Agreement at Schedule 1 shall apply to the Services referred to in Annex 1 except where amended below.  If there is any conflict between the provisions contained in Schedule 1 and the terms contained in this Annex 1, the terms contained in Annex 1 shall prevail.

  1. Customer obligations
  • The Customer warrants to SUBSET as follows:
    • that it will act with all due care and skill when inside SUBSET’s property, working on the Customer Equipment (in this schedule meaning any equipment installed by the Customer on SUBSET’s property) or otherwise;
    • that any equipment installed at SUBSET’s property shall at all times fully conform with the manufacturer’s specification of the Customer Equipment, the relevant standard or approval for the time being designated under the Act and/or other relevant legislation and all other regulations that apply to it from time to time, including without limitation, those concerning safety and electromagnetic compatibility;
    • that the total power consumption of all of the Customer Equipment (including for the avoidance of doubt, any additional equipment installed by the Customer) shall not at any time exceed the power allocation set out in the Order Acceptance Form (if any) or agreed between the Parties;
  • The Customer will at all times follow the rules and procedures as laid out in the Customer Colocation Manual, a copy of which is available at request. Such manual may be amended from time to time.
  • SUBSET shall be entitled upon not less than 3 months’ written notice from time to time to the Customer to move the Customer Equipment to a different location within SUBSET’s property. The cost in moving and installing the Customer Equipment shall be borne by SUBSET.
  • The Customer shall permit SUBSET unrestricted physical access to the Customer Equipment at all times to ascertain whether the Customer’s obligations under this Agreement have been duly observed and performed.
  • The Customer shall not attempt to circumvent or alter any method of measuring or billing for any hosting services.
  • The Customer warrants that it is the owner of, or that it has authority from the owner of (and has a right to use) any trade mark or name that the Customer wishes to use as or in its registered domain name (or any of them) (“Domain Name”) and/or as part of the Customer’s uniform resource locator (“URL”).
  • If SUBSET registers Domain Names and/or URLs on behalf of the Customer, the Customer shall pay SUBSET any registration fee paid by SUBSET. No refunds shall be given should the Customer cancel the Service.
  • SUBSET does not offer any guarantees that any Domain Names and/or URLs requested by SUBSET will be available nor does SUBSET guarantee to renew any Domain Name on behalf of the Customer. SUBSET shall also have no responsibility for checking whether any Domain Name and/or URL will infringe any intellectual property rights of a third party and the Customer shall indemnify SUBSET against any action (including without limitation the naming authority) that may be taken by a third party for breach of any intellectual property rights.
  • If a dispute should arise regarding the use of any Domain Names and the Customer is unable to resolve such dispute SUBSET reserves the right in its absolute discretion to suspend or cancel the relevant service or services associated with the dispute.
  1. Service availability and monitoring – connectivity, power and cooling at SUBSET’s data centre

2.1 SUBSET guarantee the Availability at its data centre to be at least 99.98%.  The calculation used is based on the total measurement time minus the unavailable time divided by the total time ((total time minus total unavailable time) x100) ÷ total time.

2.2 If the Availability level on the Services at SUBSET’s data centre falls below 99.98% during a given month, the Customer shall receive a service credit according to the table below. The percentage applies to the contracted service (standing monthly charge, or monthly equivalent, plus traffic relating to the affected SUBSET network port). The service credit shall be requested by the Customer based on the minutes downtime registered during 1 (one) calendar month PROVIDED THAT in calculating the Availability level there shall be deducted from such calculation any period of time SUBSET is unable to provide the Services as a result of a Planned Outage, the Customer’s breach of this Agreement, or a disruption to the Services or the power supply caused by the Customer or the Customer Equipment, or as a result of an event of Force Majeure PROVIDED ALWAYS THAT SUBSET’s total aggregate liability to the Customer under this Service Level Agreement shall not exceed one year’s Annual Rental.

LevelAvailabilityMinutes DowntimeService credit
0              99.98% – 100%0 – 90%
199.85% – 99.97%10 – 6810%
299.70% – 99.84%69 – 13020%
399.45% – 99.69%131 – 23830%
498.90% – 99.44%239 – 47540%
5< 98.90%    > 475Further 2% per each further hour

2.3 The above compensation is calculated at the end of each month and will be credited by SUBSET against the next following payment due from the Customer or if no payment is due, it will be payable by SUBSET by cheque to the Customer at the end of the next following Quarter.

