Broadband Services Contract - KCOM Business · 2018-10-31 · Our Broadband Services provides a broadband Internet access service using a standard BT telephone line, which You must

Part 1 CUSTOMER: ADDRESS:

DATE: OUR REF: ACCOUNT MANAGER:

Sites: For Sites covered by this Contract please refer to the Data Capture Form

Service Quantity Connection Charge

(per circuit) or Hardware Cost (per item) (per circuit)

KCOM ADSL with unlimited usage

KCOM fibre broadband (FTTC) with unlimited usage

KCOM fibre broadband (FTTP) with unlimited usage

Zyxel VMG1312 Wireless ADSL/ VDSL router

Zyxel VMG3925 Wireless ADSL/ VDSL/ FTTP router

NOTE: All Charges exclude VAT which will be added at the prevailing rate

CONTRACT PERIOD: PAYMENT DETAILS:

Commencement Date: Billing Period: In advance

Initial Term: months from Service Start Date Billing Method: Invoice

Proposed Start Date: Please refer to the Data Capture form Payment Date: Within 30 days of date of invoice

Notice Period: 30 days (applicable after Initial Term)

BILLING ADDRESS:

(If different from above)

THE CHARGES SET OUT IN THIS CONTRACT DO NOT CONSTITUTE AN OFFER AND MAY BE WITHDRAWN AT ANY TIME PRIOR TO ACCEPTANCE OF THE CONTRACT BY KCOM GROUP PLC

Annual Rental Charge

Broadband Services Contract

Broadband Services (Enterprise) Version 27 - 01/08/2018 Commercial in Confidence

Registered in England and Wales No. 2150618

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KCOM Group PLC Registered Office: 37 Carr Lane, Hull, HU1 3RE

Offer and Acceptance Part 2

We have issued this Contract to You, which includes a copy of Our Standard Terms and Conditions of

Service. By signing in the place indicated below You indicate Your willingness to offer to enter into this

Contract. This Contract will not come into force unless and until We have signed in the place indicated below.

You also consent to Our providing details of this Contract and the Services You receive under it to BT, but

only insofar as it is required for Us to provide the Services.

YOUR DETAILS:

REGISTERED COMPANY NAME

COMPANY REGISTRATION NUMBER

REGISTERED OFFICE

POSTCODE

YOUR OFFER TO ENTER INTO

THIS CONTRACT

(To be completed by You)

CONTRACT ACCEPTANCE BY

KCOM GROUP PLC

Signed Signed

Name Name

Position Position

Date Date

Please update any information in the ‘Your Details’ box which is incorrect or omitted.




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Service Standard Part 3

1. INTRODUCTION

1.1. Service Description

This Service description defines the levels of service You can expect from Us. Any changes, modifications, additions or deletions to this Service Standard will be made in accordance with Our Standard Terms and Conditions of Service.

Our Broadband Services provides a broadband Internet access service using a standard BT telephone line, which You must rent directly from BT. ADSL works by splitting the bandwidth over the telephone line into two, separating voice and data so that they both function independently. The Services are “always-on”, meaning that Your computer can be continuously connected to the Internet without incurring any additional charges.

All services are provided as “Wires Only” and a compatible DSL modem or router together with the necessary number of line filters must be provided to use the service. This equipment is not included as part of the DSL service and must be ordered separately, either as part of this contract, under separate KCOM contract or from another equipment supplier.

1.2. Broadband Services

We offer a range of Broadband Services providing high-speed1 access to the Internet with download speeds of up to 80Mbps and with upload speeds of up to 20Mbps as shown below. They are defined as follows:

Features ADSL Max ADSL2+ Fibre Broadband (FTTC)

Fibre Broadband (FTTP)

Download Speed Up to 8Mbps Up to 24Mbps Up to 80Mbps Up to 80Mbps

Upload Speed Up to 400Kbps Up to 1Mbps Up to 20Mbps Up to 20Mbps

Monthly Usage Unlimited

IP addressing Static/ Dynamic Static/ Dynamic

Static/ Dynamic Static/ Dynamic

All ADSL services are provided as ADSL2+ where this is available. If your local BT exchange has not been enabled for ADSL2+ your service will be provided as ADSL Max and the same charges shall apply.

1.3. General provisions for broadband services

A unique user name and password will be provided to You to allow access to this Service. Any new telephone outlets required to connect Your computer must be ordered separately from BT. For Broadband Services, You are responsible for providing any additional line filters necessary to connect all the telephone devices connected to the line. It is Your responsibility to ensure that any equipment connected to the line is fully compatible, approved and suitably configured for connection to BT’s DSL network. We cannot support any incidents reported to Us that are related to equipment connected to the DSL line and We reserve the right to make an additional charge at Our standard rates from time to time for each incident report where the problem is related to the Your equipment (unless this equipment has been supplied by Us).

Support for all Services is provided by Us directly to Your corporate IT or network help desk and not to individual Users. Any problems experienced by Users must be reported to Your technical help desk, who will determine the nature of the problem and report it to Us, if it directly relates to the Service.




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2. AVAILABILITY AND SERVICE RESTRICTIONS

The Service is only available to You if You are connected to a BT exchange which has been enabled for either ADSL, FTTC or FTTP depending on the required service. Please consult Your Account Manager for further information on service availability.

2.1. Service Restrictions related to Broadband services (except FTTP services)

We have a number of high speed Business Broadband services providing broadband download speeds of up to 80Mbps. These services have special characteristics compared to the fixed speed products and utilise rate adaption technology meaning that the service speed is not fixed, but will instead be dependent upon a number of conditions including:

• The distance of the customer from their local BT exchange

• The quality of the customers line

• The quality of the customers internal wiring & filters

• The number of other ADSL connections within the same cable to the exchange

• Any interference caused by electrical devices within the home or office

The service works by attempting to run the broadband line at the fastest possible speed available given the conditions described above. Therefore the connection speed available may vary depending upon these conditions.

Due to the contended nature of broadband services, the actual broadband service speed (as distinct from the line speed) You will experience will vary depending upon a number of factors including, contention within the (BT) broadband network, contention within the Broadband Network and due to performance issues within the Internet.

The impact of contention is that at periods of high network usage, the speed experienced by the customer will fall below the customer’s line rate. We offer services having a range of contention and so You can choose the Service provides the best match to Your business requirements.

During the first 10 days after which the service has been provided, the line will automatically adapt to the fastest rate that can be achieved. This will be rounded down to the nearest 500Kbps step. During the first 10 days the line rate may change whilst the service finds the correct speed “step” over which a service can be reliably provided. When this happens the line will re-synchronise and result in a short loss of connection. Depending on the Your equipment, it may be necessary for You to re-boot Your modem or router to allow it to re-synchronise to the new speed. By the end of the 10 days the Service should achieve a speed which You should continue to experience on an ongoing basis.

As a result You may experience an intermittent short loss of connection for the first 10 days after which they may have to power Your equipment on and off (worst case).

However, should You fail to connect any equipment for the first 10 days then the stable rate cannot be set and the service will continue to try to find the stable rate over a rolling 10 day period. This potential period of instability will therefore extend out beyond the initial 10 day period.

The nature of the Service is that this “stable” rate may change over a period of time including a reduction of speed. This could be a variety of reasons including changing line conditions and even the number of other broadband services within the telephone cable. This is not a fault however and is a characteristic of the service. If You experience a dramatic drop in speed then this may be due to a fault however. Please see the technical section for further information if required.

It is an inherent characteristic of the Service that it will function in a manner as described in this section and no compensation or price reduction is available should the service perform to a lesser manner than expected by You.

