REFERENCE OFFER SUBJECT TO CONTRACT€¦ · REFERENCE OFFER SUBJECT TO CONTRACT _____ PAGE 1 of 33...

REFERENCE OFFER SUBJECT TO CONTRACT

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PAGE 1 of 33 Revised ANF Agreement: Main body Issue: 4.4 RANF main body.doc 19 February 2019

DATED # 2019

REVISED AGREEMENT FOR

ACCESS NETWORK FACILITIES SERVICES

between

#[COMMUNICATIONS PROVIDER]

and

BRITISH TELECOMMUNICATIONS plc


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CONTENTS

MAIN BODY

1 Definitions and Interpretation

2 Commencement and Duration 3 Scope

4 New Services

5 Provision of Information 6 Compliance

7 Interference with other’s services 8 BT General Powers

9 System Protection and Safety

10 System Alterations 10A Specifications

11 Billing 12 Charges and Payment

13 Review 14 Determination

15 Confidentiality

16 Force Majeure 17 Limitation of Liability

18. Conduct of Indemnified Events 19 Intellectual Property Rights

20 Assignment

21 Disputes 22 Breach, Suspension and Termination

23 Data Protection 24 Notices

25. Entire Agreement

26. Variations 27. Waiver

28. Independent Contractors and Agency 29 Severability

30. The Contracts (Rights of Third Parties) Act 1999 31. Governing Law


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ATTACHMENTS

SERVICES

Part I ~ Distant Location

Part II ~ Co-mingling

Part IIA ~ Provision of Communications Provider Equipment Room Part III ~ Terms and conditions of Licence

Part IV ~ Network Services

SPECIFICATIONS

Access Network Frequency Plan Internal Tie Cable specification

External Tie Cable specification

Specification Communications Provider: Requirements for optical cables at the point of connection between BT and Communications Providers

Specification of the BT Metallic Path Facility Technical Specifications for the BT Local Loop Unbundling Line Sharing Service

DEFINITIONS

Part V ~ Definitions

SERVICE LEVEL AGREEMENT

Part VI ~ Service level agreement


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THIS AGREEMENT is made the # day of #[month] 2016

between

#[Communications Provider] registered in England No. #[number] having its registered office at #[address]

and

BRITISH TELECOMMUNICATIONS public limited company registered in England No. 1800000 having its registered office at 81 Newgate Street, London, EC1A 7AJ.

Whereas

A The Communications Provider provides a Public Electronic Communications Network.

B BT has provided the Communications Provider with access to the BT Exchange Area Data pursuant to a confidentiality agreement.

C The Communications Provider has requested and BT agrees to supply to the Communications Provider

services and facilities on the terms and conditions of this Agreement.

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, except if the context requires otherwise, words and expressions are as defined in Part

V.

1.2 The Interpretation Act 1978 shall apply for the purpose of interpreting this Agreement as if this Agreement

were an Act of Parliament.

1.3 The following documents form part of this Agreement If there is a conflict between the Conditions, the Schedules and/or the Ancillary Documents, the order of precedence shall be as follows:

1. main body of this Agreement

2. Part V

3. Parts I, II, III and IV 4. Specifications

5. Part VI 6. Price List

7. The Forecasting Manual

8. The elements of the Ancillary Documents that are expressly incorporated by reference into this Agreement.

1.4 Save to the extent that the Agreement expressly requires otherwise, the Customer Service Plan referred

to in this Agreement is not legally binding.

1.5 Words importing one gender include any other gender.

1.6 Words importing the singular include the plural and vice versa.


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1.7 Where a Party comprises more than one person the obligations and liabilities of that Party under this

Agreement are joint and several obligations of those persons.

1.8 Any provisions in Part III referring to the consent or approval of BT shall be construed as also requiring the consent or approval of any mortgagee of the MDF Site and any person having title superior to BT

where such consent shall be required but nothing in Part III shall be construed as implying that any obligation is imposed upon any mortgagee or any person having title superior to BT not unreasonably to

refuse or delay any such consent or approval.

1.9 The paragraph and schedule headings and the tables of contents do not form part of this Agreement and

are not to be taken into account in its construction or interpretation.

1.10 Any Licence is granted solely pursuant to BT's obligations to provide Local Loop Unbundling Services.

1.11 Unless agreed otherwise information shall be exchanged between the Parties in electronic form.

2. COMMENCEMENT AND DURATION

2.1 This Agreement takes effect on the Commencement Date and shall continue until terminated pursuant to

this Agreement.

2.2 In the event that either Party’s entitlement to provide all or a material part of its Public Electronic Communications Network is suspended by Ofcom, the Party whose entitlement is not so suspended may

terminate the Agreement (or such part thereof as may be reasonable in the circumstances) without

advance notice. The Party not subject to the suspension by Ofcom shall subsequently notify the other Party as soon as reasonably practicable of its action to terminate the Agreement, or such part thereof as may be

reasonable in the circumstances.

2.3 A Party may terminate this Agreement by giving at any time to the other not less than 12 months' written

notice to terminate.

2.4 After a notice has been given pursuant to paragraph 2.2 and 2.3 a Party may request the other Party to carry on good faith negotiations with a view to entering into a new agreement.

2.5 Following a request pursuant to paragraph 2.4, if, on termination of this Agreement either Party would be

obliged under a Condition to enter into a new agreement with the other Party then the Parties shall carry

on good faith negotiations with a view to entering into a new agreement within a reasonable period, or in the case of paragraph 2.3 with a view to that agreement taking effect on termination of this Agreement.

3. SCOPE

3.1 BT shall provide and the Communications Provider shall pay for the Service pursuant to this Agreement.

BT shall offer Co-location to the Communications Provider wherever space is available and shall provide Distant Location, on reasonable demand, subject to the provisions of this Agreement. BT shall provide a

reasonable level of resources within each area of the United Kingdom for the provision of Services. BT shall provide a reasonable level of service and the Communications Provider shall in any event be entitled to the

quality of service that BT provides from time to time for comparable services and facilities generally,

including to BT itself.

3.2 The Communications Provider shall not connect Compliant Equipment or any other equipment within an MDF Site to any Third Party Communications Provider’s equipment in an MDF Site or to the system of any


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Third Party Communications Provider save only where necessary for the purpose of providing

telecommunication services to Customers over Metallic Path Facilities and shall not to use the Communications Provider’s Compliant Equipment for any purpose other than that which is specifically

permitted by this Agreement. Subject to paragraphs 7 and 8, this shall not prevent the Communications Provider and any Third Party Communications Provider within the same MDF Site from sharing backhaul

links or connecting to each other’s Compliant Equipment so that they can each efficiently take advantage of the Service given to them by BT under this Agreement.

3.3 BT shall offer service level commitments for the services and facilities BT is obliged to provide under this Agreement and shall include such service level commitments in Part VI. Any payment made under the

provisions of Part VI in respect of failure to meet service level commitments shall be on the basis that there is no admission of liability and shall also be without prejudice to any right to claim for additional loss.

4. NEW SERVICES

4.1 If the Communications Provider requests from BT an agreement for the provision of a new service relating

to Local Loop Unbundling Services which is not made available by BT under this Agreement, the Parties shall proceed in accordance with the Statement of Requirements Process The Statement of Requirement

shall be discussed at the LLU Industry Group (or successor or equivalent body), unless the Communications

Provider has notified BT that the requirement is confidential between the Parties..

5. PROVISION OF INFORMATION

5.1 BT will provide to the Communications Provider as soon as reasonably practicable, but not later than 5 Working Days from the date of this Agreement an internet access address and password to enable the

Communications Provider to view the BT Exchange Area Data during the period of this Agreement. The data is provided for the sole purpose of enabling the Communications Provider to consider whether to

request Services from BT pursuant to this Agreement.

5.2 The BT Exchange Area Data shall comprise the following information:

5.2.1 the location of MDF Sites;

5.2.2 a list of the postcodes served by each MDF Site;

5.2.3 where available, information on the availability of Co-location, including:

(a) a list of MDF Sites where Co-Location facilities have already been provided and where space might readily be made available;

(b) a list of MDF Sites where Co-location cannot readily be made available;

5.2.4 a list of number ranges served by each MDF Site.

5.3 If the Communications Provider downloads or copies the BT Exchange Area Data the Communications Provider shall maintain an audit trail which provides detailed records of all downloads and copies and the

details of holders and personnel who have access to such information. The audit trail information shall be

made available to BT on request.

5.4 Upon termination of this Agreement the Communications Provider shall destroy any copies of the data in the Communications Provider’s possession and shall certify to BT that this has been done.


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5.5 Except as otherwise agreed, each Party shall provide free of charge one copy of the information reasonably required from time to time by the other Party for the provision of Service pursuant to this Agreement.

5.6 Notwithstanding any provision of this Agreement a Party shall not be obliged to provide information which

is subject to a confidentiality obligation to a Third Party unless such Third Party consents to such disclosure.