2.4 For the avoidance of doubt compensation is not payable for a Non-Service Affecting Fault.

2.5 The provision of a connection point to a protected 230 Volt supply will be available for the Customer to connect the Customer Equipment and is protected by UPS battery backup system and diesel generator in the event of a power failure. Power availability target is 100%.  Reasonable endeavours will be made to maintain an air temperature within the cold aisle of the pod at 23°C with a minimum of 13°C and maximum of 27°C. This will be done using equipment designed to maintain the temperature where there is an outside temperature of between 30°C and minus 2°C.  If SUBSET fails to meet the power availability targets or temperature targets during any calendar month the Customer will receive compensation as set out below:

Power = % of month power is availableTemperature % of month temperature between 13°C and 27°CService credit % reduction in monthly service fee relating to co-location services
<100%99.7%5%
<99.95%<99.85%10%
<99.90%<99.70%15%
<99.85%<99.30%20%
<99.80%<99.85%30%

2.6 Any service credit will apply to only those items of Customer Equipment directly affected by the outage event. The service credit will be calculated by SUBSET, in its reasonable discretion, having regard to the overall effect of the outage event on the Customer Equipment.

2.7 In calculating the above service credits there shall be deducted from such calculation any period of time SUBSET is unable to repair the service affecting fault as a result of the Customer’s breach of this Agreement or to follow instructions issued by SUBSET, or a disruption to the Customer Equipment caused by the Customer or the Customer Equipment being faulty, or Planned Outage, or as a result of an event of Force Majeure PROVIDED ALWAYS that SUBSET’s total aggregate liability to the Customer under this Annex 2 shall not exceed the sum of one year’s Annual Rental for the relevant affected service.

2.8 Notwithstanding the Availability levels set out above, the Parties may agree different Availability levels for production and/or development/test environments as part of any IaaS solution.

  1. Power charges

          3.1 Where power and space for the co-location and/or hosting services are not billed separately the Parties agree that the power inclusive co-location rack will form 60% of the total area used by the Customer and the remaining area will form 40%.  If electricity prices rise SUBSET shall be entitled to increase the cost of the co-location and/or hosting services by 60% to reflect the increase of the electricity prices.

3.2 Where power is itemised and billed separately SUBSET shall be entitled to pass on to the Customer any increase in the electricity prices for such power. For clarification, if the co-location services are provided in a third party data centre SUBSET shall be entitled to pass on to the Customer any increase in the electricity prices SUBSET receives from its supplier insofar as such increase relates to the co-location services provided to the Customer.

  1. Overage Charges

           4.1 The Customer shall pay any additional power charges if it exceeds the power allocation set out in the Order Acceptance Form or any other power allocation agreed between SUBSET and the Customer.

4.2 The Customer shall pay additional overage fees for services which are burstable. Such services will be metered and invoiced to the Customer on a monthly basis.

  1. Remote hands

           5.1 If SUBSET agrees to provide a remote hands service the cost for such service shall be set out in the Order Acceptance Form or any subsequent cost agreed between SUBSET and the Customer.

           5.2 Remote hands service is only performed at the instruction of the Customer and then in accordance with any rules and regulations relating to remote hands notified to the Customer from time to time.

           5.3 If the Customer requests remote hands and SUBSET is unable to provide the service immediately due to lack of available staff, SUBSET shall use its reasonable endeavours to provide such service within 2 hours during Office Hours and within 4 hours outside Office Hours of being notified by the Customer.

           5.4 Service credits do not apply to the remote hands service.

  1. Customer Equipment

           6.1 SUBSET shall have the right to:

           6.1.1 prevent the Customer from removing the Customer Equipment installed on SUBSET’s property if the Customer has not paid all Charges payable under this Agreement.

           6.1.2 remove the Customer Equipment if the Customer has failed to remove it after the expiry of 14 days from the date this Agreement is terminated.  SUBSET shall account to the Customer for the costs it recovers for the Customer Equipment less any charges it incurs in disposing of the Customer Equipment.

           6.1.3 exercise a lien over the Customer Equipment in respect of any unpaid Charges due under this Agreement up to the date this Agreement is terminated.  If the Customer fails to pay the unpaid Charges within 1 month after this Agreement is terminated (for whatever reason) SUBSET shall have the right to sell the Customer Equipment to recover any unpaid Charges.

           6.2 For clarification, SUBSET shall not be obliged to get the best price for any Customer Equipment disposed of under this paragraph 6 and the Customer shall indemnify SUBSET against any costs it incurs in disposing of the Customer Equipment.

  1. Dedicated servers

           7.1 All dedicated servers and any associated licences that come with the server remain the property of SUBSET.

           7.2 The dedicated server will be provided to the Customer in accordance with any agreed specifications and the Customer shall at all times remain responsible for the activities and security of their server.

