Terms and Conditions

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General Terms and Conditions of Business

1. Definitions In these Conditions the following words shall have the following meanings:-

"Charges" means all charges from time to time payable by the Customer being such of the Domain Name Registration Charge, Internet Services Charge, Hire Charge and the Set Up Charge as are referred to in the Schedule;

"Consequential Loss" means any consequential loss which includes without limitation any economic loss or other loss of production, product, use, turnover, profits, anticipated profits, business opportunity or goodwill, and all loss or damage to property or equipment of the Customer, or any of its sub-purchasers, or any other third party;

"Customer" means the Customer, details of whom are set out in the Schedule;

"Customer’s Equipment" means the Customers computer system being all such equipment, software and communications lines, including any public lines required to properly access the Internet and includes any Customer Server;

"Customer Obligations" means the obligations of the Customer under the Contract, as set out in these Conditions, the Schedule and the SLA;

"Customer Server" means any server of the Customer which Onyx has, as set out in the Schedule and as part of the Internet Services, agreed to house at Onyx’s premises;

"Contract" means the contract made under these Conditions for such of the purchase by the Customer from Onyx of the Services and/or the Internet Services and/or the sale of the Hardware and/or the licensing of the Software and/or hire by the Customer from Onyx of the Hire Equipment, as is set out in the Schedule,;

"Delivery Date" means the delivery date (if any) set out in the Schedule;

"Domain Names" means the domain name(s) (if any) set out in the Schedule;

"Domain Name Registration Charge" means the charge for the registration of the Domain Name(s) set out in the Schedule;

"Domain Name Registration Service" means the domain name registration service as set out in Conditions 3 to 7 in respect of the registration of the Domain Name(s).

"Goods" means the Hardware and the Software;

"Hardware" means the hardware (if any) to be sold to the Customer as set out in the Schedule;

"Hire Equipment" means the hardware and software (if any) to be supplied to the Customer on a hire basis as set out (subject to Condition 21.2) in the Schedule;

"Hire Term" means, where the Schedule provides for the hire by the Customer of the Hire Equipment, the Initial Period continuing thereafter for each Renewal Period unless and until the Contract is terminated in accordance with Condition 36;

"Independent Expert" means an independent computer systems analyst to be agreed upon between the parties or, in default of agreement within seven days, to be nominated by or on behalf of the President for the time being of the British Computer Society;

"Initial Period" means the initial period set out in the Schedule commencing on the Live Date;

"Insolvency Event" means if a party becomes insolvent, has a receiver appointed over the whole or any part of its assets, enters into any compound with creditors, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of a scheme for amalgamation or reconstruction) or an event analogous to the above occurs in respect of a party in any jurisdiction to which that party is subject;

"Internet Services" means the services (if any) to be provided by Onyx to the Customer set out in the Schedule;

"Internet Services Charge" means the periodic charge (if any) set out in the Schedule, as may be varied from time to time in accordance with Condition 31.3;

"Internet Services Term" means the Initial Period continuing thereafter for each Renewal Period unless and until the Contract is terminated in accordance with Condition 36;

"Job Acceptance Form" means Onyx's standard job acceptance form indicating its acceptance of an order;

"Live Date" means the date on which the Internet Services are first made available to the Customer;

"Onyx" means Onyx Internet Limited (CRN: [3770844] whose registered office is situated at Aurora Court, Barton Road, Riverside Park, Middlesborough TS2 1RU;

"Renewal Period" means the renewal period referred to in the Schedule commencing on expiration of the Initial Period and each consecutive period of the same length of time thereafter during the period of the Contract;

"Server" means any server or equipment of Onyx from time to time through which Onyx provides the Internet Services;

"Services" means the Internet Services and the Domain Name Registration Service;

"Set Up Charge" means the set up charge (if any) set out in the Schedule in respect of the provision of and installation of the Hardware and the Software (if any), the Hire Equipment (if any) and the Internet Services Charge (if any) and Hire Charge (if any) due in respect of the Initial Period;

"Site" means the Customers business premises or any other agreed installation location specified in the Schedule;

"SLA" means Onyx's standard form of service level agreement as attached to the Contract;

"Software" means all software to be licenced by Onyx to the Customer as set out in the Schedule;

"Software Licences" means the third party licence terms in respect of the Software;

"Warranty Period" means the warranty period set out in the Schedule.

2. Basis of Agreement

2.1 Onyx shall, to the extent set out in the Schedule, sell to the Customer the Services, Hardware and Software and / or supply to the Customer the Hire Equipment subject to these Conditions [and the SLA], which shall govern the Contract to the exclusion of any other terms and conditions. No variation to the terms of the Contract shall be binding unless agreed in writing between authorised representatives of the Customer and Onyx. The Customer’s order constitutes acceptance of these Conditions.

2.2 Onyx shall not be bound to provide to the Customer any of the Services, Hardware, Software and Hire Equipment until Onyx acknowledge the Customer’s order by sending the Customer its Job Acceptance Form.

2.3 Onyx’s employees or agents are not authorised to make any representation concerning the Goods, the Hire Equipment and / or the Services unless confirmed in writing by Onyx.

2.4 No order which has been accepted by Onyx pursuant to Condition 2.2 may be cancelled by the Customer.

The following Conditions 3-7 shall apply if the Schedule specifies that Onyx will provide the Domain Name

Registration Service :-

3. Domain Name Registration Service

3.1 Onyx has a search facility to identify whether domain names are available to register. This service shall be available to the Customer free of charge, however, Onyx can offer no guarantees in respect of the accuracy of this service and the provisions of Condition 7 below shall apply in respect of any searches conducted using such service.

3.2 In consideration of the Customer agreeing to pay to Onyx the appropriate Domain Name Registration Charge within 30 days from the date of Onyx’s invoice [unless there is a prior agreement between the parties that the payment will be made in advance], Onyx shall provide the Domain Name Registration Service, subject to the acknowledgements of the Customer set out in Condition 4 below.

4. Acknowledgements

The Customer acknowledges that :

4.1 the availability of a Domain Name, whether or not Onyx has indicated to the Customer that the name is according to its records available, is dependent upon factors outside of the control of Onyx, including but not limited to registration of the Domain Name by a third party in the period between an availability check by Onyx and registration with the relevant naming authority and the refusal by the naming authority to register the Domain Name for any reason;

4.2 Onyx cannot provide any guarantee that a Domain Name requested will be accepted by the relevant naming authority and registered;

4.3 it shall be responsible for the compliance of any terms and conditions imposed by the relevant naming authority in respect of the Domain Name. Copies of the relevant terms and conditions can be obtained from the appropriate naming authority;

4.4 the registration of a Domain Name does not give any guarantee that the Customer shall be free to use the Domain Name and that the Domain Name will not infringe the rights of any third party.

5. Cancellation

All requests placed by the Customer for registration of Domain Names will be automatically processed by Onyx through the relevant naming authority, provided that the Domain Name remains available. It is therefore not possible to cancel registrations and the Domain Name Registration Charge is only refundable in the event that the Domain Name becomes unavailable prior to acceptance by the naming authority.

6. Rights of Onyx

6.1 Onyx reserves the right, but not the obligation, to refuse to process any application to register a Domain Name, if it believes that the Domain Name may infringe the Intellectual Property Rights of any third party or is offensive, contrary to the public interest or otherwise unacceptable to Onyx in its absolute discretion.

6.2 Whilst Onyx shall co-operate in respect of any request by the Customer to transfer control of the Domain Name to a third party, Onyx reserves the right to retain control of the Domain Name and prevent such transfer in the event that any payment in respect of the Charges (including but not limited to the Domain Name Registration Charge) are outstanding.

7. Liability of Onyx

7.1 In the event that the Domain Name is not registered as a result of the circumstances set out in Conditions 4.2 or

4.2, Onyx’s entire liability in respect of any failure to register a Domain Name shall be limited to a refund of any Domain Name Registration Charge actually paid by the Customer to Onyx.

7.2 In the event that Onyx incurs any other liability to the Customer such liability will be limited in accordance with Condition 34.

The following Conditions 8-14 shall apply if the Schedule specifies that Onyx will provide Internet Services:-

8. Provision of the Internet Services In consideration of the Customer paying to Onyx the Internet Services Charge Onyx shall provide to the Customer the Internet Services for the period of the Internet Services Term.

9. Onyx’s Rights Onyx reserve the right (but not the obligation):

9.1 to control, direct and establish technical procedures for the use of the Server, any Customer Server housed by Onyx and the Internet Services and the Customer agrees to follow Onyx’s reasonable instructions and procedures with respect to the use of the same;

9.2 to make operational changes to the Internet Services, including the Customer’s identifiers, IP addresses allocated, or other technical characteristics of the Internet Services;

9.3 to inspect or permit a police or other relevant authority to inspect the content and material in the Customer’s files, e-mails, newsgroup postings, website, etc.;

9.4 to refuse to post any material or information or remove any content which is, in its absolute discretion, unacceptable or undesirable;

9.5 to change the software, hardware or any other technology used in the performance of its obligations under this Contract.

10. Use of the Internet Services

10.1 The Customer will be responsible for obtaining and maintaining the Customer’s Equipment. Save where Onyx specifically agrees to provide any part of the Customer’s Equipment, Onyx has no responsibility for or liability with respect to the use, operation or compatibility of the Customer’s Equipment.

10.2 The Customer will ensure at all times that the Customer’s use of any software and the Internet Services, including connection of the Customer’s Equipment (but not the Customer Server) to the Server, is in accordance with all applicable data protection and other laws, licences, codes of practice and regulations.

11. Undertakings

The Customer undertakes for itself and for any other party using the Customer’s access to the Internet Services:

11.1 To use all reasonable endeavours to ensure that no message, e-mail or other communication is sent which, under the law of the United Kingdom or country where the Services are provided, or under international conventions, codes or regulations applicable to the Internet:

11.1.1 is in breach of those laws, codes or regulations including but not limited to infringement of intellectual property rights, defamation, theft, fraud, harassment, drug trafficking, money-laundering and terrorism;

11.1.2 may incite violence, sadism, cruelty or racial hatred;

11.1.3 may facilitate prostitution or paedophilia;

11.1.4 is pornographic, obscene, indecent, abusive, offensive or menacing;

11.1.5 which gives the impression that the message or posting originated from someone other than the original sender (including without limitation Onyx);

11.2 to use all reasonable endeavours not to create and/or introduce into the Server and /or connected systems any virus or other destructive or contaminating program or advise any other party how to do so;

11.3 not to invade the privacy of users of the Internet in general, including sending unsolicited e-mails, newsgroups or message board postings, (“spamming”) nor to collect or transfer personal data in breach of applicable data protection laws;

11.4 to maintain confidentiality of the Customer’s login names, passwords and other confidential information relating to the Customer’s access to the Internet Services;

11.5 not to tamper with routing and domain name services in order to "spoof" other computer networks;

11.6 not to do or permit anything else which would damage the name and reputation of Onyx or would otherwise be detrimental to Onyx, its equipment or networks, or which would degrade or deny service for customers of Onyx or any third parties.

12. Acknowledgements

The Customer acknowledges that:

12.1 Onyx does not warrant or represent that it can provide continuous access to its Servers or to the Internet, although Onyx will use all reasonable endeavours to avoid interruptions this may not be possible due to reliance on third parties, routine maintenance, repairs, reconfigurations or upgrades or circumstances beyond its control;

12.2 the Internet is neither controlled or owned by any one entity therefore Onyx cannot make any guarantee that any user shall be able to access the Internet Services at any given time;

12.3 the information, software or other material accessible over the Internet via the Internet Services may contain viruses, or other harmful and destructive components;

12.4 the Internet contains material which the Customer may find offensive and, if the Customer views or posts, publishes, transmits or downloads such material, the Customer does so at the Customer’s own risk of prosecution;

12.5 neither the Internet nor the Internet Services are absolutely secure and accordingly Onyx cannot guarantee the privacy of any of the Customer’s information;

12.6 the Customer is solely responsible for all use of the Internet Services accessed through the Customer’s password and/or other electronic identifiers with or without its consent.

13. Liability

13.1 The Customer’s sole remedy under the Contract for breach by Onyx in respect of the Internet Services is termination of the Internet Services by immediately discontinuing use of the Internet Services.

13.2 In the event that Onyx incurs any liability to the Customer such liability will be limited in accordance with Condition 34.

13.3 Onyx is not liable to the Customer or any other party who may access the Services via the Customer’s identifiers with or without the Customer’s consent ("Co- Customers") for any act or omission of any other entity furnishing products or services which are required by the Customer to use Onyx Internet Services. Nor will Onyx be liable for any damage or loss due to the fault or negligence of the Customer, or for the failure of any products or services provided by the Customer via the Internet Services.

13.4 Onyx is not responsible in contract or in tort for the unauthorised access to, or alteration, theft or destruction of e-mails, files, programs, or information of the Customer by any person other than Onyx through accident or by fraudulent means or devices or by any law enforcement agency.

14. Internet Services Charge

14.1 The Customer shall pay to Onyx the Internet Services Charge for the Initial Period and each Renewal Period (or part thereof) during which the Customer receives the Internet Services.

14.2 The Internet Services Charge shall be payable annually in advance, unless specified otherwise in the Schedule.

14.3 In the event of late or default payment the provisions of Condition 31.5 shall apply.
The following Conditions 15-21 shall apply if the Schedule specifies that the Customer is purchasing from Onyx the Hardware and / or Software Licences :-

15. Supply of Hardware and Software In consideration of the Customer paying to Onyx the Set Up Charge, Onyx agrees to:

15.1 sell to the Customer the Hardware;

15.2 supply to the Customer the Software, subject to the Customer accepting the terms of the Software Licence(s) in accordance with Condition 20;

15.3 install the Hardware and the Software at the Site, if Onyx has agreed to provide an installation service as set out in the Schedule.

16. Delivery

16.1 Onyx shall use all reasonable endeavours to deliver the Goods to the Site on the Delivery Date or as soon thereafter as is possible. Time of delivery shall not be of the essence of the Contract.

16.2 At delivery the Customer shall prepare the Site as Onyx shall have previously specified in writing (including by email or facsimile transmission).

16.3 Onyx shall have no liability to the Customer in respect of late or partial delivery where the same results from the Customer’s failure to prepare the Site in accordance with Condition

16.2 above in a timely manner.

17. Payment

17.1 The Set Up Charge shall unless otherwise specified in the Schedule include the cost of delivery of the Goods to the Site and installation but shall be exclusive of any value added tax which shall be payable by the Customer in the manner and at the rate from time to time prescribed by law.

17.2 Payment of the Set Up Charge shall be made in accordance with Condition 31.1.

17.3 Onyx reserves the right, by giving notice to the Customer at any time prior to delivery, to increase the Set Up Charge to reflect any increase in costs to Onyx. However, in this event, the Customer shall have the right, prior to delivery, to cancel the Contract and receive a refund of any Charges paid in respect of Goods or Services not provided at the date of cancellation.

18. Warranties

The Customer acknowledges that the Goods are supplied to Onyx by a third party, accordingly Onyx can give no warranty in respect of such Goods (other than as set out in Condition 33) but will to the extent possible pass on to the Customer the benefit of any warranties or guarantees given by such third party in respect of such Goods.

19. Ownership and Risk in the Hardware

19.1 Ownership of the Hardware shall remain with Onyx until full payment of the Set Up Charge has been received from the Customer.

19.2 On delivery of the Hardware, all risk shall pass to the Customer who shall until such time as ownership in the Hardware passes to the Customer be responsible for insuring the Hardware to its full replacement value.

20. Licence of Software

The Customer shall be bound by and shall at all times comply with the Software Licence(s).

The following Conditions 21 – 29 shall apply if the Schedule specifies that the Customer is hiring from Onyx the Hire Equipment: -

21. Supply of the Hire Equipment

21.1 In consideration of the Customer paying to Onyx the Hire Charge in accordance with these Conditions, Onyx agrees to:

21.1.1 supply to the Customer the Hire Equipment, which to the extent that it includes any Software shall be subject to the Customer accepting the terms of the Software Licence(s) in accordance with Condition 20;

21.1.2 install the Hire Equipment at the Site, if Onyx has agreed to provide an installation service as set out in the Schedule.

21.2 The Hire Equipment shall be of an equivalent or better standard (in Onyx’s reasonable opinion) to that specified in the Schedule and where changes are necessary the Customer shall be consulted.

22. Delivery

22.1 Onyx shall use all reasonable endeavours to deliver the Hire Equipment to the Site on the Delivery Date or as soon thereafter as is possible. Time of delivery shall not be of the essence of the Contract.

22.2 At delivery the Customer shall prepare the Site as Onyx shall have previously specified in writing (including by email or facsimile transmission).

22.3 Onyx shall have no liability to the Customer in respect of late or partial delivery where the same results from the Customer’s failure to prepare the Site in accordance with Condition

31.2 above in a timely manner.

23. Payment

23.1 The Set Up Charge shall unless otherwise specified
in the Schedule include the cost of delivery of the Hire Equipment to the Site and installation but shall be exclusive of any value added tax which shall be payable by the Customer in the manner and at the rate from time to time prescribed by law.

23.2 Payment of the Set Up Charge shall be made in accordance with Condition 31.1.

23.3 Onyx reserves the right, by giving notice to the Customer at any time prior to delivery, to increase the Set Up Charge to reflect any increase in costs to Onyx. However, in this event, the Customer shall have the right, prior to delivery, to cancel the Contract and receive a refund of any Charges paid in respect of Hire Equipment or Services not provided at the date of cancellation.