2.2. Data Capture Form

For ADSL and FTTC services You must provide in the Data Capture Form the BT telephone number of the line that is to be enabled for the Service. The following BT telephone lines cannot support a Broadband service:



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Subscriber private metering; 30k loop, Private Circuits; ISDN (all types); Home Highway or Business Highway; Red ABC; RedCare; FeatureNet 5000 services; meter pulse facility; PBX and AUX lines. Additionally, certain equipment connected to the telephone line, such as indirect access dialers, may interfere with the correct functioning of the Service and may have to be disconnected.

You must test all security alarm systems connected to the telephone line after any of the Services have been installed, to ensure that they have not been affected by such installation. Our Service may affect the performance of some other equipment at Your Site. Voice band modems used by fax machines and by personal computers may operate at a lower speed due to the connection of the Service.

For FTTP services, a telephone line is not provided nor required. The service provides broadband (data) only across a dedicated fibre circuit and does not support voice. You must purchase a telephone line separately, either from Us or another provider, if you wish to make landline calls.

2.3. Standard IP Addressing scheme and options

For all Services You may request up to 6 registered IP addresses for Your use on the LAN side of an ADSL router connected to the Service. Where dynamic addressing is chosen the Router provides NAT functions. You must complete a Réseaux IP Européens (RIPE) form before this Service can be provided. Should You require more than 6 addresses then (at Our discretion) a block of 14 IP addresses can be supplied, subject to the satisfactory completion of a RIPE form. You must specify in Part 1 if You would like this optional service. An additional monthly Charge may be levied.

3. INSTALLATION

For all Broadband services, all cabling required for the connection of Your computer equipment is Your responsibility.

3.1. ADSL and FTTC Service Activation

All ADSL and FTTC services are activated remotely and do not require an Engineer visit. You are responsible for ensuring the telephone line socket is available at the correct location and must contract separately with BT, should existing sockets require moving or additional sockets are required.

3.2. FTTP Service Activation

For FTTP services, an Engineer will visit Your site to install a new Optical Network Termination device (ONT). You will need to be at the premises for this visit and you can request the date for this, subject to availability of engineers. In addition, BT will visit the premises 7 days prior to this to complete a survey and install some equipment outside the premises. You do not need to be present for this, however the engineer will ring you on the day of this visit and you must be available to take their call. Failure to take the call or be present for the second appointment may result in additional engineering charges and will result in a delay to the installation of your service.

3.3. Configuration Settings

Standard broadband configuration settings are as follows:

3.3.1. User Name and Password

These are unique to each individual line and We will advise to You separately.

3.3.2. IP address

Dynamically or Statically Assigned (as requested in Customer Requirement Form)

3.3.3. ADSL Settings

VPI=0 VCI=38

RFC2364 PPPoATM VC - Null Encapsulation

Multimode

AutoModulation



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3.3.4. FTTC/ FTTP settings

Use PPPoE encasulation

3.3.5. DNS Settings

Normally dynamically assigned but if You do need to manually assign use 212.104.130.9 and 212.104.130.65

4. INCIDENT MANAGEMENT

4.1. Incident Management

Problems relating to Your Broadband DSL Service should be reported to the Service Desk. In the event that You become aware of any failure in the operation of the Services. You must notify Us immediately by contacting the Service Desk.

Failures can be reported to Us, 24 hours a day, throughout the year.

The contact telephone number is: 0800 138 4858

Once it has been established that a problem exists, We shall use Our reasonable endeavor’s to remedy such incidents.

Please ensure when contacting the Service Desk You have the following relevant details to hand.

1. Organisation name & address.

2. Details of the Services provided to You by Us.

3. Site Address, contact name and details and access details for site affected.

4. Any customer reference numbers given to You.

5. The nature of the incident.

6. The telephone number of the line over which the ADSL Service is accessed.

4.2. Incident Reporting Procedure is as follows:

4.2.1. The details of the incident will be taken as above and We will issue You with an incident reference number (IRN).

4.2.2. The Service Desk will pass incident details to the Network Management Centre for diagnosis. The Network Management Centre may call You for more information if necessary.

4.2.3. When the problem is diagnosed We will use Our reasonable endeavours to fix it without disturbing You, but if necessary We will dispatch an engineer to the Site after arranging a convenient appointment with You.

4.2.4. When the incident has been resolved the Service Desk will confirm to you that the Service has been restored.

4.3. Time to repair commitment

Our Time To Repair (TTR) obligation for the Services is 48 hours. If We fail to resolve the incident within 48 hours, You have the right to claim a service credit of 20% of monthly rental charge (If You pay quarterly, the service credit will be 20% of one third of the quarterly rental charge or if You pay annually, 20% of one twelfth of the annual rental charge). The maximum service credit payable is limited to 20% of the total monthly rental charges for the relevant calendar month. You can only make a single claim for service credits in respect of each particular failure.

Service Credit Procedure

All claims for service credits must be submitted to the Service Desk or in writing within 30 days from the end of the Service Measurement Period

Service Credits and Payment of Claims

The issue of a service credit applied to Your billing account will settle all valid claims. This can be used to offset Charges on future bills. If at any time an account enters into credit, You may request



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payment by cheque to reduce the account balance to zero. When the balance on the account is in debit, a cheque cannot be requested.

4.4. Restrictions

The TTR period shall begin once You notify Us of the incident. You can notify Us of an incident between 08:00 – 20:00 Monday to Friday and 09:00 – 17:30 on Saturdays (excluding bank holidays). Where You notify Us of an incident outside of these times the TTR will commence at the start of the next Working Day.

The TTR period shall cease upon notice to You by Us of resolution of the incident. We will record the duration of the TTR period in order to be able to comply with Our obligations under paragraph 4.3.

If You require an update on the status of the incident, You should contact the Service Desk on 0800 138 4858.

4.5. Incident Report Closure

We will close any incident being progressed under Our normal working procedures. Formal discussion between both parties will take place after the incident has been cleared and service restoration agreed.

The Service may be restored without necessarily resolving the original incident condition, e.g. by reconfiguration.

The following information is to be verbally agreed and recorded by KCOM on their respective incident logging system when closing incidents; written confirmation is available if required:

• Names/contact numbers of both representatives at closure

• Service restoration time

• Incident resolution time

• Time lost due to site access problems

Incident resolution/service restoration actions taken

5. ASDL MAINTENANCE SERVICE

It will be necessary to periodically carry out planned Service upgrades and maintenance works on the BT or KCOM Network, which may cause an outage of the Service. In normal circumstances, We will give You 5 Working Days’ notice of any such planned works. However, in emergency conditions it may be necessary to carry out this work without prior notice.

6. DEFINITIONS

The following words/acronyms shall have the following meanings for the purposes of this Contract:

“ADSL” Asymmetrical Digital Subscriber Line;

“FTTC” Fibre To The Cabinet’;

“FTTP” Fibre To The Premise

“Downstream” the transmission of data from Our network to a User;

“IP” Internet protocol;

“Kbps” Kilobits per second;

“Mbps” Megabits per second;

“LAN” local area network;

“Upstream” means the transmission of data from a User to Our network.



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Standard Terms and Conditions for the Provision of Broadband Services Part 4 1 Term 1.1 This Contract will come into effect on the

Commencement Date and continue until the expiry of all of the Unit Agreements.

1.2 Each Unit Agreement will commence on its Service Start Date and continue for its Initial Term. Following the expiry of its Initial Term each Unit Agreement will continue unless and until terminated by either party giving the other no less than 30 days prior written notice, such notice to expire on or after the expiry of the Initial Term.