           7.3 SUBSET reserve the right to disconnect the server from any SUBSET System if the server is found to be performing network scans or other possible hacking activities.

Annex 2 – Fibre Ethernet

  1. Overview

Fibre Ethernet may be provided by a third party (“fibre provider”) and, unless otherwise agreed between the Parties, the fibre ethernet service will comprise one network termination unit at the Premises providing connection to the fibre provider’s network.

  1. Ordering and provisioning of the Connection

2.1 Before SUBSET can provide the fibre ethernet service the fibre provider may conduct a survey of the Premises to establish whether the service can be provided to the Premises.  If, as a result of the survey, the fibre provider wishes to impose excess construction charges and the Customer wishes to proceed with the order, the Customer shall pay such additional charges within 15 Working Days of the date of SUBSET’s invoice. If the Customer cancels the order because of excess construction charges or because of delay caused by the fibre provider the Customer shall be entitled to cancel the order subject to paying SUBSET any third party costs incurred by SUBSET as a result of such cancellation.

2.2 The installation of any equipment belonging to the fibre provider will be carried out by the fibre provider.  

2.3 All pre-installation checks, acceptance tests and successful completion of the acceptance tests will be conducted by the fibre provider.

  1. Customer Equipment

If the Customer is required to connect the Customer Equipment to any equipment belonging to the fibre provider, the Customer shall comply with all reasonable instructions issued by the fibre provider relating to such connection.

  1. Maintenance

If any maintenance is required to any equipment owned by the fibre provider, the Customer shall not prevent or delay any maintenance services to that equipment.

Annex 3 – Disaster Recovery as a Service (DRaaS)

In this Annex 3 unless listed below all words and phrases shall have the same meaning as defined in clause 1 of this Agreement. The following terms shall have the following meanings in respect of DRaaS:

“Failback test” a sequence of two full failover actions. The first performs a full failover of the environment to the Recovery Site. While services are provided from the Recovery Site, testing will be carried out by the Customer to validate successful failover of their services. The second failover returns services to the Primary Site where the Customer should test and validate that all services are successfully restored. This process is always intrusive to the Primary Site services and will involve a short period of service downtime during the process;

“Failover Test” – A process which performs the failover action to the Recovery Site but without removing the Primary Site from service. The Customer can perform full testing in isolation of the disaster recovery environment in the Recovery Site to validate success of disaster recovery without affecting services in the Primary Site. At the Virtual Machine level this process is non-intrusive to the Primary Site services;

“Fault” means any failure of part or all of the Virtual Machines subject to the exclusions contained in this Service Level Agreement;

“Fault Reference Number” the unique number issued when logging a Fault with SUBSET’s Support Desk;

“SUBSET Support Desk” SUBSET’s support desk details of which are set out in Schedule 2;

“Non Service Affecting Fault” any fault which does not cause a material interruption to a Virtual Machine;

“Notification Period” the period of 1 hour from the time a Fault is reported to SUBSET’s Support Desk or an alarm is registered by SUBSET’s fault management centre;

“Office Hours” 0900 – 1700 Monday to Friday excluding bank holidays;

“Operating System” means the system ordered by the Customer, which is to be installed on a Virtual Machine;

“Primary Site” the location of the Customer’s main business activities. This may include more than one site;

“Recovery Site” the location of the Supplier’s data centre to be used for the purposes of back-up. This may include more than one site and may be operated by an Associate;

“RPO” means Recovery Point Objective and specifies the maximum lag time between data stored on the Primary Site and the data stored on the Recovery Site. This is the maximum window in which data may be lost during a total loss of the Primary Site. Data replication cannot be immediate between distinct sites as it would then become a single point of failure. Therefore, there is an inherent time lag between the Primary Site and the Recovery Site.  The RPO is also dependent on the replicated workload data write rate and the available bandwidth.

“RTO” means Recovery Time Objective and is the elapsed time for the disaster recovery failover action which restores Virtual Machines to the Recovery Site, to complete once initiated. The service being restored is when virtual servers are powered on in the Recovery Site environment.

“Target Time to Remedy a Fault” the target length of time to remedy a Fault which is measured from the end of the Notification Period registered by SUBSET’s Support Desk;

“Virtual Machines” an individual virtual server specified in the Order Acceptance Form.

“Workload Journal Assessment” the average hourly disk change rate assessed in kilobytes per second to determine the amount of cloud storage required to store 24 hours of data for rolling back workloads.

