1.1. The following definitions and rules of interpretation apply in these Conditions.
Acceptable Use Policy: as defined in the MSA Terms;
ADSL Service: means broadband or any technology that replaces broadband in the future;
Charges: as defined in the MSA Terms including the Set-up Charge and the Rental Charges;
Contract: as defined in the MSA Terms;
Commencement Date: as defined in the MSA Terms;
Customer Equipment: as defined in the MSA Terms;
Connectivity Service: means a data telecommunications service provided by Wavenet to the Customer (including any Equipment provided by Wavenet which relates to the same), excluding any backup service;
Early Termination Charge: as defined in the MSA Terms;
Fee(s): as defined in the MSA terms;
Internet Standards: means all relevant existing and future protocols and standards applicable to the use and functioning of the Internet, including (without limitation) the following: RFC1009, RFC1122, RFC1123 and RFC1250;
IP: means internet protocol;
Initial Term: as defined in the MSA Terms;
Minimum Monthly Recurring Charges: means the higher of: (i) the line Monthly Recurring Charges specified in the Contract; or (ii) the average of the six highest month’s line Monthly Recurring Charges incurred by the Customer under the Contract (or if the Customer has incurred less than six month’s line charges, the highest month’s line Monthly Recurring Charges incurred by the Customer under the Contract);
Initial Term: as defined in the MSA Terms;
MSA Terms: means Wavenet’s Master Services Agreement terms and conditions which are attached or referred to in the Contract;
Name: means any name specifically requested by, or allocated to, the Customer for use in relation to the Connectivity Service including any domain name or mailbox name;
Network: means the telecommunications network through which the Connectivity Service is provided;
Services: as defined in the MSA Terms including the Connectivity Service;
Service Terms: as defined in the MSA Terms, which includes these Connectivity Services Agreement terms and conditions, the Service Description and the Acceptable Use Policy;
Set-Up Charge: means the Charges (if applicable) due for setting up fee the Connectivity Service, as specified in the Contract;
Site(s): as defined in the MSA Terms
Supplier: as defined in the MSA Terms.
References to ”clauses” are to clauses of these terms and conditions (and not clauses of the MSA Terms), unless otherwise stated.
2. Service Terms
2.1. These Connectivity Service Agreement terms and conditions shall apply to and be incorporated into the Contract when Wavenet is providing Connectivity Services to the Customer pursuant to the Contract.
3. Installation and limitations
3.1. There may be a temporary loss of and/or interference to telephone services or other telecommunications services during installation of the Connectivity Service (and/or any related Equipment) at the Site by Wavenet or its Supplier. Neither Wavenet or its Supplier will have any Liability to the Customer or any third party in relation to the same. Telephone socket extensions at the Site that are incorrectly wired may be disconnected by Wavenet during installation, without incurring Liability to the Customer. If Customer requires and Wavenet agrees to perform or procure the performance of any re-wiring and/or reconnection, the Customer shall be charged an additional Fee.
3.2. The actual speed of the ADSL Service cannot be guaranteed and will depend on a number of factors including:
3.2.1. the quality of the line, environmental noise and the distance from the local exchange;
3.2.2. the number of other users using the line and local exchange when the ADSL Service is being used; and;
3.2.3. any traffic management measures put in place by Wavenet and/or the Supplier.
4. Charges and payments
4.1. Wavenet may invoice the Customer for the Set-Up Charge at any time on or after the Effective Date.
4.2. Wavenet may invoice the Customer for the Monthly Recurring Charges Charge at any time on or after the Commencement Date and each month thereafter, unless otherwise stated in the Contract.
4.3. Additional and supplemental work may be required to provide the Connectivity Service and the Customer shall pay the additional amounts specified in the Services Agreement, or otherwise the applicable Fee, related to any:
4.3.1. abortive visit where Wavenet or the Supplier is unable to gain suitable access to the Site to carry out a survey or install the Connectivity Service;
4.3.2. information provided by the Customer which is illegible, inaccurate or incomplete;
4.3.3. reported fault which relates to the Customer Equipment; or
4.3.4. relocation of the existing telephone master socket to provide the Connectivity Service.
4.3.5. Notwithstanding termination of the Services Agreement, the Customer will be liable for the Monthly Recurring Charges Charge and other charges incurred in the event of the Customer’s continued use of the Service after the date of termination.