2 Provision of the Service 2.1 We shall use reasonable endeavours to provide the

Services and the Maintenance Services in accordance with this Contract and will use reasonable skill and care in the provision of the same. However, You acknowledge that the Services cannot be provided fault free and We do not warrant error free or uninterrupted use of the Services.

2.2 We shall use reasonable endeavours to make each Service available for use by You from its Proposed Start Date, unless otherwise expressly agreed in writing or unless We are unable to do so as the result of a failure by You to fulfil Your obligations under this Contract (including the correct completion of the Data Capture Form) or by any delay caused by a nominated third party (including, without limitation, other Network Operators).

2.3 We may need to: (a) change the technical specification of the

Services where necessary for operational reasons, subject to such change not materially adversely affecting the performance of the Service (except where it is reasonable to do so);

(b) suspend the Services for operational reasons (including, without limitation, any suspension imposed on Us by BT) or in case of emergency; or

(c) give You instructions which We believe to be necessary for health and safety reasons or for maintaining the quality of the Services or other services,

0Bbut before doing any of these things, We will give You as much notice as possible.

2.4 Where Your DNS records are to be transferred to Us We shall not be liable for any loss or damage suffered by You: (a) due to Your inability to receive or send any e-

mails; (b) for any website unavailability where the same is

caused by any act or omission on the part of the ISP from whom Your e-mail (or other application) or DNS address is to be transferred from any relevant registration authority; or

(c) by Your failure to give consent to the originating ISP to carry out such transfer.

2.5 We do not guarantee the continuing availability of any particular service and You acknowledge that We may be dependent upon third parties (including, without limitation, other Network Operators) when providing the Services. Notwithstanding any other provisions of this Contract but subject to clause X13.1X We will not be liable to You in contract, tort (including negligence) or otherwise for the actions of any third party (including, without limitation, acts or omissions of the other Network Operators) that affect or otherwise impact upon the provision of the Service.

2.6 You must obtain the necessary consents in order for You to receive the Service, including consents to building alterations at the Site. In the event that either party is not able to procure any necessary consent(s) to provide the Services within 3 months of the Proposed Start Date of a Unit Agreement, We will be able to terminate that Unit Agreement without any liability to You.

2.7 If We discover that We are not able to provide the Service for any technical reason (including, without limitation, the fact that the copper pairs are damaged) and We cannot resolve the issue within 3 weeks of the Proposed Start Date of a Unit Agreement, We may terminate that Unit Agreement without liability to You.

2.8 If You are migrating to Our Service from another provider You must ask that service provider to port Your service to Us and inform Us that You have done so. In the event that the service provider fails to reply

to Your request or refuses to comply with Your request within 14 days of that request, We may terminate that Unit Agreement without liability to You.

2.9 Where in order to provide You the Service, We consider it necessary in the circumstances to provide the Service, wholly or in part, by non-standard or exceptionally expensive methods or at a substantially greater cost than usually incurred so as to render Our standard tariff inappropriate, We may decide to charge a charge in addition to the standard connection charge. If We decide to do so, We will inform You and You may then terminate that Unit Agreement within 7 days of Us notifying You of the increased Charge.

2.10 You acknowledge that some technical limitations within the BT network may not become apparent until after the Service has been installed and working for some time. In such instances, We may terminate that Unit Agreement on notice to You but only if BT advises Us that the Service thereunder is to be withdrawn.

2.11 Further, if You request a Service and due to technical limitations in the BT network We are unable to provide the Service to You, We shall be entitled to terminate that Unit Agreement on notice to You but only if BT advises Us that the Service can not be provided. In such circumstances We will notify You of any alternative Service We can provide to You, if any.

2.12 If You request Us to supply any Hardware to You, title in the Hardware will pass to You as soon as You have paid Us for it in full. Following the passing of title, such Hardware will be Customer Equipment. We will pass onto You the benefit of any manufacturer’s warranty for any such Hardware.

3 Orders for Service 3.1 At any time after the Commencement Date You will be

entitled to: (a) order further Services under further Unit

Agreements; (b) request a change to the configuration of the

router (where provided by Us as part of the Services);

(c) request a move to the position of the router (where provided by Us as part of the Services), subject to such move not placing the router more than 30 metres from the master socket; and

(d) request a change to the IP address configuration.

3.2 At any time after the Service Start Date of a Unit Agreement You may order an increase to the speed of the Service under that Unit Agreement (the “Upgraded Service”). The Upgraded Service shall be treated as a variation to that Unit Agreement. If We are able to provide the Upgraded Service, it will be subject to an increase in the rental Charges for that Unit Agreement and We may also make an up-grade charge for providing the Upgraded Service. A new Initial Term under that Unit Agreement shall apply, which shall be equal in length to the previous Initial Term and shall begin on the date that the Upgraded Service is made available for use.

3.3 We will respond to any orders pursuant to clause X3.1X X within 10 Working Days. We will confirm the availability of the requested Service; the Charges for that Service; the Initial Term for that Service; the likely Proposed Service Start Date of that Service and any other relevant details. Such details shall not constitute an offer and You must confirm to Us in writing if You wish to contract with Us for such Services. No order pursuant to this clause X3X shall be accepted unless and until We confirm it in writing to You. We are not obliged to respond to, process or accept any such order submitted by You. If required, You will complete a Data Capture Form in respect of the Service You are ordering.

3.4 Unless otherwise agreed by the parties in writing all orders and all Unit Agreements shall be governed by the terms of this Contract only. If You submit any orders under this Contract it shall always be on the basis that the terms of this Contract shall apply.

4 Your Obligations in respect of the Services 4.1 In order to enable Us to fulfil Our obligations under this

Contract You shall, at Your own cost, (or in the case of Sites under the control of Users, procure that all Users shall, at their own cost) provide Us or Our nominated third party with such access to the Site and facilities as We may reasonably require in order to install, inspect, test, adjust, maintain, modify, repair or replace any

Equipment, provide the Services and/or Maintenance Services or otherwise perform Our obligations under this Contract.

4.2 You shall accurately complete the Data Capture Form and return it to Us. In the event that the information You provide is incomplete or inaccurate, You will submit the complete accurate information to Us upon request.

4.3 You shall advise Us in writing of all health and safety at work rules and regulations, of all dangerous objects and substances, and any other reasonable security requirements or rules applicable at the Site (or in the case of Sites under the control of Users, procure that all Users shall advise Us of the same), which We agree to observe.

4.4 You will provide Us with a suitable and safe working environment whilst at the Site (or in the case of Sites under the control of Users, procure that all Users shall provide Us with the same).

4.5 You shall not move, add to, modify or interfere with or attempt to repair, or cause to be repaired or serviced by any person any Kingston Equipment other than by Us or Our nominated third party.

4.6 You will at all times ensure that the Equipment is kept in a good and proper state of repair, is secure whilst on the Site and maintain the necessary environmental and other conditions for any Equipment as may be specified by Us from time to time.

4.7 We will be entitled to modify and/or replace any KCOM Equipment from time to time if We consider such modification and/or replacement reasonably necessary for the continued provision of the Services.

4.8 You will indemnify and keep indemnified Us from and against all costs, (including, without limitation, any legal costs and disbursements), expenses, damages, liabilities, losses, actions suffered by Us, directly or indirectly and whether wholly or in part resulting from failure by You to comply with the terms of this Contract. We will not be liable to You where We are unable to carry out Our obligations under this Contract as a result of a breach by You of this Contract.