  1. Service

1.1 DRaaS is provided through the use of software for the replication of Virtual Machines that allows the Customer’s computers running at the Customer’s Primary Site to be restored on Virtual Machines at the Recovery Site.

1.2 SUBSET shall provide the DRaaS service in accordance with the technical specification requested by the Customer and specified in the Order Acceptance Form.

1.3 SUBSET shall provide each Virtual Machine with the Operating System requested in the Order Acceptance Form.

1.4 SUBSET shall provide operational support from the SUBSET Support Desk;

1.5 SUBSET shall provide maintenance of the software which enables SUBSET to provide the DRaaS service.

1.6 Expanding the list of Virtual Machines will incur additional charges at the then current charging rates.

1.7 Subject to SUBSET’s Workload Journal Assessment, SUBSET shall use reasonable endeavours to provide a minimum journal capacity to store 24 hours of data for rolling back workloads. The Customer may also increase the journal capacity beyond 24 hours subject to the prior consent of SUBSET. The Customer acknowledges that there will be additional charges for increasing the journal capacity.

1.8 SUBSET shall have a right to terminate this Agreement on 30 days’ written notice to the Customer if SUBSET’s supplier of the DRaaS service terminates its agreement with SUBSET for whatever reason, which results in SUBSET no longer being in a position to provide the DRaaS Service. In the event of termination by SUBSET under this paragraph 1 SUBSET shall refund to the Customer all Charges paid by the Customer for the DRaaS service for any period beyond the date of termination and SUBSET shall have no further liability to the Customer.

1.9 Where the DRaaS infrastructure is owned and operated by the Customer, SUBSET can only access the environment if the Customer provides SUBSET with remote access.  SUBSET therefore accepts no responsibility for the provision of DRaaS if the Customer fails to provide SUBSET with remote access to the environment.

  1. Customer Responsibilities

2.1 The Customer acknowledges that the provision of DRaaS by SUBSET is subject to the matters listed below being in place:

  • There is sufficient bandwidth to allow replication.
  • Advice of any changes to the fixed DRaaS list of Virtual Machines.
  • Operational changes necessary so that Virtual Machines at the Recovery Site are usable for business as usual including remote access.
  • Maintain accountability for firewall rules.
  • Network connectivity at the Primary Site.
  • User and remote service connectivity (DNS updates or IP Failover).
  • Services such as back up should be designed to follow protected servers ensuring failover and so that disaster recovery tests can be run without production backups being impacted.
  • Alterations to the protected solution by the Customer to enable continuation of service and include the provision of this service where needed.
  • Failover action effect on other services.

2.2 The Customer confirms that it has considered and retains full responsibility for all scenarios relating to failure conditions and functionality of each related or dependent service and that SUBSET has no responsibility for any failure of any of these related or dependent services.

2.3 In the event of a disaster at the Customer’s Primary Site, the Customer may invoke a disaster recovery event at which point SUBSET will invoke the replicated copy of each Virtual Machine on the Recovery Site.

  1. Management and Monitoring

3.1 The monitoring of DRaaS shall be as follows:

Service ObjectResponsibility (including upgrades, patching, fault management)
Customer Primary Site virtual infrastructureCustomer
Customer Primary Site virtual infrastructure replication componentCustomer
Connectivity or any third party network that connects to DRaaSCustomer
Firewall rules for external connectivity during failoverCustomer
Recovery Site virtual infrastructureSUBSET
Recovery Site virtual infrastructure replication componentSUBSET
Failover/Failback of Virtual MachinesSUBSET

NB: For the avoidance of doubt, it is the Customer’s responsibility to maintain its own infrastructure located at the Primary Site and any infrastructure it may have at the Recovery Site.

3.2 The Customer acknowledges that it is best practice to perform disaster recovery tests to prove that the Customer’s service can be restored following a disaster recovery event. The Customer is therefore entitled to perform 2 Failover Tests during the Initial Term and any subsequent 12 month period on a 12 month rolling basis. The Customer is also entitled to perform 1 Failback Test in any failover period with SUBSET’s assistance. The Customer shall provide not less than 30 days’ prior written notice of any Failover Test or Failback Test.

3.3 The Customer is entitled to use DRaaS for a period of up to 30 days following a disaster recovery event.

3.4 The Customer acknowledges that the Failback Test (which for the avoidance of doubt comprises a scheduled full failover event and subsequent failback) will affect the production environment.

3.5 The Customer must give SUBSET not less than 30 days’ prior written notice of any planned disaster recovery test.

3.6 The service levels set out in paragraph 4 below shall not apply during any planned Failover Test, Failback Test or disaster recovery test.