5. Suspension and Termination
5.1. Without prejudice to any of Wavenet’s other rights and remedies, Wavenet may on notice to the Customer disconnect any or all of the Services or suspend performance of any or all of its obligations under, or terminate, the Service Terms in the following circumstances without Liability if:
5.1.1. any licence or permission to operate or use the Network or any part of it is revoked or terminated for any reason;
5.1.2. the operation of the Network is terminated or if the provision of the Service to Wavenet is discontinued for any reason;
5.1.3. the Customer does or allows to be done anything which in Wavenet’s reasonable opinion will or might jeopardise the operation of the Services or the Network; or
5.1.4. Wavenet reasonably suspects the Services are being used in a manner prejudicial to the interests of the Customer or Wavenet.
5.1.5. Wavenet cannot guarantee that the Customer will remain the owner of any telephone number or any feature of a line following disconnection of the Connectivity Service.
5.2. Wavenet may suspend any or all of the Services, or performance of any or all of its obligations under 5.2 the Service Terms, in the following circumstances without Liability:
5.2.1. during any technical failure, modification, repair, testing or maintenance of the Network or other equipment (including Equipment) by which the Service is provided, or in the case of emergency;
5.2.2. if the operation of the Network is suspended or if the provision of the Service to Wavenet is suspended for any reason;
5.3. If any suspension of a Service under the Service Terms results from the Customer’s breach of (i) the Services Terms or (ii) the MSA Terms then, prior to re-connection, Wavenet may demand a refundable deposit from the Customer equal to one quarter of the Annual Rental Fee. On re-connection of the Connectivity Service, a charge of £150 may be levied, at Wavenet’s absolute discretion.
6.1. If the Customer cancels an ordered Service or any part of it, notwithstanding that such order has only been provisionally accepted by us, the Customer shall reimburse Wavenet for any costs incurred in preparing to deliver the Service in addition to the standard cancellation charge, as may be applicable at the time. Wavenet will take all reasonable steps to mitigate any such costs but in the case of cancelling an Installation Service then the Early Termination Charge may include the cost of lost revenue incurred whilst Wavenet or Wavenet’s subcontractors re-allocate staff who would have otherwise been engaged in the Customer’s installation where Wavenet cannot re-allocate such staff at short notice and this does not constitute a penalty. If the Customer has had a Site survey the Customer shall pay the full Site survey charges. If the Service includes any excess construction charges such charges will be payable in full by the Customer on cancellation of an ordered Service. If Wavenet have provided the Customer with any Equipment the Customer shall return such Equipment to Wavenet immediately in full working order at the Customer’s cost.
6.2. If the Customer is required to pay an Early Termination Charge pursuant to the MSA Terms, the Customer shall pay to Wavenet to the Early Termination Charge which shall be calculated:
6.2.1. in respect of Monthly Recurring Charges, the Minimum Monthly Recurring Charges per month for the period from termination to the end of the Initial Term or Renewal Term (as appropriate).
7. Use of the Services
7.1. Without prejudice to the MSA Terms, the Customer acknowledges that it is technically impossible to provide a fault-free Connectivity Service.
7.2. In addition to its obligations in the MSA Terms, the Customer agrees with Wavenet and the Supplier:
7.2.1. not to knowingly intercept or attempt to intercept any message that passes over the Network;
7.2.2. not to knowingly or recklessly send any message or virus through the Network which causes or is likely to cause any harm to Wavenet, the Supplier, any of their communications systems and/or any of their customers;
7.3. The Customer shall only use the Connectivity Service in accordance with:
7.3.1. the Acceptable Use Policy, which the Customer shall read prior to commencing use of the Connectivity Service;
7.3.2. the Internet Standards and applicable policies of the Network.
7.4. For the purposes of this clause 7 it shall be irrelevant whether or not the Customer was aware of the breach.
7.5. If use of the Connectivity Service by the Customer breaches the Contract, or if the Customer makes use of the Connectivity Service to the detriment of Wavenet, the Supplier and/or its or their customers, Wavenet reserves the right to restrict the Customer’s access to the Connectivity Service until the Customer gives Wavenet an acceptable undertaking as to use.
7.6. Use of “IP Multicast” (sending internet protocol datagrams to a group of interested receivers in a single transmission) using the Connectivity Service is prohibited other than with the express prior approval of Wavenet and then only by means provided and co-ordinated by Wavenet using the Connectivity Service is prohibited.
7.7. The Customer shall procure that all users of the Connectivity Service comply with the terms of this clause 7 and any other relevant terms of the Contract which relate to the use of the Connectivity Service.
7.8. Wavenet and the Supplier may (without notice to the Customer) review or record usage (without notice to the Customer) of the Connectivity Service to verify the Customer’s compliance with, and may suspend or disconnect the Customer’s access to the Connectivity Service without Liability if it reasonably suspects that the Customer has breached, this clause 7 and/or any other relevant terms as to use of the Connectivity Service within the Contract.
