Terms & Conditions

Learn more about our Terms and Conditions of Service here.

Terms and Conditions

These Terms and Conditions for Services (“Terms”) are made as of the Effective Date between (1) [Onyx Group Limited] (CRN 05682619) of 9 Cheltenham Road, Portrack Interchange Business Park, Stockton on Tees, TS18 2AD (“Onyx”) and (2) the customer as the party stated in the Order Form and/or Contract to which these Terms are attached (“Customer”), which together with the Service Descriptions also attached to the Order Form and/or Contract collectively constitute the “Agreement”.

1. Contract Definitions

Terms defined in the Order Form and Service Description shall have the meanings as set out in that Order Form and Service Description
Additional Services shall mean any services provided by Onyx additional to the Services.
Change means a variation of the Services.
Commencement Date means the date stated in the Order Form and/or Contract.
Customer Site means where applicable the premises specified in the Order Form and/or Contract (or such other site as shall be agreed between the parties in writing).
Designated Device(s) means those items forming part of the Supported System identified in the Service Descriptions and/or the Order Form and/or Contract.
Effective Date means the date of execution of the Agreement by both parties as specified in the Order Form or Contract.
Fault means a technical failure to perform in accordance with normal or pre-defined parameters or thresholds.
Fees means the fees set out in the Order Form and/or Service Descriptions and/or Contract together with any other fees based on hourly rate(s) for any Additional Services, and any rental charges (all exclusive of VAT). Hourly rates for Additional Services shall be Onyx’s prevailing rates from time to time as available upon request.
Fix Resolution of an incident (or Fix) is defined as being restoration of the service, such that the customers’ business can function, be that on replacement, temporary or other infrastructure. Also, this is not necessarily resolution of any redundancy infrastructure that provides part of a service. (and “to Fix and to restore” shall be construed accordingly).
Intellectual Property Rights means copyrights, patents, utility models, trademarks, service marks, design rights (whether registered or unregistered), database rights, semiconductor topography rights, proprietary and confidential information rights and all other similar proprietary rights as may exist anywhere in the world together with all applications, extensions and/or renewals in respect of any of the same.
Order Form means the sales order form to which these Terms are attached.
Personnel means any officer, employee, agent or contractor of Onyx duly authorised by Onyx and acting in accordance with Onyx approved internal and security procedures.
Service Description(s) means the specifications for the various Services set out in the service description attached to the Order From and which form part of this Agreement.
Services means the services specified in the Service Descriptions applicable to each component thereof.
Service Levels means the levels of service set out in the Services Descriptions for each Services component.
Supported System means the Designated Devices, operating system software and application software and managed infrastructure of the Customer as identified by the Service Descriptions and/or the Order Form and/or Contract.
Unavailability means (during supported hours (as specified by the applicable Service Level in any Service Description)), (A) any loss of use resulting from (i) scheduled maintenance, (ii) performance of the Supported System as a result of the wilful or malicious acts or omissions of the Customer, its employees, agents, contractors, or vendors, or anyone gaining access to the Onyx network or Customer’s networks by means of the Customer’s passwords or equipment (or the passwords or equipment of the Customer’s employees, agents, contractors or vendors) (whether or not authorised); or (iii) is attributable to any Customer content, including but not limited to software, or applications on the Supported System.

2. The Services

2.1 In consideration of payment of the Fees, Onyx hereby undertakes to provide the Services to the Customer from the Commencement Date in accordance with the Service Description and Service Levels in all material respects.
2.2 ONYX warrants and undertakes to the Client that the Services shall be performed in accordance with:
2.2.1 the Service Descriptions and Service Levels;
2.2.2 good industry practice (good industry practice shall mean that services are delivered in a manner consistent with reputable and high quality performers amongst providers of services the same as or similar to the Services);
2.2.3 all laws, regulatory requirements, regulations, bye-laws, codes of practice, British standards and EU or international standards from time to time applicable to the performance of the Services;
2.2.4 all policies and working procedures of the Client made known by the Client to ONYX; and
2.2.5 all lawful and reasonable directions, instructions and requests from the Client
2.2.6 the provisions of Schedule 1 attached to this Agreement
2.2.7 reasonable care and skill.2.3 Onyx shall at all times maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services.
2.4 Onyx warrants to the Customer that the Services will be provided using reasonable care and skill.
2.5 Onyx shall have the right to determine which resource is utilised per contracted deliverable.

