General Terms and Conditions (Hosting)

1. DEFINITIONS

1.1 These General Terms will apply to all Orders accepted by 4BN and will take precedent over any terms and conditions of the Customers.
1.2 In these General Terms the following meanings shall apply: -

"Customer" means XYZ Trading Ltd., XYZ House, London to whom 4BN agree to supply Services in accordance with these terms and conditions.
"4BN" means Fourth Broadcast Network Ltd of Summerfield House, 9 Monks Hill, Worlebury, Bristol, BS22 9RQ or any subsidiary or associated company.
"Authorised Representative" means the representative of 4BN notified to the Customer after acceptance by 4BN of the Customer's order.
"Intellectual Property Rights" means all patents, trade marks, registered designs, (and any applications for any of them), copyright, design right, database rights, domain names, know-how, and any other rights of a similar nature;
"Minimum Period" means the period for which the services are provided as specified on the front of the Customer Agreement:
"SLA" means any service level agreement produced by 4BN in relation to a particular Service;
"Services" means the Services supplied by 4BN to the Customer from time to time under the terms of this Customer Agreement;
"Special Terms" means additional terms issued by 4BN in relation to any Equipment or Services.

2 SUPPLY

2.1 These General Terms will apply to all Services supplied by 4BN to the Customer. In addition the appropriate Special Terms for Equipment and/or Services will apply.
2.2 The Customer shall be bound by all Orders placed by it or on its behalf.
2.3 Additional Services can be ordered by completing the relevant Order. 4BN will not be bound to supply any Equipment or Services until 4BN notifies the Customer in writing that its Order has been accepted.
2.4 The terms of any Service Description Technical Survey and/or SLA issued by 4BN to the Customer will also be binding upon the Customer and will be incorporated into this Customer Agreement.

3. DELIVERY AND ACCEPTANCE

3.1 Any time quoted for delivery/performance of the Service is to be treated as an estimate only, but may be postponed because of conditions beyond 4BN's reasonable control, and in no event shall 4BN be liable for any damages or penalty for delay in despatch or delivery.
3.2 4BN however will use reasonable endeavours to provide the Service to the Customer by any agreed date, and will undertake to notify the Customer in writing if it cannot meet a particular date and agree an alternative with the Customer.

4 CHARGES AND PAYMENT TERMS

4.1 The charges for all Services will be set out in the Payment Terms. All charges may be varied by 4BN on prior notice to reflect changes in 4BN's costs of the supply or as a result of Customer requests to alter or add to Services or due to any error in an Order discovered by 4BN.
4.2 All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by the Customer and will be supplied in accordance with UK legislation in force at the tax point.
4.2 4BN reserves the right to require payment of a deposit and to carry out all appropriate credit checks before the supply of any equipment or service.

4.4 If the Customer does not make a payment when it is due 4BN will charge interest on the overdue amount at the rate of 4% above Lloyds TSB Bank plc base rate from the due date for payment until the date of actual payment and/or suspend supply of the Services to which the payment relates until payment is made in full.

5. DURATION

All Services are subject to a Minimum Period of twelve months which shall commence when the Services are made available and shall continue subject to the terms of this Customer Agreement for that Period. The Services will automatically renew for subsequent periods of twelve months on 4BN's charges current at the date of renewal unless and until the Customer notifies 4BN in writing that it does not want to renew the Services. The Customer's notice must be received by 4BN at least three months from the end of any twelve-month period.

