APPENDIX 1
SYSTEM SUPPLY TERMS AND CONDITIONS
 
 

1         DEFINITIONS

 
In this Agreement the following terms shall have the meanings set out below: -
“Agreement” the Agreement comprising the Appendices and Schedules
“Appendices” the Appendices to this Agreement
“Customer" the party to whom Dynamic Networks is supplying the System and/or Services under this Agreement
“Documentation” information supplied with the Dynamic Networks Software in printed or machine readable form
“Equipment” the Customer’s computer System on which the Software is to function comprising the Hardware and such other equipment items as Dynamic Networks may have approved
“Hardware” those items of computer and other equipment referred to in Schedule 1
“Licensed Materials” the Dynamic Networks Software and the documentation
“Licence” the Licence granted to the Customer at clause 3.1 of this Appendix 1
“Maintenance” those Maintenance services to be provided or procured to be provided by Dynamic Networks in respect of the Hardware and/or the Software under the terms of Appendix 2
“Maintenance Charge” the annual charge for the Maintenance specified in Schedule 4 as increased from time to time pursuant to clauses 6.3 and 6.5 of Appendix 2
“Maintenance Contract” those parts of the Agreement relating to the provision of Maintenance
“Normal Working Hours” the hours between 08:00hrs and 18:00hrs on each working day
“Packages” computer Software produced to provide general solutions to tasks which are intended to be the subject matter of such Software but not specifically produced (in its entirety) to comply with any specific need of the Customer
“Dynamic” or “Dynamic Networks” or “Dynamic Networks Group” Dynamic Networks Group, it’s holding company (if any) and every company which is for the time being a subsidiary of Dynamic or such holding company and “holding company” and “Subsidiary” are as defined in the companies act 1985.
“Dynamic Networks Software” those Packages proprietary to Dynamic Networks and/or any bespoke software written for the Customer by Dynamic Networks or its Third Party Suppliers referred to in Schedule 2 and supplied under this Agreement in either unmodified or modified form
“Services” the Maintenance, the training and any other services which Dynamic Networks is to provide to the Customer under this Agreement as set out in Schedules 3, 4 and 6
“Site” the location at a premises owned and/or controlled by the Customer which has been approved by Dynamic Networks and at which the System is to be installed and used
“Software” the Dynamic Networks Software and the Third Party Software
“Special Item” an item of Hardware or Software indicated as such in Schedule 5
“System” the Hardware and/or the Software
“Third Party Software” Packages other than Dynamic Networks Software referred to in Schedule 2
“Training” the training services to be provided by Dynamic Networks as set out in Schedule 3
“Use Dynamic Networks Software” to load, store and run the Dynamic Networks Software on the equipment
 
‘Use Licensed Materials”
 
to Use Dynamic Networks Software, to read and possess the documentation for the use of the Dynamic Networks Software and to possess the media upon which the Dynamic Networks Software is stored and delivered to the Customer
“Working day” any weekday other than a statutory, bank or public holiday
 
 
1.2           In this Agreement:
 
                1.2.1        reference to any statutory provision includes a reference to that provision as from time to time amended, extended or re-enacted;
 
                1.2.2        words importing the singular include the plural and words importing persons include bodies corporate and unincorporate and (in each case) vice versa;
 
                1.2.3        the headings of clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement.  Reference in this Appendix to a clause shall be to a clause of this Appendix unless otherwise stated.

 

2       DYNAMIC NETWORKS OBLIGATIONS

 
2.1           Dynamic Networks shall supply the System and/or the Services to the Customer at the prices set out within the Schedules.
 
2.2           Each party shall keep confidential all information that it may acquire from the other in the course of this Agreement, use the same exclusively for the purposes of this Agreement and disclose the same only to those of its employees, contractors and advisers to whom and to the extent that such disclosure is reasonably necessary for the purpose of this Agreement. 
 
2.3           The obligations of clause 2.2 shall continue after termination of this Agreement but shall not apply to information which:
 
2.3.1        prior to a party’s receipt was already in its possession and at its free disposal;
 
2.3.2        is subsequently disclosed to the recipient without obligations of confidence by a third party who has not derived it directly or indirectly from the disclosing party;
 
2.3.3        is or becomes generally available to the public through no act or default of the recipient, contractors or employees.
 
2.4           Each party shall ensure that its employees, contractors and advisers who under this Agreement gain access to information of the other to which clause 2.2 applies shall be made aware of and subject to those obligations. 
 
2.5           Notwithstanding anything else contained in this Agreement, neither party shall be liable for delay in performing its obligations under this Agreement if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party).  Subject to the delaying party promptly notifying the other party in writing of the reasons for the delay (and its likely duration), the performance of such party’s obligations shall be suspended whilst the said circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay.  Save where such delay is caused by the act or omission of the other party (in which event the Rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of this Agreement and by law):
 
2.5.1        any costs arising from such delay shall be borne by the party incurring the same;
 
2.5.2        the non-delaying party may, if such delay lasts for more than 90 days, terminate the Agreement forthwith on giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination save for any Rights accruing prior to the occurrence of such event of delay.
 
2.6           The Customer may at any time and from time to time prior to completion of the Services (other than Maintenance) issue change Requests setting out in full detail the nature of any changes to the System and/or Services (other than Maintenance) that it desires (a “Change Request”).  Within 28 days of receipt of a Change Request, Dynamic Networks shall respond in writing stating whether it is prepared to do such work and, if so quoting any variation to the sums payable by the Customer under this Agreement and the impact on any approximate timetable previously indicated by Dynamic Networks.  This Agreement shall be considered amended to take account of the changes Requested by the Customer and the impact described by Dynamic Networks if Dynamic Networks indicates in writing that it is prepared to do the work and the Customer authorises Dynamic Networks in writing to undertake such changes within 5 working days of the Customer’s receipt of Dynamic Networks response.  In no other circumstances shall a Request to change the System and/or the Services operate to amend this Agreement.  The Customer acknowledges that the need for Dynamic Networks to consider and prepare a response to a Change Request may result in a delay to the delivery of the System and/or the provision of Services.  Dynamic Networks shall be entitled to charge the Customer for its work in connection with a Change Request in accordance with its standard rates from time to time in force.
 
 

 3          LICENCE OF DYNAMIC NETWORKS SOFTWARE

 
 
3.1           Subject to the Customer paying the Licence fees specified in Schedule 2 and the annual licence fee specified in Schedule 4, Dynamic Networks grants to the Customer a non-exclusive and non-transferable Licence (without the right to grant sub-Licences) to Use Licensed Materials subject to the terms of this Agreement.  The Customer acknowledges that it is licensed to Use Licensed Materials under the express terms of this Agreement but not further or otherwise. In consideration of your acceptance of the terms of this Agreement, Dynamic Networks grants to the Customer a Licence for which the Customer has paid the relevant Annual Licence Fee for the Licence Period.  Thereafter, the Licence will be renewed on the Renewal Date for a further period of 12 months, subject to payment by the Customer of the then current Annual Licence Fee. Such payment shall be due and payable in accordance with the terms of Dynamic Networks invoice.
 
                3.2           The Customer may use the Licensed Materials only at the Site or such alternative location as it shall first have notified to Dynamic Networks in writing. 
                3.3           The Customer shall Use Licensed Materials for processing its own data for its own internal purposes only.  The Customer shall not permit any third party to use the Licensed Materials in any way whatever nor use the Licensed Materials on behalf of or for the benefit of any third party in any way whatever.
                3.4           The Customer shall keep exclusive possession of and control over the copies of the Licensed Materials provided to it and shall effect and maintain adequate security measures to safeguard the Licensed Materials from access or use by any unauthorised person.
                3.5           The Licence is limited to the use of the Licensed Materials upon the maximum number of servers and with access to the same by the maximum number of client PC’s or laptops (“Clients”) specified in Schedule 2.  The Customer acknowledges that an additional Licence fee is payable for each additional Client having access to the Licensed Materials.
3.6           The Licensed Materials and all Rights therein (including Rights in any modifications carried out by or on behalf of the Customer) shall remain the property of Dynamic Networks.  The Customer shall notify Dynamic Networks immediately if it becomes aware of any unauthorised use of the whole or any part of the Licensed Materials by any person.  The Customer will permit Dynamic Networks to check the use of the Licensed Materials by the Customer at reasonable times and for that purpose Dynamic Networks, its employees and agents shall be entitled to enter any of the Customer’s premises.
3.7           The Customer may make only so many copies of the Dynamic Networks Software as are reasonably necessary for back up purposes.  Such copies and the media on which they are stored shall be the property of Dynamic Networks and the Customer shall ensure that all such copies bear Dynamic Networks proprietary notices.  The Licence shall apply to all such copies as it applies to the Dynamic Networks Software.  No copies may be made of the Documentation without Dynamic Networks prior written consent.
                3.8           Save to the extent and in the circumstances expressly permitted by law, the Customer shall not alter, modify, adapt or translate the whole or any part of the Licensed Materials in any way whatever nor permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.


4                RISK AND TITLE

4.1           Title to the Hardware shall not pass to the Customer until all moneys due to Dynamic Networks under the terms of this Agreement have been paid in full. 
 
4.2           For those parts of the System supplied to Dynamic Networks on Licence only or with any form of restricted title, the Customer shall only have such Licence or title in such parts as Dynamic Networks is granted by the supplier of such parts.  The Customer shall prior to delivery enter into such Licence or other arrangement denoting any restriction on title or otherwise required by the supplier of such parts and shall abide by the terms of such arrangement.  For Third Party Software which is licensed to the user by virtue of the user removing the packaging from such Software or by the user downloading such Software onto a computer System, or any such other act or thing (the “Act”) as may be specified by the producer of such Software the Customer irrevocably appoints Dynamic Networks to be its agent to undertake the Act and enter into such Licence and the Customer shall abide by the terms of such Licence as if it had undertaken the Act itself.  The Customer shall fully indemnify Dynamic Networks against all costs, expenses or other liabilities which Dynamic Networks may incur or suffer as a result of the Customer’s non-compliance with this clause 4.2.  For the avoidance of doubt, nothing contained in this clause 4.2 shall be treated as relieving Dynamic Networks from any liability for any breach of the warranty given by Dynamic Networks under clause 7.5.1 of this Appendix 1.
 
4.3           Risk in each item of Hardware shall pass to the Customer, even where title may not have passed to the Customer, as soon as such item (or an appropriate part of it) has been delivered by Dynamic Networks to the Site. 
 
4.4           Constituent parts of the System shall be deemed accepted by the Customer upon that part’s delivery to the Customer. 
 
4.5           Until title in the Hardware passes to the Customer:
 
4.5.1        the Customer shall hold the Hardware as the fiduciary agent and Bailee of Dynamic Networks, and shall, so far as is reasonably practicable, keep the Hardware separate from equipment owned by the Customer or third parties which is located at the Site and properly stored, protected and insured and, so far as is reasonably practicable, identified as the property of Dynamic Networks, but the Customer shall be entitled to use the Hardware for its own internal business purposes.
 
4.5.2        Dynamic Networks may require the Customer to deliver up such Hardware to Dynamic Networks and, if the Customer fails to do so forthwith, enter upon any premises where the Hardware is located and repossess the same.


 
5          CUSTOMER OBLIGATIONS
 

The Customer shall:
 
5.1           ensure (at its own expense) that any room or other location in which Hardware is to be placed has the power supply, equipment and environmental conditions which comply with the requirements of the Hardware manufacturer. 
 
5.2           provide promptly such office accommodation, computer equipment, office machinery and other facilities, staff and documentation as Dynamic Networks may from time to time reasonably require in connection with the provision of the System and/or the Services.
 