3. Customer Obligations

3.1 The Customer shall:
3.1.1 ensure that the Order Form and/or Contract and any information it provides in the Service Description and Service Levels are complete and accurate;
3.1.2 use best endeavours to ensure that any log on details or passwords issued to or used by the Customer in relation to the Services are not disclosed to unauthorised users or third parties;
3.1.3 provide Onyx and its Personnel with access to the Customer’s Site (or other premises, records and materials) sufficient to enable Onyx to fulfil its obligations. The Customer shall advise Onyx of any policies and security rules in force for the conduct of Personnel at the Customer Site;
3.1.4 provide Onyx with such information and materials as Onyx may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
3.1.5 make available personnel with suitable knowledge of the proper functioning of the Customer and due authorisation to liaise with Onyx to enable Onyx to provide the Services;
3.1.6 co-operate fully with Onyx and Personnel in all matters relating to the Services;
3.1.7 obtain at its own expense all necessary third party permissions which are outside the control of Onyx that may be required to allow Onyx to provide the Services
3.1.8 not unreasonably or without due cause interrupt or interfere with Onyx’s provision of the Services, notwithstanding the Customer’s other rights and remedies; and
3.1.9 keep and maintain all materials, equipment, documents and other property of Onyx (Supplier Materials) at the Customer’s Site in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not to dispose of or use the Supplier Materials other than in accordance with Onyx’s written instructions or authorisation.
3.1.10 comply at all times, and ensure Customer’s visitors comply at all times, with all Applicable Law, including (i) applicable international, EU and UK legislation; (ii) health and safety regulations; (iii) Applicable Law regulating computing and/or the use of the internet including the Computer Misuse Act 1990 and the DPA; and (iv) any legislation relating to electrical safety and testing of electrical items including PAT testing.
3.1.11 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.
3.1.12 where work place recovery or disaster recovery services are supplied by Onyx, undertake testing of the process and technology that support this service annually as a minimum. The testing is to be undertaken in line with the current Onyx procedures for testing the service. Failure to undertake a minimum of an annual test of these services introduces risk to the customers’ business such that Onyx cannot guarantee the success of any work place recovery or disaster recovery invocation. The resulting risks and subsequent resulting business impact, issues or incidents caused by this lack of testing are to be borne by the customer. Where workplace recovery or disaster recovery services are supplied by Onyx, the customer is to undertake testing as soon as possible post contract signature in order to ensure that the service is fit for purpose. Any issues found during testing, that are the responsibility of the customer, must be rectified by the customer as soon as possible, until these are resolved Onyx cannot ensure the service levels described in the contract and the relevant service descriptions.
3.1.13 work place recovery or disaster recovery services are supplied by Onyx, ensure that their ‘Master Authorisation List’ of staff authorised to call an invocation is accurate and up to date. Onyx staff will not, in the event of an invocation pass on details or initiate invocations with anyone not on the ‘Master Authorisation List’ It is the customers responsibility to keep Onyx updated as to any staff changes or contact detail changes.

4. Fees and Payment

4.1 In consideration of the provision of the Services the Customer shall pay Onyx’s invoices for the Fees at the times stated in the Order Form and/or Contract without any set-off, counterclaim or deduction (except for any deduction or withholding required by law). Onyx may at any time, without limiting its rights or remedies, set off any amount owing to it by the Customer against any amount payable by Onyx to the Customer. Subject to the foregoing, Onyx’s invoices for any Services are due and payable no later than thirty days from the date of the invoice.
4.2 Subject to clause 4.1 hereof, Onyx may withdraw or suspend the Services in the event that any payment is not settled by its due date, provided that Onyx has given no less than 14 days notice of such non-payment to the Customer.
4.3 If the Customer fails to make any payment due to Onyx by the due date for payment, then the Customer shall pay interest on the overdue amount at a rate of 4% above Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment, both dates inclusive.
4.4 All amounts payable by the Customer are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made by Onyx to the Customer, the Customer shall, on receipt of a valid VAT invoice from Onyx, pay to Onyx such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services
4.5 Onyx reserves the right to increase its prices at any time during the Term, by giving the customer not less than 28 days written notice, in connection with ANY non-refundable government power tax associated with the cost of providing the contracted services, such as carbon tax. All non-refundable government power tax sums payable under or pursuant to this Contract will be clearly stated on presentation of a valid invoice
4.6 The [Fees] will increase by the annualised retail price index on each anniversary of the Commencement Date.
4.7 Service credits for failures of data centre services covered by a contracted service level detailed in the Data Centre Service Descriptions will be limited to the below.

Downtime per calendar month (rounded up to nearest minute or hour)Service Credits as % of Monthly Rental Charge versus Downtime per calendar month
Up to 5 minutes in a single month0%
Up to 1 hour in a single month10%
Up to 8 hours in a single month20%
Greater than 8 hours in a single month30%

5. Dispute Resolution

5.1 If a dispute arises between the parties out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then (other than in relation to a Change which shall be treated in accordance with the provisions of clause 12) the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute setting out its nature and full particulars (Dispute Notice), together with any relevant supporting documents. On service of the Dispute Notice the authorised representatives of the parties (or person of equivalent status with authority given by a party to negotiate shall attempt in good faith to resolve the Dispute. Each party’s authorised representatives will be nominated in writing from time to time;
(b) if the authorised representatives are for any reason unable to resolve the Dispute within 7 days of service of the Dispute Notice, the Dispute shall be escalated to the parties senior management. The parties’ senior management shall meet promptly to discuss the Dispute and shall make reasonable endeavours to resolve the Dispute in good faith to their mutual satisfaction.

6. Term and Termination

6.1 Subject always to clause 6.2 this Agreement is effective from the Commencement Date for the term detailed in the Order Form and/or Contract (“the Initial Term”) and shall subsist for a further period or periods of one year (a “Subsequent Term”) unless terminated by either party giving to the other N** days or months’ notice, where N** is dictated by the below table showing per service notice periods’ prior written notice expiring on the last day of the Initial Term or any Subsequent Term. In the event that Onyx proposes a change in Fees (other than in accordance with clause 4.4), no earlier than N** days or months’ notice, where N** is dictated by the below table showing per service notice periods’ prior to the end date of the Initial Term (or any Subsequent Term), Onyx may give the Customer notice of its proposed Fees for the Subsequent Term. The Customer agrees to provide notification to Onyx of acceptance or non-acceptance of the proposed Fees within five (5) days of receipt of such proposed Fees. Where such Fees are accepted by the Customer or in the absence of any notice to the contrary, these new Fees shall apply from the commencement of the Subsequent Term. Where the Customer notifies Onyx that it does not accept the proposed Fees, Onyx may at its option give the Customer no less than 14 days’ notice of termination to expire on the last day of the Initial Term (or any Subsequent Term as applicable). In the event that Onyx does not give notice of termination as aforesaid, the Agreement shall continue for the Subsequent Term on the basis of the then current Fees, which shall for the avoidance of doubt include any increase in accordance with clause 4.4.

N** {Notice Period} (Being in Days)SolutionS** {Subsequent Term} (Being in Days)
30Broadband Links, Domains, Pop 3 mailboxes and Web Hosting30
30All Cloud Serve and Cloud Backup and all Cloud related solutions.30
90Work Place Recovery Solutions365
90Support contracts365
90Managed Servers, Racks and Bandwidth365
90Leased Lines and Internet Services excluding services listed above90
90All Onyx Services Not Listed Above365

Where the order form and/or contract do not state an initial term it is deemed that the initial term of the contract is equal to the table above, with the subsequent term and notice period deemed applicable as both the initial term length and notice period length as well as any subsequent term and subsequent notice period length.

6.2 Without affecting any other right or remedy available to it either party shall be entitled to terminate this Agreement at any time by serving written notice to that effect on the other party if:
(a) the other party ceases or threatens to cease to carry on business; or the other party is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reorganisation or amalgamation shall be bound by and assume that party’s obligations hereunder) or compounds with or convenes a meeting of its creditors or has a receiver, manager or administrator appointed; or.
(b) the other party is in breach of a material term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days of the date of a written notice requesting it to do so.
6.3 On request, and in any event on termination of this Agreement for whatever reason, in the absence of written consent of the other, each party shall deliver up to the other all confidential information of the other in its possession or under its control held in any tangible form and (to the extent not so comprised therein) all other documents and tangible property belonging to the other and, in the case of Onyx, any document which Onyx has produced specifically for the Customer and in the course of performing the Services which may be in Onyx’s possession or under its control. Neither party shall thereafter, without the prior written consent of the other, use, make or retain copies of any such items nor use in any way any of the other’s confidential information.
6.4 Onyx will facilitate and assist in the transfer, removal or back-up of the Customer’s data from Onyx’s infrastructure upon expiry of the term of the Agreement, and will carry out such activities at the reasonable request of the Customer’s nominated representative such assistance to be provided as applicable and at Onyx’s then current engineering support rates. In the event of termination of the Agreement by the Customer under clause 6.2(b), Onyx will at the Customer’s request ensure that all Customer data is removed from Onyx’s infrastructure.
6.5 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination. Clauses 6.3, 6.4, 6.5, 8, 9.2, 10, 11, 13, 14, 20, 21, 23 and 24 shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.