24. Use of the Hire Equipment

24.1 The Customer may use the Hire Equipment for the purposes of its business by its employees only. The Hire Equipment is not to be used, and the Customer will not permit them to be used, for any purposes for which it is not expressly designed.

24.2 The Customer agrees that it will not:

24.2.1 without the prior consent of Onyx effect any technical, mechanical or other modification to the Hire Equipment, make any alterations or additions, and any such additions alterations or modified parts which may be made (whether with or without consent) shall become part of the Hire Equipment and shall belong to Onyx;

24.2.2 remove or interfere with any identification marks or plates affixed to the Hire Equipment nor attempt or purport to do so nor permit the same.

25. Duties of the Customer

The Customer shall during the continuance of the Hire Term :

25.1 ensure that the Hire Equipment is operated properly and in accordance with any instructions of Onyx from time to time;

25.2 [pay for all spare parts] necessary for the proper running and operation of the Hire Equipment;]

25.3 not take or allow any of the Hire Equipment to be removed from the Site without receiving the prior written authority of Onyx and, in the event of that authority being given, only on such terms as Onyx deems fit;

25.4 bear the cost of the repair or rectification of any damage to the Hire Equipment resulting from negligence or improper use of the Hire Equipment by the Customer or any person permitted by the Customer to use the Hire Equipment;

25.5 not sell, assign, mortgage, let on hire or otherwise dispose of or part with possession of the Hire Equipment or part thereof nor attempt or purport to do so;

25.6 permit Onyx or its authorised representative’s at all reasonable times to enter upon the Site to inspect and test the condition of the Hire Equipment.

26. Replacements

In the event the Hire Equipment becomes temporarily unusable (other than as a result of the Customer's negligence or failure to comply with any instructions in respect of the Hire Equipment), make available suitable replacement Hire Equipment within [48 hours] (or so soon thereafter as is practicable) after the receipt of notification from the Customer requesting the same.

27. Warranties

The Customer acknowledges that the Hire Equipment is supplied to Onyx by a third party, accordingly Onyx can give no warranty in respect of the Hire Equipment (other than as set out in Condition 33) but will to the extent possible pass on to the Customer the benefit of any warranties or guarantees given by such third party in respect of such Hire Equipment.

28. Ownership and Risk in the Hire Equipment

28.1 The Hire Equipment shall at all times remain the property of Onyx and the Customer shall have no rights to the Hire Equipment other than for the purposes of the Contract and the Customer shall not do or permit or cause to be done any matter or thing whereby the rights of Onyx in respect of the Hire Equipment is or may be prejudicially affected.

28.2 On delivery of the Hardware, all risk shall pass to the Customer [who shall at all times from delivery until the Hire Equipment is delivered back to Onyx in accordance with Condition

36.3.4 keep the Hire Equipment insured with an insurance company of good repute against loss or damage from all risks. The Customer shall notify its insurers that the Hire Equipment is on hire from Onyx and request the insurers to endorse a note of such interest on the policy of insurance naming Onyx as loss payee, shall on demand show to Onyx the policy of insurance, the premium receipts and insurance certificate and shall not use or allow the Hire Equipment to be used for any purpose not permitted by the terms and conditions of the policy of insurance or do or allow to be done any act or thing whereby the insurance may be invalidated. If the Customer shall make default in the payment of any premium in respect of the insurance Onyx may pay such premium in which event the Customer shall repay the amount thereof to Onyx on demand. The Customer shall indemnify Onyx against all loss or damage to the Hire Equipment not recoverable under the policy of insurance.

29. Licence of Software

The provisions of Condition 20 shall apply in respect of any software component of the Hire Equipment. The remaining Conditions shall apply to all Contracts:-

30. Customer Obligations

The performance by Onyx of its obligations under the Contract is dependent upon the Customer performing the Customer Obligations. The Customer shall accordingly comply with the Customer Obligations and Onyx shall have no liability to the Customer for any breach by it of the Contract which is caused directly or indirectly by any failure by the Customer so to comply.

31. Charges

31.1 The Set Up Charge shall be invoiced by Onyx to the Customer on the Live Date and shall be paid by the Customer within 30 days.

31.2 Where there is a Set Up Charge, and it is in excess of £999, the Set Up Charge will be invoiced on order and shall be paid by the Customer within 30 days.

31.3 Onyx shall be entitled to vary the Internet Service Charge in accordance with Condition

31.4 All Charges are (unless specified otherwise in the Schedule) inclusive of any applicable purchase tax, import and all other duties including but not limited to foreign exchange rates (where applicable). Any specific bank and other charges involved in the transfer of payment to Onyx shall be the responsibility of the Customer.

31.5 In the event that the Customer fails to make any payment of the Charges on the due date, Onyx reserves the right to:

31.5.1 give the Customer not less than 7 days’ notice of its intention to cancel or suspend any further performance of the Services, the Customer’s right to use the Domain Name and/or delivery, installation and/or licensing of Software and/or Hardware as appropriate;

31.5.2 charge the Customer interest on amount outstanding at the rate of 15 per cent per annum (calculated at a daily rate) from the date the payment became due until actual payment is made (irrespective of whether the date of payment is before or after any judgment or award in respect of the same);

31.5.3 terminate the Contract in accordance with Condition 36.2.1.

31.6 In the event that the Customer’s payment by direct debit or cheque is rejected by any Onyx Group bank account, Onyx Group reserves the right to charge the Customer an administration fee of £50 per payment rejection.

31.7 Onyx Group reserves the right to charge the Customer an administrative fee of £100 per event in respect of order cancellations and/or Customer account amendments.”

