INTERPRETATION and DEFINTIONS

 

In this Agreement:

 

“Acceptance Date” means date upon which The Customer accepts or is deemed to have accepted the Service as defined below. Acceptance is deemed when this agreement is signed;

 

“Agreement” means this Agreement together with the schedules The Customer attached hereto;

 

“Elio Networks System” means the telecommunications network and system including, without limitation, all cable and active equipment owned or operated by or on behalf of Elio Networks;

 

“Business Day” means a day other than a Saturday or Sunday on which banks generally are open for inter-bank business in Ireland;

 

“Charges” means the Lease Charges and all other charges payable by THE CUSTOMER under this Agreement;

 

“Customer Premise Equipment” means any equipment owned by, leased to or otherwise used by the Company in connection with Elio Network’s telecommunications network;

 

“Emergency” means an event consisting of an unplanned material disruption to service or unplanned reduction in or degradation of the quality of the Service;

 

“Fault” means a material defect, fault or impairment in the Service;

 

 

“Force Majeure Event” means an event beyond the reasonable control of the Affected Party (as defined in clause 7.1) including, without limitation, strike, lock-out or labour dispute; act of God; war, riot or civil commotion; malicious damage; compliance with a law or governmental order, rule, gas leak, regulation or direction; accident; breakdown of plant or machinery; fire; flood and storm;

 

“Service Charges” means the charges set forth in Schedule 1;

 

“Maintenance Service” means the maintenance services in respect of the Service as set forth in Schedule 3 and as amended and supplemented with the agreement of the parties from time to time;

 

“Quarter” means the three-month period commencing on 1 January, 1 April, 1 July and 1 October of each year;

 

“Term” has the meaning set out in section 2;

 

“Same Term” means an equivalent term as the initial agreement / Term defined in section 2;

 

“NOC Engineer/Network Engineer” means a Network Operations Centre Engineer who operates within Elio Network’s Network Team;

 

“Class 1 Fault” An issue that has an extremely serious impact on the customer’s service and cannot becircumvented;

 

 

1.  TERM

 

Subject to the terms and conditions of this Agreement and their SLA (available upon request), The Customer hereby agrees to the Service with effect from the Acceptance Date until the termination outlined in their SLA.

 

Customer Obligations

 

• The Customer shall provide all necessary cooperation in a timely manner for the purpose of this agreement. The Customer will provide Elio Networks with all information or documentation required for the provision of the service, The Customer warrants that all information and documentation will be accurate and correct. In the event that information or documentation furnished to Elio Networks proves to be inaccurate, incomplete or objectively impossible to implement, The Customer shall without delay make the necessary corrections or additions and shall indemnify Elio Networks for any loss, damage or claims occasioned by it as a resultof reliance

 

• The Customer covenants to use the Bandwidth Service solely for the provision of services in accordance with all applicable laws and regulations and such authorisations, licences, approvals, consents or permits as The Customer may hold from time to time.

 

• The Customer shall not send emails or transfer information in an illegal manner using technical infrastructure provided by Elio Networks. No Bulk emails containing advertising or emails to multiple recipients without prior request by The Customer, as required by the Data Protection Act 1988 amended.

 

• The Customer shall configure its servers as far as is technically possible so that unauthorised users cannot send bulk mail.

 

• The Customer shall contact Elio Networks by email info@elionetworks.com, as soon as they are aware of any contact detail or key personnel changes that Elio Networks would need in the event of emergency contact.

 

• The Customer & Elio Networks shall comply with accepted principles of data security and comply fully with its obligations under privacy laws and the Data Protections Act.

 

• This is an open internet circuit and it is entirely up to The Customer to protect their network from malicious acts which may compromise security.

 

• Elio Networks may install two antennae on the roof of your building for the provision of this service. Both antennae are required for consistent service. Elio Networks will own, operate and maintain this equipment. The bracketing and steelwork of this service will be owned by the client.

 

• Elio Networks will require access without hindrance to the installed equipment, after a reasonable notice period is given to carry out maintenance or the installation of the second antenna or the connection of an additional cable.

2.  MAINTENANCE

 

• From the Acceptance Date for the remainder and throughout the Term, Elio Networks shall provide the Maintenance Services.

 

• The Customer shall not perform any maintenance on any part of Elio Networks System, nor permit or cause any person other than Elio Networks or its employees, agents or sub-contractors to perform any such maintenance.

 

• Each party shall notify the other of any fault, which renders the service unusable, which requires corrective maintenance by Elio Networks or which may adversely affect The Customer’s use of the Service, in accordance with the procedures in Schedule 3.

 

• Elio Networks shall not be liable for any faults resulting from; interventions by The Customer in the technical infrastructure; The Customer’s network infrastructure; defective connection by The Customer to Elio Networks; incorrect configuration of The Customer

 

• Subject to the provision of reasonable prior written notice, The Customer shall provide Elio Networks withreasonable access on demand to sites or Customer locations in the event of a Fault being reported by either The Customer or Elio Networks.

3.  CHARGES

 

• Elio Networks shall be entitled to invoice The Customer for the Charges as set forth in this Agreement. The Customer shall pay the Charges in euro, without set-off or deduction or withholding of any kind (other than any deduction or withholding required by law) and free of any right of counterclaim, within 14 days of the date of the relevant invoice

 

• If Elio Networks fails to begin invoicing as outlined in your SLA nothing precludes Elio Networks from back invoicing from the acceptance date

 

• Payment for recurring services is by way of Direct Debit or Credit Card in advance, as outlined in Schedule 1. Cheques will not be accepted as a payment method. From the date of connection, a pro- rata invoice will be raisedfor the remaining days of the given month, plus the next full month, and on the 28 days in advance of the monththereafter, for the sum mentioned in schedule All payments must be made 14 days in advance of the due date of invoice.

 

• If The Customer fails to pay any undisputed Charges by the date such undisputed Charges become due, Elio Networks may, without prejudice to any other rights or remedies it may have, charge interest on the outstandingamounts at the rate of 5 per cent above the EURIBOR 1 (one) month rate per annum calculated on a daily basis from the date the payment was due until payment in full.

 

• Without prejudice to the termination rights, in the event that any due undisputed Charges have not been paid infull within 60 days of the due date, Elio Networks may suspend or terminate this Agreement and access to the service without any reimbursement of amounts already paid and without prejudice to The Customer’s obligation to pay any undisputed Charges due at the date of suspension or

 

• The Charges are exclusive of any Value-Added Tax chargeable, which will apply at the normal

 

• Elio Networks shall be entitled to alter the service charges set out in Schedule 1, with 30 days advance notice inwriting, in accordance with an increase in the Consumer Price For the purposes of this Agreement, the Index at a particular time shall be the Index most recently published by the Central Statics Office. In the event Elio Networks does not increase the service charges set out in Schedule 1, in line with the Consumer Price Index noprecedent has been set and Elio Networks retains the right to increase the service charges at any time.

 

• Should the Customer disagree with any Charges or fees shown on their bill, the Customer must get in contact with Elio Networks (via email at contact@elionetworks.com), or by written letter to Elio Networks, 6-9 Trinity Street, Dublin 2 , before the date that payment is due, highlighting the Charges or fees that the Customer is querying. All other Charges / fees will remain due at the payment date specified in the bill. Elio Networks will not credit a customer who does not notify

Elio Networks  of their issue in accordance with the terms of this clause.

 

• The Customer reserves the right to assign all payments received or credits against the oldest invoice on the Customer account if a remittance is not sent in on the date the payment has been made.

 

• The Customer will send all bills and notices for the Facility to the Customer’s billing email address and the Customer should send any notice to The Customer to the email address indicated on the invoice.

 

• The obligation rests with the Customer to inform The Customer about any change in the billing email address in advance of their next billing date.

 

4.  LIABILITY

 

• The limitations on liability set out in below shall not apply in respect of any breach of contract caused by The Customer.

 

• Neither party is liable to the other party, whether for negligence, breach of contract, misrepresentation or otherwise, for:

 

• loss of profit, goodwill, business opportunity or anticipated

 

• Indirect or consequential loss or

 

• The entire liability of one party to the other, under or in connection with this Agreement whether for negligence,breach of contract, misrepresentation or otherwise, shall be limited to the annual value of the contract for any one event or series of connected events in any period of twelve (12) consecutive calendar months, with first such period commencing on the date of this Agreement.

 

• Nothing in this Agreement shall operate to exclude or restrict either party’s liability for death or personal injury resulting from negligence; or fraud.

 

• Each party hereby expressly acknowledges and agrees that the foregoing limitations of liabilities are essentialelements of the basis of the bargain between the parties and in the absence of such limitations the material and economic terms of this Agreement would be substantially different.

 

• The Customer agree to maintain adequate resilience to prevent loss of service from impacting on but not limited to, the financial, reputational or operational running of their business.

 

 

• Poles, mounts, cables and fixtures may be used to complete the installation. These items become the property and responsibility of the subscriber, and it is the subscriber’s responsibility to ensure they are accepted and maintained in operational and safe condition, particularly in times of high winds. For example, stay wires for large poles should be tightened appropriately when required, no less than twice annually.

 

• Elio Networks will throughout and after this agreement retain ownership of all equipment used for the provision ofthe broadband service ( excluding Poles, mounts, cables and fixtures which may be used to complete theinstallation). Upon the termination of this agreement without hindrance, after 14 days, use their best endeavors toprovide access to Elio Networks for the removal of all equipment used (excluding Poles, mounts, cables and fixtures which may be used to complete the installation). Full reimbursement by THE CUSTOMER , for all equipment will be due to Elio Networks if there is a failure to allow access to recover equipment within the 8 weeks after the termination of this agreement.

5.  TERMINATION

 

• Either party may terminate this Agreement with immediate effect by written notice to the other party on or at any time after:

 

• the other party is in material or persistent breach of a material obligation under this Agreement and, if the breach is capable of remedy, fails to remedy the breach within 15 days starting on the day after receipt of written notice of default; a breach is capable of remedy if the other party can comply with the obligation within the said 30-day period;

 

• the other party enters into liquidation, whether compulsory or voluntary (except for the purposes of asolvent reconstruction or amalgamation) or ceases to carry on business or that other party has an order madeor petition presented or a resolution passed for its winding up (other than for the purpose of a solventreconstruction or amalgamation) or the other party becomes insolvent or unable to pay its debts as they falldue within the meaning of Section 214 of the Companies Act 1963, or an encumbrancer takes possession of,or a receiver or examiner (or any administrator as appropriate) is appointed over any of the property or assetsof that other party or any application is made for the appointment of a receiver, examiner or administrator, or if any similar action in consequence of debt is taken against or suffered by that other party, or any analogous event occurs in respect of the other party in any relevant jurisdiction; or the other party makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally.

 

• Elio Networks may terminate this Agreement upon serving ninety(90) days written notice of termination on The Customer where any third party supplier of Elio Networks no longer performs or is no longer capable of performing any of its obligations under any contract between Elio Networks and any such third party supplier, which materially affects the ability of Elio Networks in carrying out its obligations under this Agreement, or any such contractis terminated by Elio Networks as a result of the default of any such third party supplier, or is terminated by any suchthird party supplier or is set aside or disclaimed by any liquidator, examiner, receiver or administrator appointed overany of the assets or property of any such third party supplier.

 

• Termination of this Agreement does not affect a party’s accrued rights and obligations at the date of

 

• For the purpose of continued service this agreement will renew on the termination date for the same term unless terminated by The Customer in writing one month prior to the termination date.

 

• If The Customer terminates this Agreement other than in accordance with clause 7, The Customer shall pay Elio Networks a termination fee of the balance of the remaining Term of the Agreement.

 

• This agreement is subject to being able to acquire appropriate spectrum from Comreg for the provision of the desired service from a suitable high site.

 

• On termination of this Agreement (for whatever reason), the Customer shall return to The Customer within ten (10) days of such termination any loan equipment or Customer Premises Equipment, the use of which may have been supplied to them by The Customer as part of the supply of connectivity. In the event of a failure by the Customer to return any or all of the Customer Premises Equipment, the Customer shall become liable to pay to The Customer the total cost of the Customer Premises Equipment or equipment which the Customer has failed to return; and the Customer shall return all of the The Customer materials and any deliverables which have not been fully paid for.

 

• The Customer must allow anyone authorised by The Customer, following production of official documentation of identity, reasonable access to the Premises at reasonable times to facilitate the termination of the Facility where applicable, or for any purpose relating to the Facility. The Customer will ensure that they have all requisite permissions to grant such access. Until they have been returned, the Customer shall be solely responsible for the safe keeping of the Customer Premises Equipment and will not use any of it for any purpose not connected with this Agreement.

 

 

6.  UPGRADE/DOWNGRADE

 

• The Customer may upgrade during the Initial Period of Service or any subsequent contract periods subject to the terms of this clause.

 

• The Charges for the upgrade will be charged at the difference between current contract price and upgrade pricing applicable at the relevant time, as determined by Elio Networks. A Customer may only upgrade / downgrade the Facility once the first six (6) months of their Initial Period of Service has expired. The Charges for a downgrade shall be agreed by the Parties at the time of the proposed downgrade.

 

• The Customer shall be entitled to one downgrade at the end of this agreement within the 30 days notification period.

7.  FORCE MAJEURE

 

• If a party (the “Affected Party”) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement (other than a payment obligation) by a Force Majeure Event: the Affected Party’s obligations under this Agreement shall be suspended for as long as the Force Majeure Event continues to prevent, hinder or delay performance of the Affected Party’s obligation; as soon as reasonably possible after the start of the Force Majeure Event the Affected Party shall notify the other party of the Force Majeure Event; and as soon as reasonably possible after the end of the Force Majeure Event the Affected Party shall notify the other party that the Force Majeure Event has ended and resume performance of its obligations under this Agreement.

 

• If the Force Majeure Event continues for more than 90 days starting on the day the Force Majeure Event starts,either party may terminate this Agreement by giving not less than 30 days’ written notice to the other party.

 

8.  CONFIDENTIALITY

 

• “Confidential Information” means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by a party (the “Disclosing Party“) to the other party (the “Receiving Party“) whether before or after the date of this Agreement including, without limitation, information relating to the Disclosing Party’sproducts, operations, processes, plans or intentions, know- how, design rights, trade secrets, market opportunities and business affairs.

 

• Subject to the provisions of clause below, during the Term of this Agreement and after termination or expiration of this Agreement for any reason the Receiving Party:

 

• may not use Confidential Information for a purpose other than the performance of its obligations under this Agreement;

 

• may not disclose Confidential Information to a person except with the prior written consent of the Disclosing Party and shall make every effort to prevent the use or disclosure of Confidential

 

• Subject to the provisions of clause below, during the Term of this Agreement the Receiving Party may disclose Confidential Information to any of its directors, other officers, employees and sub- contractors to the extent thatdisclosure is reasonably necessary for the purposes of this Agreement; and to the extent that such disclosure is required by law or a regulation of a stock exchange.

 

• Subject to the provisions of clause below, clauses do not apply to Confidential Information which:

 

• is at the date of this Agreement, or at any time after that date becomes, publicly known other than as a result of the Receiving Party’s or Recipient’s breach of this Agreement;

 

• can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party.

 

• The Customer shall not disclose, and shall make every effort to prevent the disclosure of, any terms or conditions of this Agreement to any person without the prior written consent of Elio Networks

 

• Elio Networks acknowledges that it is aware that The Customer may be a public sector body designated under the provisions of the Freedom of Information Act, 1997. Elio Networks acknowledges that it has been notified prior to the execution hereof that this Agreement may therefore be liable to public disclosure on request made under that Act, subject to The Customer’s entitlement to refuse to disclose certain information on the grounds set outin that The Customer and Elio Networks acknowledge that this Agreement is commercially sensitive.

 

9. ASSIGNMENT

 

• The Customer shall not allow the creation of any lien or other security interest over the Service, or any part thereof, unless otherwise agreed in writing between the parties.

 

• The Customer may not assign or transfer this Agreement, or any part thereof or right or obligation thereunder, or purport to do so, without having first obtained Elio Networks ‘s written consent (which consent may not be unreasonably withheld or delayed).

 

• Elio Networks will have the right at all times to assign any or all of its rights or obligations under this agreementto a third party without prior In the event of such an assignement the assignee will become liable for all obligations under this agreement.

 

10. PERSONAL DATA

 

• Where a party receives Personal Data from the other party in the course of this Agreement, that party shall:

 

• comply with Data Protection Laws; and

 

• only process such Personal Data for the purposes of and / or as provided for in the

 

Agreement, to provide the other party with information about its products and services (where permitted) and / or to comply with, or as otherwise permitted by, Applicable Laws.

 

• Prior to placing an order for the Facility, The Customer will ask the Customer whether it wishes to exclude its Personal Data from the National Directory Database, pursuant to Regulation 12 of the S.I. No. 336/2011 – European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (as amended by S.I. No. 444 of 2022 European Union (Electronic Communications Code) Regulations 2022).

 

• The parties agree that where the Customer is a business, trade or profession it shall be the Controller of Customer Personal Data and any Own Customer Personal Data and The Customer shall be the Processor. Where Personal Data shared by the Customer relates to referral data provided to Elio Network for its on-boarding purposes, or where the Customer is a Data Subject, The Customer  will be the Controller. Each party shall comply with their respective obligations under applicable Data Protection Laws in this regard.

 

• Without prejudice to, or limiting the Customer’s obligations under this clause, to the extent Elio Network acts as a processor for the Customer Personal Data in performing or delivering the services to the Customer,

 

The Customer  shall:

 

• save as permitted by Applicable Laws, process the Customer Personal Data only on and in accordance with the Customer’s documented instructions and inform the Customer of any legal requirement under Applicable Law that would require The Customer to process the Customer Personal Data other than in accordance with the Customer’s instructions;

 

• ensure that any persons authorised to process Customer Personal Data within The Customer have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

 

• implement appropriate technical and organisational measures (as defined in the Data Protection Laws) to protect against a Personal Data Breach, having regard to the state of technological development and the cost of implementing any measures;

 

• not engage a sub-processor to perform processing activities in respect of the Customer Personal Data without the Customer’s prior specific or general written consent. If the Customer gives its consent the supplier shall appoint the sub-processor under a binding written contract which imposes the same data protection obligations as are contained in this Agreement on the sub- processor and in particular under this Clause;

 

• taking into account the nature of processing and insofar as possible, implement and maintain appropriate technical and organisational measures so as to assist the Customer in responding to Data Subject Rights requests as set out in Data Protection Laws;

 

• not transfer any Customer Personal Data to any country outside of the European Economic Area without the prior written consent of the Customer and if the Customer consents to the transfer of the Customer Personal Data to an international recipient the supplier shall ensure that such transfer (and any onward transfer) complies with the written instructions of the Customer and this Clause;

 

• taking into account the nature of processing and the information available to it, assist the Customer, at their cost, in responding to any valid request from a Data Subject under Data Protection Laws and in ensuring compliance with the Customer’s obligations under Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

 

• at the Customer’s written direction, delete or return the Customer Personal Data and copies thereof to the Customer on termination of the Services unless storage of any data is required by Applicable Law, and

 

• make available to the Customer all information necessary to demonstrate compliance with this Clause and allow the Customer or their designated auditor, at the Customer’s cost and on reasonable prior notice, audit The Customer ‘s records to the extent necessary to verify Elio Network’s compliance.

 

• Nothing in this Clause shall relieve, remove or replace the Customer’s obligations under Data Protection Laws as Controller. The Customer is responsible for ensuring that they have all the necessary consents and notices in place, or another valid lawful basis (within the meaning of Data Protection Laws), before they use the services to collect, process, use and transfer Customer Personal Data or Own Customer Personal Data to The Customer  for use in accordance with the Agreement and for the duration and purposes of the Agreement.

11.  SUB-CONTRACTING

 

Elio Networks may sub-contract its obligations under this Agreement provided always that any such sub- contracting shall not relieve Elio Networks of its obligations to comply with and to procure compliance with the terms of thisAgreement and that Elio Networks shall be responsible for the performance by any such sub-contractor of Elio Networks’s obligations hereunder.

 

12.  GENERAL

 

• This Agreement constitutes the entire agreement, and supersedes any previous agreement, between the parties relating to the subject and THE CUSTOMER of this Agreement.

• A variation of this Agreement is valid only if it is in writing and signed by or on behalf of each

• No provision of this Agreement creates a partnership between the parties or makes one party the agent of the other party for any purpose. A party has no authority or power to bind, to contract in the name of, or to create a liability for the other party in any way or for any purpose.

 

13. GOVERNING LAW AND JURISDICTION

 

• This Agreement and all THE CUSTOMER arising from or connected with it are governed by Irish law.

• The courts of Ireland (which for the avoidance of doubt shall exclude Northern Ireland) have exclusive jurisdiction to settle any dispute arising from or connected with this Agreement.

• The parties agree that the courts of Ireland (which for the avoidance of doubt shall exclude Northern Ireland) arethe most appropriate and convenient courts to settle any Dispute and, accordingly, that they will not argue to the contrary.

• Both parties hereby agree to engage in reasonable mediation as a means to resolve any dispute arising from or connected with this Agreement, prior to resorting to legal means mentioned above.

Service Level Metrics

 

Circuit Availability per Quarter (% available)	Service Credits payable in % of Service quarterly cost
Greater than 99.99%	0
Between 99.98% and 99.00%	7%
Between 98.99% and 95.00%	12%
Less than 94.99%	28%
Less than 60%	70% & Right to cancel

 

4.  Performance of the Services

 

Elio Networks will provide The Customer with a Connection. This service will be provided on a 24×7 basis. Elio Networks will proactively monitor and manage all events on the service and will communicate to The Customer as per the service level agreement.

 

We are committed to maintaining a minimum level of service quality that supports common real-time applications, such as video conferencing, VoIP, and online gaming. Under normal network conditions, the following minimum performance levels can be expected.

 

• Latency: Less than 40ms one way for sites located within the Republic of Ireland
• Jitter: Less than 20 ms
• Packet loss: Less than 0.1% on our dedicated network, less than 1% on our shared/licence exempt network.

 

5.  Network monitoring and fault management

The NOC will provide:

• • Utilisation and status information  Alert and event management
  • Fault management
  • Remote diagnostics and resolution  CPE management

 

The Customer site will:

 

Have its basic network architecture, node status and utilisation modelled

 

Have its CPE configuration saved in a central server in the Elio Network’s NOC The Customer sitewill have a fault process map and escalation list of designated contacts

 

6.  Service Levels

 

• If you have logged a Critical or Urgent call, one of the company’s Engineers will call you back within 60 minutes.

• Remote access to The Customer will ensure an initial

 

7. ESCALATION

 

• Having defined the fault as a Class 1, it is then the responsibility of Elio Networks’s Network Engineer to notify the appropriate The Customer contact that an emergency has occurred.

 

• During the normal working hours e. 09:00-17:30, The Customer should be notified immediately together with the details of the event.

 

• The Customer will then directly contact Elio Networks, to determine alternatives and resolve the fault.

 

• The escalation decision is made by the Elio Networks NOC Engineer. The decision is made based on the following variables:

 

 Elapsed Time beyond our agreed response time  Complexity – from discussion with technicians

 

The Customer requirements or requests

 

The escalation action can be:

• Assign additional or alternate resources

 

• Update The Customer on status and next expected action

 

• Redefine the actions for issues that can not be resolved within the timeframe

 

• In the event The Customer determines a fault they must contact Elio Networks using the process outlined in schedule 3 as soon as possible. The Elio Networks Engineer will determine the fault class.