5.3           nominate a representative to liaise with Dynamic Networks on all matters relating to the System and/or the Services and whose instructions, decisions and Requests shall (where the same are agreed to by Dynamic Networks) be binding upon the Customer.
 
5.4           ensure (at no cost to Dynamic Networks) that those members of its staff who are allocated for Training attend those training sessions held by Dynamic Networks at such places as may be agreed by Dynamic Networks.
 
5.5           provide promptly all information, data and assistance which Dynamic Networks reasonably considers necessary in connection with the selection and/or modification of any Packages and the provision of the Services including, without prejudice to the generality of the foregoing, details of volumes of transactions, numbers of users, timescales relating to a requirement for processing data, proposed methods and sequences of operation and ageing requirements for data and the Customer shall allow Dynamic Networks to interview such of its employees as Dynamic Networks considers reasonably necessary in connection with any of the foregoing.
 
5.6           ensure prior to the date on which Dynamic Networks anticipates starting any Services at the premises of the Customer that:
 
5.6.1        such premises provide adequate working space and facilities as Dynamic Networks employees, contractors or agents may reasonably require to carry out such Services;
 
5.6.2        access to and from the premises remains clear at all times in accordance with the Customer’s site and security policies. If the Company’s employees are prevented from completing all such work at the agreed time the Company reserves the right to make a charge for the additional costs involved in subsequent visits;
 
5.6.3        it has obtained all necessary consents to enable Dynamic Networks, its employees, contractors and agents to enter onto and remain upon the premises to carry out such Services; and
 
5.6.4        such premises are safe and all Dynamic Networks employees, contractors and agents are protected from all reasonably foreseeable dangers, the Customer effecting and maintaining throughout the provision of such Services full insurance cover for the benefit of Dynamic Networks, its employees, contractors and agents against such risks.


6          PRICES AND PAYMENT

 
6.1           The Customer shall make payments for the provision of the System and/or Services to Dynamic Networks at such time or times as are set out in the Schedules and without any deduction or set-off whatsoever.  Where no such time or times are so specified, payment for any such provision shall be made within 30 days of the date of Dynamic Networks invoice therefor.
 
6.2           If the Customer Requests Dynamic Networks to carry out services for a duration in excess of that set out in Schedule 3 the Customer shall pay Dynamic Networks its charges therefor at its then current rate for the provision of such training.
 
6.3           All prices are quoted exclusive of value added tax or any replacement tax thereof (“VAT”) and the Customer shall pay VAT at the appropriate rate from time to time in force in addition to payment of all other sums.
 
                6.4           If the Customer fails to make any payment to Dynamic Networks under this Agreement (including, without limitation, any payment due under the terms of any other Appendix) on the due date then, without prejudice to any other right or remedy available to it, Dynamic Networks may:
 
6.4.1        suspend performance or further performance of any of its obligations under this Agreement without liability to the Customer (Dynamic Networks obligations under any timetable being amended accordingly to reflect such suspension); and
 
6.4.2        Dynamic Networks reserves the right to claim statutory interest at 8% above the Bank of England reference rate on force on the date the debt becomes overdue and at any subsequent rate where the reference rate changes and the debt remains unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002. Administration charges will also be applied at a rate of £150.00.
 
6.5           All quotations are valid for a period of 30 days otherwise prices are subject to those prevailing on date of delivery.
 
6.6           Where the Quotation includes the cost of installation, this has been priced according to the standard procedure of the Company. The cost of any variation in such procedures or additional work required by the Customer shall be treated as an increase on the price quoted for which an additional Quotation will be given at the request of the Customer.
 
6.7           In the event of delays arising in the completion of an installation due to stoppages or delays on the part of a contractor or sub-contractor engaged by or on behalf of the Customer, the Company reserves the right to make an additional charge for the additional time involved unless otherwise agreed in writing with the Customer.
 
6.8           Where the Agreement is made with a Contractor to another party then payment shall not under any circumstances be contingent upon that Contractor being paid by the Contractor’s client/customer.
 
6.9           Where the Company has given written consent to a Contractor to withhold contractual retentions then those retentions are due immediately upon the due date regardless of the payment situation of the Contractor’s customer/client. Retentions may only be withheld provided that the Company has received written notice of a valid complaint at least 30 days before the due date of that retention.
 
6.10         The Company shall not be bound to perform any of its obligations hereunder and may forthwith by notice in writing to the Cutsomer terminate this Agreement without prejudice its rights to recover any sum due under the Agreement.
 
6.11         Payment will only be made if the purchase order reference number is shown on the invoice
 
6.12         The supplier is entitled to raise an invoice only when goods and/or services have been satisfactorily received by Dynamic Networks, unless otherwise agreed in writing.

                   

7          WARRANTIES

 
 
7.1           In respect of the Hardware, Dynamic Networks gives the same warranties (subject to the same conditions, limitations and exclusions) as are given by the supplier of the Hardware to Dynamic Networks. 
 
7.2           In respect of the Software Packages, as at the date of delivery Dynamic Networks warrants that all such Packages will provide the facilities and functions stated in the relevant product literature.  No specific fitness for purpose is implied or given under this Agreement.
 
7.3           Dynamic Networks warrants that, as at the date of delivery to the Customer of any Dynamic Networks Software which has been modified by or on behalf of Dynamic Networks, such modifications will permit such Software to perform in all material respects those functions stated in Dynamic Networks quotation (subject to such modified Software having been used on the Equipment and in accordance with Dynamic Networks instructions and recommendations made from time to time) PROVIDED ALWAYS that if Dynamic Networks shall be in breach of this warranty its sole liability shall be limited to making corrections or alterations to such modified Software at its own cost in order to ensure that the same comply with the terms of this warranty.
 
7.4           Dynamic Networks warrants that, as at the date of delivery, unmodified Dynamic Networks Software will provide, in all material respects, the facilities and functions stated in the relevant product specification provided always that if in breach of this warranty Dynamic Networks sole liability shall be limited to making corrections or alterations to such Software at its own cost in order that the same complies with this warranty.
 
7.5           Dynamic Networks warrants to the Customer that: -
 
7.5.1        it has the right to grant all the Rights and Licences granted or purported to be granted under this Agreement;
 
7.5.2        the Customer’s use and operation of the System in accordance with the terms of this Agreement shall not infringe any Rights (wherever arising) of any third party;
 
7.5.3        the Services shall be performed with reasonable skill and care.
 
7.6           except as provided in this clause 7 and where otherwise specifically provided in this Agreement all conditions warranties and other terms in respect of the System and/or the Services whether express or implied statutory or otherwise are excluded to the fullest extent permitted by law.


8       LIABILITY

 
8.1           The following provisions set out Dynamic Networks entire liability (including any liability for the acts and omissions of its employees’ agents and sub-contractors) to the Customer in respect of:
 
8.1.1        any breach of its contractual obligations arising under this Agreement;
 
and
 
8.1.2        any representation statement or tortuous act or omission including negligence arising under or in connection with this Agreement
 
8.2           Save in respect of death or personal injury caused by Dynamic Networks negligence or liability (which liability shall be unlimited) and save as aforesaid, the entire liability of Dynamic Networks (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer whether in respect of any breach of any term of this Agreement or any representation, statement or tortuous act or omission including negligence arising under or in connection with this Agreement shall be as follows:
 
8.2.1        in respect of direct damage to the physical property of the Customer resulting from the negligence of Dynamic Networks, its employees or agents, Dynamic Networks liability shall not exceed £1m in respect of any one event or a series of connected events;
  1. in respect of the provision of Maintenance, Dynamic Networks liability shall not exceed the price paid or payable under the Maintenance Contract during the preceding 12 month period; and
 
8.2.3        in all other cases, Dynamic Networks liability shall not exceed the price paid or payable in respect of the System and the Services under this Agreement.
 
8.3           Under no circumstances shall Dynamic Networks be liable to the Customer in respect of any loss of profits, goodwill or any type of special, indirect or consequential loss (including business interruption, loss of business information or data or damage suffered by the Customer as a result of any action brought by a third party) even if such loss was reasonably foreseeable or Dynamic Networks had been advised at any time of the possibility of the Customer incurring the same.
 
                8.4           Dynamic Networks shall have no liability (whether for breach of warranty or representation or otherwise) arising from the Customer’s use of the System (or any part thereof) other than in accordance with the provisions of this Agreement or resulting in particular from:
 
8.4.1        use of the Software with equipment other than the Equipment;
 
8.4.2        the Customer’s non-compliance with any instruction or recommended procedure of Dynamic Networks; or
 
8.4.3        any repair, adjustment, alteration or modification of any part of the System not undertaken by Dynamic Networks or the merger, incorporation or use of any part of the System with any Software, Hardware or other equipment not supplied or approved in writing by Dynamic Networks for use in connection with the System.

 
9          INTELLECTUAL PROPERTY RIGHTS INDEMNITY

 
9.1           Dynamic Networks shall procure the defence or (at its option) the settlement of any claim or legal action brought against the Customer alleging that the normal use of the System infringes the Rights of any third party provided that: -
 
9.1.1        Dynamic Networks is given all information and assistance reasonably required by it and the sole authority to procure the defence or settlement of the claim;
 
9.1.2        the Customer notifies Dynamic Networks promptly in writing of any alleged infringement and makes no admissions in respect thereof;
 
and Dynamic Networks shall pay the reasonable costs of the Customer of providing information and assistance under this clause 9.1.
 
9.2           If any claim arises to which clause 9.1 refers Dynamic Networks may at its option: -
 
9.2.1        procure for the Customer the right to continue to use the System;
 
9.2.2        modify the System so that it is non-infringing; or
 
9.2.3        remove the System and refund the sums paid by the Customer in respect of the same. 
 
If any such claim results in an injunction restraining the Customer’s normal use of the System and such injunction remains in place for a period of 28 days, Dynamic Networks shall exercise one of the options referred to above.


9.3           Subject to the Customer complying with its obligations under clause 9.1, Dynamic Networks shall indemnify the Customer against (i) all damages and costs awarded against the Customer or agreed by Dynamic Networks by way of settlement and (ii) all losses, damages, costs and expenses incurred by the Customer arising by reason of any such infringement or alleged infringement.
 
9.4           Dynamic Networks obligations under clauses 9.1 to 9.3 shall not apply if the claim results from: -
 
9.4.1        use of other than the current corrected level of Dynamic Networks Software where use of such level would avoid the infringement or alleged infringement;
 
9.4.2        use of the System or any part thereof with any equipment and/or Software not supplied or approved in writing by Dynamic Networks for use in connection with the System; or
 
9.4.3        use of the System other than as authorised under this Agreement. 
 
9.5           The provisions of clauses 9.1 to 9.3 above state Dynamic Networks sole liability for infringement of Third Party Rights. 
 

10         TERMINATION

 
10.1         Dynamic Networks may forthwith by written notice to the Customer terminate this Agreement if the Customer fails to make any payment due to Dynamic Networks under this or any other Agreement (whose subject matter relates or is connected specifically to the System or the Services) by its due date.
 
10.2         Either party may terminate this Agreement forthwith by written notice (90 Days) to the other if the other shall commit a material breach of this Agreement and shall (in the case of a remediable breach) fail to remedy the same within a reasonable period of receipt of a written notice from the other party specifying the breach and requiring it to be remedied.
 
                10.3         Either party may terminate this Agreement forthwith by written notice to the other if the other party shall have a receiver or administrative receiver appointed or shall have a bankruptcy order made against it or one of its partners or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall become unable to pay its debts or shall cease or threaten to cease to carry on business or shall suffer any similar or analogous event in any jurisdiction.
10.4         Termination for any reason shall not affect either party’s Rights and remedies accruing up to termination.
 