8. Third party network connections
If the Customer wishes to connect the Network to other wide area networks the Customer must seek Wavenet’s prior written consent before doing so.
9. Name, intellectual property rights and IP addresses
9.1. The Customer warrants and represents that it is the owner of, or that it has been and is duly authorised by the owner to use, all rights in each Name.
9.2. The Customer acknowledges that Wavenet cannot guarantee that any Name will be available and/or approved for use.
9.3. If a Name infringes any third party rights (including, without limitation any intellectual property rights) or is illegal, offensive or immoral, or in Wavenet’s opinion there are reasonable grounds for Wavenet to believe that this is the case:Wavenet may require the Customer to select a replacement Name. Until it does so:
9.3.1. Wavenet may suspend the Connectivity Service; and
9.3.2. the Customer shall not use the Name in connection with the Connectivity Service or any other Services and/or Equipment provided by Wavenet or a Supplier.
9.4. If the Connectivity Service includes the registration of a Name on behalf of the Customer, the Customer acknowledges and agrees that:
9.4.1. Wavenet does not represent, warrant or guarantee that any Name applied for will be available and/or capable of being registered on behalf of the Customer or that the use of such Name will not infringe any third party rights or be illegal, offensive or immoral. Accordingly, the Customer should take no action in respect of the Name until it has been notified that the requested Name has been duly registered. Wavenet will have no Liability relating to any such action taken by the Customer prior to such registration;
9.4.2. the registration of the Name and its ongoing use by the Customer is subject to the relevant naming authority’s terms and conditions of use. The Customer undertakes to Wavenet that the Customer will comply with such terms and conditions. The Customer hereby irrevocably waives any claims that the Customer may have against Wavenet in respect of any act or omission of a naming authority and, without limitation, the Customer acknowledges and agrees that any administration or other charge paid by the Customer in respect of the application to and/or registration or maintenance of a Name is non-refundable in any event; and
9.4.3. Wavenet accepts no Liability in respect of the use of a Name by the Customer and the Customer indemnifies Wavenet against any Liability associated with the Customer’s use of the Name. Any dispute between the Customer and any third party regarding a Name must be resolved between the parties concerned. Wavenet will take no part in any such dispute. Wavenet reserves the right, on becoming aware of such a dispute concerning a Name, at Wavenet’s absolute discretion and without giving any reason, to either suspend or cancel the Connectivity Service and any other Services associated with the Name, and/or to make such representations to the relevant naming authority as Wavenet deems appropriate.
9.5. Wavenet retains the right to withhold any domain name tag change until all sums due under the Contract are paid by the Customer.
9.6. If the Customer does not move a domain name registered by Wavenet to another internet service provider within one (1) month of termination of the Connectivity Service, Wavenet may terminate the domain name with the applicable domain name authorities, registries and registrars.
9.7. The Customer shall not be entitled to use the trademarks, trade names, domain names, business names, logos or other proprietary identifying marks of Wavenet or the Supplier without Wavenet’s or the Supplier’s prior written consent.
9.8. Any IP address supplied by Wavenet or the Supplier is licensed to the Customer on a non-exclusive, non-transferable, revocable basis for use only in conjunction with the Connectivity Service and will remain Wavenet’s or its Supplier’s property. Following disconnection of the Connectivity Service any such IP addresses may be re-assigned to the Supplier or a third party. The Customer’s licence to use those IP address will automatically terminate upon termination of the Connectivity Service and the Customer shall not make any further use of the same. Wavenet reserves the right to charge the Customer a Fee for any IP addresses supplied by Wavenet or a Supplier.
10.1. Wavenet reserves the right:
10.1.1. notice to the Customer at any time before delivery or collection to increase the price of the Equipment to reflect any increase in the cost to Wavenet which is due to any Force Majeure Event. In such event the Customer may cancel or amend the order subject to the price increase, on notice to Wavenet, within two (2) working days of Wavenet’s notice of the increase; and
10.1.2. to vary the configuration of the Network, the Equipment, and any applicable access codes, at any time. Wavenet shall inform the Customer of such variations where Wavenet deems it necessary to do so and where reasonably practicable in the circumstances. Wavenet cannot guarantee the continuing availability of any item which may be dependent on Wavenet’s supplier.
11. Internet Access
11.1. The Service may be used by the Customer to link into web sites, resources or networks worldwide. Wavenet neither accepts responsibility for their content or any services offered nor endorses their content. The Customer agrees to comply with the terms and conditions and acceptable use policies of such web sites, resources and networks.
