1. INTERPRETATION
1.1 In this Contract:
“Agreement” means these terms and conditions and any schedules and the order form;
“Applicable Laws” means all laws (including but not limited to the Communications Act 2003 and any regulations made under it), regulations, orders, standards, guidelines and codes of practice made by any governmental, regulatory or other competent body from time to time;
“Vital” means Vital International Limited a company registered in England and Wales
(Registration Number 4502260) having its registered office at Wilsons Corner, 1 – 5 Ingrave Road, Brentwood, Essex, CM15 8AP;
“Vital Employees” means people employed by Vital, as well as any subcontractors or others acting on behalf of Vital, who carry out work under or in connection with this Agreement;
“Vital Group Company” means a Vital subsidiary or holding company, or a subsidiary of that holding company, all as defined in the Companies Act 1985;
“Commencement Date” means the date the order set out in the Order Form is accepted and signed by Vital;
“CPE” or “Customer Premises Equipment” means any equipment which is provided, maintained or managed by Vital as part of the Service;
“Customer” means the person so named on the Order Form;
“Customer Contact Point” means a single representative nominated by the Customer to liaise with Vital on all matters in relation to the Service;
“Initial Period” means the period from the Commencement Date to 12 months after the Commencement Date;
“Order Form” means the document set out in the Schedule completed and signed by the parties;
“Service” means the service described in the Order Form;
“Service Levels” means the service levels set out in or the Order Form;
“Site” means a place at which Vital agrees to provide a Service; and
“Software” means any software provided by Vital to enable the Customer to access or use the Service.

2. TERM
This Agreement commences on the Commencement Date and shall continue until terminated in accordance with clause 16 below.

3. PROVISION OF THE SERVICE
3.1 Vital shall provide the Customer with the Service in accordance with the terms of this Agreement.
3.2 Vital shall provide the Service in accordance with the Service Levels, provided that the Service Levels shall not apply to the extent that any breach of them is caused by any act or omission of the Customer, including without limitation a breach of clause 5 below.
3.3 Vital shall provide the Service with reasonable skill and care.
3.4 Vital shall use its reasonable endeavours to provide each Service by the date set out in the Order Form but all dates are estimates and Vital shall not be liable for any failure to meet those dates.
3.5 It is technically impracticable to provide a fault free Service and Vital does not undertake to do so. Vital shall, however, repair any faults which significantly impair performance in accordance with the Service Levels.
3.6 Vital may suspend a Service for operational reasons or due to an emergency on reasonable notice. If it is practicable to do so Vital shall agree with the Customer when the Service shall be suspended.

4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall comply with Vital’s reasonable instructions in respect of the Service, the health and safety and the quality of any communications service provided by Vital to the Customer or any other customer of Vital.
4.2 The Customer shall provide Vital with all information concerning the Customer’s operations and activities (including but not limited to software, manuals, data, drawings and any other documents or materials) which Vital considers necessary to enable it to provide the Service. The Customer shall also ensure that its employees, agents and subcontractors are generally available to provide such assistance, advice or instruction as Vital may require in the course of providing the Service, including where necessary, access to the networks or systems owned or operated by the Customer.
4.3 The Customer shall ensure that the Customer Contact Point is available during the times set out in the Order Form and is responsible for the provision of initial support to its users requiring help or guidance in the use of the Service, if it is unable to resolve any queries or problems, for the reporting of all faults in the Service to Vital and for all subsequent fault management communications between Vital and the Customer.
4.4 The Customer shall not and shall procure that its employees, agents and subcontractors shall not use the Service:
(a) for the transmission of any material which is defamatory, offensive, obscene, abusive, or otherwise offensive;
(b) in a manner which constitutes infringement of the rights of any third party, including but not limited to intellectual property rights or rights of confidentiality; or
(c) in breach of any Applicable Law.

5. EQUIPMENT
5.1 The Customer shall at its own expense:
(a) obtain all necessary consents to enable the installation and use of the CPE, including consents for any necessary alterations to buildings;
(b) provide a suitable environment, accommodation and foundations for the CPE including all necessary trunking, conduits and cable trays in accordance with the relevant installation standards; and
(c) provide any electricity and connection points required by Vital, before any installation of the Service is scheduled to commence.
5.2 The Customer shall be responsible for the operation and maintenance of the CPE while it is at the Site.
5.3 The Customer shall not add to, modify or in any way interfere with the CPE nor allow any other person (other than a person authorised by Vital) to do so. The Customer shall be liable to Vital for all direct losses damages costs and expenses incurred by it in respect of any fault caused by or otherwise as a result of breach of this clause 5.3.
5.4 If the Service includes maintenance and management of CPE owned by the Customer but not supplied by Vital under this Agreement, provision of the Service shall be subject to the CPE being in good operating condition and at the appropriate operating level. Vital shall therefore be entitled to inspect and test the CPE and to carry out any repairs, modifications or adjustments which Vital considers to be necessary before the commencement of the Service. The Customer shall pay Vital’s reasonable charges for such work.

