TERMS & CONDITIONS
SUPPLY OF GOODS & SERVICES
This Agreement is made between
(1) PENTANGLE INTERNET LIMITED registered as a company with company number 03960918 at registered office address 1 Lauras Close, Great Staughton, St Neots, Cambridgeshire, PE19 5DP (“Pentangle”) and;
(2) [XXXXX] (“the Customer”).
In this Agreement (which includes the attached Schedules) the following terms shall have the following meanings:
Agent means the agent, if any, representing Pentangle in the sale or provision of the Services to the Customer.
Agreement means these terms and conditions, the Schedules and all other documentation referred to in any of those documents.
Force Majeure is as defined in clause 9 below.
Fees means the sum charged by Pentangle to the Customer for the provision of the Services as more particularly set out and described in clause 4 and the relevant Schedules.
Initial Term means the period of 12 months from the Start Date.
Insolvent Event means the situation in which a party becomes insolvent, has an insolvency practitioner appointed over the whole or any part of its assets, enters into any compound with creditors, or has an order made or resolution for it to be wound up (otherwise than in the furtherance of a scheme for solvent amalgamation or reconstruction) or if ownership or control shall pass into the hands of any other legal person (other than assignment under clause 12), or an event analogous occurs in respect of a party in any jurisdiction to which that party is subject.
Internet Services means those Services as more particularly described in Schedule 3.
Online Backup Services means those Services as more particularly described in Schedule 4.
Order Form means the form on which the Customer selects the Services and specifications to be provided.
Services is the collective term for the services provided by Pentangle under the terms of this Agreement and which may include Telephony Services, Internet Services, Online Backup and Third Party Services.
Start Date means the date that the first of the Services to be provided under this Agreement becomes fully functional and is made available to the Customer.
Support means those Services as more particularly described in Schedule 1.
Telephony means those Services as more particularly described in Schedule 2.
Term means the duration of this Agreement which shall be Initial Term plus the period thereafter until the Agreement is terminated in accordance with clause 5.
Third Party Services means services supplied by any third party which Pentangle resells to the Customer under the terms of this Agreement, as more particularly described in Schedule 5.
2.1 Pentangle agrees to provide the Services to the Customer on the terms and conditions contained within this Agreement for the Term.
2.2 Pentangle shall provide the Services with reasonable care and skill.
2.3 Pentangle reserves the right to vary the Services at any time. Pentangle shall inform the Customer of such variations where Pentangle deems it necessary to do so and where reasonably practicable in the circumstances.
2.4 In addition to the Services, Pentangle may also provide, at an additional cost, consultancy services to the Customer at any time during the Term. The scope of and fee for any such consultancy services shall be agreed between the parties from time to time.
3.1 The Customer may be issued with a password in connection with the Services and if so shall take all reasonable steps to keep such password private and confidential, and ensure that it does not become known to other persons.
3.2 If the password becomes known to any other person the Customer shall immediately inform Pentangle and Pentangle shall, within a [2 working days], issue a new password.
3.3 The Customer shall be liable for all use of the Services accessed by means of its password even if such password was used by an unauthorised person.
4.1 In consideration of the Services, the Customer shall pay the Fees to Pentangle.
4.2 The Fees for each the Support, Telephony, Internet, Online Backup and Third Party Services are particularised in the applicable Schedule(s).
4.3 After the Initial Term Pentangle may vary the Fees at any time on giving the Customer 30 days’ written notice. The Customer may terminate the Agreement in accordance with clause 5.
4.4 The Fees whether paid or payable during the Initial Term, are non-refundable (except where this Agreement is terminated by the Customer under Clauses 7.2 or 7.3, in which case they shall be refundable on a pro-rata basis).
4.5 Pentangle shall invoice the Customer for the Fees in accordance with the applicable Schedule.
4.7 All invoices for Fees shall be due and payable within twenty one (21) days from the date of the invoice.
4.8 All Fees are exclusive of any applicable VAT which is chargeable in addition at the then current rate.
4.9 Late payment of any invoices will result in interest being charged at 4% per annum above the then current base rate of Lloyds TSB. Such interest shall be payable on demand.
5.1 If any invoice remains unpaid thirty (30) days after its due date, Pentangle may, without further notification and without prejudice to any other remedy, suspend or disable the Services or, at its option, terminate this Agreement.
5.2 Either party may terminate this Agreement at any time if the other materially breaches this Agreement and in the case of a breach capable of remedy fails to remedy the breach within thirty (30) days of receipt of a notice requiring the breach to be remedied.
5.3 Where one party suffers an Insolvency Event, then the other may, without prejudice to any other right or remedy, terminate this Agreement with immediate effect on giving written notice.
5.4 Following the expiry of the Initial Period, either party may terminate this Agreement on giving not less than 30 days’ written notice to the other.