5.7 The Disclosing Party will use reasonable endeavours to ensure that information disclosed is correct to the

best of its knowledge at the time of provision of such information.

5.8 If a Disclosing Party provides information to a Receiving Party, the Disclosing Party shall have obtained all appropriate Third Party consents.

5.9 Nothing in this Agreement shall require a Party to do anything in breach of any statutory or regulatory obligation of confidentiality, including without prejudice to the generality of the foregoing, any obligation

pursuant to the Data Protection Act 1998 or any code of practice on the confidentiality of customer information issued by the Information Commissioner.

5.10 As soon as reasonably practicable after the Commencement Date the Parties shall co-operate to produce

a Customer Service Plan. The Customer Service Plan shall contain details of the points of contact within

the Communications Provider’s and BT’s organisations. The Parties shall endeavour to keep these documents up to date.

6. COMPLIANCE

6.1 The Communications Provider shall ensure that the Communications Provider’s Compliant Equipment to be

connected to the Metallic Path Facility is tested, using the Access Network Frequency Plan Test Specification for compliance with the Access Network Frequency Plan.

6.2 The Communications Provider shall not connect or knowingly permit the connection to the Metallic Path Facility of anything which is not Compliant Equipment or which is not necessary for the provision of

telecommunications services to Customers by means of the relevant local loop or Metallic Path Facility terminating at the relevant MDF Site. The Communications Provider shall ensure that such Compliant

Equipment remains compliant with the Access Network Frequency Plan and any other relevant standards including, without limitation, EMC requirements and electrical safety. The Communications Provider shall

comply with BT’s reasonable instructions on floor loading, heat output, health and safety and security

before and during installation of any Compliant Equipment at an MDF Site.

6.3 BT shall not be obliged to provide to the Communications Provider a Metallic Path Facility before the Communications Provider has confirmed to BT in writing that the equipment that the Communications

Provider proposes to attach to the Metallic Path Facility is and will remain Compliant Equipment and will

operate within the limits of the Access Network Frequency Plan and within the limits of the power feeding voltages and currents specified in the Metallic Path Facility specification.

6.4 If the Communications Provider wishes to:

(a) install equipment in Co-location facilities provided to the Communications Provider by BT; or

(b) connect equipment to a Metallic Path Facility at a Distant Location site;

the Communications Provider shall prior to the commencement of such installation or connection demonstrate to BT:


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6.4.1 that such equipment is compliant with those standards for equipment to be installed in such areas as BT shall publish from time to time; and

6.4.2 that the Communications Provider and its employees and contractors are compliant with the

standards published by BT from time to time in relation to access requirements and working practices to be employed.

BT shall accept, reject or request additional information in response to the Communications Provider’s communication within 5 Working Days of receipt.

6.5 BT shall ensure that any BT equipment installed at MDF Sites shall be and shall continue to be compliant

and will operate within the limits of the Access Network Frequency Plan and any other relevant standards.

7. INTERFERENCE WITH OTHER’S SERVICES

7.1 When BT has reasonable grounds to believe that the Communications Provider is using equipment or is permitting the use by its Customers of equipment which is not Compliant Equipment or is otherwise causing

interference to other services (including Third Party Communications Providers’ services) BT may:

7.1.1 notify the Communications Provider of its reasonable grounds for believing that there is use of

equipment which is not Compliant Equipment or interference taking place; and

7.1.2 give the Communications Provider a reasonable opportunity to demonstrate that this is not the case

or to remedy the situation; and

7.1.3 if the Communications Provider fails to do so within a reasonable period;

suspend or cease service to the MPF concerned or if it is not possible to identify the MPF which is causing

interference, service to the smallest number of MPFs that can reasonably be identified as being necessary to suspend in order to cease or prevent the interference.

7.2 The Communications Provider may request BT to suspend or cease service where the Communications

Provider gives notice to BT that it reasonably believes that BT is using equipment or permitting the use by any Customer of equipment that is causing interference outside the limits set out in the Access Network

Frequency Plan, except where such action would result in BT being in breach of a Condition or BT’s

obligations under the Telecommunications (Open Network Provision) Regulations 1998 (SI 1998/1580) implementing Directive (98/10/EC). The Communications Provider shall notify BT of its reasonable grounds

for believing that there is interference taking place.

7.3 If either Party fails to remedy a matter under paragraph 7.1 or 7.2 within a reasonable period and the

other Party is able to demonstrate to the first Party’s reasonable satisfaction that the other Party’s belief is well founded, BT shall suspend use of any such equipment or Metallic Path Facility until either:

7.3.1 the matter is remedied; or

7.3.2 the Party whose equipment has been causing interference is able to demonstrate to the other Party’s

reasonable satisfaction that the other Party’s belief is not well founded.

7.4 If the Communications Provider's equipment adversely affects the normal operation of BT's or any Third

Party Communications Providers’ services, or is a threat to any person's safety, in an emergency BT may suspend, to the extent necessary, such of its obligations hereunder, and for such period as may be


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reasonable, to ensure the normal operation of the BT System or any Third Party Communications Provider’s

system or reduce the threat to safety.

7.5 When BT is investigating a report of interference to BT’s or any Third Party Communications Providers’ services, the Communications Provider shall on request provide to BT, insofar as the Communications

Provider is able to do so, technical information relating to the equipment attached to the MPF and the signals generated by that equipment. The information requested shall be limited to that necessary to

resolve the interference problem and used solely for the purpose of resolving that problem.

7.6 If BT reasonably considers the equipment used by the Communications Provider is not Compliant

Equipment, the Communications Provider shall on request from BT disconnect all necessary equipment in order to permit BT to test the characteristics of that Metallic Path Facility.

7.7 When the provision of any equipment or Metallic Path Facility is suspended or either Party is required to cease using any Metallic Path Facility, the Party whose equipment has been causing interference shall be

entitled to request the other Party to assist in removing the reason for the suspension or cessation, such assistance to be provided promptly and in good faith. The Party providing such assistance may reasonably

charge for such assistance. The relevant equipment or Metallic Path Facility shall be reconnected as soon as practicable when the situation has been remedied.

8. BT GENERAL POWERS

8.1 Occasionally BT, acting reasonably, may:

8.1.1 in an emergency, suspend MPFs temporarily in order to provide or safeguard service to a hospital or to the emergency, or other essential, services;

8.1.2 temporarily suspend MPFs for the purpose of alteration of any part of BT’s System to permit the

passage of vehicles with abnormal loads;

8.1.3 temporarily suspend MPFs for the purpose of repair, maintenance or improvement of any part of

BT’s System; and

8.1.4 give the Communications Provider reasonable instructions about the use of MPFs which BT reasonably thinks are in the interests of health, safety or of the quality of service to BT’s Customers,

the Communications Provider’s Customers or to Third Party Communications Providers’ customers.

8.2 BT will give the Communications Provider not less than 72 hours’ notice, or in urgent cases as much notice

as possible before doing any of the above things and shall in any event act consistently with the Access Network Frequency Plan. In an emergency necessitating immediate action to

8.2.1 cease to provide or maintain a Metallic Path Facility; or

8.2.2 disconnect the equipment;

BT may take such action without notice provided it uses its best endeavours to remedy the situation and that provision or maintenance of the Metallic Path Facility is restored immediately thereafter.

8.3 The Communications Provider shall have the right to disconnect BT equipment without prior reference to BT if at such time in the reasonable opinion of the Communications Provider it is exposing any person to

any danger of imminent death or injury and the Communications Provider will immediately notify BT of the circumstances in which such equipment has been so disconnected PROVIDED THAT prior to


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disconnecting such equipment the Communications Provider shall, if practicable, contact BT and liaise with

BT to ensure that such disconnection causes the least possible damage to such equipment or disruption of the telecommunication service carried on by BT using such equipment. BT shall have the right to disconnect

the Communications Provider’s Compliant Equipment or any part of it without prior reference to the Communications Provider (and for this purpose the Communications Provider shall, insofar as it is able,

provide BT with the proper means of doing so) if at such time in the reasonable opinion of BT it is exposing any person to any danger of death or injury or is causing or is suspected of causing damage to the MDF

Site or BT's telecommunications apparatus or other property and such exposure or damage is imminent

and BT will immediately notify the Communications Provider of the circumstances in which such Communications Provider’s Compliant Equipment has been so disconnected PROVIDED THAT prior to

disconnecting the Communications Provider’s Compliant Equipment BT shall, if practicable, contact the Communications Provider and liaise with the Communications Provider to ensure that such disconnection

causes the least possible damage to the Communications Provider’s Compliant Equipment or disruption of

the telecommunication service carried on by the Communications Provider using such Compliant Equipment.

8.4 BT, to the extent that it is acting under this paragraph 8, shall not be liable to the Communications Provider

for any loss damage or injury arising by reason of BT's action in disconnecting the Communications Provider’s Compliant Equipment or for any interruption to the telecommunication service carried on by the

Communications Provider using such Compliant Equipment howsoever caused except where the loss

damage or injury is caused directly by the negligence of BT or BT is otherwise in breach of this Agreement.