6. CONNECTION OF EQUIPMENT TO THE SERVICE
6.1 The Customer shall connect and use any equipment connected to or used with the Service in accordance with any instructions or safety or security procedures applicable to that equipment.
6.2 The Customer shall ensure that any equipment which is attached (directly or indirectly) to the Service is technically compatible with the Service, approved for that purpose under any relevant legislation and conforms to any applicable interface specifications and routing protocols specified by Vital from time to  time.

7. SECURITY
7.1 The Customer shall be responsible for all elements of the security of its systems and network and for any elements of the Service outside the point on the Network Diagram set out in the Order Form marked Vital Proactive Management Responsibility and agrees that Vital shall have no responsibility or liability in this regard.
7.2 Each party shall immediately inform the other if there is any reason to believe that there is or there is likely to be a breach of security which may affect the Service or Vital.
7.3 Vital reserves the right to suspend access to the Service at any time it considers that there is or is likely to be a breach of security.

8. ACCESS AND SITE REGULATIONS
8.1 The Customer shall provide to Vital Employees at all reasonable times access to any Site or any other premises outside Vital’s control reasonably required for provisions of the Service.
8.2 If the Customer requires Vital to work outside its usual working hours (Monday to Friday, 08:30 – 17:00) Vital may charge and the Customer shall pay Vital’s reasonable additional charges for doing so.
8.3 Vital Employees shall comply with the Customer’s reasonable Site requirements, previously advised in writing to Vital. In the event of any conflict between the Site requirements and this Agreement, this Agreement shall prevail.
8.4 The Customer shall provide a suitable and safe working environment for Vital Employees.

9. USE OF SERVICE AND REGULATIONS
9.1 The Customer shall comply with any Applicable Law relating to the use by it of the Service.
9.2 The Service shall not be used:
(a) for any unlawful purpose;
(b) in breach of instructions given by Vital under clause 4.1 of this Agreement; or
(c) so as to render Vital in breach of the terms of any agreement between it and any subcontractor to it for the provision of the Service, notified in writing by Vital to the Customer.
9.3 Subject to 14.3, the Customer shall indemnify Vital against any losses, damages, claims or legal proceedings arising from the provision of the Service which are brought or threatened against Vital by a third party as a result of the Service being used in breach of clauses 9.1 or 9.2 above.
9.4 Vital shall notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings.

10. INTELLECTUAL PROPERTY RIGHTS
10.1 Vital grants to the Customer a non-exclusive, non-transferable licence to use any material and any software provided to enable the Customer to use the Service for that purpose for the term of this Agreement.
10.2 The Customer shall not, without Vital’s prior written consent, copy or (except as permitted by law) decompile or modify any software, or copy any manuals or documentation provided to it by Vital in connection with this Agreement.
10.3 The Customer agrees to undertake all reasonable steps requested by the owner of any intellectual property rights in any software, manuals or documentation provided to it by Vital in connection with this Agreement to protect the owner’s interest in those software, manuals or documentation.
10.4 Other than as stated in clause 10.1 nothing in this Contract shall require Vital to transfer, assign, licence or grant to the Customer any intellectual property rights.
10.5 Either party may use any know-how acquired, principles learned or developed or experience gained during the performance of this Agreement for its own internal business purposes which in Vital’s case shall include the performance of work for other customers.

11. INTELLECTUAL PROPERTY RIGHT INDEMNITIES
11.1 Vital shall indemnify the Customer against all claims and proceedings arising from infringement (or alleged infringement) of any intellectual property rights as a result of Vital’s provision of the Service to the Customer, provided that the Customer:
(a) notifies Vital promptly in writing of any allegation of infringement;
(b) makes no admission relating to the infringement;
(c) allows Vital to conduct all negotiations and proceedings and gives Vital all reasonable assistance in doing so (provided that Vital pays the Customer’s reasonable expenses for such assistance); and
(d) allows Vital to modify the Service or any item provided as part of the Service, so as to avoid the infringement, provided that the modification does not materially affect the performance of the Service.
11.2 If Vital does not effect a modification or replacement under clause 11.1(d) or procure the right for Customer to continue using the Service, in each case within 90 days of the date it received notice of the infringement, then either party shall be entitled to terminate the Agreement by giving five days written notice to the other.
11.3 The indemnity in clause 11.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment, software or services not supplied by Vital or to infringements occasioned by designs or specifications made by or on behalf of the Customer. The Customer shall indemnify Vital against all claims, proceedings and expenses arising from such infringements.

12. CONFIDENTIALITY
12.1 The parties shall keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained in relation to this Agreement and shall not disclose that information to any person (other than their employees or professional advisers, or, in the case of Vital, the employees of a Vital Group Company or its suppliers who need to know the information) without the consent of the other party.
12.2 This clause 12 shall not apply to:
(a) any information which has been published other than by breach of this Agreement;
(b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
(c) information obtained from a third party who is free to disclose it; and
(d) information which a party is required by Applicable Law to disclose.
12.3 This clause 12 shall remain in effect for five years after the termination of this
Contract.
12.4 Each party undertakes to comply with the provisions of the Data Protection Act 1998 and further agrees to use personal data provided by the other strictly for the purposes of this agreement only.