5.5 Pentangle may, without further liability to the Customer, terminate or suspend the Services, whether in whole or in part, with immediate effect on written notice in the event that any licence, permission, agreement or authorisation granted to Pentangle by a third party which is necessary for the provision of the Services is suspended, revoked or terminated for whatever reason.
5.6 Subject to clause 6.4, termination of this Agreement by Pentangle shall not relieve the Customer of its responsibilities under this Agreement, including the responsibility to pay all Fees up to the date of termination, which if not already due shall immediately become due upon such date.
The Customer is responsible for assessing its own commercial needs, how the Services relate to the Customer and how the Customer should use the Services.
6.2 The Customer warrants that it is familiar with services of the type ordered and that it understands the level of service to be provided and the implications for the Customer’s business of the choices which the Customer made when selecting the Services. Pentangle makes no warranty as to the value of the Services in the Customer’s business or the results to be obtained from the use of the Services.
6.3 The Customer is solely responsible for the use of any information or other material obtained through the Services. Pentangle specifically excludes any responsibility for the accuracy or quality of any information obtained through the Services, or that any other material obtained through the Services may be used in any way by the Customer without infringing the rights of any third parties. The Customer further acknowledges that these matters are outside the control of Pentangle.
7. Limitation of Liability
7.1 Except as expressly stated otherwise in this Agreement, Pentangle shall have no obligation, duty or liability, in or for contract, tort (including negligence and breach of statutory duty) or otherwise arising out of and in connection with this Agreement and the Services and all other conditions, warranties, terms, representations or undertakings, express or implied, whether in statute, common law or in any other way are excluded to the fullest extent permitted by law.
7.2 Pentangle shall not be liable for any losses, damages or expenses or loss or profit, loss of anticipated savings, loss of reputation, loss of data or loss of management or staff time (whether in each case such losses are direct or indirect) or any indirect or consequential losses suffered by the Customer as a result of any claims made against it by a third party as a consequence or in connection with this Agreement.
7.3 Subject to clauses 8.2 and 8.3, the total liability which Pentangle shall owe to the Customer and in respect of all claims shall not exceed 105% of the Fee actually paid by the Customer in the calendar year in which the liability was incurred.
7.4 Nothing in this Agreement limits or excludes Pentangle’s liability for:
7.4.1 death or personal injury resulting from the negligence of Pentangle;
7.4.2 fraudulent misrepresentation;
7.4.3 damage suffered by the Customer as a result of a breach by Pentangle of the condition as to title or the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
7.4.4 damage for which Pentangle is liable to the Customer under Part 1 of the Consumer Protection Act 1987, shall not be limited save that nothing in this clause 15 shall confer a right or remedy upon the Customer to which the Customer would not be otherwise entitled.
7.5 The provisions of this clause 7 shall survive the termination or expiry of the whole or any part of this Agreement.
The Customer shall indemnify and hold harmless Pentangle against all liabilities, claims, damages, losses, costs and proceedings howsoever arising from any improper use of the Services or any breach by the Customer of its obligations and responsibilities under this Agreement.
9. Force Majeure
Neither party shall be liable for any breach of this Agreement due to any cause beyond its reasonable control (save obligation in respect of the payment of monies) including, but not limited to, Acts of God, malicious acts of third parties, failure of sub-contractors, extreme adverse weather conditions, flood, lightning or fire, industrial action, act or omission of government, or other competent authority, riot, war or act or omission of any other party for whom that party is not responsible.
10. Intellectual property
10.1 The Customer acknowledges that material of any nature provided by Pentangle, either under this Agreement or otherwise (for example, quotations or other pre-contractual material) may contain intellectual property which is either the property of, or licensed to, Pentangle (including copyright, trade marks, registered and unregistered designs and patents). Nothing in this agreement is intended either:
10.1.1 as a licence for the Customer to use such intellectual property; or
10.1.2 as a transfer of such intellectual property unless explicitly stated in writing and signed by the transferor.
11. Confidential Information
11.1 During the course of this Agreement, the Customer may have or obtain confidential information relating to Pentangle (which includes, but is not limited to, information relating to its products, planned products and details of its marketing, support and internal structures and similar information relating to its suppliers or related products). The Customer agrees that it will use such confidential information solely for the purposes of this Agreement and for evaluating future products or services supplied by Pentangle, and that it shall not disclose, whether directly or indirectly, to any person any confidential information unless the disclosure is required to carry out the obligations under this Agreement. Before the Customer makes any disclosure to another person, the Customer must obtain from them a binding commitment, as least as stringent as this obligation, to keep that information confidential.
11.2 This clause 11 shall not prevent the Customer from disclosing or using any information which is public or becomes public through no fault of the Customer, or to the extent required by law.
12.1 The Customer shall not sell, transfer or assign its rights or obligations under this Agreement without the prior written consent of Pentangle. No such assignment, even if consented to, shall relieve the Customer of its obligations under this Agreement prior to the date of such assignment.
12.2 Pentangle may sub-contract the provision of any Service at its discretion and without prior notice to the Customer.
The waiver or failure of either party to exercise any right provided for in this Agreement shall not be deemed a waiver of that or any other right in this Agreement.
If any provision, or part provision, of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part provision shall be deemed to be deleted, and the remaining provisions of this Agreement shall remain in full force and effect.
15. Entire Agreement
15.1 This Agreement, including the Schedules attached, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters.
15.2 No oral explanation or oral information or email given by any party shall alter the interpretation of this Agreement.
15.3 The Customer confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly in this Agreement been made a representation and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement, save that the agreement of the Customer contained in this clause 15.3 shall not apply in respect of any fraudulent misrepresentation whether or not the same has become a term of this Agreement.
16.1 Notices sent pursuant to this Agreement shall be in writing and may be delivered by hand or sent by post or faxed with hard copy confirmation by post to the recipient at its address shown on the Customer Order Form or at such other address as may be notified in accordance with this clause or, in the case of a company, to its registered office.
16.2 Notices hand delivered or faxed shall be deemed received on delivery and those posted on the second working day after they are posted.
17. Law & Jurisdiction
This Agreement shall be governed by English Law. The parties submit to the exclusive jurisdiction of the English courts, save for claims for Fees or claims relating to Pentangle’s intellectual property which Pentangle may pursue in the courts of any jurisdiction.
18. Data Protection
The Customer hereby agrees that any Customer information (“Data”) collected by Pentangle in the fulfilment of, or in connection with, this Agreement (including but not limited to Data collected during order processing, delivery, installation, support and maintenance of the Services) may for the purposes of fulfilling the contract be processed by Pentangle, its provisioning entities affiliates and agents both within and outside the European Economic Area, and outside the country or countries where the Data is collected in accordance with the provisions of the Data Protection Act 1998.
19. Third Parties
Nothing in this Agreement is intended to confer any rights onto any party who is not a party to this Agreement under the Contracts (Rights of Third Parties) Act 1999.
20. Additional Terms
20.1 In the event that the Customer has selected Support Services, Schedule 1 shall apply.
20.2 In the event that the Customer has selected Telephony Services, Schedule 2 shall apply.
20.3 In the event that the Customer has selected Internet Services, Schedule 3 shall apply.
20.4 In the event that the Customer has selected Online Backup Services, Schedule 4 shall apply.
20.5 In the event that the Customer has selected Third Party Services, Schedule 5 shall apply.
Duly agreed by the parties:
SIGNED FOR AND ON BEHALF OF PENTANGLE:
SIGNED FOR AND ON BEHALF OF THE CUSTOMER:
SCHEDULE 1 – SUPPORT
In this Schedule 1 the following words shall have the following meanings:
Equipment means the hardware that shall be supported and maintained by Pentangle as part of the Support. Such hardware shall be agreed between the parties and shall be listed on the Pentangle online database.
Software means the software that shall be supported and maintained by Pentangle as part of the Support. Such software shall be agreed between the parties and shall be listed on the Pentangle online database.
Users means those persons employed by the Customer who use the Equipment and Software.
Support Hours means the usual times at which Support Services may be provided by Pentangle, as set out in paragraph 2.1 below.
2. Pentangle Obligations
2.1 Pentangle shall provide Support in respect of the Equipment and Software at three levels as defined below:
STAGE SUPPORT METHOD SUPPORT HOURS
I Remote telephone support 0900 to 1700
Monday to Friday excluding the usual Bank Holidays in England.
II Remote server access 0900 to 1700
Monday to Friday excluding the usual Bank Holidays in England.
III On site support/services Provided on the basis of a seven hour working day (i.e. eight hours attendance plus one hour lunch break).
Timings to be agreed between the parties.
Unused portions of such working days may not be carried forward.
Pentangle may, at its sole discretion, provide solutions to support enquiries raised, outside of the support hours stated above but reserves the right to charge an additional fee where work outside of these hours is requested by the Customer.
3. Customer Responsibilities
3.1 The Customer shall provide a quarterly statement of the name and number of Users.
3.2 The Customer may not make changes to the Equipment or Software without the prior agreement of Pentangle. For the avoidance of any doubt, this paragraph 3.2 is a material term of the Agreement.
3.3 If the Customer has not selected Backup Services, it is responsible for maintaining its own adequate backups for safe storage of any operating system or program media and Pentangle accepts no liability for the failure of the Customer to maintain such backups.
3.4 The Customer shall procure and maintain all necessary software licences and, except where services based offerings are provided where the Customer has the right to use the service but no other specific rights over the assets, all software licences purchased by Pentangle on the Customer’s behalf shall remain the Customer’s property and responsibility.
4. Support Procedure & Terms
4.1 The Customer shall be provided with a telephone number for technical support enquiries.
4.2 On contacting the support number the Customer will be assigned a call reference number and shall provide contact details and a description of the problem.
