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Sarah Wilson UKFast | Account Manager
5CLIENT OBLIGATIONS
5.1Unless otherwise specified in the First Schedule the Client shall be responsible for all connections from the Client Equipment to the Communications Equipment.
5.2Whilst accessing the Facility and/or any other premises utilised by UKFAST, the Client shall procure that all its employees, agents and/or servants observe all instructions given by any person in authority and comply in all respects with such rules and regulations as are from time to time in force, including all health and safety requirements.
5.3UKFAST shall use its reasonable endeavours to keep the Client Equipment safe and secure during the Duration whilst it is located at the Facility. However, the Client stores the Client Equipment at the Facility at its own risk.
5.4 UKFAST shall not under any circumstances, save for its wilful negligence, be liable for:
5.4.1the loss or breakdown of and/or any damage to the Client Equipment;
5.4.2the loss, misuse or unauthorised accessing of any software, information, data or other content stored on the Client Equipment.
5.5The Client shall be entirely responsible for and shall reimburse and indemnify UKFAST and all affected parties in respect of any damage, accidental or otherwise caused by the Client, its employees, agents and representatives while on the Facility, including any damage to the Facility and/or the equipment stored thereon..
5.6The Client shall not, and shall not attempt to, access, interfere with and/or otherwise use, any hardware, software, equipment, communications systems, information technology systems and/or data stored at the Facility and/or used by and/or otherwise in the possession or control of UKFAST unless authorised to do so under this Agreement.
5.7The Client shall insure the Client Equipment in respect of all direct and indirect costs, losses, liabilities and damage suffered or incurred by the Client in respect of any damage to and/or breakdown and/or loss of the Client Equipment howsoever arising.
5.8The Client shall procure that at all times whilst stored at the Facility the Client Equipment is kept in good condition and repair. UKFAST reserves the right at the cost and risk of the Client to remove from the Facility and to store at alternative premises any Client Equipment which UKFAST reasonably considers is not in suitable condition or repair and/or is likely to be a fire hazard.
5.9The Client shall ensure that its use of the Services shall not cause the reputation of UKFAST and/or its Related Companies to be brought into disrepute.
5.10The Client shall co-operate with UKFAST in respect of and comply with UKFAST's security arrangements for the Facility, the Client Equipment and all other equipment in the possession or control of UKFAST.
5.11The Client shall indemnify UKFAST against all losses, damages, costs (including management and similar costs), expenses and all other expenditure or loss of opportunity or revenue whatsoever incurred or suffered by UKFAST as a result of the Client's or its agents, employees or sub-contractors breach of any of the Client's obligations in this Agreement.
6CONFIDENTIALITY
6.1Each party shall keep confidential all information (whether in writing or any other form) which has been disclosed to it pursuant to this Agreement by or on behalf of the other party in confidence or which by its nature ought to be regarded as confidential. Each party shall use all reasonable efforts to ensure that its officers, employees and representatives keep the information confidential. The Client acknowledges and agrees that, save due to UKFAST's wilful negligence, UKFAST is not responsible for any misuse of confidential information stored on the Client Equipment.
6.2The Client agrees that the terms of this Agreement and the identity of other customers of UKFAST are the confidential information of UKFAST and the Client shall not disclose the same to any third party unless or until the Client has obtained the prior written authorisation of UKFAST.
6.3 Clause 6.1 does not apply to information:
6.3.1which after the Agreement Date is published or becomes otherwise generally available to the public (except as a result of a breach of any provision of this Agreement by the other party);
6.3.2made available to the recipient party by a third party who is entitled to divulge the information without any obligation of confidentiality;
6.3.3which has been independently developed by the recipient party;
6.3.4which the recipient party can prove was already known to it before its receipt from the disclosing party;
6.3.5to the extent required to be disclosed by any applicable law or by any recognised stock exchange or governmental or other regulatory or supervisory body or authority of competent jurisdiction.
7WARRANTIES
7.1Each party warrants that it has all authority to enter into this Agreement.
7.2UKFAST warrants that it will carry out the Services with reasonable care and skill.