32. Support and Maintenance

Where the Customer requires support and maintenance of any or all of the Hardware or Software then this shall be subject to Onyx and the Customer entering into a maintenance agreement on Onyx’s standard terms and payment by the Customer of an annual support charge.

33. Warranties

33.1 Onyx warrants to the Customer that it will use all reasonable care and skill in the provision of the Internet Services and the selection of and installation of the Goods.

33.2 Onyx will throughout the Warranty Period rectify or remedy non-material defects, deficiencies or errors [as soon as reasonably practicable] [in accordance with the SLA].

33.3 The Customer acknowledges that software in general is not error-free and agrees that the existence of such errors in the Software shall not constitute a breach of the Contract.

33.4 To the extent permitted by the applicable law, Onyx disclaims all other warranties with respect to the Goods and the Services either express or implied, including but not limited to any implied warranties of satisfactory quality or fitness for any particular purpose.

34. Onyx’s Liability

34.1 The following provisions set out Onyx’s entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer in respect of:

34.1.1 any breach of its contractual obligations arising under the Contract; and

34.1.2 any representation (except fraudulent) or tortious act or omission including negligence arising under or in connection with the Contract.

34.2 Onyx’s liability to the Customer for death or injury resulting from its own or that of its employees’ agents' or sub-contractors' negligence or fraudulent misrepresentation shall not be limited.

34.3 Subject to Condition 34.2, Onyx shall not be liable to the Customer in respect of:

34.3.1 Consequential Loss even if such loss was reasonably foreseeable or Onyx had been advised of the possibility of the Customer incurring the same;

34.3.2 errors which are made as a result of instructions of the Customer;

34.3.3 any Event of Default caused as a result of a failure by the Customer to comply with the Customer Obligations.

34.4 Subject to the Conditions 34.2 and 34.3, Onyx’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to £15,000.

34.5 Nothing in this Condition shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.

35. Indemnities

The Customer undertakes fully and effectively to indemnify and keep indemnified at all times Onyx against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by Onyx directly or indirectly in respect of:

35.1 access to and/or use of the Services or the Internet by the Customer or by Co-Customers;

35.2 any information, data or material produced, transmitted or downloaded by the Customer or Co- Customers;

35.3 any breach by the Customer or by Co-Customers of any of the provisions of the Contract or of any law, code or regulation relating thereto, to the Internet or Customers;

35.4 the illegal sale of any products or services by the Customer in any jurisdiction;

35.5 the non-compliance by the Customer of any laws or regulations in any jurisdiction which apply to the use of the Internet;

35.6 the failure by the Customer to meet any order placed by its customers or to fulfil any of the Customer’s obligations to its customers.

36. Termination

36.1 The Contract, to the extent that it relates to the provision of the Services, hire of Hire Equipment and/or the licensing of Software, shall continue for the Initial Period and shall continue (unless terminated in accordance with Condition 36.2 below) for each Renewal Period thereafter unless and until either party serves on the other not less than 30 days notice of its intention to terminate the Contract (or any part thereof) such notice to expire at the end of either the Initial Period or a Renewal Period.

36.2 Notwithstanding any provisions herein contained the Contract may be terminated forthwith by either party by notice in writing from the party not at fault if any of the following events shall occur:-

36.2.1 if the other party shall at any time be in breach of the Contract and shall fail to remedy such breach (if capable or remedy) within thirty (30) days from receipt of notice in writing from the first party specifying such default;

36.2.2 if the other party shall suffer an Insolvency Event.

36.3 Within 7 days of termination (for whatever reason) of the Contract, the Customer shall:

36.3.1 return or destroy (as Onyx shall instruct) all Software licenced to the Customer during the continuance of the Contract and all and any copies made of the whole or any part of the same;

36.3.2 return to Onyx any Hardware or other equipment which remains Onyx’s property;

36.3.3 furnish Onyx with any passwords or other authentication required to access and reconfigure such Hardware or equipment;

36.3.4 return the Hire Equipment (including all manuals and accessories) to Onyx at such address as Onyx may direct in good order and in good working condition and at the Customer’s expense and risk

36.4 Termination of the Contract will e without prejudice to any accrued rights of either party and will not affect obligations which are expressed not to be affected by expiry or termination hereof.

37. Force Majeure

Notwithstanding anything contained in the Contract if Onyx shall be prevented or delayed whether directly or indirectly, in the performance of any of its obligations under the Contract by reason of any cause whatsoever beyond Onyx’s control (including without limitation any prevention or delay caused by an act or omission of the Customer, industrial dispute or the unavailability of spare parts), Onyx shall be excused from the performance of its obligations under the Contract for so long as such prevention or delay shall continue.

38. Technical Disputes

In the event of any technical dispute between the parties, either party may at any time by notice in writing refer the matter to an Independent Expert who shall act as expert not arbitrator, whose decision shall be final and binding on the parties and whose costs shall be borne as he may in his absolute discretion determine.

39. Notices

39.1 Any notice required to be given by either party to the other shall unless otherwise stated in the Contract be in writing and may be given by hand or sent by first class prepaid letter post, facsimile transmission or any comparable means of communication to the other party at the address stated overleaf or such other address as may be subsequently notified to the other party.

39.2 Any notice will be deemed to have been received if by hand upon delivery, if by post three days after posting, and if by any instantaneous method of transmissions upon being sent provided that it was reasonably believed by the sender that the recipient would successfully receive such a transmission.

40. Variations

Onyx shall be entitled to vary the terms of the Contract to take effect from the commencement of any Renewal Period provided that it serves notice on the Customer of such changes not less than 45 days prior to the commencement of the Renewal Period, and in the event that the Customer does not wish to accept such changes, the Customer shall exercise its right to terminate the Contract pursuant to Condition 36.1.

41. General

41.1 No waiver by Onyx of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

41.2 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

41.3 The Contract shall be governed by the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.

41.4 No Condition of the Contract shall apply to the extent that it effects the statutory rights of consumers and the Customer is, for the purposes of any such statutory right, a consumer.