4.3 Pentangle shall process the Customer calls as quickly as possible and on a priority basis but gives no guarantees as to time to fix and shall not be liable for any losses incurred by the Customer as a result of a delay in responding.
4.4 Customer calls may be logged outside of the usual support hours but Pentangle is under no obligation to provide the Support Services outside of the usual support hours and the Customer shall be responsible for ensuring that any requests for support are acknowledged and a call reference number provided.
4.5 In the event that third party assistance is required in order to solve a problem, any expenses incurred, including any non trivial service management costs, will be borne by the Customer however, no such action shall be taken without the Customer’s prior authorisation.
4.6 Pentangle shall, at its sole discretion, determine whether on site support is required.
4.7 In addition to Support of the Software and Equipment, assistance may also be given on other aspects of the network, including remote sites and other IT matters. However, this is not specifically included within this Agreement and any such assistance is provided at Pentangle’s discretion.
4.8 In the event that an unusually large volume of support calls are made, Pentangle reserves the right to re-negotiate the terms of this Agreement with the Customer.
4.9 Support does not extend to:
4.9.1 Equipment break/fix maintenance;
4.9.2 resolution of virus infection;
4.9.3 installation of upgrades;
4.9.4 Equipment which is in excess of 5 years old or otherwise outside of the manufacturer’s or extended warranty period unless specifically agreed with Pentangle in writing;
4.9.5 accidental damage or misuse of Equipment; or
4.9.6 unauthorised amendments to the Software made by the Customer.
5.1 The Support Fee shall be £50.00 per User per calendar month, based on [XXXXX] Users and not more than [XXXX] hours spend in providing Support Services to the Customer per month (any unused hours will not be carried over into subsequent months).
5.2 The Support Fee shall be paid quarterly in advance in four equal instalments on the usual quarter days.
5.3 Pentangle reserves the right to increase the Support Fee on a pro rata basis in the event that the number of hours spent in providing Support Services exceeds the number stated in paragraph 5.1.
5.4 Any Support provided in addition to that covered by Stages I, II and III shall be invoiced at the daily rate of £500.
5.5 All prices stated exclude VAT which shall be payable at the prevailing rate.
5.6 Where any Equipment or Software is purchased by Pentangle on behalf of the Customer, the cost of such purchases shall be invoiced to the Customer and the ownership and liabilities of such Equipment and Software shall be transferred to the Customer.
SCHEDULE 2 – TELEPHONY SERVICES
In this Schedule 2 the following terms shall have the following meanings:
“ICSTIS” means the Independent Committee for the Supervision of the Standards of Telephone Information Services.
“OFTEL” means the Office of Telecommunications”
“Operator” means the provider of access to the Telecommunications Network
“Premium Rate Number” means the telephone number allocated to a Customer for the purpose of enabling the Customer to provide Premium Rate Services
“Premium Rate Services” means the telephone services providing information advice, entertainment or any other services defined from time to time by ICSTIS as being Premium Rate Services which the Customer may provide to its own customers.
“Revenue” means the sums payable by Pentangle to the Customer in respect of the Premium Rate Services based on the minutes of call time generated by use of the Premium Rate Number. Such call time information to be recorded by the Operator and Supplied to Pentangle.
“Telecommunications means the public and private telecommunications systems Network” accessed by the Telephone Number or by which the
Telephony Services are made available.
“Telephone Numbers” means the telephone number(s), including any Premium Rate Numbers, if applicable, allocated to the Customer
“Telephony Fees” means the fees payable in consideration of the Telephony Services.
2. Pentangle’s Obligations
2.1 Under this Agreement Pentangle shall use reasonable endeavours to provide the Customer with a connection to the Telecommunications Network, provide Telephone Numbers and other telecommunication services as agreed between the parties from time to time (“Telephony Services”).
2.2 Pentangle shall provide an after sales service and help desk contactable by telephone and email during the hours 9am to 5pm Monday to Friday excluding public holidays.
2.3 The Telephone Number does not belong to the Customer and whilst Pentangle shall endeavour not to change it during the Term, it shall not be liable if it does so.
3 Customer’s Responsibilities
3.1 The Customer shall comply with any reasonable directions or instructions issued from time to time by Pentangle in connection with the Services;
3.2 The Customer shall ensure that the Account is maintained in credit at all times;
3.3 The Customer shall, insofar as possible, ensure that the Telephone Numbers and the Telephony Services are not used in any unlawful, improper or damaging manner.
4 Premium Rate Services
4.1 This paragraph 4 shall apply only if the Customer has requested the provision of Premium Rate Numbers on the Order Form in which case the Customer shall:
4.1.1 Provide Pentangle with an accurate description of the Premium Rate Service that it intends to provide and notify Pentangle immediately of any intention to change the nature of the Premium Rate Service and obtain Pentangle’s prior written approval to such change in nature;
4.1.2 Ensure that it obtains all necessary licenses, authorities and approval from ICSTIS, OFTEL and any other regulatory body relevant to the Premium Rate Service prior to providing the service and thereafter maintain such licences, authorities and approval for the Term and provide evidence of such to Pentangle upon receipt of written request from Pentangle;
4.1.3 Ensure that the Premium Rate Services comply with all relevant legislation, regulations, guidance and codes of practice,
4.1.4 Ensure that the Premium Rate Services do not include any material which is defamatory, offensive, indecent, threatening or likely to bring Pentangle into disrepute by virtue of its connection with the Customer
4.1.5 Ensure that it does not refer to Pentangle or the Operator without their prior written approval.
4.2 The Premium Rate Service may be monitored by Pentangle, the Operator or ICSTIS from time to time in order to ensure compliance with this Agreement and all applicable legislation, regulations, guidelines and codes of practice.
4.3 The Customer shall be entitled to receive Revenue from Pentangle which shall paid monthly in arrears.
4.4 The rate of the Revenue shall be agreed between the parties from time to time and recorded in this Schedule.
4.5 Payment of Revenue may be suspended if:
4.5.1 Pentangle suspects that the Customer is in breach of any of the terms of the Agreement;
4.5.2 Pentangle suspects that the Customer has increased its entitlement to Revenue by fraudulent or improper means; or
4.5.3 Pentangle has not received the corresponding payment from the Operator.
4.6 Pentangle shall be entitled to set off any charges due to Pentangle against the Revenue due to the Customer.
4.7 The Customer may allow a third party to use a Premium Rate Number as part of a managed bureau service provided by the Customer in connection with the provision of Premium Rate Services, in which case the Customer shall procure the third party’s compliance with the terms of the Agreement and all relevant legislation, regulations, guidelines and codes of practice and indemnify Pentangle for any claims, of whatever nature, made in connection or as a consequence of the third party’s default.
5.1 The Telephony Fee shall be [£XXXXX] based on [XXXXX].
5.2 The Telephony Fee shall be invoiced by Pentangle on a weekly or monthly basis as notified to the Customer..
5.3 Certain additional services (including, but not limited to divert to mobile or international) have additional costs which are outside the control of Pentangle. Where any such charges are increased to Pentangle it shall immediately advise the Customer and shall be entitled to increase its own charges for the same services by the same proportion.
5.4 Additional charges may also be imposed where a Customer requests:
5.4.1 Change or target destination number;
5.4.2 Change of Operator for any Telephone Number;
5.4.3 Change of service provider upon termination of the Agreement in respect of any Telephone Number; and
5.4.4 Reconnection in the event that the Service is suspended. Such reconnection fee to be limited to £50.
5.5 In the event that the Customer does not pay the Telephony Fees when they are due then Telephone Numbers will automatically be suspended until the Telephony Fees are paid in full.
SCHEDULE 3 – INTERNET SERVICES
In this Schedule 2 the following terms shall have the following meanings:
Contention Ratio means the fraction the maximum currently available line speed, which shall be notified to the Customer by Pentangle.
Internet Services means those services provided by Pentangle to the Customer including ADSL, SDSLand Leased Line as specified in the Order Form.
Leased Line Service means a leased line service as described in the Customer Order Form
Maximum Data Transfer means the maximum monthly data transfer allowance which shall be the aggregate of data uploaded and data downloaded.
2. Pentangle Obligations
2.1 Pentangle shall, using all reasonable care and skill, provide the Internet Services in accordance with the terms contained in this Agreement during the Term.
2.2 Pentangle shall provide the Customer with at least the Contention Ratio.
2.3 Pentangle shall provide a helpdesk to provide reasonable web support on problems experienced by the Customer in relation to the Internet Service. Requests for advice and assistance can be submitted to http://support.Pentangle.com.
2.4 Pentangle’s telephone support hours in respect of the Internet Services are 9am to 5pm Monday to Friday excluding public holidays in England and Pentangle will endeavour to respond to any reports logged within one hour of receipt of such a report.
2.5 Without prejudice to any of its other rights, Pentangle shall be entitled to disable the Internet Services or any part of them immediately and without notice or to take such action as it may, in its discretion, deem appropriate to ensure that any material which Pentangle, in its reasonable opinion, considers to offend the principles set out in paragraph 3.1 or 3.2 (and whether or not the end user was aware of the content of the material or of the relevant law) is not capable of being transmitted or down-loaded. Pentangle shall inform the Customer of any such action and the reasons for the same
3. Customer Responsibilities
3.1 The Customer shall not exceed the Maximum Data Transfer. In the event that the Maximum Data Transfer is exceeded Pentangle reserves the right to charge the Customer the sum of [£XXXX] per excess GB transferred or the parties may reach an agreement to upgrade the Maximum Data Transfer at an additional cost.
3.2 Customer shall use reasonable endeavours to ensure that nothing is transmitted by or on its behalf or using the Customer’s equipment through the Service or downloaded in violation of any UK or international law, regulation, treaty or the Acceptable Use Policy or in breach of the intellectual property or other legal rights of any person.