7.3 The Client warrants that:
7.3.1it owns the Client Equipment and/or the Client Equipment is lawfully in its possession;
7.3.2it shall at all times maintain the Client Equipment in good condition and state of repair;
7.3.3the Client Equipment shall not cause a fire hazard in the Facility.
7.4Both parties agree that the warranties set out in this clause 7 are in lieu of and exclude to the fullest extent permitted by law all other terms, conditions or warranties implied by statute, law or otherwise in respect of the supply of the Services (including as to the merchantability, satisfactory quality of and/or fitness for any particular purpose of the Services).
8LIMITATION OF LIABILITY
8.1The following provisions set out UKFAST's entire liability (including any liability for the acts and omissions of its employees, agents and/or sub?contractors) to the Client in respect of any breach of UKFAST's obligations arising under this Agreement and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
8.2Nothing in this Agreement shall purport to exclude or restrict UKFAST's liability for death or personal injury resulting from UKFAST' negligence or for fraudulent misrepresentation.
8.3 Should UKFAST be in breach of its obligations in respect of the supply of the Services, UKFAST shall be entitled (at its absolute discretion) either to:
8.3.1take such repeat or remedial steps as UKFAST considers reasonably necessary at its own expense to ensure that the Services are carried out (save as to time of performance) in accordance with the terms of the Agreement; or
8.3.2where the breach of its obligations is a breach of a Service Level, make payment of the applicable Service Credit in respect of such breach as provided for in the Third Schedule,
which shall, in either event, be the Client's sole remedy in respect of such non-performance.
8.4 Subject and without prejudice to the terms of this clause 8, UKFAST's total aggregate liability to the Client in a Contract Year in respect of all:
8.4.1all loss of and/or damage to Client Equipment shall in no event exceed £5,000; and
8.4.2claims, losses or damages, whether arising from tort (including negligence), breach of contract or otherwise under or in connection with this Agreement other than in respect of loss of and/or damage to Client Equipment, shall in no event exceed the Contract Price paid by the Client to UKFAST in that Contract Year in respect of the provision of Services during that Contract Year.
8.5The Client will in no circumstances make any claim against any member, employee or agent of UKFAST in respect of anything done or omitted to be done in respect of or in relation to any Services.
8.6 Neither party shall be liable to the other party for:
8.6.1any indirect, special or consequential loss or damage; and/or
8.6.2any loss of profits (whether direct or indirect), business opportunities or revenue.
8.7 UKFAST shall not be liable to the Client in respect of any losses, liabilities, damages, costs (including legal fees) or expenses suffered or incurred by the Client, its Related Companies and/or any other person due to the following save where the same occurs due to the wilful negligence of UKFAST:
8.7.1any loss or breakdown of, or damage to, the Client Equipment;
8.7.2any the loss, misuse or unauthorised accessing of any software, information, data or other content stored on the Client Equipment;
8.7.3the installation and/or use of the Communications Equipment in connection with the Client Equipment, save where such installation and/or use is supplied by UKFAST as part of the Services, in which circumstances such supply shall be governed by the terms of this Agreement;
8.7.4UKFAST's compliance with the directions of a court of competent jurisdiction.
8.8Employees or agents of UKFAST are not authorised to make any representations concerning the Services unless confirmed by UKFAST in writing In entering into the Agreement the Client acknowledges that it does not rely on and waives any claim for breach of, any such representations which are not so confirmed.
8.9Nothing in this Agreement shall be taken as in any way reducing or affecting a general duty to mitigate loss suffered by a party.
9TERMINATION
9.1Without prejudice to any rights that have accrued under this Agreement or any of its other rights or remedies, either party may terminate this Agreement with immediate effect without liability to the other arising from such termination by giving written notice to the other party if:
9.1.1the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment; or
9.1.2subject to clause 8.3, the other party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so or, if the defaulting party is UKFAST, fails to pay the appropriate Service Credit in respect thereof; or
9.1.3the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
9.1.4the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party); or
9.1.5a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party); or
9.1.6an application is made to court, or an order is made, for the appointment of an administrator in respect of the other party or if a notice of intention to appoint an administrator in respect of the other party is given or if an administrator is appointed over the other party; or
9.1.7a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
9.1.8any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 9.1.3 to 9.1.7(inclusive); or
9.1.9the other party, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.2Termination of this Agreement shall not affect any rights, remedies or obligations of the parties that have accrued or become due prior to termination.