11.2. Where Internet access forms part of the Service, the Customer agrees that:
11.2.1. all visual, textual or other information, whether publicly posted or privately transmitted (“Information”) is the sole responsibility of the person from whom such Information originated;
11.2.2. the Customer is entirely responsible for all Information uploaded, downloaded, emailed or otherwise transmitted via Internet access;
11.2.3. all dealings with, and interests in, promotions, services or merchants found by the Customer using the Service, unless otherwise stated, are solely between the Customer and the person with whom the Customer is dealing; and
11.2.4. access to secure financial transactions will be dependent on the type of hardware and the third party supplier of content.
12. End User Content
12.1. The Customer grants Wavenet a worldwide, irrevocable (except on termination of the Contract), royalty-free, non-exclusive, sub-licensable (to Wavenet’s authorised sub-contractors only) right for the duration of the Contract to process the End User Content to the extent reasonably necessary for the Purpose. This provision does not apply where the Service is a Connectivity Service, as Wavenet acts as a mere conduit for End User Content.
12.2. The Customer shall Indemnify Wavenet against any claim by a third party that Wavenet’s installation, use, transmission, storage, possession or accessing of the Customer Equipment, End User Content, material or third party software in accordance with the Contract and provided by the Customer in connection with the Service infringes any rights of a third party.
12.3. The Customer is responsible for management of the End User Content stored on, or transmitted by means of, the Service including selection and use of the security features and options that Wavenet provides as part of the Service. Except to the extent included in the Service, and identified in the Contract, the Customer is responsible for developing and maintaining data management and security procedures the Customer deems appropriate, such as application logon security, encryption of data and Malicious Code protection, and retaining source documents and maintaining a procedure that will allow the Customer to recover lost or damaged data. Wavenet does not guarantee that its security procedures will prevent the loss of, alteration of, or improper access to, End User Content.
13.1. Any Software is and shall remain the property of the licensor and (if no licence is provided in 12.1 Any Software is and shall remain the property of the licensor and (if no licence is provided in conjunction with the Software) the Customer is granted a non-exclusive, non-transferable licence to use the Software solely in conjunction with the relevant Equipment or Service (as applicable). The Customer shall comply with the relevant licence.
13.2. Wavenet may provide licensors with information regarding use of Software, including information on the number of licenses required for the Customer’s use or access of the Software, the country in which the Customer is located and the Customer’s name and address. The Customer hereby releases Wavenet from any and all Liability Wavenet may have to the Customer in relation to any use or other dealing with that information provided pursuant to this clause by licensors, and agrees to co-operate with Wavenet in order to provide this information.
13.3. Wavenet or a licensor (or its nominated representatives) may, at Wavenet’s expense, access the Site and Customer systems and records relevant to usage of the Software to ascertain compliance with any licence and clause 13.2 above, during Wavenet’s working hours and subject to reasonable prior notice.
13.4. The Customer shall not: (i) reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Software (except as and only to the extent any of the foregoing is permitted by Law or the licensing terms governing use of any open sourced components included with the Software); (ii) copy, ‘frame’ or ‘mirror’ any content available on the Software on any other server or wireless Internet-based device; (iii) re-distribute or sublicense the Software, or any part thereof, to any third party; (iv) operate the Software for use by third parties or otherwise operate the Software on a service bureau basis; (v) copy or reproduce the Software in any way, in whole or in part; (vi) modify or create any derivative work based on the Software; or (vii) allow, permit or assist any third party to do any of the foregoing.
13.5. The Customer acknowledges that any software may contain known or unknown security vulnerabilities. Wavenet shall not be liable to the Customer or any third party for any loss or damage (including any direct or indirect loss) arising from known or unknown security vulnerabilities with any software (including the Software).
13.6. The Customer may apply updates, new releases, upgrades or patches (“Modifications”) to the software it uses in connection with the Service. In such event, the Customer acknowledges that: (i) new or amended Software may be required to maintain compatibility that may not be available; and (ii) if it installs such Modifications before any new or amended Software is available, the Service may be affected. Wavenet shall have no Liability for any adverse effects caused in whole or in part by the installation of Modifications to the Customer’s software pursuant to this clause 13.6.
13.7. The Customer shall ensure that it promptly (and no later than reasonably required by Wavenet) installs all modifications to the Software that Wavenet makes available to the Customer (unless the Contract stipulates that Wavenet is responsible for doing so) and provided that such installation does not have a material adverse effect on the Customer or the Software.