4.9 Except for the FTTP service, You must maintain a contract for the use of a BT provided analogue direct exchange line which terminates on a BT public switched telephone network master socket forming part of BT’s telecommunications network in respect of each Unit Agreement and for the continuance of each Unit Agreement (“Your Communications Line”). In the event that You fail to maintain Your Communications Line, We may terminate that Unit Agreement immediately on notice.

4.10 You will provide any electricity and connection points We may require in the provision of the Service. In the event that You fail to do so, We may terminate that Unit Agreement immediately on notice.

4.11 You will, if so requested by Us, promptly provide such information as We may reasonably require in order to fulfil Our obligations pursuant to this Contract.

4.12 It is Your responsibility to correctly configure Your LAN and all connected devices and to protect Yourself from virus and other system attacks. The consequence of inadequate anti-virus or firewall systems could be that You unintentionally cause interference or damage to other Internet connected devices. We may have to suspend Your Service if such interference occurs.

5 Rate Adaptation and Stabilisation (not applicable to FTTP services)

5.1 You acknowledge and agree the speed and the stability of the operation of the Service is determined by: (a) the characteristics of Your Communications

Line, which include its physical length, quality and susceptibility to interference from other communications lines;

(b) the specific IP application protocol used; (c) electrical, electromagnetic or radio frequency

interference; (d) Rate Adaptation and the Line Rate of the

Customer Equipment; (e) the capacity available within BT’s

telecommunications network or the internet generally and/or

(f) the contention within the KCOM Network.



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5.2 If, for any reason, BT should be required to visit Your Site to assist with the installation (or any fault reported thereafter), You may incur an additional charge.

5.3 You acknowledge that Your Line Rate will be subject to Rate Adaptation. Rate Adaptation can occur several times each day and may change the Line Rate available to You. Such changes in the Line Rate may re-set the connection of the Services to BT’s telecommunications network or the DSLAM.

5.4 The Services may provide upstream (and downstream) Rate Adaptation. If so, the maximum and minimum Line Rate available for the Services is detailed in Part 3.

5.5 If applicable, You acknowledge that the Stabilisation Period cannot commence and that BT will not be able to establish a Maximum Stable Rate until you have installed the appropriate Customer Equipment and Your Communications Line is synchronised to the relevant DSLAM. We will notify You once a Maximum Stable Rate has been established. However, You acknowledge that the Maximum Stable Rate may be subject to change as further detailed in Part 3.

6 KCOM Equipment 6.1 We will supply the KCOM Equipment in accordance

with the Acts and will comply at all times with any relevant standards.

6.2 Title to KCOM Equipment will remain with Us at all times and nothing will operate to transfer ownership of or rights in the KCOM Equipment to You.

6.3 You undertake and agree to: (a) take all reasonable and proper care of the

KCOM Equipment; (b) comply with all reasonable instructions

communicated by Us to You for the safe and proper use of the KCOM Equipment from time to time;

(c) not operate the KCOM Equipment in the event that it has become defective, damaged or in a dangerous state; and

(d) not add to, modify or interfere with the KCOM Equipment.

6.4 Risk in the KCOM Equipment will pass immediately to You on delivery and You will indemnify and keep Us indemnified from and against all loss or damage caused by You to the KCOM Equipment to its full replacement value, except where this is due to fair wear and tear or is caused by Us.

6.5 You will for the duration of this Contract (without prejudice to Your liability to Us), at Your own expense, effect and maintain insurance in relation to the KCOM Equipment with a reputable insurance company and such insurance will be in an amount equal to the full new replacement value of the KCOM Equipment (including all taxes duties and other payments incidental to any replacements) and on fully comprehensive terms (including third party liability) against loss or damage from any cause, including, but without limitation, all risk of third party liability arising out of the presence or use of the KCOM Equipment. You will provide Us written proof of such a policy within 10 Working Days of Our written request for the same.

6.6 On termination of each Unit Agreement, if You fail to allow Us to collect the KCOM Equipment You will be liable to Us for: (a) a sum equivalent to the full retail value of the

KCOM Equipment; and (b) the hire charges for the unreturned unit of

KCOM Equipment until the sum specified in clause X6.6(a)X has been received by Us.

6.7 Any software contained in the KCOM Equipment and any software or documentation provided by Us in connection with the provision of the Services is and will remain Our property or that of Our licensors. The User is granted a non-exclusive, non-transferrable right to use such software and manuals for the purpose of accessing the Services during the continuation of the Unit Agreement under which it is provided. Save as permitted by law, You will not copy, de-compile or modify such software and/or manuals. You will indemnify and keep Us indemnified against any costs, losses, damages, or liability We may incur due to You amending or in any way altering the software.

6.8 You will sign any agreement containing reasonable terms which is reasonably required by the owner of the copyright in the software to protect the owner’s interest in that software. We will pay the charges (if any) under such agreements.

7 Customer Equipment 7.1 You will make any such modifications to the Customer

Equipment as We may determine necessary and instruct You to do so in order to provide the Services, subject to Your obligations pursuant to the Acts (if any).

7.2 We may disconnect any Customer Equipment which does not conform with any of the provisions of clause

7.3X or which, in Our reasonable opinion, could cause death, personal injury or damage to property or impairs the quality of the Services.

7.3 Any Customer Equipment connected (directly or indirectly) to or used with the Service must be technically compatible with the Service and approved under any relevant statute (including the Acts) and any telecommunications industry standards (including the Access Network Frequency Plan).

8 Use 8.1 You must use and You must procure that any Users of

any of the Services use the Services only in accordance with Our instructions as may be notified in writing from time to time and in accordance with the relevant provisions of the Acts, the KCOM Authorisation, the Customer Authorisation, Our Acceptable Use Policy and any other relevant Legislation.

8.2 You will not use and You will procure that any Users will not use the Service:

8.3 in any way that is unlawful or fraudulent or, to Your knowledge, has any unlawful or fraudulent purpose or effect, which shall include (without prejudice to the generality of the foregoing) the carrying out of a fraud or criminal offence against Us, BT or any other Network Operator;

8.4 to knowingly or recklessly transmit any material which contains software viruses or any computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;

8.5 in any way which (in Our reasonable opinion) brings Our name into disrepute or in any way which intentionally causes damage or disruption to the Service or the KCOM Network;

8.6 to send, knowingly receive, upload, download, use or re-use material which is abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights or is intended to, cause annoyance, inconvenience or worry or which is defamatory, an act of treason or intended to be a hoax call to any emergency services;

8.7 in a way that does not comply with any instructions We give pursuant to clause X2.3(c)X and/or X8.1X;

8.8 in a way that, in Our reasonable opinion, could materially affect the quality of any telecommunications services, including the Service;

8.9 to spam or send or provide unsolicited advertising or promotional material; or

8.10 for high traffic applications which (in Our reasonable opinion) are an unsuitable use of the Service.

8.11 Both parties agree to fully co-operate with the Police and any other relevant authorities (including but not limited to the Inland Revenue, the Trading Standards Office and/or OFCOM and any successor from time to time) in connection with any misuse or suspected misuse of the Service and You consent to Us co-operating with any other telecommunications operators in connection with any suspected fraudulent activity related to or connected with the Service and agree that We will be entitled to divulge the name and address and account information relating to You to such third parties.

8.12 You will indemnify Us against any claims or legal proceedings, which are brought or threatened against Us because the Service is used by You in breach of this clause 8.

9 Maintenance Services 9.1 We will provide Maintenance Services in accordance

with the Service Standard. 9.2 If We are unable to carry out any Maintenance

Services due to Your default or for any of the reasons set out in clause 11.11, We reserve the right to charge You an abortive visit charge.

