Electronic Trading Agreement

Use of the Redcare Electronic Trading System (ETS) is governed by this Electronic Trading Agreement. If you do not want to be bound by these terms and conditions you should exit ETS now.

Definitions

"Data Log" means the complete record of all Transactions;

"Document" means data constituting a record of a Transaction whether in paper or electronic form;

"Internet" means the global data network consisting of interconnected networks using Transmission Control Protocol/Internet Protocol ("TCP/IP") otherwise known as the world-wide web;

"Internet Server" means a computer system capable of communicating using TCP/IP run by or on behalf of BT;

"Services" means BTís Redcare services as described in BTís Conditions for Redcare Services;

"System" means all of the networks, computers, processes and methods established by BT to enable Transactions to be made subject to this Agreement;

"Transactions" means orders for the Services and other business transactions between the parties (as become available from time to time) electronically placed or amended under BTís Conditions for Redcare Services.

Term

This Agreement shall commence on the date of this Agreement and shall continue thereafter unless terminated by either party subject to clause 13.

Transactions

The Company shall place orders for Services and update, amend or cease existing Services by accessing the Internet Server, either by a direct dial access or via the Internet, and by completing an electronic order form

On receipt of a Transaction, BT shall act on the instructions thus received. The parties agree that a Transaction constitutes a signed Document between them.

 

System Operations

Each party, at its own expense, shall provide and maintain, equipment, software, services and testing necessary to effectively and reliably conduct Transactions. BT reserves the right to specify reasonable standards for such equipment, software and services as may be necessary from time to time.

Each party will appoint a person or persons to be a technical contact and commercial/operational contact for dealing with matters relating to the Transactions pursuant to this Agreement.

 

Security of Transactions

Access to the Internet Server shall be controlled by the use of such security devices, certification, encryption, user IDs or passwords (or any combination of these) as BT shall deem is appropriate from time to time. The Company is responsible for the security and proper use of all security devices, certification, encryption, user IDs and passwords used in connection with access to the Internet Server (including changing passwords on a regular basis) and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised people.

 

The Company must immediately inform BT if there is any reason to believe that a security device, certificate, encryption, user ID or password has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.

 

The Company must not change or attempt to change a user ID. If the Company forgets or loses a security device, certificate, encryption, user ID or password the Company must contact BT as soon as possible and satisfy such security checks as BT may operate.

 

Where the Company has reason to believe that the security of the Internet Server has been compromised it shall immediately inform BT of such as soon as possible and BT will suspend all Transactions. Where BT has reason to believe that the security of the Internet Server has been compromised it may immediately suspend all Transactions by the Company. Where BT suspends Transactions by the Company under this clause, BT will only reinstate Transactions when BT is satisfied that all necessary measures to secure access to the Internet Server have been taken.

 

Validity: Enforceability

The parties agree that any Transaction pursuant to this Agreement shall be considered to be "in writing".

Signed Documents shall be deemed for all purposes to have been "signed" and to constitute an "original" when printed from electronic files or records established and maintained in the normal course of business. The parties agree not to contest the validity or enforceability of signed Documents under the provisions of any applicable law requiring certain agreements be in writing and signed by the parties to be bound. Signed Documents, if introduced as evidence on paper in any judicial, arbitration, mediation or administrative proceedings, will be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form. Neither party shall contest the admissibility of copies of signed Documents on the basis that the signed Documents were not originated or maintained in documentary form.

 

Storage of Data

BT shall maintain without any modification the Data Log for a minimum period of:

(a) for commercial contracts and supporting records, 6 years from the date that the contract is terminated or expires; and

(b) for other records, 2 years from the latter of the date that the record is created or last modified.

The Data Log may be maintained on computer media or other suitable means provided that the data can be readily retrieved and presented in a readable form.

 

Contracts for the Services

A contract for the Services made or amended pursuant to this Agreement will be formed at the time and place that information is added to or amended on the Internet Server.

Contracts made or amended pursuant to this Agreement will be subject to BTís Conditions for Redcare Services (the Conditions) and the same as revised by BT from time to time. In case of conflict between this Agreement and the Conditions, the Conditions will take precedence.

 

BTís General Powers

BT may temporarily suspend the use of the System for repair, maintenance or improvement. In such cases BT will use reasonable endeavours to:

(a) provide the Company with as much notice as is practicable; and

(b) reinstate the Service as soon as reasonably practicable.

BT may further suspend use of the System, without prejudice to its right to terminate this Agreement, where the Company is in breach of this Agreement or any contract with BT for the Services.

 

Limitation of Liability

BT accepts unlimited liability for death or personal injury resulting from its negligence. Clauses 10.2 and 10.3 do not apply to such liability.

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

BT's liability to the Company in contract, tort (including negligence) or otherwise in relation to this Agreement is limited to £100,000 for any one incident or series of related incidents and to £200,000 for all incidents in any period of 12 months.

Each provision of this Agreement, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts will continue to apply.

 

Matters Beyond the Reasonable Control of Either Party

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

 

Confidentiality

The parties acknowledge the need to comply with the obligations contained in the Data Protection Acts 1984 and 1998.

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

 

This clause 12 will not apply to:

(a) any information which has been published other than through a breach of this Agreement;

(b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place;

(c) information obtained from a third party who is free to disclose it; and

(d) information which a party is requested to disclose and if it did not could be required by law to do so.

 

This clause 12 will remain in effect for 2 years after the termination of this Agreement.

 

Termination

Either party may terminate this Agreement without cause on 30 daysí notice to the other.

 

Either party may terminate this Agreement without notice if the other:

(a) commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or

(b) commits a material breach of this Agreement which cannot be remedied; or

(c) is repeatedly in breach of this Agreement; or

(d) is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into either voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets.

 

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

 

Changes to this Agreement

No change to this Agreement shall be valid unless it is in writing and signed by a duly authorised representative of BT.

 

Assignment

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

 

Entire Agreement

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

 

The parties acknowledge and agree that:

(a) they have not been induced to enter into this Agreement by any representation, warranty or other assurance not expressly incorporated into it; and

(b) in connection with this Agreement their 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.

 

Notices

Notices given under this Agreement must be in writing and delivered by hand or sent by prepaid post as follows:

(a) to BT; Redcare, 4th Floor, Monument Telephone Exchange, 11-13 Great Tower Street, London EC3R 5EA

(b) to the Company at the address to which the Company asks BT to send bills for the Services, the address of the Company's premises, or if the Company is a limited company its registered office.

 

Law

This Agreement is governed by the law of England and Wales.