10.5         If this Agreement is terminated, then save in the circumstances mentioned at clause 10.6 below, the Customer shall immediately cease using the Licensed Materials and return to Dynamic Networks or destroy (as Requested by Dynamic Networks) the originals and all copies of the same.  Upon Dynamic Networks Request to destroy such materials the Customer shall certify in writing that it has done so.
 
10.6         Notwithstanding the other provisions of this clause 10, termination of this Agreement shall not affect the continuance of this Agreement insofar as it relates to the Licence granted to the Customer at clause 3.1 above where the Agreement is terminated by Dynamic Networks on grounds which relate solely to the Customer’s non-performance of its obligations under Appendix 2.
 

11         GENERAL
 

11.1         Dynamic Networks may subcontract all or any of its obligations under this Agreement.  All applicable terms of this Agreement shall apply notwithstanding that any services (or any part thereof) shall be carried out by sub-contractors.  The Customer may not assign this Agreement (in whole or in part) without the prior written consent of Dynamic Networks.
 
11.2         The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms of any order or contract submitted by the Customer in respect of the System and/or the Services.  No variations to the terms of this Agreement shall be binding upon either party unless the same shall have been confirmed in writing by a director of that party
 
11.3         The terms and conditions of this Agreement shall prevail in relation to any future orders placed by the customer, and the customer agrees that all future orders or contracts submitted will be subject to these terms and conditions.
 
11.4         All notices or other documents to be given under this Agreement shall be in writing and either delivered by hand or sent by registered post or facsimile to the party concerned at the address set out in this Agreement or such other address as one party may from time to time designate by written notice to the other.  Any such notice shall be deemed to have been received by the addressee if delivered by hand, upon delivery; if posted, on the 2nd working day following the date of posting; and if sent by facsimile, when the communication is transmitted to the recipient's fax number PROVIDED THAT a copy of the communication is sent by registered post or delivered by hand as soon as practicable thereafter.
 
11.5         This Agreement shall be governed exclusively by English Law.  The parties agree to submit all matters in dispute under or in connection with this Agreement to the exclusive jurisdiction of the English courts.
 
11.6         Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.
 
11.7         The waiver by either party of a breach or default of any term of this Agreement by the other party must be in writing and shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall a delay or omission on the part of either party to exercise or avail itself of any right or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
 
11.8         Dynamic Networks should be made aware immediately of any fault occurring in the equipment or system covered by a support contract, that the Company will repair such fault as soon as possible after receiving notification.
12         ARBITRATION
 
Dynamic Networks reserves the right, without prejudice to any other remedies Dynamic Networks may have, to refer any dispute between Dynamic Networks and the Customer arising in any way in connection with the Agreement or the Rights and duties of the parties to an individual acting as expert and not as arbitrator who shall decide the dispute in hand to be agreed between the parties hereto or in default of Agreement to be appointed on the application of either party by the Chief Executive Officer for the time being of the National Computing Centre.  The decision of any expert appointed hereunder shall, save in the case of manifest error, be final and binding on the parties.  The charges of the expert shall be borne as the expert, in its absolute discretion, determines.
13         ENTIRE AGREEMENT
 
This Agreement sets out the entire Agreement between the parties and supersedes all prior Agreements, understandings and arrangements between them, and representations by them, whether oral or written, which relate to the subject matter of this Agreement PROVIDED THAT this clause shall not exclude or limit liability for fraud.  In the event of any conflict or inconsistency between the terms of the Appendices and the Schedules, the terms of the Appendices shall prevail.
 
 

APPENDIX 2
MAINTENANCE TERMS AND CONDITIONS

 
 
The terms of this Appendix shall apply to any Maintenance provided by Dynamic Networks under this Agreement in addition to the other terms of this Agreement (in so far as those are applicable to the provision of such Maintenance).  Clauses referred to in this Appendix shall unless otherwise stated relate to clauses of this Appendix.
 

1          HARDWARE MAINTENANCE

 
1.1           Dynamic Networks shall upon receipt of notification from the Customer that an item of Hardware has failed or is malfunctioning carry out such repairs and adjustments to or the replacement of such parts of the said item as may be necessary to restore it to its proper operating condition.  Such Maintenance (“Hardware Maintenance”) shall be carried out during Normal Working Hours.  Should a Dynamic Networks Engineer, at the Customer’s request, remain on site after Normal Working Hours Dynamic Networks reserves the right to charge the Customer for that time at its prevailing hourly rate.  Where any work is beyond the scope of this agreement then it will be chargeable at Dynamic Networks normal rates.
 
1.2           On receipt of a Request for Hardware Maintenance, Dynamic Networks shall endeavour to respond to that Request within four Normal Working Hours.
 
1.3           Where contracted to do so, Dynamic Networks will provide technical support for the Operating System of a supported server, provided that the said Operating System is at the time recognised by Microsoft as a supported system.  Dynamic Networks will not provide support for any applications software on a machine unless it is listed in the Software section in Schedule 2.
 
1.4           Hardware Maintenance does not include any Maintenance of the Hardware which is necessitated as a result of any cause other than fair wear and tear or the customers neglect or fault including without limitation, failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; accident, transportation, neglect, misuse, or default of the Customer, its employees or agents or any third party; act of God, fire, flood, war, act of violence, or any other similar occurrence; any virus or hacker attack or any attempt by any person other than Dynamic Networks personnel to adjust, repair or maintain the Hardware; or any head crash or failure of fixed or removable storage media.
 
1.5           Dynamic Networks will (if it is able to do so) at the Request and expense of the Customer repair or replace any part of the Hardware which has failed due to a cause other than fair wear and tear or due to Dynamic Networks neglect or fault subject to the Customer accepting Dynamic Networks written quotation therefore prior to the commencement of work.
 
1.6           Replacement parts, where necessary, will be charged to the customer (at cost plus 20%), unless Dynamic Networks is previously expressly advised that it is covered by manufacturer’s warranty, or if the service level selected by the Customer is “Parts Inclusive”.
 
1.7           Hardware Maintenance does not include service other than at the Site; repair or renewal of tapes, disk packs; print heads, printing cartridges or other consumable supplies; Maintenance or support of the operating System of any computer; electrical or other environmental work external to the Hardware; or recovery or reconstruction of any data or programs lost or spoiled as a result of any breakdown of or fault in the Hardware.
 
1.8           Dynamic Networks may at its option provide a temporary substitute unit for all or any of those comprised in the Hardware and remove any part of Hardware for repair or rectification at Dynamic Networks premises.
 
1.9           Dynamic Networks reserves the right to replace any unit of Hardware which may be found to be faulty or in need of investigation with a unit of a specification at least equal in all material respects to the replaced item.  In such a case, the replacement unit shall become the property of the Customer and the replaced unit shall become the property of Dynamic Networks.
 
1.10         Where a machine is beyond practical or economic repair, Dynamic Networks will advise the Customer of the fact and source new equipment at competitive prices if required.  The new equipment will then be unpacked, installed and configured at no further charge.  It is at Dynamic Networks discretion when to deem a machine “beyond practical or economic repair”.  This agreement does not cover the replacement of an entire machine.
 
1.11         If during a maintenance visit the Dynamic Networks Engineer’s performance is delayed or prevented by the Customer, Dynamic Networks at its option shall be entitled to make an extra charge in respect of the duration of such delay or prevention at its prevailing hourly rate.
 
1.12         The provisions of this clause 2 of Appendix 2 do not apply to Special Items as listed in Schedule 3.
 
 
2          SOFTWARE MAINTENANCE
 
 
2.1           Save in the case of Special Items Dynamic Networks shall during Normal Working Hours provide Maintenance for the Software as follows: -
2.1.1        provide advice and assistance in response to telephone enquiries of the Customer on program and/or data errors.
2.1.2        where Dynamic Networks considers reasonably necessary, a visit to the Customer’s premises to use, inspect and/or test the Software with a view to seeking to rectify (or, in the case of Third Party Software, seeking the rectification of) programming errors.
2.1.3        the supply of updated versions of the Software released by or, in the case of Third Party Software, supplied to Dynamic Networks (“Updates”).  All Software and/or operating Systems supplied are provided under the terms and conditions of the relevant authors’ Software Licence.  This includes policies for upgrades.  Support of Microsoft products does not include the supply of Software updates.
2.1.4        where Requested by the Customer and subject to the Customer paying an additional charge in accordance with Dynamic Networks standard rates for installation from time to time in force, Dynamic Networks shall carry out the installation of updates.
 
2.2           If any part of such Maintenance as is referred to at clause 2.1 of this Appendix 2 is required or carried out outside Normal Working Hours, Dynamic Networks may make additional charges therefor at its then current rate.
 

3          CUSTOMER OBLIGATIONS (GENERAL)

 
During the continuance of the Maintenance Contract, the Customer shall: -
 
3.1           Ensure that environmental and electrical supply conditions suitable for the Hardware are maintained in accordance with the recommendations set out by the manufacturer, and will keep the Hardware clean, and in good condition.
 
3.2           Allow Dynamic Networks access to the Hardware for Maintenance purposes, provide adequate working space and facilities for Dynamic Networks personnel and co-operate with them in the diagnosis of Hardware malfunction.
 
3.3           Ensure that only properly trained persons use the System and that such persons at all times follow Dynamic Networks recommendations and requirements from time to time regarding the use of the same and the provision of security and backup copies.
 
3.4           Use the Hardware in a proper and careful manner and use only such media as Dynamic Networks shall from time to time approve.
 
3.5           Nominate a System supervisor who will handle all communications between the Customer and Dynamic Networks regarding the use of the System and the provisions of the Maintenance.
 
3.6           Promptly notify Dynamic Networks if any part of the System is not operating properly.
 
3.7           Make available to Dynamic Networks free of charge all facilities and services reasonably required by Dynamic Networks to enable Dynamic Networks to perform the Maintenance.
 
3.8           Make available to Dynamic Networks such programs, operating manuals and information as may be necessary to enable Dynamic Networks to perform its obligations under the Maintenance Contract.
 
3.9           Provide at its own expense such telecommunication facilities as are reasonably required by Dynamic Networks for testing and diagnostic purposes.
 
3.10         Keep full security copies of the customer’s programs, databases and computer records in accordance with best computing practice.
 
3.11         Allow Dynamic Networks to contact you via telephone, post or email in order to fulfil the contract service agreements.
 
 

4      CUSTOMER OBLIGATIONS (SOFTWARE)

 
4.1           During the continuance of the Maintenance Contract, the Customer shall:
 
4.1.1        provide all information and facilities reasonably required by Dynamic Networks to enable Dynamic Networks to diagnose errors in the Software.
 
4.1.2        use the latest correction level of the latest or immediately preceding development release of the Software. 
 
4.1.3        provide upon Request by Dynamic Networks, the applicable Licence number(s) for the Software.
 
4.1.4        maintain compatibility between any modifications to the Software and subsequent Updates (as defined at clause 2.1.3 of this Appendix 2).
 
4.1.5        use the Software (and the Equipment upon which the same is run) in a proper and careful manner and upon such media only as Dynamic Networks may from time to time approve in connection with such Software.
 

5          SPECIAL ITEMS

 
5.1           Where an item of Hardware or Software is referred to as a “Special Item” in Schedule 5, then Maintenance of such item shall be performed by a third party contractor (a “Maintenance Provider”) procured by Dynamic Networks.  The Customer agrees that such Maintenance shall (save as mentioned at clause 5.3 below) be provided in accordance with the Maintenance Provider’s standard terms for the provision of Maintenance/support as the same may be amended or varied from time to time in accordance with its terms (the “Terms of Support”).  The Customer shall comply in all respects with such Terms of Support as if the Maintenance Provider were Dynamic Networks.
 
5.2           The Customer shall fully and effectively keep Dynamic Networks indemnified on demand against any losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which Dynamic Networks may suffer or incur, or which may be brought or established against it by the Maintenance Provider or any other person and which in any case arises from any breach by the Customer of the Terms of Support.
 