6 CUSTOMER LIABILITY

6.1 The Customer must not use any Equipment or any Services that 4BN supplies to the Customer to store, reproduce, transmit, communicate or knowingly receive any material which is offensive, abusive, indecent, defamatory, obscene or menacing. The Customer must not breach any confidence, privacy or Intellectual Property Rights of any other party.
6.2 The Customer is liable for all loss or damage arising from the unauthorised access or use of the Customer's own networks and systems. The Customer is responsible for developing and implementing a security policy to prevent such unauthorised access or use. If 4BN becomes aware of or suspects such unauthorised access or use it shall be entitled to suspend and/or terminate all Services without notice.
6.3 The Customer will indemnify 4BN against any costs, claims, damages and losses incurred by 4BN as a result of a breach by the Customer of clause 6.1 and unauthorised access or use under 6.2. The Customer shall be responsible for the conduct of all claims to which this clause 6.3 applies. The Customer shall diligently defend such claims and shall use all reasonable endeavours to avoid any action that may be detrimental to 4BN's reputation.
6.4 The Customer shall be liable for all taxation in relation to any sum received or receivable paid or payable under or pursuant to or in connection with the use of the Services.
6.5 The Customer shall at all times indemnify 4BN for all costs, penalties and/or charges incurred by 4BN as a result of cancellation by the Customer.
6.6 Where 4BN is required to install any Software or Equipment at the Customer Premises, the Customer shall at all times indemnify 4BN for all costs reasonably incurred by 4BN as a result of the customer's failure to provide access to such premises and/or configuration of any equipment and any other assistance necessary for 4BN to carry out the installation.

7 4BN LIABILITY

7.1 Unless otherwise agreed in writing 4BN is not responsible for the security of the Customer's networks and/or systems and shall not be liable for any hacking or other unauthorised access to or use of such networks and/or systems. 4BN's liability for any defective Service will be as set out in the relevant SLA or Service Description.
7.2 4BN's sole liability for Equipment manufactured by a third party will be to assist the Customer in obtaining the benefit of warranties given by the manufacturer.
7.3 The foregoing provisions of this clause 7 are to the extent permissible by law in lieu of all other warranties express or implied including, but not limited to warranties of satisfactory quality and fitness for a particular purpose.

8 EXCLUSIONS OF LIABILITY

8.1 4BN will not be liable to the Customer for any loss of profits, goodwill, business opportunity or anticipated savings, business interruption, loss of programs or other data whether incurred directly or indirectly or for any indirect, incidental, consequential, special or punitive loss or damage whatsoever and howsoever arising regardless of whether such loss or damage was reasonably foreseeable by the parties.
8.2 4BN's liability to the Customer for any claim the Customer may have against 4BN in contract law in tort or otherwise (other than fraudulent misrepresentation or death or personal injury resulting from our negligence) in relation to any and all Services provided by 4BN to the Customer is limited to one hundred thousand pounds (£100,000) for any and all such claims.

9 INTELLECTUAL PROPERTY RIGHTS

9.1 All Intellectual Property Rights in or arising from any Services that 4BN supply to the Customer will be owned by 4BN or by a third party manufacturer or supplier unless 4BN agree otherwise in writing with the Customer.
9.2 The Customer's licence of any Intellectual Property Rights will terminate automatically on termination of the Service to which those Intellectual Property Rights relate, or termination of this Customer Agreement.

10 CONFIDENTIALITY

10.1 The Customer shall keep confidential any information relating to 4BN's business affairs, finance, trade secrets and all other information of a confidential nature and shall not disclose such information without the written consent of 4BN.
10.2 Any information to which clause 10.1 refers will not be subject to this obligation of confidentiality if, it becomes publicly available otherwise than as a result of a breach of a confidentiality by the Customer; it is disclosed to the Customer by someone else who is not subject to a confidentiality obligation; or it is required to be disclosed by a court of law. This confidentiality obligation will survive any termination of this Customer Agreement.

11 COMPLIANCE WITH LAW

The Customer shall at all times maintain all registrations and comply with all applicable United Kingdom and EU directives laws and all other local laws and regulations as may be necessary for its use of the Equipment and Services and shall ensure that its use of all Equipment data and Services complies in all respects with the provisions of such directives laws and regulations. The Customer shall indemnify 4BN against any costs, claims, damages and losses incurred by 4BN as a result of any breach by the Customer of any provisions of this clause.

13 SUSPENSION OF SERVICES

13.1 Without prejudice to 4BN's other rights, 4BN may suspend without liability provision of or access to all or part of any Service -
13.1.1 in response to or compliance with any law, statute, legislation, order, regulation or guidance issued by government, a court of law, any emergency service or any other competent regulatory authority;
13.1.2 in the circumstances set out in the SLA or to carry out routine or emergency maintenance or repair work on the Service or any of 4BN's networks and systems and for any other circumstances beyond 4BN's reasonable control.
13.2 Where ever possible 4BN will give reasonable prior notice of any suspension and details of the anticipated length of the suspension.