41.5 It is the customer’s responsibility to ensure all contact and account details are correct and fully updated. The customer must inform Onyx of any changes to account contacts and/or account details. Onyx will not enter into any communication regarding a customer account with individuals who are not named contacts on said account.

Supplementary Information

Please note: The billing, technical or other contact name you provide will be the only names we will accept to authorise changes to your account. i.e. change of address, or change of email details. This is for security purposes only. Existing billing contacts can fax Onyx, on company headed paper, to add other employees to their account contact list.

Existing customers: If the product, or service, that you are ordering from Onyx Group is a replacement for an existing product or service, it is important that you inform us when you want the existing sale cancelled. Section 3 refers. Failure to do so may result in you receiving unwanted invoices, as unless informed, the accounts department may continue billing you for a service you no longer require.

Payment terms: All set up costs, software and hardware purchases must be paid for on placement of order. Monthly, quarterly and annual invoices are raised 30 days in advance of each rental period and payments are due 30 days from date of invoice. All monthly and quarterly recuring invoices must be paid by direct debit method of payment. Where no direct debit mandate is held by Onyx Group for a monthly or quarterly sale, Onyx Group reverses the right to suspend or remove service. If payment is not received within these 30 days a reminder will be issued. Onyx Group reserves the right to suspend services until such payments are made. It is the responsibility of the customer to inform Onyx Group of any changes in bank and credit card details where applicable. Onyx Group reserves the right to apply a levy charge of £50 (excl. VAT) for any rejected cheques, direct debits or credit card payments. Services will be suspended until all payments due including the levy charge are received. All prices exclude VAT@20%. In the event that the Customer’s payment by direct debit or cheque is rejected by any Onyx Group bank account, Onyx Group reserves the right to charge the Customer an administration fee of £50 per payment rejection.
Direct Debit: We cannot process orders which are being paid for by Direct debit without the original, signed, DDI form. Unfortunately, faxes are not acceptable to the bank.

Terms of Supply: All services are supplied subject to Onyx Group’s standard terms and conditions (available on request or from our web site) All services ordered must be paid for as detailed in payment terms. All rental periods are for a minimum of 12 months (longer if specified in section 2) including written notification 30 days in advance of required cancellation date. Any product that requires third party installation will be invoiced from date of successful installation and the contract period commences at that point. Any orders cancelled prior to the installation date will incur a cancellation charge. For any services that include managed hardware, this hardware remains the property of Onyx Group. Upon cancellation of service this hardware must be returned to Onyx Group. Until we receive such hardware the customer will still be liable for the ongoing charges associated with that product. All products include specified levels of support from our customer service team. There are limitations to this support and these are detailed in the Technical Support Specifications for each product. Any support required above the levels specified will be chargeable at an hourly rate. Please contact our customer service team for more details.

POP3 mail: Onyx will supply you your e-mail username and password once your order has been processed. For single dial-ups etc, you will be offered the chance of choosing an email address based on yourname@onyxnet.co.uk. Broadband customers are given domain based email addresses, for example: yourname@yourcompany.onyxnet.co.uk.

SMTP mail: Certain Onyx products provide the option of SMTP mail delivery. This means that Onyx’s servers will attempt to deliver the mail to your mail server, and queue it on our servers should your server or connection fail. SMTP mail is generally only suitable for companies with their own mail server. If you choose SMTP mail, we will contact you for the IP address of your mail server.

Registering a domain: Rules for DNS registration: The following characters are allowed in domain names: a to z, hyphens and numerals. One/two letter/number names are not accepted.

Transferring a domain to Onyx Group: if you have an existing domain ending in .uk, please ask your current internet service provider to change the ips-tag to “ONYX”, otherwise the transfer will be delayed. If you have an existing domain ending in .com, .net or .org, please ask your existing Internet Service Provider to acknowledge the transfer request we will send them. This will be in the form of an email request from our registrar, (OpenSRS), that the admin contact must agree to in order for the domain to be successfully transferred to Onyx Group. The existing registrar will also receive an e-mail transfer request, and they too need to agree to the request. For example, Network Solutions, Tucows etc.

Note: Domains ending in uk.com uk.net gb.com gb.net se.com se.net no.com suffix: Details on how to transfer these domains to Onyx can be found at www.centralnic.com using the link “modify domain”. This is not something that Onyx Group can do, only the admin, billing or technical contacts of the domain can make this change. Please also be aware that transfer procedures differ between registrars, and ISP’s and some types of domain names may take longer to complete than others if we are not supplied with all of the relevant information, or if the ISP releasing the domain fails to do so. If you are in any doubt over the procedure, we recommend liaising with Onyx Group before starting this process.

DETAGGED Domains: To restore a DETAGGED domain name, the registrant needs to go to Nominet’s (www.nic.uk) online tag change form. The registrant will need to pay a tag change fee of £15+VAT per domain name as well as paying any outstanding fees, by credit card. The online system will generate a PDF declaration, which confirms the new tag that the domain name in question should be associated with, (ONYX). When you have returned this to Nominet along with the registrant's identification (letterhead, copy of driving licence etc as detailed in the form), Nominet will be able to retag the domain name in question.

Hosting: If you are hosting your web site with Onyx, but your domain name is with another ISP, you will need to contact that ISP in order that they point the domain to Onyx’s Servers, and make any MX changes if you expect to use Onyx to deliver your email. If you are unsure of what this entails, please contact Technical Support.

Static IP addresses: Onyx products, such as Network-Dials, Home –Office Broadband are provided with one Static IP address. Business, Managed Broadband and leased line products are provided with two Static IP addresses. Two IP’s enables you to run services such as web or e-mail servers behind your broadband/leased line connection. Assignment of IP-addresses in Europe is controlled by RIPE. Subject to approval, any number of IP addresses can be supplied. However, most companies only require two and use Network Address Translation (NAT) to allow all machines on their network to access the Internet. You should only need additional IP addresses if you want machines on your network to be visible across the Internet. Additional IP’s can be ordered by completing an Additional IP form. Please note, all sections must be completed fully, to include defining the equipment, operating system, number of existing routers, servers, PC’s and expected future number of servers/PC’s, otherwise the order will be rejected. Additional IP’s are not available to Home-Office users

Migration and MAC Code: Service provider to Service Provider End User migration enables End Users to request a move from one Service Provider to another, without terminating and re-installing their services. This is completed by the creation of a unique (MAC) code for the connection which is provided by the “losing” ISP to the customer, who in turns forwards this code to the “gaining” ISP as part of their broadband order. Having obtained a MAC code, a customer, together with the “gaining” ISP must use it within 30 days, otherwise it expires and a new code will need to be sought.

Broadband and existing BT line: Broadband will only work with a standard BT analogue PSTN line, (Public Switched Telephone Network), and requires that the existing BT line be converted to broadband at the local exchange. Once converted, the line can be used for both voice and Internet simultaneously. Some services such as ISDN, BT Highway, PBX lines, RedCare, BT VideoStream, BT Data-Stream, Pulse Metering Facilities or a coin-box cannot be provided on the same line as the BT Broadband service. It is the responsibility of the customer to ensure any service, or equipment on their line is compatible with Broadband. In the event that BT rejects a broadband application, Onyx Group will not be responsible for reinstating a service that a customer has removed for the purposes of obtaining Broadband. If you are unsure what type of line you presently have, please ring BT on 150 (home users) or 152 (commercial users). BT will enable the telephone number provided on this form, so please ensure it is correct. The customer will have to pay any costs incurred for BT enabling broadband on an incorrect number.

ISDN: Many companies and home users have had their original PSTN phone line converted to ISDN, which is a digital format. Some versions of ISDN such as Home Highway or Business Highway, will allow the end user to have more than one telephone number going through the line. In order to receive the benefits of Broadband, the line must be a standard analogue PSTN line, and if you have had your line converted to ISDN, it will then need to be converted back to PSTN. The facility to change the line back to a standard BT line is described in Section 4 of the Broadband order form. Please note: If you had more than one number associated with your old existing ISDN line, you will only be able to keep the one number that you choose to have your broadband connection subscribed to. The other numbers will be cancelled.

Line faults affecting broadband: If a fault occurs with your broadband connection and our Technical Support department believe that this is BT line related, they will report this fault to BT for further investigation. For this reason, we do not recommend using ADSL broadband for “mission critical” services. If Internet access is important to you, we further recommend that you have to hand an alternative method of connection to the Internet, such as a dial-up connection. Onyx Group provides such dial-up accounts as standard with their broadband sales. NOTE: All broadband users can access the Internet/email via Onyx by an analogue modem (I.E. 56k), using their email log in ID, and password. Calls charged at Local rate, (depending upon the phone network used). Should a fault be logged against this connection and it is proved not to be a BT issue, charges may be levied.

Change of company name/status affecting broadband: Changing your company name will, as far as BT is concerned, require your Broadband to be ceased, and re-provided under a new contract. This will be done automatically and as such, should you know in advance that your company’s name is to be changed, you should contact Onyx Group on 0845 7 715715. BT will also cease your Broadband should you change your Telecom Provider or add, or change the services you have with BT. If you are in any doubt, please contact Onyx Group first.

Change of address affecting broadband: Please be aware that should you change premises from where your broadband is in use, you will still be responsible to make payment for the balance of the contract term that you have with Onyx Group. Onyx will be prepared to release you from your current contractual obligation for the original broadband order, provided a new broadband order is placed with a minimum 12 month term. This is classed as a cease and re-provide, and we require 30 days notice, as per BT’s, and our Terms & Conditions. Our accounts department would raise a credit for any unused element, less the 30 required days notice. Customers choosing not to re-order with Onyx will be held to the original full 12 months term.

Please note Broadband services can not be transferred from one installation address to another, even if the line and phone number can.

Broadband Micro Filter: Home-Office Broadband users will require a Micro-filter for their router. Most new ADSL routers will come with one. This is an adaptor that plugs into your BT wall socket, and allows both the cable from your computer, and the cable from your phone to plug into the one socket. This is required in order for you to be able to use your telephone to talk, whilst using the Internet. Without it, you will not be able to make phone calls. If you have 2 or 3 phone extensions, you will also need to purchase the same amount of filters, one for each additional phone you intend to use. If your PC is next to the incoming BT phone point, it is possible to purchase a BT adaptor that adds additional phone connections, and this could be plugged into the Micro-filter, thereby eliminating the need for a Micro-filter for each phone. This is dependant upon your present phone set-up. Onyx provides one Micro-filter for Business/Managed ADSL sales.

Broadband Enhanced Care terms and conditions:

• Enhanced Care relates to issues/problems with broadband circuits between our customers premises/site and the BT exchange only.
• Enhanced care does not provide total care on the phone line. If your phone service is not working or the phone line is faulty then you must contact BT directly in this respect.
• Once we have reported a fault to BT (during Onyx working hours 8.00am/6.00pm), they will aim to respond to us within 3 hours. This is on a “Best Endeavour” basis only.
• Once Onyx Technical Support has reported the fault to BT, they (BT) will aim to rectify the problem within 20 hours instead of the standard 40 hours. This is on a “Best Endeavour” basis only.
• BT will give the fault higher priority within their systems
• We can ask BT to arrange an out of hours engineer visit if necessary to fix the fault promptly. This does not mean we offer 24 hours fault reporting, but can be beneficial in escalating the repair of a fault.
• Dispensation will be offered on the original sale (i.e. original broadband), for the new extended 12 month period that if prices are reduced, Onyx in turn will pass this reduction to the customer. Service credits will be offered against future services based on the price difference in this 12 month period.

Dial-up packages: Customers connecting to Onyx via analogue, or ISDN modems should use the following number: 0845 350 9000. This is a Local rate number with charges being billed at a local rate, (depending upon your telecom provider).

Installation Procedure and date for all Broadband packages: Onyx Group will advise you of an installation date. You will be required to test the line and configuration on the date of installation by the external supplier. All installations are subject to approval by BT and no guarantee of installation can be given. The installation date Onyx provide is an indication only and Onyx Group do not accept liability for the line not being installed on that date.

Broadband and Firewalls: We strongly recommend that you use a firewall to protect your PC and/or network from attack, as it will be permanently connected to the Internet. Firewalls allow you to securely host services such as mail, or web servers on your local network. They can also be set to block ports on your computer that might otherwise be open to possible malicious attacks. A firewall can also be configured to restrict internal access to the outside world, and only allow trusted computers access to your internal network, from the outside world.

Broadband contention ration: This term describes the contention of bandwidth, by other users. For example, a 50:1 contention ratio means that you potentially share the bandwidth available with 49 other users at the BT exchange. (If they were to all surf the Internet at the same time). 20:1, you contend with 19 other users. This should be bourn in mind when comparing download speeds, as other users contending the same BT network that you are, will affect the speed. The lower the ratio, the more bandwidth you potentially have, and the less likelihood of a slow connection during peak periods.

8Mbps Broadband MAX information:
This is an ‘up to 8Mbps’ service, the actual speed you receive will vary depending on numerous variables, including: line quality, distance from telephone exchange and protocol overheads.
During the initial 10 day period after line activation, router connections may periodically drop, and line speeds fluctuate until the line speed settles to a stable rate.

Managed Broadband PLUS information:
This product needs the presence of two telephone lines. One standard BT PSTN line is required for the ADSL connection, as described in section 2, and a second ISDN line for the Cisco back-up router. Onyx Group requires clarification that you have an ISDN enabled telephone line, (or that you are in the process of obtaining one), that will support the backup router.

Technical Support: Support is available from our trained support team between 8.00am-6.00pm, Monday to Friday. Different products/services provide different levels of support, so we advise reading the section below for clarification on what is supported

Technical Support can assist with connection problems, set-up issues (problems with username-password, etc), FTP issues, configuring of e-mail client, POP3 mail problems, such as adding or deleting email addresses and amending domain records i.e. adding sub domains, changing MX record.

For Managed services, Technical Support covers:

1) Equipment pre-configured by Onyx engineers to your specifications.
2) Remote access support from Onyx engineers for modifications to the equipment.
3) Replacement pre-configured equipment sent to you in the event your existing equipment develops a fault on an advance-replacement basis: that is, we will configure and ship a replacement, you then need to ship the faulty equipment back to Onyx.

Home-Office/Business Broadband hardware routers: These are, or will be supplied by a third party, so we cannot guarantee installation of this service. Therefore we recommend that you do not purchase any hardware (i.e. broadband router) until you have a confirmation of installation from Onyx Group. Please note if you have purchased a USB router – you will need to have a USB enabled PC running Win 98 release 2 or higher (not Windows NT 4). If you are providing an Ethernet router you will need a PC with a network card (NIC) TC/IP enabled.

ACCEPTABLE USE POLICY

Introduction
All Internet users must observe rules and etiquette governing the use of the Internet. These requirements are contained or referred to in Onyx’s terms and conditions as well as general law.

Onyx’s customers must ensure that they know what these requirements are and how they are affected by them.

Onyx has therefore developed an Acceptable Use Policy (AUP) relating to Internet services which give a clear understanding of what is and is not acceptable when using the Internet.

Complying with Onyx’s AUP is a contractual requirement. Failure to comply with Onyx’s AUP may result in restriction, suspension or termination of your service.

Onyx may change the AUP from time to time. To make the most of the guidance contained in the AUP therefore please review Onyx’s AUP on a regular basis and keep up to date with any changes.

Improper Use
While connected to the Internet you must comply with legal requirements concerning the use and/or misuse of a public communication system as defined by the Telecommunications Act.

When accessing the Internet via Onyx you should be aware of the following, which are not permitted via our services:

• “Spamming” or sending unsolicited bulk e-mail. Any e-mail lists run by you or referring to sites or services hosted by Onyx or on Onyx’s network should be strictly opt-in only or preferably double opt-in. Users of mailing lists must monitor non-deliveries and cleanse their lists accordingly.
  
• Hacking, port scanning or other unauthorised access to systems is not permitted.
  
• Any other illegal activity including but not exclusively those covered by the Computer Misuse Act 1990.
  
• Hosting an e-mail “open relay” or other insecure service on your connection, or transmission or relaying of e-mail viruses and/or worms.
  
• Transmissions or hosting of defamatory or illegal material, including pornographic or obscene material.
  
• Any other activity which generates unacceptable loads on our systems or networks and/or degrades service for Onyx’s other users.
  

Abuse and improper use of the service in any of the above ways will result in suspension of your service without prior notice or in extreme cases immediate termination of your service without refund.

If you are in any doubt as to the acceptability of your intended use or for a technical glossary please contact Onyx on 01642 216200.

Acceptable Use
Onyx’s customer relationships, networks and connectivity to the Internet requires its customers to behave responsibly. Onyx will not permit irresponsible behaviour by its customers which could damage these relationships, Onyx’s network or the use of the Internet for others.

Broadband Heavy Usage
Usage is measured on a daily basis by Onyx.

Persistent heavy users of the service will, at Onyx’s discretion, have their service throttled resulting in a severely restricted service. Any such throttling of service will apply throughout the day, 24/7.

Automated usage e-mails will be sent by Onyx to the customer at each point when the customer reaches 75% & 90% of usage limits. The customer’s account manager will also contact the customer to discuss service requirements & upgrading of service to avoid any potential current or future restriction of service and/or additional charges.

The customer will, at Onyx’s discretion, be charged an over usage charge equivalent to the cost of one month’s service should the customer reach their service usage limit.