5.3           Notwithstanding clause 5.1 above the provisions of this Appendix shall apply to the Maintenance of the Special Items insofar as they relate to the amount and payment of the Maintenance Charge.  In addition, the Customer shall comply with such of its obligations set out at clauses 3 and 4 above as are not inconsistent or in conflict with the Terms of Support.  Further, any liability of Dynamic Networks in connection with the Maintenance of the Special Items shall always be subject to the limitations set out in clause 8 of Appendix 1.
 


6          DURATION AND CHARGES

 
6.1           The Maintenance Contract shall be for the initial contract term as defined in Schedule 4 commencing from the commencement date indicated in that Schedule (“Commencement Date”) or from the date agreed in the project plan or if neither of these then the commencement date shall be the date of delivery of the software licence (with delivery being as defined in Schedule 7).  Beyond the initial contract term the maintenance contract will renew automatically (subject to clause 6.2) year on year and be for a twelve-month period unless agreed otherwise in writing.
 
6.2           Either party shall be entitled to terminate the Maintenance Contract by giving to the other at least three months’ written notice of termination prior to renewal, this being a minimum of three months before the expiry of the whole contract term as set out in Schedule 4 or the rolling contract term thereafter.
 
6.3           Where during the Maintenance Contract the Customer obtains from Dynamic Networks Additional Hardware or Software, Dynamic Networks shall inform the Customer of the additional charges payable for incorporating such additional items within the Maintenance Contract for the remainder of the year up to the next renewal date.  Upon payment of such charges such additional items shall become the subject of the Maintenance Contract.
 
6.4           Save insofar as indicated in Schedule 4, the Maintenance Charge shall be payable annually in advance on the Commencement Date and each anniversary thereof.  Any additional charges payable under the Maintenance Contract shall be payable within 30 days of the date of Dynamic Networks invoice therefor.
 
6.5           Dynamic Networks shall be entitled to increase the Maintenance Charge for any year of the Maintenance Contract beginning with an anniversary of the Commencement Date by giving the Customer written notice of the increase (“Notice of Increase”) prior to such anniversary.  Should such increase be greater (in percentage terms) than twice the percentage increase in the Retail Prices Index published by the Central Statistical Office during the period since the previous increase (or, where there has been no previous increase, the Commencement Date), then the Customer shall be entitled to terminate the Maintenance Contract by giving Dynamic Networks written notice which is received by Dynamic Networks within 14 days of the Customer’s receipt of the Notice of Increase
 
 

7          TERMINATION

 

7.1           Dynamic Networks may forthwith by written notice to the Customer terminate the Maintenance Contract if the Customer fails to make any payment due to Dynamic Networks under the Maintenance Contract (or under any other Agreement whose subject matter is or relates specifically to the System or the Services) by its due date.
 
7.2           Either party may terminate the Maintenance Contract forthwith by written notice to the other if the other shall commit a material breach of the Maintenance Contract and shall (in the case of a remediable breach) fail to remedy the same within a reasonable period of receipt of a written notice from the other party specifying the breach and requiring it to be remedied.
  1. Either party may terminate the Maintenance Contract forthwith by written notice to the other if the other party shall have a receiver or administrative receiver appointed or shall have a bankruptcy order made against it or one of its partners or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall become unable to pay its debts or shall cease or threaten to cease to carry on business or shall suffer any similar or analogous event in any jurisdiction.
7.4           Termination of the Maintenance Contract for any reason shall not affect either party’s Rights and remedies accruing up to termination.
 
7.5           Termination or rescheduling of confirmed planned or ad-hoc maintenance and general works are subject to a fourteen day cancellation period where compensation will be apportioned to the loss.
 
 

8          EXCLUSIONS AND LIMITATIONS OF LIABILITY

 
8.1           Dynamic Networks sole obligation under the Maintenance Contract is to provide Maintenance as referred to in this Appendix 2, which it shall endeavour to do reasonably promptly. 
 
8.2           Under no circumstances shall Dynamic Networks be under any liability under the Maintenance Contract (whether to carry out the service or otherwise) in respect of any faults, defects, damage or loss arising directly or indirectly from:
 
8.2.1        operator error, failure or error in operational Software (other than where such operational Software is the subject of the Maintenance) or any defect in the Equipment on which the Dynamic Networks Software is run (other than where such Equipment is the subject of Maintenance);
 
8.2.2        the Customer’s failure to copy data or provide restorable back-up and/or security copies of data or programs; or
 
8.2.3        any of the circumstances set out at clause 8.3 below.
 
8.3           Under no circumstances shall Dynamic Networks be liable to reinstate or assist in the reinstatement of (or be responsible for the cost of reinstatement of) any data lost by the Customer, save where such data loss is caused by the provision of negligent Maintenance by Dynamic Networks, whereby Dynamic Networks shall be responsible for the restoration of secured data only (stored on media approved by Dynamic Networks) but not for any re-keying of data lost, which has not been secured on restorable tape or disk.

8.3           Dynamic Networks' proactive days or hours shall not be used towards work carried out on third party software or hardware.
 

9          SECURITY MAINTENANCE CONTRACTS

 
9.1           For a period of 24 months (unless otherwise agreed) from the date of this agreement the Company will maintain your System(s) to manufacturer’s specifications and industry standards. Additional charges will be made for work carried out in respect of damage due to fire, storm, tempest, lighting, dampness, radioactivity from any nuclear fuel waste with radioactive, toxic, explosive, or other hazardous properties, accident, misuse, theft, malicious damage or neglect of the System installed or structural alteration to the Customer’s premises.
 
9.2           After the anniversary date of the Agreement continuously and only to be terminated by either party three months after written notice is served unless either party is in material breach of this agreement
 
9.2.1        “Inspection/Report Only/Part Maintenance” cover will include the specified number of visits per year depending on the type of System installed. This cover will not extend to include the cost of any repairs or recommendations made by the report. Any additional work or variations required by the Customer shall be subject to a charge.
 
9.2.2        ‘Comprehensive Cover’ will include the specified number of visits per year. This cover will extend to include full inspection and where necessary the repair or replacement of items to an equivalent standard free of charge.
 
9.3           The Company will provide:
 
9.3.1        A telephone service via our control room. Hours of service will be specified in your contract.
 
9.3.2        Engineers retained and on call for emergency service only.
 

 
10         MONITORING

 
                10.1         The Company will undertake to use reasonable endeavours to monitor the System
Continually.
 
10.2         The Company reserves the right to sub-contract the monitoring systems to third party. In such cases the Company will forward all relevant information about your installation to such sub-contractors in order for them to effectively monitor the System.
 
10.3         The Company shall use all reasonable endeavours to inspect, approve and manage the services of such specialist organisations. However, the Company shall not be liable for any error or failure on the part of such specialist sub-contractors unless that error or failure is attributable to the Company.
 
 

11         ALTERATIONS

 
11.1       It is a condition of this Agreement that the Customer shall not alter or move from its original position any part of the equipment that is physically attached to the Customer’s premises or any part thereof, nor allow the same to be altered or moved by any other party than the Company.
 
 

12         OPERATIONS

 
12.1       It is a condition of this Agreement that the Customer shall at all times operate the equipment with proper care and in accordance with instructions given by the Company from time to time or contained in the equipment manuals. In the case of any doubt in the way the equipment should be operated then the Company will provide telephone support during Normal Hours.
 

13         DELIVERY AND INSTALLATION

 
13.1         The Company will endeavour to effect delivery and where applicable complete installation as soon after receipt of an order as is possible but cannot accept responsibility or liability whatsoever for any claim arising in connection with any delay in delivery or installation howsoever such delay arises.
 
13.2         Time shall not be of the essence under this Agreement for delivery or installation unless specifically agreed in writing by a director or senior manager of the Company.
13.3         Where there is a delay in the provision or connection of a telecommunications network or incidental equipment and the installation cannot be completed for reasons beyond the Company's control, payment of 90% of the sale/installation charge shall become due and payable.
 

14         GUARANTEE
 

                14.1         During the period of 12 months following the date of delivery or where applicable the Completion Date the Company undertakes to repair or replace free of charge any faulty or defective equipment fitted by the Company but only in so far as such fault arises from faulty materials or workmanship.
 
                14.2         Except where the Customer is a Consumer no other guarantee, condition or warranty shall be incorporated or implied herein unless specifically agreed in writing by the Company.
 
                14.3         Specifically, but without prejudice to the generality of the foregoing, after the end of the 12 month period, where the equipment purchased is normally the subject of a maintenance contract and the Customer does not have a current maintenance contract for whatsoever reason then the Company cannot be liable for any claim whatsoever arising from failure of the equipment in any way.
 
                14.4         Where applicable the installation will be deemed to be completed when the Company's engineer commissions any System for on-line use and issues a completion certificate (“the Completion Certificate”). The Customer may not assume that the System is fully operative and protective until receipt of the Completion Certificate.
 
                14.5         The Company will not be liable for any loss or damage arising as a result of variations in the specification or technical data. Any complaint that the equipment delivered or installed does not comply with the estimate must be made in writing to the Company within 3 months from receipt of equipment or the issue of the Completion Certificate where applicable, otherwise no claim will subsist and the equipment will be deemed to be in all respects in compliance with the Agreement. The Company assumes no responsibility for any change in specifications requested by the Customer unless such a change is confirmed in writing by the Company. Any price variation resulting from such change will become effective immediately upon acceptance of such change.
 
                14.6         The Company reserves the right to make changes in the design of equipment or add to or improve equipment without incurring any obligation to make such changes, additions or improvements in equipment for which it was already contracted.
 
                14.7         Where the Customer is a Consumer nothing in this Agreement shall alter or in any way affect the statutory rights of the Consumer.

 
15         CANCELLATIONS

 
                15.1         Once the estimate has been accepted by the Customer the Order can only be cancelled by agreement with the Company in writing, upon which event a cancellation charge shall be applicable.
 

16         LIMITS OF LIABILITY

 
                The following provisions set out the entire liability of the Company, its servants or agents, to the Customer in respect of any breach of any of its contractual obligations under this Agreement and any representation, statement, tortious act or omission including negligence arising from or in connection with this Agreement. Any such act or omission shall for the purpose of this clause be known as ‘an Event of Default’.
 
                16.1.        The Company's liability to the Customer shall not be limited for:
 
                16.1.1      Death or personal injury resulting from its own, or that of its employees, servants or agents, negligence; or
                16.1.2      Any breach on the part of the Company of any condition or warranty as to title implied by Sales of Goods Act 1979 or the Supply of Good & Services Act 1982.
 
                16.2.        Subject to the provisions of sub-clause 15.1 above the Company's entire liability in respect of any Event of Default shall be limited to £250,000.00
 
                16.3.        Subject to sub-clause 15.1 above the Company shall not be liable to the Customer in respect of any Event of Default for the loss of profits, goodwill or any type of special, indirect or consequential loss even if such loss was foreseeable by the Company and/or the Company had been advised of the possibility of the Customer incurring the same.
 
                16.4.        Nothing in this clause shall confer any right of remedy upon the Customer to which it would not otherwise be legally entitled.
 

17        CONSENTS

 
                Where applicable the Customer shall be responsible for obtaining and paying for all consents that may be necessary to install the equipment to the requirement of the Customer and the satisfaction of the Company.
 

18        ELECTRICAL SUPPLY

 
                When requested by the Company the Customer shall supply and fit at his own expense a suitable mains point which complies with BS 7671, 17th Edition. If the Customer requests the Company to provide the service an additional charge will be made.
 

19        RIGHT OF ASSIGNMENT

 
                The Company shall be entitled to assign or sub-contract all or any of its rights or duties under this Agreement. The Customer shall not assign or sub-contract any of its rights or duties under this Agreement without the prior written consent of the Company (such consent not to be unreasonably withheld).
 

20        RETENTION OF TITLE

 
                20.1         The System shall be at the Customer’s risk once installation in the Customer’s premises has commenced.
 
                20.2         Notwithstanding installation of the System the title to the System shall not pass from the Company until:
 
                20.2.1      the Customer has paid all sums due to the Company under this Agreement in full;
 
                20.2.2      no other sums whatever shall be due from the Customer to the Company.
 
                20.3         Until property in the System passes to the Customer
 
                20.3.1      the Customer shall hold the System as bailee for the Company;
 
                20.3.2      the Company shall have absolute authority to repossess, sell or otherwise deal with or dispose of all or any part of the System in which property remains with the Company;
 
                20.4         The provisions contained in sub-clauses 19.2 and 19.3 above shall not apply where the Customer deals as a Consumer.

 
21        FORCE MAJEURE

 
                21.1         Neither party shall be liable for delay in performing or failure to perform their obligations under this Agreement if the delay or failure results from events or circumstances outside its reasonable control, as in particular (but without prejudice to the generality of the foregoing) by industrial action at its own works, war, insurrection, riot, government action, natural disaster, fire, flood explosion, earthquake or any other unforeseeable circumstances.
 
                21.2         Such delay or failure shall not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for more than 6 months
 

22        NOTICES
 

                22.1         Any notice given under this Agreement shall be in writing and may be served:
 
                22.1.1      personally;
 
                22.1.2      by registered or recorded delivery mail;
 
                22.1.3      by fax confirmed by post; or
 
                22.1.4      by electronic mail
 
                22.2         The Company’s address for service is Airedale House, 423 Kirkstall Road, Leeds, LS4 2EW
 
                22.3         A notice shall be deemed to have been served:
 
                22.3.1      if it was served in person, at the time of service;
 
                22.3.2      if it was served by post, 48 hours after it was posted; and
 
                22.3.3      if it was served by fax, at the time of transmission.

 
23        WAIVER

 
                                The failure by either party to enforce at any time or for any period any one or more of the terms and conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
 

24        VARIATION

 
                24.1         No terms, additions or variations other than those embodied in this Agreement shall be binding upon the Company unless accepted by the Company in writing. Any terms or conditions contained in a Customer's order shall only be binding upon the Company in so far as they are not inconsistent with these conditions.
 
                24.2         Except where the Customer is a Consumer no representations other than those embodied in this Agreement shall be binding upon the Company unless accepted by the Company in writing.
 
                24.3         No provision of this Agreement shall operate so as to exclude any liability of one of the parties in respect of a fraudulent misrepresentation made by that party to the other or to restrict or exclude any remedy which the other party may have in respect of such misrepresentation.
 

25        LAW
 

                This Agreement shall be governed by the law of England and Wales.
 
 
 

 
 

APPENDIX 3
 
SUPPLY OF INFRASTRUCTURE

 
The terms and conditions of this Appendix 3 shall apply to any Infrastructure Services (as defined below) to be provided by Dynamic Networks under this Agreement in addition to the other terms of this Agreement (insofar as applicable to the provision of such Infrastructure Services).
 

1.         DEFINITIONS

 
In this Appendix 3, the following defined terms shall have the meanings set out below: -
 
“Infrastructure Services” those items specified or referred to as such in Schedule 6 comprising the carrying out of certain works at the Site to inter alia prepare the Site for the installation of the System or to provide infrastructure for the System.
“Materials” the materials and components used by Dynamic Networks to carry out any Infrastructure Services.
“Works” those structures and other works created as part of the Infrastructure Services.
 

2.         RISK AND TITLE

 
2.1           Title to Materials shall not pass until all monies due to Dynamic Networks in respect of the same under the terms of this Agreement have been paid in full. 
 
2.2           The risk in the Materials shall pass to the Customer in respect of each part thereof (and notwithstanding that title may not have passed to the Customer) as soon as such Materials have been delivered by Dynamic Networks to the site.

 

                Until such time as title in the Materials passes to the Customer, the Customer shall hold the Materials as the fiduciary agent and Bailee of Dynamic Networks, and shall, so far as is reasonably practicable, keep the Materials separate from equipment owned by the Customer and third parties located at the Site and properly stored, protected and insured and, so far as is reasonably practicable, identified as the property of Dynamic Networks.

 

Until such time as title in the Materials passes to the Customer, Dynamic Networks shall be entitled at any time to require the Customer to deliver up such Materials to Dynamic Networks and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Materials are located and repossess such Materials.

 

3.         WARRANTY

 
Dynamic Networks warrants that any Works shall be free from defects in workmanship and materials and remain so for a period of 90 days following the date that Dynamic Networks informs the Customer that such Works have been completed PROVIDED ALWAYS that if Dynamic Networks shall be in breach of this warranty its liability shall be limited to attending the Site with all reasonable speed (bearing in mind its other obligations) and carrying out such additional works and/or supplying replacement Materials as are required to rectify any defects.
 

4.         EXTENDED WARRANTY

           
In certain circumstances Dynamic Networks will extend and offer product warranties outside the standard terms.   These will always be qualified and clearly outlined within the agreement.
 
 

APPENDIX 4
 
TELEPHONY
 

The terms and conditions of this Appendix 4 shall apply to any Telephony Services (as defined below) to be provided by Dynamic Networks under this Agreement in addition to the other terms of this Agreement (insofar as applicable to the provision of such Telephony Services).
 

1.             GENERAL

 
These conditions are the only conditions upon which Dynamic Networks Group Ltd. (“the Company”) is prepared to deal with its Customer(“the Customer”) and they shall govern the contract to the entire exclusion if any other express or implied conditions.
 
These conditions embody the entire understanding of the parties and supersede any prior promises, representations undertakings and implications.
 
The wiring between the network connection point as defined in the relevant legislation and any exclusion sockets is covered by this agreement, but the cost of any damage to this wiring shall be borne by the Customer at the maintenance current charging rates for work and materials, from time to time in force.
 

2             DURATION

 
The term of this agreement shall be subject to the provisions of this agreement providing for earlier termination for the initial period specified on the face hereof commence on the commencement date shown on the face hereof (“the commencement date”) and shall continue thereafter from year to year until either of the parties shall give to the other at least forty five days prior written notice to be received on or before the anniversary date, sent by recorded delivery post. This agreement is to be deemed as a ‘rolling’ agreement and if not terminated within the agreed period, will re-enter into commitment for the original agreement period thereafter.
 
The minimum agreement period is 36 months.
 

 
3                 THE CUSTOMER’S OBLIGATIONS

 
The Customer agrees:
 
3.1.1        To pay the initial maintenance charge for the maintenance service (as hereinafter defined) as specified on the face of this agreement (“the annual charge”) for “the equipment” (being the equipment described on the face hereof) on or before the commencement date and thereafter annually on or before the anniversary of the commencement date.
 
If payment is not made by the due date, maintenance will be suspended until such time as all outstanding monies are paid in full.
 
3.1.2        To pay any additional payments that may become due during the period covered by the annual charge, as a result in adjustments in accordance with Clause 5 hereof upon presentation of the Company’s invoice in respect of such additional payments.
 
3.1.3        If payments due under Clause 3.1.1 and 3.1.2 are not made in accordance with these clauses, the maintenance service shall be suspended until such time as all outstanding monies are paid in full.
 
3.1.4        To orally notify the Company immediately of any fault in the equipment or any repairs which may be necessary and to allow the Company’s engineers to have free , full and timely access to the equipment the Customer providing adequate working and storage space and other facilities as the Company’s engineers may reasonably require.
 
3.1.5        To ensure that the environment conditions at the address on the face hereof being the site of the equipment (“the site”) (approved by the Company and/or Network Operator) are maintained at all times and to ensure that all the conditions at the site shall at all times comply with all relevant Statutory and other legal requirements.
 
3.1.6        Not to permit any person other than the Company to bring into service at the site any apparatus which is not itself part of the Equipment, which is to be connected to the Equipment unless:
 
3.1.6.1        The Company has so agreed;
 
3.1.7        Not to maintain service, repair or adjust or temporarily alter the Equipment or any part thereof.
 
3.1.8        To pay for the Company’s charges for the reprogramming and/or service visits as a result of a programming error or service visits where the fault is not a fault in the Equipment or if the Equipment is reported as faulty and proves not to be so.
 
3.1.9        Not to assign the benefit of this contract or delegate that burdens of this contract without previous written consent of the Company.
 
3.1.10       To indemnify the Company against all liabilities costs and claims of whatever nature from third parties in the event that the Company is unable to keep the Equipment in good working order due to causes within the control of the Customer or the Customer allows the Equipment to be altered, adjusted or interfered wit by persons other that the Company’s authorised engineers or agents or other apparatus is fitted without the Company’s agreement thereof.
 

4.           INTEREST AND VAT
 

It is hereby agreed and declared:
 
The annual charge and any other amounts payable under the terms of this Agreement are exclusive of VALUE ADDED TAX or any other similar taxes or levies or duties which will be added to or charged on invoices at the appropriate rate.
 
Interest at an annual rate of 8% above Bank Of England’s Base Rate from time to time will be accrue Daily and be calculated on a daily basis on any sum not paid on the due date until payment is received and cleared into the Company’s nominated bank account.
 

5.           ADJUSTMENT AND VARIATIONS OF THE MAINTENANCE CHARGES

 
The annual charge may be adjusted at any time in the event that:
 
The Maintenance Service provided for the Equipment is changed for any reason. The annual charge may then be adjusted to the appropriate rate for the revised service in accordance with the Company’s standard maintenance charges in force at the relevant time.
 
Any change is made to the requirements of the Network Operator affecting the provision of Maintenance Service. In the event the Annual Charge shall be adjusted by such amount as is reasonable in the opinion of the Company.
 
The Customer requests that additional equipment be made the subject of this Agreement and the Company agrees to maintain that Equipment.
 
In addition the Company may upon 21 days prior written notice to the Customer give notice of an increase in the Annual Charge. Such adjustments shall not be made at intervals more frequent than once in any twelve month period.
 

6           THE COMPANY’S OBLIGATIONS

 
Subject to the conditions set out below and subject to the payment to the Annual Charge by the Customer to the Company, the Company shall during the term of this agreement carry out in the manor set out in the schedule 1 such repair and replacement work resulting from fair ware and tear and/or faulty workmanship or faulty materials as is necessary to maintain the Equipment in efficient working order (“The Maintenance Service”).
 
The obligations of the Company shall be under no liability in respect of;
 
Making good defect in electricity supply network service and connections and/or host PABX systems.
 
6.2.1.2      Any failure or defective working of the Equipment due to any fault failure or change in the electrical supply and/or Network service and connections and/or host PABX systems.
 
6.2.1.3      Any failure or defective working of the equipment caused directly or indirectly by any meteorological conditions including electrical storms.
 
6.2.2        The Customer should have duly notified the Company of such fault or necessary repair in accordance with Clause 3.1.4 hereof.
 
6.3              At the request and expense of the Customer and only where the Company in its absolute discretion elects so to do carry out other work of repair and maintenance ort replacement to the Equipment apart form that describe in Clause 6.1
 
6.4              The Company reserves the right of a 14 day cooling period on new contracts for equipment installed not by the Company and reject any maintenance claims during this period if a registered engineer from the Company has not pre inspected the Customers equipment.
 
6.4.1            The Company reserves the right to reject any claim after the 14 day period for issues that have been advised within the initial 14 day period either verbal, written or by any other communication.
 

7.                PERFORMANCE

 
7.1              Subject to the provisions to this Agreement the Company warrants that it will exercise reasonable care and skill in the performance of its obligations here under.
 
7.2              The Company itself gives no undertaking or guarantee in respect of the description, quality or fitness for purpose of any materials used in the performance of its obligations hereunder but does undertake that, in the event that any defect in materials is notified to it within reasonable time of work being carried out by it will use its reasonable endeavours to secure recompense from it own supplier in respect there of and it will pass onto the Customer the benefit of any guarantee or indemnities given to it in respect thereof by its supplier.
 
7.3              Save as provided in paragraph 7.1 and paragraph 7.5 hereof;
 
7.3.1            All conditions and warranties expressed or implied, as to the quality of service to be provided by the Company or the fitness for any purpose of any materials used by the Company are hereby expressly excluded: and
 
7.3.2            The Company shall be under no liability for any loss or damage (whether direct, indirect or consequential) howsoever arising which may be suffered by the Customer other than any liability which cannot be excluded by law.
 
7.4              The Customer acknowledges that the Annual Charge and other charges payable by it are calculated on the basis that the above Conditions will apply and that it has been put on notice by the Company that it should insure itself against losses in respect of which the Company’s liability is excluded under this agreement.
 
7.5              The foregoing provisions of this condition shall not apply to the services provided to persons who deal as consumers (as that expression is so defined in section 12 of the Unfair Contract Terms Act 1977) unless the contract is an international supply contract (as described in section 26 of that act).

 
8.                FORCE MAJEURE

 
The Company shall have the right to cancel the provision of the Maintenance Service if it is prevented from or hindered in providing the service through any circumstances beyond its control (but not limited to) industrial action, war, fire or prohibition or enactment of any kind, without incurring any loss or damage whatsoever resulting there from.
 

9.           DEFAULT AND TERMINATION

 
The Company shall have the right at any time by giving notice in writing to the Customer to terminate this agreement forthwith in any of the following events:
 
If the Customer commits a breach of any of the terms and conditions of this Agreement and fails to remedy the same within 10 days of written notice requiring to do so.
 
If the Customer being a Company enters into liquidation (whether compulsory or voluntary or administrative or administrative receivership or being an individual is made the subject of a bankruptcy order or in either case compounds with its creditors or has a receiver appointed of all or any part of its assets or takes or suffers any similar action on consequence of debt or in either case suffers an analogous procedure under the law of any jurisdiction.
 
The minimum agreement period is 36 months.
 
 

10.          GOVERNING LAW

 
This contract is governed by the Laws of England and the English Courts (to the jurisdiction of which the Customer hereby irrevocably submits) shall have the exclusion jurisdiction to resolve any dispute arising out of it.
 
Schedule 1
 
Class of service – In respect to the Customers request the Company shall at the earliest practical opportunity instruct a maintenance engineer to attend to, inspect/or repair the Equipment during the Companies normal working hours.
 
The Company will endeavour to ensure that major faults receive a response within 4 hours, and minor faults receive a response within 8 hours. The severity of the fault will dictate the length of time in regards to fault resolution. Requests for programming changes have a 3 day response time upon our receipt of your request.
 

THE COMPANY’S OBLIGATIONS
 
CONDITIONS OF SALE by Dynamic Networks Group Ltd
 
1. GENERAL

 
This Agreement constitutes the entire agreement between the Customer and Dynamic Networks Group Ltd and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subjected matter of this Agreement. No alterations, waiver or modification of the printed terms of this Agreement shall be valid unless signed by a Director of Dynamic Networks Group Ltd and by a person authorised by the Customer. Variance from the terms of this Agreement in any order or other written notification from the Customer will be of no effect.
 
The minimum agreement period is 36 months.
 

2. PRICES

 
Catalogues, price lists and other advertising material are only indications of the type of goods offered and shall be subject to variations from time to time by Dynamic Networks Group Ltd and no prices or other particulars contained therein shall be binding on Dynamic Networks Group Ltd.
 
The prices stated will not apply to quantities less than those quoted herein. Changes in specification and/or suspension of work by the buyer of lack of instructions necessary to perform the contact may result in price adjustments and/or delays in delivery.
 

3. SPECIFICATION

 
Dynamic Networks Group Ltd reserves the right on the sale of any equipment to make before delivery any alteration to or departure from the specification or design of the equipment detailed overleaf provided that it shall not to a material extent adversely affect the performance of the equipment or the quality of the workmanship or the materials used.
 
All specifications, drawings and technical documents issued by Dynamic Networks Group Ltd either before or after conclusion of the contract are issued solely for the buyer’s use in connection with the equipment and shall not be copied, reproduced or communicated to any third party without express consent in writing from Dynamic Networks Group Ltd.
 

4. DELIVERY DATES
 

The delivery dates quoted are not to be regarded as being of the essence of any contact and are to be treated as estimates only, not involving Dynamic Networks Group Ltd in any liability through any inability to deliver within such time by reason of Act of God, war, civil insurrection, strike, storm, fire, flood, transportation difficulties, failure of supplier to deliver, material or labour shortage, law regulation or order of any government or agency or official thereof, or any cause not within their control whatsoever.
 

5. TERMS OF PAYMENT

 
Equipment notified by Dynamic Networks Group Ltd as ready for despatch or that has been despatched will be invoiced and payment in full shall be due according to the terms stated. Our standard terms are 50% on order and 50% on completion unless otherwise agreed in writing by Dynamic Networks Group Ltd. Late payments will incur interest charges of 8% above the Bank Of England base rate and any additional legal and administration costs incurred by Dynamic Networks Group Ltd in the recovery and collection of the said debt.
 

6. SECURITY INTERESTS

 
The equipment shall remain the property of Dynamic Networks Group Ltd until paid for in full by the buyer.
 
Should payment of the amount owing under the contract not be made when due, Dynamic Networks Group Ltd may remove and repossess the equipment (and for that purpose Dynamic Networks Group Ltd shall be entitled to enter upon any premises occupied by the buyer) in addition to exercising such other rights or remedies as may be conferred on it by law.
 

7. INSPECTION AND ACCEPTANCE

 
Dynamic Networks Group Ltd products are carefully inspected and tested before despatch. Minor variations from original specifications, which do not mutually affect the operation and use of the equipment shall not be sufficient grounds for withholding payment or any part thereof. Likewise, any other separate order that has not been completed at point of install shall not be grounds for withholding payment. Furthermore, any performance figures quoted by Best 4 Business Communication Ltd will accept no liability for failure to attain such performance figures.
 

8. MAINTENANCE

 
Comprehensive maintenance of equipment will be provided under the terms of the maintenance agreement which should be entered into not later than the date of installation.
 

9. INSTALLATION

 
The buyer shall, prior to delivery, furnish adequate electrical current and fittings at a suitable site with such facilities as may be required in accordance with Dynamic Networks Group Ltd installation instructions. If any special equipment or alterations to the building are required, the cost will be paid for by the Customer. A charge will be made for any relocating of the equipment subsequent to installation. The equipment will be installed by Dynamic Networks Group Ltd under the supervision of Dynamic Networks Group Ltd authorised representative but the buyer is responsible for and shall furnish the necessary additional labour required by Dynamic Networks Group Ltd for placing any and all equipment where free access to the installation site is not available or where installation outside Dynamic Networks Group Ltd normal working hours is required.
 

10. CANCELLATION OR REJECTION

 
An order, once accepted by Dynamic Networks Group Ltd is binding on the Buyer and may not be cancelled unless specifically agreed in writing by Dynamic Networks Group Ltd and a charge of 25% of the purchase price, or 25% of the sum of all rental payments agreed, or 25% of the sum of all payments agreed to be made under any finance agreement proposed to be activated to finance the order may be charged as a cancellation fee. Dynamic Networks Group Ltd reserves the right to charge for any work done on any equipment and/or service provided up to the agreed cancellation date.
 
If the performance figures obtained in any test specifically provided for in the contact are outside the limits specified therein, the buyer will be entitled to reject the equipment Dynamic Networks Group Ltd will be given reasonable time and opportunity to rectify its performance.

 
11. GUARANTEE

 
(a) Dynamic Networks Group Ltd warrants that for a period of twelve months from the date of installation of the equipment and all components parts will be free from all defects in material and workmanship.
 
(b) If the buyer shall wish to make a claim on Dynamic Networks Group Ltd under the provisions of (a) above it will immediately notify Dynamic Networks Group Ltd of the part or parts which it claims to be defective and if upon inspection thereof Dynamic Networks Group Ltd agrees that the part(s) is/are defective and that the terms of sub clause (a) above apply Dynamic Networks Group Ltd sole obligation hereunder will be limited to providing a replacement part for the one which is defective.
 
(c) The warranty given by Dynamic Networks Group Ltd in (a) shall not apply if the repair or replacement of a part or parts is required because of the accident, neglect or misuse of the equipment by the buyer or interference with the equipment by persons other than Dynamic Networks Group Ltd engineers or except as specifically provided for herein Dynamic Networks Group Ltd gives no warranties or representations express or implied statutory or otherwise.

 
12. LAW AND ARBITRATION

 
Any contact made between the buyer and Dynamic Networks Group Ltd shall be governed by the law of England.
 

13. DURATION

 
The term of this agreement shall be subject to the provisions of this agreement providing for earlier termination for the initial period specified on the face hereof commence on the commencement date shown on the face hereof (“the commencement date”) and shall continue thereafter from year to year until either of the parties shall give to the other at least forty two days prior written notice to be received on or before the anniversary date, sent by recorded delivery post. This agreement is to be deemed as a ‘rolling’ agreement and if not terminated within the agreed period, will re-enter into commitment for the original agreement period thereafter.
 

AGREEMENT FOR THE PROVISION OF THE CALLS, LINES AND BROADBAND SERVICE DYNAMIC NETWORKS GROUP LTD.

 
1. Definitions and Interpretation Agreement: means these Terms and Conditions together with the Order.

 
Associated Company: means any company which is a parent company of the relevant entity or a subsidiary of such parent company, where parent company and subsidiary have the meanings set out in Section 736 of the Companies Act 1985.
 
BT: means British Telecommunications plc and its Associated Companies.
 
CPS: means carrier pre-selection.
 
Call Charge: means the Supplier’s charges for calls made on the System (including reverse charge calls) as specified in the Order or otherwise notified by the Supplier.
 
Charges: means any or all of the charges and fees payable by the Customer for the Service pursuant to this Agreement.
 
Confidential Information: means any information, whether communicated orally or in documentary or other form, which relates to the business of the Supplier including, without limitation, any information relating to products, customers, pricing, policies, methods, business plans and strategies, technical processes and financial affairs, in all cases whether expressly stated to be confidential or not.
 
Connection Charge: means the non-refundable charge payable by the Customer for installation and connection to the System as specified in the Order or otherwise notified by the Supplier.
 
Connection Point: means a terminal block, a socket for a removable plug, a distribution frame, or any other device which the Supplier fixes in any of the Sites to connect the Customer’s equipment to an Exchange Line.
 
Customer: means the party purchasing the Service, as named in the Order.
 
Early Termination Fee: means the Rental for the balance of the Minimum Period that remains outstanding.
 
Exchange Line: means apparatus forming part of the System used by the Supplier to connect the Site to a telephone exchange to provide the Service.
 
IPR: means all intellectual property rights including, without limitation, copyright, patents, trade marks, registered designs, design rights, mask works, know how and all other similarly protected rights.
 
Minimum Period: means twelve (12) months (or such longer period as is set out on the Order) from the date that the Service is first delivered to the Customer.
 
Offending Material: means any material, data, images or information that is:
 
(i) in breach of any law, regulation, code of practice or Supplier’s acceptable use policy, or
 
(ii) abusive, indecent, defamatory, obscene or menacing or otherwise offensive, or
 
(iii) in breach of confidence, IPR, privacy or any right of a third party.
 