3.7 If, during testing, the Virtual Machines transfer successfully (or boot in the case of a Failover Test) and the data is synchronised within the limits of the RPO, the testing will be considered successful.

3.8 In the event that the Virtual Machines do not successfully start during testing, or the data has not synchronised correctly, troubleshooting actions will be taken by SUBSET.  In such a case, the test will not be considered to count towards the annual test limit set out in paragraph 3.2 above.

3.9 Faults should be reported to the SUBSET Support Desk at which time a Fault Reference Number will be issued.

  1. Service levels

4.1 SUBSET shall use reasonable endeavours to comply with the service levels set out in the table below in respect of DRaaS.  For clarification, the Service Level Agreement at Schedule 1 shall not apply to DRaaS.

4.2 SUBSET shall use reasonable endeavours to deliver the recovery times in respect of disaster recovery events as set out in the table below.

4.3 Disaster recovery failover actions must always be triggered by contacting the SUBSET Support Desk.

4.4 There may be a delay to certain software services operating following a system boot and the service levels will not be enforceable for the duration of time when there is no network connectivity at the Primary Site.

                                                                                                           RPO and RTO SLA

Service levelsService hoursRPO best caseRTO best caseRPO minimumRTO minimum
Fault  24/7/365  1 hour  1 hour  1 hour  1 hour
Non-Service Affecting FaultOffice Hours  1 hour  8 hours  8 hours  8 hours
Maximum time in disaster recovery  N/A    30 days    30 days    30 days    30 days

                                                                                                           Customer Response SLA

Event typeService hoursResponse time
Fault24/7/365Notification within 2 hours.
Non-Service Affecting FaultOffice HoursNotification within 8 hours.
Routine requestsOffice HoursCustomer routine changes, including without limitation, firewall rules within 24 hours.

4.5 From the end of the Notification Period, the Target Time to Remedy a Fault is 2 hours.

4.6 If SUBSET does not meet the Target Time to Remedy a Fault the Customer may claim compensation (at the Customer’s sole option) as set out below PROVIDED THAT in calculating the hours past the Target Time to Remedy a Fault there shall be deducted from such calculation any period of time SUBSET is unable to remedy the Fault as a result of the Customer’s breach of this Agreement, or the Customer carrying out a Failover Test and/or Failback Test, or a disruption to the power supply to the Customer’s Equipment and/or infrastructure, or a disruption to DRaaS caused by the Customer or the Customer’s Equipment and/or infrastructure, or an event of Force Majeure PROVIDED ALWAYS that SUBSET’s total aggregate liability to the Customer under this Service Level Agreement shall not exceed the sum of one year’s Annual Rental.

Hours past Target Time to Remedy a Fault

Amount of Compensation

Hours past Target Time to Remedy a FaultAmount of Compensation based on the monthly Charge/730 hoursx24 hours = 1 day
1 – 4One (1) day of the monthly Charges
4 – 8Two (2) days of the monthly Charges
8 – 16Three (3) days of the monthly Charges
More than 16Five (5) days of the monthly Charges
  1. Planned Maintenance

In maintaining DRaaS, SUBSET may with reasonable notice carry out planned maintenance. Wherever reasonably possible SUBSET will notify the Customer of the planned maintenance at least 10 Working Days in advance and will co-operate with the Customer as to timing of the planned maintenance. The Customer acknowledges that it may not be possible to provide advance notice under this paragraph 5 in the case of an event of emergency or Force Majeure.

The Customer will not be entitled to any compensation for lack of availability of DRaaS under this paragraph 5.

  1. Customer Responsible Faults

SUBSET is not responsible for any Fault identified as attributable to the Primary Site, the Customer’s Equipment and/or infrastructure, a breach of this Agreement by the Customer, a disruption in the Customer’s power supplies or the action or inaction of the Customer’s employees and/or agents. If SUBSET responds to a Fault under such circumstances a charge will be made to the Customer.

  1. Third Party Attributable Faults

If a Fault is identified as being attributable to a third party (i.e. neither the Customer nor SUBSET) the agreed service levels above shall not apply. In such event, SUBSET will use all reasonable endeavours to remedy the Fault within the service levels specified above but will not be liable to pay the Customer compensation as a result of any Fault attributable to a third party.

  1. Cancellation of Service

8.1 Cancellation of the order is not permitted unless the Customer pays all of the Charges until the end of the Minimum Term (including all third party charges incurred by SUBSET). The parties acknowledge that this represents a genuine pre-estimate of SUBSET’s revenue loss in the event the Customer cancels the order for convenience.

8.2 Notice of cancellation must be given in accordance with clause 24.

9 Changes in Bandwidth

9.1 Subject to paragraph 9.5 the Customer may submit to SUBSET by email, a request for SUBSET to increase the bandwidth of any connectivity services which are required as part of DRaaS (“Capacity Change Request”).

9.2 SUBSET will acknowledge the Capacity Change Request and confirm whether the bandwidth capacity is available to execute the Capacity Change Request. SUBSET will, subject to the capacity limits, arrange for the appropriate increase in capacity to the Customer’s connectivity services.

9.3 The target response time to vary the bandwidth is 24 hours from the time SUBSET sends its acknowledgement to the Customer.

9.4 The Customer’s invoice reflecting the change in bandwidth will be incorporated in the next invoice to be sent to the Customer following the relevant bandwidth change. The minimum duration of any Capacity Change Request will be one calendar month from the date of the change in bandwidth is brought into effect.

9.5 The Customer may not request a decrease of bandwidth.

9.6 For the avoidance of doubt compensation is not payable if SUBSET does not meet the target time to vary the bandwidth set out in paragraph 9.3.

  1. Claims Procedures

Fault Handling: All claims for compensation under these terms of this Service Level Agreement must be submitted to the SUBSET Account Executive within 30 days of the date of the Fault Reference Number. If the Customer fails to submit a claim for compensation within 30 days payment of compensation will be at the discretion of SUBSET.

Annex 4 – Backup as a Service (BUaaS)

In this Annex 4 unless listed below all words and phrases shall have the same meaning as defined in clause 1 of this Agreement. The following terms shall have the following meanings in respect of BUaaS:

“Cohesity” means Cohesity, Inc a Delaware corporation having a principal place of business at 300 Park Avenue, Suite 800, San Jose, CA 95110, United States;

“Cohesity Licence” the licence granted by Cohesity to SUBSET to enable SUBSET to provide the Cohesity Products;

“Cohesity Product” data protection and storage products, which form part of the Services;

“Error” an error in the Cohesity Product which significantly degrades such product as compared to any published performance specifications;

“Error Correction” SUBSET’s reasonable commercial efforts to correct Errors;

“End User Agreement” the end user agreement, a copy of which is attached at Annex 5, which governs the use of the software embodied within the Cohesity Product and related documents as found at www.cohesity.com/agreements;

“Workaround” a change in the procedures followed or data supplied by SUBSET or the Customer to avoid an Error without substantially impairing intended use of the Cohesity Product.

  1. Service

1.1 BUaaS is provided through the use of a Program over a hyperconverged cloud-based platform.

1.2 SUBSET shall provide BUaaS in accordance with the technical specification requested by the Customer and specified in the Order Acceptance Form and/or any agreed high level design.

1.3 SUBSET shall provide operational support from the SUBSET Support Desk.

1.4 SUBSET shall provide maintenance of the Program which enables SUBSET to provide BUaaS, together with day to day administration and monitoring of BUaaS. For clarification, this may include implementing Cohesity Helios to allow monitoring and monthly reporting via WAN connection to the Helios licence management system.

1.5 SUBSET grants the Customer during the term of this Agreement a non-exclusive, non-transferable, revocable licence, without a right to sub-licence to use the Cohesity Products under the terms of this Agreement and the End User Agreement.

1.6 SUBSET shall have a right to terminate this Agreement on 80 days’ written notice to the Customer if Cohesity terminates its agreement with SUBSET for whatever reason, which results in SUBSET no longer being in a position to provide the BUaaS. In the event of termination by SUBSET under this paragraph 1 SUBSET shall refund to the Customer all Charges paid by the Customer for BUaaS for any period beyond the date of termination and SUBSET shall have no further liability to the Customer.

1.7 Additional virtual appliances can be installed by the Customer, where appropriate, to receive BUaaS, which may incur additional costs depending on the data storage required.

2 Customer responsibilities and acknowledgements

2.1 The Customer acknowledges that the Cohesity Product embodies valuable trade secrets of Cohesity and its suppliers.  Except as provided in this Agreement, the Customer shall not (except to the extent such prohibition is contrary to applicable law): (a) alter or remove any of Cohesity’s or its suppliers’ copyright, patent, or other proprietary rights notices or legends appearing on or in the Cohesity Product; (b) modify, adapt, alter, translate, or create derivative works of the Cohesity Products; or (c) reverse-engineer the Cohesity Product or reverse-compile, decompile, or attempt to derive the source code of any object code contained in any of the Cohesity Products.