8.5 In the event of a disconnection in accordance with paragraph 8.3 the Communications Provider shall not reconnect the Compliant Equipment until the reasons for its disconnection have been lawfully remedied at

the Communications Provider's expense and to BT's reasonable satisfaction PROVIDED THAT if the

danger or threat referred to in the paragraph 8.3 is caused directly due to the negligence of BT then BT shall be responsible for the costs of reconnecting the Compliant Equipment.

8.6 The Party responsible for the Compliant Equipment shall use its best endeavours to remedy the cause of

disconnection under this paragraph 8.

9. SYSTEM PROTECTION AND SAFETY

9.1 Each Party is responsible for the safe operation of its System and shall take all reasonable and necessary steps in its operation and implementation of this Agreement to ensure that its System does not:

9.1.1 endanger the safety or health of employees, contractors, agents or Customers of the other Party; or

9.1.2 damage, interfere with or cause any deterioration in the operation of the other Party's System or a

Third Party Communications Provider’s system.

10. SYSTEM ALTERATIONS

10.1 If BT wishes to make a System Alteration, it shall give the Communications Provider reasonable notice, which shall not be less than 7 months’ written notice, prior to the date of the anticipated System Alteration.

The notice shall specify the technical details of the System Alteration and the date of the anticipated System

Alteration. Following such notification BT shall supply to the Communications Provider such information as the Communications Provider may reasonably request including, to the extent reasonably practicable, the

potential impact on the service provided by the Communications Provider to Customers.


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10.3 If necessary, the Parties shall amend the Specifications prior to a System Alteration.

10A. SPECIFICATIONS

10A.1 Each Party shall comply with the Specifications in so far as they apply to the provision of Service pursuant

to this Agreement. If BT wishes to make a change to a Specification of which BT is the author, it shall give the Communications Provider reasonable notice, which shall not be less than 90 days’ written notice, prior

to the date of the anticipated date of the change to the Specification.

11. BILLING

11.1 BT shall provide to the Communications Provider invoices of all amounts due to it, calculated in accordance

with the Price List.

11.2 All charges under this Agreement shall be payable by the Due Date.

11.3 If the Communications Provider fails to pay on the Due Date any amount due under this Agreement, the Communications Provider shall pay Interest both before and after any judgment, on any such amounts,

not the subject of a Dispute.

11.4 If a refund or credit is due to the Communications Provider (unless that refund or credit results from

information provided by the Communications Provider which is not attributable to information provided by BT), the Communications Provider may charge daily interest on late repayment at the Interest Rate for the

period from the date of overpayment to the date of refund to the Communications Provider. If any charge

is recalculated or adjusted with retrospective effect under an order, direction, determination or requirement of Ofcom (“determination”), or any other regulatory authority or body of competent jurisdiction, the parties

agree that interest will be payable on any amount due to either party as a result of that recalculation or adjustment at the Adjustment Interest Rate payable from the date specified in that determination, or if no

date is specified, from the date the recalculated or adjusted charge takes effect to the date of refund or

payment in full.

11.5 As soon as reasonably practicable following an order, direction, determination or consent by Ofcom of a charge (or the means of calculating that charge), BT shall make any necessary alterations to the Price List

so that it accords with such determination.

11.6 If a determination referred to in paragraph 11.5 is subject to a legal challenge, the Parties shall, without

prejudice, treat the determination as valid until the conclusion of the legal proceedings, unless the court otherwise directs. If the court finds the determination to be unlawful then the Parties agree to revert to

the charges payable immediately prior to such determination being made and BT shall make any necessary alterations to the Price List. As soon as reasonably practicable following a re-determination by Ofcom (as

a result of a legal challenge) of a charge (or the means of calculating that charge), BT shall make any

necessary alterations to the Price List so that it accords with such re-determination.

11.7 If there is a difference between a charge in the Price List and a charge (or the means of calculating that charge) determined by Ofcom, the charge determined by Ofcom shall prevail, but for the avoidance of

doubt the Parties shall without prejudice to any determination treat the charge set out in the Price List as valid pending any determination.

11.8 The provisions of this paragraph 11 are not intended to prejudice the rights, liabilities and obligations of the Parties created by and under a Condition.


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12. CHARGES AND PAYMENT

12.1 The Communications Provider shall pay the charges calculated in accordance with, and within the time

specified in this Agreement.

12.2 No charges shall be payable under this Agreement by the Communications Provider unless such charges are specifically referred to in this Agreement or are agreed in writing between the Parties.

12.3 BT may revise the charges set out in the Price List at any time provided that BT shall give the Communications Provider not less than 90 days’ prior written notice. For the avoidance of doubt, if BT

launches a new service under this Agreement, it shall give not less than 28 days’ prior written notice. Such timescales may not be modified unless agreed with Ofcom.

12.4 The charges in this Agreement are exclusive of VAT unless such charges are stated to be inclusive of VAT.

12.5 Where VAT is chargeable in respect of the supply of goods or services for which the payment is consideration and insofar as such payments fall to be made under this Agreement the amount of such VAT

shall be paid in addition thereto. Charges that are compensatory are not subject to VAT.

12.6 Without prejudice to and save as mentioned earlier in this paragraph 12 where any supply is made pursuant

to this Agreement the recipient of the supply shall pay to the supplier the amount of any VAT chargeable in respect thereof.

12.7 Where any payment is required to be made pursuant to this Agreement to reimburse the payee for any

expenditure incurred by the payee such payment shall include an amount equal to any VAT comprised in

that expenditure which is not recoverable by the payee as input tax under section 25 of the Value Added Tax Act 1994.

12.8 Invoices are due and payable in pounds sterling.

12.9 BT must issue an invoice within twelve (12) months of the date the charge for a Service was incurred (in the case of a recurring charge) or the Service was supplied (in other cases) except for Event and Time

Related Charges for which BT must issue an invoice within six (6) months of the date a charge is incurred. In the case of a Series of Event and Time Related Charges and/or Services, BT must issue the

invoice within six (6) months of the date the last charge in the series was incurred.

A charge shall only be valid, and the Communications Provider shall only be obliged to make payment,

if the charge is raised within the periods specified above.

12.10 If the Communications Provider has an Invoice Dispute it will notify BT in writing within twelve (12) months of the date of the invoice giving its reasons. Notification of an Invoice Dispute under this

Paragraph 12.10 is without prejudice to either party’s right to refer the subject matter of that Dispute to Ofcom.

The amount in an Invoice Dispute may be withheld by the Communications Provider until the Invoice

Dispute is resolved and the balance shall be due and payable on the due date. The Communications Provider is not entitled to withhold payment of any amount not in the Invoice Dispute. The

Communications Provider is not entitled to withhold any payments to BT on the grounds that the Communications Provider has a dispute with the End User(s) or reseller(s).

Payment of the invoice in whole, or in part, by the Communications Provider does not affect the right of the Communications Provider to dispute all or some of the charges of an invoice at a later date in

accordance with this paragraph 12.

12.11 BT may make an Invoice Correction to an invoice sent to the Communications Provider providing it


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notifies the Communications Provider within twelve (12) months of the date of the invoice giving its

reasons.

12.12 BT shall advise of any proposed update to the BT Credit Vetting Policy by issuing an industry briefing at least 28 calendar days prior to such update taking effect. Where the Communications Provider has

nominated a finance contact, BT shall also issue the update via email to the nominated finance contact.

12.13 During the term of this Agreement, the Communications Provider acknowledges that it may become subject

to BT’s Credit Vetting Policy if the following circumstances apply:

(a) there is material adverse change in the Communications Provider’s financial position which results in a reduction in the Communications Provider’s issued credit rating or (in the absence

of such a credit rating) a financial score provided by an accredited ratings agency; and

(b) there has been a recent or subsequent non-payment or partial non-payment (by five days or more) of an invoice (where the non-payment or partial non-payment which is not the subject

of a bona fide dispute) for the Services under this Agreement.

12.14 BT may acting reasonably and subject to the requirements of Paragraph 12.15 below, require that the

Communications Provider provides a deposit or guarantee or payment for the Service and/or Service Charges in advance. If the Communications Provider refuses to provide such deposit or guarantee or

payment for the Service and/or Service Charges in advance, BT may refuse to accept any orders for the

Service until such deposit or guarantee or payment for the Service in advance is provided or the outstanding non-disputed charges are fully paid, whichever is earlier.

12.15 Any deposit or guarantee or payment for the Service in advance required to be provided by the

Communications Provider under Paragraph 12.14 above, shall be no greater than the reasonably estimated

value of charges under this Agreement for three months and the amount or requirement for the deposit or guarantee or payment for the Service in advance shall be reviewed by the parties at regular intervals

(and at least annually).

12.16 Where the Communications Provider provides a deposit it will be held until twelve (12) consecutive months

of payments have been paid on or by the Due Date after which the Communications Provider will have the value of their deposit credited against BT invoices from that date. Interest on deposits held by Openreach

will be paid at the Adjustment Interest Rate.