7. Force Majeure

7.1 For the purposes of this Agreement the expression “Force Majeure” shall mean any cause affecting the performance by a party of its obligations arising from the acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but without limiting the generality thereof) governmental regulations, fire, flood, failure of a utility service or transport or telecommunications network, act of God, war, act of terrorism, riot, civil commotion, malicious damage, breakdown of plant or machinery, or any disaster or an industrial dispute affecting a third party for which a comparable substitute third party is not reasonably available. In the case of either party such cause will only be considered Force Majeure if it is not attributable to the wilful act, neglect or failure to take reasonable precautions of that party, its servants, agents or employees.
7.2 If either party is affected by Force Majeure they will immediately notify the other in writing of the nature and extent and the effect and likely duration of the circumstances constituting Force Majeure. The party affected by Force Majeure shall use all reasonable endeavours to minimise the effect of Force Majeure on its performance of its obligations under this Agreement and shall, subject to clause 7.3 forthwith after the cessation of Force Majeure, notify the other party thereof and resume full performance of its obligations under this Agreement.
7.3 Neither party shall in any circumstances be liable to the other for any loss of any kind whatsoever whether directly or indirectly caused to or incurred by the other party by reason of any failure or delay in the performance of its obligations hereunder which is due to Force Majeure or (in the case of Onyx) which is due to a Force Majeure event affecting a third party provider to Onyx.
7.4 Without prejudice to the generality of the foregoing, Onyx will not be responsible for any failure or outage which (i) has occurred as a result of acts or omissions of the Customer or its employees, agents, contracts, or vendors, or anyone gaining access to the Onyx network or Customer’s networks by means of the Customer’s passwords or equipment (or the passwords or equipment of the Customer’s employees, agents, contractors, or vendors) (whether or not authorised); or (ii) is attributable to any Customer content, including but not limited to software.

8. Confidential Information

8.1 All information, know-how, drawings, specifications, documentation, software listings or code which Onyx may have imparted and may from time to time impart to the Customer including, without limitation, relating to any methodology, diagnostic software or hardware or generally to the Service (“Onyx Confidential Information”) is confidential and the Customer agrees that it shall use Onyx Confidential Information solely in accordance with the provisions of this Agreement and that it shall not at any time during or after the expiry or termination of this Agreement disclose the same whether directly or indirectly to any third party without Onyx’s prior written consent.
8.2 The Customer further agrees that is shall not itself or through any subsidiary, agent or third party modify, vary, enhance, copy, sell, lease, licence, sub-licence or otherwise deal with any diagnostic software or hardware or variations, modifications, copies, releases, versions or enhancements thereof which belong to Onyx or, except as permitted by the law relating to this Agreement, have any software or other program written or developed for it based on any Onyx Confidential Information.
8.3 All information relating to the Customer’s business including (without limitation) all know-how, drawings, specifications, documentation, any information related to the customers of the Customer, investment strategies, software, proprietary code and procedures, and software which the Customer may have imparted and may from time to time impart to Onyx (“Customer Confidential Information”) is confidential and Onyx agrees to keep all Customer Confidential Information strictly confidential and not to disclose any Customer Confidential Information to any third party, save where prior authority in writing from a duly authorised representative of the Customer has been given to Onyx.
8.4 The foregoing provisions shall not prevent the disclosure or use by either party of any such information (i) which is as at the date of this Agreement or through no fault of that party hereafter enters into the public domain; (ii) which that party is required to by a legally competent body to disclose in connection with any court proceeding, arbitration or injunction, provided that written notice is provided to the other party prior to responding or disclosing any Confidential Information; (iii) to its legal or other professional advisers from time to time under strict conditions of confidentiality. Onyx agree that it will not engage in any securities transactions based on knowledge of Customer Confidential Information.
8.5 Onyx will maintain all applicable (requirements 9 and 12 applicable only unless a specific contract has been drawn up with the customer) PCI DSS requirements (for those DC areas allocated to PCI DSS and where customers have requested PCI DSS compliance) to the extent the Onyx possesses or otherwise stores, processes, or transmits cardholder data on behalf of the customer, or to the extent that Onyx could impact the security of the customer’s cardholder data environment.

9. Warranties

9.1 Both parties warrant and represent that they have full capacity and authority to enter into and perform this Agreement.
9.2 Except as otherwise stated in this Agreement all terms, warranties and conditions whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
9.3 The Customer warrants that the performance by Onyx of the Services will not cause Onyx to infringe any third party rights in the Supported System or any third party item supplied directly or indirectly by the Customer.