3.3 The Customer’s average usage should not exceed the Contention Ratio . In the event that the agreed Contention Ration proves to be insufficient for the Customer’s purposes then the Customer and Pentangle may agree to revise the Contention Ratio and the relevant Internet Services Fees.
3.4 The Customer shall not knowingly use the Internet Service for transmission of computer viruses, or any material which is defamatory, offensive or abusive or of an obscene or menacing character, or which may cause annoyance, inconvenience or needless anxiety, or for the posting of any such material to bulletin boards or newsgroups in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to intellectual property rights).
3.5 The Customer shall fully and effectually indemnify Pentangle from and against all loss, liability, damages, costs and expenses which Pentangle may incur in relation to any breach by the Customer of its obligations under paragraph 3.1
3.6 The Customer acknowledges that, by the nature of the services being provided, information and material downloaded or used by the Customer will be kept, whether permanently or temporarily, on Pentangle’s equipment. The Customer shall at all times ensure that such information and material complies with the laws of all applicable jurisdictions and shall keep Pentangle fully and effectively indemnified from and against all costs, claims, liabilities and demands relating to or arising from:
3.6.1 any breach by the Customer of paragraph 3.3; or
3.6.2 any criminal or civil legal action brought against Pentangle as a result of Pentangle’s storage of such information or material.
3.7 The right to use the Internet Service is limited to the Customer and those members of its staff and others engaged by the Customer to perform work for the Customer.
3.8 The Customer shall abide by Pentangle’s prior agreed recommendations and specifications regarding the existence, configuration and maintenance of equipment used by the Customer (if any), the software used by the Customer and cabling required to integrate the Customer’s host or local area network (LAN) into Pentangle’s wide area network (WAN). The Customer’s equipment must comply with the relevant portions of such recommendations and specifications. Such recommendations and specifications, if any, are given solely for the protection of Pentangle’s equipment and not the Customer’s and the Customer may not therefore rely upon such recommendations and specifications in the design, maintenance or service of the Customer’s equipment or system.
3.9 The Customer agrees that from the Start Date, it will have available all necessary equipment, for which it is solely responsible, to allow effective installation and continuation of the Internet Service.
3.10 It is the sole responsibility of the Customer to provide security with respect to the Customer’s facilities or the facilities of others.
3.11 The Customer shall be solely responsible for maintaining user access security and network access.
3.12 The Customer shall be responsible for any Pentangle equipment located at its premises and will only use the Pentangle equipment and any associated software in accordance with any instructions and/or software license provided from time to time. The Customer may not add to, modify or in any way interfere with the Pentangle equipment and Pentangle will not be liable for any repairs of the Pentangle equipment other than those arising as a result of its normal and proper use. The Customer will insure any Pentangle equipment located on its premises from all risks equal to the full replacement value of the equipment.
3.13 The Customer is responsible for ensuring that its systems are appropriately resilient in the context of its business activities.
4.1 The Customer acknowledges that Pentangle has no direct control over the availability of bandwidth over the entirety of the internet and that while it will use such endeavours as Pentangle, in its absolute discretion, deems appropriate to facilitate the Internet Service at all times, Pentangle shall not be responsible for delays caused by overuse or lack of such bandwidth.
4.2 Pentangle has no control over the availability of domain names and accepts no responsibility for the availability of any domain name.
4.3 While Pentangle backs up its server computers as a regular part of its internal systems administration, Pentangle does not guarantee any storage or backup of Customer data.
4.4 Pentangle shall in no circumstances (whether before or after termination of this Agreement) be liable to the Customer for any loss of or corruption to data or programs held or used by or on behalf of the Customer and the Customer shall at all times keep adequate back up copies of the data and programs held or used by or on behalf of the Customer.
4.5 Where any Internet Service includes a “burstable” element, the provision of the Internet Service beyond the “bursted” bandwidth is subject to Pentangle having spare bandwidth available. All Internet Services are subject to any “maximum traffic per service” limits shown on Pentangle’s website from time to time.
4.6 The Customer acknowledges that the Pentangle network has not been designed for use in circumstances where its failure could cause pure economic loss, loss of profit, loss of business or like loss.
4.7 Pentangle is unable to exercise control over the content of any information passing over the network and Pentangle does not monitor or exercise any editorial control over the information passing over the network. The Customer acknowledges that Pentangle excludes all liability in respect of any transmission or reception of information of whatever kind, or the accuracy of the contents thereof, or the scrambling of any information or data.
4.8 If the Customer uses the Pentangle network to access other networks world-wide it shall conform to any acceptable use policies of such other networks. In addition the Customer shall conform to any published internet protocols and standards. In the event that communications by Customer do not conform to these standards, or if the Customer makes inappropriate use other than in accordance with this Agreement of the network to the detriment of Pentangle or its customers, Pentangle reserves the right to restrict passage of the Customer communications until the Customer complies with such standards or protocol or provides undertakings acceptable to Pentangle in respect of the Customer’s future use. In the event that the end user is in breach of any provision of this schedule, Pentangle shall be entitled to suspend services forthwith without notice.
5.1 If the Customer receives a Leased Line Service, it can apply for Service Credits for disruptions or failures as follows:
5.1.1 one Service Credit for each hour that the Leased Line Service is unavailable, after the first hour.
5.1.2 Each Service Credit is worth the equivalent of one day’s fee for the relevant Leased Line Service
5.1.3 Service Credits will be credited by Pentangle against future invoices, up to a maximum of 20 Service Credits in any twelve month period
5.2 Service Credits shall not be available for disruptions or failures:
5.2.1 of an hour or less;
5.2.2 resulting from network maintenance;
5.2.3 resulting from circuits provided by telcos or common carriers;
5.2.4 resulting from any external internet service provider or an internet exchange point
5.2.5 resulting from acts or omissions of Customer or an unauthorised user;
5.2.6 resulting from behaviour of Customer equipment, facilities or applications; or
5.2.7 resulting from Events of Force Majeure.
5.3 Service Credits shall be the sole remedy available to the Customer for service disruptions or failures.
6.1 From time to time Pentangle may upgrade its network infrastructure. This may require the Customer to upgrade some of its equipment if the Internet Service is to be continued.
6.2 The Customer agrees to make, within thirty (30) days, such reasonable upgrades to its hardware or software as Pentangle’s technical staff may from time to time reasonably specify by written notice to the Customer.
6.3 Pentangle shall not be responsible for degradation of or disruption to the Internet Service if the Customer does not make the required upgrade.
The Internet Services Fee shall be [£XXXXX] based on [XXXXX] payable quarterly in advance in four equal instalments on the usual quarter days.
SCHEDULE 4 – ONLINE BACKUP
In this Schedule 3 the following terms shall have the following meanings:
Data means the digital information provided by the Customer to Pentangle to be stored and backed up by Pentangle.
Data Controller has the meaning given to it in the Data Protection Act 1998.
Data Processor has the meaning given to it in the Data Protection Act 1998.
Software means the software used by Pentangle to back up the Data, as amended and updated from time to time.
Recovery Testing means the testing performed by Pentangle during the Term to test the back up systems.
2. Pentangle’s Obligations
2.1 Pentangle shall use all reasonable endeavours to provide online data backup and storage using software that Pentangle supplies and the Customer installs on its computers.
2.2 Pentangle may provide the Customer with a username, password, encryption key or all of the above but shall not keep a record of this on file.
2.3 Pentangle shall use reasonable skill and care in performing the Online Backup Services.
2.4 Pentangle may suspend the Online Backup Services in the event of a breach of this Agreement by the Customer. During any such suspension Fees shall continue to accrue. If Pentangle revokes a suspension, it does not guarantee the retention or integrity of any Data stored pursuant to the Agreement while such suspension is in place.
2.5 Pentangle shall carry out the Recovery Testing at the intervals specified in the Customer’s Order Form, or as otherwise agreed between the parties from time to time.
3. Customer Obligations
3.1 The Customer shall ensure that any username, password or encryption key provided by Pentangle is kept safe and secure. Loss of any such password or encryption key will result in irretrievable loss of Data.
3.2 The Customer shall be responsible for providing its own internet access facilities through Pentangle or another ISP or telecommunications provider. The cost of this will be the responsibility of the Customer.
3.3 The Customer shall not use the Online Backup Services to store any data which is obscene, illegal, defamatory or which breach the rights of any third party and to fully and effectively indemnify Pentangle against any cost, claim or expense arising from any breach or suspected breach of this obligation.
3.4 The Customer acknowledges and confirms that it owns and is permitted to transmit to Pentangle all Data without breach of any law, agreement, arrangement or duty or the rights of any third party.
3.5 The Customer acknowledges that Pentangle has no access to the content of Data transmitted to it as all Data is encrypted prior to transmission using an algorithm which Pentangle has no practical means of reversing.
3.6 The Customer shall not transfer to Pentangle in whatever form (including but not limited to written or spoken) and for whatever reason any encryption key, decryption key, password or other access token except to the extent that it is itself encrypted as part of the Data in a way which prevents Pentangle from accessing it. The Customer undertakes to use the Services only for itself and not for any third party and not to resell or attempt to resell them.
3.7 The Customer shall use the Online Backup Services solely through use of the Software as supplied by Pentangle and unmodified and acknowledges that any other use is unauthorised and may amount to an offence under the Computer Misuse Act.
3.8 The Customer shall be responsible for downloading the Software from the Pentangle’s servers and installing it onto its equipment.
3.9 The Customer shall update the Software promptly (and in any event within 21 days) on notification by Pentangle that subsequent versions have been released.