Ofcom: means the Director General of Telecommunications or any similar office that may be appointed in addition or in substitution.
 
Order: means the Service Order Agreement signed by the parties or such other document that the Supplier deems to constitute the Order.
 
Rental: means the monthly fee (including line rental, equipment rental, and other rental) payable by the Customer for the Service, asset out in the Order or otherwise notified by the Supplier.
 
Service: means any and all of the services that the Supplier has agreed to supply to the Customer, as set out in the Order. The Charges have been based upon Calls &Lines only being provided as part of the Service where the Customer is also taking CPS from the Supplier in respect of the relevant Exchange Line. If the Calls & Lines service on any relevant Exchange Lines ceases to be provided, the Supplier shall been titled to amend its Charges to its then standard charges for CPS as a stand-alone service. If CPS on any relevant Exchange Line ceases to be provided, the Agreement shall terminate forthwith, without prejudice to clause 2.2.
 
Site: means any or all of the Customer’s sites at which the Supplier is providing the Service.
 
Supplier: Dynamic Networks Group Limited whose registered office is at Airedale House, 423 Kirkstall Road, Leeds, LS4 2EW
 
Supplier’s Equipment: means any equipment owned by the Supplier or its licensors that the Supplier uses to provide the Service.
 
System: means the network that the Supplier uses to provide the Service.
 
Telephone Directory: means a Telephone Directory published by BT or any other operator (as appropriate).
 
Working Day: means 09:00 to 17:00 Monday to Thursday and 09:00 to 16:00 Fridays but excluding public holidays in the United Kingdom recognised by the Supplier. Any reference in this Agreement to any provision of a statute shall be construed as are reference to that provision as amended, re-enacted or extended at the relevant time.
 

2. Duration and Scope of this Agreement

 
2.1 This Agreement commences on the date of acceptance of the Order by the Supplier and will continue (subject to Clause 7) until terminated by either Party on forty two days written notice, to expire on the Minimum Period which commences on day of supply of service. This contract is deemed to be classed as a ‘rolling contract’ and will recommence for the original contract minimum period unless terminated in accordance with the above.
 
2.2 If the Customer terminates this Agreement during the Minimum Period and has no right to terminate under Clause 7, or if CALLS & LINES ceases to be provided on the relevant Exchange Line during the Minimum Period, the Customer shall pay, in addition to other sums payable up to the date of termination, the Early Termination Fee.
 
2.3 Until termination for whatever reason, the Supplier agrees to provide the Service to the Customer in accordance with this Agreement in consideration of the agreement of the Customer to use the Service in accordance with this Agreement and to pay the Charges when they are due.
 
2.4 The Customer hereby agrees to the termination of its existing contract for equivalent services with its existing communications service provider. The Customer shall provide to the Supplier any relevant account and Calling Line Identification numbers that may be required by
 
BT or other communications provider, and also access to carry out their obligations for the Supplier, BT and anyone acting on either of their behalf, to the Customer’s premises if so required. The Customer acknowledges that the Supplier cannot process the provision of the Service until such information and access is provided.
 
2.5 The Customer shall provide a suitable and safe working environment for the Supplier, BT and anyone acting on either of their behalf, to the Customer’s premises.
 
2.6 The provision of the Service requires that BT or other communications provider undertake programming at exchange level. Accordingly, it is agreed that any act, default or delay by BT or other communications provider in carrying out such programming or otherwise relating to or affecting the Service shall not be the responsibility of the Supplier.
 
2.6 The Calls & Lines Service is available only if the Customer has a valid contract for the use of an analogue Exchange Line (in the case of the wholesale access Service) or digital Exchange Line capable of supporting an existing ISDN2, 2e or 30 service (in the case of Wholesale ISDN2, 2e or 30 Service) direct Exchange Line (for each Exchange Line being ordered) which terminates on a Connection Point. If such contract does not exist, the Customer must request the Supplier to have installed an Exchange Line, Connection Point and/or ISDN2, 2e or 30bearer, as appropriate.
 
2.7 The Customer acknowledges that certain services are incompatible with the Calls & Lines service available from BT, and such incompatible services are excluded from the Services. The Customer also acknowledges that some technical limitations within the System may not become apparent until after the Service has been working for some time: in such circumstances, the Service may need to be withdrawn in which case the Customer shall be entitled to a pro rata rebate of any relevant Charges paid in advance by the Customer.
 
2.8 The Customer’s equipment to be used connected with the Service shall be connected by means of Connection Points and ancillary wiring. If the Customer wishes a Connection Point to be moved to another place within the Site, the Supplier may agree, subject to payment of the Supplier’s applicable charges. The Customer shall, at the Supplier’s request, arrange for the Customer’s equipment to be reprogrammed by its designated maintainer in accordance with instructions provided by the Supplier, to enable any indirect or other access. The Supplier will have no responsibility in respect of such reprogramming.
 

3. The Supplier’s General Obligations

 
3.1 The provision of the Service is subject to all relevant licences, infrastructure (or interconnect arrangements) and consents being in place.
 
The Supplier shall use reasonable endeavours to meet any agreed dates but shall not be liable for failure to meet them. The Customer shall obtain any consent or facility that is necessary or desirable for the Supplier to provide the Service on the Site.
 
3.2 The Supplier shall exercise the reasonable care and skill of a competent communications operator. The Service cannot be guaranteed to be fault free but the Supplier shall provide the same quality of service to the Customer as it provides from time to time to its customers generally.
 
3.3 The Customer shall report any fault to the Supplier’s Customer Services Department, where it will be dealt with in accordance with the agreed fault repair service. Where no Supplier’s Equipment is installed, the Supplier may request that the Customer first have its designated maintainer check the Customer’s equipment. If the Supplier agrees to fix a fault that is caused by the Customer or that otherwise falls outside the responsibility of the Supplier or where no fault is found, the Supplier may charge the Customer for any work that the Supplier has undertaken at its applicable man-hour rate.
 
3.4 The Supplier may alter the name or number of a telephone exchange serving the Exchange Line, the telephone number, or any other name, code or number whatsoever that the Supplier allocates to the Customer in instances where such alterations are required as a result of necessary operational or technical changes to the Supplier’s communications network or changes in legal or regulatory requirements.
 
3.5 The Supplier will allocate a telephone number to the Customer in respect of the Exchange Line and, unless the Customer requests otherwise, will arrange for a free standard entry to be made in a Telephone Directory. If the Supplier agrees to arrange a special entry (for which a charge would be made), this will be subject to additional terms and conditions.
 
3.6 Where the Supplier allocates telephone numbers to the Customer, the Customer will not (subject to any statutory or authorisation provisions relating to number portability) acquire any rights whatsoever in such telephone numbers. The Customer will not apply for registration of the telephone numbers as part of a trademark.
 
3.7 If the Supplier has an agreement with the Customer’s existing communications service provider, the Supplier can, at the Customer’s request, provide the Customer with a telephone line using the Customer’s existing number subject to the following:
 
3.7.1 There are no technical reasons preventing the use of the number;
 
3.7.2 The existing communications service provider agrees to release the relevant telephone number(s);
 
3.7.3 The Customer agrees to cease service on the existing communications service provider’s telephone line using the telephone number and authorises the Supplier to arrange for that cease to take place;
 
3.7.4 The Customer provides the Supplier with full details including (but not limited to) the account name, account number, service address and billing address;
 
3.7.5 The Customer pays the Supplier’s charges (if any) for number portability;
 
3.7.6 Number portability is only available at the Site.
 
3.8 The Supplier does not accept any liability for claims relating to the Customer’s ability to use or to continue use of a particular telephone number.

 
4. The Customer’s Obligations

 
4.1 The Customer shall not utilise and shall ensure that no other person uses the Service:
 
4.1.1 For storing, reproducing, transmitting, communicating or receiving any Offending Material; or
 
4.1.2 Fraudulently or for any criminal purpose or in a manner that is contrary to any regulatory or legal requirement; or
 
4.1.3 To make offensive, indecent, menacing, nuisance or hoax Calls; or
 
4.1.4 Contrary to instructions that the Supplier may give to the Customer.
 
4.2 The Customer will provide the Supplier with all information that the Supplier needs and allow the Supplier to use that information for credit checking and debt collection (including disclosure to and use by third parties acting for the Supplier) and any other uses and disclosures allowed by the Protection Act 1998 and will allow the Supplier to disclose such information to the extent that the Supplier is required to do so by Ofcom, the law or any relevant authority.
 
4.3 The Customer shall keep all of the Supplier’s Equipment at the Site safe and shall pay for the replacement and/or repair of any of the Supplier’s Equipment which is lost, damaged (otherwise than by fair wear and tear) or destroyed. The Customer shall not alter or move any of the Supplier’s Equipment, nor do anything that is likely to damage or adversely affect its performance, nor remove or deface any words or signs on it, nor permit anyone else to do so. The Customer shall not sell, let, mortgage, charge, pledge, dispose of or do anything that would prejudice the Supplier’s Equipment or the System in any way. The Customer will allow the Supplier to inspect, test, modify, change, add to, replace or remove any Supplier’s Equipment, either remotely or via a designated maintainer. At the end of the term of the Agreement, the Customer will allow the Supplier access at all times to collect any of the Supplier’s Equipment in the Customer’s possession.
 
4.4 The Customer shall at its own cost arrange for the required Site specific conditions, as notified by the Supplier. This will include, without limitation, mains electricity supply, connection points and computer terminals. The Customer shall prepare the Sites in accordance with the Supplier’s reasonable instructions and reinstate them at the Customer’s expense after the Supplier has completed any work necessary for the Supplier to be able to provide the Service.
 
4.5 The Customer shall ensure that any equipment (excluding Supplier’s Equipment) that it uses in connection with the Service meets any legal or regulatory requirements and is approved for connection to the System. If not, the Customer must immediately disconnect it or allow the Supplier to do so at the Customer’s expense.
 
4.6 The use of computing equipment and/or computer software owned and/or controlled by the Supplier (including computer networks and systems accessed via the network) is permitted for bona fide purposes and is subject to authorisation. Unauthorised or improper use of these facilities is a breach of this Agreement and may give rise to withdrawal of the facilities and/or proceeding sunder the Computer Misuse Act 1990.
 
4.7 The Customer shall indemnify and keep indemnified the Supplier against all or any claims and associated costs, damages or expenses made by any third party as a consequence of any breach by or other act or omission of the Customer under or in relation to this Agreement.
 
4.8 The Customer shall comply with any requirements notified by the Supplier relating to number portability.
 
4.9 Where the Customer’s existing account with BT includes BT equipment which is not required for the provision of the Service, the
 
Customer shall contact BT in order to remove the BT equipment or move such equipment to another BT account.
 

5. Payments

 
5.1 The Supplier shall be entitled to send an invoice to the Customer for the Connection Charge when the Telephone Service is available to the Customer, for the Rental monthly in advance and for the Call Charges after the end of the month in which the relevant calls were made.
 
The Customer shall pay all Rental and Call Charges whether the Customer or someone else uses the Service. The Call Charges will be calculated using the details recorded or logged at the Supplier’s telephone exchange and not details recorded by the Customer.
 
5.2 The Customer shall pay any cancellation charges, abortive visit charges, engineering visit or site survey charges, or maintenance service charges imposed on the Supplier by BT and relating to the Service, save where such abortive visit or service maintenance charges arise through the Supplier’s default.
 
5.3 The Rental shall continue to be payable during any period of suspension or restriction requested by the Customer in addition to any Charges for such suspension or restriction.
 
5.4 The Charges are exclusive of Value Added Tax, which shall be payable by the Customer in addition to the Charges at the rate applicable from time to time.
 
