These terms and conditions are applicable to the extent that Sycamore Communications Corporation (trading as Exchange Communications) provides Services to you.

  1. Definitions
    1. In these terms and conditions (“Terms and Conditions”), unless the context otherwise requires:
      1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
      2. “Charges” means the charges set out on the Order Form.
      3. “Confidential Information” means:
        1. all information designated as such by either party in writing;
        2. business information that is or could reasonably be expected to be confidential or not generally known; and
        3. all information, know-how and records (whether or not confidential and no matter in what form held) including (without prejudice to the generality) all formulas, designs, specifications, drawings, data, manuals and instructions and all customer lists, sales information, business plans and forecasts, all developments, trade secrets, all technical or other expertise, licensed software, and all source code, source documentation, ideas, updates and any non-public information regarding the business of a party provided to either party by the other party where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information is, by its nature, confidential.
      4. “control” means the beneficial ownership of more than 50% of the issued share capital or stock of a company or corporation or the legal power to direct or cause the direction of the general management of the company or corporation, and “controls” and “controlled” shall be construed accordingly.
      5. “Customer Equipment” means all equipment other than Exchange Equipment.
      6. “Exchange Equipment” means equipment (if any) supplied by or on behalf of Exchange to the Customer or placed at or on the Site for the purposes of providing the Services.
      7. “Facilities” means any and all devices supplied by Exchange used to deliver Services, including but not limited to all terminals and other equipment, wires, lines, circuits, ports, routers, switches, channel service units, data service units, cabinets, racks, private rooms and the like. Facilities shall not include any such devices sold to the Customer by Exchange and paid for by the Customer or owned by Customer or any third party.
      8. “Intellectual Property Rights” means patents, trademarks, registered designs, service marks, utility models, applications for any of the foregoing and the right to apply thereof in any part of the world, copyright (and the rights in the nature of copyright), topography rights, brand names, trade names, logos, get-up, know how, rights, licenses or consents in relation to any of the foregoing; all or any similar or equivalent rights arising or subsisting in any part of the world.
      9. “Licensed Software” means computer software, in object code format only, the use of which is required for use of the Services.
      10. “Minimum Period” means the minimum period in which the Services shall be supplied by Exchange to the Customer as detailed on the Order Form. The Minimum Period for each Service shall start from the Services Commencement Date for such Service.
      11. “Order Form” means the order form described as quote.
      12. “Parties” or “Party” shall mean Exchange and the Customer.
      13. “Services Commencement Date” means in respect of each individual Service the date upon which the Service first becomes available to the Customer; or
      14. “Service(s)” means those services to be supplied as specified in the Order Form from time to time by Exchange.
      15. “Site” means the location(s) at which the Services are to be provided.
      16. “We” or “Us” or “Exchange” means Sycamore Communications Corporation, a Delaware corporation, or such other associated company or affiliates as may be detailed on the Order Form.
      17. “You” or “Customer” means the customer receiving the relevant Service.
    2. Any reference in these Terms and Conditions to any law shall be deemed to include any amendment, replacement or re- enactment of such law for the time being in force.
    3. The headings in these Terms and Conditions are for ease of reference only and shall not be taken into account in the construction or interpretation of any provision to which they refer.
    4. References in these Terms and Conditions to clauses or sections are references to clauses and sections of these Terms and Conditions. Throughout these Terms and Conditions wherever required by context the use of the singular includes the plural and vice versa.
    5. References in these Terms and Conditions to writing include email.
    6. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
    7. Any reference to a Californian legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than California, be deemed to include a reference to that which most nearly approximates to the Californian legal term in that jurisdiction.
    8. Any variation or amendment to these Terms and Conditions shall be made in writing and shall be signed or executed by or on behalf of all parties.
  2. Provision of Services
    1. In consideration of the payment of the Charges, Exchange shall provide the relevant Services in accordance with these Terms and Conditions.
  3. Order Form
    1. The Customer agrees to an Order Form by signing the relevant quote provided by Exchange (or by taking the relevant Service).
  4. Commencement and duration
    1. These Term and Conditions shall apply to any Services supplied by Exchange Communications.
    2. Each of the Services shall commence from the relevant Services Commencement Date for each Service until the end of the Minimum Period, unless terminated earlier in accordance with these Terms and Conditions and shall automatically continue thereafter until terminated in accordance with clause 9.1 of these Terms and Conditions.
  5. Third party notifications and rights of third party
    1. The Customer shall at its own cost grant or procure all permissions, licences, waivers, consents, registrations and approvals necessary for or considered desirable by Exchange to access and deliver to, or install, keep installed and maintain at the Site any Exchange Equipment, provided always that Exchange shall not be liable or responsible for any equipment not supplied by Exchange.
    2. Nothing in these Terms and Conditions shall be read, construed or understood as conferring or purporting to confer on any third party, other than the parties, any rights, obligations or benefit in these Terms and Conditions.
  6. Provisions relating to Service
    1. The Customer will use the Services in accordance with the provisions of these Terms and Conditions and such reasonable operating guides or instructions as may be notified by Exchange to the Customer from time to time, and for lawful purposes, inter alia in accordance with any applicable laws which govern the provision of Services, whether in force at the Services Commencement Date or entering into force at any time thereafter.
    2. The Customer will not use the Services or permit the Services to be used:
      1. for any fraudulent or unauthorised purpose, including those prohibited under these Terms and Conditions or by legislation; or
      2. to the extent relevant, for the transmission of any material which is defamatory, offensive, threatening or abusive or of an obscene or menacing character or otherwise unreasonable; or
      3. in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to Intellectual Property Rights and confidentiality rights); or
      4. to gain unauthorized access to any computer system or which causes or is likely or intended to cause detriment or harm or loss of control to any computer systems; or
      5. in any other way which is in breach of any applicable laws; or
      6. to the extent relevant for the purposes of unsolicited advertising or other unsolicited bulk communications to multiple recipients or in association with such purposes; or
      7. in violation of any applicable local laws applying to any network or facility through which data may pass as part of the Customer’s use of the Services.
    3. The Customer shall:
      1. not allow any third party use of or to interconnect to the Services; and
      2. comply with any and all acceptable use policies issued by Exchange in relation to the Services from time to time;
  7. Suspension of Services
    1. Exchange may (without prejudice to its other rights) suspend the provision of any Service hereunder and without prior notice, in whole or in part, until further notice with immediate effect if:
      1. Exchange is obliged to comply with an order, instruction or request of Government, court of law, emergency services organization, or other competent administrative authority; or
      2. Exchange needs to carry out work relating to upgrading, repair or maintenance of the Service or any part thereof including points of presence, servers or any component or part of connectivity and Exchange shall only be required to give such notice to the Customer concerning such suspension as is reasonable in the circumstances; or
      3. the Customer does not pay any sum due and owing to Exchange under this Agreement by its due date; or
      4. the Customer is in breach of any of the terms of this Agreement or any other agreement with an Affiliate of Exchange.
  8. Charges, payments and interest
    1. The Charges payable in accordance with the invoice terms.
    2. All sums due to Exchange under this Agreement are stated net of any applicable taxes, licence and permit fees which may be payable by the Customer in accordance with the relevant regulations in force at the time of making the taxable supply and all such foregoing taxes shall be paid by the Customer. Exchange may additionally charge a regulatory recovery surcharge which shall be paid by the Customer and is a fee applied to recurring services to recover direct and indirect amounts paid to the government entities and other third parties for regulatory charges assessed by governmental programs/agencies and the costs associated with administering and complying with this. Charges for taxes, licence and permit fees and any regulatory recovery surcharge will usually be invoiced at the same time as the Charges to which they relate.
    3. Payment of all sums due under this Agreement shall be made by the Customer in full without any set-off, deductions or withholding whatsoever on the relevant date of the relevant invoice.
    4. Except for invoiced payments which the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under California law, calculated daily and compounded monthly.
  9. Termination
    1. The Customer may, after expiry of the Minimum Period for a Service, terminate such Service by providing no less than thirty (30) calendar days written notice to Exchange of termination.
    2. Exchange shall have the right to terminate this Agreement (and all Services under this Agreement) forthwith in the event that:
      1. a trustee, liquidator, receiver, administrative receiver or administrator is appointed over the Customer or any part of its undertaking or assets which relate to the Services or the distribution thereof or the Customer becomes insolvent or unable to pay its debts as they mature or ceases to pay its debts as they mature in the ordinary course of business, makes an assignment or arrangement for the benefit of creditors generally, or makes a proposal to creditors generally, or an application to any Court under the legislation of any country for relief from its debt obligations or to restructure the same or any proceedings are commenced by or on behalf of the Customer in relation to the bankruptcy, insolvency, or other debtors relief of the Customer or the Customer passes a resolution or takes any other action to effect its winding up or the termination of its existence or a Court of competent jurisdiction shall make an order or take any action to that effect; or
      2. the Customer materially defaults in due performance or observance of any material obligation under this Agreement, or other agreements made with Exchange and (in the case of a remediable breach) fails to remedy the breach within seven (7) days of notice of breach being given in any form by Exchange.
  10. Consequences of termination
    1. Upon termination of the Services for any reason, including but not limited to loss or damage to the Facilities installed on the Site (unless caused by the negligence or wilful misconduct of the employees or agents of Exchange), the Customer shall:
      1. immediately cease to make use of the relevant Service;
      2. pay all charges and outstanding invoices and other monies due to Exchange immediately;
      3. immediately cease to make use of any trade mark or other Intellectual Property Rights that belong to Exchange and destroy or return to Exchange (at Exchange’s option) all material upon which such Intellectual Property Rights exist.
    2. In addition, if Exchange terminates the Services in accordance with clause 9.2.1 or 9.2.2, the Customer shall pay Exchange within 30 days of termination the total amount due in relation to each Service which  is still within the Minimum Period in respect of the period from the date of termination until the end of the Minimum Period.
  11. Intellectual Property Rights
    1. All legal and beneficial rights in software, hardware or other equipment in whatever form which Exchange provides to the Customer for the purpose of using the Services or Exchange Equipment will remain at all times Exchanges property or the property of its licensor.
    2. To the extent that it is so entitled, Exchange grants the Customer a non-exclusive non-transferable licence to use any software which Exchange provides to the Customer for the purpose of using the Services or Exchange Equipment for the duration of this Agreement and for no other purpose. The Customer will not reproduce such software, save that the Customer will be entitled to make a single back-up copy for security purposes only. The Customer will not modify, adapt, translate, reverse engineer, decompile or disassemble such software or create any derivative work based thereon or merge or include such software with or in any other software.
    3. Copyright in all documents, drawings designs and information including if applicable any access codes supplied to the Customer in connection with this Agreement shall remain vested in Exchange or the copyright owner. Such documents, drawings, designs and information are confidential and will not be copied, disclosed or used (except for the purpose for which they were supplied) without Exchange’s express prior written consent. The Customer shall not decompile, disassemble, reverse engineer or otherwise attempt to decrypt, discover or use the source code for the Services.
    4. Exchange shall have the exclusive right to commence, defend, conduct and settle all proceedings involving an infringement or alleged infringement of Exchange’s Intellectual Property Rights or relating to the validity thereof.
    5. The Customer agrees to promptly notify Exchange in writing of any infringements or violations by any third party of Exchange’s Intellectual Property Rights as soon as these become known and shall make no admissions without Exchange’s consent. The Customer shall, at Exchange’s sole expense, give all reasonable assistance and such documentation as Exchange may (without limitation) require, in connection therewith.
    6. The Customer acknowledges that all Intellectual Property Rights belonging to Exchange are and shall remain (as between Exchange and the Customer) the sole property of Exchange.
  12. Limitation of liability
    1. Nothing in this Agreement shall exclude or restrict Exchange’s liability for death or personal injury resulting from the negligence of Exchange or of its employees while acting in the course of their employment or for fraud by Exchange or its employees acting in the course of their employment.
    2. Unless otherwise expressly stated, Exchange’s liability arising in any twelve (12) month period commencing from the date specified in the Order Form and whether in contract, tort or otherwise including any liability for negligence or deliberate breach howsoever arising out of or in connection with the performance of Exchange’s obligations under this Agreement shall be limited to the sum paid to Exchange by the Customer pursuant to this Agreement in the previous twelve (12) months, in respect of all events. The Customer expressly acknowledges and agrees that this clause is reasonable and Customer shall not challenge it or seek additional remedies.
    3. Except as expressly provided in this Agreement, Exchange does not make any warranties either express or implied and hereby disclaims all implied conditions, warranties and other terms of any kind as to service interruption, connectivity, delivery, continuity, freedom from error, delay, quality, fitness for purpose, suitability or performance to be provided under this Agreement or accuracy or content of information passing through any network and, except as expressly provided in this Agreement, Exchange shall not be liable to the Customer under this Agreement in contract, tort or otherwise including any liability for negligence for any loss of revenue, business, contracts, anticipated savings, or profits, or any indirect, economic or consequential loss howsoever arising.
  13. Indemnity and undertaking
    1. Exchange’s obligations under this Agreement shall be solely to the Customer and the Customer agrees to indemnify, defend and hold harmless Exchange from and against all and any liabilities claims and costs whatsoever (including but not exclusively legal costs, damages, fines, judgments and expenses) arising from any and all claims by any third party (regardless of cause of action and whether suffered directly or indirectly by Exchange) in connection with or resultant from the use of the Service by the Customer or the provision of related services by the Customer or arising out of the breach of any term of this Agreement by the Customer.
  14. Force majeure
    1. Neither party shall be liable to the other under this Agreement for any loss or damage which may be suffered by the other party due to any cause beyond the first party’s reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of Government, highways authorities, administrations or other competent authority, other telecommunications operators, the obstruction by a third party of line of sight between microwave or optical installations, war, military operations, riot, difficulty or delay in failure in manufacture, production or supply by third parties of equipment and/or services or of the equipment or services concerned including but not limited to technical problems which render it impracticable for Exchange to perform in accordance with this Agreement. Failure by or inability of the Customer to make payments as required by this Agreement shall not be an event of force majeure for the purposes of this Agreement.
    2. If any event described in clause 14.1 lasts for more than three (3) months from the date of its commencement and such event prevents Exchange from performing its obligations in whole or in part during that period, either party shall be entitled (but not obliged) to immediately terminate this Agreement forthwith by giving written notice to the other party.
  15. General
    1. Notices: Any notices to be given under this Agreement shall, unless otherwise expressly stated, be in writing and shall be given by sending the same by post or facsimile transmission to the other party’s address stipulated in this Agreement or such other address as may be designated in writing from time to time by the other party. Any notice sent by post shall be deemed (in the absence of evidence of earlier receipt) to have been delivered three (3) calendar days after it has been sent. Any notice given by facsimile transmission shall be deemed to have been delivered on the next working day following transmission.
    2. Assignment: The Customer shall not assign or delegate or purport to assign, delegate or otherwise deal with any of its rights and obligations under this Agreement, except if previously and expressly agreed in writing by Exchange. Exchange shall have the right to assign, sub-contract or otherwise deal with all or any of its rights and obligations under this Agreement to any Affiliate.
    3. Modifications: Exchange shall have the right by notice in writing to the Customer to modify these Terms and Conditions ment at any time so as to comply with any regulations or other requirement applicable to or imposed upon Exchange by any competent authority, and shall use its reasonable endeavours to ensure such modifications do not result in any deterioration in the Service provided to the Customer. Otherwise, this Agreement may only be modified if such modification is in writing and signed by a duly authorized representative of each party.
    4. Waiver: No delay or failure by either party to exercise any of its powers, rights or remedies under these Terms and Conditions will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing and the remedies provided in these Terms and Conditions are cumulative and not exclusive of any remedies provided by Unless otherwise provided for any waiver shall be limited to the specific breach waived.
    5. Severability: If any provision of these Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of these Terms and Conditions (as appropriate) and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
    6. Non-exclusivity: For the avoidance of doubt, nothing in these Terms and Conditions shall prevent or otherwise restrict Exchange from providing identical or similar services to any other party whatsoever.
    7. Entire agreement: These Terms and Conditions together with the Order Form shall represent the entire understanding between the parties in relation to the subject matter thereof and shall supersede all agreements and representations made by either party, whether oral or written. The parties irrevocably agree that these Terms and Conditions in respect of the provision of the Services by Exchange shall prevail over any terms and conditions supplied by the Customer.
    8. Relationship between the parties: The parties are independent and unrelated persons and nothing herein shall be construed as creating any partnership, joint venture, agency or similar arrangement or relationship. Neither party shall have the power or authority, whether directly or indirectly, or through its servants to bind the other party to any agreement with any third person or otherwise to contract or enter into a binding relationship for or on behalf of the other party. Neither party shall make any representation or warranty, express or implied, on behalf of the other party except as expressly provided for in these Terms and Conditions or otherwise agreed in writing between the parties.
    9. Confidentiality: The Customer acknowledges that it is receiving Confidential Information under this Agreement belonging to Exchange and Exchange acknowledges that it may receive Confidential Information under this Agreement belonging to the Customer, in each case including technical, business and financial information, and each party agrees to hold such information in the strictest of confidence and to take all reasonable steps to maintain the confidentiality of such information and to use such information only for the purposes of this Agreement, for the term of this Agreement and two years thereafter. These restrictions shall not apply to the extent that the information or material is obtained from third parties as a matter of right and without violation of any confidentiality or non disclosure obligation, is publicly available other than through the fault, negligence or breach of the receiving party, is disclosed to the public generally with the prior written approval of the disclosing party, is generally known in the field of telecommunications and Internet development and/or supply of related services or is known by the receiving party at the time of disclosure by the disclosing party.
    10. Data Processing: The Customer acknowledges that Exchange will be required to process the personal data of the Customer’s employees or contractors to perform and support the Services set out in these Terms and Conditions. Details of how Exchange processes personal data is set out in Exchange’s privacy policy at exchangecom.net as amended from time to time. The Customer acknowledges that Exchange may send direct marketing communications in accordance with that policy in respect of related products or services to the Services but the relevant employee or consultant at the Customer has the ability to opt out of such communications at any time.
    11. Governing law: These Terms and Conditions any disputes arising out of it (whether contractual or non-contractual) shall be interpreted in accordance with the laws of the State of California, and all applicable federal laws, rules and regulations as if these Terms and Conditions were executed and performed wholly within the State of California. In the event of a dispute between the parties, jurisdiction and venue shall be in County of Los Angeles, Central Judicial District.