13. CHARGES
13.1 The charges and payment method for the Service shall be as set out in the Order Form.
13.2 The Customer shall pay the charges within 30 days of the date of Vital’s invoice, or in respect of Broadband Direct, in accordance with the Direct Debit Mandate. Vital may charge interest on late payments at a rate equal to 4% per annum above the base lending rate of Barclay’s Bank plc as published from time to time. Such interest shall be compounded on a daily basis.
13.3 All charges shall be invoiced and paid in pounds sterling.
13.4 All charges are exclusive of Value Added Tax which shall be payable by the Customer on the provision by Vital of a valid tax invoice.

14. LIMITATION OF LIABILITY
14.1 Neither party limits its liability for death or personal injury resulting from its negligence.
14.2 Neither party shall be liable to the other, whether in contract, tort (including negligence) or otherwise, for direct or indirect loss of profits, business, anticipated savings or data or for any indirect or consequential loss or damage.
14.3 Subject to clause 14.1, either party’s liability to the other in contract, tort (including negligence) or otherwise in relation to this Agreement is limited to £250,000 for any one incident or series of related incidents and to £500,000 for all incidents in any twelve month period.
14.4 Neither party shall be liable to the other, whether in contract, tort or otherwise, for the acts or omissions of other providers of communications or internet services or for faults in or failures of their equipment.
14.5 Each provision of this Contract excluding or limiting liability operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.

15. FORCE MAJEURE
15.1 If either party is unable to perform any obligation under this Agreement because of a matter beyond its reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving its own employees), acts of local or central Government, other competent authorities or of its suppliers, it shall have no liability to the other party for that failure to perform.
15.2 In the event of:
(a) a refusal or delay by a third party in supplying communications services to Vital (except where Vital is in default to that third party) where there is no alternative service available at reasonable cost; or
(b) Vital being prevented by restrictions of a legal or regulatory nature from supplying the Service, Vital shall have no liability to the Customer for failure to supply the Service.
15.3 If any of the events detailed in clauses 15.1 or 15.2 above continue for more than three months, either party may serve notice on the other terminating this Agreement.

16. TERMINATION
16.1 Either party may terminate this Agreement or the Service or any part of them after the Initial Period on 3 months’ written notice such notice expiring at the expiry of the Initial Period or any anniversary of it.
16.2 Either party may immediately terminate this Agreement or the provision of any Service under it on written notice if the other party:
(a) commits a material breach of this Agreement which is capable of remedy and fails to remedy that breach within 30 days (or such other period reasonable in the circumstances) of written notice to do so;
(b) commits a material breach of this Agreement which cannot be remedied;
(c) is repeatedly in breach of this Agreement; or
(d) has any step, application, order, proceeding or appointment taken or made by or in respect of it for a distress, execution, composition or arrangement with creditors, winding up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or is unable to pay its debts.
16.3 Vital may terminate this Agreement on 6 months written notice if its mandate to process payments to which the Service relates is terminated and in such circumstances Vital agrees to return to the customer the balance of any charges paid in advance on a pro rata basis.
16.4 If Vital becomes entitled to terminate the Agreement on any of the grounds detailed in clauses 16.2 or 16.3 above, Vital may suspend all or any Service without prejudice to its right to terminate this Agreement. Where a Service is suspended due to a breach of this Agreement by the Customer, the Customer shall pay the charges for that Service until this Agreement is terminated.
16.5 The Customer may terminate this Agreement in whole or in part (as applicable) on 3 months’ written notice if Vital is unable to support and maintain the Service or any part of it due to such support and maintenance services not being made available to it by any of its sub contractors and in such circumstances Vital agrees to return to the customer the balance of any charges paid in advance on a pro rata basis.
16.6 If either party delays in acting upon a breach of this Agreement that delay shall not be regarded as a waiver of that breach. If either party waives a breach of this Agreement that waiver is limited to that particular breach.

17. ASSIGNMENT
Neither party may assign or transfer any of its rights or obligations under this Agreement without the written consent of the other, which shall not be unreasonably withheld or delayed, provided that Vital may assign its rights or obligations (or both) to a Vital Group Company without the consent of the Customer.

18. ENTIRE AGREEMENT
18.1 This Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
18.2 The parties acknowledge and agree that they have not been induced to enter into this Agreement by any representation, warranty or other assurance not expressly incorporated into it.
18.3 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it, save for Vital Group Companies who shall have the rights granted to them under this Agreement.

19. NOTICES
Except in respect of clause 3.6 above, all notices given under this Agreement shall be in writing and may be delivered by hand or by courier or sent by first class post to the addresses set out in the Order Form.

20. LAW
This Agreement shall be governed by and construed in accordance with English law and the parties hereby agree to submit to the non-exclusive jurisdiction of the English courts.