9.3Without prejudice to its rights under this clause 9, UKFAST may suspend the whole or any Services if any of the events referred to in clauses 9.1.1 to 9.1.9 inclusive occur in respect of the Client.
9.4 On termination of this Agreement for whatsoever reason:
9.4.1UKFAST shall be entitled to cease immediately the provision of the Services;
9.4.2UKFAST shall be entitled to serve notice on the Client to remove the Client Equipment from the Facility during such times as are specified by UKFAST and shall grant the authorised representatives of the Client access to remove the Client Equipment at such times. The Client shall use, or shall procure that its authorised representatives use, all due care in the removal of the Client Equipment from the Facility and shall make prompt payment to UKFAST in respect of all and any damage that is suffered to the Facility in the removal of the Client Equipment. Should the Client fail to remove the Client Equipment from the Facility during the times specified by UKFAST and/or within seven (7) days of notice to do so from UKFAST, UKFAST shall be entitled (in its sole discretion) to remove the Client Equipment from the Facility at the cost, expense and risk of the Client and move the Client Equipment to an alternative storage facility of UKFAST's choice;
9.4.3the Client shall not be entitled to any refund of any of the Contract Price regardless of whether such Contract Price has been paid in advance.
9.5Clauses 2.4, 3.9 to 3.13 inclusive, 5.2 to 5.6 inclusive, 5.11, 6, 8, 9, 11, 18 and 19 shall survive termination of this Agreement and continue in full force and effect.
10SAFETY
10.1No employee, officer, sub-contractor or agent of UKFAST shall be required to undertake Services which involve risk of personal injury or illness or to breach Health and Safety at Work Regulations and the Client shall take all reasonable care to ensure that where Services are required to be carried on outside UKFAST's premises the conditions of work are safe.
11WAIVERS AND SEVERANCE
11.1No omission or delay by UKFAST in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of such right, power or privilege preclude any other or further exercise thereof of any other right power or privilege. The rights and remedies herein provided are cumulative with and not exclusive of any rights or remedies provided by the law
11.2If at any time one or more of the conditions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law the validity and enforceability of the remaining conditions hereof shall not in any way be affected or impaired thereby
12ENTIRE AGREEMENT
12.1This Agreement and the Schedules thereto and all Purchase Orders constitute the entire agreement between the parties in relation to the subject matter of the Agreement and shall supersede all previous communications, representations, agreements and/or understandings either oral or written between the parties with respect to its subject matter.
12.2Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. Each party agrees and undertakes to the other party that the only rights and remedies available to it arising out of or in connection with this Agreement and/or its subject-matter shall be for breach of contract.
12.3Unless the parties agree otherwise, should there be any conflict between the provisions of this Agreement and any provision set out in any of the Schedules, the provisions of this Agreement shall prevail.
13VARIATION
13.1No agreement or understanding varying or amending this Agreement shall be binding upon either party unless set forth in a written instrument specifically referring to this Agreement and signed by a duly authorised officer of each of the parties.
14STATUS OF PARTIES
14.1This Agreement relates to the supply of services only. Nothing in this Agreement shall create or shall be construed to create any tenancy or lease between the parties hereto neither shall one of the parties be regarded as a tenant or lessee of the other. Nothing in this Agreement prevents or restricts or shall be construed as preventing or restricting in any way UKFAST's rights of access to the area housing the Client Equipment.
14.2This Agreement does not create nor shall it be construed to create a partnership or agency between the parties.
14.3Unless otherwise agreed by the parties in writing, a person who is not a party to this Agreement shall have no right to enforce any term under the Agreement, whether under the Contract (Rights of Third Parties) Act 1999 or otherwise.
15ASSIGNMENT
15.1The benefits and obligations of the Client under this Agreement are personal to the Client and, subject to clause 15.2, the Client will not assign, charge, delegate, sub-license or transfer all or any part of the Client's benefits or obligations under this Agreement without the prior written consent of UKFAST.