4.1 The Online Backup Fees shall be £500 (plus VAT) for each instance of Recovery Testing provided by Pentangle.
4.2 The Online Backup Fees shall be invoiced to the Customer on the basis agreed between the parties and shall be payable in accordance with the terms of the Agreement.
5 Data Protection
5.1 Pentangle stores the Data within the United Kingdom, but is not a Data Controller in relation to such Data as it has no access to nor ability to process such Data other than the storage and retrieval of encrypted Data pursuant to the Customer’s instructions.
5.2 The Customer acknowledges that as holder of the decryption keys associated with the Data the security of the Data is entirely within its control. Pentangle shall use all reasonable endeavours to prevent unauthorised access to the Data and the Customer acknowledges and confirms that this satisfies the requirements of the seventh Data Protection Principle (security).
6.1 Pentangle accepts no liability for any failure in the Online Backup Services where:
6.1.1 The Customer attempts to access the Online Backup Services with a version of the Software which is not current;
6.1.2 the Software fails owing to:
a) the Customer’s failure to follow Pentangle’s reasonable instructions correctly;
b) failure of the Software to interoperate with other software (including firmware); or
c) hardware malfunctions
6.1.3 there is any corruption or failure of encryption or decryption key caused other than by Pentangle;
6.1.4 the loss or corruption of any password or other identification token caused other than by Pentangle;
6.1.5 loss of or corruption of Data caused while the Data is in transit to or from the Pentangle storage facility;
6.1.6 the Customer is are frozen out of access to the Online Backup Services owing to a denial of service attack; or
6.1.7 as a result of any other Event of Force Majeure.
6.2 Pentangle’s maximum liability to the Customer for any loss or damage whatsoever arising out of or in connection with this Agreement or the supply of Online Backup Services whether arising in contract, tort (including negligence and breach of statutory duty) or otherwise shall be limited to £1.00 per gigabyte affected.
6.3 Subject paragraph 6.2 and 6.3, Pentangle’s total aggregate liability to the Customer in connection with the Online Backup Services in any one calendar year shall not exceed 125% of the amount received by Pentangle (excluding VAT) from the Customer in respect of the Online Backup Services in such calendar year.
6.4 Nothing in this paragraph 6 excludes or limits liability for death or personal injury caused by Pentangle’s negligence or for fraud or for anything which may not be properly excluded by law.
SCHEDULE 5 – THIRD PARTY SERVICES
1 Pentangle Obligations
1.1 Subject to paragraph 1.2 below, Pentangle shall use reasonable commercial endeavours to provide the Third Party Services to the Customer in accordance with the specification agreed between the parties in all material respects.
1.2 The Customer acknowledges that the Third Party Services are provided by a third party (“Wholesaler”) and that the actions of the Wholesaler are outside the control of Pentangle. To the best of Pentangle’s knowledge, the Wholesaler is capable of providing the services to be resold under this Agreement as Third Party Services and should the Wholesaler fail to do so, Pentangle will take reasonable and proportionate steps to require the Wholesaler to do so (not including the institution of court action), but Pentangle is not otherwise liable for the Wholesaler’s failure to perform.
1.3 Pentangle shall use reasonable commercial endeavours to meet any performance dates for the Third Party Services specified, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Third Party Services.
2 Customer Responsibilities2.1 The Customer shall:
2.1.1 co-operate with and assist Pentangle in all matters relating to the Third Party Services and comply with its reasonable instructions and those of the Wholesaler in relation to the Third Party Services;
2.1.2 provide Pentangle, its employees, agents, consultants, subcontractors and the Wholesaler, with access to the Customer’s premises, office accommodation and other facilities as reasonably required to provide the Third Party Services;
2.1.3 Provide Pentangle with such information and materials as it may reasonably require to supply the Third Party Services, and ensure that such information is accurate in all material respects;
2.1.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Third Party Services before the date on which the Third Party Services are to start;
2.1.5 keep and maintain any materials or equipment belonging to Pentangle or the Wholesaler at the Customer’s premises in safe custody at its own risk, maintain such materials and equipment in good condition until returned to Pentangle or the Wholesaler, and not dispose of or use such materials and equipment other than in accordance with Pentangle or the Wholesaler’s written instructions or authorisation;
2.1.6 report any problems with the Third Party Services to Pentangle immediately upon discovery of such issue;
2.1.7 the Customer acknowledges and agrees that the Third Party Services are, unless otherwise agreed between the parties, provided “as is” and that it is the Customer’s responsibility to ensure that the Third Party Services and their components are appropriate for its requirements;2.1.8 The Customer shall comply with certain terms and policies notified to it from time to time by Pentangle which the Wholesaler requires Pentangle to pass on to the Customer.
3.1 The Fees for the Third Party Services shall be the sum set out in Pentangle’s current price list at the time the Order Form is place or as otherwise agreed between the parties.
3.2 Pentangle reserves the right to increase the Fee at any time on giving reasonable notice to the Customer in the event that the Wholesaler increases the price charged to Pentangle for the Third Party Services.
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