9.3 We will in no circumstances be liable to You nor provide Maintenance Services where We reasonably consider that any fault or breakdown is due to: (a) Your fault or negligence (including, without

limitation where You have attempted to effect repairs to the KCOM Equipment unless it has received Our express authority);

(b) the fault or negligence of another Network Operator;

(c) Your failure to comply with the provisions of this Contract;

(d) the connection of any KCOM Equipment to any other telecommunications networks or to any Customer Equipment, including any building distribution wiring, not approved by Us; or

(e) the use of any Customer Equipment, or any other equipment or software not supplied by Us.

9.4 You may request Us to repair or replace any KCOM Equipment as a result of any of the events set out in

clause X9.3X, but such repair or replacement will not form part of the Maintenance Services and We reserve the right to charge You for such services at Our standard rates in force from time to time.

10 Changes 10.1 We may from time to time make changes to the

specifications in the Service Standard. 10.2 If We change the location of any Equipment at Your

request, You shall pay to Us all applicable charges for any re-connections and associated work.

10.3 We may change this Contract (and any Unit Agreements pursuant to it) at any time in order to: (a) comply with any legal or statutory obligation

including, but not limited to, any requirements from time to time under the Acts;

(b) comply with any conditions within a relevant Authorisation;

(c) comply with any final order, direction, notice, specification, designation or consent made by the Director General of OFCOM relating to the Service;

(d) implement a change pursuant to clause X11.2X; (e) introduce or withdraw Service features; (f) maintain the integrity or security of the Service

or a Network; (g) introduce process changes, provided they are

not to Your material detriment; (h) improve clarity, or make corrections to

typographical errors; and/or (i) protect the use of any trade names or

trademarks, 1Bprovided that any change introduced pursuant to sub-clauses X(e)X to X(i)X shall not materially affect the Service or its performance insofar as it is reasonable to do so. We will give You at least 14 days’ notice before the changes are to take effect.

10.4 If we materially change the conditions of this Contract pursuant to clause 10.3 and such changes are to Your detriment, You shall be entitled to terminate this Contract and all Unit Agreements under it on 7 days’ notice, such notice to be given no later than 7 days after the date upon which the changes leading to the termination take effect.

11 Charges 11.1 You will pay Us all appropriate Charges at the rates,

times and frequencies as set out in this clause 11 and in Part 1 of this Contract, as follows: (a) the connection Charges will be payable upon

installation; and (b) the rental Charges will be payable in advance at

the frequency set out in Part 1 from the Service Start Date unless otherwise agreed in writing;

We will consolidate the Charges into a single itemised invoice for all individual Sites where the Services are provided. This will be sent to the person named in Part 1 at the address specified (unless You ask Us in writing to send it elsewhere). In the event that the Service Start Date for a Unit Agreement is not the same as Your monthly invoice date, We will charge You a pro rata monthly rental Charge for the first and last month, to ensure that all Unit Agreement monthly rental Charges are due on the same date.

11.2 We may vary the Charges from time to time by giving You prior written notice. If, in any period of 12 consecutive months, the aggregate effect of such variations is to increase the Charges by more than 5% above the rise in the RPI over the same period, You may terminate Your Unit Agreements by giving Us 10 days written notice.

11.3 All Charges due under this Contract will be payable within 30 days of the date of the relevant invoice and will be paid in full without any set-off, deduction or withholding of any kind. We reserve the right to charge daily interest on any outstanding amounts until payment is received in full at a rate equal to 2% per cent per annum above the base rate of National Westminster Bank Plc as current from time to time whether before or after judgement and/or suspend the Service until all Charges have been paid in full.

11.4 All Charges are exclusive of value added tax and any other applicable taxes which may from time to time be levied.

11.5 Where any Charges properly due to Us under this Contract and/or a Unit Agreement are outstanding We will be entitled to offset such payments against any payments due from Us to You under any other agreements under which We provide You with telecommunications or data services.

11.6 If a Unit Agreement is terminated by either party prior to the expiry of its Initial Term (other than pursuant to clauses 2.6X; 2.7X; 2.8X; 2.9X; 2.10X; 2.11X; 11.2X; 12.2(b) or 14.1) You shall pay Us a termination payment



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("Termination Payment") for each terminated Unit Agreement. The Termination Payment shall be the monthly rental Charge multiplied by the number of remaining months of the Initial Term minus a 5 per cent deduction for costs not incurred by Us and a 5 per cent deduction for early payment of the monies.

11.7 You acknowledge that Our Charges have been calculated on the basis that each Unit Agreement will continue until the expiry of its Initial Term; and as We may have spent money on set up costs, and accordingly agree that it is reasonable for Us to require payment of the Termination Payment as calculated above.

11.8 We will repay or credit You with the appropriate proportion (on a pro rata basis) for any rental Charges You have paid in advance (other than for any part of the Initial Term if a Termination Payment is due) for the period ending after Your liability to pay the rental Charges ceases.

11.9 If at any time during this Contract Your financial standing changes adversely compared to Your financial standing at the date You entered the Contract, or You persistently default in paying the Charges due to Us, We may request a security deposit against non-payment of any amounts due and payable to Us. If You fail to provide such a security deposit within 5 Working Days of being asked to do so, We reserve the right to terminate this Contract and/or Unit Agreements on written notice.

11.10 We will usually carry out the Services during Our normal working hours but may agree, exceptionally, to carry out work outside Our usual working hours subject to Your agreement to pay an Additional Charge.

11.11 We reserve the right to charge You Our standard abortive visit Charge whenever: (a) an engineer attends an incorrect Site address as

provided by You; (b) the Site does not meet the criteria as defined in

the Service Standard; (c) entry is refused to the Site or no access can be

gained at the appointed time, as agreed between the parties;

(d) You report an incident, an engineer attends the Site and discovers the incident is not a result of Our actions or inactions; and

(e) Your reported problem is not verified by Us and following Your request for an engineering visit, We cannot confirm existence of Your reported incident.

12 Termination 12.1 If either party is:

(a) in breach of any provisions of this Contract (other than any of clauses X8.1X or X8.2X) and fails to remedy such breach within a reasonable time of written notice to do so, such time being specified in the notice;

(b) unable to pay its debts as they fall due or threaten to suffer any resolution to wind up its business or enter into involuntary or compulsory liquidation or have an administrator, administrative receiver, receiver or any analogous officer appointed over all or part of its assets,

3Bthen the other may immediately upon notice in writing (without prejudice to any other rights and remedies it may have) terminate (either in whole or in part) this Contract and/or any Unit Agreements.

12.2 We may terminate this Contract (either in whole or in part) and/or any Unit Agreements with immediate effect if: (a) You are in breach (or We reasonably believe

that You are in breach) of clauses 8.1 or 8.2 as such breach may be a criminal offence and/or cause serious harm to Our reputation;

(b) Our ability to provide the Services is altered in a way that is material to the Service (including, for the avoidance of doubt, the KCOM Authorisation);

(c) the circumstances in clause X11.9X occur. 12.3 We will continue to provide the Services in accordance

with Clause X2X until termination of this Contract but if: (a) You are late in making any due payment, or (b) We become entitled to terminate this Contract

early for any reason, or (c) You break any material term of another contract

with Us or another company in the KCOM Group 4Bthen we may partially or completely suspend the Services without limiting our ability to enforce other remedies that may be available. While the Services are suspended you must continue to pay the Charges.

12.4 Upon termination of this Contract or a Unit Agreement You will cease to use all the Services or any individual

Service(s) under the terminated Unit Agreement(s) as directed by Us and will pay to Us all outstanding Charges due up to and including the date of termination.