14 TERMINATION

14.1 4BN may immediately terminate this Customer Agreement if:

14.1.1 the Customer's use of the Services breaches the provisions of clause 6.1 of this Customer Agreement or otherwise exposes 4BN to any criminal liability or to the threat of any criminal liability or if there is any unauthorised access or use of the Customer's networks or systems;
14.1.2 the Customer fails to perform one or more of its obligations under this Customer Agreement and does not remedy the failure within 14 days of a request to do so;
14.1.3 any information provided by the Customer as part of any order or otherwise relied upon by 4BN in accepting the Customer's order proves to be or becomes inaccurate or incorrect to an extent that in 4BN 's reasonable opinion affects its ability to provide the Equipment and/or Services to the Customer;
14.1.4 the Customer is an individual and any distress or execution is levied on its property or assets, or if the Customer makes an arrangement or composition with its creditors, or commits any act of bankruptcy, or if a bankruptcy petition is presented against the Customer; or
14.1.5 the Customer is a company and a resolution or petition to wind up the company is passed, or a receiver, administrative receiver or administrator of the whole or any part of the Customer's undertaking or assets is appointed.

14.1.6 the Customer fails to pay its debts as and when due.
14.2 Subject to clause 14.3 below the Customer may terminate this Customer Agreement on 3 months prior written notice to 4BN.
14.3 If this Customer Agreement is terminated for any reason the Customer will still be responsible for paying for any outstanding charges that relate to the period before termination. If before the end of the Minimum Period 4BN terminates this Customer Agreement for any of the reasons set out in clause 14.1 or the Customer terminates this Customer Agreement in accordance with clause14.2 the Customer will still be liable to pay all charges for the Service up to the end of the Minimum Period.
14.4 If one Service is terminated by either party under this clause it will not affect any other Services in place at that time.
14.5 Clauses 6, 7, 8, 10, 12, 14, 18 and 19 will survive the end of this Customer Agreement together with any other provision expressly stated to survive the end of this Customer Agreement.

17 FORCE MAJEURE

17.1 Each party will be excused from the performance of its obligations and will not be liable for any delay or failure caused by any acts events omissions or happenings beyond its reasonable control including but not limited to government regulations, fire, flood, war, civil war terrorism or an act of God. If either party is affected by an event referred to in this clause it must inform the other in writing as soon as reasonably practicable if either party is affected by any such event for a period of 3 months or more the other may terminate this Customer Agreement or any specific Service affected by written notice.

18 GENERAL

18.1 This Customer Agreement and any documents referred to in it form the complete and exclusive statement of agreement between 4BN and the Customer and supersede any prior proposals, agreements, representations and undertakings between 4BN and the Customer except in respect of any fraudulent misrepresentations made by either party.
18.2 If any clause of this Customer Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remainder of the clauses and the remainder of the affected clause will remain valid and enforceable.
18.3 The Customer Agreement is personal to the Customer and the Customer may not transfer it or sub-contract it in whole or in part without the written consent of 4BN.
18.4 If 4BN do not take action against the Customer for a breach of its obligations at any time, 4BN's decision will not amount to a waiver of the Customer's breach and will not prevent 4BN from taking action in relation to that, or any other breach in the future.
18.5 The terms of this Customer Agreement and any Order that the Customer may place can only be varied by the written agreement of 4BN's Authorised Representative and an authorised representative of the Customer.
18.6 All payments made by the Customer to 4BN shall be made in full without set-off/deduction or counter claim.
18.7 Nothing in this Customer Agreement or any action arising pursuant to it shall constitute or be deemed to constitute between the parties a partnership, agency, association, joint venture or other corporate entity. Neither party shall have the authority to negotiate or conclude contracts or otherwise enter into binding arrangements with any third party on behalf of the other.
18.8 Except as otherwise provided in this Customer Agreement, this Customer Agreement is intended and agreed to be solely for the benefit of 4BN and the Customer and their permitted assigns and no third party shall acquire any benefit, claim or rights of any kind whatsoever pursuant to, under, by or through this Customer Agreement.