10. Intellectual Property Rights

10.1 The Customer acknowledges that any and all Intellectual Property Rights used or embodied in or in connection with the provision of the Services and software provided by Onyx under this Agreement, are and shall remain the property of Onyx or its licensors. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, the patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of any software, Services or any related documentation.
10.2 Onyx acknowledges that any and all Intellectual Property Rights used or embodied in or in connection with the Customer’s Confidential Information and provided by the Customer under this Agreement, are and shall remain the property of the Customer.
10.3 Onyx will (and in the case of any third party provided software, to the extent itself indemnified by such third party) indemnify the Customer against all liability arising under any injunction or final judgement or any settlement in respect of any infringement in the United Kingdom of any Intellectual Property Right of any third party in connection with any software or materials provided by Onyx to the Customer for the Customer’s use, in performing the Services or otherwise hereunder provided always that the Customer complies in all material respects with clauses 10.4 and 10.5
10.4 The Customer must promptly notify Onyx of any allegations of infringement coming to its attention and provide Onyx with all information in its possession in relation thereto. Onyx shall conduct all negotiations and litigation at its own expense and with exclusive control.
10.5 The Customer shall give reasonable assistance to Onyx in connection with any claim made against Onyx or the Customer under this clause and the Customer shall not make any admissions without the prior written consent of Onyx.
10.6 If a claim for infringement or alleged infringement of any Intellectual Property Right of any third party is made or is in Onyx’s reasonable opinion likely to be made, Onyx may at its sole option and own expense either: (i) modify or substitute all or part of the software and/or materials without reducing their performance and functionality, so as to avoid any such infringement and these terms shall apply to such modified or substituted software and/or materials; or (ii) procure a licence on reasonable terms for the Customer to use the software and/or materials in such manner as shall not interfere with the Customer’s intended use of such software and/or materials.
10.7 The foregoing provisions of this clause 10 shall not apply insofar as any such claim or demand or action is in respect of any use by or on behalf of the Customer, where applicable, of anything supplied by Onyx in connection with this Agreement in combination with any item not so supplied where such use of the item directly gives rise to the claim, demand or action, or in a manner not reasonably to be inferred from its specification or requirements of use.
10.8 Title to all data originated by the Customer and stored or transmitted by Onyx in Onyx’s provision of the Services shall remain with the Customer.

11. Limitation of Liability

11.1 Except as expressly and specifically provided in this Agreement the Customer assumes sole responsibility for results obtained from the use of any software and the Services by the Customer, and for conclusions drawn from such use. Onyx shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Onyx by the Customer in connection with the Services, or any actions taken by Onyx at the Customer’s direction.
11.2 Neither party excludes or limits liability to the other party for death or personal injury resulting from the negligence of the other party, its employees or agents, or for any liabilities that cannot be excluded or limited at law.
11.3 Subject always to (i) clause 11.2 and (ii) save in respect of loss or damage covered by clauses 11.6, 11.7 and 11.8, Onyx’s liability under or howsoever arising in tort, contract or otherwise in connection with this Agreement for each event or series of related events giving rise to such liability shall be limited to the Fee paid for the Services during the period of twelve months (or such lesser period as may have actually elapsed) consecutive months immediately preceding the event giving rise to the claim under this Agreement. Notwithstanding anything to contrary in this clause 11.3, both parties shall be liable for all damages resulting from its negligence, bad faith, fraud or wilful misconduct, provided however that in no event shall Onyx’s liability for such losses exceed the sum of £1,000,000 or such sum as covered by Onyx’s indemnity insurance and in no event shall Customer’s liability for such losses exceed the sum of £1,000,000.
11.4 Without prejudice to the generality of clause 11.3, in no event shall Onyx be liable to the Customer for (i) any indirect or consequential loss or damage or for: (ii) losses incurred by any agent, supplier or contractor of the Customer, (iii) loss of profits (whether categorised as direct or indirect) (iv) losses arising from business interruption (v) loss of business, revenues, goodwill or anticipated savings, or (vi) loss or corruption of data. Notwithstanding anything to the contrary in this clause 11.4, both parties shall be liable for all damages resulting from its negligence, bad faith, fraud or wilful misconduct, provided however that in no event shall Onyx’s liability for such losses exceed the sum of £1,000,000 or such sum as covered by Onyx’s indemnity insurance and in no event shall the Customer’s liability for such losses exceed the sum of £1,000,000.
11.5 The parties expressly agree that should any limitation or provision contained in this clause 11 be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if Onyx thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein. The Customer acknowledges that Onyx is not in a position to assess such loss which the Customer may suffer as a result of any failure to provide the Services and it would be impractical and uneconomic for Onyx to insure against such liability.
11.6 Onyx’s liability to the Customer for direct loss or damage to tangible property, including but not limited to those items owned by Onyx which are installed at the Customer’s site, suffered by the Customer as a result of this Agreement will in no event exceed the sum of £1,000,000 in respect of each event or series of related events giving rise to such liability.
11.7 If any Service Description where a remedy to be provided by Onyx in respect of a failure to perform a specific Service is stated to be the Customer’s exclusive remedy for that failure, the Customer agrees that where Onyx performs the remedy to the reasonable satisfaction of both parties, the Customer shall have no further claim against Onyx for that failure.
11.8 Service Levels shall not apply where a Fault results from (i) a Force Majeure event and/or is the result of neglect, accidental, wilful or malicious damage; (ii) any malicious attack, (iii) a Fix involves a data restore; (iv) where there is Unavailability; (v) any malfunction of software other than as provided and installed by Onyx or; (vi) the acts or omissions of any third party contractor such as an Internet Service Provider. In the event that damage to the Supported System occurs as the result of installation of third party software, Onyx reserves the right to charge for any rectification.