12.5 You agree to pay Us a Cease Charge if We are charged a cancellation charge by Our Supplier and: (a) You terminate the Service or the Service ends for any reason; (b) You move to another provider without requesting or using a MAC; or (c) You move premises.

12.6 The expiry or termination of this Contract will be without prejudice to any other rights either party may be entitled to and will not affect any accrued rights or liabilities of either party.

13 Limitation of Liability 13.1 Nothing in this Contract shall exclude or limit either

parties’ liability for: (a) fraud or fraudulent misrepresentation; (b) death or personal injury resulting from its own

negligence or that of its employees, sub-contractors or agents;

(c) breach of the terms implied by s. 12 of the Sale of Goods Act 1979; or

(d) the indemnity set out in clause 6.4, clause 6.7 and clause 8.12

13.2 Except as expressly provided in this Contract, all conditions, warranties, terms, representations, undertakings and obligations express or implied by statute (including, without limitation, those of satisfactory quality or of fitness for a particular purpose (even if that purpose is made known expressly or by implication to Us)), common law, custom, trade usage or otherwise and all liabilities (if any) are excluded to the fullest extent permitted by law.

13.3 Without prejudice to clause 13.1, We shall not be liable to You whether in contract or tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any: (a) loss of business; or (b) loss or corruption of data or information; or (c) loss of profits; or (d) loss of goodwill; or (e) loss of business opportunity; or (f) loss of anticipated savings even when advised

of the possibility, suffered by You under or in connection with this Contract.

13.4 Without prejudice to clause 13.1, We shall not be liable to You whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any special, indirect or consequential loss or damage (including legal and other professional fees and expenses) of any nature.

13.5 Subject to the provisions of this Contract each party hereby accepts liability in respect of damage to the other party’s tangible property resulting from its own or its employees' negligence up to an aggregate amount of £2,000,000 (two million pounds) during the term of this Contract.

13.6 Without prejudice to clauses 13.1 and 13.5, each party’s maximum aggregate liability in connection with this Contract whether arising in contract, tort (including negligence) or restitution or for breach of statutory duty or misrepresentation or, otherwise, shall be limited to the greater of: (a) £50,000.00 (fifty thousand pounds) in respect

one incident or a series of related incidents and £250,000.00 (two hundred and fifty thousand pounds) for all such incidents in any 12 month period; or

(b) the aggregate value of the Charges paid by You under all of Your Unit Agreements in the preceding Contract Year (the “Liability Sum”).

13.7 With reference to clause 13.6, in the event that a Contract Year has not elapsed from the Commencement Date, the Liability Sum shall be calculated by calculating the monthly average Charges incurred over the relevant period under all of the Unit Agreements multiplied by 12.

13.8 We will in no circumstances be liable to You in contract or tort (including negligence) or otherwise if We fail to renew Your domain name.

13.9 You acknowledge and accept that neither We, nor BT, have control over, nor are responsible for any third party information, software or services obtained by You whilst using the Services. Use of the Services is solely at Your risk and neither We, nor BT, shall be liable to You for any loss or damage of any nature whatsoever You suffer as a result of the use or reception of such materials.

13.10 The limitations of liability set out in this clause 13 shall not limit Your liability to pay any Charges that are

properly due under this Contract. Further, Your liability to pay the Charges shall not be taken into account for the purposes of applying the limitations set out in this clause 13 to any other liabilities You may incur under or in connection with this Contract.

13.11 This clause sets out each party’s entire financial liability (including any liability for the acts or omission of their respective employees, agents or subcontractors) to the other in respect of: (a) any breach of this Contract; and (b) any use made or resale of the Equipment and/or

Software, or of any product incorporating the said Equipment and/or Software; and

(c) any representation, statement of tortuous act or omission (including negligence) arising under or in connection with this Contract.

14 Force Majeure 14.1 Subject to clause X13.1X, We will not be liable to You for

any loss or damage caused to or suffered by You as a direct or indirect result of the supply of Services being prevented, restricted, hindered or delayed by reason of any circumstance outside of Our control (including, without limitation, anything imposed on Us by BT or if there are technical conditions in the network which prevent Us from delivering the Service). If either party is prevented from performance of its obligations for a continuous period of three months, it may terminate this Contract and all Unit Agreements under it by giving written notice.

15 Confidentiality 15.1 Neither party may use the other party’s names, logos,

trademarks, trade names or other proprietary marks (the “Marks”) in any advertising pr publicity without obtaining the other party’s prior written consent. Permission to use a party’s Marks will only last for the duration of this Contract.

15.2 During this Contract and after its termination or expiration for any reason, both parties shall hold in confidence all information relating to the activities or affairs of the other party to which they gain access in the course of carrying out their respective obligations pursuant to this Contract, including without limitation, secret or confidential, commercial, financial, marketing, technical or other proprietary information including without limitation such information on or relating to the disclosing party’s business and/or customers and the financial or other commercial terms of this Contract (but not the existence of this Contract) (“Confidential Information”), save to the extent that: (a) the relevant information comes into the public

domain other than by breach of this clause X5X; (b) the relevant information is or has been

generated independently by the receiving party, otherwise within the course of performing its obligations pursuant to this Contract; or

(c) the receiving party is obliged to disclose the relevant information pursuant to a statutory obligation, court order or instruction from a competent regulatory body or the rules of the UK Listing Authority.

15.3 The party receiving the information may not use the Confidential Information for a purpose other than the performance of its obligations under this Contract and may not disclose Confidential Information to a person except with the prior written consent of the other party than the receiving party or if the disclosure is to any of its directors, other officers, employees and sub-contractors to the extent that disclosure is necessary for the purposes of this Contract and each party shall ensure that any such recipient is made aware of and complies with the receiving party’s obligations of confidentiality under this Contract as if the recipient was a party to this Contract.

15.4 Neither party may make or send a public announcement, communication or circular concerning the transactions referred to in this Contract unless it has first obtained the other party’s written consent (not to be unreasonably withheld or delayed).

15.5 The obligations under this clause X5X shall survive the termination of this Contract.

16 General 16.1 This Contract constitutes the entire agreement and

understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Contract.

16.2 Each of the parties acknowledges and agrees that in entering into this Contract it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Contract or not) other than as set out in this Contract. Nothing will operate to limit or exclude any liability for fraud.



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16.3 Should any provision of this Contract be held to be void or voidable the remaining provisions of this Contract will continue in full force and effect.

16.4 No forbearance, delay or indulgence by either party in enforcing the provision of this Contract will prejudice or restrict the rights of that party nor will any waiver of its rights operate as a waiver of any past or subsequent breach.

16.5 We shall use reasonable endeavours to meet any delivery time, date or period. However, such dates shall be regarded as estimates and We shall have no liability to achieve any such time, dates or periods.

16.6 Members of the KCOM Group may enforce their rights under clause X11.5X but no other person or body who is not a party to this Contract has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract (but this does not affect any rights or remedies of a third party which exist or are available apart from that Act).

16.7 You may not assign the whole or part of this Contract without Our prior written consent such consent not to be unreasonably withheld.

16.8 We may assign this Contract to any company which from time to time is a member of the KCOM Group.

16.9 Subject to clause X16.8X, We may not assign this Contract to any other third party without Your prior written consent such consent not to be unreasonably withheld.

16.10 We reserve the right to vary this Contract and all Unit Agreements to the extent necessary to take into account any changes to Industry Agreements and any relevant Legislation. Any other variations must be in writing and agreed between the parties.