5.5 The Customer shall (without set-off or deduction) pay in pounds sterling all invoices issued by the Supplier within fourteen (14) days of the date upon them. If the Customer’s credit rating decreases at any time, the Supplier shall be entitled to revise the credit terms to require payment upon invoice or in less than 14 days. If the Customer fails to make payment by this date in full, in addition to the Supplier’s right to suspend set out in Clause 6.1, the Supplier may charge interest at the rate of 8% per annum above the base rate of the Bank of England on any amounts outstanding from the due date for payment until payment is made in full.
 
5.6 The Supplier may change the level of its Charges after giving the Customer four (4) weeks written notice of its intention to do so. This notice may be included in an invoice to the Customer. If the Supplier increases the Charges by more than the Retail Price Index during the Minimum Period, the Customer may terminate the Agreement in accordance with Clause 2 within ten (10) days of receipt of the notice of increase, without the obligation to pay the Total Early Termination Fee.
 
5.7 The Supplier may also change the level of its Charges during or after the Minimum Period, retrospectively as well as prospectively, as a consequence of (a) any Ofcom direction, determination, order or similar decision, or (b) any notice issued by BT correcting an error in the amount or application of a charge or payment under its interconnect agreement with the Supplier. In both cases, the Supplier shall only be entitled to change the level of its Charges where the foregoing impacts upon the basis upon which the Charges were calculated.
 
5.8 Where the Supplier agrees to do work outside a Working Day at the request of the Customer, the Supplier may charge the Customer in accordance with the Supplier’s applicable man-hour rate.

 
6. Suspension and Variation of the Service

 
6.1 The Supplier may, in its sole discretion and upon giving the Customer written notice, suspend or vary the Service without compensation (unless due to the default of the Supplier) for any period during which:
 
6.1.1 The Supplier is required to do so in order to avoid a breach of the authorisation of the Supplier under the Communications Act 2003, as amended from time to time;
 
6.1.2 The Supplier is obliged or requested to comply with an order or instruction of, or a recommendation or request to take such action received from the Government, Oftel, Radio Communications Agency, an emergency services organisation or a competent administrative authority;
 
6.1.3 The Supplier reasonably suspects or believes that the Customer is in breach of Clause 4.1 or the Customer is in breach of Clause 5;
 
6.1.4 The Customer’s credit rating decreases at any time, and the Customer fails to supply reasonable security in response to a request from the Supplier; or
 
6.1.5 The Supplier’s contract with BT relating to the Services is suspended, varied or terminated.
 
6.2 The Customer acknowledges that BT may make alterations to the service (including, without limitation, conversions, shifts, reconfigurations and renumbers) which may result in disruption.
 
6.3 The Customer shall reimburse the Supplier for all reasonable costs and expenses incurred as a result of the suspension and any recommencement or variation of the Service where suspension or variation is implemented as a result of any actor omission of the Customer.
 
6.4 The Supplier may at any time suspend the Service or any part of it, without liability:
 
6.4.1 To vary the technical specification of the Service in order to comply with any relevant law or regulation or direction from a competent authority; or
 
6.4.2 To repair, maintain or improve the Service; The Supplier will, during such suspension under this Clause 6.4, try to ensure that minimum disruption is caused to the Service.
 

7. Termination

 
7.1 Either party may immediately terminate this agreement by written notice if the other party commits a material breach that is not capable of being remedied.
 
7.2 Either party may serve written notice requiring the other party to remedy within forty-five (45) days of receipt of the notice a material breach of this agreement that is capable of remedy. In the absence of a remedy in this period, the party that served notice to remedy may immediately terminate this agreement by written notice.
 
7.3 Either party may immediately terminate this agreement by written notice if the other party commits an act of bankruptcy or goes into or is put into liquidation (other than solely for the purposes of a reconstruction or amalgamation) or if a receiver or administrator is appointed over all or part of the other party’s assets or the other party suffers seizure of any of its property for non payment of monies owing.
 
7.4 If the customer wishes to end the agreement before agreed term the customer agrees to pay all fixed line rental and or service costs until the end of the agreed term plus £50 per month remaining on the agreed term. In the case of broadband service cancellation, an additional fixed fee of £50 is charged on disconnection / transfer.
 
7.5 If this agreement is signed before the supplier has completed its credit check of the customer, the supplier shall be permitted to terminate this agreement immediately by written notice if the customer fails to pass the supplier’s credit policy
 
7.6 The supplier shall be permitted to terminate this agreement immediately by written notice at any time for the reasons set out in clauses 6.1.1 and 6.1.2.
 
7.7 The rights to terminate this agreement given by this clause 7 shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach. Following termination of the service, telephone service may be disconnected unless the customer makes alternative arrangements with the supplier or another communications service provider.
 
7.8 If the customer or existing service supplier cancel the transfer of services to the provider after the order has been accepted by the supplier, there will be an pre transfer termination fee of £50 per telephone line and or broadband connection.
 

8. Limitations and exclusions of liability

 
8.1 This clause 8 sets out the supplier’s entire liability (including any liability for acts or omissions of the supplier’s employees, agents or subcontractors) to the customer in tort, contract or otherwise arising in connection with the performance, non-performance or contemplated performance of this agreement. Except as set out in this agreement, the supplier provides no warranties, conditions or guarantees as to the description or quality of the service, and all warranties, conditions or guarantees implied by or expressly incorporated as a result of custom and practice, statute, common law or otherwise are hereby expressly excluded so far as permitted by law. The supplier’s duty in performing any obligations under this agreement is only to exercise reasonable care and skill of a reasonably competent communications provider.
 
8.2 Subject to clause 8.4, the supplier’s entire liability for non-fraudulent representation, or implied warranty, condition or other term, or under any duty at common law, or in tort (including negligence) or under the express terms of this agreement shall not in the aggregate, in any period of 12 months, exceed the charges paid in respect of that 12 month period. If for any reason this limit of liability shall be found to be unlawful or invalid by a court of competent jurisdiction, the supplier’s entire liability as referred to in this clause shall not exceed £1,000,000 (one million pounds sterling) for any one incident or series of related incidents and £2,000,000 (two million pounds sterling) in aggregate during the term of this agreement.
 
8.3 Notwithstanding anything to the contrary in this agreement, but subject to clause 8.4, the supplier shall not be liable to the customer under the express terms of this agreement or by reason of any non fraudulent representation, or implied warranty, condition or other term, or any duty at common law, or any tort, for any loss of profits or revenue, loss of income or business, loss of goodwill or reputation, loss of anticipated savings, loss of data, loss of use, or damages, loss or expenses payable by the customer to any third party or any indirect or consequential or special loss or damage whatsoever and howsoever caused.
 
8.4 The supplier shall not exclude or restrict liability for death or personal injury resulting from its own negligence or for fraudulent misrepresentation.
 
8.5 Each of the Supplier and the Customer acknowledges that it considers the provisions of this clause 8 to be reasonable, taking account of the other terms of this agreement (including the Charges) and its ability to insure against losses which may arise from any breach by the other party of its obligations under this agreement.
 
8.6 The provisions of this Clause 8 shall survive termination or expiry of the agreement.
 

9 Confidentiality and Data Protection

 
9.1 The Customer agrees to keep all confidential information confidential, to disclose it only to its employees that need to know it and to use it exclusively for the purposes contemplated by this agreement. This clause shall not apply to information that the customer can prove:
 
9.1.1 Is in the public domain otherwise than by the customer’s breach;
 
9.1.2 It already had in its possession prior to obtaining the information directly or indirectly from the Supplier; or
 
9.1.3 A third party subsequently disclosed to the Customer free of restrictions on disclosure and use. This Clause shall survive for three (3) years from when the Customer acquired that Confidential Information from the Supplier.
 
9.2 The Customer may disclose Confidential Information if required to do so by law, regulation or rules of a securities exchange or other regulatory authority, but only to the extent of the relevant requirement. The Customer shall promptly inform the Supplier of the requirement and will co-operate with the Supplier in the disclosure.
 
9.3 The use of any information, including Calling Line Identification, may be subject to (and therefore the Customer shall comply with) the
 
The EU General Data Protection Regulations 2018. The Supplier reserves the right to withhold Calling Line Identification if it believes that the Customer has failed to comply with this Clause or the Supplier receives a complaint from any relevant authority.
 
9.4 The Customer hereby consents to BT disclosing to the Supplier any information relating to the transfer or removal, of BT’s retail products and services that exist on the Exchange Line as at the time of transfer of the service from BT to the Supplier.
 

10 Ownership
 

All IPR relating to the subject matter of this Agreement shall vest in, and ownership of the Supplier’s Equipment and the System (including any works performed by the Supplier to connect the Site to the System) shall remain with the Supplier or its licensors, as appropriate. The
 
Customer acknowledges that it shall have no licence, right, title or interest in or to any IPR of the Supplier or its licensors or the Supplier’s Equipment or the System, except as expressly set out in this Agreement. This Clause shall survive termination or expiry of the Agreement.
 

11 Circumstances Beyond Reasonable Control

 
11.1 Neither Party shall be liable for any delay in performing its obligations under this Agreement caused by circumstances beyond its reasonable control. These are circumstances such as, but not limited to, Acts of God, insurrection or civil disorder or military operations, national or local emergency, acts or omissions of government or other competent authority or regulatory authority, fire, flood, lightning or other weather of exceptional severity, subsidence, explosion or industrial disputes. This Clause does not apply to the Customer’s obligation to pay.
 
11.2 If either Party is affected by circumstances beyond its reasonable control, it shall notify the other Party and shall use reasonable endeavours to overcome the effects. If those effects continue for more than three (3) months, the Parties shall enter into a discussion to agree, in good faith, the best way forward.
 

12 Notices

 
12.1 Notices must be written and delivered by hand or first class prepaid post. The address for service on the Supplier (subject to any change notified by the Supplier) is: Dynamic Networks Group Ltd, Airedale House, 423 Kirkstall Road, Leeds, LS4 2EW. The address for service on the Customer is as set out in the most recent invoice.
 
12.2 A notice will be deemed served as follows:
 
12.2.1 On hand delivery, except where this is outside a Working Day, in which case the next Working Day;
 
12.2.2 Two Working Days after posting (proof that the envelope containing the notice was properly addressed, prepaid and posted and that it has not been returned to the sender shall be proof of posting).
 

13 General
 

13.1 Headings in this Agreement shall not affect interpretation.
 
13.2 A delay in enforcing rights under this Agreement shall not be a waiver, as any waiver must be expressly granted in writing.
 
13.3 The unenforceability or invalidity of any part of this Agreement shall not affect the enforceability or validity of the remainder of it.
 
13.4 The termination or expiry of this Agreement shall be without prejudice to the rights of either Party, which have accrued prior to termination or expiry. Clauses that are expressed to survive or which are by implication intended to survive termination or expiry of this Agreement shall so survive.
 
13.5 This Agreement contains the entire agreement and supersedes all other agreements and understandings between the Parties with respect to its subject matter. Any terms proposed by the Customer that are not written in these Terms and Conditions shall be invalid. Subject to Clause 8.4, each Party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly written in this Agreement, and that its only remedy can be for breach of contract.
 
13.6 Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the Parties.
 
13.7 This Agreement is not intended to be for the benefit of and shall not be exercisable by, any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither Party can declare itself trustee of the rights under it for the benefit of any third party.
 
13.8 The Supplier may change this Agreement at any time without requiring the agreement of the Customer to the extent that the Supplier’s contract with BT relating to the Service is changed.
 
13.9 The Supplier may transfer or assign its rights and obligations to any of its Associated Companies and may sub-contract any of its obligations. Otherwise, neither Party may transfer, assign, sub-licence or subcontract any rights, licences or obligations under this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld or delayed.
 
13.10 English law shall govern the validity, construction and performance of this Agreement and the Parties submit to the exclusive jurisdiction of the English Courts.