12. Change Control

12.1 Either party may propose a Change by submitting a written request to the other of the proposed Change, including details of the Change and a proposed timetable for implementation. Any Change proposed by Onyx shall also contain details of any alteration to Fees.
12.2 Where the Customer submits a written request to Onyx for a proposed Change, Onyx shall respond giving details of the Change together with any consequent alteration of Fees or technical specifications and a proposed timetable for implementation.
12.3 Within 30 days of receiving Onyx’s request under clause 12.1 or Onyx’s response under clause 12.2, the Customer shall give Onyx a written response either accepting or rejecting the Change.
12.4 If the Customer rejects either the request for Change under clause 12.1 or the response under clause 12.2, there shall be no change to this Agreement. If the Customer accepts the request for Change under clause 12.1 or the response under clause 12.2, the Change shall be made only after agreement of the necessary variations to any relevant terms of this Agreement to take account of the Change that has been reached and this Agreement has been varied in accordance with clause 12.5.
12.5 Any variation or amendment to this Agreement shall only be effective if made in writing and signed by the parties’ authorised representatives.

13. Non-solicitation

13.1 During the term of this Agreement and for a period of six (6) months after termination howsoever arising neither party will directly or indirectly and whether on its own behalf or on behalf of any person, firm, partnership or company, solicit or offer employment or engagement to or employ or engage any person who is at any time during the term of this Agreement a director or senior executive of or a consultant to either party, or any employee of either party with whom the other party, it employees or agents has had dealings relating to this Agreement. Nothing in this clause shall restrict the parties’ activities in relation to general recruitment advertising.

14. Waiver

14.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it was given.
14.2 No failure or delay on the part of either party to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

15. Severability

15.1 In the event that any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
15.2 If any invalid, unlawful or unenforceable term, condition or provision would be valid lawful of enforceable if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

16. Data and Infrastructure Protection

16.1 Each party shall comply with its obligations under the Data Protection Act 1998. If in the course of providing the Services, Onyx is processing personal data (as defined by the Data Protection Act 1998) on the Customer’s behalf, the parties record their intention that the Customer shall be the data controller and Onyx shall be a data processer (as those expressions are defined by the Data Protection Act 1998). Onyx shall: (i) process the personal data only in accordance with the terms of this Agreement and any instructions given by the Customer from time to time; (ii) take appropriate technical and organisational measures against unauthorised or unlawful processing of the relevant personal data or its accidental loss, destruction or damage; (iii) acquire no rights in relation to the personal data; (iv) return the relevant personal data to the Customer ; and (v) not transfer any of the personal data outside the European Economic Area except with the prior written consent of the Customer.
16.2 The Customer warrants that it has obtained all necessary consents from its individual employees and contractors in relation to the processing of their personal data in relation to their individual training needs.
16.3 The Customer acknowledges and agrees that details of the Customer’s name address and payment record may be submitted to a credit reference agency.
16.4 The customer shall not by any wilful, deliberate, reckless, negligent or unlawful act interfere with the work of another user or jeopardize the integrity of Onyx data networks, computing equipment, systems, programs, or other stored information.
16.5 Gaining or attempting to gain unauthorised access to any facility or service within or outside Onyx, or making any attempt to disrupt or impair such a service, is not permitted.
16.6 The scanning of another machine to determine which services or software is running or installed is regarded as a hostile action. Such scanning is therefore prohibited, whether the target machine is on the Onyx network or elsewhere, unless specifically authorised by Onyx.
16.7 Network sniffing (the viewing of network traffic not directed at the Customer’s specific equipment used to listen) is not allowed on the network without explicit permission from Onyx.
16.8 Customers may not undertake (either deliberately or recklessly) activities which may result in the following:

  • the waste of staff effort or network resources, including time on any system accessible via the Onyx network;
  • the corruption or disruption of other Onyx customers’ data;
  • the violation of the privacy of other customers;
  • the disruption of the work of Onyx or its other customers;
  • the introduction or transmission of a virus into the Onyx network.

16.9 The following actions are all prohibited on Onyx platforms:

  • the creation, transmission, storage, downloading or display of any offensive, obscene, indecent, or menacing images, data or other material, or any data capable of being resolved into such images or material;
  • the creation or transmission of material which is designed or likely to cause annoyance, inconvenience or needless anxiety, or to harass another person;
  • the creation or transmission of defamatory material about any individual or organisation;

Onyx reserves the right to filter or block any material deemed to be in breach of this
Acceptable User Policy (AUP).

17. Use of Onyx provided email accounts

The owner of an account is responsible for all messages sent using that account.
Users must not send offensive or abusive email or propagate chain mail. Statements made in email messages are considered to be “in permanent form” for the purposes of the Defamation Act 1996 and so the sender or Onyx or both could be held responsible for any libellous statements made in an email.

18. Onyx Hosted Software

Much software (and many databases and datasets) is only licensed for use on the systems upon which it is installed. Unauthorised copying of such items is commonly known as “piracy” and is an offence under the Copyright, Designs and Patents Act 1988.

No attempt should be made to copy software or databases/datasets from Onyx or other computer systems unless written authority to do so has been obtained from the owner of the information.

Some software is freely distributable and in this case copies may be taken for personal use without authorisation. However, users are advised to investigate carefully and abide by the terms under which such copying is allowed.

Onyx does not take responsibility for any consequent damage or liability incurred by the customer while copying, installation or running of any software or datasets.

19. Assignment

19.1 The Customer shall not, without the prior written consent of Onyx, assign transfer, charge, sub-contract or deal in any manner with all or any of its rights or obligations under this Agreement.
19.2 Onyx may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20. Announcements

20.1 Onyx shall be entitled to refer to the Customer and this Agreement in any publicity or advertising material or other similar communication to third parties provided that in doing so Onyx does not breach its obligations of confidentiality under other provisions of this Agreement. This permission specifically includes, but is not limited to, any public release (either through announcements on the internet, print or broadcast news media), any article prepared for internal or external publication, technical papers and discussions with journalists.
20.2 The Customer agrees that if required by Onyx, no earlier than 6 months from the Commencement Date, it will fully co-operate with Onyx in the production of a case study aimed at providing a detailed analysis of the Services provided and how they have impacted the Customer.

21. Relationship

21.1 Nothing in this Agreement is intended or shall operate to establish or constitute any relationship of partnership, joint venture, employment or franchise between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22. Notices

22.1 Any notice required to be given under this Agreement shall be in writing and shall be deemed to be sufficiently served if it is either delivered personally or sent by pre-paid first class post or recorded delivery post, or by fax, or by email (requesting acknowledgement) and addressed to the following:
22.1.1 For Onyx – by email to your Onyx Account Manager and by post to the address stated for ONYX at the address set out at the heading of these Terms marked for the attention of the Managing Director, or to such other address as may have been notified by Onyx for such purposes
22.1.2 For the Customer – as per details set out in the Order Form and/or Contract.
22.1.3 A notice delivered by hand shall be deemed to have been received when delivered. A correctly addressed notice sent by pre-paid first class post or recorded delivery post shall be deemed to have been received 48 hours after posting; if sent by fax transmission at the date of transmission; if by electronic means one hour after the notice was sent.
22.1.4 Any notice delivered outside of the hours of 9am to 5pm or on a Saturday, Sunday or public holiday will be deemed to have been served on the first Business Day following delivery.

23. Contract (Rights of Third Parties) Act 1999

23.1 This Agreement does not create any rights on any other person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

24. Headings and provisions

24.1 The headings in this Agreement are for convenience only and are not part of this Agreement. In the event of any conflict between the various parts of this Agreement and any provisions therein, the following order of precedence shall apply to the extent of any conflict (i) the Order Form (ii) the Service Descriptions (iii) the Terms and Conditions (iv) the Contract.