16.11 Any notice under or in connection with this Contract shall unless otherwise agreed be in writing and may be delivered by hand to or sent by first class post or by facsimile (confirmed by post) to the Company Secretary at the address of the party concerned set out in this Contract or any other address notified from time to time.

16.12 Any notice addressed as provided in clause X16.11X shall be deemed to have been given or made on the second Working Day after posting if sent by first class post upon delivery if delivered by hand and if sent by fax on the next Working Day after the date of transmission provided the sender's facsimile machine produces a report showing successful transmission to the correct facsimile.

16.13 Where We are processing data on Your behalf We shall only process such data in accordance with the Data Protection Laws and Our Data Processing Commitment. We may also contact Your organisation (including individuals within Your organisation) by letter, telephone or e-mail with details of Our services that may be of interest. If an individual does not wish to receive marketing material from Us then please notify us. As We continue to develop Our business, members of the KCOM Group may be sold and any relevant Customer Information may be transferred as part of the sale, subject to the terms of this clause.

16.14 This Contract will be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

17 Definitions 17.1 Except where the Contract otherwise requires the

following terms shall have the following meanings: “Acceptable Use Policy” Our acceptable use policy which We may amend from time to time and which We will publish on Our website (www.kcom.com); "Acts" means the Communications Act 2003, the Telecommunications Act 1984 and the Electronic Communications Act 2000 (each as amended);

“Additional Charges” the additional fees which may be charged at Our standard rates, in force from time to time, as detailed in this Contract; “BT” means British Telecommunications Plc (Company number 1800000) whose registered office is at 81 Newgate Street, London EC1A 7AJ; “Cease Charge” £33.75 (excluding VAT); "Charges" all connection charges, rental charges, usage charges, abortive visit charges, additional charges and any other charges payable by You pursuant to this Contract; "Commencement Date" the date this Contract is signed by Us; "Contract" these Terms and Conditions, the Data Processing Commitment, Parts 1 to 3, together with any other appendices and the Data Capture Form; “Contract Year” a period of 12 months commencing on the Service Start Date and each consecutive 12 month period thereafter; "Customer Authorisation" the authorisation(s) pursuant to the Acts (if any), in accordance with which You are entitled to use the Service; "Customer Equipment" any equipment at the Site owned by You or a third party which when operated in conjunction with the KCOM Equipment allows You to obtain and/or receive the Services; “Data Capture Form” means the form that We require

You to complete pursuant to clause X4.2X, which shall contains the information that We require in order to provide the Services; “Data Processing Commitment” means the Data

Processing Commitment contained in this Contract at Part 5; “Data Protection Laws” means all applicable laws and regulations relating to the processing of Personal Data and privacy including the Data Protection Act 1998, the General Data Protection Regulation 2016/679 and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated and the terms “Data Controller”, “Data Processor”, “Data Subject”, “Data Subject Access Request”, “Supervisory Authorities”, “process” and “Personal Data” shall have the meanings given to those terms in such data protection laws and regulations; "DNS" (Domain Name System) the mechanism used to resolve IP addresses against domain names; “DSLAM” equipment located at the local exchange known as ‘digital subscriber line access multiplexer’ "Equipment" means KCOM Equipment and Customer Equipment; “Hardware” means either a modem of router which may be purchased by You pursuant to this Contract, as detailed in Part 1, for Your provision of the Services; "Industry Agreements" any standard industry agreements or third party agreements which impact on Our ability to provide the Services; "Initial Term" the period of time stated in each Unit Agreement, or if none is stated, the period of time stated in Part 1, which commences on each Service Start Date; “ISP” means an Internet service provider, other than Us; "KCOM Authorisation" the authorisation(s) pursuant to the Acts (if any), in accordance with which You are entitled to use the Service; "KCOM Equipment" any equipment located at the Site which is supplied by Us or a third party as part of the Services; “KCOM Group” means Us, Our holding company, Our subsidiaries, and any subsidiary of Our holding company. The terms “subsidiary” and “holding company” have the meanings given to them by Section

1159 and Schedule 6 of the Companies Act 2006 (as amended); “KCOM Network” means the telecommunications

infrastructure and system operated by Us pursuant to the KCOM Authorisation; "Legislation" all Acts of Parliament and statutory regulations, instruments or orders and codes of practice and all applicable European Union laws, treaties, directives and other legislation as any of the same may be amended or replaced from time to time; “Line Rate” the rate of connection between the

Customer Equipment and the DSLAM; “MAC” Migration Authority Code, a code issued by Us

to You on request if You want to change broadband providers; "Maintenance Services" the maintenance services to be provided by Us, as specified in the Service Standard; “Maximum Stable Rate” the maximum Line Rate the

Service is expected to achieve on Your Communications Line, calculated on a per line basis; "Network Operators" any authorised public telecommunications operator used by Us to deliver the Services; "Proposed Start Date" the date specified in the Data Capture form or such later date as notified to You by Us should there be any delay in commencement of a particular Service, upon which a Service is due to be made available to You; “RPI” means the Retail Price Index; “Rate Adaptation” the automatic negotiation of the

best Line Rate between the DSLAM and the Customer Equipment, based on the settings within BT’s telecommunications network, line characteristics and conditions. Rate adaptation can occur several times a day, thus resetting the rate between the Customer Equipment and the DSLAM; "Services" provision by Us of internet access, e-mail and telephony services as more particularly defined in Part 3 of this Contract; “Service Desk” the centre, details of which will be supplied to You, to which all incidents and help queries should be addressed. "Service Standards" the Service levels set out in Part 3; "Service Start Date" the date upon which We activate the Service and/or Additional Service as applicable in accordance with the terms of this Contract; "Site" the premises to which the Services are to be provided, as described in the Data Capture form; “Stabilisation Period” a period of up to 10 calendar

days commencing from the date that You first use the Services following the Service Start Date, during which time the Maximum Stable Rate will be established for Your connection; “Termination Payment” has the meaning given at clause 11.6; "Unit Agreements" the individual agreements for each Service (including, for the avoidance of doubt, Maintenance Services) as applicable. The terms of this Contract shall apply to each Unit Agreement; "User" any individual authorised by You to use any of the Services; "We/Us" KCOM Group PLC, (registered number 2150618) whose registered office is at 37 Carr Lane, Hull, HU1 3RE; "Working Day" Monday to Friday inclusive except for UK bank and public holidays; "You/Your" means the person or company to whom Service is provided.



11


Data Processing Commitment Part 5 This Schedule represents Our commitment to You in regard to processing of Personal Data. It forms part of the Contract and should be read in conjunction with the Contract and any associated documentation.1 DEFINITIONS

In this Data Processing Commitment 1.1Schedule, unless the context otherwise requires:

“Data Subject” has the meaning given to it in the Data Protection Laws; “Data Subject Access Request” has the meaning given to it in the Data Protection Laws; “Personal Data” has the meaning given to it in the Data Protection Laws; “Permitted Sub-Processor” means any third party supplier or other sub-processor appointed by Us for the provision of Services to You pursuant to the Contract, as such third party supplier or sub-processor is expressly identified to You or as otherwise agreed between the parties.

Any other definitions used in this Data 1.2Processing Commitment Schedule shall have the meaning ascribed to it in the Contract.

2 DATA PROTECTION Both Parties hereby warrant, represent and 2.1

agree that in relation to the performance of the Services during the term of the Contract each Party will comply with the Data Protection Laws.

Both Parties acknowledge and agree that in 2.2relation to Your Personal Data, You are the Data Controller and We are the Data Processor. We agree and accept that We will process the Personal Data pursuant to and in accordance with the Contract, as applicable, and the Data Protection Laws.