13. REVIEW

13.1 A Party may seek to amend this Agreement by serving on the other a review notice if:

13.1.1 a Condition is materially modified (whether by amendment or replacement); or

13.1.2 a material change occurs in the law or regulations (including codes of practice whether or not having

the force of law) governing telecommunications in the United Kingdom; or

13.1.3 this Agreement makes express provision for a review or the Parties agree in writing that there should be a review; or

13.1.4 a material change (including enforcement action by any regulatory authority) occurs which affects

or reasonably could be expected to affect the commercial or technical basis of this Agreement; or

13.1.5 there is a general review pursuant to paragraph 13.4; or


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13.1.6 this Agreement or any part thereof has ceased to be reasonable.

13.2 A review notice shall set out in reasonable detail the issues to be discussed between the Parties.

13.3 Save as provided in paragraph 13.4, a Party shall serve a review notice not later than the expiration of a

6 months period commencing on the date set opposite each paragraph as follows:

Paragraph

Period commencing on the date:

13.1.1 of publication of the modifications to a Condition

13.1.2 of occurrence of material change

13.1.3 of entitlement or occurrence of the date of written

agreement

13.1.4 of occurrence of the material change

13.1.6 of the Agreement or any part thereof has ceased to

be reasonable

13.4 BT may amend, change, remove, or replace those parts of an Ancillary Document which do not form part

of the Contract without prior agreement from a Communications Provider. BT will give reasonable written

notice of any such changes and publish details of those changes on the BT Website before the changes take effect. If a Communications Provider considers any such changes to an Ancillary Document would

change the Contract or materially and adversely affect the Service then, on or before the expiry of the 28th Working Day of any such changes taking effect, the Communications Provider may dispute any such

changes to an Ancillary Document via the dispute resolution process set out in clause 21.

13.5 A Party may initiate a general review of this Agreement by serving a review notice not less than 3 months

prior to 31st March 2014 and not less than 3 months prior to every 2nd anniversary commencing from 31st March 2016. Following a notice of review, BT and the Communications Provider agree to negotiate in good

faith with a group of communications providers which it reasonably believes represents the

Communications Provider industry (“the Communications Provider Contracts Group”). If the parties fail to reach agreement on elements of the subject matter of the review within 6 months of commencing

negotiations (or such longer period as may be agreed by BT and all members of the Communications Provider Contracts Group

13.6 On service of a review notice, the Parties shall forthwith negotiate in good faith the matters to be resolved

with a view to agreeing the relevant amendments to this Agreement.

13.7 The Parties agree that notwithstanding service of a review notice this Agreement shall remain in full force

and effect.

13.8 Following service of a review notice under this clause 13 and the conduct of negotiations between the

parties in accordance with clause 13.5, BT will publish details of any proposed change to this Agreement on the BT website not less than 28 Working Days before such proposed change is to come into effect If

there are no objections to the proposed change within that period from the Communications Provider or from anyone who has a contract for local loop unbundling services, the Parties will act in good faith to

amend the Agreement to effect the proposed change.

BT will give not less than 28 days' prior written notice of changes to the terms of this Agreement with

regard to the introduction of new services which may be provided under this Agreement, and 90 days' prior written notice of any changes to the terms of this Agreement for existing Services provided under

this Agreement, or such other periods of notice as may be required by Ofcom


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14. DETERMINATION

14.1 If the Parties fail to reach agreement on the subject matter of a review notice pursuant to paragraph 13

within 3 months from the date of such review notice, either Party may, not later than 3 months after the expiration of the relevant period, request in writing Ofcom to determine the matters upon which the Parties

have failed to agree.

14.1 On receipt of a request for a determination Ofcom may make an order, direction, determination or consent

if Ofcom is satisfied that the modifications sought to this Agreement are material.

14.2 An order, direction, determination or consent by Ofcom shall be limited to the subject matter of the request

for a determination.

14.3 The Parties shall enter into an agreement to modify or replace the Agreement in accordance with any order, direction, determination or consent of Ofcom.

14.4 If the order, direction, determination or consent is subject to a legal challenge then the Parties shall modify

or replace the Agreement at the conclusion of the legal proceedings in accordance with Ofcom's order,

direction, determination or consent or redetermination as a result of the legal proceedings.

14.5 For the avoidance of doubt, order, direction, determination or consent relating to a charge shall include an order, direction, determination or consent relating to the basis for calculating that charge.

14.6 The provisions of this paragraph 14 are intended to establish a framework for the review and determination of the provisions of this Agreement, but are not intended to prejudice the rights, liabilities and obligations

of the Parties created by a Condition.

15. CONFIDENTIALITY

15.1 Subject to the following provisions of this paragraph 15, a Receiving Party shall keep in confidence Confidential Information and will not (and will use its reasonable endeavours to ensure that its directors,

employees, and professional advisers shall not) disclose such information to any Third Party.

15.2 A Receiving Party shall exercise no lesser degree of care of Confidential Information than would a

reasonable person with knowledge of the confidential nature of the information. A Receiving Party shall exercise no lesser security or degree of care than that Party applies to its own Confidential Information of

an equivalent nature.

15.3 A Receiving Party shall restrict disclosure of Confidential Information relating to the other Party to those

persons who have a reasonable need to know. For the avoidance of doubt, BT shall ensure that the Communications Provider’s Confidential Information is not used to give commercial advantage to BT’s retail

business and in this respect, no employees who have direct dealings with BT Customers or who deal directly with the detailed planning of retail sales programmes or strategies shall have access to the Communications

Provider’s Confidential Information. Confidential Information shall be used solely for the purposes for which it was disclosed.

15.4 A Receiving Party may disclose Confidential Information to an Associated Company, subject to the Associated Company undertaking in writing to the Disclosing Party to comply with obligations equivalent

to these contained in this paragraph 15.


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15.5 A Receiving Party may disclose Confidential Information to a contractor or agent, subject to the contractor

or agent undertaking in writing to the Disclosing Party to comply with obligations equivalent to those contained in this paragraph 15.

15.6 The following shall not constitute a breach of this paragraph 15:

15.6.1 a disclosure authorised in writing by the Disclosing Party to the extent of that authority; or

15.6.2 a disclosure to an Emergency Organisation; or

15.6.3 publication of all or part of this Agreement or details of it pursuant to a Condition; or

15.6.4 a disclosure which is properly made pursuant to a relevant statutory or regulatory obligation; or

15.6.5 a disclosure properly and reasonably made to Ofcom, or to an arbitrator, expert or any person

appointed by the Parties for the resolution of a Dispute; or

15.6.6 a disclosure to obtain or maintain any listing on any recognised stock exchange,

subject in the case of any disclosure specified in paragraphs 15.6.4 to 15.6.6 to the Receiving Party

informing the Disclosing Party as soon as reasonably practical, after such disclosure.

15.7 BT shall ensure that any aggregated information (not being Confidential Information) which is compiled from Confidential Information supplied to BT by the Communications Provider and confidential information

supplied by Third Party Communications Providers relating to provision of Service shall not be provided to

BT’s retail business unless such aggregated information is generally made available to the Communications Provider and Third Party Communications Providers by Ofcom or by BT when required to do so under the

auspices of the LLU Industry Group (or successor or equivalent body).

15.8 This paragraph 15 shall continue in force after the termination of this Agreement. Upon termination, if

requested by the Disclosing Party, the Receiving Party shall return to the Disclosing Party or destroy (at the Disclosing Party’s option) all Disclosing Party’s Confidential Information as the Receiving Party may

have in its possession or control.

16. FORCE MAJEURE

16.1 To the extent a party is delayed in meeting or fails to perform an obligation under this Contract directly caused by Force Majeure, the party affected shall have no liability to the other for such delay

or failure to perform provided that: 16.1.1 the affected party shall continue performing those obligations under this Contract that are not

affected by Force Majeure and in performing those obligations shall deploy its resources so that

(when taken with obligations to third parties) there is no undue discrimination.

16.1.2 the affected party shall promptly notify the other Party of the Force Majeure event, its geographic

scope together with, if practicable, an estimate of the impact on the Service and the extent and

duration of its inability to perform or delay in performing its obligations and any mitigating actions it has or is intending to take. The format and detail of notice shall be consistent with any industry-

agreed arrangements governing such notices. The scope of any Force Majeure notice must be no more than necessary to particularise the impact of the event that is beyond that parties’ control.

16.2 If the affected party is prevented from or delayed in performing its obligations under this Contract as a result of Force Majeure, the other party shall be released to the equivalent extent from its


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obligation (including to pay any charge for a Service that is not provided) in relation thereto.

16.3 Upon cessation of the effects of Force Majeure any Party relying on it must forthwith give notice to

the other Party of such cessation.

16.4 Force Majeure does not discharge any Party relying on it from any obligation accrued beforehand.

Any Party relying on Force Majeure must continue to perform those of its obligations not affected by Force Majeure.