25. Entire Agreement

25.1 This Agreement constitutes the entire understanding between the parties relating to its subject matter and supersedes all prior representations, writing, negotiations, or understandings with respect thereto. No party has relied upon any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) except as expressly set out in this Agreement.
25.2 Each party unconditionally waives any right it may have to with (i) claim damages against the other or (ii) rescind the Agreement, on the basis of any statement made by the other (whether made carelessly or not) not set out in this Agreement (or for breach of any warranty given by the other not so set out or referred to) unless such statement or warranty was made or given fraudulently.

26. Governing Law

This Agreement shall be governed by and construed in accordance with English Law and the parties hereto agree to submit to the exclusive jurisdiction of the English Courts, save that Onyx has the right at its sole discretion to commence proceedings in alternative jurisdictions.

27. 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 recurring 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 reserves 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 cannot 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 dependent 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: Equipment pre-configured by Onyx engineers to your specifications. Remote access support from Onyx engineers for modifications to the equipment. 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. Technical support cannot assist with the configuration or debugging of equipment sitting behind services we have supplied, such as an office network behind Onyx’ routers or firewalls. Nor can Onyx support the configuration and debugging of internal mail servers such as Microsoft Exchange or VPOP3, or other software, other than programs such as MS Outlook Express.

ACCEPTABLE INTERNET 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. If you have reason to believe that an Onyx hosted domain is operating outside of this acceptable use policy, please contact abuse@onyx.net with as many details as possible. Broadband Heavy 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. 

Schedule 1

Expressions defined in the Data Protection Act 1998 (“the Act”) used in this Schedule 1 will have the meanings given to them in the Act.

1.1 In relation to any Personal Data provided by the Client to ONYX, ONYX acknowledges that for the purposes of this Agreement the Client is the Data Controller and the ONYX is the Data Processor in respect of the Personal Data that ONYX Processes on behalf of Client in the course of providing the services.
1.2 ONYX will Process, and will ensure the ONYX employees Process Personal Data only on, and in accordance with, the instructions of the Client, having regard to the provisions of the Act and only to the extent necessary for ONYX to perform the Services in accordance with the terms of the Agreement.
1.3 ONYX will enable the Client to ascertain and monitor compliance by ONYX with its obligations under the Agreement including but not limited to allowing the Client and/or its auditors to have access to any processes, procedures, documentation, and/or any premises where Processing of Personal Data is carried out and will promptly review and use best endeavours to make any adjustments to its security processes and procedures which are required by the Client. The requirement to give notice under this clause 1.3 will not apply if the Client believes that ONYX is in breach of any of its obligations under this Agreement.
1.4 ONYX shall ensure appropriate technical and organisational measures are in place to safeguard against any unauthorised access, loss, destruction, theft, use or disclosure of Personal Data which ensure a level of security appropriate to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction or damage. Without prejudice to the foregoing Onyx shall comply with any and all security measures and processes required by the Client from time to time.
1.5 ONYX shall ensure that access to the Personal Data is limited to:
(a) those employees who need access to the Personal Data to meet ONYX’s obligations under this Agreement; and
(b) in the case of any access by any employee, such part or parts of the Personal Data as is strictly necessary for performance of that employee’s duties.
1.6 ONYX shall ensure that all employees:
(a) are informed of the confidential nature of the Personal Data;
(b) have undertaken training in the laws relating to handling personal data; and
© are aware both of ONYX’s duties and their personal duties and obligations under such laws and this Agreement.
1.7 ONYX shall take reasonable steps to ensure the reliability of any of ONYX’s employees who have access to the Personal Data.

1.8 ONYX will immediately pass to Client any requests, notices or other communications from individuals, the Information Commissioner’s Office or any other law enforcement body it receives, for Client to respond. ONYX will, at no additional cost, provide Client with assistance as Client may reasonably require, and within the timescales reasonably specified by Client, to enable Client to respond.

1.9 ONYX represents, warrants and undertakes that it will carry out the Services in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments or those which it is notified by Client are applicable.

1.10 ONYX shall not disclose the Personal Data to any Data Subject or to a third party other than at the request of the Client or as provided for in this Agreement.

1.11 ONYX shall notify the Client immediately if it becomes aware of:
(a) any unauthorised or unlawful processing, loss of, damage to or destruction of the Personal Data;
(b) any advance in technology and methods of working which mean that the Client should revise the security measures set out in Schedule 3.

1.12 ONYX shall not do anything or omit to do anything which causes the Client to be in breach of any obligations it has to third parties.