15.2The Client shall be entitled to assign, charge, delegate, sub-license and/or transfer all or any part of the benefits and obligations under this Agreement to a Related Company provided that it gives prior written notice of the same to UKFAST.
15.3UKFAST shall at all times be entitled to assign, charge, delegate, sub-license, sub-contract and/ or transfer all or any of its obligations and/or benefits under the Agreement to third parties of its choice.
16FORCE MAJEURE
16.1Neither party shall be liable to the other party or be deemed to be in breach of the Agreement by reason of any delay in performing or failure to perform any of its obligations in relation to the Services if such failure or delay was beyond that party's reasonable control (being a "Force Majeure Event"). Without prejudice to the generality of the foregoing the following shall be regarded as Force Majeure Events:
16.1.1act of God, explosion, flood, tempest, fire, or accident;
16.1.2war or threat of war, sabotage, insurrection, civil disturbances or requisition
16.1.3statute, acts, requisitions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental parliamentary or local authority
16.1.4strikes or other industrial actions or trade disputes (whether involving employees of either the Client or UKFAST or of a third party).
16.2If at any time UKFAST claims a Force Majeure Event in respect of its obligations under this Agreement with regard to the provision of the Services or any of them, UKFast shall be entitled to obtain from any other person the provision of such Services as UKFast is unable to provide.
16.3UKFAST shall not be liable for any interruption, disruption or unavailability in the provision of the Services caused by the acts or omissions of a third party.
17NOTICES
17.1All notices to be given under this Agreement must be in writing and shall specifically refer to this Agreement and shall be sufficiently given if delivered by hand or by sending the same postage prepaid by recorded first class post and addressed to the last known registered address or principal place of business of the addressee and marked for the attention of the Company Secretary. If delivered personally the notice shall be deemed to be given upon delivery and if posted shall be deemed to be given two days after posting.
17.2In the event that the registered office address of the Client is not in England then an address for service of notices in England must be provided on or before the Agreement Date.
18DISPUTE RESOLUTION
18.1In the event of any dispute or difference between the parties arising out of this Agreement, the parties shall use their reasonable endeavours to resolve the dispute or difference by means of this dispute resolution procedure. On a dispute or difference arising, the parties shall procure that those persons listed in the First Schedule, Part C as "Dispute Escalation 1" shall each use their reasonable endeavours to seek a resolution to such dispute. Should such persons be unable to resolve any dispute with twenty (20) days of a dispute being referred to them, each party shall immediately escalate the matter to those persons listed in the First Schedule, Part C as "Dispute Escalation 2" and shall procure that such persons use their reasonable endeavours to resolve the dispute within twenty (20) days of it being referred to them. If such persons cannot resolve the dispute in accordance with the provisions of this clause 18.1 within twenty (20) days of the dispute being referred to them, then any continuing dispute or difference between the parties may be referred by either party for resolution by mediation in accordance with the remaining provisions of this clause 18 using the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.
18.2To initiate the mediation, a party shall give notice in writing (ADR Request) to the other party requesting a mediation and shall send a copy of the notice to CEDR Solve. The parties shall agree on a mediator or, in default of such agreement within twenty days of receipt of the ADR Request, the mediator shall be appointed by CEDR. The mediation shall be heard in London and shall commence within thirty (30) days of the ADR Request, or such other period of time as the parties reasonably agree. The parties shall submit to the supervision of the mediation by the agreed mediator or CEDR for the exchange of relevant information and for setting the date for negotiations to begin.
18.3Unless otherwise agreed, recourse to mediation under this dispute resolution procedure shall be binding on the parties as to submission to the mediation but not as to its outcome. Accordingly all negotiations connected with the dispute shall be conducted in strict confidence and without prejudice to the rights of the parties in any future legal proceedings.
18.4If, with the assistance of the mediator, the parties reach a settlement, such settlement shall be reduced to writing and, once signed by a duly authorised representative of each of the parties, shall remain binding on the parties. The parties shall bear their own costs of this Dispute Resolution Procedure.
19GOVERNING LAW
19.1The Agreement shall be construed in accordance with the laws of England regardless of place of execution or place of performance and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts.