Conditions for
BT Openzone Service

• Interpretation
• Commencement of this Contract
• Provision of the Service
• Duration
• Connection of Equipment to the Service
• Access to Sites
• Use of the Service
• Intellectual Property Rights
• Intellectual Property Right Indemnities
• Confidentiality
• Charges and Deposits
• Limitation of Liability
• Matters Beyond the Reasonable Control of Either Party
• Escalation and Dispute Resolution
• Termination of this Contract by Notice
• Breaches of this Contract
• Changes to this Contract
• Export Control
• Transfer of Rights and Obligations
• Entire Agreement
• Notices
• Severability
• Law and Jurisdiction

1 Interpretation

In this Contract:

"BT" means British Telecommunications plc of 81 Newgate Street, London EC1A 7AJ, registered in England No. 1800000.

"BT Group Company" means a BT subsidiary or holding company including without limitation a holding company of BT, or a subsidiary of any such holding company, all as defined by Section 736 of the Companies Act 1985, as amended by the Companies Act 1989.

"Contract" means, in order of precedence, these Conditions, the Service Schedule, the Charges Schedule, the Order Form and the Customer Requirement Form.

"Customer" means the person named on the Order Form. BT may accept instructions from another person who BT reasonably believes is acting with the Customer's authority or knowledge.

"Minimum Period" means the first 12 months of the Service beginning on the Operational Service Date or any other minimum period specified on the Order Form.

"Operation Service Date" means the date when the Service is first made available to the Customer or the date when the Customer first starts to use the Service, whichever is the earlier.

"Service" means the service described in paragraph 2 of the Service Schedule to this Contract.

"Site" means each physical location of the radio access points offering the Service.

2 Commencement of this contract

This Contract begins on the date that the Order Form is signed by both parties.

3 Provision of the service

3.1 BT will provide the Service to the Customer on the terms of this Contract.

3.2 BT will use reasonable endeavours to provide the Service by the date agreed with the Customer, but all dates are estimates and BT has no liability for any failure to meet any date.

3.3 BT will provide the Service with the reasonable skill and care of a competent telecommunications service provider.

3.4 BT will use reasonable efforts to provide uninterrupted Service but from time to time faults may occur, which BT will repair as soon as reasonably practicable.

3.5 Occasionally BT may:

• for operational reasons, change the codes or the numbers used by BT for the provision of the Service or the technical specification of the Service, provided that any change to the technical specification does not materially affect the performance of the Service;
• give the Customer instructions which it believes are necessary for reasons of health, safety, security or the quality of any telecommunications service provided by BT to the Customer or any other customer; or
• temporarily suspend the Service because of an emergency or for operational maintenance or improvements. Service will be restored as soon as reasonably practicable.

Before doing any of these things BT will give the Customer as much notice as possible.

4 Duration

Upon expiry of the Minimum Period the Service will continue to be provided to the Customer on the terms of this Contract unless terminated in accordance with the Conditions.

5 Connection of equipment to the service

5.1 The Customer must ensure that any equipment:

• connected to or used with the Service must be connected and used in accordance with any applicable instructions, safety and security procedures; and
• attached (directly or indirectly) to the Service is compliant with any relevant legislation.

6 Access to sites

BT does not authorise or guarantee access to any of the Sites for the Customer to use the Service or guarantee that Service will continue to be available from a specific Site.

7 Use of the Service

7.1 It is the Customer's responsibility to obtain and keep in force any licence necessary for the Customer to use the Service in any country in which it is provided.

7.2 The Service must not be used in any way that:

• does not comply with the terms of any legislation or any licence applicable to the Customer or that is in any way unlawful;
• does not comply with any instructions given under paragraphs 3.5(b) and 5.1 or any other public telecommunications operator or other competent authority, in any country where the Service is provided.

7.3 The Customer must indemnify BT against any claims or legal proceedings which are brought or threatened against BT by a third party because the Service is used in breach of paragraphs 7.1 or 7.2.

7.4 BT will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings and have due regard to the Customer’s representations.

8 Intellectual property rights

8.1 Where software is provided to enable the Customer to use the Service, BT grants the Customer a non-exclusive, non-transferable licence to use the software for that purpose.

8.2 The Customer will not, without BT's prior written consent, copy, decompile or modify the software, nor copy the manuals or documentation (except as permitted by law).

8.3 The Customer will sign any agreement reasonably required by the owner of the copyright in the software to protect the owner's interest in that software.

9 Intellectual property rights

9.1 BT will indemnify the Customer against any claims and proceedings arising from infringement of any intellectual property rights through BT’s provision of the Service to the Customer. As a condition of this indemnity the Customer must:

• notify BT promptly in writing of any allegation of infringement;
• make no admission relating to the infringement;
• allow BT to conduct all negotiations and proceedings in respect of any such claims and give BT all reasonable assistance in doing so (BT will pay the Customer’s reasonable expenses for such assistance); and
• allow BT to modify the Service, or any item provided as part of the Service, as set out in paragraph 9.4.

9.2 The indemnity in paragraph 9.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment, software or services not supplied by BT or to infringements caused by designs or specifications made by, or on behalf of, the Customer. The Customer will indemnify BT against all claims, proceedings and expenses arising from such infringements.

9.3 The limitations and exclusions of liability contained in paragraph 12 do not apply to this paragraph.

9.4 If the Service becomes, or BT believes it is likely to become, the subject of a claim of infringement of any Intellectual Property Rights BT, at its option and expense, may secure for the Customer a right of continued use or modify or replace the Service so that it is no longer infringing, provided that the modification or replacement does not materially affect the performance of the Service. If the indemnity in clause 9.1 applies and none of the remedies in this clause is available to BT on reasonable terms, BT may notify the Customer and terminate the Service without liability to the Customer.

10 Confidentiality

10.1 The parties will keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained under this Contract and will not, without the written consent of the other party, disclose that information to any person (other than their employees or professional advisers, or in the case of BT the employees of a BT Group Company or their suppliers, who need to know the information).

10.2 This paragraph 10 will not apply to:

• any information which has been published other than through a breach of this Contract;
• information lawfully in the possession of the recipient before the disclosure under this Contract took place;
• information obtained from a third party who is free to disclose it; and
• information which a party is requested to disclose and, if it did not, could be required by to do so by law.

10.3 This paragraph 10 will remain in effect for 2 years after the termination of this Contract.

11 Charges and Deposits

11.1 The charges for the Service will be calculated in accordance with the Charges Schedule. Charging will begin on the Operational Service Date. Charges for use of the Service will be calculated in accordance with the details recorded by, or on behalf of BT.

11.2 All charges will be invoiced and paid in pounds sterling unless otherwise stated in the Charges Schedule. Value Added Tax or any other applicable in country sales, use tax or like charge in a country where the Service is provided, which is payable by the Customer will be added to BT's invoices as appropriate.

11.3 The Customer will pay the charges within 14 days of the date of BT's invoice. BT may charge daily interest on late payments at a rate equal to 4% per annum above the base lending rate of HSBC Bank plc.

11.4 If the Customer does not pay a bill, BT may instruct a debt collection agency to collect payment (including any interest and/or late payment charges) on its behalf. If BT instructs an agency, the Customer must pay BT an additional sum. This will not exceed the reasonable costs BT has to pay the agency, who will add the sum to the Customer’s outstanding debt on BT's behalf.

11.5 As part of its credit management procedures, BT may, at any time:

• require the Customer to pay a deposit or provide a guarantee as security for payment of future bills by the means requested by BT; and/or
• carry out a credit vet of the Customer. The Customer agrees to provide BT with any information BT may reasonably require for this

The Customer can obtain details of the credit reference agencies BT works with by writing to:

The BT Openzone Billing Manager
pp 5WW6
Telecom House
Church Street
Wolverhampton
West Midlands WV2 4BA

12 Limitation of liability

12.1 BT accepts unlimited liability for death or personal injury resulting from its negligence. Paragraphs 12.2 and 12.3 do not apply to such liability.

12.2 BT is not liable to the Customer, either in contract, tort (including negligence) or otherwise for any direct or indirect loss of profits, business or anticipated savings, nor for any indirect loss or damage or for any destruction of data.

12.3 BT's liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Contract is limited to £250,000 for any one incident or series of related incidents and to £500,000 for all incidents in any period of 12 months.

12.4 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 will continue to apply.

13 Matters beyond the reasonable control of either party

13.1 If either party is unable to perform any obligation under this Contract because of a matter beyond that party's reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving that party’s employees) or acts of local or central Government or other competent authorities, or events beyond the reasonable control of that party's suppliers, that party will have no liability to the other for that failure to perform.

13.2 In the event of:

• a refusal or delay by a third party to supply a telecommunications service to BT and where there is no alternative service available at reasonable cost; or
• the imposition of restrictions of a legal or regulatory nature which prevent BT from supplying the Service

then BT will have no liability to the Customer for failure to supply the Service.

13.3 If any of the events detailed in paragraphs 13.1 or 13.2 continue for more than 3 months either party may serve notice on the other terminating this Contract.

14 Escalation and dispute resolution

14.1 If a dispute arises between the parties to this Contract, the parties will use their reasonable endeavours to settle the dispute in accordance with the following procedures:

• a dispute which has not been settled by the Customer's representative and the BT representative within 7 days of the matter being raised, may be escalated by either party to the first level by written notice to the other party;
• if the dispute is not resolved at the first level within 7 days of escalation either party may refer the dispute to the second level.

The parties' representatives and the people to whom a dispute must be escalated at the first and second levels are as notified by either party to the other, from time to time.

14.2 If a dispute is not resolved after the procedures set out in paragraph 14.1 have been followed then, if the parties agree, the dispute will be referred to a mediator:

• the mediator will be appointed by agreement of the parties. In the event of a failure to agree within 3 days of a proposal by one party, the mediator will be appointed by the Centre for Dispute Resolution (CEDR);
• within 14 days of the appointment of the mediator the parties will meet with the mediator in order to agree the procedure to be adopted for the negotiations;
• all negotiations connected with the dispute will be conducted in confidence and without prejudice to the rights of the parties in any further proceedings;
• if the parties reach agreement on the resolution of the dispute the agreement will be put in writing and once signed by the parties will be binding on them;
• if the parties are not prepared to agree to the dispute being referred to a mediator, or fail to reach agreement within 2 months of the mediator being appointed then either party may exercise any remedy that it has under this Contract.

15 Termination of this contract by notice

15.1 Unless otherwise stated in the Service Schedule, this Contract may be ended by either party on 28 days written notice to the other.

15.2 If the Customer or BT ends this Contract during the Minimum Period the Customer will pay BT the early termination charges set out in the Charges Schedule. This clause will not apply if:

• the Customer gives notice to end the Contract within three months of BT notifying the Customer of an increase to the charges or changes to the Conditions in either case to the Customer's significant detriment; or
• BT ends the Contract during the Minimum Period for convenience; or
• the Contract ends because either clause 9.4 or 13.3 applies.

16 Breaches of this Contract

16.1 Either party may terminate this Contract:

• immediately on notice if the other party commits a material breach of this Contract, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or
• immediately on notice if the other party commits a material breach of this Contract which cannot be remedied; or
• on reasonable notice if the other party is repeatedly in breach of this Contract and fails to remedy the breach within a reasonable time of a written notice to do so; or
• immediately on notice if the other party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over their assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the other party.

16.2 If BT is entitled to terminate this Contract under paragraph 16.1, BT may, on giving prior notice where practicable, suspend the Service without prejudice to such rights. Where the Service is suspended under this paragraph the Customer must pay the charges for the Service until this Contract is terminated.

16.3 If this Contract is terminated by BT during the Minimum Period because of an event specified in paragraph 16.1 the Customer must pay BT, without prejudice to any other rights BT may have, the termination charges specified in the Charges Schedule.

16.4 If either party delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver is limited to that particular breach.

17 Changes to this contract

17.1 BT can change this Contract (including the charges) at any time and will publish any change in line with clause 17.2.

17.2 Unless otherwise stated in the Service Schedule, BT will publish any changes to this Contract (including the charges) online at http://www.btopenzone.com (or any other online address that BT may advise the Customer), and/or in accordance with clause 21, as follows:

• for changes that are to the Customer’s significant detriment, at least 28 days before the change is to take effect; and
• for all other changes, at least one day before the change is to take effect.

18 Export control

Provision of the Service to the Customer may be subject to export control law and regulations. BT does not represent that any necessary approvals and licences will be granted. The Customer will provide reasonable assistance to BT to obtain any necessary consents. If, through no fault of BT, any necessary consents are not granted, then BT can terminate this Contract or the provision of the Service under it (as appropriate) without any liability to the Customer.

19 Transfer of rights and obligations

Neither party may transfer any of its rights or obligations under this Contract, without the written consent of the other, except that BT may transfer its rights or obligations (or both) to a BT Group Company without consent.

20 Entire agreement

20.1 This Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.

20.2 The parties acknowledge and agree that:

• they have not been induced to enter into this Contract by any representation, warranty or other assurance not expressly incorporated into it; and
• in connection with this Contract their only rights and remedies in relation to any representation, warranty or other assurance are for breach of this Contract and that all other rights and remedies are excluded.

20.3 The provisions of paragraphs 20.1 and 20.2 shall not affect the parties’ rights or remedies in relation to any fraud or fraudulent misrepresentation.

20.4 A person who is not party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

21 Notices

21.1 Unless otherwise stated in this Contract, notices given under this Contract must, except for notices given under paragraphs 3.5 and 17.1, be in writing and delivered to the following addresses:

• to BT at the address shown on the invoice or any address which BT provides to the Customer for this purpose;
• to the Customer at the address to which the Customer asks BT to send invoices or the address of the Site or the Customer’s primary email address or in addition if the Customer is a limited company, its registered office.

21.2 The Customer must inform BT immediately if there is any change to any of the contact information the Customer provided to BT.

22 Severability

If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of its provisions will continue in full force and effect as if this Contract had been executed with the invalid, illegal or unenforceable provision omitted.

23 Law and Jurisdiction

This Contract is governed by the law of England and Wales and both parties submit to the exclusive jurisdiction of the English courts.