16.5 Any Party affected by Force Majeure shall use reasonable endeavours to mitigate as soon as practicable those consequences of the Force Majeure event which have affected its obligations under

this Contract. The affected Party shall provide an estimated time of clearance for any Force Majeure event. If those times are missed information shall be provided detailing the reasons. The affected

Party shall, at regular intervals which are proportionate to the forecast period of the Force Majeure

event (in any event in accordance with any industry agreed arrangements) keep the other Party fully informed about the status of the Force Majeure event and the extent to which it is preventing the

first Party from performing those obligations.

16.6 At the time of notice by BT of Force Majeure, Communications Providers immediately have the right to challenge BT’s notice of the Force Majeure event. Where the Communications Provider challenges a

Force Majeure notice at the time of notification, BT must provide the Communications Provider with all the evidence (in any event in accordance with any industry agreed arrangements) BT has relied on to support the notice. If, following this, the Communications Provider still disputes the Force Majeure notice the Communications Provider shall be entitled to escalate the disputed Force Majeure notice in accordance with the process set out at in paragraph 21 of this Agreement. The procedures to be followed in relation to such notifications and challenges shall be consistent with any industry -agreed

processes that have been established.

16.7 If BT seeks to rely on the Force Majeure in relation to failure to meet any Service Level Agreement or to

avoid payment of any Service Level Guarantees, the Communications Provider may dispute that notice.

If disputed, the notice will be subject to independent verification in accordance with an escalation

process set out at in paragraph 21 of this Agreement, or any industry-agreed process for escalation. The

parties agree that the outcome of that independent verification shall determine whether paragraph 16.2

applies in relation to the event described in that notice. Subject to any industry-agreed processes,

‘independent verification’ shall include, at the option of either party, adjudication by the Office of the

Telecommunications Adjudicator (“OTA”).

16.8 Following a Force Majeure notice and if the effects of such force majeure continue for:

16.8.1 a continuous period of not more than 6 months from the date of the Force Majeure notice (whether

or not notice of cessation has been given pursuant to paragraph 16.) any obligation outstanding shall be fulfilled by the Party relying on Force Majeure as soon as reasonably possible after the

effects of Force Majeure have ended, save to the extent that such fulfilment is no longer possible or is not required by the other Party;

16.8.2 a continuous period of 6 months or more from the date of the Force Majeure notice (and notice of

cessation has not been given pursuant to paragraph 16.3), the Party receiving the Force Majeure

notice shall be entitled (but not obliged) to terminate this Agreement by giving not less than 30 days written notice to the other Party, provided that such notice shall be deemed not to have been given

if notice of cessation is received by the Party receiving the Force Majeure notice prior to the expiry of the 30 days’ notice. If this Agreement is not terminated in accordance with the provisions of this

paragraph 16.8.2, any obligations outstanding shall be fulfilled by the Party relying on Force Majeure


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as soon as reasonably possible after the effects of Force Majeure have ended, save to the extent

that such fulfilment is no longer possible or is not required by the other Party.

17. LIMITATION OF LIABILITY

17.1 Save as expressly provided in this Agreement BT has no obligation of any kind to the Communications

Provider beyond the obligations to exercise the reasonable skill and care of a competent

telecommunications Communications Provider in performing its obligations under this Agreement.

17.2 Neither party excludes or restricts its liability for:

(a) death or personal injury caused by its negligence or that of its employees, subcontractors or

agents acting in the course of their employment or agency;

(b) any fraudulent act or omission;

(c) fraudulent misrepresentation or misstatement; or

(d) any liability that may not otherwise be limited or excluded by law.

17.3 Except as set out in paragraph 17.2 and subject to express terms and conditions of this Agreement to the

contrary, neither party shall be liable whether based on a claim in contract, tort (including negligence) breach of statutory duty, misrepresentation or otherwise arising out of, or in relation to this Agreement,

for:

(a) loss of time (whether direct or indirect);

(b) wasted expenditure (whether direct or indirect);

(c) loss of anticipated savings (whether direct or indirect);

(d) loss of opportunity (whether direct or indirect);

(e) loss and/or corruption of data (whether direct or indirect);

(f) loss of revenue (whether direct or indirect); or

(g) any indirect or consequential loss whatsoever (even if the liable party has been advised of the

possibility of such loss).

17.4 Notwithstanding paragraph 17.3 and subject to paragraph 17.5, a party may claim for the following direct

losses:

(a) loss of profit;

(b) increased costs of customer handling;

(c) damage to, loss or destruction of real property or tangible property; and/or

(d) costs incurred in procuring services substantially similar to the Services provided under this

Agreement.


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17.5 Subject to any express terms and conditions of this Agreement to the contrary, in relation to any liability

arising out of or in relation to this Agreement either party’s liability to the other party in contract, tort (including negligence), breach of statutory duty or otherwise for direct loss or damage howsoever arising

(other than loss or damage of the type referred to in paragraph 17.6) for all events of liability connected or unconnected in each Contract Year is limited to the liability cap. In each Contract Year, other than the

first Contract Year, the liability cap will be £25 million in total or an amount equal to the Annual Revenue, whichever is the lesser but not less than £250 000 and in the first Contract Year the liability cap will be

£25 million in total.

17.6 If a party is liable to the other party in relation to any claim by the other party for damage to, loss or

destruction of real property or tangible property, the first party’s liability shall be limited to £10 million for all such claims connected or unconnected in any Contract Year.

17.7 Each party shall procure and maintain for the duration of this Agreement policies of insurance to cover its liabilities set out in this paragraph 17. The terms of such policies of insurance shall include provisions

whereby, in the event of any claim or proceedings in respect of which a party would be entitled to receive indemnity under the policy, being brought or made against the other party, the insurers shall indemnify

the other party against any costs, charges and expenses thereof and whereby the insurers give a waiver of subrogation in respect of any indemnity given by a party to the other party.

17.8 Each party shall provide evidence of the insurance cover referred to in this paragraph 17 on or before the Commencement Date and thereafter at any time during the period of this Agreement as the other party

shall reasonably require. If a party is unable to demonstrate to the other party’s reasonable satisfaction that it has a reasonable level of insurance, with a reputable insurer, in respect of its liabilities under this

paragraph 17, the other party shall be entitled to effect insurance against all claims, proceedings, losses,

liabilities, costs, damages and expenses caused by that party’s negligence, other default or deliberate act arising out of or in connection with this Agreement and to recover the reasonable cost of such insurance

from that party.

17.9 Each provision of this paragraph 17 is a separate limitation applying and surviving even if one or more

such provisions is inapplicable or held unreasonable in any circumstances.

17.10 Any amounts paid out by BT pursuant to Part VI (Service Levels and Fixed Compensation) shall be included in the calculation of the limits of liability referred to in paragraph 17.5 above.

17.11 This paragraph 17 shall continue in force after the termination of this Agreement.

17.12 Subject to the exclusions in clause 17.3, each Party’s liability to the other in contract, tort (including negligence), breach of statutory duty, or otherwise for any loss or damage in connection with a breach of

clause 17 and/or a claim under Clauses 17.14 or 17.15 below (a “Relevant Event”) for all Relevant Events connected or unconnected in each Contract Year is limited, in the aggregate in each Contract Year, to £70

million – being an amount equal to the total of the cap set out in clause 17.5 and £45 million.

17.13 Notwithstanding clause 17.12, a Party's liability under or in connection with this Agreement for a Fine shall not exceed £45 million in each Contract Year.

17.14 Subject to clause 17.13 above and clause 17.15 below, if either Party (the “Fined Party”) incurs a fine or

other monetary penalties or compensatory awards issued by a court or regulatory body (a "Competent Authority") as a result (in whole or in part) of the other Party's ("Breaching Party") act or omission in

connection with its obligations under Data Protection Legislation ("Fine"), and the Competent Authority elects not to issue that Fine to the Breaching Party directly then subject to: (i) the exclusions in clause

17.3; and (ii) the liability caps set out in clauses 17.12 and 17.13 above, the Breaching Party shall, to the


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extent that its act or omission can be evidenced to be the cause of the Fine, indemnify the Fined Party for

that proportion of the Fine that the Breaching Party would have been responsible for if the Competent Authority had issued a Fine to the Breaching Party in respect of its act or omission directly and for any

incidental costs necessarily incurred by the Fined Party directly relating to the same.

17.15 The Fined Party may claim the benefits of the indemnity in clause 17.14 only if, where requested to do so

by the Breaching Party promptly following notification by the Fined Party of the Fine:

(a) the Fined Party has used reasonable endeavours to ensure that the Breaching Party has been given the

opportunity to make representations to the Competent Authority either directly or through the Fined Party (or

its third party) concerning the circumstances of any breach; and

(b) the Fined Party initiates (either itself or through a third party) judicial review of the Fine and, where possible,

gives the Breaching Party either sole conduct of the proceedings or, if the Fined Party wishes to be involved in

the judicial review or also wishes to challenge the determination, joint control,

provided that :

(i) the Breaching Party: shall indemnify the Fined Party for any costs reasonably and properly incurred

by the Fined Party in acting pursuant to this clause 17.15; and

(ii) the obligation in clause 17.15 (b) shall not apply unless the Breaching Party produces evidence to the Fined

Party’s reasonable satisfaction that judicial review of the Fine would not be considered vexatious.

17.16 Notwithstanding clauses 17.12, 17.13, 17.14 and 17.15, to the extent that there is a loss or corruption of Personal Data arising out of or in connection with a breach of clause 11, the exclusion in clause 17.3 (e)

shall not apply.

17.17 For the avoidance of doubt a Fine shall be deemed to be a direct loss or damage in respect of this Agreement.

18. CONDUCT OF INDEMNIFIED EVENTS

18.1 The indemnified party must notify the indemnifying party of any related claims or legal proceedings and

use its reasonable endeavours to do so within 14 days of receipt and if it fails to do so, any additional cost reasonably incurred as a consequence of that failure may be deducted from the indemnified sum.

18.2 The indemnifying party may assume conduct of the claim providing it notifies the indemnified party of such

intention within 5 days of receipt of the notification in clause 18.1. The indemnified party may re-assume conduct of the claim at any time if it reasonably believes a failure to do so would be prejudicial to its

interests.

18.3 The party assuming conduct of the claim must:

18.3.1 actively consult with the other party regarding the conduct of any action and take their views into account;

and

18.3.2 make no admissions relating to any claims or legal proceeding without the consent of the other party which

shall not be unreasonably withheld; and


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18.3.3 not agree any settlement of such claims or legal proceedings nor make any payment on account of them without the consent of the other party, which shall not be unreasonably withheld.

19. INTELLECTUAL PROPERTY RIGHTS

19.1 Except as expressly provided otherwise in this Agreement, Intellectual Property Rights shall remain the

property of the Party creating or owning the same and nothing in this Agreement shall be deemed to confer any assignment or licence of the Intellectual Property Rights of one Party to the other Party.

20. ASSIGNMENT

20.1 Unless otherwise agreed in writing, no rights, benefits or obligations under this Agreement may be assigned

or transferred, in whole or in part, by the Communications Provider without the prior written consent of BT, and BT shall not be obliged to complete the Licence or a memorandum with any person other than the

Communications Provider.

21. DISPUTES

21.1 If a Party (the “disputing Party”) wishes to invoke the dispute procedure specified in this paragraph, it shall send written notice of the Dispute to the other Party’s commercial contact (the “receiving Party”). The

notice shall contain all relevant details including the nature and extent of the Dispute. The receiving Party

shall acknowledge the receipt of such notice of the Dispute within two Working Days.

21.2 The name of each Party’s commercial contact shall be as specified from time to time in the Customer Service Plan. For the purposes of this paragraph 21 no change to a commercial contact shall be effective

until it has been notified to the other Party.

21.3 Following notice under paragraph 21.1, the Parties shall consult in good faith to try to resolve the Dispute.

If agreement is not reached within 14 days of service of such notice, the Dispute may be escalated by either Party under paragraph 21.4.

21.4 If the Dispute is not resolved under paragraph 21.3, either Party may send written notice to the other

Party’s commercial contact requiring the Dispute to be escalated and stating to whom that Party has

escalated the Dispute. The commercial contact receiving such a notice shall acknowledge the receipt of such notice within four Working Days and state to whom the Dispute has been escalated.

21.5 Following notice under paragraph 21.4, the Parties shall work in good faith to try to resolve such Dispute,

involving appropriate senior managers. In the case of a dispute of a notice under clause 16.7 this may

include a reference to independent verification, as agreed by the Parties.

21.6 Subject to paragraph 21.10 and save where it is expressly provided in this Agreement that a Party may refer a Dispute to an Independent Expert for resolution, if the Dispute is not resolved under paragraph

21.5, either Party may refer the Dispute to Ofcom and shall forthwith send a copy of the referral to the other Party. In the event of a reference to Ofcom, both Parties shall compile a detailed dispute report

which shall include origin, nature, extent, issues and any proposals for resolution and make their respective

reports available to Ofcom and each other within 28 days of the referral.

21.7 Either Party may refer a Dispute for resolution under the provisions of paragraph 21.8:


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21.7.1 where that Dispute falls within one of the following areas:

21.7.1.1 whether there is space available for Co-location; or

21.7.1.2 whether physical separation of equipment is necessary; or

21.7.1.3 whether the cost of the Works is unreasonable or excessive; or

21.7.1.4 whether the construction or design of the Works is unreasonable or excessive; or

21.7.1.5 where the Dispute relates to technical or operational issues (including disputes under clause 16.7) and requires significant investigation of factual matters; or

21.7.1.6 where the Parties agree that the Dispute may be referred to an Independent Expert; or

21.7.1.7 where the Dispute relates to any review of Licence Fee; or

21.7.1.8 where specific reference to an Independent Expert may be made (after notifying the other Party of the Dispute) under any other provision of this Agreement.

21.8 Where any reference of a Dispute is to be made pursuant to this paragraph 21.8 it shall be dealt with as follows:

21.8.1 the Parties shall negotiate in good faith to agree the appointment and terms of reference for the

Independent Expert, who shall in the case of a Dispute relating to the review of a Licence Fee be an

independent valuer, or failing agreement upon the appointment of an independent valuer then by an independent valuer appointed by the President for the time being of the Royal Institution of

Chartered Surveyors at the request of either Party;

21.8.2 the Parties shall submit a written statement of their respective cases (together with supporting

documents and evidence which may include information of a confidential nature marked as such) in relation to the Dispute within ten Working Days after receipt of notice in writing that the Independent

Expert has accepted his appointment or such longer period as the Independent Expert may allow;

21.8.3 the Independent Expert shall be entitled to direct the Parties to provide such further documentation and evidence which may include information of a confidential nature marked as such as he may

require and to make such other directions as he considers appropriate to the Dispute;

21.8.4 the Independent Expert shall produce his determination having due regard of the reasonable

confidentiality requirements of either of the Parties within thirty Working Days after acceptance of his appointment. The Independent Expert shall decide what information given to him by either Party

is confidential and should not be given to the other Party;

21.8.5 the Independent Expert shall act as an expert and not as an arbitrator and save for manifest error

on the face of the findings his decision shall be final and binding on the Parties and none of the provisions of the Arbitration Act 1996 shall apply;

21.8.6 the cost (including the costs of the Parties) of any reference in connection with the Dispute shall be

paid in such proportion as the Independent Expert shall decide or in the absence of such a decision

the Independent Expert’s fees and expenses shall be paid equally by the Parties and the Parties shall bear their own costs;


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21.8.7 if either Party fails to pay its share of the Independent Expert's fees and expenses the other Party

shall be entitled to pay them and to recover them from the other Party as a debt;

21.8.8 if the Independent Expert does not or is unable or unwilling to accept his appointment or to give his determination either Party to the Dispute shall be entitled to apply to Ofcom for a replacement to

be nominated, in which case Ofcom may see all the Independent Expert’s materials relating to such Dispute and pass such materials to a further Independent Expert (if appointed by Ofcom) for the

preparation of a report;

21.8.9 Ofcom may see all the Independent Expert’s materials relating to a Dispute which has subsequently

been referred to it for any reason. Ofcom may also pass such materials to a further Independent Expert (if appointed by Ofcom) for the preparation of a report.

21.9 The above procedures are without prejudice to any other rights and remedies that may be available in respect of any breach of any provisions of this Agreement.

21.10 Nothing herein shall prevent a Party from:

21.10.1 seeking (including obtaining or implementing) interlocutory or other immediate relief;

21.10.2 referring the Dispute to Ofcom in accordance with any right (if any) either Party may have to request a determination or other appropriate steps for its resolution.

22. BREACH, SUSPENSION AND TERMINATION

22.1 If either Party is in material breach of (including failure to pay a sum due under) this Agreement (other

than a failure to pay a sum which is subject to an invoice dispute), the other Party may serve a written notice (“breach notice”) on such Party (“the defaulting Party”) specifying the breach and requiring it to be

remedied within:

22.1.1 4 calendar days from the date of receipt of such breach notice in the event of a failure to pay a sum due

under this Agreement; or

22.1.1.1 30 calendar days from the date of receipt of such breach notice; or

22.1.1.2 in case of emergency, within such shorter period as the Party not in breach may reasonably specify.

22.2 If a breach notice is served the serving Party may, until the breach is remedied, suspend performance of

such of its obligations under this Agreement as is reasonable in the circumstances (other than any obligation to pay a sum due or to become due under the terms of this Agreement).

22.3 If the defaulting Party fails to remedy the breach within the period stated in the breach notice the Party not in breach may terminate this Agreement on three months' written notice provided always that if the

defaulting Party remedies the breach within such three months’ notice period, this Agreement shall not terminate as a result of such notice.

22.4 This Agreement may be terminated by either Party by written notice forthwith (or on the termination of

such other period as such notice may specify) if the other Party:

22.4.1 is unable to pay its debts within the meaning of section 123 (1) (e) of the Insolvency Act 1986; or

22.4.2 has a receiver or administrative receiver appointed in relation to all or any of its assets; or


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22.4.3 has an order made or a resolution passed for its winding up (other than for the purpose of amalgamation or reconstruction); or

22.4.4 has an administration order made in respect of its business; or

22.4.5 enters into a voluntary arrangement under section 1 of the Insolvency Act 1986; or

22.4.6 has anything which occurs in relation to it which is analogous to any of the foregoing under the law of any jurisdiction; or

22.4.7 ceases to carry on business.

22.5 Upon termination of this Agreement each Party shall take such steps and provide such facilities as are necessary for recovery by the other Party of equipment (if any) supplied by that other Party. Each Party

shall use reasonable endeavours to recover equipment made available by it.

22.6 If 30 calendar days after the termination or expiry of this Agreement, a Party fails to recover equipment in good condition (fair wear and tear excepted) because of the acts or omissions of the other Party (or a

Third Party appearing to have control of a site where such equipment is situate) the first Party may demand

reasonable compensation from the other Party which shall be paid by the other Party within 10 calendar days of the date of the demand.

22.7 Without prejudice to the Communications Provider’s rights upon termination of this Agreement, BT shall

refund to the Communications Provider a fair and equitable proportion of those periodic sums (if any) paid

under the Agreement for a period extending beyond the date of such termination unless the Parties agree otherwise.

22.8 Termination of this Agreement shall not be deemed a waiver of a breach of any term or condition of this

Agreement and shall be without prejudice to either Party’s rights, liabilities or obligations that have accrued

prior to such termination or expiry.

22.9 Notwithstanding the termination of this Agreement paragraphs 5.10, 15, 17 and 22.5 – 22.10 inclusive shall continue in full force and effect for a period of 5 years following termination.

22.10 A Party’s right to terminate or suspend performance of this Agreement pursuant to this paragraph 22 is

without prejudice to any other rights or remedies available to that Party.

23.1. In this Contract, the following terms each have the meaning given to it in the GDPR: “Binding Corporate

Rules”, “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing”, “Processor”,

Special Categories of Personal Data and “Supervisory Authority”.

23.2. Save where otherwise prohibited under this Contract BT may Process Personal Data for the purposes of

providing the Service, by:

23.1.1.23.2.1. using, managing, accessing, transferring or holding Personal Data on a variety of systems,

networks and facilities (including databases); and / or

23.1.2.23.2.2. transferring Personal Data worldwide to the extent necessary to allow BT to fulfil its obligations

under this Contract, and the Communications Provider appoints BT to perform each transfer in

order to provide the Services provided that BT shall not transfer Personal Data unless it has

implemented appropriate transfer mechanisms permitted by Data Protection Legislation, including:


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(a) BT Group’s Binding Corporate Rules (for transfers among BT’s Affiliates);

(b) agreements incorporating the relevant standard data protection clauses adopted by the European Commission; and

(c) where applicable, the EU-US Privacy Shield or any equivalent safeguard mechanism that replaces it.

23.2.23.3. Where each party acts as a Controller in relation to the Processing of Personal Data under the Contract,

the Parties will not act as joint Controllers for the purposes of Article 26 of the GDPR in relation to such

Processing.

23.3.23.4. The Parties acknowledge that, in respect of all End User Data provided by the Communications Provider,

the Communications Provider is the data controller and BT is the data processor.

23.4.23.5. Without limiting clause 23.4, the Parties acknowledge and agree that the Parties will need to share

Operational Data between them. Operational Data will be shared on the basis of a transfer from data

controller to data controller, and each Party will assume responsibility for its own compliance with the

Data Protection Legislation.

23.5.23.6. BT shall Process Personal Data in accordance with applicable Data Protection Legislation and as set out in

the BT Privacy Policy and, where applicable, BT Group’s Binding Corporate Rules.

23.6.23.7. Where BT acts as a Processor:

23.6.1.23.7.1. the subject-matter, duration, nature and purpose of the Processing, the type of End User Data and

categories of Data Subjects will be set out in Schedule 6;

23.6.2.23.7.2. In performing its obligations under the Contract, BT shall:

a) Process the End User Data on behalf of the Communications Provider in accordance with the

Communications Provider’s documented instructions as set out in this clause 23, except where:

(i) Applicable Law requires BT to Process the End User Data otherwise, in which case, BT shall

notify the Communications Provider of that requirement as soon as reasonably practicable

before Processing unless to do so would be contrary to that Applicable Law on important

grounds of public interest; and / or

(ii) in BT’s reasonable opinion an additional instruction or a change to the instructions provided

by the Communications Provider infringes the Data Protection Legislation and in which case

BT shall inform the Communications Provider of its opinion without undue delay and, if agreed

between the Parties, BT will not be required to comply with that instruction;

b) to protect the End User Data against a Personal Data Breach implement technical and organisational

security measures as required by Article 32 of the GDPR

c) provide Notice to the Communications Provider without undue delay (and, in any event, no later

than 24 hours) of becoming aware of a Personal Data Breach affecting the End User Data;

d) only use the Sub-Processors approved by the Communications Provider or in accordance with Clause

23.7.10; and


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e) In relation to any Data Security Incident, BT shall:

(i) take all reasonable steps to identify and correct the underlying cause of the Personal Data

Breach so as to eliminate or minimise the risk of its repetition and the occurrence of similar

Personal Data Breach;

(ii) take such steps as the Communications Provider may reasonably request and BT may

reasonably be able to take to assist the Communications Provider in addressing the adverse

consequences for the Communications Provider and its affiliates of, and complying with the

Communications Provider and its affiliates' obligations under Data Protection Legislation in

relation to, the Personal Data Breach; and

(iii) report to the Communications Provider affected by the Personal Data Breach, and/or at its

direction to it and another person, promptly and at regular intervals, on the steps taken to

identify and correct a Personal Data Breach and their results; and

(d) assist the Communications Provider in its compliance with the Data Protection Legislation, taking

into account the nature of the Processing of the End User Data and the information available to BT,

relating to:

(i) the Communications Provider’s obligation to respond to lawful requests from a Data Subject

for access to, or rectification, erasure or portability or restriction of, or objection to any

Processing of their Personal Data, to the extent practicable (including by having appropriate

technical and organisational measures, insofar as this is possible, for the fulfilment of the

Communications Provider’s obligation to respond to requests from a Data Subject to exercise

his or her right under the Data Protection Legislation) but BT shall not respond to any such

request except with the Communications Provider’s prior written consent.

(ii) the security of the Processing of the End User Data;

(iii) notification of a Personal Data Breach affecting the End User Data to the Supervisory Authority

or the Data Subjects; and

(iv) a data protection impact assessment as may be required by Article 35 of the GDPR and prior

consultation with the Supervisory Authority;

23.6.3.23.7.3. unless Applicable Law requires BT to store a copy of the End User Data, upon expiry or termination

of the Contract and at the Communications Provider’s option, BT shall delete or return the End

User Data within a reasonable time period.;

23.6.4.23.7.4. BT shall make available to the Communications Provider the information demonstrating BT’s

compliance with its obligations set out in Clauses 23.2.2, 23.6 and 23.7.

23.6.5.23.7.5. The Communications Provider may, subject to 30 days’ Notice (or if an audit needs to be

conducted on an Emergency basis, then as much prior Notice as is reasonably practicable), audit

BT’s compliance with clauses 23.2.2, 23.6 and 23.7. BT shall allow for and reasonably cooperate


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with the Communications Provider (or a third party auditor appointed by the Communications

Provider) to audit BT’s compliance, so long as:

(a) the Communications Provider

(i) uses its reasonable endeavours to ensure that the conduct of each audit does not

unreasonably disrupt BT’s business;

(ii) conducts the audit during business hours, unless the audit needs to be conducted on an

Emergency basis and the Communications Provider has given Notice to BT that an Emergency

audit is required;

(iii) uses its reasonable endeavours to ensure that the conduct of each audit does not cause BT

to breach its confidentiality obligations with its other customers, suppliers or any other

organisation; and

(iv) BT shall provide the Communications Provider with the necessary instructions and copies of

BT’s security policies which apply to the Communications Provider (or its third party auditor)

undertaking the audit and the Communications Provider or its third party auditors shall comply

with BT’s security policies and appropriate confidentiality obligations provided to the

Communications Provider by BT.

23.6.6.23.7.6. Without prejudice to the Communications Provider’s rights of audit under clause 23.7.5 and BT’s

obligation to rectify issues identified by any such audit adherence by BT to an approved code of

conduct or an approved certification mechanism may be used by BT as an element by which to

demonstrate compliance with its obligations set out in Clause 23.2.2, 231.6 and 23.7;

23.6.7.23.7.7. the Communications Provider may conduct an audit of BT's compliance with its obligations set out

in clause 23 only once per Contract Year, except for any additional audits which:

(a) the Communications Provider reasonably considers necessary because of genuine and evidentially

supported concerns as to BT's compliance with Clauses 23.2.2, 23.6 and 23.7 that cannot be resolved

without an audit; or

(b) the Communications Provider is required to conduct an audit by Applicable Law or a competent data

privacy or other regulatory authority.

23.6.8.23.7.8. without limiting BT’s other obligations under this clause 23, BT shall not disclose End User Data to

a third party unless required for the performance of the Service, permitted under the Contract or

otherwise required by Applicable Law. If required by Applicable Law BT shall provide as much

prior Notice as reasonably practicable; and

23.6.9.23.7.9. BT shall ensure that persons authorised by, or on behalf of, BT to Process the End User Data will

be bound by a duty of confidentiality.

23.6.10.23.7.10. BT shall notify the Communications Provider of proposed changes to its Sub-Processors from time

to time, either by providing the Communications Provider with online access to intended changes

at https://www.openreach.co.uk/orpg/customerzone/products/dataprotection/dataprivacy.do, or

https://www.openreach.co.uk/orpg/customerzone/products/dataprotection/dataprivacy.do


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by such other means as BT may determine and agreed with the Communications Provider provided

that:

(a) The Communications Provider shall have 90 days from the date of this Notice to object to the use

of the new Sub-Processor. BT may use the Sub-Processor during the notification period.

(b) if the Communications Provider does not give Notice of an objection to the proposed Sub-Processors

or changes to those Sub-Processors change within 90 days of the date of this Notice, the

Communications Provider will be deemed to have authorised the use of those Sub-Processors or

changes;

(c) if the Communications Provider does object to the use of a new Sub-Processor, the Communications

Provider shall give Notice in accordance with clause 24 documenting reasonable concerns why the

Sub-Processor will not be able to comply with the Data Protection Legislation; and

(d) if such Notice is received within the 90 days set out in clause 23.7.10(a), the parties will address the

Communications Provider’s objection in accordance with the dispute resolution set out in clause 15

and BT may use the relevant Sub-Processor to provide the Service until the objection is resolved in

accordance with clause 21;

23.6.11.23.7.11. BT may use Sub-Processors in accordance with Clause 23.7.2(d) and will remain responsible to the

Communications Provider for the compliance by any Sub-Processor with the terms of this

clause 23.7 and the Data Protection Legislation (including by ensuring that data protection

obligations in respect of Processing End User Data equivalent to those set out in clause 23.7 of the

Contract will be imposed on any Sub-Processors);

23.6.12.23.7.12. This Contract contains the Communications Provider's complete instructions to BT for the

Processing of End User Data. If the Communications Provider requires any additional instructions

or changes to the instructions the Communications Provider will raise a Statement of Requirement

following the process set out in the Statement of Requirements process for Openreach products

document. If the additional instructions or changes to the instructions are accepted by BT the

additional instructions, or change(s) will be incorporated into this Contract in accordance with

clause 13 to take account of any resulting change to the Contract, the resulting changes to the

Contract not being unreasonably withheld by BT.;

23.6.13.23.7.13. the Communications Provider and BT shall comply with applicable Data Protection Legislation; and

23.6.14.23.7.14. the Communications Provider shall not disclose to BT any Personal Data other than the Personal

Data required by BT to perform the Service.

23.7.23.8. To the extent permitted by Applicable Law and subject to clause 17,

23.7.1.23.8.1. a party in breach of the Data Protection Legislation or this clause 23 will be liable to the other for

any losses, costs and liabilities (including those arising from Claims) incurred or suffered by the

other party where those losses, costs and liabilities are caused by, or in connection with, that

breach including where the Parties are jointly and severally liable; and


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23.7.2.23.8.2. where the Parties are jointly and severally liable for a Claim caused by Processing neither party will

make any payment or any offer of payment to any Data Subject (including third parties acting on

behalf of any Data Subject) in response to any complaint or claim for compensation caused by or

relating to the Processing of Personal Data, without the prior written agreement of the other party,

such agreement not being unreasonably withheld.

24. NOTICES

24.1 All notices given under this Agreement must be in writing. All breach notices in connection with this

Agreement must be delivered by post and all other notices may be delivered by post, hand, or e-mail.

24.2 A notice shall be duly served if:

24.2.1 delivered by hand, at the time of actual delivery;

24.2.2 sent by facsimile, upon its receipt being confirmed;

24.2.3 sent by email, at the time of the transmission,

24.2.3 sent by first class post, 4 calendar days after the day of posting.

24.3 Notices sent pursuant to paragraph 23.1 shall be sent as follows:

If to the Communications Provider:

#[Communications Provider]

If to BT:

Legal, Risk and Commercial Team Openreach

3rd Floor

Kelvin House 123, Judd Street,

London WC1H 9NP

or to such other addresses as the Parties may notify from time to time pursuant to this paragraph 23.

25. ENTIRE AGREEMENT

25.1 This Agreement contains the whole agreement between the Parties and supersedes all previous

understandings, commitments, agreements or representations whatsoever, whether oral or written, in

relation to the subject matter of this Agreement, other than any fraudulent misrepresentation.

25.2 The Parties acknowledge and agree that:


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25.2.1 the Parties have not been induced to enter into this Agreement by any representation, warranty or

other assurance not expressly incorporated into it; and

25.2.2 in connection with this Agreement the Parties’ only rights and remedies in relation to any representation, warranty or other assurance are for breach of this Agreement and that all other

rights and remedies are excluded except in the case of fraud.

25.3 In the event of any inconsistency between this Agreement and any other agreement or understanding

between BT and the Communications Provider which relates to the subject matter of this Agreement (including any industry agreed process documents) and which may affect the Communications Provider of

this Agreement, the terms of this Agreement shall prevail.

26. VARIATIONS

26.1 Except as expressly provided in this Agreement, no variation of this Agreement shall be effective unless agreed in writing by the Parties and signed by a person nominated in writing on behalf of:

26.1.1 BT, by the General Counsel, Openreach (or his successor); and

26.1.2 the Communications Provider, by a director or the company secretary (or equivalent office holder) of the Communications Provider.

27. WAIVER

27.1 The waiver of any breach of, or failure to enforce, any term or condition of this Agreement shall not be construed as a waiver or a waiver of any other breach of the same or any other term or condition of this

Agreement. No waiver shall be valid unless it is in writing and signed on behalf of the Party making the waiver.

28. INDEPENDENT CONTRACTORS AND AGENCY

28.1 Each of the Parties is and shall remain at all times an independent contractor fully responsible for its own acts or defaults (including those of its employees or agents). Neither Party is authorised and neither of the

Parties nor their employees, agents or representatives shall at any time attempt to act or act on behalf of the other Party to bind the other Party in any manner whatsoever to any obligations. Neither Party nor its

employees, agents or representatives shall engage in any acts which may lead any person to believe that

such Party is an employee, agent or representative of the other Party. Nothing in this Agreement shall be deemed to constitute a partnership between the Parties.

28.2 If either Party appoints an agent for the purposes of this Agreement, and notifies the other Party, then the

other Party shall deal with the appointed agent for such purposes until the first Party notifies the other

Party that the appointment has been terminated.

29. SEVERABILITY

29.1 The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or

enforceability of the remaining provisions of this Agreement.

30. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999


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30.1 Save as expressly provided in this Agreement the Contracts (Rights of Third Parties) Act 1999 shall not

apply to this Agreement and unless specifically herein provided no person other than a Party shall have any rights under this Agreement nor shall this Agreement be enforceable by any person other than the

Parties.

31. GOVERNING LAW

31.1 The interpretation, validity and performance of this Agreement shall be governed in all respects by the laws of England and the Parties submit to the exclusive jurisdiction of the English Courts.


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IN WITNESS WHEREOF THIS AGREEMENT was entered into the day and year first before written.

SIGNED for and on behalf of

#[COMMUNICATIONS PROVIDER]

Signed: ________________________________________ Name: ________________________________________

Position: _______________________________________

SIGNED for and on behalf of

BRITISH TELECOMMUNICATIONS plc Signed: _________________________________________

Name: __________________________________________ Position: _________________________________________


____________________________________________________________________________________


ATTACHMENT TO THE MAIN BODY

SPECIFICATIONS

Ref. Specification title As amended from

time to time by (Note

1):

1 Access Network Frequency Plan (Spectrum Management Plan)

NICC

2 Internal Tie Cable specification

BT

3 External Tie Cable specification

BT

4 Specification Communications Provider: Requirements for

optical cables at the point of connection between BT And

Communications Providers

BT

5 Specification of the BT Metallic Path Facility

NICC

6 Technical Specification for the BT Local Loop Unbundling Line Sharing Service

BT

Note 1: Where documents are issued from time to time by other than BT, such changed documents shall only be incorporated into this Agreement where BT has explicitly agreed to such changes.

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