Part 5A sets out the information regarding 2.3Our processing of Your Personal Data as required by article 28(3) of the General Data Protection Regulation 2016/679. We may make reasonable amendments to Part 5A by written notice to You from time to time as We reasonably consider necessary to meet those requirements. Nothing in Part 5A (including as amended pursuant to this section 2.3 of this Data Processing Commitment) confers any right or imposes any obligation on either You or Us.

We shall: 2.4(a) only process the Personal Data for the

purposes of performing its obligations under the Contract, as applicable, and in accordance with Your documented instructions;

(b) not transfer the Personal Data outside of the EEA, unless permitted to do so as follows:

(i) in provision of the Services to the relevant Permitted Sub-Processor, subject to ensuring that either: (a) such Permitted Sub-Processor implements appropriate technical and organisational measures to safeguard against unauthorised and unlawful processing of Personal Data and to ensure a level of security appropriate to the risk; or (b) the Sub-Processor enters into the Standard Contractual Clauses for the Processing and transfer of Personal Data outside of the EEA with You; or

(ii) with Your prior written consent; and/or (iii) if required to do so by any legislation or

regulation, in which case We shall inform You of such requirement if it is able to do so;

(c) ensure that all of Our employees who process the Personal Data are subject to an obligation of confidentiality in relation to the Personal Data;

(d) implement appropriate technical and organisational measures to safeguard against unauthorised and unlawful processing of Personal Data and to ensure a level of security appropriate to the risk, including but not limited to:

(i) pseudonymising and encrypting Personal Data, as appropriate;

(ii) ensuring the ongoing confidentiality, integrity, availability and resilience of its processing systems and services;

(iii) enabling the restoration, availability and access to Personal Data in a timely manner in the event of a physical or technical incident and, without prejudice to the foregoing, in accordance with any service level agreement between Us and You;

(iv) regularly testing, assessing and evaluating the effectiveness of the technical and organisational measures for ensuring the security of the processing; and

(v) taking steps to ensure that any of Our employees who have access to Personal Data does so in accordance with Our rights and obligations as expressly detailed in this Data Processing Commitment or otherwise on Your express written instructions unless otherwise required by legislation or other applicable regulation;

(e) inform You of any new sub-processor and/or change of a Permitted Sub-Processor. You shall inform Us within five (5) Business Days of any objection to such appointment or



12


change. If You do not raise any such objection, We shall ensure that such sub-processors shall comply with the provisions of this Schedule or terms which are substantially similar;

(f) assist You in the timely response to requests from Data Subjects exercising their rights, including but not limited to:

(i) where We are required to assist You with a Data Subject Access Request You have received, responding to such request for assistance within twenty (20) days of receiving notice of such request from You;

(ii) where We receive a Data Subject Access Request directly from the Data Subject, We shall notify You within one (1) Business Day after receipt and shall respond to the Data Subject within the time limits specified within the Data Protection Laws and where You are required to assist Us with such Data Subject Access Request, You shall respond to Us within twenty (20) days of receiving notice of such request from Us;

(iii) assisting You, as applicable, with a request for access, rectification and/or erasure by a Data Subject; and

(iv) enabling You to comply with a request for data portability of a Data Subject;

(g) assist You in complying with its obligations relating to security of Personal Data as set out in the Contract, as applicable, or as otherwise may be reasonably requested by You, including but not limited to:

(i) notifying You of any Personal Data breach as soon as reasonably practicable and no later than twenty four (24) hours after We become aware of the breach (such notice by email and/or telephone and followed up by email), and including all relevant detail. We agree and accept that You may use any detail included in the notification of a Personal Data breach, or otherwise given in its communication to Data Subjects, to the extent that such information does not breach the rights of any other individual;

(ii) at Your request and expense assisting with the communication to the Supervisory Authorities, any of Your customers and/or Data Subjects following a Personal Data breach and/or implementing any measures required as a result of such breach;

(iii) at Your request and expense, consulting with the Supervisory Authorities and/or assisting You to consult with the Supervisory Authorities, including providing You with any information relating to Our processing of Personal Data and/or Our compliance with the Data Protection Laws as You may be reasonably request.

(h) upon the expiry or termination of the Contract, delete or return all Personal Data to You (as requested by You), unless otherwise required or permitted by Data Protection Laws and provide written confirmation You in this respect;

(i) make available to You all information reasonably necessary to enable You to demonstrate compliance with Your obligations under the Data Protection Laws, including such records of all categories of processing carried out on Your behalf, as such is requested by You;

(j) co-operate with any request of the Supervisory Authority;

(k) allow You to undertake audits of Us on 30 days’ notice and at Our expense, subject to any reasonable requests We may have regarding the timing and conduct of such audit (including, without limitation, such audits to be conducted during Our Business Hours and allowing Us to supervise such audit), to ensure Our compliance with this Schedule;

(l) contribute to any audits or inspections carried out on You by any Supervisory Authority or any of Your suppliers or customers, as such contribution and/or inspection is reasonably necessary to demonstrate compliance with Your and/or Our obligations in this Data Processing Commitment, subject always to the provisions in Section 2.3(k) above;

(m) at Your expense, implement any reasonable recommendations and/or remedial actions necessary to ensure compliance with the provisions of this Schedule and/or the Data Protection Laws, as such recommendations and/or remedial actions are deemed necessary by You (acting reasonably) or any Supervisory Authority, as applicable, following an audit or inspection in accordance with Section 2.3(l) above, or otherwise as You deem reasonably necessary.

(n) Subject to clause 13, each Party shall indemnify the other Party in the event of any claim by a third party arising as a consequence of the other Party’s breach of this Data Processing Commitment and/or Data Protection Laws.

3 GENERAL We shall be entitled to amend this Data 3.1

Processing Commitment either: (i) immediately to ensure Our commitment is in compliance with Data Protection Laws; or (ii) upon giving You 30 days’ prior written notice of such change, provided that such change shall not (in Our reasonable opinion) cause a material detrimental effect to You).



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DATA Processing Details Part 5A

Description Details

Subject matter of the processing

Provisions of Services pursuant to the Contract between Us and You

Duration of the processing During the Term of the Contract and for up to 7 years after the expiry or termination of the Contract

Nature and purposes of the processing

To facilitate the fulfilment of Our obligations arising under the Contract including i. Ensuring effective communication between Us and You; ii. Maintaining full and accurate records of all Services arising under the Contract; iii. Dealing with any rights, actions, incidents or disputes arising under the Contract;

Type of Personal Data Includes: i. Contact details of, and communications with You, and Your employees, directors or contractors concerned with management of and/or receipt of Services pursuant to the Contract ii. Contact details of, and communications with Your associated or group companies, and such parties staff concerned with management of and/or receipt of Services pursuant to the Contract iii. Contact details of, and communications with Your sub-contractors and third parties and such parties staff concerned with concerned with either the fulfilment of Your obligations arising from the Contract or the receipt of Your rights under the Contract

Categories of Data Subject Includes: i. Your directors, employees and/or staff concerned with the delivery of the Service ii. The directors, employees and/or staff of Your group and/or associated companies concerned with the delivery of the Service iii. The directors, employees and/or staff of Your sub-contractors and/or other third parties concerned with either the fulfilment of Your obligations arising from Contract or the receipt of Your rights under the Contract



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Documents

Broadband Services Contract - KCOM Business · 2018-10-31 · Our Broadband Services provides a broadband Internet access service using a standard BT telephone line, which You must