2.2 The Customer also acknowledges that Cohesity and its suppliers shall retain exclusive ownership of all worldwide intellectual property rights in and to the Cohesity Product and any updates, upgrades, modifications or enhancements thereto, and any derivative works thereof.

2.3 The Customer agrees to comply with the End User Agreement.

  1. Support and maintenance

This paragraph 3 applies to any Customer who is entitled to receive support services for BUaaS.

3.1 Support and maintenance consist of SUBSET using reasonable efforts to provide Error Correction and telephone support to a named technical support of the Customer concerning BUaaS and the then current release of a Cohesity Product relating to BUaaS, together with any Cohesity Product updates which SUBSET and/or Cohesity in its discretion make generally available.

                                                                                 Table of Error priority determination

PriorityInitial Response Time
P12 hours
P24 hours
P36 hours
P416 hours
PriorityDescription
P1 ErrorAn Error which causes the Customer’s production use of a Cohesity Product to be stopped or so severely impacted that the Customer cannot reasonably use BUaaS.
P2 ErrorAn Error which causes important Cohesity Product features to be unavailable with no acceptable Workaround, but the Customer’s production use is capable of continuing.  
P3 ErrorAn Error which causes important Cohesity Product features to be unavailable, but a Workaround is available, or less significant Cohesity Product features to be unavailable, but the Customer’s use is capable of continuing.
P4 ErrorAn Error which is not a P1, P2 or a P3.

3.2 SUBSET shall use reasonable endeavours to respond to all Errors as set out above.

3.3 All Errors should be reported to the SUBSET Support Desk as set out in Schedule 3 at which time a Fault Reference Number will be issued.

3.4 If SUBSET and/or Cohesity believe that a problem reported by the Customer is not due to an Error, SUBSET will advise the Customer.  The Customer may instruct SUBSET to proceed in order to determine the problem at the Customer’s expense or advise SUBSET that the Customer no longer wishes to determine the problem. The Customer shall not be liable for any costs incurred as a result of an Error.

3.5 SUBSET shall have no obligation to support any altered or damaged Product unless such alteration or damage was caused by SUBSET or support any Third Party Software (as defined in the End User Agreement).

3.6 For clarification, service credits are not payable under this Annex 4.

  1. Cancellation of Service

4.1 Cancellation of the order is not permitted unless the Customer pays all of the Charges until the end of the Minimum Term (including all third party charges incurred by SUBSET). The parties acknowledge that this represents a genuine pre-estimate of SUBSET’s revenue loss in the event the Customer cancels the order for convenience.

4.2 Notice of cancellation must be given in accordance with clause 24.

Annex 5 – Cohesity End User Agreement

Annex 6 – 3G/4G data services provided through AQL

In this Annex 6 unless listed below all words and phrases shall have the same meaning as defined in clause 1 of this Agreement. The following terms shall have the following meanings in respect of 3G/4G data services, which are provided through AQL.

“AQL” means (AQ) Limited (company number 03663860) of 13-15 Hunslet Road, Leeds LS10 1JQ;

“Equipment” any equipment supplied by SUBSET to allow the Customer to use the Service;

“L2TP” means Layer 2 Tunnelling Protocol;

“MVNO” mobile virtual network operator which is directly or indirectly engaged in the performance of the Service;

“Service” MVNO services;

“SIM Card” subscriber identity module card.

  1. Service

1.1 The Service shall consist of connectivity using third party infrastructure as a MVNO to a selected network in order to allow transmission of data.

1.2 SUBSET shall manage the Customer’s IP addresses.

1.3 The Service shall be available in the UK only. Should the Customer require overseas roaming then this would be subject to prior approval by SUBSET and completion of any relevant service schedule.

1.4 The Customer acknowledges that the third party MVNO has a right to carry out technical alterations to its equipment and SUBSET shall use reasonable endeavours to advise the Customer when the third party intends to carry out alterations to its equipment.

1.5 Any protocols offered by the third party MVNO for the use of the Customer may not comply to any particular standards such as but not limited to IETF RFC standards or make any warranty of any expected feature set.

1.6 SUBSET shall work with AQL and the Customer to set up the Service by the date agreed with the Customer. However, time is not of the essence and SUBSET shall have no liability if SUBSET or AQL fail to meet and agreed commencement date.

1.7 The Customer agrees to provide such reasonable assistance as is required during the set up of the Service.

1.8 The Customer acknowledges that, by definition, access to the internet, mobile networks and other associated media will have risks including, but not limited to, authentication, data security, privacy, availability of the Service and reliability of transmission over third party infrastructure and any relevant network. The Customer agrees that SUBSET shall no liability arising from such risks.

1.9 If the Customer’s applications cause a fault or damage to AQL’s infrastructure and/or selected network SUBSET shall have a right to suspend the Customer’s access to the L2TP server and/or terminate the Service with immediate effect and the Customer shall reimburse any costs incurred by SUBSET either directly or indirectly as a result of the Customer’s breach of this clause.

1.10 The Customer shall be solely responsible for the content of any data transmitted via the Service.

  1. Charges and cancellation

2.1 The Charges shall be set out in the Order Acceptance Form and shall be based on data usage which shall be measured in MB and rounded up to the nearest 0.01MB.

2.2 SUBSET reserves the right in its absolute discretion to alter the Charges throughout the Minimum Term and any subsequent rollover of the Minimum Term upon prior written notice to the Customer.

2.3 Subject to paragraph 2.4 the Customer shall have 72 hours from the time the Service is activated to cancel the order if the Customer is unable to receive a cellular signal. Following receipt of the Equipment under paragraph 2.4, SUBSET will provide a full refund of any Charges paid by the Customer.

2.4 If the Customer cancels the order under paragraph 2.3 it shall return to SUBSET, at its own cost, all Equipment (including any associated SIM Card).

  1. SIM Cards and Equipment

3.1 All SIM Cards purchased by the Customer are non-refundable.

3.2 SIM Cards and Equipment shall remain the property of SUBSET at all times and the Customer shall be entitled to use the SIM Cards and the Equipment (including any software they contain) provided for use with the Service only.

3.3 The Customer shall use all reasonable endeavours to ensure that SIM Cards are only used with the Customer’s authorisation and shall inform SUBSET as soon as is reasonably practicable after the Customer becomes aware that a SIM Card is lost, stolen or damaged. The Customer shall be liable for any loss or damage caused to the Equipment (including any damage to the Equipment during transit under paragraph 2.4) and any loss or damage suffered by the Customer or any end users (including payment of all Charges) as a result of unauthorised use of SIM Cards (including due to loss or theft), up to the time that the Customer has notified SUBSET that such SIM Card is being used without the Customer’s authorisation.

3.4 The Customer shall notify SUBSET in writing within 10 Working Days of receipt of a SIM Card and the Equipment if either the SIM Card or Equipment has been damaged during transit. Following receipt of such notification SUBSET shall replace any damaged SIM Card or Equipment as soon as reasonably practicable.

  1. Miscellaneous

4.1 The Customer acknowledges and agrees that due to the nature of the Service the terms and conditions of such Service may bealtered by SUBSET in accordance with any corresponding changes in the terms and conditions relating to any applicable MVNO. In the event of any such change by a MVNO then the amendment to the terms and conditions of this Agreement (including any applicable terms contained in this Annex 6) shall be deemed to automatically bind the Customer. SUBSET will use its reasonable endeavours to notify the Customer of any such applicable changes to the terms and conditions as soon as is reasonably practicable. If such changes to the terms and conditions materially affect the nature of the Service, or the applicable Charges payable by the Customer then the Customer shall be entitled to terminate the applicable Service upon thirty (35) days prior written notice to SUBSET.

4.2 Where SUBSET is notified by a regulator of the Service that the Customer, or any end user, is or has been in breach of any applicable regulations, SUBSET shall be entitled to act on any request or recommendation by the regulator for access to be barred to such Service as the regulator may specify for such periods as the regulator specifies.

4.3 SUBSET shall be entitled to act on any request or recommendation by any MVNO or regulator to withhold any sums payable by SUBSET to the Customer until the Customer pays to the MVNO or regulator (as the case may be) all sums due to meet fines, administrative charges or other sums payable to the MVNO or regulator, or SUBSET shall be entitled to pay the same out of the monies withheld.

4.4 SUBSET shall be entitled to recover from the Customer any costs, expenses, charges, fines or deductions imposed on SUBSET or AQL or MVNO by any regulator as a result of any contravention by the Customer or its end users of the terms contained in paragraphs 4.2, 4.3 and 4.4 of this Annex 6.

4.5 The Customer shall be responsible for any misuse, regulatory contravention or breach of the terms of this Agreement caused by anend user in relation to its use of the Service, as if such misuse, regulatory contravention or breach had been caused by the Customer.

4.6 Where applicable the Customer shall retain accurate records of all end users and shall make such information available to SUBSET and/or the regulators as may be necessary from time to time to ensure compliance with applicable laws and regulations.